MUHAMMAD SAJID MEHMOOD SETHI, J.: Through this constitutional petition filed under Article 199 (1)(b)(ii) of the Constitution of the Islamic Republic of Pakistan, 1973, the petitioner seeks an order from this Court requiring respondent No.4 to show under what authority of law, he is holding the post of Director (BS-19) and additional charge of the post of Director General (BS-20), Pest W arning & Quality Control of Pesticides, Punjab, Lahore.
2. Brief facts, necessary for disposal of insta nt petition, are that the post of Director General, Pest Warning & Quality Control of Pesticides, Punjab, Lahore, fell vacant upon retirement of Dr. Muhammad Fiaz w.e.f. 24.12.2014, therefore, Dr. Anjum Ali (BS-20), Director General, Agriculture (Ext. & AR), Punjab, Lahore, was entrusted the additional charge of said post.
Respondent No.4 was firstly given look after charge of said post vide order dated 29.04.2016 passed by respondent No.3.
Subsequently, vide order dated 07.06.2016 passed by respondent No.2, respondent No.4 was transferred from his department i.e. Agriculture (Ext. & AR), Punjab, Lahore, and posted as Director (BS-19) to the Pest Warning & Quality Control of Pesticides, Lahore, and vide same order, he was also given additional charge of the post of Director General (BS-20), in addition to his own duties. Through the instant petition, which is a quo warranto in nature, both the aforesaid orders have been assailed with the following prayer:- "In view of the foregoing discussion, it is prayed that this petition may kindly be graced with acceptance and this Hon'ble Court may please issue a writ or order more particularly one in nature of quo warranto against respondent No.4 directing that under what lawful authority , he is holdin g the post of Director General Pest Warning and Quality Control of Pesticides Department, Punjab.
It is further prayed it may be declared that the respondent No.4 was / is not fit and author ize to hold the posts of Director as well as Director General Pest W arning and Quality Control of Pesticides Department, Punjab.
It is further prayed that in consequence of the above the impugned orders dated 29.04 .2016 and 07.06.2016 passed by respondents No.3 and 2 respectively may kindly be set aside by declaring the same illegal, unlawful, being without lawful authority , alien to the law and rules applica ble to the subject and issued against the dictum laid down by the Hon'ble Supreme Court of Pakistan.
It is further prayed that a direction may kindly be issued to respondent No.2 to get the posts of Director as well as Director General Pest Warning and Quality Control of Pesticides filled by the competent authority in accordance with law and rules applicable on the subject."
3. Learned counsel for petitioner submits that respondent No.4 was not qualified / suitable person to perform additional charge duty on the post of the Director General. He adds that respondent No.4 was also not eligible to be posted as Director. He further submits that respondent No.4 belongs to the Department of Agriculture and as per rules, he could not be transferred and posted in the Pest Warning & Quality Control of Pesticides, Lahore. He next submits that the Government was neither authorized to change the cadre / functional unit of an official nor to fill post/posts by officer / officers belonging to different cadre. He argues that in the instant matter, the Chief Minister, Punjab, is competent authority, but the impugned order assigning additional charge of the post of Director General to respondent No.4 has been passed on behalf of Governor of the Punjab, which is unlawful and not sustainable in the eye of law. In the end, he submits that impugned orders have been passed in violation of the law laid down in Pakistan Tobacco Board and another v. Tahir Raza and others (2007 SCMR 97), Hafiz Hamdullah v. Saifullah Khan and others (PLD 2007 Supreme Court 52), Muhammad Yasin v. Federation of Pakistan through Secretary, Establishment Division, Islamabad and others (PLD 2012 Supreme Court 132), Contempt Proceedings against Chief Secretary, Sindh and others (2013 SCMR 1752), Dr. Shagufta Shahjehan v. Government of Punjab through Chief Secretary and another (2008 PLC (C.S.) 659), All Pakistan Clerks Association (APCA) through President v. Mst. Ishrat Fatima and 3 others (2008 PLC (C.S.) 1266), Lal Khan v. Employee Old Age Benefit Institution through Chairman and 2 others (2010 PLC (C.S.) 1377), Barrister Sardar Muhammad v.
Federation of Pakistan and others (PLD 2013 Lahore 343) and Zubair v. Federation of Pakistan through Secretary Establishment Division and 3 others (2016 PLC (C.S.) 259).
4. On the other hand, learned Assistant Advo cate General submits that according to Section 9 of the Punjab Civil Servants Act, 1974 (VIII of 1974) ("the Act of 1974" ), every civil servant is liable to serve anywhere within or outside the province in any post under the Government of the Punja b or the Federal Government or any Provinc ial Government or a local authority or a corporation or a body set up or establish ed by any such Government. He adds that the Directorates of Agriculture (Ext. & AR), Punjab, Lahore, and Pest Warning & Quality Control of Pesticides, Punjab, Laho re, are two attached departments, working under the administrative control of respondent No.3. He further submits that according to Section 23 of the Punjab Civil Servants (Appointment & Conditions of Service) Rules, 1974, the Chief Minister may, for special reasons to be recorded in writing, relax any of the rules in any individual case of hardship, to the extent prescribed by him. He further submits that respondent No.4 has been transferred and posted as Director (BS-19), Pest Warning & Quality Control of Pesticides, Punjab, Lahore, and assigned additional charge of the post of Director General (BS-20), Pest Warning & Quality Control of Pesticides, Punjab, Lahore, by the Chief Minister, in the best interest of affairs of the province. He further contends that respondent No.4 possessed the degree of M.Sc. (Hons) with major subject of Entomology, which is the prescribed qualification for the post of the Director. In the end, he submits that instant petition, being not maintainable, is liable to be dismissed. In support of his contentions, he has placed reliance upon Hafiz Hamdullah v.
Saifullah Khan and others (PLD 2007 Supreme Court 52).
5. Arguments heard. Available record perused.
6. The impugned orders passed by respondent No. 2 and 3 are reproduced hereunder:- Order dated 29.04.2016 respondent No. 3: "No.SO (A-IV) 24-8/201 1 Mr. Khalid Mehmood, Directo r Agriculture Ext. (Hq) Directorate General Agriculture (Ext. & AR), Punjab, Lahore is hereby assigned look after charge of the post of Director General, Pest Warning & Quality Control of Pesticides, Punjab, Lahore relieving Dr. Muhammad Anjum Ali, Director General Agriculture (Ext. & AR), Punjab, Lahore of the additional charge of the post of Director General, Pest Warning & Quality Control of Pesticides, Punjab, Lahore in the best public interest."
Order dated 07.06.2016 passed by respondent No. 2: "No.SOEI-1-46/2016: Mr. Khalid Mahmood (BS-19), Director Agriculture Ext. (Hq.), Directorate General Agriculture (Ext. & AR), Punjab, Lahore is transferred with immediate effect and posted as Director (BS-19), Pest Warning & Quality Control of Pesticides, Lahore.
2. Mr. Khalid Mehmood (BS-19) is also entrusted the additional charge of the post of Director General (BS-20), Pest Warning & Quality Control of Pesticides, Lahore, in addition to his own duties."
7. Government of the Punjab, Services & General Administration Department (Regulations Wing), issued notification dated 21.08.2012, whereby in the exercise of powers conferred under Section 23 of the Act of 1974, Governor of the Punjab made certain amendments in the Directorate of Pest Warning & Quality Control of Pesticides in Punjab Service Rules, 1987. In the instant case, amendments brought for the posts of Director General and Director, Pest Warning & Quality Control of Pesticides, Punjab, Lahore, are relevant and detail thereof is as under:- Name of Post Appointing AuthorityMethod of Recruitment Director General (BS-20)Chief Minister By promotion on the basis of selection on merit from amongst Directors of BS-19 in the cadre with 17-years service against posts in Basic Scale 17 and above and three research publications in a recognized Journal.
Director (BS-19) Chief Minister (i). By initial recruitment, Ph.D. in Agricultural Entomology or Plant Pathology from a recognized University with at least 10-years post Doctoral experience in the field of Pest Warning & Quality Control of Pesticides OR M.Sc. (Hons) (second division) in Agricultural Entomology or Plant Pathology from a recognized University with at least 15-years experience in the field of Pest W arning & Quality Control of Pesticides. (ii). By promotion, on the basis of selection on merit from amongst Deputy Directors of Agriculture (Plant Protection) BS-18 + Rs.165.S.P . with at least 12-years service against posts in Basic Scale 17 and above and three research publications in a recognized Journal, and if none is available for promotion, then by initial recruitment.
8. Appointing Authority for both the above referred posts is the Chief Minister . The post of Director General is to be filled by promotion from amongst Directors (BS-19) in the cadre having 12 years service in BS-17 or above plus three research publications. Whereas, the post of Director can be filled by initial recruitment as well as by promotion. For initial recruitment, candidates having Ph.D. in Agricultural Entomology or Plant Pathology plus 10-years post doctoral experience in the field of Pest Warning & Quality Control of Pesticides, are eligible. In case of M.Sc. (Hons) (second division), the candidate should have at least 15-years experience in the above field. If the post of Director is to be filled by promotion, it will be from amongst the Deputy Directors of Agriculture (Plant Protection) having 12-years experience in BS-17 and above, with three research publications. If no one fulfills the above criteria, then the post of Director will be filled by initial recruitment.
9. It is the claim of petitioner that respondent No.4 does not have the requisite experienc e either for the post of the Director General or the Director , so he cannot be posted on either of the posts. Learned Assistan t Advocate General contends that no Deputy Director having requisite experien ce of 07-years was available, so, respondent No.4 was posted as Director , but he has failed to show whether respondent No.4 had the requisite experience.
10. It was claimed by respondent No.4 in his report and parawise comments that he had degree of M.Sc. (Hons) in relevant subject, but it is nowhere disclosed by him whether he had requisite experience in the relevant field. Learned Law Officer, when enquired about this fact, was unable to make a satisfactory answer . Report and parawise comments submitted by respondents No.1 to 3 are also silent about the fact that if respondent No.4 had the requisite experience necessary for the post of Director . Therefore, posting of respondent No.4 on the post of Director is not justified rather it is against the service rules itself framed by the Government and in force in the department.
11. Admittedly, the post of Director General fell vacant on 24.12.2014 and first additional charge duty was entrusted for 06-months vide notification dated 16.01.2015 pursuant to which, officer namely Dr. Anjum Ali, Director General, Agriculture (Ext. & AR) assumed charge on 22.01.2015, which ended on 21.07.2015. Thereafter, vide notification dated 29.07.2015, said officer was given additional charge of the post of Director General, wherein no time of expiry of said additional charge duty was fixed. Vide order dated 29.04.2016, respondent No.4 was deputed to look after the charge of the post of Director General and vide notification dated 07.06.2016, respondent No.4 was entrusted additional charge duty of the said post for indefinite period. Where a civil servant had been entrusted additional charge of Director General instead of making appointment either by promotion or initial appointment, the same should be time specific, as unlimited period of acting charge or additional charge had been deprecated by the superior Courts. Unjustified term of office could not be continued or shielded. The respondents are not equipped with any material, which may show their initiatives, if any, to fill the post / posts on regular basis. There is apparent mala fide on their part in assigning additional charge to respondent No.4 for an unspecified period. Therefore, the impugned orders, also being inconsistent with the law laid down by the superior Courts, are not sustainable. Reference can be made to Zubair v. Federation of Pakistan through Secretary Establishment Division and 3 others (2016 PLC (CS) 259) and N.W.F.P. Public Service Commission through Chairman and another- Petitioners v.
Dr. Samiullah Khan and 2 others- Respondents. (1999 SCMR 2786 )
12. So far as the argument of learned Assistant Advocate General that petitioner is not an aggrieved person and has no locus standi to file instant petition, is concerned, suffice it to say that any person can move this Court to challenge the usurpation or unauthorized occupation of a public office by the incumbent of that office and he is not required to be an aggrieved person or to establish his locus standi . Reference can be made to the case of Hafiz Hamdullah supra.
No specific rule existed for exercise of discretion by the High Court in granting or refusing writ in the nature of quo warranto and it depends on facts and circumstances of the case. Petitioner had to prima facie show that respondent lacks qualification for holding the public office held by him and the onus of proof is upon the respondent who has to validate that his appointment is in accordance with law and rules.
13. Quo warranto proceeding affords a judicial remedy by which any person who holds an independent substantive public office or franchise or liberty is called upon to show by what right he holds the said office. In other words, this species of writ gives judiciary a weapon to control executive action from making appointment to public office against the law. This also protects the public from usurper of public office. The purpose of writ is to pose a question to the holder of a public office where is your warrant of appointment by which you are holding this office. In the writ of quo warranto , no special kind of interest in the relator is needed nor is it necessary to explain what of his specific legal right is invaded. It is enough for its issue that the relator is a member of the public and acts bona fide. For the purpose of maintaining writ of quo warranto , there is no requirement of an aggrieved person, but a whistle blower , who needs not to be personally aggrieved in the strict sense, may lay the information to the Court to enquire from the person holding public office. The conditions necessary for issuance of writ of quo warranto are that the office must be public and created by a statute or Constitution itself; the office must be substantive one not merely the function of an employment of a servant at the will during the pleasure of others; there has been transgression of the Constitution or a statute or statutory instrument in appointing such person to that office; the holder of the post does not possess the prescribed qualification; the appointing authority is not competent authority to make appointment and the procedure prescribed by law has not been followed.
14. Writ of quo warranto would, unless withheld at Court' s discretion, be issued if the Court is satisfied that anyone or more of the following elements are missing, namely that (a) respondent holds public office by order or decision of an authority competent to so appoint him: (b) he was appointed in prescribed manner and if appointment is at the discretion of appointing authority , that discretion was lawfully exercised: (c) he could have been appointed to the office e.g. that he had the requisite qualification and was not otherwise disqualified; and he was entitled to continue holding the office. Under the law, an appointee has to demonstrate that his appointment is in accordance with the law and rules, however , in the instant case, respondent No.4 has miserably failed to do so.
15. Needless to observe here that discretion of even the highest State functionary is circumscribed by law and as against their whims of liking, compulsion or expediency . It is the will of the legislature, which is to prevail. Unless those in authority starting from the top are willing to surrender their will to the rule of law, latter will remain confined to casualty ward. Bringing political or outside influence directly or indirectly to bear on Governor , Chief Minister , a Minister or Government Officer, in support of any matter relating to conditions of service of civil servant, is misconduct.
16. Resultantly, instant writ petition is allowed. Posting of respondent No.4 as Director and additional charge duty of the post of Director General are declared illegal and said actions of the Government are declared without lawful authority. The Offices of Director and Director General, Pest Warning & Quality Control of Pesticides, Punjab, Lahore, are declared vacant as respondent No.4 held these offices in violation of the rules and policy.