Through this writ petition validity of the order dated 04.02.2009 is challenged with the prayer that Respondent No, 3 be asked as to under what authority of law he is holding the post of Federal Government Inspector of Railways, Railways Headquarter, Lahore and Respondents No, 2 be directed to fill the post of Federal Government Inspector of Railways afresh by way of appointing a legally qualified and suitable officer from amongst Civil Engineering Department in the public interest, as per previous rules and consistent practice.
2. Learned counsel for the petitioner submits that:--
(i) The order dated 04.02.2009 is passed by the incompetent authority and on this short ground the same is liable to be set aside.
(ii) The impugned order is violative of Rule 15(a) read with Schedule V(a) Serial No, 23 of the Rules of Business Government of Pakistan.
(iii) The post of Federal Government Inspector of Railways has always been filled from amongst civil engineers because the post involves the engineering work which is reflected from Annex.A/2 and pages 23, 24 and 28 of the writ petition and record reveals that the said post of Federal Government Inspector of Railways is always held by the civil engineers since ages, whereas in the impugned matter this consistent practice was violated.
In support of his contentions, learned counsel has relied on Muhammad Afzal and another vs. Government of Balochistan through Secretary, Services and General Administration Department, Quetta and 4 others (1995 PLC (CS) 567) and Cap. (R) Muhammad Nasim Hijazi vs. Province of Punjab (2000 SCMR 1720).
3. On the other hand, learned counsel for Respondents No, 1, 2 and 4 submits that:--
(i) The present writ is hit by Article 212 of the Constitution of Pakistan as this Court lacks jurisdiction.
(ii) The petitioners are not aggrieved persons, so this writ petition is liable to be dismissed on this ground only.
(iii) According to Section 4 of the Railways Act 1890 any person amongst General Managers of Pakistan Railways can be appointed as Federal Government Inspector of Railways, so while appointing Respondent No, 3 no illegality was committed because the said respondent fulfills the requirement of Section 4 of the Railways Act.
(iv) So far the appointment of Respondent No, 3 is concerned, it was with the blessing of the Prime Minister, however, the appointment order was issued by the Chairman, Pakistan Railways within his competence, so the point of incompetency to issue notification dated 04.02.2009 is neither here nor there.
(v) The impugned notification dated 04.02.2009 cannot be termed as an appointment because Respondent No, 3 is not appointed as Federal Government Inspector of Railways, rather he is transferred and posted as such, so the writ of quo-warranto cannot be issued.
4. The learned Deputy Attorney General who represents Respondent No, 5 was directed to have instructions from the Establishment Division to confirm whether notification dated 04.02.2009 was issued with the approval of the Prime Minister or not?
5. Today, the learned Deputy Attorney General appeared in the Court and candidly submits that according to his instructions notification dated 04.02.2009 was issued by the Chairman, Pakistan Railways himself and it was not even in the knowledge of the Prime Minister what to talk of the Prime Minister's blessing/approval.
6. Learned counsel for Respondent No, 3 submits that Respondent No, 3 being a Grade-21 officer was rightly posted as Federal Government Inspector of Railways as per provisions of Section 4 of the Pakistan Railways Act, so his posting/transfer cannot be challenged through the instant writ petition and the same being a misconceived one be dismissed with special costs,
7. Arguments heard. Record perused.
8. First of all, I have to advert to the point of jurisdiction, which is repeatedly argued by the learned counsel for Respondents No, 1, 2 and 4.
9. This question was dealt with on different occasions by different Courts like the cases of Muhammad Afzal and another vs. Government of Balochistan through Secretary, Services and General Administration Department, Quetta and .4 others (1995 PLC (CS) 567), wherein it is held,-- "The person who had information of illegal appointment would have no other remedy except filing constitutional petition in the nature of quo-warranto under Article 199 of the Constitution and the relief as prayed for could not be refused on the ground of bar of jurisdiction under Article 212 of the Constitution."
10. In case reported as Cap. (R) Muhammad Nasim Hijazi vs. Province of Punjab (2000 SCMR 1720), it is held-- "Any person can move the High Court to challenge the unauthorized occupation of a public office.
On any such application the Court is not only to see that the incumbent is holding the office under the order of a competent authority but it is to go beyond and see as to whether he is legally qualified to hold the office or to remain in the office. The Court has also to see if statutory provisions have been violated in making the appointment. The invalidity of appointment may arise not only from want of qualifications but also from violation of legal provisions for appointment."
11. In the light of specific provisions of Article 199 of the Constitution of Pakistan as well as law laid down supra, it is held that the writ of quo-warranto can be filed by any citizen of Pakistan and it is also held that in case of issuance of writ of quo-warranto the High Court has the ample power to go into the vires of the notification/appointment of someone.
12. So far the objection of the learned counsel for Respondents Nos, 1, 2 and 4 that notification dated 04.02.2009 is not the notification of appointment, rather it is a notification of transfer/posting and it cannot be challenged in writ of quo-warranto is concerned, suffice it to say that there are three modes Of appointment i,e,
(i) initial/direct,
(ii) through promotion,
(iii) through transfer.
13. Admittedly, the notification dated 04.02.2009 clearly reveals that Respondent No, 3 is appointed as Federal Government Inspector of Railways through the mode of transfer, so the contentions of the learned counsel for Respondents No, 1, 2 and 4 having no justifiable reasons/no substance are repelled.
14. So far Section 4 of the Railways Act is concerned, it shall be useful to reproduce the same, as under:- "4.(1) The Federal Government may appoint one or more suitable persons not below the rank of the General Manager of Railway Administration, to be the Inspectors of Railways.
(2) The duties of an Inspector of Railways shall be--
(a) to inspect railways with a view to determine whether they are fit to be opened for the public carriage of passengers, and to report thereon to the [Federal Government] as required by this Act;
(b) to make such periodical or other inspections of any railway or of any rolling-stock used thereon as the [Federal Government] may direct;
(c) to make inquiry under this Act into the cause of any accident on a railway;
(d) to perform such other duties as are imposed on him by this Act, or any other enactment for the time being in force relating to railways."
Requirement of Section 4 revolves around two points and those are:--
(i) Whether the appointment order was passed by the competent authority or not?
(ii) Whether the post of Federal Government Inspector of Railways involves the duties of engineer or of general nature?
15. So far the first point is concerned, it is candidly submitted by the learned Deputy Attorney General that he has confirmed from the concerned quarters that notification dated 04.02.2009 was issued without approval of the competent authority i,e, the Prime Minister, meaning thereby that the impugned order was passed by the incompetent Authority, as in the present case the appointment of Grade 21 officer is involved, so according to Rules of Business, Government of Pakistan, the competent authority is the Prime Minister and not anyone else.
16. When in-competency of the issuing authority of order dated 04.02.2009 is established from the office record, then it shall not be difficult to arrive at the conclusion that impugned notification being issued by an incompetent authority/without having lawful powers is to be set aside without going into the other details and in this respect I can safely rely on a number of judgments passed by the Hon'ble Supreme Court, however, for the present controversy I shall confine to refer the cases of Nasir Saeed vs. WAPDA through its Chairman and another (PLD 1987 SC 421) and House Building Finance Corporation through Managing Director, Karachi and another us. Inayatullah Shaikh (1999 SCMR 311).
17. In 'case of Nasir Saeed vs. WAPDA through its Chairman and another (PLD 1987 SC 421), the officer namely Nasir Saeed was retired from service by the order of Chairman WAPDA and the point raised before the Hon'ble Supreme Court was that the competent authority was the WAPDA Authority and not the Chairman only, so far the Authority is concerned, it comprises of Chairman_ as well as three Members and in that case the matter was finalized by the Chairman solely. After hearing the parties, the Hon'ble Supreme Court held-- "As the order of retirement was passed in the case of the appellant, not by the Authority but by the Appointing Officer, it suffers from a legal jurisdictional taint. The appeal is, therefore, allowed with costs and the order impugned is declared to be without lawful authority and of no legal effect."
18. In case of House Building finance Corporation through Managing Director, Karachi and another vs. Inayatullah Shaikh (1999 SCMR 311), wherein it is held,-- "12. Referring to the last submission of the learned counsel for the appellants that the termination order though signed by the General Manager, was passed by the Managing Director, it may be observed that the High Court has concluded as under:-- "No doubt the Managing Director has been delegated full powers in respect of appointments, promotions, and awarding of punishment including termination/dismissal of all officers except officers in management cadre, but the Managing Director cannot further delegate such powers to the General Manager. The impugned order, dated 20.9.1993 has been passed by General Manager of Respondent No, 1 Corporation. There is no indication in the said order if it was factually passed by the Managing Director, with the General Manager only communicating the same to the petitioner.
Vain attempt by learned counsel for the respondent to persuade us to believe so, is fruitless. In this way the impugned order is ultra vires of the powers of the General Manager, as it could be passed only by the Respondent No, 1 Corporation, as per Regulation No, 11 read with Regulation No, 26 (as amended) or at the most by delegates of the Corporation."
13. Before us also the appellant failed to produce any order of the Managing Director whereby the services of the respondent were ordered to be terminated. The learned counsel for the appellants has solely relied upon para 6 of the comments wherein it was asserted that the order was passed by the Managing Director. However, factually no such order has been produced before us in spite of the above finding of the High Court. The respondent had also been taken in service after the judgment of the High Court in 1994 and some other employees have also been reinducted into service on the basis of the above judgment of the High Court. We are, therefore, not inclined to interfere with the judgment under appeal on the above ground found favour with the High Court.
14. The appeal is dismissed with no order as to costs."
19. Thus following the law supra, the impugned order dated 04.02.2009 is declared without lawful authority and is set aside.
20. In the present case there is another important aspect of the fact which cannot be ignored lightly and that is that according to requirements, the post of Federal Government Inspector of Railways involves the duties of civil engineering nature, whereas Respondent No, 3 is an alien to civil engineer duties being an officer of Traffic Railways.
21. The record reveals that till the appointment of Respondent No, 3 in the entire history of Railways, this post was held by a civil engineer and this very position is not disputed by the departmental representative or by the learned counsel for Respondents No, 1, 2 and 4. When this undisputed fact is visible from the record, this Court cannot overlook the important aspect that how a non-engineer can hold the post of an engineer particularly when there is a consistent practice of appointing the Federal Government Inspector of Railways from amongst civil engineers.
22. It is important to note that practices and customs have been statutory law was unavailable and even today are regarded as an regarded as a strong and reliable source of law in prehistoric time when essential source of law where statutes are even not expressed on a particular proposition or where there is total unavailability of statute.
23. International Law till today is heavily relite on customs and practices which have developed through a long terms and usage and where express statutory provisions are not available.
Practices and customs give a fair understanding as to how a particular proposition is to be dealt with keeping in view the long term consistency of following a particular course in a particular set of circumstances which is acceptable and has been accepted as a whole by the society or the concerned quarters which are governed by such customs or practice. To give a few examples where customs and practices are being used as a source of law in Pakistan. the field of trade, international trade, custom and tax laws and even Islamic law can be cited where customs and practices are still used as a source of law. Any derogation from the established practices is often made with ridicule by the Courts and it is often ensured that the practices have been settled since a long time should be adhered to by the authorities in order to ensure consistent and ensure that no rights are infringed of legitimate expectants who relied on the consistency of following such practices as are developed through usage over a period of time.
24. In the case reported as Nazir Ahmad vs. Pakistan and 11 others (PLD 1970 SC 453). the Hon'ble Supreme Court of Pakistan held,-- "Course followed consistently by them for long period of time--Deviation or departure from construction not permissible.--Where the departmental practice has followed a course in the implementation of the relevant rule whether right or wrong, it will be extremely unfair to make a departure from it after a lapse of many years and to disturb rights that have been settled by a long and consistent course by the practice. This, to say the least, is bound to weaken the faith of the employees in the attitude and behaviour of the department."
25.In another case reported as Messrs Radaka Corporation and others vs. Collector of Customs and another (1989 SCMR 353), the Hon'ble Supreme Court of Pakistan held:-- "Departmental practice--Interpretation that had been consistently followed by department and which had become a long standing practice, had almost acquired force of law--Such practice, could not be lightly departed from--Where departmental practice had followed a particular course in implementation of some rule, whether right or wrong, it would be extremely unfair to make a departure from it after a lapse of many years and thereby disturb rights that have been settled by a long and consistent course of practice."
26. In the case reported as Dr. M. Aslam Khaki vs. Syed Muhammad Hashim and 2 others (PLD 2000 SC 225), the Hon'ble Supreme Court of Pakistan held,-- "The term "law" also includes any custom or usage having the force of law or any law relating to banking or insurance practice and procedure. The Legislature consciously included within the definition of term "law" for the purposes of Chapter 3-A of the Constitution of Pakistan "any custom or usage having the force of law". The term "law" as used in Article 4 of the Constitution has also been used in Article 8 of the Constitution, in contradistinction with any "custom or usage having the force of law" and must, therefore, be given the same limited connotation in Article 4 as well. Article 203-B(c), Constitution of Pakistan, 1973 provides an inclusive definition of law. On the force of that definition itself any usage having the force of law shall qualify as law. Such a usage may relate to the nation or group as a whole or may relate to practice and procedure of the Court. The former has been included in the definition of law but the latter has been expressly excluded by providing that law includes any custom or usage having the force of law but does not include "any law relating to the procedure of any Court or tribunal". Law here does not mean only the enacted law but includes usage having the force of law. Such usage or law may relate to procedure of Court or to matters not expressly excluded from the jurisdiction of the Court."
27. The view of the apex Court was followed in the case reported as 2004 PTD (Trib.) 1077, wherein it is held,-- "Constant practice is not to be changed in an arbitrary manner-Interpretation that had been constantly acted upon by the Customs Authorities that acquired the force of law as a departmental practice was not to be changed in an arbitrary manner, as it would be extremely unfair to make a departure from the same after a lapse of many years and thereby disturbing the rights that had been acquired and settled by a long and consistent course of practice."
28. Coming back to the proposition had not the appointment of Respondent No, 3 in derogation to the established practice of the Railways Department/Federal Government is in my mind an arbitrary departure from the existing and well established mode of appointment of the Federal Government Inspector of Railways. The Federal Government has since a long time been appointing only civil engineers to the post of Federal Government Inspector of Railways (as admitted in so many words by the Pakistan Railways in their comments and during the arguments by their representative) and they have now suddenly departed of their own practice by appointing a non- engineer, which is arbitrary, capricious and incomprehensible in view of their own practice which not only defeats the legitimate expectations of the Civil Engineers who were expecting to be appointed to the said post due to their specialization but also offends the principles and rule of consistency. Not only a Court should be in its' decisions but an authority especially a Governmental authority should also be consistent in its practice, procedure and decisions where it has been since a long period of time, as a sudden departure from its own practice creates, serious doubt on the transparency and fairness of its decisions.
29. The nature of the post of Inspector of Railways is also one that necessarily entails appointment of a civil engineer in view of the nature of duties and responsibilities attached to the post and therefore departing from the said practice would also do injustice with the post and would also be disadvantageous to the department if the right person for a right job is not appointed. Section 4 of the Railways Act even though does not expressly bar the appointment of a non-engineer yet it is incomprehensible as to why only civil engineers have been appointed to the said post since a long time and why such a practice is departed from suddenly. Had there been departure from said practice on a regular basis then it would be the discretion of the authority to appoint any person, however, practice and procedure for a long time is established by the Government itself by appointing no other person other than a civil engineer to the said post especially in view of its nature.
30. For the reasons mentioned above, I hold the appointment of a non-engineer to the post of Federal Government Inspector of Railways through the impugned order as illegal in view of a departure from a well settled since long practice.
31. In arriving this conclusion I can safely rely on another judgment of the Hon'ble Supreme Court reported as Pakistan Tobacco Board and another vs. Tahir Raza and others (2007 SCMR 97).
Resultantly, the writ petition is allowed and Respondent No, 5 is directed to treat the post of Federal Government Inspector of Railways as vacant and make arrangement for filling of the same from amongst the Civil Engineers within a period of one month from today, and that too with the approval of competent authority i,e, the Prime Minister.