Noor-ul-Haq N. Qureshi, J.--This Intra Court Appeal is directed against the order dated 25.06.2012 passed by the learned Single Judge-in-Chambers accepting. W.P. No, 3335 of 2011 filed by Respondent No, 13 in the instant ICA.
2. By preferring writ petition, Respondent No, 13 agitated the appointment of present appellant and Respondents No, 11 & 12 on deputation in Immigration Department mainly on the grounds that they were inducted from backdoor in clear violation of the rules holding public office on extraneous consideration. The learned Single Judge in Chambers while accepting the writ petition, issued writ of quo-warranto and declared the appointment/transfer of Respondent Nos,11 to 13 to the post of Deputy Director (BS-18) as illegal, unlawful, unprecedented void, sham, rarity, polluted and result of irrelevant influence therefore, same was set aside.
3. On behalf of the appellant, it is mainly contended that method of appointment was wrongly relied upon by the learned Single Judge in Chambers. The services of appellant and two others were borrowed by the Director General of Immigration & Passport on deputation basis with the consent of FIA, their parent Department. It is mainly emphasized that neither powers exercised by the authority nor qualification of the appellant have been challenged therefore learned Single Judge in Chambers, without comprehending the very important legal criteria, allowed writ petition ignoring that writ of quo-warranto is being sought, when the petitioner himself being co-relater was very much interested being Deputy Director in the same Directorate of Immigration and Passport. The posting of the appellant on deputation basis took place on 06.08.2009. He was transferred internally in the Immigration Department and vide Office Order dated 15.9.2009 by mutual transfer/posting, both the appellant and Respondent No, 13 i,e, the appellant were posted/transferred. Therefore, writ petition suffered from laches, which legal aspect was also not considered by the learned Single Judge in Chambers. He also pointed out that writ petition was barred by Article 212 of the Constitution of Islamic Republic of Pakistan.
4. Learned counsel for Respondent No, 13 has vehemently supported the order passed by the learned Single Judge in Chambers for the reason that posting of the appellant on deputation basis is arbitrary, tainted with mala fide and same by minting money has been made by the authority therefore learned Single Judge in Chambers has rightly passed the order.
5. Arguments heard, record as well as relevant provisions of law perused.
6. While going through Section 2(b)(i) of the Civil Servants Act, 1973, the deputations is not to be considered as civil servant therefore Article 212 of the Constitution does not attract. However, other below mentioned essential legal requirements are to be considered, when writ of quo-warranto is being sought:--
(i) The authority exercises powers beyond the powers vested to it by law;
(ii) The person holding a public office is disqualified to hold such a post;
(iii) The petition cannot be preferred by co-relater having personal interest.
7. We have gone through the entire order passed by the learned Single judge in Chambers and find such error that above essentialities as required by law for issuing writ of quo-warranto are squarely missing. Therefore, we are of the confirmed view that the order passed by the learned Single Judge in Chambers is not on the legal criteria hence requires interference through this Intra Court Appeal.
Hence, instant ICA is accepted. Consequently, the order passed by the learned Single Judge in Chambers is hereby set aside.
8. Parties to bear their own costs.