' MUNIB AKHTAR, J.--- By means of the present petition, the petitioner seeks an order in the nature of quo warranto (which, for convenience, we will refer to as a "writ or quo warranto") against the respondent No,3. The petition is presented in the following circumstances.
2. The respondent No,3 is a civil servant in the service of the Province of Sindh in BPS-19. At the time of the hearing of the petition, he held the office of District Officer (Elementary), Khairpur. It appears that the office of the Executive District Officer (Education), Khairpur fell vacant on or about 3-6- 2009. By means of an order dated 5-6-2009, the District Coordination Officer, Khairpur ("DCO") purported to "allow" the respondent No,3 to "look after the charge of Executive District Officer (Education), Khairpur in addition to his own duties with immediate effect till posting of some other officer by the Government of Sindh". The respondent No,3 has since then been holding charge as Executive District Officer (Education), Khairpur (hereinafter referred to as the "EDO (Education)". It is against this that the petitioner seeks a writ of quo warranto i.e, his grievance is that the respondent No,3 is holding the office of EDO (Education) without lawful authority.
2. Mr. Zamir Ahmed Ghumro, learned counsel appearing on behalf of the petitioner, in the first instance referred to a number of authorities to explain scope and extent of the writ of quo warranto. He submitted that the DCO did not have the authority to appoint any person to either hold the office of EDO (Education) or to discharge the functions of that office. He further submitted that the office of EDO (Education) could only be held by an officer of BPS-20, and the respondent No,3 was admittedly only an officer of BPS-19. Even as to that, learned counsel submitted that the respondent No,3 was a very junior officer (being only at Serial No,75 in the concerned seniority list) in BPS-19. Therefore, if at all any person from BPS-19 could be appointed to hold the office of EDO (Education), it ought to have been the senior most-available person in that grade, and not a relatively junior officer like the respondent No,3. Learned counsel referred to the various provisions of the Sindh Civil Servants (Appointment, Promotion and Transfer) Rules, 1974 ("1974 Rules") to show how civil servants are to be appointed, and how various posts and offices are to be filled, and in particular how, and to what extent, acting charge of an office can be given to officers. He submitted that in terms of the 1974 Rules, the respondent No,3 could not have been given the additional charge of the office of EDO (Education). Thus, according to learned counsel for the petitioner, neither was the DCO competent to "allow" any person to assume charge (whether directly or in addition to his own duties) of the office of EDO (Education), nor could the respondent No,3 be given such an assignment. He submitted that the said respondent therefore held the office of EDO (Education) without lawful authority and a writ of quo warranto ought to be issued declaring the said office to be vacant, and declaring that all acts done and orders made by the respondent No,3 under colour of that office were void ab initio.
4. In support of his arguments, the learned counsel relied on the following judgments: Shah Ahmad Khan v Government of Punjab PLD 2007 Lah. 191, Khan Muhammad Khan v. Azad Jammu and Kashmir Government and others PLD 2004 AJ&K 1, Syed Mufeed Shah and another v. Principal Khyber Medical College and others 2003 CLC 1348, Muhammad Shafique Raja v. Province of Punjab and others 1991 CLC 617, Muzammal Khan v. Khan Faraz and others 1998 CLC 1847, Ejaz Hussain v.
Abdul Qayyum 1996 PLC (C.S.) 622, Salahuddin and others v. Frontier Sugar Mills and Distillery Ltd.
And others PLD 1975 SC 244, Pakistan Tobacco Board and another v. Tahir Raza and others 2007 SCMR 97, All Pakistan Clerks' Association v. Mst. Ishrat Fatima and others 2008 PLC (C.S.) 1266, Dr. Shagufta Shahjehan v. Government of Punjab and another 2008 PLC (C.S.) 659, Mian Zia-ud-Din v.
Secretary Local Government 2005 PLC (C.S.) 908, Dr. Mujahid Ali Mansoori and others v. University of Punjab and others 2005 PLC (C.S.) 694, Mahmood Akhtar v. Syed Hassan Mujtaba Jaffri and others 2005 PLC (C.S.) 997, Syed Sagheer Hussain v. AJ&K Government and others 2004 PLC (C.S.)
1248, Khurshid Qasim Laboratory Assistant v. Vice-Chancellor, University of AJ&K University and others 2004 PLC (C.S.) 1131, Azhar Hussain Chataihry v. Azad Government and others 1999 CLC 481, Malik Muhammad Shafi v. Secretary Education and others 2000 YLR 206, Dr. M. Afzal Beg v.
University of Punjab and others 1999 PLC (C.S.) 60.
5. Mr. Muhammad Nawaz Sheikh, learned counsel appearing for the respondent No,3, strongly opposed the petition. He submitted that the petitioner had come to court with unclean hands and was not entitled to any discretionary relief. According to him, the petitioner had in fact abused the facility provided by a certain Government policy (namely that of the donor having the right to nominate a person to a post in a school built on land donated by him for this purpose) and was after the respondent No,3 only because the latter had initiated action against him. He further submitted that the entire matter in any case related to the terms and conditions of the respondent No,3's service and hence came within the prohibition of Article 212 of the Constitution. He submitted that the DCO did have the authority to give the acting charge of the office of EDO (Education) to the respondent No,3 and in this context relied on section 28 of the Sindh Local Government Ordinance, 2001 ("2001 Ordinance"). He prayed that the petition be dismissed. The learned Additional Advocate-General adopted and reiterated the submissions of learned counsel for respondent No,3.
6. In support of his contentions, learned counsel relied on the following judgments: National Insurance Corporation v. Muhammad Sadiq 2000 CLC 1244; Zahid Akhtar v. Government of Punjab and others PLD 1995 SC 530, Rukhsana Ijaz v. Secretary and others 1997 SCMR 167, Shamim Akhtar v.
Government of Punjab PLD 1991 Lah. 389, Ghulam Muhammad Mallah v. Province of Sindh 2009 PLC (C.S.) 120, Khalid Mahmood v. Tariq Janjua and others 1993 PLC (C.S.) 623, Syed Manzoor Hussain Gilani v. Sain Mullah and others PLD 1993 SC (AJ&K) 12, Syed Muhammad Yousaf Shah v. AJ&K and another 1994 PLC (C.S.) 1214, Muquddus Sattar v. Federal Public Service Commission 2008 SCMR 773, Dr. Mir Alam Jan v. Dr. Muhammad Shahzad and others 2008 SCMR 960: Dr. Azim-ur-Rehman Khan Meo v. Government of Sindh and another 2004 SCMR 1299, Dr. Raja Manzoor Elahi v. North- Western Frontier Province PLD 1980 Pesh. 81, Abdul Bari v. Government of Pakistan and others PLD 1981 Kar. 290, Dr. Syed Sharaf Ali Shah and others v. Province of Sindh and others 2009 SCMR 249, Secretary and others v. Muhammad Hussain Shah and others 2005 SCMR 675, Dr. Ahmad Salman Waris v. Dr. Naeem Akhtar and others PLD 1997 SC 382, Collector of Central Excise and Land Customs and others v. Azizuddin Industries Ltd. PLD 1970 SC 439, Muhammad v. Province of Punjab 1979 SCMR 498.
7. Mr. David Lawrence, learned amicus curiae, submitted that the petition was defective inasmuch as the DCO had not been made a party to the proceedings. He however, submitted that the DCO did not appear to have the authority to direct the respondent No,3 to assume the additional charge of the office of EDO (Education), and thus, the order appointing, the latter in this regard suffered from legal infirmities. The learned counsel relied on the following judgments in support of his contentions, Dr. Ghulam Shabbir Saqib v. Government of Punjab and others 2005 PLC (C.S.) 993, Abdul Wajid Malik v. Government of Punjab and another 2006 SCMR 1360, Zahid Akhtar v.
Government of Punjab, and others PLD 2005 SC 530, Chief Justice of Pakistan Iftikhar Muhammad Chaudhry v. President of Pakistan and others PLD 2010 SC 61, Sher Muhammad v. D.G. T&T Department and another PLD 1979 Kar. 1, Azad Jammu Kashmir Government and another v. Syed Zaman Ali Shah and others PLD 1991 SC (AJ&K) 57, Abdul Mbar Khan v. Government of Sindh and others 1996 SCMR 850, Syed Arshad Ali and others v. PTCL, and others 2008 SCMR 314.
8. We have examined the case in the light of the arguments of the learned counsel and the opinion of the learned amicus curiae and have carefully perused the record of the case and the judgments relied on by the learned counsel.
9. The scope and extent of a writ of quo warranto are well established. The constitutional jurisdiction in this regard is conferred on the High Courts in terms of Article 199 of the Constitution clause (1) of which provides in material part as follows:-- "(1) Subject to the Constitution, a High Court may if it is satisfied that no other adequate remedy is provided by law,--
(b) on the application of any person make an order-
(ii) requiring a person within the territorial jurisdiction of the Court holding or purporting to hold a public office to show under what authority of law he claims to hold that office".
The first point to note is that any person can apply for a writ of quo warranto, and he need not be an aggrieved person or party. The writ is directed against a person holding, or purporting to hold public office, and every member of the public at large is regarded as having an interest in ensuring, and/or demanding that a public office is, or be, held only by a person having lawful authority to do so. Secondly, the writ is discretionary, i.e,, the Court is not bound to grant the relief sought even if the petitioner makes out a case and may withhold the writ in appropriate circumstances. Thirdly, the authority purporting to appoint the respondent to the public office need not be a party to the proceedings for the writ to issue. The scope and power of the High Court while considering whether or not to issue a writ of quo warranto was stated in the following terms by the Supreme Court in Pakistan Tobacco Board and another v. Tahir Raza and others 2007 SCMR 97: "The writ of quo warranto, which is of course, is now an obsolete writ and substituted by a prohibitory order is to inquire from a person the authority of law under which he purports to hold a public office. It is primarily inquisitorial and not adversarial for the reason that a relator need not be a person aggrieved but also that while a person is holding a public office without any legal warrant, he is taxing public exchequer besides causing injury to others who may be entitled to the said office. Therefore, keeping in view the nature of such proceedings the learned High Court can undertake such an inquiry as it may deem necessary in the facts and circumstances of a particular case including examination of the entire relevant record and this exercise can be done suo motu even if its attention is not drawn by the parties concerned." (pg.101)
In Muhammad Shafique Raja v. Government of Punjab and others 1991 CLC 617, the Lahore High Court observed that a writ of quo warranto should be encouraged in order to keep a check on executive authorities in our view, if a petition is filed seeking a writ of quo warranto in connection with a public office, that the writ would (unless withheld at the court's discretion) be issued if the court is satisfied that any one or more of the following elements are, missing, ,namely that (a) the respondent holds the public office by order or decision of an authority competent to so appoint him; (b) he was appointed in the prescribed manner (and if the appointment is at the discretion of the appointing authority, that discretion was lawfully exercised); (c) he could have been appointed to the office (e.g., that he had the requisite qualifications and was not otherwise disqualified); and
(d) he was entitled to continue holding the office.
10. The DCO has of course purported to "allow" the respondent No,3 to "look after" the charge of the EDO (Education). It is common ground that the respondent No,3 has been discharging all the functions and exercising all the powers of the EDO (Education). Thus, to all extent and purposes, the respondent No,3 holds the office of EDO (Education) by virtue of the DCO's order of 5-6-2009. The first question therefore is whether the DCO was competent to make such an order. As noted above, learned counsel for the petitioner referred to various provisions of the 1974 Rules in this regard.
However, the post of EDO (Education) is a statutory post created by and under the 2001 Ordinance.
It will therefore be necessary to first examine the latter statute in order to determine who is competent to make the appointment.
11. Section 13 of the 2001 Ordinance provides that a District Government consists of its Zila Nazim and the District Administration. Section 14 provides that the administrative and financial authority for the management in a district of the offices of the Provincial Government; as listed in Part A to the First Schedule stand devolved (or decentralized) to the District Government of that district. The section also provides that the offices so decentralized (known as district offices) are to be grouped into various groups as specified in Part C of the First Schedule. Section 26 delineates the structure of a District Administration. It is to comprise of the district offices decentralized to the District Government, and any other offices set up in the district by the Provincial Government. Section 27 provides that each district office is to be headed by a District Officer and each group of offices is to be headed by an Executive District Officer. Thus, the scheme of the 2001 Ordinance, as presently relevant, is as follows. In each District certain offices of the Provincial Government stand devolved to the District Government. These offices, known as District Offices, are grouped into various groups.
Each district office is headed by a District Officer, and each group of offices is to be headed by an Executive District Officer. As presently relevant, certain offices of the Provincial Government relating to education were devolved under Part A of the First Schedule. Each of these devolved offices is headed by a District Officer. All the devolved offices relating to education are grouped together in Part C of the First Schedule in the "Education" group and this group of offices is to be headed by an executive. District Officer otherwise known as the Executive District Officer (Education). This, the respondent No,3 is one such District Officer in the District of Khairpur, being the District Officer (Elementary), and the question is whether he has been lawfully given the charge of the office of the Executive District Officer of Khairpur District.
12. The crucial question is of course who has the authority to appoint the district officers and the executive district officers? Section 30(2) provides as follows:-- "The Government shall appoint [such] officers and officials to the District Offices, groups of offices or other offices in the district specified in the First Schedule [as may be prescribed]."
"Government" is defined in the 2001 Ordinance as meaning the Provincial Government. The words in brackets were changes brought about in 2007 by which the word "such" replaced the word "all" and the words "as may be prescribed" were added at the end. Our attention has not been drawn to any rules that may so far have been prescribed in this regard. However, the essential point for present purposes remains unchanged. It is for the Provincial Government to appoint officers to the district offices (i.e, the District Officers) and to groups of offices i.e, the Executive District Officers. No such power vests In any other authority or person. It necessarily follows that the power to appoint a person to hold any of these offices by way of additional or acting charge also vests in the Government.
13. The District Coordination Officer or DCO, is of course an important officer in the Local Government scheme envisaged by the 2001 Ordinance. His appointment (to be made by the Provincial Government) is separately provided for in section 28(1). He heads the group of district offices known as district coordination group of offices (section 27(1)). His is as the name of his office suggests, the coordinating head of the District Administration", and his duties, functions and powers are enumerated in section 28(2). As noted above, learned counsel for the respondent No,3 relied on these provisions to submit that the DCO had the power to make the impugned order dated 5-6-2009. We are unable to agree with learned counsel in this regard. The powers of the DCO are of a general supervisory and coordinating nature. There is nothing in those powers to suggest that he can exercise the power of appointment concurrently with or in default of the powers of the Provincial Government under section 30(2). Indeed, in this context, our attention has been drawn to a Government circular issued in 2006, being Circular No,SO.II(LGD)1(1)2002Pt/.I, dated 28-2-2006 of the Local Government, Kachi Abadis and Spatial Development Department, which in material part stated as follows:-- "It has been observed that the DCOs/TMOs are transferring/ posting/relieving; assigning additional charge to the officers of Local Government Department on their own without prior approval orders of the competent authority, which is beyond their competency and against norms of good governance.- Such practice needs to be [discontinued].
' In this regard, attention has been invited in the part that, under section 30 subsection (2) of the SLGO, 2001, and amendment under APT Rules, such orders are to be issued by the Government of Sindh." (Emphasis supplied: SLGO 2001 means the 2001 Ordinance, and the APT Rules means the 1974, Rules.)
(The above circular may be found in the compendium of local government rules at the website of the Sindh Devolved Social Services Program: www. Sdssp. Gov pk/docs/tta/compendium. Pdf)
14. In our view, it is clear from the foregoing that the DCO did not have the power or authority to appoint the respondent No,3 to the office of EDO (Education) in any manner, including by way of temporary acting or additional charge. Thus, the very first element noted in Para 6 (supra) is clearly missing in the present case.
15. As noted above, since 2007, section 30(2) requires that appropriate rules be framed to regulate the manner in which the Provincial Government is to exercise its powers to appoint district officers and executive district officers, and no such rules have been brought to our attention. If such rules have indeed not been framed so far, then the manner in which an executive district officer is to be appointed would be regulated, inter alia by the 1974 Rules. However, it is not necessary at this stage and in this petition to examine this matter further, since the purported appointment of the respondent No,3 as EDO (Education) (by way of can additional charge) was done by the DCO, who had no authority to do so. It is self-evident that in such circumstances, the second element identified in para 6 (supra) is also missing.
16. The next question is as to whether the respondent No,3 could at all have been appointed as EDO (Education). As noted above, learned counsel for the petitioner had stated that only an officer in BPS-20 could be so appointed, and this was not directly controverted by either the learned A.A.-G.
Or learned counsel for the said respondent. To a certain extent the answer to this question would depend on the rules framed under section 30(2). It must also be kept in mind that section 28 of the 2001 Ordinance, which requires the Provincial Government to appoint a DCO in every district also provides that he must be a civil servant in BPS-20 "as far as possible". The DCO is of course the coordinating head of the District Administration (section 26). Section 28 could (at the very least) to imply that the DCO could be an officer of a grade other than BPS-20, which could imply that he could be an officer in one grade higher or one grade lower than that grade. We do not record any definitive finding on this point but merely note that if that were the case, then it would become doubtful that an Executive District Officer must be in BPS-20. At the same time, learned counsel for the petitioner placed on record an extract from the budgetary estimates for the office of EDO (Education), Khairpur which appears to show that the executive district officer is to be an officer of BPS-20 (the District Officers are to be officers of BPS-19). Since the legal and factual position with regard to the contention raised by learned counsel for the petitioner is not clear, we do not record any conclusion on this point.
17. As noted above, learned counsel for the respondent No,3 submitted that the entire matter related to the terms and conditions of service of the said respondent, and the jurisdiction of the High Court in this regard was barred by Article 212. He also contended that the matter of the transfer of a civil servant from one post to another could also not be entertained by the High Court under Article 199 as being a purely administrative matter entirely within the executive domain and also barred by reason of Article 212. To support these contentions, learned counsel referred to a number of cases. In our view, it is not necessary to consider those cases in detail. The respondent No,3 was clearly not being, transferred to the post of EDO (Education); he was merely being "allowed" to "look after" the charge of that office. As regards the question of whether or not the respondent No,3 had the requisite qualification to be appointed to the office were part of the terms and conditions of his service, reference can be made to Dr. Ahmad Salman Waris v. Dr. Naeem Akhtar and others PLD 1997 SC 382, a decision relied on by learned counsel for the respondent No,3.
In that case, the appellant challenged the appointment/selection of the respondents by the Punjab Public Service Commission for the post of Assistant Professor of Urology. The challenge was on the ground that the respondents did not have the necessary qualifications to be selected. The petition succeeded before a learned single Judge, but the order was set aside in Intra-Court Appeal by the High Court on the ground that the matter of qualifications related to the terms and conditions of service, and the jurisdiction of the High Court was thus barred under Article 212. On appeal, the Supreme Court observed as follows:-- "The question which now arises for consideration is, whether an appeal by the appellant before the Tribunal in these circumstances was competent under the law. While discussing the scope of an appeal under section 4 of the Act, we pointed out that one of the jurisdictional requirements. Of such an appeal is, that it must be filed by a civil servant as defined in the Act. Another jurisdictional requirement of such an appeal is, that the grievance of the aggrieved civil servant must relate to a final order of departmental authority whether original or appellate. In the case before us, the appellant was a candidate for the post of Assistant Professor of Urology along with Dr. Naeem and Dr. Sahu before the Commission. The latter mentioned gentlemen were selected and recommended for appointment by the Commission while the appellant was not selected. The appellant having applied but not selected for the post could not acquire the status of a civil servant within the meaning of the Act. He was, therefore, in our view, not entitled to file an appeal before the Tribunal. Apart from it, the appellant besides questioning the appointments of Dr. Naeem and Dr. Sahu by the Government, had also challenged the selection/recommendation by the Commission of Dr. Naeem and Dr. Sahu, for the post of Assistant Professor of Urology, which could not be brought under challenge before the Tribunal in a service appeal as the above action of the Commission did not fall within the category of the final order of a departmental authority, whether original or appellate." (Pages 392-393: emphasis supplied)
It was held that the petition was maintainable, and the matter was accordingly remanded to the High Court for a decision on the merits. In the present case also, the petitioner is not an aggrieved civil servant who could have taken recourse to proceedings before the Service Tribunal.
Furthermore the petitioner has also challenged the authority of the DCO to hand over the additional charge of EDO (Education) to the respondent No,3, which could not have been challenged before the Tribunal. In our view therefore, the present petition is not hit by the bar contained in Article 212 of the Constitution.
18. This brings us to the last point, namely whether, if a case is otherwise made out the Court should nonetheless, in its discretion, refuse relief to the petitioner. The objection taken by learned counsel for the respondent No,3 in this regard has been noted above. In our view that objection is without substance. This is for the reason that even if a writ of quo warranto is issued, it will have effect from the date of the decision and any acts done or orders made by the respondent No,3 as EDO (Education) if otherwise lawful and proper, would not be affected. Thus, if the respondent No,3 has initiated or recommended the initiation of any proceedings against the petitioner, that decision would stand if otherwise lawful and proper.
19. In view of what has been stated in the foregoing, we are of the opinion that a case was made out for issuing a writ of quo warranto. We hold that the impugned order of the DCO, Khairpur dated 5-6-2009 whereby additional charge of the office of EDO (Education) was given to the respondent No,3 was without lawful authority. This would ordinarily have led to the petition being accepted, and a declaration that the said office was vacant. However, certain developments have been brought to our attention since we heard the matter and reserved judgment on 12-4-2010. While reserving judgment, we had also directed that the competent authority be asked to take immediate steps to appoint a permanent incumbent to the said office. On 21-4-2010 the learned A.A.-G. Placed on record certain documents with reference to this part of our order of 12-4-2010. There is firstly, a letter dated 14-4-2010 by means of which the respondent No,3 relinquished charge of the office of EDO (Education). There is then a notification dated 15-4-2010 issued under the hand of the Chief Secretary to the Provincial Government, by means of which the respondent No,3 was transferred and posted with immediate effect as EDO (Education) in his own pay and scale. Finally, there is a "resumption report" dated 19-4-2010 by means of which the respondent No,3 has confirmed taking charge of the office of EDO (Education) in terms of the notification of 15-4-2010.
20. Along with the petition, the petitioner had placed on record Circular No,SOI/S&GAD/6/25/2009 dated 22-4-2009 issued by the Services, General Administration and Coordination Department of the Government of Sindh (the same department which has issued the notification of 15-4-2010).
The subject of the circular was "Posting of Officers on OPS basis". The circular referred to a Provincial Cabinet decision of 29-4-2008 in which the Cabinet unanimously decided to cancel postings on OPS basis. Only two departments were exempted from the ban, being the District Administration and the Police departments. We look absence at the fact that an officer, who was not merely a litigant in pending Court proceedings, but is also apparently quite junior in the seniority list has been posted as EDO (Education) in this manner. However in view of the foregoing developments, and subject always to such rules as may have been or may be framed section 30(2) of the 2001 Ordinance it would seem that the vacancy in the office of EDO (Education), Khairpur has now been filled in, at least to the extent of the objections taken in the petition. It is well-settled that a writ of quo warranto will not issue in such circumstances and accordingly, this petition must be disposed of as having become infructuous.
21. Before parting with the judgment we would like to extend our gratitude to the learned counsel amicus curiae. Mr. David Lawrence, for the invaluable assistance provided by him to the Court.
22. For the foregoing reasons we conclude that this petition has become infructuous and is therefore disposed of as such.