MUZAMIL AKHTAR SHABIR. Through this Intra Court Appeal, filed under Section 3 (2) of the Law Reforms Ordinance, 1972, the appellant has challenged the order of dismissal of his constitutional petition dated 25.10.2022 passed by learned Single Judge in Chambers.
2. Through the said constitutional petition, the appellant had prayed for declaring the actions of respondent No. 2/Government of Punjab through Principal Secretary of the Chief Minister, Punjab, and respondent No. 3/Ghulam Mehmood Dogar, CCPO, Lahore, in defying the Notification issued by the Federal Government dated 20.09.2022 transferring respondent No.3 from his place of posting in Government of the Punjab with direction to report to Establishment Division of the Federal Government, with immediate effect, to be declared as illegal, void ab initio and devoid of force of law. Further prayer was made to direct respondent No. 3 to immediately report back to the Federal Government and the respondent No. 2 to immediately relieve the respondent No. 3. The said petition was dismissed by the learned Single Judge in Chambers on the ground that the appellant had no nexus with the dispute subject matter of the petition and lacked locus standi to file the same and by declaring the petition as frivolous in nature and not maintainable, exemplary costs of Rs. 500,000/- (Rupees Five Lac) were imposed upon the appellant.
3. It is contended by learned counsel for the appellant that the learned Single Judge has not taken into consideration the fact that the petition filed by the appellant was in the nature of quo warranto which did not require the appellant to be an aggrieved person for the purpose of filing the same and any person was competent to lay information before the court for exercising the said jurisdiction, hence, the impugned order of the learned Single Judge according to the learned counsel for the appellant is not sustainable.
4. We have gone through the record of the case and the impugned order passed by learned Single Judge in Chambers. The perusal of record shows that respondent No. 3, who was appointed as CCPO, Lahore, was directed by the Establishment Division, Government of Pakistan, to report back to Establishment Division, with immediate effect vide Notification No. F.No. 12 (27)/93 E-3 (Police) dated 20.09.2022, the operative part of which is reproduced below:- "NOTIFICATION Mr. Ghulam Mahmood Dogar, a BS-21 Officer of Police Service of Pakistan presently serving under Government of the Punjab, is transferred and directed to report to Establishment Division, with immediate effect and until further orders.
(Ejaz Ahmad)
Section Officer to the Government of Pakistan"
5. The Government of the Punjab did not relieve the services of the said Officer/respondent No.3 enabling him to join the Establishment Division in terms of the afore-said Notification. The appellant filed constitutional petition by referring to some press clippings about the tussle that had cropped up between the Federal and the Provincial Governments relating to transfer, relieving and joining of place of posting by the said Officer and prayed for issuance of direction to the Provincial Government to relieve the said Officer in compliance of the orders passed by the Federal Government for the purpose of joining his services at the Establishment Division, Islamabad. In order to appreciate whether such a direction sought by the appellant could be issued while exercising powers of writ of quo warranto or mandamus/prohibition, it would be important to make reference to Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, reproduced hereinafter: "199. (1) Subject to the Constitution, a High Court may, if it is satisfied that no other adequate remedy is provided by law,--
(a) on the application of any aggrieved party, make an order--
(i) directing a person performing, within the territorial jurisdiction of the Court, functions in connection with the affairs of the Federation, a Province or a local authority, to refrain from doing anything he is not permitted by law to do, or to do anything he is required by law to do; or
(ii) declaring that any act done or proceeding taken within the territorial jurisdiction of the Court by a person performing functions in connection with the affairs of the Federation, a Province or a local authority has been done or taken without lawful authority and is of no legal effect; or
(b) on the application of any person, make an order--
(i) directing that a person in custody within the territorial jurisdiction of the Court be brought before it so that the Court may satisfy itself that he is not being held in custody without lawful authority or in an unlawful manner; or
(ii) requiring a person within the territorial jurisdiction of the Court holding or purporting to hold a public office to show under what authority of law he claims to hold that office ; or
6. The perusal of Article 199 (b)(ii) of the Constitution shows that a person performing duties in connection with affairs of the Federation could be required to show that under what authority he is holding a particular public office and for that purpose the petitioner therein may not be required to be an aggrieved person, however, in the instant matter the directions sought by the appellant were not merely confined to the afore-referred aspect of the matter rather the same include issuance of directions in the nature of writ of mandamus and prohibition against the respondents requiring them not to disobey the order of the Federal Government and for respondent No.2 Provincial Government to relieve the respondent No.3 from present place of posting to join the place where he has been transferred and such directions are beyond the mandate of Quo Warranto and fall within the power of this Court to issue writ of mandamus and prohibition under Article 199 1(a)(i) for which the appellant is required to be an aggrieved person to seek such an order. The position of difference of locus standi between writ Quo Warranto and mandamus may be further clarified by referring to principles laid down in judgments reproduced below.
7. The Hon'ble Supreme Court of Pakistan in judgment reported as 2005 SCMR 534 (SECRETARY FINANCE and others Versus GHULAM SAFDAR), has laid down as under:- "11. "Mandamus" literally means a command. It differs from writs of "prohibition" or "certiorari" in its demand for some activity on the part of the body or person to whom it is addressed, for the performance of public duty. In other words, it is a command directed to State or corporation, officer or, inferior Court, requiring the performance of a particular duty therein specified, which duty results from the official position of the party to whom the writ is directed, or from operation of law. The writ of mandamus is a high prerogative writ of a most extensive remedial nature and is, in form, a command issuing from the, High Court, directing any person, corporation, or inferior Court requiring him or them to do some particular thing therein specified which appertains to his or their office and is in the nature of a public duty. Its purpose is to do the justice; in all cases where there is a specified legal right and no specific legal remedy for enforcing such right; and it may issue in cases where, although there is an alternative legal remedy, yet such mode of redress is less convenient; beneficial and effective. To sum up, a writ of "mandamus" commands the person to whom it is addressed to perform some public or quasi public legal duty, which he has refused to perform, and the performance of which cannot be enforced by any other adequate legal remedy.
In the light of Constitutional mandate, subject to other conditions, it is absolutely necessary that the law should impose on the officer concerned the duty to do what he is refusing or omitting to do and that petitioner should be an aggrieved party having no other adequate and efficacious remedy."
8. The same principle has been reiterated in the judgment reported as PLD 2014 Lahore 92 (BANK OF PUNJAB through Group Head of its Special Projects Versus. ACCOUNTABILITY COURT NO. 1, LAHORE and 2 others), in which the Learned Division Bench of the Lahore High Court laid down as under:- "19. In order to invoke Constitutional jurisdiction under Article 199 of The Constitution of the Islamic Republic of Pakistan, seeking relief by way of writ of "Mandamus" or "Certiorari" there must be an "aggrieved party" calling in question "Action" or "Omission" of a person, functioning in connection with affairs of the Federation, a province or a local authority provided no other adequate remedy is available to such party."
"There is no cavil to the proposition that only aggrieved person can maintain the Constitutional petition for issuance of writ of "Certiorari" or "Mandamus"."
9. As regards the writ of Quo Warranto, the Islamabad High Court in case reported as PLD 2018 Isl.
127 (Dr. Farzana Bari v. Ministry of Law, Justice and Human Rights through Secretary and 3 others), has held that: "35. "Quo warranto literally means "by what warrant". It is issued to determine the right of a person holding an office and directing him to disclose under what authority he is holding that office. The purpose of the writ of quo warranto is to ensure that a public office is occupied by an authorized person only. The two conditions which are essential for the issuance of a writ of quo warranto are that (i) the appointment under challenge must be to a public office; and that (ii) the said appointment should have been made without the authority of law or in other words contrary to the relevant statutory provisions.
38. It is also well settled that in order for a writ of quo warranto to be issued, the office in question must be held in contravention of law. A case of a simple irregularity will not attract quo warranto.
In the case of Dr. Kamal Hossain v. Muhammad Sirajul Islam (PLD 1969 SC 42), it has been held that a writ of quo warranto is not to issue as a matter of course on sheer technicalities on a doctrinaire approach. In the case of Muhammad Rafique v. Muhammad Parvaiz (2005 SCMR 1829), it has been held that some minor irregularities, if any, in the appointment of the petitioner were not sufficient for the issuance of a writ of quo warranto against the petitioner."
10. For the purpose of locus standi, the question of requirement or otherwise of an aggrieved person to file writ of quo warranto and mandamus etc. came up for consideration in judgment reported as 2015 CLC 265 (PESHAWAR UNIVERSITY TEACHER'S ASSOCIATION (PUTA) through General Secretary and 3 others Versus GOVERNMENT OF KHYBER PAKHTUNKHWA through Chief Secretary and 4 others), in which the Learned Division Bench of the Peshawar High Court laid down as under:- "9. There is no doubt that the law on `standing' to invoke the writ jurisdiction of a High Court under Article 199 of the Constitution, which was previously strictly viewed, has with time developed to be more liberally construed. It is noted that as far as an "aggrieved" person, seeking, a writ of "Quo Warranto" or "Habeas Corpus", the "locus standi" of the said person is not decisive `qua' the maintainability of the petition, so filed. It is only in regard to the writ of "Mandamus", "Prohibition" and "Certiorari", that the "locus standi" of the person seeking the same would be relevant and crucial in regarding the maintainability of the petition.
10. The present petition, as drafted, was seeking issuance of a writ of "Prohibition, restraining the respondents from acting against the mandate of law, and also seeking a "Mandamus" to be issued, directing the Government to act in accordance with law. Surely, the "locus standi" of a person demanding from the Court, the issuance of writ in the nature of "Mandamus" or a "Prohibition" to the respondents officials performing the functions of the State, require "standing" under the law expressly vesting right in the said person to demand the same and for the respondents officials performing the functions of the State to be bound by the clear provisions of an expressed provision of the law."
11. Another aspect of the matter is that not everyone claiming to be associated with the dispute in some manner can challenge an order by filing constitutional petition in the nature of mandamus or certiorari and has to show the nexus with the impugned order whereby he has a right to challenge the said order. For instance in matter relating to Representation of the People Act, 1976, it was held that informer does not become a party in the legal sense of the term to the proceedings before the Election Tribunal and does not have a right to challenge the same by filing constitutional petition before the High Court. The relevant portion of judgment reported as PLD 2009 Supreme Court 644 (FEDERATION OF PAKISTAN and others Versus Mian MUHAMMAD NAWAZ SHARIF and others), is reproduced below, in which the Hon'ble Supreme Court of Pakistan has laid down as under:- "The informer however does not become a party in the legal sense of the term to the proceedings before the Tribunal. The Tribunal's order rejecting the information and declaring the candidate concerned qualified cannot be termed as an order adverse to the interest of the informer. Such informer, therefore, would not be an aggrieved person within the meaning of Article 199 of the Constitution entitling him to file petition for issuance of a writ of Certiorari or Mandamus."
"11. As the writ petitions filed before the Lahore High Court, eventually leading to the judgments under review, were for the issuance of either writ of Certiorari or Mandamus, they could have been maintained only by an aggrieved person within the meaning of Article 199 of the Constitution."
12. The power of this Court to issue various types of writs has been discussed in judgment reported as 2017 CLC Note 227 [SindhE) [DBE (Sharafuddin v. The Executive Engineer and 6 others), wherein it is held that courts do not interfere in the policy matters of the executive as it is against the principle of trichotomy of powers. The relevant portion is reproduced below:-.
"9. It may be relevant to mention here that the jurisdiction of High Court under Article 199 of the Constitution is of extraordinary nature. Constitution had conferred power on High Courts for enforcement of fundamental rights. Such power of High Courts includes issuance of orders, directions or writ of five kinds, namely, habeas corpus, mandamus, certiorari, prohibition and quo warranto, however, despite expensive nature, various limitations are required to be satisfied before jurisdiction is to be assumed by High Court. Jurisdiction cannot be exercised to interfere in the policy matters of the Executive as it is against the principle of trichotomy of powers."
13. It is for the relevant government to make policy as to where a government official is to be posted and whether or not he has to be relieved from present place of posting with one government to join place where he has been posted with the other government and courts at the behest of outsiders do not ordinarily interfere in said matters especially when the outsider has no nexus with the same. The appellant could not establish that how the relief sought in the petition falls within the ambit of quo warranto when the initial appointment of the respondent No. 3 to the post of CCPO, Lahore, was not shown to be in violation of the eligibility criteria. The subsequent order by the Establishment Division addressed to the respondent No.3 directing him to report to its office could not be implemented as the said officer admittedly had not been relieved by the Provincial Government, hence, the question of authority to hold the said office without having been relieved by the Provincial Government, which required further step to be taken by the Provincial Government despite orders passed by the Establishment Division, took away the said matter from the realm of Quo warranto to that of mandamus to be exercised by this Court for granting the relief sought by the appellant. The appellant has not been able to show that how on his asking, direction could be issued to the Provincial Government in the nature of mandamus to relieve the respondent No.3 from his present place of posting and how the respondent No.3 had no lawful authority to hold the said post, especially when he had not yet been relieved by the Provincial Government, without whose permission the respondent No.3 apparently could not have left the post held by him.
14. Consequently, the contention of the appellant that his petition was in the nature of quo warranto is not correct rather he was seeking a direction in the nature of mandamus against the respondent No.2 to relieve the respondent No. 3 to join his place of posting with the Establishment Division, for which purpose he was required to show that he was an aggrieved party in the matter, which the appellant has not been able to demonstrate, hence, learned Single Judge was justified to hold that appellant did not have any locus standi to file the petition resulting in dismissal of his petition, which order does not suffer from any illegality or jurisdictional defect, and we do not find any reason to interfere in the said order, which even otherwise is based on proper appreciation of record and law on the subject.
15. For what has been discussed above, this Intra Court Appeal being devoid of any merit is dismissed.