' SYED ZULFIQAR ALI BOKHARI, J.--- Brief facts stated by learned counsel for the petitioner are that the petitioner having requisite qualifications was recruited on 15-1-2008 as Dafadar being the member of Tumman Qasrani in Border Military Police D.G. Khan. Later on he was promoted as Acting Charge Jammadar against a post falling within the quota of Tumman Qasrani since March, 2005. Learned counsel for the petitioner states that Border Military Police is a creation of the North West Border Military Police Act, 1904. The competence of the various authorities has been defined in the said Act, 1904 as well as the D.G. Khan Border Military Police and Baloch Levy Service Rules, 1935.
The authority of appointment regarding subordinate officers is prescribed under section 6 of the Act, 1904 according to which the Senior Commandant, Border Military Police, D.G. Khan is the competent authority regarding appointment of posts of Jammadar and Subedar. 1 he name of the petitioner was recommended for promotion on regular basis by the competent authority to the Government of the Punjab in 2004. The Commandant, Border Military Police D.G. Khan in this regard issued letters dated 27-9-2004 and 8-6-2004 but no action was taken on the pretext that rules have not yet been duly notified in the official Gazette.
2. On 29-9-2007 the Secretary Government of the Punjab Home Department appointed respondent No,5 Noor Khan Qasrani as Jammadar in Border Military Police D.G. Khan against a vacant post of Tumman Qasrani in relaxation of provision of recruitment policy. The petitioner has challenged that order on the grounds that appointment of respondent No,5 by respondent No,1 is without lawful authority which has been made against vacant post of Tumman Qasrani whereas the said post has already been occupied by the petitioner since March, 2005 and he is performing his duties as Jammadar and that the order is patently illegal as the same has been passed in relaxation of provision of recruitment policy dated 2-8-2005. The same is illegal and ultra vires as the post was not advertised in prescribed manner. The Home Secretary has encroached rather transgressed his power and authority in passing the impugned order in a slip-shod manner and he had deviated from law laid down by the superior Court. The impugned order was manipulated through political influence as the same was passed on the advice of principal Secretary to the Chief Minister, Punjab. Learned counsel for the petitioner also challenged the concern of respondent No,5 with the Tumman Qasrani as he is not resident of the area and also was over age at the time of his appointment. Learned counsel for the petitioner has relied on the unreported judgments of this Court passed in Writ Petition No,1656-S of 1994 and I.C.A. No,90 of 2003.
4. On the other hand learned counsel for respondent No,5 with the help of Assistant Advocate General has opposed the arguments of learned counsel for the petitioner and states that this writ petition is not maintainable on the ground that petitioner is civil servant and the dispute relates to the terms and conditions of service which could not be raised in constitutional petition being barred under Article 212 of the Constitution of Islamic Republic of Pakistan, 1973. He further states that petitioner is Dafadar when respondent No,5 has been appointed a step higher as Jammadar from different quota on temporary basis due to shortage of staff in the area and Chief Minister under Rule 23 of Punjab Civil Servants (Appointment and Conditions of Service) Rules, 1974, can relax the rules. He adds that as the petitioner is not aggrieved person so the writ petition is not maintainable. It is stated that amendment in Border Military Policy Act, 1904 has been introduced through Punjab Border Military Police (Amendment) Act, 2007 when the rules are under preparation. According to the section 5 of Act Government has power to appoint senior commandant and other superior officer in the Border Military Police. The appointment order of respondent No,5 was quite legal and there was no violation of the recruitment policy. I have heard the arguments of learned counsel for the parties and have gone through the parawise comments as well as record available on the file.
5. Since the petition being civil servant has not prayed for his promotion or any other relief which comes under the terms and conditions of service, so no question of bar of Article 212 of the Constitution of Islamic Republic of Pakistan arises. This is a writ for quo warranto, which can only be filed by an interested person. The petitioner being member of Tumman Qasrani and working as Jammadar on a vacant seat since March, 2005 and expecting his regular promotion for said seat, has challenged appointment of respondent No,5, so this writ petition is maintainable.
6. According to section 6 of the Act, 1904, Senior Commandant is the competent authority in case of appointment of subordinate officers. The respondent No,1 has transgressed from his authority and passed the impugned order dated 21-9-2007 without jurisdiction, in relaxation of recruitment policy which is politically motivated depriving the petitioner from his fundamental rights. So this writ petition is allowed and order dated 21-9-2007 passed by respondent No,1 is declared null and void, without lawful authority, violative to the law and result of political motivation and is set aside.