SHAHID KHAN, J.- Petitioner has filed this petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, in the nature of quo warranto questioning the appointment of respondent No.11 as Labour Officer in the Labour Department.
2. Factual canvas of the instant petition is that the respondent No.11 was serving as Junior Clerk in the Gomal University D.I.Khan, and thereafter, because of his employment as Labour Officer vide order dated 20.10.2008 in the Industries, Commerce & Labour Department, Khyber Pakhtunkhwa, he was relieved from Gomal University vide office order dated 03.11.2008 and thereby his lien was retained for a period of two years. Respondent No.11 was then terminated vide letter dated 21.03.2009, and the Gomal University required him to join his services in the University due to retention of lien; but was again appointed on temporary basis as Assistant Labour Officer vide order dated 10.04.2009. His request for regularization was initially regretted and the Gomal University too terminated his lien. Thereafter, vide order dated 07.02.2013 his services as Assistant Labour Officer stood regularized. The petitioner raised objection on the method by which respondent No.11 was appointed as Assistant Labour Officer and then regularized, on the ground that owing to political backing the petitioner was appointed without observance of codal formalities and therefore, he is having no lawful authority to hold the post of Assistant Labour Officer.
3. In compliance of the directions of this Court, respondent No.4 submitted his Para-wise comments, wherein the issuance of desired writ was opposed. The respondent No.11 too filed his Para-wise comments and prayed for dismissal of the instant writ petition.
4. Arguments heard and record gone through.
5. The petitioner has filed instant petition in the nature of quo warrant questioning the appointment of respondent No.11 on the post of Assistant Labour Officer as well as his regularization on the said post. The main contention of the petitioner was that after dismissal of respondent No.11 from the post of Labour Officer, he did not joint back the Gomal University where his post was retained due to lien. Therefore, University Administration initiated departmental proceedings against respondent No.11 and his lien was terminated. In the meanwhile, he was re-appointed against the post of Assistant Labour Officer and the Labour Department initially refused to regularize his services, but thereafter his services were illegally regularized. Hence, his appointment is unjustified and he is incompetent to hold the office of Assistant Labour Officer.
6. In view of the arguments, advanced before us, the questions before this Court, for the purpose of determination, are that, 'whether the respondent No. 11 is justified to hold the post of Assistant labour officer or not?'
7. 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 reason of its apathy. It will, thus, be seen that before a person can effectively claim a writ of quo warranto, he has to satisfy the Court that the office in question is a public office and is held by a usurper without legal authority, and that inevitably would lead to the enquiry as to whether the appointment of the alleged usurper has been made in accordance with law or not.
8. There can be no denial of the fact that respondent ' No.11 was appointed on the post of Labour Officer on temporary basis till arrival of the promotee. On arrival of the promoted incumbent Labour Officer, the services of respondent No.11 were terminated and then he was appointed as Assistant Labour officer on the vacant post purely on temporary basis as a stopgap arrangement.
Initially his case of regularization was regretted by the authority, nevertheless, respondent No.11 again moved his case for reconsideration under the Khyber Pakhtunkhwa Employees (Regularization of Services) Act, 2009, which was forwarded to Establishment Department who vide letter No.S0 (O&M) E&AD/11-12/2010 V.II dated 27.06.2013 clarified that the case of respondent No.11 fall within the ambit of Sections 3 and 2(aa) of the said Act, accordingly, his services were regularized vide order dated 07.08.2013. We do not find any illegality or misuse of the authority or jurisdiction in the regularization order dated 07.08.2013. As far the disciplinary proceedings initiated by Carnal University against respondent No.11 are concerned, the same were commenced after relieving petitioner from the University and thereby his lien was terminated, which does not cast any bar upon the respondent No.11 to hold a public office.
9. Moreover, the Court while dealing with the writ of quo warrant cannot determine the legality or otherwise of the regularization order dated 07.08.2013; as a writ of quo warranto is not a substitute for mandamus or injunction nor for an appeal or writ of error, and is not to be used to prevent an exercise of power lawfully possessed, and its purpose is solely to prevent an officer or corporation or persons purporting to act as such from usurping a power which they do not have. In other words, a writ of quo warrant lies against a person, who is called upon to establish his legal entitlement to hold the office in question.
10. The jurisdiction of the High Court to issue a writ of quo warranto is a limited one and while issuing such a writ, the Court merely makes a public declaration only when the appointment is contrary to the statutory rules. In the instant case as discussed hereinabove, the Establishment Department vide its letter No.S0 (O&M) E&AD/11-12/2010 VII dated 27.06,2013 clarified that the case of respondent No.1 1 fall within the ambit of Sections 3 and 2(aa) of Khyber Pakhtunkhwa Employees (Regularization of Services) Act, 2009. Hence, a writ of quo warranto cannot be issued as there is no violation of statutory provisions. Besides, the impact of letter dated 27.06.2013 of the Establishment Department or other factors, which may be relevant for issuance of a writ of mandamus, cannot be considered in the instant petition.
11. The concept of locus standi which is strictly applicable to service jurisprudence for the purpose of canvassing the legality or correctness of the action should not be allowed to have any entry, for such allowance is likely to exceed the limits of quo warranto which is impermissible. The contention is raised pertaining to doctrine of delay and laches in filing the instant petition. There is a difference pertaining to personal interest or individual interest on one hand and an interest by a citizen as a relator to the court on the other. The principle of doctrine of delay and 'aches should not he allowed any play in the matter of quo warrant because the person holds the public office as a usurper and such continuance is to be prevented by the court. The Court is required to see that the larger public interest and the basic concept pertaining to good governance are not thrown to the winds. It is, however, established that in the instant case, public interest has not been infringed by respondent No.' I nor there is any violation of the statutory provisions in his appointment and regularization.
12. We deem it apposite to mention here that the respondent No.11 was previously holding the office of Labour Officer on temporary basis and he was relieved only because of the arrival of regular incumbent, thereafter he was appointed against an inferior post of Assistant Labour Officer. A person who possesses the qualification for appointment against a post of higher grade, cannot be said to be lacking in the qualification to hold an inferior post.
13. The High Court in exercise of its writ jurisdiction in a matter of this nature is required to determine at the outset as to whether a case has been made out for issuance of a writ of certiorari or a writ of quo warranto or it is motivated by mala fide to gain some undue advantage as a proxy and driving force for others. While rendering this view, we are fortified by the dictum laid down by the august Supreme Court of Pakistan in the case of Jawad Ahmad Mir Vs. Prof Dr. Imtiaz Ali Khan, Vice Chancellor, University of Swabi, District Swabi, Khyber Pakhtunkhwa and others"
(2023 SCMR 162).
14. It is worthy to mention that prior to the instant petition, two other petitions of the same nature having almost same prayer and facts were filed before this Court but later-on withdrawn. In this context copies of writ petition No.297- D/2017 titled "Obaidullah Vs. Government of Khyber Pakhtunkhwa & others" and its withdrawal order dated 17.06.2020, as well as writ petition No.1012- D/2017 titled "Attiq-ur-Rehman Vs. Government of Khyber Pakhtunkhwa & others" and its withdrawal order dated 17.06.2020 have been placed on record through CM No.03-D/2023. Thus, the petitioner does not seem to have come to the court with clean hands particularly when he belongs to District Faisalabad of Province of Punjab and the matter pertains to the province of Khyber Pakhtunkhwa and his all claims are recap of the earlier filed writ petitions. The worthy Apex Court of the country while deciding the case titled "Ghulam Shabbir Vs. Muhammad Munk Abbasi and others" (PLD 2011 Supreme Court 516) was pleased to observe: "Insofar as maintainability of the Petition is concerned it would be seen that per settled law a writ of quo warranto is not issued as a matter of course. The Court can and will enquire into the conduct and motive of the petitioner. However, no precise rules can be laid down for the exercise of discretion by the Court in granting or refusing the same and each aspect of the case is to be considered. There is also no cavil with the argument that in such cases it is not necessary that the petitioner be an aggrieved person and further that if .it is established that the petitioner has approached the Court with ulterior motive, mala fide intention etc. relief can be declined."
15. In view of the foregoing discussion, the appointment of respondent No.11 as Assistant Labour Officer and then his regularization was in accordance with law and he is not a usurper of the public office. Termination of the lien of an employee cannot debar him from holding any public office. The instant writ petition is devoid of merits and therefore, the same stands dismissed whereas, the listed CMA stands disposed of for having become infi-uctuous.