SAJJAD ALI SHAH, J.---The petitioners seek leave of this Court against the judgment of the Sindh High Court whereby the said Court while allowing the petition filed by respondent No.1, declared the appointments of petitioners to the post of Inspector (Security) (BPS-15 ) as null and void and further directed the official respondents to fill up the said posts in accordance with Service Regulation of PQA, 2011 as amended up-to-date within a period of three months.
2. Briefly the petitioners, in consequent to the advertisement published in the daily "Express" dated 23.10.2010, applied for the posts of Inspector (Security) (BPS-15). The educational qualification and experience as was prescribed in the advertisement was as follows:- "Graduate or equivalent Army Educational Certificate/Retired J.C.O./Inspector of Police 4 years relevant experience".
3. It appears that the petitioners claimed to have possessed the prescribed qualification and experience. As such their applications were entertained and after they cleared the written test, their names were recommended by the Selection Committee and consequently they were appointed to the said posts in October , 2011. It appears that the respondent No.1 who had also applied for the said post challenged their appointments by invoking the constitution jurisdiction of the Sindh High Court by claiming that the petitioners neither possess the requisite qualification nor had the required experience and, therefore, their appointments were illegal and result of corruption and corrupt practices and the prayed that the official respondents be directed to appoint him to the said post instead. The High Court, after hearing all concerned, allowed the petition through the impugned judgment to the extent of declaring the appointments of the petitioners as null and void with further directions to official respondents to fill up the subject posts in accordance with Service Regulation of PQA, 2011 as amended up-to-date within a period of three months.
4. Learned counsel for the petitioners has taken us to the list of short-listed candidates for the subject posts filed by respondent No.1 through concise statement bearing C.M.A. No. 1573-K/2018) in which the qualifications and experiences of the petitioners had been mentioned as follows:- S # Name DOB Qualification Exp. Address 13 Asif Hassan 16.9.73 MBA (Finance) B.
Com11 year B-6 Gulshan , Luxury Apprt. Block- 13/B Gulshan-e-Iqbal Karachi 14 Asim Hussain 02-6-71 B. Com 12 year H. R-1 10/11, Gulshan-e- Qadri Malir City, Karachi 22Adeel Ahmed Khan 01-2-77 B. A 04 yearH. 5/24-A, Area Liaquatabad, Karachi 73Shah Nawaz Sheikh03-6-72 (sic.)B.A(Econ) 13 year M-64, Muslimabad, Malir City, Karachi Consequently , it was contended that petitioners not only possessed the presc ribed qualification but also the required experience and, therefore, the impugned order could not be sustained. It was further contended that the High Court misled itself by presuming that the experience required should be either of an army or police service. It was lastly contended that the qualificatio n and experience of the person under attack in quo warranto is to be judged on the date of issuance of such writ and on the day when the writ was issued by the High Court, the petitioners had not only the prescribed qualification but had obtained the required experience as Security Officer with their employer Port Qasim Authority as by that time petitioners had worked there for six years. In support of his contention, reliance was placed on Lt. Col. Farzand Ali and others v. Province of West Pakistan through Secretary Department of Agriculture, Govt. of West Pakistan (PLD 1970 SC 98) and Ammad Ahmad v. National Highway Authority (2018 PLC [C. S.] Note 187).
5. On the other hand, learned counsel for the respondent No.1 has contended that the respondent as it would appear from the short listed candidates that he was more qualified and had a very long experience and, therefore, the official respondents ought to have given preference to respondent No.1 upon the petitioners. However , we note that the respondent's objection could neither be examined by this Court nor could have been done so by the High Court for the simple reason that the Court cannot take upon itself the function of the appointing authority in order to judge the suitability of a candidate. Besides nothing has been pleaded or brought before us to demonstrate that the petitioners were either lacking the requisite qualification or experience. Though the prescribed rule as examined in the impugned judgment would reflect that the requisite qualification in accordance with rule was "intermediate or equivalent Army Educational Certificate/retired JCO/Inspector of Police" whereas in the advertisement the official respondents to suit its requirement had enhanced the qualification to graduate and had also placed condition of four years experience and the petitioners even not only met the qualification as required under the rules but also as per the enhanced qualification and expe rience as was required by the official respondents through the subject advertisement. Therefore, in our view the impugned judgment could not be sustained.
6. Now coming to the second limb of the argument of the petitioners' counsel that the qualification and experience of the person under attack in quo warranto is to be judged on the date of issuance of such writ meaning thereby that in case age, qualification and experience is acquired pending action under quo warranto then keeping such change, quo warranto may not be issued. We are afraid that such proposition cannot be accepted as it would render the substantive statutory requirement for a public office a nullity and would vitiate the entire selection process. No doubt a writ in the form of quo warranto is an extraordinary discretionary jurisdict ion and the Court is not bound to exercise such jurisdiction in each and every case specially where on account of laches the matter has lost its significance or in cases of minor discrepancies, sheer curable technicalities or where the approach is doctrinaire unless it is shown that non-interference would result in grave in justice or would amount to endorsing the retention of illegal gains. However , in cases where the eligibility of a public servant is under attack on the ground that such public servant did not fulfil the substantive condition of eligibility to such office on the cut off date prescribed in the process, then such violation of the substantive statutory requirement could not be overlooked merely on the ground that pending action in the Court such government servant has met the required condition of such of fice.
7. As to the case of Ammad Ahmed (supra) whereby Lahore High Court amongst other after placing reliance on one of its own judgment in the case of M. A. Jabbar and others v. Federation of Pakistan (1999 PLC (C. S.) 686) held that "if a person during pendency of constitutional petition fulfilled the requisite qualification to hold such a post then writ of quo warranto could not be issued against such person as such Employees no more suffered disqualification to hold the post in question". We also examined the case of M. A. Jabbar (supra) and it appears that in the said case learned Single Judge after placing reliance on the judgment of this Court in the case of Farzand Ali (supra) came to the following conclusion:- "Thus, the crucial date to determine the qualification of a person to hold a post is not only the date of appointment but also the date of issuance of the writ petition and if pending disposal of the writ petition, a person fulfils the qualification to hold such a post, writ of quo warranto is not to be issued against such a person. Reference may be made to Farzand Ali v. West Pakistan ( PLD 1970 SC 98 )".
We simply cannot subscribe to the view so taken as the High Court has misled itself by mis-interpreting the judgment of this Court in the case of Farzand Ali (supra). In Farzand Ali's case, number of government servants were retired through a constitutional amendment. The government servants challe nged their retirement under quo warranto by taking a stance that since certain members of the legislators, for one or the other reasons, were disqualified and could not have voted in favour of such legislation, therefore, amendments were not made by the required majority and, therefore, could not have brought the required results. In this background, it was held: firstly , that the petitioners ought to have challenged such disqualification of the legislators in appropriate proceedings and their holding of such office could not be adjudged in collateral proceedings; secondly , the Court was of the view that since the legislators were not intruders and they had acted under the bona fide belief that they were entitled to act so and had at least a fair colour of title and they have performed their duties with public acquiescence, therefore, their act was as good as those of the de jure members of the assembly; thirdly , it was opined that in case the High Court would have allowed the quo warranto , it would have taken effect only from the date of pronouncement of High Court's judgment and not from any date anterior thereto and that would not have altered the decision regarding the validity of impugned amendment as such amendments would have still been protected not only under certain articles of the Constitution but de facto doctrine; fourthly , that the house by then had stood dissolved, therefore, no relief by way of quo warranto could be granted and the matter has only become of an academic interest. In this context, this Court has observed that:- "If the quo warranto had been allowed by the High Court, as pointed out by Waheeduddin Ahmad, J., it would have taken effect only from the date of the pronouncement of the High Court's judgment and not from any date anterior thereto and that would not have altered the decision regarding the validity of the impugned amendments".
It appears that this portion of the judgment was misunderstood, firstly in the case of M.A. Jabbar (supra) and then followed in other cases while placing reliance on the case of Farzand Ali by reading it in the light of M. A. Jabbar (supra) by holding that "the crucial date to determine the qualification of a person to hold a post is not only the date of appointment but also the date of issua nce of the writ petition" . Likewise v. in the case of Sajid Hussain v.Shah Abdul Latif University Khairpur [PLD 2012 (Sindh) 232] at para 10(ii) it was held that, "Both at the time of institution of the writ petition and on the date decision it must be shown that the holder suffered from any disqualification to hold the public office", providing tacit leverage to those who get rid of such disqualification during pendency of proceedings, which finding not only are self contradictory , endorses retention of illegal gain but also provide leverage to the executive by condoning their wrongs and that too at the cost of giving up a jurisdiction conferred by the' constitution.
8. These are the reasons of our short order of even date which was passed in the following terms:- "There is a written request for adjournment submitted on behalf of Mr. Khalid Mahmood Siddiqui, learned ASC representing Respondent No.3. However , he is present in Court and states that he wishes to withdraw the same.
Order accordingly .
2. We have heard learned counsel for the parties at considerable length and have also gone through the available record. For reasons to be recorded later, this petition is converted into an appeal and allowed and the impugned judgment of the learned Division Bench of the High Court dated 23.5.2018 is set aside.