1. ANWARUL HAQ, J.-This appeal, by leave of the Court, has arisen out of the dismissal in limine, by a Division Bench of the former High Court of West Pakistan, of a Constitutional petition filed by the appellant to challenge the validity of the appointment of respondent No. 1, Rana M. Sultan, as Chief Inspector of Mines, Government of West Pakistan.
2. The post of Chief Inspector of Mines, West Pakistan, was advertised by the West Pakistan Public Service Commission on 6-12-69 in pursuance of a requisition placed on it by the Government of West Pakistan on the 9th of May 1968. The Government had indicated that the post was to be filled by initial recruitment in accordance with the method and qualifications laid down in the proposed recruitment rules which had been approved by the Service Rules Sub-Committee, but had not yet been formally promulgated. In the advertisement issued by the Commission, the qualifications prescribed for the post were-
(a) post-graduate degree in Mining Engineering from a recognised University; and
(b) ten years' experience in Mining Industry.
3. On the 9th of August 1969, the Commission sent a communication to the Secretary to the Government of West Pakistan in the Labour Department, intimating that in response to their advertisement five applications had been received, and the Public Service Commission had summoned only one candidate for interview. At the interview, the Commission was assisted in an advisory capacity by the Secretary to the Government of West Pakistan in the Labour Department and the Head of the Mining Engineering Depart--ment of the Engineering University, Lahore. The Commission regarded the respondent Rana M. Sultan as suitable for appointment and recommended him accordingly. The Government accepted this recommendation and the respondent assumed his appointment with effect from the 9th of October 1969.
4. Two months later, the same learned counsel instituted Writ Petition No. 254 of 1970, on behalf of the present appellant, M. U. A. Khan, a Mine Owner and resident of village Waugran in Tehsil and District Jhelum, on identical grounds to challenge the appointment of the respondent, and praying for the issuance of a writ in the nature of quo warranto against him. It was contended that-
(a) the rules framed by the Government under section 29 of the Mines Act prescribing the qualifications for persons to be appointed as Chief Inspector were ultra vires inasmuch as the rules were issued without following the procedure as laid down - in the Act, and that, in particular, the provisions of section 31 thereof, which require that the draft of the regulations for prescribing the qualifications of the Chief Inspector or Inspector shall be referred to the Mining Board for its approval after examining their expediency and suitability, were disregarded; and
(b) assuming that the rules were competently framed, the respondent did not possess a post- graduate degree in Mining Engineering from a recognised University, which term, according to the definition contained in the rules, meant any University incorporated by law in Pakistan or any other University declared by the Government in consultation with the Commission to be a recognised University.
5. Both jhe contentions were repelled by the learned Judges in the High Court, by their order dated the 24th of February 1970. They observed that the first contention could be examined only if a petition in that behalf had been presented by an aggrieved person, but the petitioner before them was not such a person. As to the second ground of attack, they expressed the view that the University of Stanford, California, U. S. A., was a well-known University, and it was too late in the day to urge that a person qualified from this University was not good enough to hold a job under the Government of West Pakistan. They added that even if it were to be conceded that this was not a recognised University, it would be a mere technicality, which would not justify the exercise of the equitable jurisdiction of the High Court. The learned Judges also took note of the fact that the previous attempt to dislodge the respondent had failed, and the fresh petition before them was also aimed at the same purpose, but through another person. Finally, they expressed the view that "this petition could have been thrown out for the simple reason that we have no jurisdiction under the present Constitution to issue a writ of quo warranto".
6. Leave to appeal was granted to examine the question of the competency of the writ petition, as also of the validity of the respondent's appointment under the rules and the vires of the rules themselves.
7. After hearing the learned counsel for the parties, we are of the view that this appeal must be dismissed, and the order of the High Court dismissing the appellant's petition in limine maintained, although for reasons somewhat different from those given by the High Court.
8. At the relevant time, the maintainability of the appellant's writ petition had to be judged in the light of the provisions contained in Article 98 of the 1962 Constitution. Clause (2) of this Article contains three distinct sub- clauses-(a), (b) and (c)-conferring specific powers on the High Court to make orders of different kinds in different situations. While sub-clauses (a) and (c) are prefaced with the words "on the application of any aggrieved party", sub-clause-(b) significantly omits the phrase "aggrieved party" and is instead worded thus:- "(b) On the application of any person make an order-
(i) directing that a person in custody in the Province be brought before the High Court 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 in the province holding or purporting to hold a public office to show under what authority of law he claims to hold that office."
9. It will be seen that for the purposes of applications contemplated under sub-clause (b) the petitioner did not have to be an aggrieved party; he could lie "any person". The reason for this distinction between the position of A the petitioner under sub-clauses (a) and (c) on the one hand and sub--clause (b) on the other is that the matters contemplated by sub-clause (b) are of public importance and interest, and it is enough that they are brought to the notice of the Court, without the petitioner having any personal] -interest in the matter. The High Court was, therefore, in error in thinking, that the petitioner before them had to be an aggrieved party for the purposes .Of urging any of the grounds against the validity of the respondent's .Appointment to a public office. The learned counsel for the respondent frankly conceded that he could not defend the view expressed in this behalf by the High Court.
10. There can be little doubt that the appointment held by the respondent :is in the nature of a public office. As pointed out by this Court in Masudul Hassan v. Khadim Hussain (PLD 1963 SC 203), a public office is an office created ,by the State, by charter or by statute, when the duties attached to the office .Are of a public nature. In the instant case, the office of the Chief Inspector .Of Mines is a statutory office created by the State under section 4 of the B Mines Act. The duties and functions of this office are also of a public mature, dealing with the regulation of 'the working of mines in the Province. It is, therefore, clear that the petition instituted by the appellant was maintainable under sub-clause ONO of clause (2) of Article 98 of the 1962 Constitution read with the Provisional Constitution Order, 1969.
11. Coming now to the merits of the grounds urged against the validity of -the respondent's appointment as Chief Inspector of Mines, we find that they .Are untenable, and also mutually contradictory. It will be recalled that the .Appellant challenged the validity of the rules under which the appointment -was made. If this contention is accepted, then the legal position would be that there were no rules in existence at the time the appointment was made by the Provincial Government. Such being the case, all that was necessary under subsection (1) of section 4 of the Act was that the Provincial Government should appoint a "duly qualified person" as Chief Inspector of Mines. The respondent was indeed a "duly qualified person", as he held a degree in Mining Engineering from the Punjab University, a post-graduate degree in the same subject from Stanford University, California, U. S. A., and had more than ten years' experience in the Mining Industry, having joined the Mining Department as an Assistant Inspector of Mines on 6-3-58. He was, therefore, properly and validly appointed in terms of the statute.
12. It was submitted by Mr. Munir Ahmad, the learned counsel for the :appellant, that no regulations having been framed by the Provincial Govern--ment under section 29(a) of the Act, the Chief Inspector of Mines could not 'be appointed at all on account of the failure of the Provincial Government to prescribe the necessary qualifications for the appointment. The learned counsel did not cite any authority in support of this proposition, which amounts to saying that the functioning of a Government Department can be brought to a standstill simply on account of the failure of the Provincial Government to make or promulgate subsidiary legislation, in the shape of Rules and regulations for carrying out the purposes of the parent statute.
13. The argument of the learned counsel proceeds on a misconception of the true scope and meaning of the enabling provisions contained in section 29 .Of the Act. This section opens with the words "The appropriate Government may, by notification in the official Gazette, make regulations consistent with this Act for all or any of the following purposes, namely . . . . ." Then follow 22 clauses indicating the subjects or matters on which regulations can be framed. In the present case, we are concerned only with clause (a) namely, "for prescribing the qualifications to be required by a person for appointment as Chief Inspector or Inspector".
14. It is universally recognised that as regulatory statutes have to deal with a variety of situations and subjects, it is not possible for the Legislature itself to make detailed regulations concerning them, and, therefore, they Legislature delegates its power to specified or designated authorities to make such detailed regulations, consistent with the statute, for carrying out the purposes of the parent legislation. The power so conferred is generally in c the nature of an enabling provision, intended to further the object of the statute, and not to obstruct and stultify the same. As a consequence, the failure or omission of the designated authority to frame the necessary rules and regulations, in exercise of the power conferred on it by the Legislature, cannot be construed as having the effect of rendering the statute nugatory and unworkable. Such an eventuality could arise only if the Legislature indicates an intention to this effect in clear and unmistakable terms.
15. Now in the present case, if the Legislature had intended that the appointment of the Chief Inspector of Mints could not be made at all until such time as rules or regulations had been framed in terms of section 29(a) of the Act then section 4(1) of the Act would have been so worded as to include a stipulation to the effect that "the appropriate Government may by notification in the official Gazette, appoint a person qualified in accordance with the regulation made under section 29(a) of the Act, to be Chief Inspector of Mines .." The relevant section, however, does not contain any such prescription, but contemplates only that the appropriate Government may appoint a "duly qualified person" to be Chief Inspector of Mines. It is, therefore, clear that effect could be given to the command of the Legislature even without the framing of the regulation under section 29(a) of the Act. As a result, the failure of the Provincial Govern--ment to frame the necessary regulation under section 29(a) of the Act did not have the effect of preventing the appointment of the Chief Inspector of Mines who holds a public office and is called upon to perform duties of a public nature concerning the working of mines in the Province.
16. It is correct that the necessary regulation under section 29(a) of the Act, prescribing the qualifications to be required of a person for appointment as Chief Inspector or Inspector, was not framed by the Provincial Government, and instead the Governor of West Pakistan promulgated the West Pakistan Inspectorate of Mines (Gazetted Post) Recruitment Rules, 1968, in exercise of the powers conferred on him by clause (2) of Article 178 and Article 179 of the 1962 Constitution. The authority conferred by these two Articles of the said Constitution embraced both regular and temporary services of the Province, and was certainly wider in scope, and on a higher plane, than the authority conferred by a sub-constitutional legislation. We are, therefore, in no doubt that, in the absence of a regulation under section 29(a) of the Mines Act, the appointment of the officers of the Inspectorate of Mines, including the Chief Inspector, could validly be made under section 4(1) of the Act read with the Rules just mentioned. rule 7(1) the candidates were required to possess qualifications mentioned in Appendix A against each category of posts. In respect of the Chief Inspector of Mines the prescribed qualifications are a post-graduate degree in Mining Engineering and ten years' experience in Mining Industry. There is no stipulation that the post-graduate degree should be from a recognised University, as that term is defined in clause (i) of rule 2. However, this qualification is specifically mentioned in Appendix `A' against the post of Junior Inspectors of Mines and it is also mentioned in rule 5(5), with regard to the Chief Inspector of Mines, when the vacancy is to be filled by transfer of a person already employed in any department of the Provincial or Central Government. From this difference in phraseology, it is possible to deduce the intention of the rule-making authority that the post- graduate degree in Mining Engineering, necessary for initial recruitment to the post of Chief Inspector, could be from any University, and not necessarily from a recognised University as defined in the Rules. On this view of the matter, no fault could be found with the eligibility of the respondent for the appointment concerned.
17. Assuming, however, that it was a necessary requirement that the person concerned should hold a post-graduate degree in Mining Engineering from a recognised University, we consider that even this requirement was amply fulfilled in this case. The term "recognised University" has been defined in clause (i) of rule 2 as meaning "any University incorporated by law in Pakistan or any other University declared by Government in consultation with the Commission to be a recognised University for the purposes of these rules." On behalf of the appellant, an attempt was made to show that the Stanford University of California had not been accorded formal recognition by the Government in consultation with the Commission, and for this purpose our attention was drawn to a series of communications exchanged between the Public Service Commission and the Provincial Government.. On the other hand, Mr. Ijaz Batalvi, the learned counsel for the respondent,. As well as the learned Assistant Advocate-General, appearing for the --Provincial Government, drew our attention to some other letters, similarly exchanged, to the effect that the list maintained by the Inspectorate of Mines as regards recognised Universities was hopelessly out of date as it did not-- include any American University.
18. However, it is rot necessary for us to refer to these letters. We find that even though the name of Stanford University, California, may not be included in any formal list of recognised Universities maintained by the Government, yet in this particular case recognition must be deemed to have been accorded by the fact that the two authorities, charged with the duty and power of doing so, namely, the Provincial Government and the Public Service Commission, had concurred in accepting the post-graduate qualifica--petition possessed by the respondent as satisfying the requirements of the rules. The Public Service Commission had found the respondent as the only suitable candidate from among all those who had applied for the post, and this recommendation was arrived at with the advice of the Secretary to they Provincial Government in the relevant department. They further had the benefit of the advice of the Head of the Mining Engineering Department of the University of Engineering, Lahore. Thus, the Provincial Public Service Commission as well as the Provincial Government, acting through the Secretary of the department concerned, had indeed recognised Stanford University, California, for the purpose of the recruitment rules.
19. For the foregoing reasons. It becomes abundantly clear that no justifica--petition was made out for issuing any writ in the nature of quo warranto, requiring the respondent to show under what authority of law he was claiming to hold the office of the Chief Inspector of Mines. The appeal.
20. Therefore, fails and is dismissed with costs.
21. Before parting with the case, we cannot help remarking that the petition instituted by the present appellant, does indeed appear to be an extension of the litigation commenced against the respondent by an official of his own department. The appellant does not appear to have been motivated by any sense of public duty, and it is accordingly a matter of some regret that Mr. Munir Ahmed, Advocate, allowed himself to be engaged in this matter for the second time.
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