' The petitioner through this Constitutional petition has prayed for issuance of a writ of quo warranto directing respondent No,3 to show under what authority of law he is holding the Public Office of the Chief Engineer, Buildings North Zone, Lahore.
2. The relevant facts are that respondent No,3 was serving as Superintending Engineer, Provincial Buildings Circle, Rawalpindi, in the year 1983 when he was retired prematurely from service with immediate effect vide Notification dated 20-10-1983, issued by the Government of the Punjab, Communication and Works Department. This action was taken under CMLO 17. The remedy provided under that statute was review application, which was to be moved within one month of the order. The same was not availed by respondent No,3. Therefore, the order became final.
3. The petition was admitted to regular hearing and notices were issued to the respondents, who have entered appearance and contested the petition.
4. The learned counsel for the petitioner argued that the order of 'pardon' made by the Governor/MLA cannot be construed a direction for re-instatement. It is added that the Governor's Inspection Team noticed discrepancies and irregularities in respect of maintenance of Works of Provincial Buildings. The same was reported to the Martial Law Authorities, who decided to initiate an inquiry against respondent No,3. The inquiry report held him guilty and he was ultimately directed to appear before the Martial Law Authorities on 20-12-1982 where he was served with a show-cause notice. The petitioner was ultimately found guilty and his premature retirement was ordered. It is submitted that the pardon was granted only in respect of the allegations, the subject- matter of inquiry and show-cause notice.
5. On the other hand, the learned counsel for respondent No,3 argued that his client did submit a review petition, a carbon copy of which is Annexure 'R/2' with the written statement. It is submitted that his client was granted pardon. The same amounted to exoneration from all charges. A copy of the order of pardon was forwarded to respondent No,2, who rightly proceeded to issue notification of reinstatement of his client. It is added that the writ petition has been actuated by malice and one Aftab Khan is the person behind the scene. It is added that there is professional jealousy between rival groups of Electrical and Mechanical Engineers and the Civil Engineers in the department. The arguments are summed up with the submission that there is nothing wrong with the order of reinstatement, which will be deemed to have been passed by the M L A/Governor. The learned Additional Advocate-General appearing for respondents Nos. 1 and 2 adopted the arguments advanced by the learned counsel for respondent No,3.
6. The learned counsel for the petitioner in reply to the arguments submitted that the word 'pardon' does not include within its folds "reinstatement" by any stretch of imagination. In this behalf he has referred to the judgment of this Court in Writ Petition No,97/S of 1986 decided by my learned brother Muhammad Amir Malik, J. The petitioners prayed for issuance of a writ directing the C.B.R. To reinstate them in service. In that case, the petitioners were convicted by the Summary Military Court No,52. They were, however, granted `pardon'. On that basis they claimed re-instatement but the Government refused. Then they filed writ petition, which was dismissed in limine. It is added that the petitioner had only one remedy by way of review. The respondent No,3 submitted that he had filed the review but did not produce any order passed on it. Therefore, there was no occasion to reinstate. He also referred in this behalf to the order of pardon specially its subject to show that this order was not passed on the review application but on the mercy petition. The arguments are concluded with the submission that it was only the Governor/MLA, who could have reinstated and not Secretary of the Department. Again in this behalf the learned counsel has relied on the decision of Writ Petition No,97/S of 1986.
7. I have given my anxious consideration to the arguments of learned counsel for the parties. The main question for determination in this case is whether respondent No,3 was reinstated by the competent Authority? The contention of the said respondent is that the Governor/MLA granted him `pardon' and this amounted to setting aside the order of his retirement and respondent No,2 rightly and simply proceeded to implement this order by issuing the notification. The pivotal point on which the fate of this petition hinges is who was the competent Authority? The admitted position is that the order could have only been made by the Governor/MLA. The plea of respondent No,3 is that the order of 'pardon' dated 6-8-1984 amounted to setting aside the order of premature retirement. Therefore, before proceeding any further it is relevant to refer to the order of premature retirement dated 20-10-1983, which reads as under:- "GOVERNMENT OF THE PUNJAB COMMUNICATION & WORKS DEPARTMENT Dated Lahore the 20th October, 1983.
NOTIFICATION No, SOE II (C & W) 12-25/82.--ln exercise of the powers conferred upon him under CMLO-17 vide CMLA's Secretariat letter No,57/29 (1) IB/AJAG 78 dated the 19th August, 1978, the Governor/MLA, Zone `A', Punjab, is pleaded to order as under:-
(a) Following officers are dismissed from service with immediate effect:-
(b) Following officers are retired prematurely from service with immediate effect:-
(1) Mr. Akhtar Rashid Toosi, Superintending Engineer, Provincial Buildings, Circle Rawalpindi.
' A.H. ASL SECRETARY TO GOVT. Of THE PUN COMMUNICATION AND WORKS DEPARTMENT while the order of pardon reads as under:- "Secretary to Govt. Of Punjab Communication and Works Deptt. Lah ' Info: Akhtar Rashid Toosi 1-Shadman-XI with ref to your m ' Lahore-III. Petition submitted 3-7-1984.
Subject: Review Petition-Premature Retirement.
(1) On receipt of mercy petition from Mr. Akhtar Rashid Toosi (I Superintending Engineer) the case was considered at this H Governor/MLA is pleased to pardon him.
(2) Forwarded for your information and necessary action with intimation this HQ please."
It is on the basis of this letter that argument was advanced that it amounted reinstatement. It is not possible by applying any logic or principles of interpretation to treat the 'pardon' granted as reinstatement in service. Learned counsel for respondent No,3 vehemently argued that since the copy was forwarded for information and necessary action, to the respondent No,2, therefore, he was well within his rights to issue the notification of reinstatement which reads as under:- ' GOVERNMENT OF THE PUNJAB Dated Lahore the 12th August, 1984.
NOTIFICATION ' No, SOE TT (C&W) 12-52/82.--On consideration of a mercy petition of Mr. Akhtar Rashid Toosi, formerly Superintending Engineer, Provincial Buildings Circle Rawalpindi, in respect of his premature retirement from service ordered vide Notification of even number dated 20th October, 1983, the Governor/MLA Zone 'A' Punjab, has been pleased to pardon him. He is reinstated into service w,e,f. 20th October, 1983, the date on which he was retired prematurely.
(2) Since Mr. A.R. Toosi, has already proceeded on Haj he is directed to report to this Department I or duty and further posting orders immediately on his return. In the meanwhile he shall be treated as on leave ex-Pakistan for the performance of Haj, subject to title under Revised Leave Rules, 1981, with immediate effect."
(Underlining is mine).
Respondent No,2 misinterpreted and misconstrued the order of pardon and overstepped his authority and jurisdiction while issuing order of re-instatement of respondent No,3. This order is, therefore, void and reference in this behalf can be made to judgments in the case of Dr. Sher Bahadur Khan v. Government of West Pakistan (PLD 1956 (W.P.) Peshawar 77) and A.R. Azar v.
Federation of Pakistan (PLD 1958 Lahore 185).
8. The respondent No,2 has clearly assigned different meanings to the term `pardon' than its dictionary meanings as well as the meanings accepted by the Government in other cases as is clear from the judgment in W.P.No,97/S of 1986.
9. The term 'pardon' came up for interpretation before the Supreme Court of Pakistan in the case of Muhammad Asghar v. Government of Sindh (PLD 1977 S.C. 212) wherein it was held that pardon does not restore a convicted person to public office though it may remove disability for fresh grant or employment. The judgment of the Supreme Court in the case of Agha Aqeel Nasir v. Inspector- General, Police, Quetta (1984 SCMR 788) fully covers the proposition. Respondent No,3 maintained that he has submitted review application while it is clear from the order of pardon that the same was passed on the marcy petition dated 3-7-1984. The respondent 3 has not placed copy of the mercy petition on the record. This presumably is for the reason that it would have gone against him. It is interesting to note that the review application allegedly submitted by respondent No,3 and copy appended as Annexure `R/2' is not available on the record. Therefore, his plea that he made a review application cannot be accepted.
10. The contentions of the learned counsel for the petitioner that the respondent No,3 was proceeded against by the Governor's Inspection Team and was also summoned by the Martial Law Headquarter in connection with inquiry and charge-sheeted are clearly established from paras. 4 and 5 of Annexure `R/2'. Therefore, he rightly pointed out that the pardon was in respect of those allegations.
11. The moment the order of pardon is excluded from consideration the notification of reinstatement issued by respondent No,2 is rendered illegal and without jurisdiction. It is admitted between the parties that respondent No,2 had no authority and there is no order of reinstatement of respondent No,3 by the Governor/MLA.This way respondent No,3 has failed to show valid order of authority under which he is holding the public office
12. Learned counsel for respondent No,3 vehemently argued that the writ petition is mala fide and manoeuvred by his colleagues in order to knock out his client from competition with them for promotion. This argument does not arise in the writ of quo warranto where a citizen only draws the attention of the Court to call upon the respondent holding a public office to show cause under wha authority he is holding the said public office. The scope of quo warranto has been fully examined in the case of Dr. Sher Bahadur, A.R. Azar and the case of Kh Noorul Amin, Advocate v. Muhammad Naqi Khan (PLD 1990 Azad J & K 42).
12. The writ of quo warranto ought to be encouraged to keep check o Executive Authorities. The Constitution has scrapped the Rule of English La that King can do no wrong. I cannot express the same in better words than don by Mr. Justice M.R. Kayani in the case of A.R. Azar (supra). The relevant portion reads as under:- "Kayani, J. I add this note with a view to laying greater emphasis on the futility of the phrase "during pleasure" occurring in Article 180. I had occasion to say in an Introduction to a Commentary (Constitution Pakistan by C.M. Shafqat) that members of the public services were said to hold office during the pleasure of the President or the Governor, as though anyone could be dismissed by either of them at his pleasure. This, I said, was a vicious phrase and a vesting of royal prerogative, for that there is no one so superior in a democracy that his pleasure can cause such havoc, and the Constitution should not have been encumbered with a misleading expression. Even in the home of royal prerogative, the Crown Proceedings Act, 1947 has made it possible for a Government servant to sue the Crown in tort. The old decisions like I.M. Lall's applied in the context of sovereignty, and sovereignty now belongs to "Allah Almighty alone" says the preamble to the Constitution. Even if the preamble had been less pious, the King-can-do-no-wrong theory was by its very nature inapplicable to a democratic State."
13. The upshot of the above discussion is that this writ petition succeeds and allowed with costs. It is accordingly held that respondent No,3 is holding the G rice of the Chief Engineer, Buildings illegally and is restrained from performing functions as such.