1. AJMAL MIAN, C.J.--By this pctiti6n, the petitioner has prayed for the following reliefs;.
2. "(i)Direct the respondent to show cause under what authority of law he claims to hold the public office of an Associate Professor at JPMC.
3. (ii)Upon being satisfied that the respondent holds the office without lawful authority direct his removal .From such office.
(iii) Grant such other relief as this Hon'ble Court deems just and proper in the circumstances." '
4. The petitioner is working as an Associate Professor of Micro Biology at the Jinnah Post Graduate- Medical. Centre, Karachi, hereinafter referred to as the JMPC. It seems that the Pakistan Medical and Dental Council, hereinafter referred to as the PMDC in pursuance of powers conferred on it under section 3 of the Pakistan Medical and Dental Council Ordinance, 1962, hereinafter referred to as the Ordinance, framed regulations inter alia prescribing the minimum qualification and experience required for appointing teachers in medical and dental institutions. It also seems that in April, 1986, the post of Associate Professor of Micro Biology at JPMC was advertised for direct appointment by the Federal Public Service Commission and the applications were invited from persons possessing the prescribed qualifications. It is the case of the petitioner that since the respondent holds M. Sc. Degree in Micro Biology from Karachi Universitv and an M. Phil degree in the Basic Science Factulty but does not hold a Basic Medical Degree or M. Phil degree recognized by the PMDC or a Ph. D. Or D. Sc, applied for the above aforesaid post though he was not qualified. It is also the case of the petitioner that in spite of the fact that the respondent was not qualified he was selected and appointed at the aforesaid post. The petitioner filed a complaint before the learned Acting Wafaqi Mohtasib who after hearing the parties held that the appointment was irregular and directed that the respondent's services were to be terminated according to law and the post be re- -advertised. Against which the respondent filed Constitutional Petition No.703 of 1988 and obtained an interim order suspending the above order of the learned Acting Wafaqi Mohtasib. The petitioner has, therefore, filed the above petition calling in question the respondent's right to hold the aforesaid alleged public office without being qualified for the same in terms of the mandatory requirement of law and hits prayed for the above reliefs.
5. When the above case had come up for hearing for Katcha Peshi on 1h-2-1989 we had issued pre- admission notice to the learned Deputy Attorney--General in order to assist us on the question, whether the above writ is competent or not as we were doubtful about the maintainability and we had also asked the learned counsel for the petitioner to satisfy us on this aspect.
6. The basic question for consideration is, as to whether the respondent holds a public office in terms of sub-clause (ii) of clause (h) of sub-Article (1), Article 199 of the Constitution, which empowers a His Court to require 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.
7. Mr. Sabihuddin Ahmed, learned counsel for the petitioner, in support of his submission that the respondent holds a public office has pointed out that Article 242 of the late Constitution of Pakistan, 1962 provided definition of `Public office' and so also interim Constitution of' 1972 but there is no definition given in the present Constitution of 1973. He further submitted that the above omission does not make any difference as the Court would have to give same definition as was given in the previous two Constitutions as it will be presumed that the framers of' the Constitution intended to use the above term in the same sense. The reliance has been placed in support of his above submission on the case of M. Abdul Bari and others v. West Pakistan Soil Reclamation Board, Lahore and others, reported in PLD 1966 SC 451, in which Hon'ble Supreme Court while construing the term "the occupiers rate" used in Punjab Soil Reclamation Act, 1952, held that the words defined in one statute used in similar connection in later statute are to be presumed to carry same meaning in absence of any contrary indication in a later statute.
8. " ---Public office' includes and- office in the service of Pakistan and membership of an Assembly."
9. Mr. Sabihuddin Ahmed, learned counsel lot the petitioner, has-also referred Io the case: of M.U.A.
10. Khan v. Rana M Sultan and another, reported in PLD 1974 S.C 228, in which the Hon'ble Supreme Court was pleased to hold that the office of Chief Inspector of Mines was a public office as it was created under section 4 of the Mines Act, 1923 and therefore, a writ of quo warranto in terms of Article 98(2)(b)(ii) of the late Constitution of Pakistan, 1902 could be issued. Mr. Sabihuddin Ahmed also referred to Black's Law Dictionary, fifth-Edition at page 1107 where the term "public office" has been defined as follows:- "Public office, Essential characteristics of 'public office' are (1) authority conferred by law, (2) fixed tenure of office, and (3) power to exercise some portion of soverign functions of Government; key element of such test is that `officer' is carrying out soverign function. Spring v. Constantino, 1908 Conn. 503, 302-A, 2d 871, 875, Essential elements to establish public position as `public office' are: position must be created by Constitution, legislature, or through authority conferred by legislature, portion of soverign power of Government must be delegated to position, duties and powers must be defined, directly or impliedly, by legislature or through legislative authority, duties must be performed independently without control of superior power other than law, and position must have sortie permanency and continuity. State v. Taylor, 2(0 Iowa 034, 144 N.W. 2d 289, 292."
11. On the other hand Mr. Qadir H. Sayeed, learned Deputy Attorncy---Gcneral, has referred to the following cases:- (i)R.T.H. Janjua v. National Shipping Corporation, reported n PLD 1974 SC 1-10 wherein the Supreme Court quoted with approval the following passage from Ferris on `Extraordinary Legal Remedies' at page 100, as:- "A public office is the right, authority and duty created and conferred by law by which an individual is vested with some portion of the soverign functions of the Government to be exercised by him for the benefit of the public, for the term and by the tenure prescribed by law. It implies a delegation of a portion of the soverign power. It is a trust conferred by public authority for a public purpose, embracing the ideas of tenure, duration, emoluments and duties."
12. (ii)Masudul Hassan v. Khadim Hussain and another, reported in PLD 1903 SC 203.In the above case, the Hon'hlc Supreme Court has held that a petition for writ of quo warranto can be issued upon the information placed by a person.
(iii) Dr. Hahihur Rahman v. The West Pakistan Public Service Commission, Lahore and 4 others, reported in PLD 1973 SC 144, in which it was held that a writ against the recommendation of Public Service Commission cannot he maintained as the President or Governor may not accept the recommendation of the Commission.
13. The consistent view of the Courts have been that in order to make an office as a public office, it should have been created by some law, that it should involve exercise of' some portion of soverign function and that the public should have some interest lo ensure that the person holding such office has the right to hold. In the instant case Mr. Sabihuddin Ahmed has not been able to point out any provision of any enactment, whereby the office of an Associate Professor of A Micro Biology in JPMC has been created nor he has been able to point out which soverign power the respondent exercises. However, he submitted that since to provide the medical education is the duty of the State, the respondent by teaching the same was discharging the duty of the State. We are unable to subscribe to the above submission that because the respondent is teaching Micro Biology, he is exercising any sovereign power.
14. We may observe that it is also a settled principle of law that a writ of quo warranto is a discretionary relief, which can be denied by the Court if it thinks that it will not be proper to issue the same. In the instant case, there seems to be personal dispute between the petitioner and the respondent as to the appointment to the above post, which prompted the petitioner to file the above petition and we, therefore, arc of the view that even if we were to hold that the, petitioner holds a public office, it is not a lit case for issuance of a writ of quo warranto. If we were to issue such a writ, civil servants may in order to settle disputes as to the promotion/appointment inter se between them, may press into service relief of quo warranto, which will not be in the interest of the smooth working of civil service.
15. The petition has no merits and, therefore, it is dismissed in limine.