' SHAHID ANWAR BAJWA, J.---The petitioner is a Lecturer in the Department of a Public Administration in the respondent No,1 University (hereinafter called the University). It is stated in the petition that in order to strengthen infrastructure of the University a scholarship scheme was introduced and 26 scholarships for the discipline as far leading to Ph.D degree in various disciplines including two scholarships in the discipline of Public Administration and two scholarships in the discipline of Business Administration were advertised on 15th May, 2009. Some of the scholarships were availed while others were not. Again advertisement for seven scholarships was placed in newspaper in January 2010. The relevant fact is that this advertisement carried one scholarship for Business Administration but had no scholarship in Public Administration. Vide order dated 22-11- 2011, respondent No,5, another lecturer in the Department of Public Administration was informed that he had been provisionally selected for scholarship under the programme titled Strengthening of Infrastructure of the University. Ultimately subsequent order also passed in November 2011 and final offer of scholarship was made to respondent No,5. This constitutional petition has been filed by the petitioner and the following prayers have been made:-- "(a) To declare the impugned letters dated 22-11-2011 followed by Final Offer Letter (Annexures-B and B-1) issued by the respondent No,1 in favour of the respondent No,5 are illegal, unlawful without any lawful authority and a seoret one, based upon discrimination and without fulfillment of the legal and codal formalities hence without any legal consequences.
(b) To direct the respondents Nos.1 to 4 to act in accordance with law and advertise the process for selection of the scholars to H.E.C. Criteria in the leading newspaper and so also on NTS Website by providing the downloadable version of the application forms so as to maintain the fairness and transparency amongst the qualifying candidates.
(c) To suspend the operation of the impugned letters dated 22-11-2011 followed by the Final Offer Letter (Annexures-B and B-1) in favour of the respondent No,5 and restrain the respondents Nos.1 to 4 from sending the respondent No,5 abroad under the impugned scholarship, till the final decision of the main petition, by granting appropriate injunction.
(d) To grant any other just and equitable relief, which has not been specifically prayed for, under the circumstances of the present matter and for the just decision of the present petition and in the interest of justice."
2. Learned counsel for the petitioner made the following submissions:--
(i) Respondent No,5 qualified his NTS examination in 2010 and therefore, was not eligible for scholarship under the advertisement of 2009 and under the advertisement of 2010 he in any case could not have been given the scholarship because there was no scholarship for Public Administration though there was a scholarship for Business Management.
(ii) Learned counsel submitted that the petitioner had higher NTS score and was also senior to respondent No,5.
(iii) Learned counsel next submitted that on 25-10-2011 the Higher Education Commission ordered change of discipline and created 12 scholarships for Public Administration. His submission was that since this was done by the Higher Education Commission on October 25th, 2011, respondent No,5 could only have been selected after advertisement and transparent process after October 25th, 2011 and no such advertisement was placed in the newspapers. Learned counsel relied upon Malik Shahid Mehmood v. Malik Afzal Mehmood and others (2011 SCMR 551), Mukhtar Hussain and others v. Sohbat Ali and another (2011 SCMR 19,26) and In the matter of: Human Rights Cases Nos.4668 of 2006, 1111 of 2007 and 15283-G of 2010 (PLD 2010 Supreme Court 759). Before concluding his arguments learned counsel stated that he did not press any relief for himself and stated that he was merely challenging the process through which respondent No,5 was selected.
3. Mr. Abdul Qayyoom Shaikh learned counsel for the University submitted that as far as eligibility of respondent No,5 is concerned it is not disputed by the petitioner. He submitted that, if the petitioner is not seeking relief for himself he cannot be said to be an aggrieved person in order to be able to maintain this grievance petition. Learned counsel referred to para (c) of the comments filed by respondents Nos.1 and 2, where it is stated that the petitioner has already been granted a scholarship for MS leading to Ph.D and is presently under going that programme at Mehran University of Engineering and Technology since 3-1-2011. It is also stated that the petitioner also applied for scholarship but his application was turned down for the reasons that he was already availing a scholarship. Mr.Ghulam Shabbir Shar substantially adopted arguments of Mr. Abdul Qayyoom Shaikh.
4 We have considered the submissions made by the learned counsel and have also gone through the record'.
5. In Malik Shahid Mehmood's case supra which arose of a suit in respect of a gift deed it was observed that .a person cannot be allowed to do indirectly what the law bars him from doing directly. In Mukhtiar Hussain's case (supra) which is a case arising out of pre-emption matter it was observed that concession given in law could not be accepted as a valid concession. In Human Rights case (supra) it was a case regarding McDonald restaurant in F-9 Park Islamabad. -It was observed that things are required to be done strictly accordance to the law or they should not be done at all. Though principle enumerated in all three cases are unexceptionable, they are of no help to the petitioner in the context of the present case.
6. Learned counsel for the petitioner very candidly stated that the petitioner is not claiming any relief for himself and is merely pressing this petition to challenge award of scholarship to respondent No,5. He submitted that therefore his petition is in the nature of petition for a writ of quo warranto. Since the petitioner is not claiming any relief for himself and since it is necessary for a petition in the nature of certiorari, mandamus or prohibition for a petitioner to be an aggrieved person, no relief of the kind stipulated in Article 199(1)(a)(i) and (2) can be granted and no petition for such a nature would be maintainable. This leaves us with the petition in the nature stated in Article 199(1)(b)(ii) which provides that the High Court may require "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 word public office came up for consideration before the Supreme Court in Salahuddin and 2 others v. Frontier Sugar Mills and Distillery Ltd. Tokht Bhai and 10 others (PLD 1975 SC 244) and the honourable Supreme Court observed as under:- "The term 'public office' is defined in Article 290 of the Interim Constitution as including any office in the Service of Pakistan and membership of an Assembly. The phrase 'Service of Pakistan' is defined, in the same Article, as meaning an service, post or office in connection with the affairs of the Federation or of a Province and includes an All-Pakistan Service, any defence service and any other service declared to be a Service of Pakistan by or under Act of the Federal Legislature or a Provincial Legislature but does not include service as a Speaker, Deputy Speaker or other member of an Assembly. Reading the two definitions together, it becomes clear that the term 'public office', as used in the Interim Constitution, is much wider than the phrase 'Service of Pakistan', and although it includes any office in the Service of Pakistan, it could not really refer to the large number of posts or appointments held by State functionaries at various levels in the hierarchy of Government. As early as 1846, the House of Lords in Henry Farran Darley v. Reg. (1846) 8 ER 520, expressed the view that "a proceeding by information in the nature of quo warranto will lie for usurping any office, whether created by Charter of the Crown alone, or by the Crown with the consent of Parliament, provided the office be of a public nature and a substantive office, and not merely the function or employment of a deputy or servant held at the will and pleasure of others".
Their Lordships held the office of Treasurer of the public money of the county of the city of Dublin to be an office for which an information in the nature of a quo warranto would lie. In other words, their Lordships excluded, from the purview of the term 'public office', the large number of servants of the Crown who were not holding any statutory, representative or elective office.
' This view seems to have held the ground throughout. As summed up by Ferris (Extraordinary Legal Remedies, 1962 Edition, p.145), " a public office is the right, authority and duty created and conferred by law; by which an individual is vested with some portion of the sovereign function of the Government to be exercised by him for the benefit of the public, for the term and by the tenure prescribed by law. It implies a delegation of a portion of the sovereign power. It is a trust conferred by public authority for a public purpose, embracing the ideas of tenure, duration, emolument and duties. A public officer is thus to be distinguished from a mere employment or agency resting on contract, to which such powers and functions are not attached The determining factor, the test, is whether the office involves a delegation of some of the sovereign functions of Government, either exclusive, legislative or judicial, to be exercised by the holder of the public benefit. Unless his powers are of this nature, he is not a public officer". (underlining added)
7. It may be pointed out that the phrase "public office" is no longer defined in Article 260 of the Constitution of Islamic Republic of Pakistan (1973) as it was defined under the Interim Constitution (1972). Irrespective of this, the determining factors and the test stated by the Supreme Court will hold field and they are: the office must involves delegation of some of the sovereign function of Government either executive legislative a judicial to be exercised by the holder for the public benefit.
8. In Allah Ditta v. Muhammad Munir and others (PLD 1966 (W.P.) Lahore 770). The office that was involved was that of a member of Electoral College and before a Division Bench of Lahore High Court, it was contended that member of Electoral College does not hold a public office. The Division Bench held as under:-- "The definition of public office quoted with approval, is "a right, authority and duty created and conferred by law, by which an individual is invested with some portion of the sovereign functions of the Government to be exercised by him for the benefit of the public. It implies a delegation of a portion of the sovereign power to and in possession of it by the person filling the office". This case was decided on the 11th of February, 1965, but since then the members of the Electoral College have actually been conferred functions under Basic Democracies Act and have become members of the Basic Democracies. The argument, which was formerly open, that members of the Electoral College merely performed elective functions and not any portion of sovereign Government (and, therefore, did not hold a public office) is not now open, since the members of the Electoral College have been entrusted with some of the executive functions of the Government as members of the Basic Democracies. We would, therefore, respectfully agree with the above decision that at any rate now the members of the Electoral College hold public office. The effect of reaching this conclusion is that a person holding such public office can be required to show under what authority of law he claims to hold that office under Article 98(2)(b)(ii), which in olden times was issued in the form of a writ of quo warranto. Sudan application can be made by any person and not necessarily by a person aggrieved, though it cannot be said in the present case that a person who was a rival candidate, is a person who was not aggrieved by the election of the respondent."
(underlining added.)
9. In Masudul Hassan v. Khadim Hussain (PLD 1963 SC 203). It was held that writ of quo warranto can only be maintained on grounds of public nature of office. In Sardar Asseff Ahmed Ali v.
Mr.Muhammad Khan Junejo and others (PLD 1986 Lahore 310). The following principles were laid down.
"In the light of this dictum, we have been unable to discover any principle of law whereby the High Court in exercise of the constitutional jurisdiction can order the removal of a person from a public office despite the patent and admitted position that both at the time of the institution of the writ petition and on the date of the decision respondents Nos. 1 and 2 did not suffer from any disqualification to hold a public office or to warrant removal from such office by way of issuance of a direction in the nature of writ of quo warranto.
' In Hari Shankar Prasad Gupta v. Sukhdeo Prasad and another (AIR 1954 All. 227) a Full Bench of the Allahabad High Court refused to entertain an application under Article 226 *of the Constitution of India for grant of information in the nature of quo warranto to invalidate the constitution of the Election Tribunal on the ground. That one of the members was not qualified to act since such member, at the date of the hearing of the petition, had become so qualified.
' We also find support from the case reported as Kamal Hussain v. Sirajul Islam (PLD 1969 SC 42), wherein it has been held that the grant of relief in writ jurisdiction is a matter of discretion and it was quite legitimate on the part of the High Court to test bona fide of the relator to see if he has come with clean hands. A writ in the nature of quo warranto in particular is not to issue as a matter of course, on sheer technicalities on a doctrinaire approach. The case in hand stands on no better footing". (Emphasis added).
10. In the principle deducible from the above judgments appear to be a writ of quo warranto can only be issued in respect of a public office:--
(i) Public office means an office which involves delegation of some of the sovereign functions of the Government either executive, legislative or judicial to be exercised by the holder for the public benefit. Unless his powers of this nature he is not a public officer.
(ii) Both at the time of institution of the writ petition and on the date of decision it must be shown that the holder suffered from any disqualification to hold the public office.
(iii) The Court may test bona fides of the relator to see if he has come with clean hands. Reference may be made to 2009 SCMR 1299.
(iv) A writ of quo 'warranto is not to be issued as a matter of course on sheer technicalities on a doctrinaire approach.
(v) Every civil servant or every person in the service of Pakistan does not necessarily hold a public office. If the office is of a very petty nature like that of a considerable the court may refuse to grant the writ (AIR 1952 Nagpur 330).
(vi) In order to maintain a writ of quo warranto the petitioner needed not to be an aggrieved person.
11. What has been done through the impugned order is that respondent No,5 has been conferred a scholarship for undertaking studies leading to acquisition of degree of Ph.D. A scholarship for studies is not a public office because no exercise of sovereign powers is involved by the incumbent when he undertakes such studies, therefore, this petition must failed on this ground. If a student is wrongfully admitted in a college it may furnish ground to a student denied admission become in certiorari but cannot be subject to writ of quo warranto because one just studying is not exercising any part of sovereign power.
12. Besides the petitioner though he is already availing a scholarship has failed to disclose such fact in the petition' and he therefore, has come to this Court with unclean hands. He has clearly stated in his petition that he is aggrieved because, according to him, he is better qualified and has a better academic record. Therefore, it is his personal grievance. A writ in the nature of quo warranto is not a forum for the employees for civil servants or anyone else to air his private grievance. If any authority is needed one may refer to Dr.Azim-ur-Rehman Khan Meo v.
Government of Sindh and another (2004 SCMR 1299). There is a third reason for which this petition must also fail. Discipline of Public Administration and Business Management may have many overlapping areas where one subject is covered by both disciplines: subjects such as Organization Planning, Organization Behaviors, Personal Management and many others. Therefore, it cannot be said that if the petitioner has been granted a Ph.D scholarship, his scholarship would not cover the subject of Business Administration. Besides when the scholarship was awarded, petitioner on that date possessed the requisite qualification and the Higher Education Commission had permitted change of discipline.
13.Result of the above discussion is that this Constitutional Petition is dismissed. Above are our reasons for short order dictated in open Court on 17-1-2012.