' MUHAMMAD FARRUKH IRFAN KHAN, J.--- Through this writ petition in the form of quo warranto under Article 199(1)(b)(ii) of the Constitution of Islamic Republic of Pakistan, 1973 the petitioner has challenged the eligibility of respondent No,4 namely Muhammad Ramzan to hold the post of Office Superintendent (BS-16) in Lahore Museum on deputation basis.
2. Learned counsel for the petitioner submits that acting Director of the Lahore Museum requisitioned the services of respondent No,4 for the post of Office Superintendent (BS-16) by violating the regulations of Lahore Museum Lahore, 1987; that according to regulations ibid the post of the Office Superintendent is to be filled by promotion on the basis of seniority-cum-fitness from amongst the Assistants, Storekeepers-cumAssistants and Accountants; that the Regulation No,10 of the Regulations provides that deputation from other departments can only be resorted to if no suitable employee amongst the Lahore Museum is available; that while appointing respondent No,4 on deputation basis aforesaid procedure was not adopted as none of the employees of the Museum was considered for promotion prior to this appointment; that on the arrival of regular Director who was on leave for two months, the petitioner as well as respondents Nos.5 to 7 brought this irregularity in her notice on the basis of which respondent No,3 repatriated respondent No,4 to his parent department vice order dated 8-2-2012 with immediate effect; that pursuant to the repatriation of respondent No,4, he was relieved from charge and his Last Pay Certificate was also issued; that the petitioner and respondents Nos.5 to 7 moved application before respondent No,3 to fill the post of office Superintendent through promotion amongst the employees of the Museum; that in the meanwhile, respondent No,4 managed to obtain hand written note dated 18-2-2012 of respondent No,2 whereby he was directed to continue his work on his existing assignment; that pursuant to that direction respondent No,3 allowed respondent No,4 to perform his duly as Office Superintendent on deputation basis.
3. This according to the learned counsel is illegal and without lawful authority; that Lahore Museum is an autonomous body having its own rules and governing body and the Chief Secretary is the Ex- Officio Chairman of the Board and the respondent No,2 does not figure in anywhere of the hierarchy of the Board of management as such impugned order of respondent No,2 is coram-non- judice; that respondent No,3 also committed illegality while following an illegal order without consulting Standing/Selection Committee; that the appointment of respondent No,4 is a glaring violation of the SORs dated 18-4-1978, 16-1-1979 and 14-2-1979 of the government on the subject; that due to the appointment of respondent No,4 on the post of Office Superintendent the legal right of the petitioner and respondents Nos.5 to 7 is being infringed.
4. Conversely, learned Law Officer submits that the petitioner has no locus standi to file the instant petition as the promotion cannot be claimed as a matter of right; that writ of quo warrant can only be issued if a person is not eligible for holding of public office and respondent No,4 being highly qualified having foreign training in record management and Law graduate is fully eligible to hold the cost of Office Superintendent; that respondent No,4 has been transferred and posted as Superintendent Lahore Museum on deputation basis after observing all coal formalities; that the appointment of respondent No,4 was made according to the Deputation Policy of the Punjab Government 1998; that no extra or illegal financial benefit is being given to respondent No,4 rather only the allowances admissible under the law are provided to him that no doubt respondent No,3 repatriated respondent No,4 to his parent department vide order dated 8-2-2012, however, respondent No,2 who is the administrative head of the department cancelled the same as the order of respondent No,3 did not cover the terms and conditions of deputation of respondent No,4; that the order of respondent No,3 for repatriation of respondent No,4 was without mentioning any reason as such validly cancelled by respondent No,2; that the post remained vacant w,e,f, 30-8- 2010 and the same was filled by posting respondent No,4 on temporary basis in the best interest of public at large.
5. Learned counsel for respondent No,3 :submits that the respondent No,3 has no concern whatsoever with the appointment of respondent No,4 on deputation basis; that respondent No,3 did not borrow the services of said respondent and after coming back from leave she repatriated his services, however, she allowed him to rejoin on the instructions of respondent No,2.
6. Respondent No,4 present in person submits that his services were required by the Lahore Museum Tor one year as such he is entitled to complete his period of deputation; that he is performing his duties with zeal and zest and there is no complaint against him.
7. I have heard the arguments advanced by the learned counsel for the parties and gone through the record.
8. First of all I would like to dilate upon the objection of the learned Law Officer as to the locus standi of the petitioner to invoke Constitutional jurisdiction of this Court. Sub- clause (b) of clause (1) of Article 199 of the Constitution of 'Islamic Republic of Pakistan, 1973 provides as under:--- 199 Jurisdiction of High Court.--- (1) Subject to the Constitution, a High Court may, if it is satisfied that no other adequate remedy is provided by law---
(a) .......................
(b )on the application of any person, make an order ---- (i)
(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 present case falls under the purview of Article 199(1) (b) (ii) of the Constitution of Islamic Republic of Pakistan, 1973. The petitioner has challenged the authority of respondent No,4 in holding the office of Office Superintendent in the Lahore Museum and in such like cases the petitioner is not required to establish his locus standi to invoke the jurisdiction of this Court as his duty is just to bring any illegality/ irregularity in the notice of the Court while acting as an informer and this Court in exercise of its Constitutional jurisdiction is fully competent to enquire from any person holder of public office as to under what authority is the person holding that office. Reliance is placed on case reported as Capt. (Retd.) Muhammad Naseem Hijazi v. Province of Punjab through Secretary, Housing and Physical Planning and 2 others (2000 SCMR 1720) wherein the Hon'ble Supreme Court of Pakistan has laid down as under:- "Under Article 199 (2) (b)(ii) of the Constitution of Islamic Republic of Pakistan the High Court in exercise of its Constitution jurisdiction is competent to enquire from any person, holder of a public office to call upon him to show that under what authority he is holding the said office. In such like cases where a writ in the nature of quo warranto is instituted the duty of the petitioner is to lay information before the Court that such and such officer has no legal authority to retain such office.
Faiza petitioner who acts, in fact, as an informer is not required to establish is locus standi to invoke the jurisdiction of the Court."
9. Now adverting to the merits of the case. According to Regulation No,5 of the second schedule of the Lahore Museum Regulations, 1987 the post of the Office Superintendent is to be filled up by the Director by promotion on the basis of seniority-cum-fitness from amongst the Assistants, store- keeper-cum-Assistant and Accountant in the Museum and in case no suitable person is available then by initial recruitment or transfer from any Government Department/Agency. Regulation No,10 of the Regulations ibid provides method of recruitment which is reproduced as under:--- "10. Recruitment to the various posts shall be made by initial recruitment, promotion or deputation or transfer from any Government department/agency or statutory body, autonomous or semi- autonomous organization, as specified for each post in the Third Schedule to these Regulations: 'Provided that initial recruitment, transfer or deputation from other Government department shall be resorted to only if no suitable employee is available for promotion. "Now coming to the question whether while borrowing the services of respondent No,4 aforesaid procedure was adopted the simple answer is "No". The repatriation order of respondent No,3 dated 8-2-2012 makes it abundantly clear that authorized staff was available in the Museum and in the presence of said staff according to Regulation 10 reproduced supra no need should have arisen to borrow an employee from another department. It is also an admitted fact that Additional Secretary Information and Youth Affairs while performing duties as acting Director requisitioned the services of respondent No,4 by specifically mentioning his name which is in clear violation of SOR-11 (S&GAD) 2-86/63 dated 18-4-1978 which inter alia provides as under;--- "5. In partial modification of the previous instructions on the subject the following procedure is hereby prescribed;---
(i) Requests for obtaining the services of civil servants, on deputation, shall be made by the borrowing agencies to the appointing authorities. Requisition for the services of a particular officer by name should not be made by the borrowing organization nor should it be entertained by the appointing authority.
' SOR-II (S&GAD) 2-86/63-111 dated 14-2-1979 further elaborates the situation which inter alia provides as under;---
(i) Services of a civil servant shall not normally be requisitioned by name. However, if any organization wants to secure the services of particular Government servant it shall place a requisition containing a panel of at least three names for one position.
(ii) .
(iii); A Government servant will not be considered for deputation against a higher post in borrowing organization, unless he is due for promotion in his parent Department and the latter is consulted and expresses agreement thereto. Prior consultation and agreement shall also be necessary for promoting a deputations in the borrowing organization."
10. In the present case,' admittedly neither the panel of at least three names for one position was requisitioned nor promotion of respondent No,4 who was serving in grade -14 in his parent department was due. In the existing circumstances requisition of the services of respondent No,4 as Office Superintendent in (BS-16) on deputation basis is a blatant violation of the aforementioned SORs,
12. Another salient feature of the instant case is that Additional Secretary Information and Youth Affairs while performing duties as acting Director sorrowed the services of respondent No,4 in the absence of regular incumbent who was on leave for two months. As per own version of the respondent/department seat of Office Superintendent was lying vacant since 30-8-2010 and on Court's query as to what type of an urgency forced the acting Director to requisition the service of respondent No,4 during his acting tenure and why the arrival of regular incumbent was not awaited as the post was lying vacant for the last more then 1-1/2 years and no extraordinary thing would have happened if the same remained vacant for a further two months and as to why filling up of the said post was not dealt with by appointment of an eligible person of the department who of course would be well versed with the affairs of the department, the learned Law Officer has no answer. Apparently acting Director in order to oblige respondent No,4 requisitioned his services by violating all rules and regulations on the subject and when the regular incumbent after arrival tried to rectify this irregularity while repatriating respondent No,4 through order dated 8-2-2012 with the cogent reason that authorized staff was available, respondent No,2 came in the scene and perpetuated the illegality earlier committed by the acting Director while passing impugned order dated 18-2-2012 directing respondent No,4 to continue to work on his existing assignment. When confronted the learned Law Officer, as to how the Secretary Information could intervene in the affairs of the Museum, the learned Law Officer submitted that since respondent No,3 illegally repatriated respondent No,4 against the terms and conditions of deputation, therefore, respondent No,2 who according to the Punjab Government Rules of Business, 2011 has to administer all the administrative and legislative matters relating to the Museums passed the said order. Even if this was the case then also the contention of the learned Law Officer that the order of the Director regarding repatriation of respondent No,4 was against the terms and conditions of the deputation is misconceived. Condition No,18 of the proposed terms and conditions of deputation of respondent No,4 dated 15-10-2011 provides as under:---
18. PERIOD OF DEPUTATION ' One year with effect from 5-10-2011 (the date of posting in the borrowing organization) until and unless terminated earlier by the Director, Lahore Museum or S&GAD/Parent Department. However, Government reserves the right to withdraw/transfer the deputations at any time without assigning any reason. In case, the deputations retires while on deputation, the period of deputation shall stand expired on the date of his retirement.
' The deputations shall automatically be treated as repatriated after completion of normal/ extended period of deputation and any delay on the part of the deputations in reporting back to his parent department shall be considered as an absence from duty. (No, FD.SR.II.11.6.18/87 dated 15-10-2002).
' In the light of aforesaid condition of the deputation which was accepted by respondent No,4, the Director Museum was fully empowered to terminate the deputation period of the respondent No,4 and the respondent No,2 had no authority whatsoever to compel respondent No,3 to continue the services of deputations in particular when authorized staff was available with the Museum.
13. So far as the contention of respondent No,4 that he was deputed for a specific term of one year in the Lahore Museum as such he is entitled to complete the same is concerned, suffice it to say that no vested right accrued in favour of respondent No,4 and keeping in view the terms and conditions of deputation the borrowing department could repatriate him and a deputations cannot claim to remain on the said post for a stipulated period in accordance with his own desire.
Reliance is placed on case reported as Dr. Shafi-ur-Rehman Afridi v. C.D.A. Islamabad, through Chairman and others (2010 SCMR 378) wherein it has been held as under:--- "It is worth mention that deputations could not be treated as an aggrieved person provided he had been placed in the same grade and status of deputations. It may not be out of place to mention here that a deputation has-no vested right to remain on a post as deputations forever or for a stipulated period as mentioned in the notification and can be repatriated at any time."
' It was further observed in the above celebrated judgment as under:--- "We have no hesitation in our mind to hold that deputation can be defined as an administrative arrangement between borrowing and lending Authorities for utilizing the services of any employee in the public interest and exigency of services against a particular post and the deputations cannot remain on deputation for an indefinite period or stipulated period in accordance with his own whims and wishes."
14. So far as the contention of the learned Law Officer that writ of quo warranto can only be issued if a person is not eligible for holding of public office and respondent No,4 being highly qualified having foreign training in record management and Law graduate is fully eligible to hold the post of Office Superintendent is concerned, that may be so but the higher qualification of respondent No,4 does not mean that he may be appointed anywhere without observing coal formalities and by violating statutory provisions of law, Writ of quo warranto can be issued where while making appointment violation of legal provisions were mace. Reliance is placed on case reported as All Hussain Bukhair and 39 others v. Azad Jammu and Kashmir Government through Chief Secretary and 2 others (1992 PLC (C.S.) 289) wherein it has been held as under:--- "Any person can move the High Court to challenge the unauthorized occupation of public office.
The Court, on any such application, is not to see that the incumbent is holding the office under the order of a competent authority, but it is to go beyond that and see as to whether he is legally qualified to hold the office or to remain in the office; the Court has also to see if statutory provisions are alleged to have been violated in making the appointment. The invalidity of appointment may arise not only from want of qualifications but also from violation of legal provisions for appointment."
15. In the parent department respondent No,4 was serving in Grade-14 but while on deputation in the Lahore Museum he is not only drawing" the pay and allowances of Grade-16 but also receiving deputation allowance at the rate of 20% of his basic pay which is not only extra burden on the financial position of Lahore Museum but would also create a sense of deprivation amongst the employees of Museum who as per own version of the Director of the Museum are fully eligible to hold the said post.
16. The upshot of the above discussion is that the instant writ petition stands accepted as a result whereof appointment of respondent No,4 as Office Superintendent in the Lahore Museum on deputation basis for a period of one year is declared illegal, without lawful authority and in violation of regulations of Lahore Museum, 1987 and SORs dated 18-4-1978, 16-1-1979 and 14-2-1979 of the Government on the subject. Respondent No,3 is directed to repatriate respondent No,4 in his parent department forthwith with further direction to fill up the cost of Office Superintendent in accordance with the Lahore Museum Regulations, 1987 at the earliest.