1. BASHARAT AHMAD SHAIKH, J: --Respondent No.2, who was at the relevant time holding the post of Deputy Inspector-General of Police, was to reach the age of superannuation on 14th of September 1992 but an order was issued on 3rd of September 1992 for his re-appointment to the same post for a period of three years on "contract basis" with effect from the date of his superannuation.
2. Appellant Syed Muhammad Yousaf Shah, an officer of the Police Department serving as Prosecuting Inspector at the relevant time, filed a writ petition in the nature of quo warranto mainly on the ground that there was no legal provision providing that a person who retires after reaching the age of superannuation may be reappointed on "contract basis". The writ petition has been dismissed in limine. When a learned Judge of the High Court was about to hear the preliminary arguments the learned Additional Advocate --General appeared in the Court and prayed that an adjournment may be granted to him for filing comments in the case. The prayer was granted and parawise comments signed by the dealing Section Officer of the Services Department were filed in the Court. In the comments it was stated that the Government possessed the power of appointing a retired civil servant on "contract basis". Ch. Sarfraz Ali Khan also filed objections and, apart from repudiating the legal objections raised in respect of his appointment, alleged that filing of the writ petition was mala fide because it had been filed due to personal enmity. He averred that he (Ch. Sarfraz AU Khan) had suspended Muhammad Yousaf Shah for dereliction of duty and he was still under suspension. He alleged that in a previous writ petition filed by Syed Muhammad Yousaf Shah he (Ch. Sarfraz Ali Khan) had been arrayed as a respondent. With the objections an uncertified copy of an order passed by the Azad Jammu and Kashmir High Court in a writ petition, filed by Muhammad Yousaf Shah at an earlier occasion on 25th of October 1992, was also filed.
3. The learned Judge of the High Court after hearing arguments dismissed the writ petition on the grounds which are to the following effect:-- "(1) That the petitioner is a Prosecuting Inspector in the Police Department who has no present right to claim or hold the office of the DIG, at the same time he is not aspirant to the office which he intends to vacate, and he cannot be, for the reason that he has still to cross a pair of ladders to reach to the position of respondent No.2;
(2) though the appointment of a public office-holder can be challenged by any member of the public in a writ of quo warranto, but in that case credentials of the relator must be above board.
4. The petitioner in the instant case was suspended from the service by respondent No.2, an inquiry was ordered to be held against him and he had earlier filed a writ petition in this Court in which the respondent No.2 was arrayed as a party in the case."
5. Sardar Rafique Mahmood Khan, the learned counsel for the appellant, submitted that ground enumerated No.l above is not applicable in the present case because a writ of quo warranto can under law be filed by any person and he does not have to show that he would gain any benefit if the writ petition is accepted. However, the learned counsel submitted that if the post of Deputy Inspector-General of Police is vacated a Superintendent of Police would be promoted and promotions and vacancies will be caused in lower ranks and thus Syed Yousaf Shah would also be benefited. He met the other reason on which the order of the High Court is grounded by submitting that although there is nothing in section 44 of the Interim Constitution Act but even if it be accepted that a person who files a writ of quo warranto should be a bona fide relator, there is nothing on the record to substantiate the finding given by the High Court that Syed Muhammad Yousaf Shah was placed under suspension and an inquiry was ordered to be held against him by the respondent as has been held by the High Court. We have seen the file of the High Court. The only document which has been placed on the record, as already mentioned, is an uncertified copy of an earlier order passed by the High Court on 6th of June 1993 in a writ petition filed by Syed Muhammad Yousuf Shah. In that writ petition Inspector-General of Police, Deputy Inspector- General of Police Headquarters and Ch. Sarfraz Ali Khan, Deputy Inspector-General of Police Range, Muzaffarabad as well as Superintendent of Police Poonch, Rawalakot, are shown as respondents in the case. The opening paragraph of the order is as follows:-- This writ petition is directed against the orders passed by the Deputy Inspector-General of Police on 30-9-1992 and 11-10-1992. Under the former order, the petitioner is suspended from service and a case under anti-corruption laws is ordered to be registered against him, while under the latter order, the allotment of a piece of land in favour of the petitioner is recorded to be forged, concocted and illegal."
6. In the portion of the judgment reproduced above it has not been stated that it was Ch. Sarfraz Ali Khan who had suspended Syed Muhammad Yousaf Shah from service or that a wise under Anti- Corruption law was already registered against him under his orders. The order shows that it was passed by the Deputy Inspector-General of Police. In our view, prima facie, this is a reference to Deputy Inspector-General of Police who was respondent No.2. In the said order at a subsequent place there is again a reference to the Deputy Inspector-General of Police without clearly stating whether it was Deputy Inspector-General Headquarters or Deputy Inspector-General Range who had passed the order. We, therefore, find substance in the submission of the learned counsel for the appellant that the finding that Syed Muhammad Yousaf Shah was suspended by Ch. Sarfraz Ali Khan from service is not founded on any cogent evidence.
7. It was contended by Mr. Ghulam Mustafa Mughal, the learned counsel for the respondents, that Ch. Sarfraz Ali Khan in his capacity as Deputy Inspector-General of Police and Superintendent of Police has taken various actions against the appellant. He relied on copies of writ petitions filed by Syed Muhammad Yousaf Shah against Ch. Sarfraz Ali Khan and the judgment of the High Court, copies of which have been placed on the file of this Court. Some other documents, Annexures `C' to `C/8', have also been filed in this Court, as alleged, to "show the involvement of Ch. Sarfraz Ali Khan in his official capacity'". These documents were not before the High Court and cannot be'' considered by us. The only document which was before the High Court does not show that Syed Muhammad Yousaf Shah was not a bona fide relator.
8. The learned Judge has himself observed that a quo warranto writ can be filed by any member of the public. Therefore, the question whether the appellant would gain anything or not is immaterial and cannot become ground for dismissing the writ petition.
9. The order of the High Court, therefore, is unsustainable and has to be vacated. Since the writ petition has been dismissed in limine we are not in a position to go into the merits of the case. The case may be re-heard for deciding the points which have not been adjudicated upon in this order.
10. We, therefore, order accordingly.