' SHAHID ANWAR BAJWA, 17-Petitioner No, .1 is a Federation of Trade Unions. 'Respondents Nos. 4, 5 and 6 are members of governing body of the Sindh Employee's Social Security Institution (hereinafter referred to as the SESSI) and ,respondent No 6 is appointed as Director Administration of SESSI. In this Constitution petition nomination of respondents Nos. 4, 5 and 6 as members of Managing Committee and of respondent No, 7 as Director Administration are sought to be declared in violation of law. Relief in respect of various decisions of Managing Committee including approval of budget and certain recruitment orders has also been sought. We will come to the reliefs later.
2. Learned counsel for petitioners submitted that under section 4 of the Provincial Employees. Social Security Ordinance general directions and superintendence of affairs of SESSI are vested in the governing body which can be exercised by the institution. Thereafter in section 5 provision is made in respect of constitution of governing body of the Institution. Section 5 is in the following words:-- "5. Governing Body:-
(1) The Governing Body shall consist of the following members to be appointed by Government, by notification namely:-
(a) a person Who is or has been a Judge of the High Court or a senior officer in the service of Pakistan not below the rank of a Commissioner of a Division or Secretary to Government, and such person shall be the Chairman of the Governing Body.
(b) four persons to represent Government, one each respectively from the Department of Labour, Industries, Health and Finance."
3. Learned counsel referred to notification dated December 16, 2009 in which list of organizations of employers and employees recognized for the purpose of choosing member of Governing Body is given. Learned counsel next referred to notification dated May 4, 2010 by which notification respondents Nos. 4- and 5 have been nominated as representatives of employees and respondent No, 6 as representative of employers. Learned counsel submitted that respondent No, 4 is said to be representing Port Workers Federation of Pakistan and submitted that 'Port Workers Federation of Pakistan is not one of the Federations of Trade Unions recognized for the purpose of section 5(2). In respect of respondents Nos. 5 and 6 learned counsel referred to letter dated May 26, 2001 issued by Section Officer, Ministry of Labour, Manpower and Oversees Pakistani to the Secretary Labour Sindh, besides other, where criteria for the membership of labour institutions is stated as under:-- ' General: (i) No person should be allowed to be on the board of more than one institution;
(ii) Minimum qualification for member should be intermediate; ' Employer:(i) Must prove adherence to the requirements of law under which the institution functions;
(ii) Those who contribute maximum to EOBI, W.E.F. And ESSI should be preferred; Worker: Must belong to federation or union which is fully representative of workers.
4. Learned counsel referred to Page 49 of the file and submitted that it is a practice mandated by letter dated May 26, 2001 which practice has been violated. Learned counsel relied upon Messrs Radaka Corporation and others v. Collector of Customs and another (1989 SCMR 353) for his contention that established departmental practice confers rights. In respect of appointment of respondent No, 7 learned counsel submitted that respondent No, 7 was an employee of BS-16 in SESSI when he was appointed as Administrative Officer in BS-17 in Kidney Centre and when kidney center was taken over by SESSI he has been made Director Administration which is post of BS-19.
5. Learned counsel next submitted that advertisement was placed in newspapers for various vacancies and advertisement said that that number of vacancies can be changed at any time on administrative grounds. Learned counsel submitted that previously an advertisement was placed in newspaper in January, 2001 without disclosing that who is advertiser of this advertisement. This advertisement was challenged in C.P. No, D-215 of 2012 which was disposed of vide order dated 14.5.2012, which order is reproduced as under:-- "The respondent No, 2 shall .Re-advertise the vacancies as mentioned in the advertisement dated 6.4.2011, annexure-L to the petition, such shall be carried in largely circulated daily newspapers, being published in Urdu, Sindhi and English, the advertisement shall disclose the name of the employer, being Sindh Employees Social Security Institution, in bold letters and also disclose the number of vacancies available in each category.
' The applications already received in pursuance and accordance with the impugned advertisement shall be further processed only after receipt of applications that may be submitted in response to the proposed advertisement. The cut-off date for the prescribed maximum age shall be reckoned from date of earlier advertisement i,e, 6.4.2011. &eh shall be for the candidates who had already applied and also for the candidates who may apply in response to the proposed advertisement. The Selection through the prescribed mode and procedure shall be done after applications have been received in response to the proposed advertisement and processed strictly in accordance with law and on merits in a transparent manner. Appropriate time shall be provided to the applicants who may file their applications in response to the proposed advertisement. The above exercise shall be concluded at the earliest and preferably within two months from today. The petitioner is left at liberty to in case so advised; file a fresh rotation challenging the induction appointment of respondents Nos. 4 to 6 which shall not come in way of proposed exercise of recruitment."
6. Learned counsel submitted that budget has been passed by an illegally constituted governing body. However even in that budget target of fresh workers to be ensured was fixed as 115,785 and it was in view of this target 577 additional posts were approved. He submitted that target was never achieved as is evident from Minutes of 136th meeting of Governing Body which evidences that target of collection for 2010-2011 was approved to be Rs, 1.939 billion instead of Rs, 2.374 billion. He submitted that another 72 posts have been created for 2011-2012.
7. Learned counsel submitted that in 2003 a policy regarding appointment of sons and daughters was approved and that policy was as under:- "11. APPOINTMENT OF SONS/DAUGHTERS: (a). 40% quota and Sons/Daughters in appointment is allowed;
(b) It has been further decided that in case of death of an employee his/her son/daughter will be provided a job in the Institution subjects to fulfilment of prescribed condition and availability of post."
8. Learned counsel submitted that policy was reiterated in office order dated 21.11.2009 in thy following words:- "(5) Sons quota: ' As per existing policy and Government of Sindh policy"
9. Learned counsel submitted that the policy has been repeatedly violated and this action is in violation of Article 10-A of the Constitution.
10. Mr. Ch. Muhammad Ashraf Khan learned counsel for respondents Nos. 2 to 7 submitted that except prayer clauses (a) and (i) all the other prayer clauses are in the nature of quo warranto. He submitted that existence of prayer clauses (a) and (i) indicates personal grievance of petitioners, and, therefore, this petition is not maintainable.
11. Learned counsel submitted that there is no mandated policy for appointment of children of serving and deceased, employees. Learned counsel referred to Para 22 of the petition and submitted that reading of para 22 indicates that even after prepared recruitment strength will be far below from the approved strength. Said para 22 is as under:- "22. The Respondent No, 7 mala fidely and fraudulently has not stated the correct number of vacant seats. Recruitment has been sought for 422 seats, whereas at present the total vacancies available are 1255. In this regard compete details of unfilled vacant seats allowed as per the yearly budget of SESSI from 2008-09 to 2011-12 are attached as Annex R. Furthermore, as per the SESSI's official document published 3 months ago, for the year 2011-12 the total number of seats lying vacant were 1187 (till date the same has been increased to 1255)."
12. Regarding respondent No, 4 learned counsel referred to R/6 filed by him with his objection.
Learned counsel submitted that rules have been made by the Provincial Government which are statutory rules and the letter by the Section Officer cannot override provisions contained in statutory rules. Besides he submitted that there is no statutory sanction behind the letter issued by the Section Officer. Regarding respondent No, 7 learned counsel submitted that he is not holding a public office. In this regard he referred to Para 8 of the Legal Objection which is in the following words:-- "(8) That none of the petitioners has locus standi to file this petition, hence the petition is liable to dismissal. That respondent No, 7 is not holder of a Public Office nor the post held by him is creation of any law. He is not vested with any authority involving exercise of sovereign functions nor the general public has any interest in the office or the functions, therefore, writ of Quo Warrant is not maintainable against him. He having been wrongly arrayed as respondent, therefore, the petition is liable of dismissal against him."
13. Learned counsel for the respondents relied upon Sajid Hussain v. Shah Abdul Latif University, Khairpur through Registrar and 4 others (PLD 2012 Sindh 232), Munawar Ali Pathan v. Province of Sindh and others (20.11 PLC (C.S.) 785), Dr. Kamal Hussain and 7 others v. Muhammad Sirajul Islam and others (PLD 1969 SC 42) and Mst. Kausar Parveen v. Zulfiqar Dr. Bushra Ashiq Siddiqui v.
Muhammad Aslam (1989 MLD 1351).
14. Learned counsel for petitioners exercising his right of reply relied upon Farhat Ali Khan v.
Muhammad Siddique, Advocate and another (1995 SCMR 1570), Ch. Muneer Ahmed and others v.
Malik Nawab Sher and others (PLD 2010 Lahore 625) and Farhat All Khary v. Ch. Muhammad Siddique and others (1998 SCMR 2190) for his contention that for writ of quo-warranto there are no laches. Learned counsel submitted that as far as question relating sons quota is concerned, it was not subject-matter of the office order dated 21.11.2009.
15. We have considered submissions made by the learned counsel and have also gone through the record.
16. Since the contention in respect of appointment as member of Governing Body, of respondents Nos. 4, 5 and 6 is based on provision contained in section 5 of the Provincial Employees Social Security Ordinance, 1965 (hereinafter called as the Ordinance of 1965), said section 5 is reproduced as under:-- Governing Body:--
(1) The Governing Body shall consist of the following members to be appointed by Government, by notification namely:- "(a) a person who is or has been a Judge of the High Court or a senior officer in the service of Pakistan not -below the rank of a Commissioner of a Division or Secretary to Government, and such person shall be the Chairman of the Governing Body;
(b) four persons to represent Government, one each respectively from the Department of Labour, Industries, Health and Finance;
(c) three persons to represent employers;
(d) three persons to represent secured persons;
(e) the Medical Adviser, ex-officio.-
(2) Members to be appointed under clause (c) or clause (d) of sub-section (1) shall respectively be chosen from a list of names submitted in the prescribed manner , by the organizations of employers and employees recognized by Government, for that purpose: ' Provided that pending the making of rules in this behalf, the first Members to be so appointed shall be chosen from such persons as Government may deem suitable. Subject. To the other provisions of this Ordinance, a
(2) Member shall hold office for three years from the date on with his appointment is notified under sub-section (1). "
17. It may also be pointed out that in pursuance of the powers conferred by section 79 of the Ordinance of 1965, the Provincial Employees' Social Security (Appointment of Members of the Governing Body) Rules, 1966 were framed and published in the Gazette of West Pakistan on October 28, 1966. Rules 3 and 4 provide as under:-- "3. Choice of Members to be appointed under section 5(1)(c) and (d) of the Ordinance.---(1)
Government shall publish in the official Gazette a list showing separately the Organization of employees and employees recognized for the purpose cf submitting names from which members to be appointed under clauses (c) and (d) sub-section (1) of section 5 shall be chosen.
' A member shall be eligible for re-appointment on or after the expiration, of his term of office, and until such re-appointment is made or another person appointed, the existing member shall continue to hold office."
18. A perusal of the above provision indicates that as far as representatives of employer and Secured persons are concerned, (clauses (c) and (d) respectively of sub-section (1) of section 5), they are to be appointed from the list of names submitted and in the prescribed manner by organization of employer and employees recognized by the government for that purpose perusal of rules also indicates that there is no bar on appointment of a person for more than one term. It also indicates that there is no provision whatsoever made requiring that if a person is member of the Welfare Body or Board of one Institution (such as, Employees Old-Age Benefits Institution, Sindh Employees Social Security Institution, Workers Welfare Board etc.) he cannot be appointed on the Board or Governing Body of a second Institution. Learned counsel for petitioner referred to letter dated May 26, 2001 issued by Section Officer, Labour, Manpower and Overseas Pakistani Division, Government of Pakistan, Islamabad (referred to in Para 3 above). His contention was that this is an established departmental practice and, therefore, it must be followed. Learned counsel relied upon Messrs Radaka Corporation's case (supra). Question in that case was whether waste and scrap metal of iron and steel should be treated under one heading or other heading for the purpose of levy of customs duty and it was in this context that the Supreme Court observed as under:-- "7. The above interpretation of the recovery was always acted upon by the Department and Mr. S. K: Rahim, Collector of Customs, in his letter described it as its "long-standing practice. Now it is settled law that where the departmental practice has followed a particular course in the implementation of some rule, whether right or wrong, it will be extremely unfair to make a departure from it, after a lapse of many years and thereby disturb rights and have been settled by a long and consistent course of practice; see Nazir Ahmed Pakistan and others (PLD 1970 SC 453)."
19. The case is clearly distinguishable for 3 reasons; firstly, it relates to levy of customs duty, whereas present case relates to appointment on a particular post. Secondly, levy of customs duty under a particular category does create right for a particular person whereas appointment of a person on Governing Body of SESSI amounts and a practive in this regard (even if it is there) does not state any right in favour of the present petitioner. There are statutory rules available and, there are statutory provisions available and, therefore what has to be, seen is whether appointment is in violation of any statute or statutory rule. Thirdly, letter by a Section Officer cannot have effect of overriding statutory rules and provisions laid down in a statute. It may also be pointed out that learned counsel for the respondents while arguing made oral submission that there are many cases in which a person is appointed as Member Governing Body of more than one institution. This was not rebutted by the learned counsel for petitioners. Therefore, if anything there appears to be
4. Practice to the contrary.. Consequently, the challenging of appointment of respondents Nos. 5 and 6 by learned counsel for petitioners is without any substances.
20. As far as respondent No, 4 is concerned, learned counsel for petitioners referred to Notification dated December 12, 2009 where names of employers and employees' organizations recognized for the purpose of section 5 are notified. Then learned counsel referred to Notification dated 20.4.2010 where Noor Muhammad, respondent No, 4 is stated to be representing Port Workers Federation of Pakistan. Admittedly, Port Workers Federation of Pakistan is not one of the organizations of the employees listed in the Notification dated 16.12.2009. Learned counsel for respondents referred Annexure R/6 (with Counter-Affidavit) where office-bearers of Pakistan Trade Union Federation (Noor Muhammad Group) are notified by Directorate of Labour, Government of Sindh. Admittedly, name of respondent No, 2 does not figure amongst list of such office bearers. Contention of counsel for respondents was that Pakistan Trade Union Federation is listed at Sr. 6 and respondent No, 6, according to him, is life and soul of Pakistan Trade Unions Federation (Noor Muhammad Group),. That might be so but under section 5 only a person whose name is submitted by the organization of employees (or employers) for' that purpose can be made a member of Governing Body. In the Notification dated May 4, 2010 respondent No, 4 is stated to be nominee of Port Workers Federation of Pakistan. Now Port Workers Federation of Pakistan may or may not be a Constituent of Pakistan Trade Unions Federation of. Pakistan and respondent No,
4. May and may not be office' bearer of PTUF but at least Notification dated 4.5.2010 indicates that respondent No, 4 was nominated by Port Workers Federation of Pakistan which admittedly is not one of the recognized organizations of workers. Therefore, appointment of respondent No, 4 cannot be stated to be in accordance with provision of the law.
21. Contention of Ch. Muhammad Ashraf Khan was that respondent No, 4 was not holding public office. Learned counsel relied upon Sajid Hussain's case (supra). This was a case of person who had been granted scholarship and it was challenged in a writ of quo warranto and it was observed as under:--
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 mini 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 warrant 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 services of Pakistan does not necessarily hold a public office. If the office is of a 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 fail 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."
22. This case is clearly distinguishable. Learned counsel next relied upon Munawar Ali Pathan's case (supra). Facts of the case were that respondent No, 3 held office of District Officer (Education), Office of E.D.O. (Education) fell vacant and D.G.O. Allowd respondent to look after charge of E.D.O.
And against this, petition was filed. It was held that office was a public office and D.C.O. Was not competent and writ was issued. Learned counsel next relied upon Dr. Kamal Hussain's case (supra) where in respect of writ of quo warranto it was observed that writ of quo warranto cannot issue as a matter of course on sheer technicalities on a doctrinaire approach. Lastly learned counsel relied upon Dr. Bushra Ashiq Siddiqui's case (supra). , In this case post involved was of Assistant Professor Microbiology and question was whether respondent possessed, prescribed qualification or not It was contended that since to provide medical education is duty of the State, the respondent by teaching the same was discharging a function of State. Contention was not accepted by a Division Bench of this Court.
23. On the other hand learned counsel for the petitioners relied upon Farhat Ali Khan's case (supra).
Farhat Ali Khan, was appointed as Judicial Member Income Tax Appellate Tribunal. His employment was challenged on the .Ground that he did not possess qualification of being advocate for prescribed period. Writ petition was dismissed by the Single Judge on the ground that it suffered by laches. However, Division Bench took the view that holding of office is a recurring cause and therefore, petition in nature of quo warranto could be maintained. Appeal was allowed by the Division Bench and Supreme Court dismissed the appeal. Learned counsel also relied upon Ch. Muneer Ahmed's case (supra). Respondent as returned candidate from a National Assembly constituency and writ petition in the nature of quo warranto was filed, on the ground that respondent No, 1 possessed a bogus B.A. Degree which he had procured by fraudulent means Writ petitions was dismissed by holding that respondent No 1 did not suffer for any disqualification.
Farhat Ali Khan's second case (supra) was one in which review application was dismissed. So basically question falls down to whether a member of Governing Body of Sindh Employees Security Institution holds a public office or not. Respondent No, 4 is Member of Governing Body of SESSI.
Under section 4 of the Ordinance, 1965 general direction and affairs of Institution vest in the Governing Body. Appointment of Member Governing Body is made under section 5, Institution under section 20 has power to collect contribution at the rate of 6%. And thereafter it provided in Ordinance of 1965 that decision on the complaints, question and dispute are to be decided by the Institution. Power of review is also conferred on the Institution under Section 58. Member and servant of institution are treated as public servants and any arrears of contribution can be recovered as land review. In S.M. Wali Ahmed Chowdhury and ,another v. Mahfuzal Haq Chowdhuiy, Chairman, District Board, Chittagong and others (PLD 1957 Dacca 209) writ of quo warranto was issued in respect of a Member District Board. Therefore, Member Managing Committee is held to be holder of public office and writ of quo warranto can be issued.
24. As far as respondent No, 7 is concerned, he is appointed as Director Administration. In the Abdul Haq Kauser and another v. Alim Akhtar Shah and 2 others (1989 CLC 1907) writ of quo warranto was issued against General Manager Administration of Karachi Port Trust. Karachi Port Trust is a statutory institution just as. Social Employees, Social, Security Institution is. Consequently, it is held that respondent No, 7 is holding a public office.
25. Respondent No, 3 was working as Social Security Officer in BS-16 in. The Institution (SESSI) when Sindh Workers Welfare Board appointed him as Administrative Office BS-17 for a period ending on 30th June, 2009 in Kidney Centre Landhi with immediate effect. It was temporary/contract appointment for a period ending on 30th June, 2009. This appointment was made on 14th July, 2008 It is stated in the petition that when Kidney Centre was transferred from Workers Welfare Board to SESSI respondent No, 7 was also transferred and appointed as Deputy Director at Hyderabad in BS-18 and then took over charge as Director Administration, BS-19. In the comments all that is .Stated is that Para 21 as worded is denied. No document whatsoever has been placed on record to establish as to when respondent No, 7 was promoted from BS-16 to BS-17 and then from BS-17 to BS-18 and then from BS-18 to BS-19. Appointment of respondent No, 7 by the Sindh Workers Welfare Board was-a contract appointment valid till 30.6.2009 and, therefore, after 30th June, 2009 he had to revert back to his post of BS-16. Consequently, it is held that appointment of respondent No, 7 as Director Administration BS-19 is without lawful authority and is of no legal effect.
26. Contention of Dr. Muhammad Farogh Naseem was that the Managing. Committee was illegally constituted as there was, according to him, and according .To the above discussion, one person illegally appointed on the Managing Committee. Complete answer to such contention of the learned counsel exists in section 78 of the Ordinance of 1965 which Section is as under-- "73. laws.---When a person is entitled to any of the benefits provided by this Ordinance, he shall not be entitled to any similar benefit under any other law."
' Therefore-, even if one 'of the Members of Managing Committee is wrongly, appointed it does not nullify decisions made -by the Managing Committee. Moreover, such actions are protected by now well-established de-facto doctrine.
28. In view of the above discussion we do not think that it would be necessary for us to go into the question as to how many vacancies were approved and how many vacancies were advertised and how many persons were recruited. This leaves us with contention of learned counsel regarding quota for children of employees of the Institution. In this regard Articles 25(1) and 27 of the Constitution may be referred to:
25. Equality of citizens.---(1) All citizens are equal before law and are entitled to equal protection of law.
27. Safeguard against discrimination in service.- (1) No citizen otherwise qualified for appointment in the service of Pakistan shall be discriminated against in respect of any such appointment on the ground only of race, religion, caste, sex, residence or place of birth: ' Provided that, for a period not exceeding forty years from the commencing day, posts may be reserved for persons belonging to any class or area to secure their adequate representation in the service of Pakistan: ' Provided further that, in the interest of the said service, specified posts or services may be reserved for members of either sex if such posts or services entail the performance of duties and functions which cannot be adequately performed by members of the other sex: (Provided also that under-representation of any class or area in the service of Pakistan may be redressed in such manner as may be determined by an Act of Majlis-e-Shoora (Parliament).)
(2) Nothing in clause (1) shall prevent any Provincial Government, or any local or other authority in a Province, from prescribing, in relation to any post or class of service under that Government or authority, conditions as to residence in the Province, for a period not exceeding three years, prior to appointment under that Government or authority."
29. Article 25 mandates that all citizens are equal ' before law and are entitled to equal protection of law. In view of this, son of employee of Institution is equal to son of one who is not such employee. Under Article 27 while posts could be reserved for any class or area but the purpose of reservation is to secure their adequate representation and not to confer benefit on existing employees. Reservation of seats militates against equality and constitutes discrimination against other citizens of Pakistan who may be equally, or better, qualified but- door is barred in their faces because they are not sons of previous or present employees. Any reservation of quota by Governing Body in violation of provision laid down in the Constitution cannot be allowed to stand.
30. Result of the above discussion is that appointment of respondent No, 4 as Member Governing Body is declared to be as without authority of law. Appointment of respondent No, 7 as Director Administration is also declared to be without any lawful authority and respondent No, 7 is directed to be B posted in accordance with his grade which is BS-16. This Constitutional petition is disposed of in the above terms. Listed application is also disposed of. .
2013 NATIONAL LAW REPORTER [SERVICE] Volume XXXVI Citation: NLR 2013 Service