' This single judgment shall decide the fate of instant petition as well as Writ Petition No. 14596/2014 as similar questions of facts and law are involved in both these petitions.
2.Through instant petition the petitioner has challenged the appointment of Respondent No. 3 namely Dr. Rizwan Naseer as Director. General, Punjab Emergency Service 1122, Headquarters Ferozepur Road, Lahore, on the ground that he has been appointed as such in a non-transparent and illegal manner. As per averments contained in the petition, the Respondent No. 3 was appointed as Director General Punjab Emergency Service 1122 initially for a period of three years vide notification dated 27th of July, 2006 and later on his tenure was extended from time to time and last notification to this effect was issued on 28th of July, 2012, whereby his tenure was extended for further three years.
3.In order to refute the averments in the petition, the respondents submitted their report and parawise comments.
4.Learned counsel for the petitioner submitted that Section 9 of The Punjab Emergency Service Act, 2006 prescribes the mode of appointment of Director General but while appointing the Respondent No. 3 as Director General, the Appointing Authority has violated the mandatory requirements for the said provision. He maintained that the Respondent No. 3 was illegally appointed in the year 2006 and later on his tenure was extended from time to time which is not permissible under the law.
Learned counsel further submitted that the appointment of Respondent No. 3 was even made without advertisement and through a back door channel. He contended that the Respondent No. 3 is holding the office without any lawful authority. Learned counsel argued that choosing a person for a public office is a sacred trust but while appointing Respondent No. 3 as Director General, the Appointing Authority has invoked non-transparent and oblique method. In the last learned counsel submitted that the appointment of Respondent No. 3 offends the fundamental rights enshrined in Article 9 of the Islamic Republic of Pakistan, 1973. In support of his contentions learned counsel for the petitioner placed reliance on the following cases:- "Director, Social Welfare, N.W.FP, PESHWAR versus Sadu.11ah Khan" (1996 SCMR 1350), "Barrister Sardar Muhammad versus Federation of Pakistan and others" (PLD 2013 Lahore 343).
"Dr. Mal' Hussain Verus Federation of Pakistan and hers" (2013 PLC (CS) 1176).
"Abdul Malik and Others versus Government of Baiochistan through Secretary, Home and Tribal Affairs Department and other" (2013 PLC (CS) 736).
"Capt. (Retd.) Muhammad Naseern Jijazi versus Province of Punjab Through Secretary, Housing and Physical Plann.:ng and 2 others" (2009 SCMR 1720).
"Shahid Orakazi and another verfus Pakistan through Secretary Law, Ministry of Law, Islamabad and another" (PLD 2011 S.0 365).
"Mashood A.I versus Senior Member, Board of Revenue Baluchistan and others (2011 PLC (SC) 548).
"Dr. Shagufta Shahjehan versus Government of Punjab through Chief Secretary and another" (2008 PLC (SC) 659).
"Abdul Bashir and 9 others versus Government of Baluchistan through Secretary, Civil Secretariat, Quetta and 3 others" (2001 PLC (SC) 771).
"Chief Secretary Punjab and others versus Abdul Raoof Dash" (2006 SCMR 1876)
"Government of N.W.F.P . Through Secretary, Forest Department, Peshawar and others versus Muhammad Tufail Khan" (PLD 2004 S.0 313).
5. Conversely learned Assistant Advocate General representing Respondents No. 1, 2 and 4 submitted that the appointment of Respondent No. 3 was made strictly in accordance with Section 9 of The Punjab Emergency Service Act, 2006. Learned Law Officer contended that Respondent No. 3 was duly qualified for the said post and he was pioneer of the department. He submitted that even before the existence of the department the services of the record Respondent No. 3 in the field were commendable. Learned Assistant Advocate General further submitted that the instant petition is filed with mala fide intent. In order to substantiate his contentions learned Law Officer drew the attention of this Court towards the documents appended with the comments filed by the respondents. Learned Law Officer with reference to said documents submitted that one of the petitioner namely & used Mehboob is ex-employee of the Punjab Emergency Service 1122, who was proceeded departmentally and was removed from service on 23rd of August 2012 by the orders of the Respondent No.
3. He further contended that previously through Writ Petition No. 13264/2009 one Major Rtd. Tahir Hussain Bukhari had already questioned the appointment of Respondent No. 3 being Director General but the same was dismissed vide order dated 28th of October 2009. In the last of the limbs of his arguments, learned Law Officer argued that the appointment of Respondent No. 3 was made in the year 2006 thus the instant petition badly suffers from laches. In support of his contentions learned Assistant Advocate General Punjab has placed reliance on the cases of "Dr. Shazia Khawaja versus Chairman and Dean of Sheikh Zayed Post Graduate Medical Institute And Hospital, Lahore and 7 others" (2012 PLC (SC) 1057), Tariq Mehmood A. Khan and 3 others versus Sindh Bar Council through Secretary and others" (2011 YLR 2899), "Allauddin Abbasey versus Province of Sindh through Chief Secretary, New Sindh Secretariat, Karachi and 3 others" (2010 PLC (CS) 1415), and Dr. Muhammad Tahir-ul-Qadri versus Federation of Pakistan through Secretary M/o Law, Islamabad and others (PLD 2013 S.0 413).
6. In addition to above submissions, the learned counsel for Respondent No. 3, while referring to Sections 6, 7 & 9 of the Punjab Emergency Service Act, 2006 has submitted that the appointment of Respondent No. 3 is fulfils all the mandatory requirements of law. Learned counsel further added that being the Director General of the department Respondent No. 3 has contributed a lot to his department. He submitted that the grant of extension to the Respondent No. 3 was accorded on the basis of his remarkable performance. Learned counsel argued that the petitioner is a motivated person and he has also filed a complaint against the Respondent No. 3 before Human Rights Cell Established under the Hon'ble Supreme Court of Pakistan. In support of his contention learned counsel for the Respondent No. 3 has placed reliance on the case of "Ghulam Rasool versus Government of Pakistan through Secretary, Establishment Division Islamabad and others"
(PLD 2015 S.0 6).
7. I have heard learned counsel for the parties and perused the record.
8. The respondents have resisted the instant petition on account of merits as well as on issue of its maintainability. Thus before coming to the merits of the instant petition I would like to first address the question of its maintainability which is raised by the respondents on the ground of laches and the malafide intent on the part of the petitioner. So far the question of laches is concerned the same cannot be equated with limitation. The same can be determined on the basis of facts and circumstances of each case. In the judgment cited by the learned Assistant Advocate General Punjab in the case of "Dr. Muhammad Tahir-ul-Qadri versus Federation of Pakistan through Secretary M/o Law Islamabad and others (PLD 2013 S.C 413) the Hon'ble Supreme Court of Pakistan while taking into consideration the factum of dual Nationality of the petitioner and the consequential disqualification to be chosen as Member of the Parliament coupled with the other features dismissed the said petition on the ground of laches as well as principle of locus standi but in the instant case the Respondent No. 3 was appointed on 27th of June 2006 and his appointment will remain intact till 27th of July 2015. The present petition is in the nature of quo-warrant and it is settled principle of law by now that writ of quo-warantto can proceed when the claimed disqualification of the respondents hold the field till the date of decision of the writ petition. Thus in my humble view the question of laches does not come in the way of the petitioner. Reliance in this respect can be placed on the case of "Muhammad Raza Nativi and 5 others versus Muhammad Din through Legal Heir" (2004 SCMR 400). "Dr. Jalil Qadir versus Province of Sindh through Chief Secretary, Government of Sindh and 2 others" (2010 PLC (CS) 731).
9. The next point raised on behalf of the respondents that the petition is fraught with mala fide.
Though the proceedings in terms of writ of quo-warranto are not adversarial in nature but these are inquisitorial and anybody can move for the same being the wrestle blower but the blowing of wrestle must be for the benefit of public in general and not for the personal vengeance. It is always up to the judicial conscious of the Court to examine as to whether the same qualifies the yardsticks laid down in Article 199(1)(b)(ii) of the Constitution of the Islamic Republic of Pakistan, 1973 or not.
But at the same time grant of relief in quo-warranto is based on principles of equity and thus the conduct and motive of the petitioner can be looked into by the High Court while entertaining the writ of quo-warranto. It is evident from the record that one of the petitioner Faisal Mehmood Khan is an ex-employee of Punjab Emergency Service Rescue 1122 who was proceeded departmentally under the orders of Respondent No. 3, being the Director General and as a result of the departmental proceedings he was removed from the service vide order dated 23rd of August, 2012.
This clearly shows the motivation and malafide on the part of the said petitioner to file the petition challenging the appointment of Respondent No.
3. Even the petitioner in, the instant petition also approached Human Rights Cell of the Hon'bie Supreme Court of Pakistan Islamabad through an application in the year 2012. The Constitutional jurisdiction cannot be resorted to settle the personal differences between the parties. Thus his Court is inclined to observe that the petition is outcome of the personal vengeance and the same is not maintainable on this score. Guidance in this respect can be sought from the eases of "Dr. Muhammad Tahir-ul-Qadri versus Federation Of Pakistan through Seceratary Mb o Law, Islamabad and others (PLD 2013 S.0 413), "Dr. Shazia Khawaja versus Chairman and Dean of Sheikh Zayed Post Graduate Medical Institute and Hospital, Lahore and 7 others" (2012 PLC (SC) 1057), Tariq Mehmood A. Khan and 3 others versus Sindh Bar Council through Secretary and others" (2011 YLR 2899), "Allauddin Abbasey versus Province of Sindh through Chief Secretary, New Sindh Secretariat, Karachi and 3 others" 2010 PLC (CS) 1415.
10. While adverting to the merits of the case and in order to determine the validity of the appointment of Respondent No. 3 as Director General of Punjab Emergency Service Rescue 1122. It would be relevant to examine The Punjab Emergency Service Act. 2006, which was promulgated to establish the Emergency Service for the purpose of maintaining a State of preparedness to , deal with emergencies to provide timely response, rescue and emergency medical treatment to the persons affected by emergencies and recommending measures to be taken by related organizations to avoid emergencies. The service or department was established in terms of Section 4 of the said Act which is called Punjab Emergency Service or the Rescue who has to perform such functions as are assigned to it under the Act. Powers and functions of the service are enumerated in Section 5 of The Punjab Emergency Service Act, 2006. Section 6 of The Punjab Emergency Service Act, 2006 here-in-after referred as "The Act, 2006" provides a composition of council, comprising of a number of members headed by Chief Minister of the Punjab being it Chairman. The Director General of the Service is one of the Member of the Council. Section 9 of "The Act, 2006" lays down the qualifications of a person to be appointed as Director General under the said provision. Section 9 reads as under: Section.9. "Director General.--(1) The Government shall appoint a Director General who shall be the chief executive officer of the Service and shall exercise such powers and perform such functions as may be specified by the Council.
(2) The Director General shall be a person who--
(a) is a postgraduate in emergency management or an emergency subject or has specialization in management of trauma or emergency patients or is a medical postgraduate;
(b) has adequate knowledge, formal training and expertise in the field of emergency management; and
(c) is not more than sixty years of age.
(3) The Director General shall be appointed initially for a period of three years but the Council may extend his tenure keeping in view his performance and may remove him before the expiry of his tenure if he is not physically or mentally fit or is incapable of performing his duties;
(4) The Director General shall be paid such salary, allowances and other benefits and shall be subject to such terms and conditions as are laid down in his service contract;
(5) The Director General shall be responsible for the day to day administration of the affairs of the Service and he may, subject to the regulations, appoint, post and transfer any of the employees working under him in the Service.
(6) The Director General shall follow and comply with such directions of the Council as may be given to him in writing in the public interest.
(7) Subject to the directions of the Council, the Director General may delegate any of his powers or functions to a Director or to an officer of the Service.
' Sub-section (2) of the above quoted provision of law describes the eligibility of a person to be appointed as Director General, who is to be appointed by the Government. The Government is defined in Section 2(j) of The "Act, 2006" as the Government of the Punjab. Sub-section (3) described that the Director General shall be appointed initially for a period of three years. However, the Council may extend his tenure keeping in view his performance.
11. The petitioner has not challenged the appointment of the Respondent No. 3 on the basis of lack of his eligibility to hold the office of Director General rather his appointment is challenged on the ground that it was made in non-transparent and unfair manner, by depriving the other qualified persons to present themselves for the said post. The judgments cited by the learned counsel for the petitioner, in order to substantiate this plea have laid down unequivocal principle that while choosing a person for public service transparency and fairness should be maintained, as appointment and holding of a public office is not just for Providing a job too a blue eyed or a mean of earning to one in need but is a sacred trust which must be discharged honestly, fairly and in a just and transparent manner and in the best interest of the public. There can be no other opinion to this in the presence of these principles laid down by the Hon'ble Supreme Court of Pakistan from time to time in its judgments, including the above referred judgments on behalf of the petitioner.
However the Hon'ble Apex Court in its recent pronouncement in the case of "Ghulam Rasool versus Government of Pakistan through Secretary, Establishment Division Islamabad and others" (PLD 2015 S.0 6) has further elaborated the said principles by providing the guidelines for properly resolving the issue in hand. For the purpose of connivance and ready reference the relevant extract from the same is reproduced below:
7. During the last care-taker Government, a large number of appointments were made without following any merit or procedure that were against the Constitutional mandate of a care-taker Government. Khawaja Muhammad Asif, a Parliamentarian, had filed a petition before this Court under Article 184(3) of the Constitution against the said appointments and this Court had inter alia made following directions:-- "26. Be that as it may, in order to ensure the enforcement of the fundamental right enshrined in Article 9 of the Constitution and considering it to be a question of public importance, a Commission headed by and comprising two other competent and independent members having impeccable integrity, may be the Federal Ombudsman or Chairman NAB or a Member of Civil Society having exceptional ability and integrity, is required to be constituted by the Federal Government through open merit based process having fixed tenure of four years to ensure appointments in statutory bodies, autonomous bodies, semi-autonomous bodies, regulatory authorities to ensure appointment of all the government controlled corporations, autonomous and semi-autonomous bodies.Etc. The Commission should be mandated to ensure that all public appointments are made solely on merits. The Commission should discharge mainly the following functions:--
(i) Regulate public appointments processes within his remit;
(ii) implement a Code of Practice that sets out the principles and core processes for fair and transparent merit-based selections;
(iii) chair the selection panels for appointing heads of public/statutory bodies and.Chairs and members of their boards, where necessary;
(iv) appoint Public Appointments Assessors to chair the selection panels for appointing heads of public/statutory bodies and chairs and members of their boards, where appropriate;
(v) report publicly on a public/statutory body's compliance with the Code of Practice, including examples of poor and good performance, and best practice;
(vi) investigate complaints about unfair appointment process;
(vii) Monitor compliance with the Code of Practice;
(viii) Ensure regular audit of appointments processes within his remit;
(ix) Issue an annual report giving detailed information about appointments processes, complaints handled, and highlights of the main issues which have arisen during the previous year. The annual report for the previous calendar year should be laid before the Parliament by 31st March;
(x) Take any other measures deemed necessary for ensuring that processes for public sector appointments that fall in his remit are conducted honestly, justly, fairly and in accordance with law, and that corrupt practices are fully guarded against.
27. The Code of Practice should provide foundations for transparent merit-based public appointments. All public appointments must, be governed by the overriding principle of selection based on merit, out of individuals who through abilities, experience and qualities have a proven record that they best match the need of the public body in question. No public appointment must take place without first being recommended by the Commission. The appointments procedures should be subjected to the principle of proportionality, that is, what is appropriate for the nature of the post and the size and weight of its responsibilities. Those, selected must be committed to the principles and values of public service and perform their duties with highest level of integrity. The information provided about the potential appointees must be made public. The Commission may from time to time conduct an inquiry into the policies and procedures followed by an appointing authority in relation to any appointment. He may also issue a statement or publish a report commenting publicly on any breach or anticipated breach of the Code. The appointment of the successful candidate must be publicized. .................................................. .................................................. .....................................................
30(e) The appointments in autonomous/semiautonomous bodies, corporations, regulatory authorities, etc., made before the appointment of Caretaker Government shall also be subjected to review by the elected Government by adopting the prescribed procedure to ensure that right persons are appointed on the right job, in view of the observations made in above paras (Paras.
Nos. 25 and 26)"
8. We have noted that while making such directions, the provisions of Article 90 of the Constitution were overlooked by this Court. Article 90 reads as under:-- "90. (I) Subject to the Constitution, the executive authority of the Federation shall be exercised in the name of the President by the Federal Government consisting of the Prime Minister and the Federal Ministers, which shall act through the Prime Minister, who shall be the Chief Executive of the Federation.
(2) In the performance of his functions under the Constitution, the Prime Minister may act either directly or through the Federal Ministers."
9. The appointment of a Commission and the power to make recommendations for such appointments is not in accordance with Article 90 of the Constitution where the power of appointment has been vested in the Federal Government. It appears that in the light of the observations made in paras 26 and 27 of the Khawaja Asif supra judgment the legal authority has been vested in a Commission and its recommendations are being made binding upon the Prime Minister. It is by now a well-settled law that the responsibility of deciding suitability of an appointment, posting or transfer fell primarily on the executive branch of the State. It is also a settled law that the Courts should ordinarily refrain from interfering in policy making domain of the Executive. In Executive District Officer (Revenue), District Khushab v. Ijaz Hussain (2012 PLC (CS) 917) this Court has held that framing of recruitment policy and rules there under fell in the executive domain; that the Constitution of Pakistan is based on the principle of trichotomy of powers where legislature is vested with the functions of law making, the executive with its enforcement and judiciary of interpreting the law and that Courts could neither assume the role of policy maker nor that of a law maker. The contents of the said paras were in the form of certain recommendations, which could not have assumed the status of law. In Shahid Orakzai and another v. Pakistan (PLD 2011 SC 365) the importance of consulting the Hon'ble Chief Justice of Pakistan has been stated in the matter of appointment of Chairman of the National Accountability Bureau and it was expected that such recommendation had to be given effect for all future appointments. Subsequently in Ch. Nisar A.I Khan v. Federation of Pakistan etc. (PLD 2013 SC 568) this Court had clarified that in the absence of the Hon'ble Chief Justice of Pakistan from the appointment process of Chairman NAB, the observations in Shahid Orakzai supra case were not to be treated as binding and that "a suggestion or recommendation made by the Court in a judgment though entitled to due respect, deference and consideration, does not travel beyond a suggestion or a recommendation and it does not by itself assume the status of law. By its nature and form a suggestion or a recommendation is simply what it is, nothing more and nothing less." In Syed Mahmood Akhtar Naqvi and others v. Federation of Pakistan etc (PLD 2013 SC 195), this Court has held that "whenever there are statutory provisions or rules or regulations which govern the matter of appointments the same must be followed". Keeping in view the above discussion, it can be said that the matter of appointment of heads of statutory bodies, autonomous/semi-autonomous bodies, corporations, regulatory authorities tetrameter are governed under specific statutory provisions which cannot be overlooked or substituted by some other mechanism. We have noted that various Acts/Ordinances lay down a specific criteria/qualifications for high-level appointments and empower the Federal Government to make such appointments. Some of them are Federal Public Service Commission of Pakistan Ordinance, 1977, Competition Act, 2010, (iii) Pakistan Electronic Media Regulatory Authority Ordinance, 2002, (iv) Oil and Gas Regulatory Authority Ordinance, 2002, (v) NEPRA Act, 1997, (vi)
Securities and Exchange Commission Act, 1997, (vii) Pakistan Telecommunication (Re- organization) Act, 1996, and (viii) Companies Ordinance, 1984. The above referred Acts/ Ordinances provide a complete procedure of appointments, which the Federal Government is bound to comply with as mandated under Article 5 of the Constitution. The Federal Government has been expressly empowered by the Legislature to make high-level appointments in accordance with the criteria specified in the concerned Acts / Ordinances. In case of companies incorporated in the public sector under the Companies Ordinance. 1984, the appointment and removal of Directors is comprehensively dealt with under the said Ordinance and the memorandums, rules/regulations framed thereunder. However, it is also made clear that the Court's deference to the Executive Authority lasts for only as long as the Executive makes a manifest and demonstrable effort to comply with and remain within the legal limits which circumscribe its power. Even where appointments are to be made in exercise of discretionary powers, such powers are to be employed in a reasonable manner. Even otherwise, the policy adopted by the Federal Government in making appointments is open to judicial review on the touchstone of the Constitution and the laws made there under i.e. In case of ant illegality in the ordinary process of appointment, this Court as well as the High Courts have sufficient powers under Articles 184 and 199 of the Constitution to exercise judicial review. There are similar Commissions in other countries including the United Kingdom, Canada and India. However, all those commissions were made pursuant to specific laws/statutes enacted for that purpose. In Australia, the Australian Public Service Commission was established pursuant to the Public Service Act, 1999. Similarly in Canada, the Federal Accountability Act, 2006, was enacted by the Parliament for inter alia putting in place measures respecting administrative transparency, oversight and accountability. However, no public appointments commission has yet been created. No statutory Commission has been created in Pakistan for examining suitability of persons for appointment to high public offices. The Government may consider the establishment of such a Commission through legislation in order to ensure transparency which would also enable the executive authority to make an informed decision while making appointments."
12. The precise inference which can be drawn from the above quoted principle laid down by the Hon'ble Supreme Court of Pakistan can be that when there are statutory provisions, rules and regulations governing the matter of appointment the same must be followed. As already observed that Section 9 of "The Act, 2006" regulates the appointment and eligibility of the condition of Director General, the Respondent No. 3 undeniably fulfills all the eligibility conditions enumerated therein and the Provincial Government was competent to appoint a person fulfilling the said conditions to be a Director General for the service and also extend its tenure on the basis of satisfactory performance.
13. There is yet another important aspect that even on previous account one Major Rtd. Tahir Hussain Bukhari filed Writ Petition No. 13264/2009, wherein he challenged the actions of Respondent No. 3 almost in similar manner and the said Writ Petition was dismissed by this Court vide order dated 28th of October, 2009 with cost of Rs. 20,000/-.
14. Thus this Court is of the considered opinion that the appointment of Respondent No. 3 as Director General Punjab Emergency Service Rescue 1122 is fully covered under the law and there is no illegality warranting interference by this Court in the exercise of writ of quo-warranto.
15. The nutshell of above discussion is that I find no merit in the instant petition, resultant the same is dismissed with no order as to costs.