SHAKEEL AHMAD, J.- This is a petition for the issuance of writ of quo warranto under Article 199 (1)(a)(ii) of the Constitution of Islamic Republic of Pakis tan, 1973, filed by Sardar Muhammad Ramzan against Raza Ali Habib, respondent No.3, challenging therein his appointment as Director General Galiya t Development Authority (GDA) vide impugned Notification No.SO(E-I)A 03-283/2018 dated 24.09.2018 and subsequent notification No.SO (E-I) E- GAD/3-283/2020 dated 29.09.2020. Both of these Notifications were issued by the respondent No.1, with the prayer to declare the same as illegal, violative of law, with the direction to the respondents to appoint DG GDA in accordance with law .
2. Succinctly , the facts are that petitioner belongs to village Nagri Bala, District Abbottabad, who is a conscientious citizen of Pakistan. He is a familiar social and political worker . According to him, Raza Ali Habib (respondent No.3) was serving in BPS-18 in Pakistan Railways. He was on deputization as Director Admin, Galiyat Development Authority vide Notification No.SO (E-I)E&AD/3-283/2018 dated 24.09.2018 in his own pay scale issued by the respondent No.1. In accordance of which he was given additional charge of the post of Director General, Galiyat Development Authority , Abbottabad. It is pertinent to mention here that under the un-amended Galiyat Development Authority Act 2016 (hereinafter referred to as Act of 2016) the post of DG, GDA was in BPS-20. The said notification was impugned through constitutional petition No.450-A/2020 before this Court. During hearing of the case, it came to the surface that appointment of respondent No.3 as DG GDA, Abbottabad through subsequent Notification No. SO (E-I)E&AD/3-283/2020 dated 29.09.2020 has not been challenged in the aforesaid writ petition, therefore, the petitioner was advised to withdraw the same and bring a fresh petition challenging therein the subsequent Notification vide order dated 13.10.2020. Hence, this petition.
3. In their parawise comments, the respondents No.1 and 2 have asserted that posting of the respondent No.3 was made strictly in accordance with the Galiyat Development Authority (Amendment) Act, 2020.
4. We have heard Mr. Touqeer Ahmad, learned counsel for the petitioner , Mr. Rashid-ul-Haq Qazi ASC representing the respondent No.3 and Sardar Muha mmad Asif, AAG appearing on behalf of the official respondents and examined the relevant law and documents appended with the pleadings of the parties with their able assistance.
5. Learned counsel for the petitioner argued that respondent No.3 has been appointed / posted in violation of Section 10 of Khyber Pakhtunkhwa Act of 2016. He next argued that at the time of his posting as Director General, GDA, he was serving in BS-18 in Pakistan Railways and under the un-amended Act of 2016, the post of Director General Carries BPS-20. He further argued that in order to accommodate the respondent No.3 not only an amendment was brought in the relevant section of law authorizing the government to post an officer not below the rank of BPS-19 as Director General, GDA, but through a notification dated 26.08.2021, he was appointed in BPS- 19 on acting charge basis in that service, which itself speaks of malafide on the part of the official respondents. He lastly argued that the respondent No.3 does not possess requisite statutory qualification to be posted as Director General, GDA and prayed to set aside the impugned notification.
6. As against that the learned counsel for the private and official respondents contended that appointment of the respondent No.3 as DG, GDA, was made by the competent authority strictly in line with Galiyat Development Authority (Amendment) Act, 2020. He further contended that petitioner is not an aggrieved person within the meaning of Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, therefore, he has no locus standi to challenge the appointment of the respondent No.3. They added that writ in the nature of quo warranto is discretionary and is to be issued in very exceptional cases whereas no such ground exists for issuance of writ of quo warranto. They lastly contended that the notification has been acted upon and the services rendered by respondent No.3 is marvelous and upto the mark and went on to say that the writ petition being based on malafide merit dismissal.
7. Before dilating upon the merits of the case, we deem it appropriate to first decide the locus standi of the petitioner to challenge the impugned notifications, it is important to understand the nature of relief under Article 199(1)(b)(ii) of the Constitution, ordinarily and more popularly referred to as writ of quo warranto, which is reproduced hereunder for ready reference: "(1) subject to the constitution, a High court may if it is satisfied that no other adequate remedy is provided by law:-
(b) on the application of any person make an order:
(ii) requiring a person within the territorial jurisdiction of the Court holding or purporting to hold a public office to show under what law he claims to hold that of fice."
A plain reading of Article 199 (1)(b)(ii) of the Constitution makes it crystal clear that any person, and not necessary an aggrieved person, can seek redressal from the High Court against the usurpation of a public office by a person who is holding it "without lawful authority" on that account it cannot be doubted that the petitioner did not have the locus standi to file the petition, he is only to show his bonafide. Reliance in this regard can be placed on the judgments reported as 'Arun Kumar Vs. Union of India and others' (AIR 1982 Rajasthan 67), 'Pir Sabir Shah V.
Government of Pakistan' (1994 CLC 5) and 'Federation of Pakistan and others Vs. Mian Muhammad Nawaz Sharif and others' (PLD 2019 SC 644). In this context, reliance can also be placed on the judgment reported as 'Masood-ul-Hassan V . Khadim Hussain and another ' (PLD 1963 SC 203 ), wherein, it was observed as under:- "Referring again to the monograph on Crown Proceedings in Volume 11 of Halsbury's Laws of England, the now obsolete writ of quo warranto was in its nature an information lying against a person who "claimed or usurped an office, franchise or liberty" and was intended "to enquire by what authority he supported his claim in order that the right to the office may be determined." It was necessary for the issue of the writ that the office should be one created by the State, by charter or by statute, and that the duty should be of a public nature."
In the same very case, it was further observed by the Hon'ble Supreme Court that: "It is well-settled that when the writ is moved by a law officer on behalf of the State, it is for the respondent to establish his legal right to retention of the office in question. But where a priva te petitioner seeks the writ, the burden of proving that the respondent does not have the right to hold such office is placed upon the petitioner ."
In this behalf reference may also be made to the case reported as 'Capt (Retd) Muhammad Naseem Hijazi Vs. Province of Punjab through Secretary , Housing and Physical Planning and 02 others' (2000 SCMR 1720 ) wherein it was held as under: "Under Article 199(2)(b)(ii) of the Constitu tion of the Islamic Republic of Pakistan the High Court in exercise of its Constitutional jurisdiction is competent to enquire from any person, holder of a public office to call upon him to show that under what authority he is holding the said office. In such-like cases where a writ in the nature of quo warranto is instituted the duty of the petiti oner is to lay information before the Cour t that such and such officer has no legal authority to retain such office. For a petitioner who acts, in fact, as an informer is not required to establish his locus standi to invoke the jurisdiction of the Court. In this behalf reference may be made to Masood-ul-Hassan v. Khadim Hussain and another (PLD 1963 SC 203). In this report it has been held that writ of quo warranto in its nature is an information laying against persons who claimed or usurped an office, franchise or liberty and was intended to inquire by what authority he supported his claim in order that right to office may be determined. It was further held that it is not necessary for the issuance of writ that the office should be one created by the State of character or by statute and that the. duty should be of a public nature. Similarly in the case of M.U.A. Khan v.
Rana Muhammad Sultan and another (PLD 1974 SC 228) this Court held that writ of quo warranto could be moved by "any person who- even may not be an aggrieved party but is holding a public office created by character or statute by the State". Yet in another case which is reported from the jurisdiction of High Court of Azad Jammu and Kashmir B i.e. Ali Hussain Bukhari and 39 others v. Azad Jammu and Kashmir Government through Chief Secretary and others (1992 PLC (C.S) 289), it was observed that any person can move the High Court to challenge the unauthorised occupation of a public office on any such application Court is not only to see that the incumbent is holding the office under the order of a competent Authority but it is to go beyond that and see as to whether he is legally qualified to hold the office or to remain in the office, the Court has: also to see if statutory provisions have been violated in making the appointment. The invalidity of appointment may arise not only from one of qualifications but also from violation of legal provision for appointment.
It may also be observed that on question of locus standi of the respondent to challenge the appointment of petitioner reliance can also be placed on Al-Jehad Trust through Raeesul Mujahideen Habib-ul-W ahabb- ulKhairi and others v, Federation of Pakistan and others (PLD 1996 SC 324) and Malik Asad Ali and others v.
Federation of Pakistan through Secretary Law, Justice and Parliament Affairs, Islamabad and others (PLD 1998 SC 161 )."
In the light of above, it can safely be concluded that the writ of quo warranto 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, franchise or liberty , so that his title to it may be duly determined, and in case the finding it that the holder of the office has no title, he would be ousted from that office by judicial order . In other words, the procedure of quo warranto gives the judiciary a weapon to control the executive from making appointments to public office against law and to protect a citizen from being deprived of public office to which he has a right. These proceedings also tend to protect the public from usurpers of public office, who might be allowed to continue either with the connivance of the executive or by reasons of its apathy . Thus, we are persuaded to hold that the petitioner has locus standi to file writ in the nature of quo warranto challenging the competency of the respondent No.3 whether to hold the of fice of Director General, GDA, Abbottabad or otherwise.
8. Now turning to the other contentions of the learned counsel for the parties. In the present case, appointment of Director General, Galiyat Development Authority is governed by Section 10 of the Galiyat Development Authority Act, 2016. It will be appropriate to reproduce section 10 of the Act ibid as under:- "10. Appointment and terms of office of Director General.--- 1 (1) Government may post a Government Officer, not below the rank of BPS-20, from a panel of three (03) officers duly recommended by the Authority , to act as Director General of the Authority for a term not exceeding 03 years.
(2) Notwithstanding the expiration of three (03) years term of his office, the Director General shall continue to hold office till his successor enters upon his office; provided that the process of new Director General shall be completed within six (06) months from the date on which the term of three (03) years of the existing Director General is expired.
(3) ...........
(a) ........... (b) ..........
(c) ..........
(d) .........
(4) .........
(a) ........
(b) .........
(c) ......... (d) ......... (e) .........
(f) .......... (5) ..........
The Galiyat Development Authority Act, 2016 was amended through Galiyat Deve lopment Authority (Amendment)
Act, 2020. It will be appropriate to refer to the amendment made in section 10 of the Act of 2016, which reads as under:- "8. Amendment of Section 10 of KPK Act No.XII of 2016... In the said Act, in section 10,-
(a) For sub-section(1) the following shall be substituted, merely-
(1) Government may post a Government Officer, not below the rank of BPS-19, to act as Director General of the Authority for a term not exceeding three (03) years, and
(b) After sub-section(5) the following new sub-section shall be added, namely:
(6) save as otherwise provided the executive authority shall vest in and he examined by the Director General."
Admittedly , the respondent was serving as an officer in BPS-18 in Pakistan Railways. He was posted as Director
(Admn) Galiyat Development Authority , Abbottabad in his own pay scale, on deputation basis. He was also given additional charge of the post of Director General Galiyat Development Authority , till further orders vide notification No.SO (E=1) E&AD/3- 283/2018 dated 24.9.2018. The said Notification is reproduced for the sake of convenience, which reads as under:- "The competent authority is pleased to post Mr. Raza Ali Habib (BS-18 officer of Railways) awaiting posting in Establishment Department as Director (Admn), Galiyat Development Authority , Abbottabad, in his own pay and scale, on deputation basis, on standard terms & conditions, against the vacant post, in the public interest, with immediate ef fect.
2. He will also hold additional charge of the post of Director General, Galiyat Development Authority , till further orders."
Whereafter , Notification No.SO (E-I)E&AC/3-283/2020 dated 29.09.2020, was issued in exercise of powers conferred under section 10 of the Act of 2016, where-under respondent No.3 was appointed as Director General Galiyat Development Authority , Abbottabad, the said Notification is reproduced as follows: "In exercise of powers conferred under Section 10 of Galiyat Development Authority Act, 2016, the Government of Khyber Pakhtunkhwa is pleased to appoint Mr. Raza Ali Habib (BS-18 RCTG), Director (Admn), Galiyat Development Authority (GDA), Abbottabad as Director General, Galiyat Development Authority (GDA)
Abbottabad, in his own pay and scale, against the vacant post, on deputation basis, for a period of three years, in the public interest, with immediate ef fect.
2. Terms & conditions of his appointment will be settled in consultation with Finance Department, later on."
9. Realizing the mistake that petitioner being an officer of BS-18, cannot be posted as Director General, Galiyat Development Authority , Abbottabad, vide notification No.Nil dated 26.08.2021, he was appointed on Acting Charge basis in BS-19 with ef fect from 1st April, 2021. W e deem it necessary to reproduce the said notification as follows:- "Mr. Raza Ali Habib, a BS-18 officer of Pakistan Railways (Commercial & Transportation) Group, presently posted under Government of the Khyber Pakhtun khwa, is appointed to BS-19, on Acting Charge Basis, in that service, with effect from 1st April, 2021.
2. On appointment, the services of Mr. Raza Ali Habib will remain at the disposa l of Government of the Khyber Pakhtunkhwa, until further orders."
10. Now turning to the merits of the case.
The procedure provided under the ESTA CODE requires that a person, who is transferred and appointed on deputation must be a Government Servant and such transfer should be made through the process of selection. The borrowing department has to establish exigency in the first place and then the person who is being transferred/placed/lodged on deputation, must have matching qualifications, expertise in the field with required experience. In absence of these conditions, the Government cannot appoint anyone by transfer on deputation. It is pertinent to mention here that the deputationist has to follow the rules and regulations of the borrowing department. In the instant case no evidence was laid before us to satisfy the above conditions.
11. It is evident from the notification dated 24.09.2018 and notification dated 29.09.2020, as discussed in the preceding paras that, the respondent No.3 was serving in BPS-18 in Pakistan Railways. He was posted as Director General after amendment in Section 10 of the Act of 2016, reducing it from BPS-20 to BPS-19. Even, after amendment, no officer below the rank of BS-19 can be posted / appointed against the post of Director General for a term not exceeding three years. It is by now settled that neglect of the plain requirement of a statutory law, which provides how something is to be done, will invalidate the thing being done in some other manner .
12. No doubt, in order to rectify the mistake the respondent was appointed in BPS-19 on acting charge basis vide notification dated 26.08.2021 in the Servic e of Galiyat Development Authority from back date i.e. 1st April, 2021, till March, 2021, respondent No.3 was servi ng in BPS-18. It is by now settled that acting charge promotion could be given if a post was reserved for departmental promotion and the most senior civil servant belonging to the cadre or service concerned, who was otherwise eligible for promotion did not possess specified length of service at the time of his promotion. Admittedly , respondent No.3 is an employee of the Federal Government; it is not understandable that how the Ministry of Railways can appoint him on Acting Charge basis in the service of Galiyat Development Authority , which is a provincial Governme nt department. It seems that entire exercise was carried out to give undue favour to the respondent No.3 and to justify his posting as Director General (GDA) who is holding this office for more than four and half years.
13. For the foregoing reasons, we hold that the appointment of the respondent No.3, as Director General, Galiyat Development Authority , Abbottabad, was made in violation of section 10 of the Galiyat Development Authority (Amendment) Act, 2020, in excess of authority . As a result, this constitutional petition is accepted and appointment of respondent No.3, as Director General, Galiyat Development Authority , Abbottabad, is declared as illegal, without lawful authority and of no legal ef fect.
14. Before parting with the judgment, we observe that the concept of power under the constitution of Pakistan is distinct from other constitutions of comm on law countries. Under the constitution of Islamic Republic of Pakistan 1973, the sovereignty vests in Allah Almighty and it is to be exercised by "the people within the limits prescribed by Him" as a sacred trust. The authorities in Pakistan, while exercising powers must keep in mind that it is not their prerogative, but a trust reposed in them by Allah and the constitution. It has come to our notice that many appointments in the past have been made in violation of the statutory enactments, rules and regulations or on extraneous consideration. Thus, the Heads of the Departments are directed to make all appointments / postings in future, strictly in accordance with the law and rules applicable to the case. The public functionaries are also directed not to follow the illegal orders/instructions issued by the concerned ministries or any other authorities while making such appointments/postings. Copy of this judgment be sent to the worthy Chief Secretary , Government of Khyber Pakhtunkhwa, for information, compliance and onward circulation to all concerned.