' MUHAMMAD FARRUKH IRFAN KHAN, J.--- Through this Constitutional petition under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973 the petitioner prays as follows:--- "It is, therefore, respectfully prayed that this writ petition may kindly be accepted and it be declared that the promotion of respondents Nos.4 and 5 vide Notifications Nos.CD/277 and CD/278 dated 30-6-2010, respectively as Associate Professors by the respondents Nos.1 to 3 and 6 to 8 is altogether illegal, mala fide, void, inoperative and against the public policy having been obtained by the said respondents Nos.4 and 5 by bypassing all the mandatory procedures and requirements of law, on the subject, in the interest of justice.
' Any other relief which this Hon'ble Court may deem fit and proper be also awarded to the petitioner."
2. Learned counsel for the petitioner submits that the petitioner is an MBBS doctor having 10 years' experience in the medical profession; that the petitioner joined Sheikh Zaid Hospital, Lahore as Senior House Officer in the Obstetrics and Gynecology department and at present is D.G.O. Training in the said hospital and is specializing in the field of Obstetrics and Gynecology; that respondent/department promoted respondents Nos.4 and 5 from Assistant Professor to Associate Professor by ignoring the fact that in their ACRs respondent No,2 recorded adverse remarks due to their poor performance; that respondents Nos.4 and 5 do not possesses the requisite eligibility to be promoted for the posts of Associate Professor; that both the respondents have been promoted by the authority in sheer violation of rules and regulations of Pakistan Medical and Dental Council; that while promoting respondents Nos.4 and 5 the authority has ignored senior qualified doctors of the department; that respondent No,8 while promoting respondents Nos.4 and 5 has committed material illegality and irregularity and promoted them by violating all the codal and legal formalities; that the suggestions of respondent No,2 who was the head of the department were altogether ignored by the respondent No,8, who through a number of communications brought into the notice of the competent authority the poor service record and illegal acts of respondents Nos.4 and 5 and recommended disciplinary action against them; that both the respondents remained absent from their duty without any intimation and the patients of the hospital were left at the mercy of nature and the lower staff of the hospital; that the demands of the duty of Associate Professor are very sensitive and even the slightest negligence on the part of a doctor can cause something serious to happen to the patients; that it is also worth to mention here that at the time of promotion as Associate Professor the respondent No,4 was under suspension and while granting her promotion this pivotal factor was ignored altogether; that respondents Nos.1 and 8 while promoting respondents Nos.4 and 5 were bound under the law to consider their service record, requisite qualification and rules and regulations of PMDC on the subject but this has not been done in the case of respondents Nos.4 and 5; that the respondents Nos.4 and 5 were not eligible to be promoted as Associate Professor as such their promotion orders are liable to be set aside.
3. Mr. Imran Aziz, Advocate while appearing on behalf of respondents Nos.1, 3, 6 to 8 submits that no illegality or irregularity is committed by the answering respondents while promoting respondents Nos.4 and 5 as Associate Professor; that the petitioner is working at Sh. Zaid Hospital under the subordination of respondent No,2 and she has filed the instant petition on instigation of said respondent who is already in litigation with respondents Nos.4 and 5 and in this regard 1.C.A. No,85 of 2010 is pending adjudication before a Division Bench of this Court; that respondent No,4 made a number of complaints against respondent No,2 for misuse of authority; that the respondent No,2 has nurtured a grudge against respondents Nos.4 and 5, and suspended respondent No,4 despite the fact that he does not have lawful authority to do so; that respondent No,2 has not recorded ACRs of respondents Nos.4 and 5 despite direction of Board of Governors of the Hospital, Secretary Cabinet Division as well as Chairman and Dean of the department; that ACRs of the respondents Nos.4 and 5 were written by other competent officers according to which performance of both the respondents was up to the mark; that both the respondents possessed requisite qualification and were senior most in the department as such the competent authority after giving due consideration promoted them; that the documents appended with this petition by the petitioner are inter se communication of respondent No,2 with the departmental authorities and the petitioner has not explained from where she obtained these documents; that either the petitioner stole these documents or these documents were handed over to her by respondent No,2; that on both the grounds the petitioner has not come with clean hands and cannot claim discretionary relief from this Court; that according to the record both the respondents i,e, respondents Nos.4 and 5 have been found vigilant and performing their duties quite diligently; that as respondent No,2 has no authority to suspend respondent No,4 as such her suspension is a nullity in the eyes of law; that the petitioner has no locus standi to file this petition and the allegations raised in this petition are false and frivolous.
4. Dr. Abdul Basit Advocate for respondent No,5 submits that the assertions in this petition are malicious and abuse of process of law; that the petitioner is not even a regular employee as such has no locus standi to file the instant petition; that through this petition promotion of the respondents has been challenged as such writ of quo-warranto is not maintainable; that no ground has been mentioned in the petition that the respondents are not eligible for promotion; that as to the contention of the petitioner that the ACRs of the respondent No,5 contained adverse remarks is concerned, the same have been expunged by the competent authority; that even otherwise these adverse remarks were recorded by respondent No,2, who nurtured personal grudge against the respondent No,5; that the respondent No,5 possesses the requisite qualifications to be promoted as Associate Professor and while doing so the competent authority has not committed any illegality Irregularity.
5. Ch. Amir-ur-Rehman Advocate for respondent No,4 adopted the arguments advanced by the learned counsel for respondent No,5 and respondents Nos.1, 3, 6 to 8.
6. Prof. Dr. Muhammad Saeed/respondent No,2 submits that the promotions of respondents Nos.4 and 5 are against the rules and regulations of the departments; that while promoting them the competent authority has not considered the material fact that their ACRs contained adverse remarks; that he is the Head of the Department and his suggestions were altogether ignored by the respondent No,8; that he recommended disciplinary action against respondents Nos.4 and 5 due to their poor performance; that at the time of promotion respondent No,4 was under suspension but the competent authority also ignored this fact. While concluding his arguments, the respondent No,2 submits that neither the petitioner acted as his tool nor he has any grievance regarding the promotions of respondents Nos.4 and 5; that he just wanted to bring the true picture of the actual facts before this Court.
7. I have heard the arguments advanced by the learned counsel for the parties and perused the record.
8. Through this writ of quo warranto the petitioner (Dr. Sha Kh.) calls in question the promotions of respondent No,4 (Dr. Asita Abbas) and respondent No,5 (Dr. Yasmeen Shah) as Associate Professor.- The documents annexed with the petition are inter se correspondence of the respondent No,2 (Prof. Dr. Muhammad Saeed) with his departmental authorities in his official capacit) and it is very strange that the petitioner had access to these documents. 11 can safely be presumed that the same were provided to her by respondent No,2, who is already inimical to respondents Nos.4 and 5. Record shows that respondent No,2 and respondents Nos.4 and 5 are already in litigation against each other. Respondents Nos.4 and 5 have already filed a writ of quo warranto against the respondent No,2 and I.C.A No,85 of 2010 is still pending adjudication before the Division Bench of this Court. Record further reveals that despite direction of DP and SC the respondent No,2 did not record ACRs of respondents Nos.4 and 5 in order to frustrate their promotion process. On the advice of Cabinet Division, Prof. Zafar Iqbal, Professor of Medicine was designated as Reporting Officer of respondents Nos.4 and 5, who recorded the ACRs of both the respondents which were duly countersigned by the Chairman and Dean of the Institute as per directions of the Cabinet Division. In the prevalent circumstances it cannot be ruled out that the instant petition is in retaliation to I.C.A. No,85 of 2010 and has been filed for the benefit of the said respondent No,2.
9. It is settled law that grant of relief in a writ of quo warrant is not a matter of course and the conduct and motives of the petitioner can be looked into by this Court when such a prayer is made. In the case reported as Ghulam Rasool v. Muhammad Hayat (PLD 1984 Supreme Court 385) a polling agent of the losing candidate for the election of Zila Council had filed a writ of quo warranto against the successful candidate and this Court held that such a person should be deemed to be acting not probono publico but for a benefit of losing candidate and issuance of writ was declined. As discussed above, in the present case it appears from the record that the respondent No,2 appears to be interested to withhold the promotions of respondents Nos.4 and 5 and for this purpose he has tried his level best before the departmental authorities by not recording their ACRs and suspending respondent No,4 without lawful authority but having been unsuccessful has prima facie motivated the present petitioner to file this petition.
10. In case reported as Aziz-ur-Rehman Ch. v. M. Nasiruddin and others (PLD 1965 Supreme Court 236) it has been laid down as under:--- "The Court from which the writ was sought was entitled to enquire into the conduct and motives of the appellant for such a writ and if the information was considered to be merely of a vexatious nature the Court was entitled to refuse to exercise its discretion in favour of the appellants."
11. In view of the dictum laid down in case reported as Masudul Hassan v. Khadim Hussain and another (PLD 1963 SC 203) issuance of writ of quo warranto is discretionary in nature and being mindful of the facts and circumstances of this particular case, this Court does not feel inclined to use this discretion.
12. The Court also cannot help but observe that the petitioner, respondent No,2 as also the respondents Nos.4 and 5 belong to a noble profession. The conduct adopted by the respondent No,2 in victimizing his junior colleagues leaves much to be desired. The instant petition was clearly filed with mala fide intentions. Both the petitioner and respondent No,2 could have devoted their energies towards the betterment of their patients rather than indulge in frivolous litigation. Dismiss this petition with costs of Rs,50,000 to be deposited by the.
13. In the given circumstances, I have no other option except to petitioner in the Dispensary of the Lahore High Court Bar Association within four months from the date hereof under intimation to the Deputy Registrar (J) of this Court, who shall place the same as "compliance case" before the Court on 25-4-2012.