' IJAZ AHMED CHAUDHRY, J.---Through this writ petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, Aurangzeb Shaafi Burki, petitioner challenges the validity of Notification No,SI.2-2/2008 dated 19-8-2008, in view whereof, oath taking by respondent No,5 before respondent No,6 be declared void ab initio and the charge assumption by respondent No,5 as illegal and unwarranted in the eyes of law.
2. Briefly the facts, relevant for the disposal of this constitutional petition, are that the Government of the Punjab while exercising powers under section 3(1) of the Punjab. Office of the Ombudsman Act, 1997 read with the Punjab Office of the Ombudsman (Amendment) Act, 2003 appointed Mr. Khalid Mehmood, respondent No,5 as Ombudsman for the Province of Punjab vide Notification No,SI.2-2/2008 dated 19-8-2008. On 6-12-2008 the Governor of the Punjab proceeded abroad on a personal visit and the President of Pakistan acting under Article 104 of the Constitution of Islamic Republic of Pakistan, 1973 appointed respondent No,6 as the Acting Governor of the Province of Punjab who took oath as such on 6-12-2008. The Government through official notification had announced Eid-ul-Addha holidays w,e,f, 8-12-2008 to 10-12-2008 and before the start of aforesaid holidays on 7-12-2008 it was Sunday. During the aforesaid Holidays the Acting Governor, respondent No,6 administered Oath to respondent No,5 on 6-12-2008, as such, the impugned notification as well as the taking of oath by respondent No,6 of respondent No,5 are illegal and amount to overstepping the authority and use of the power which does not vest with him. Hence the present constitutional petition.
3. Ch. Fawad Hussain, learned counsel for the petitioner contends that under the scheme of the Constitution the Governor of a Province is the constitutional head of the Province having executive as well as legislative powers; that in view of the scheme of the Constitution the Governor of a Province has to play a dominant role in respect of appointments of persons on the posts governed by the Constitution of the Islamic Republic of Pakistan, 1973 like consultation as = well as administering oath to the person so appointed; that the appointment and oath taking of respondent No,5 is contrary to the provisions of law as according to section 3 of the Punjab Office of the Ombudsman Act, 1997 the oath taking before the Governor is mandatory but the Provincial Government in a clandestine manner got administered the oath to respondent No.5 from respondent No,6 on 8-12-2008 who was acting as Governor on that day; that he whole process was so mischievously concluded that Governor's Secretariat was unaware of this development as the oath ceremony took place in Speaker's Secretariat and not in the Governor House; that it is true that the appointment of the Ombudsman is the prerogative of the Government and by virtue of section 3(43a) of the General Clauses Act, 1897 Provincial Government means the Governor but surprisingly the Governor was not informed at all about the said appointment which is clearly violative of the Constitution, law and procedure; that the ceremony of oath taking was deliberately concluded in the absence of the Governor of the Province only to usurp his legal and constitutional rights; that the dictionary meaning/definition of the word acting is doing duty for another, officiating or holding a temporary rank or position or performing services temporarily and in such circumstances whole the process of appointment of respondent No,5 is in clear violation of the law laid down by the apex Court in Al-Jehad Trust v. Federation of Pakistan (PLD 1996 Supreme Court 324) wherein it has elaborately been discussed that the nature of the acting authority is just to perform the function of routine nature as functioning of the same is for very short time and fairness of things requires that the appointment in the key posts shall not be allowed to person performing his duty under the head of "Acting"; that the Acting Governor is only empowered to perform the functions but has no authority to exercise the powers of the Governor, as such, taking oath of Ombudsman was an exercise of power of the Governor which could not have been exercised by respondent No,6; that respondent No,6 as acting Governor can perform functions of the routine matter and is not authorized to exercise powers of the Governor as the distinction of the Governor and the Acting Governor is well recognized in the case of Pakistan Tehrik-e-Inqilab v. Election Commission of Pakistan and 2 others (1997 M LD 3167).
4. Mr. Ashtar Ausaf Ali, Advocate, learned counsel for respondent No,5 while opposing this constitutional petition contends that section 3 of the Punjab Office of the Ombudsman Act, 1997 (Act X of 1997) clearly specifies that the Ombudsman shall be appointed by the Government and the word Government connotes the Chief Minister, as such, the Governor of the Punjab has no role at all in the appointment of the Ombudsman; that even in presence of clear cut provision of law for the appointment of Ombudsman to be the prerogative of the government a summary was put up to the Chief Minister for appointment of respondent No,5 on which, the Chief Minister advised the Governor to approve the appointment of respondent No,5 but the same was returned back with the remarks that the Governor had seen the summary and since the appointment of Ombudsman has to be made by the Government no approval of the Governor is required; that since the respondent was rightly appointed by the Government of the Punjab in accordance with law, therefore, the present writ petition in the nature of quo-warranto is not maintainable for the reason that the petitioner has not challenged the notification of respondent No,6 to act as Governor and without challenging the authority of respondent No,6 the petitioner has no legal justification to challenge the appointment of respondent No,5 having no locus standi as he is not an aggrieved person; that the second challenge made by the petitioner in this constitutional petition regarding administering of Oath to respondent No,6 by the Acting Governor is also of no help to the petitioner for invoking the constitutional jurisdiction of this Court as according to the definition of oath in the legal literature is that oath is to Almighty Allah and not to the Governor who merely carries out the ministerial act of administering it, as such, this is an object that anybody could do as no application of mind is required and relies upon Pakistan Tehrik-e-Inqilab v. Election Commission of Pakistan and 2 others (1997 M LD 3167); that sub-Article (2) of Article 255 of the Constitution of Islamic Republic of Pakistan clearly lays down that where, under the Constitution, an oath is required to be made before a specified person and for any reason it is impracticable for the oath to be made before that person, it may be made before such other person as may be nominated by that person, as such, the oath was rightly administered by respondent No,6 to respondent No,5. He has relied upon Arun Kumar v. Union of India and others (AIR 1982 Rajasthan 67), The Tariq Transport Company v. The Sargodha Bhera Bus Service (PLD 1958 Supreme Court 437), Dr. Kamal Hussain v. M. Siraj ul Islam (PLD 1959 Supreme Court 42), Islamic Republic of Pakistan v. Muhammad Saeed (PLD 1961 Supreme Court 192), Government of Sindh v. Hasina (1979 SCR 17), Jan Muhammad and others v. Government of N.-W.F.P. (1993 CLC 1067), Pir Sabir Shah v. Federation of Pakistan and others (PLD 1994 Supreme Court 738), Zafar Ali Shah v. Federal Government of Pakistan (1994 CLC 5), Ali Raza Asad Abidi v. Justice Muhammad Ilyas (1995 M LD 2022), Dr. Azim-urRehman Khan Meo v. Government of Sindh (2004 SCM R 1299), M.Liaqat Munir Rao v. Shams-ud-Din (2004 PLC (C.S.) SC 1328), Syed Amjad Ali v. Ch. Amir Afzal and others (2006 SC (AJ&K) 69), Ghulam Ali Shah v. Election Commission of Pakistan (2008 CLC 738) and Sindh High Court Bar Association v. Federation of Pakistan (PLD 2009 SC 879).
5. Mr.., Abid Hassan Minto, Senior Advocate Supreme Court of Pakistan, learned counsel for respondents No,1 to 4 while adopting the arguments of Mr. Ashtar Ausaf Ali, Advocate contends that the writ petition is based on mala fides and is demonstrably an act motivated by ulterior considerations designed to malign and scandalize not only the high quasi- judicial office of the Ombudsman but also the Government of Punjab and its functionaries; that a summary was sent to the Governor by the Government of the Punjab recommending the name of respondent No,5 which returned back with the remarks that under section 3 of the Punjab Office of the Ombudsman Act, 1997 the Ombudsman for province shall be appointed by the Government; that since the Governor had declared the appointment of respondent No,5 to be falling within the domain of the Government of Punjab, therefore, the said Government appointed respondent No,5 on 19-8-2008; that since under the law the oath was to be administered to respondent No,5 by the Governor, therefore, the Government again sent a summary for such purpose but without any response; that the petitioner failed to disclose the important facts in this writ petition regarding sending of summary etc., to the Governor of the Punjab, as such, the same is not maintainable. He has relied upon Al-Jehad Trust v. Federation of Pakistan (PLD 1996 Supreme Court 324).
6. Syed Najam-ul-Hassan Kazmi, learned counsel for respondent No,6 contends that respondent No,6 did not violate any mandate and has acted as per commission given to him by the President of Pakistan and relied upon Dr. Azim ur Rehman Khan Meo v. Government of Sindh and another (2004 SCM R 1299), Federation of Pakistan and others v. Mian Muhammad Nawaz Sharif and others (PLD 2009 Supreme Court 644) and Sindh High Court Bar Association through its Secretary and another v. Federation of Pakistan through Secretary, Ministry of Law and Justice, Islamabad and others (PLD 2009 Supreme Court 879).
7. We have heard the learned counsel for the parties and also perused the available record and the case law cited by them with their able assistance. The ground of attack emphasized by the petitioner through the present constitutional petition is two fold i,e, the appointment of respondent No,5 and his taking oath of Office of Ombudsman from the acting Governor. First of all we would like to deal with the first ground of attack i,e, appointment of respondent No,5 as Ombudsman.
Section 3 of the Punjab Office of Ombudsman Act, 1997 (Act X 1997) clearly shows that there shall be an Ombudsman for the Province of Punjab who shall be appointed by the Government. Now the question arises whether the Governor of the Punjab is head of Government of Punjab or the Chief Minister of the Province is head of Government. In this respect Article 129 of the Constitution of Islamic Republic of Pakistan 1973 is referred, according to which, the executive authority of the Province shall be exercised in the name of Governor by the Provincial Government consisting of the Chief Minister and Provincial Ministers which shall act through the Chief Minister. According to sub- Article (2) of the aforesaid Article of the Constitution in the performance of his functions under the constitution, the Chief Minister may act either directly or through the Provincial Minister. In view of clear cut language of aforesaid Article 129 of the Constitution of Islamic Republic of Pakistan 1973, the head of the Provincial Government is the Chief Minister. In view of section 3 of the Punjab Office of the Ombudsman Act 1997, respondent No,5 was rightly appointed by the Government of Punjab.
Even otherwise the Government of Punjab sent a summary to the Governor of Punjab who, in turn, returned the summary on 13-8-2008 with the following observations:-- "The Governor has seen. He has been pleased to observe that under the provisions of section 3 of the Punjab Office of the Ombudsman Act, 1997, as amended vide Punjab Office of the Ombudsman (Amendment) Act, 2003, the Ombudsman for the Province of Punjab shall be appointed by the Government who, before entering upon office, shall take an oath before the Governor in the form set out in the First Schedule to the Act ibid. Thus while the Ombudsman is required to take oath before the Governor, his appointment will be made by the Government and, therefore, no approval of the Governor is required in this case.
' In view of the specific provisions of the law, the Summary is hereby returned for further necessary action, please."
8. During the course of hearing of this petition, learned counsel for the petitioner when confronted with the aforesaid situation categorically admitted that the Government, of Punjab was competent to make appointment of the Provincial Ombudsman.
9. As far as the second ground of administration of oath by the Acting Governor to respondent No,5 is concerned, the Government after the appointment of respondent No,5 as Ombudsman under the provisions of subsection (3) of section 3 of Punjab Office of the Ombudsman Act, 1997, made a request to the Governor of Punjab on 26-8-2008 with the advice of the Chief Minister to indicate a date and time of his convenience for administering oath to respondent No,5 but having no response from the Governor's Office after lapse of more than two months, the Chief Minister repeated his earlier request with his advice dated 5-11-2008. Even then the Governor did not grant audience to the Ombudsman enabling him to take oath of his office. It is thus clear that despite hectic efforts made by the Government of the Punjab oath was not administered to respondent No,5 by the Governor. Sub-Article 2 of Article 255 of the Constitution is relevant in this context, which is reproduced below:- "255. (1) An oath required to be made by a person under the Constitution shall (preferably be made in Urdu or) a language that is understood by that person.
(2) Where, under the Constitution, an oath is required to be made before a specified person and, for any reason, it is impracticable for the oath to be made before that person, it may be made before such other person as may be nominated by that person.
(3) Where, under the Constitution, a person is required to make an oath before he enters upon an office, he shall be deemed to have entered upon the office on the day on which he makes the oath."
10. In view of clear-cut language of sub-Article 2 of Article 255 of the Constitution it is crystal clear that oath is required to be made before a specific person and in case it is impracticable for any reason it may be made before such other person as may be nominated by that person. Since respondent No,6 was duly nominated by the President of Pakistan to act as Governor of Punjab in the absence of Governor of Punjab, therefore, respondent No,6 was competent to administer oath to respondent No,5.
11. It is an admitted fact that the petitioner has not challenged the notification whereby respondent No,6 was directed by the President of Pakistan to act as Governor which clearly shows that the petitioner has admitted the appointment of respondent No,6 as Acting Governor and in such an eventuality the petitioner, without challenging the appointment of respondent No,6, as Acting Governor, cannot challenge the act of the Governor which he had done after his nomination as Acting Governor. Even otherwise, oath is to Almighty Allah and not to the Governor who merely carries out a ministerial act of administering oath, as such, any person could do that act but here in this case the Acting Governor was duly nominated by President of Pakistan to act as Governor.
The case law cited by learned counsel for the petitioner is not relevant to the facts and circumstances of the present case because if as per contention of learned counsel for the petitioner the Acting Governor had no authority to administer the oath to respondent No,5 which is a routine matter then there was no need to appoint an Acting Governor in absence of the Governor. The legislature keeping in view the sensitivity of post of Governor had made a provision in the Constitution for nomination of a person to act as Governor in the absence of the Governor. In such circumstances, respondent No,6 has committed no illegality while administering oath to respondent No,5 warranting interference by this Court in its constitutional jurisdiction.
12. There is no cavil to the proposition that the Constitutional remedy is a discretionary particularly the relief claimed on the principle governing quo warran to as envisaged under Article 199(2)(b)(ii) of the Constitution. Such a discretion has to be exercised by this Court in accordance with the judicial principles and not as a matter of course. In order to exercise such a discretion the conduct of the petitioner is very relevant. The present Writ Petition is based on mala fidies and is an act motivated for ulterior considerations designed to malign and scandalize the respondents as the petitioner, as per his own admission, in the Writ Petition, is a political worker serving as Secretary Finance of Pakistan People's Party (Punjab), as such, he is not entitled to any discretionary relief.
13. Upshot of above discussion is that we find no, force in this constitutional. Petition, which is hereby dismissed.