' JAVED IQBAL, J.---This is a Constitutional petition for issuance of writ of quo warranto under Article 199(1)(b)(ii) of the Constitution of Islamic Republic of Pakistan (hereinafter referred to as the Constitution) preferred on behalf of Ejaz Hussain with the following prayer:-- "It is, therefore, respectfully prayed that this honourable Court may graciously be pleased to issue an order in the nature of quo warranto:--
(i) requiring the respondent to show by what authority of law he claims to hold the public office of Mechanical Foreman in the Inspectorate of Mines Balochistan;
(ii) declaring that the respondent is holding the said public office without lawful authority, restraining him from acting in the office in which he is not entitled to act,
(iii) grant any other relief which may be deemed just and proper in the circumstances of the case."
2. Briefly stated the facts of the case are that Chief Inspector of Mines Balochistan Quetta, published an advertisement in Daily Jang, Quetta on 3rd March, 1994 inviting applications for appointment of Mechanical Foreman alongwith a few other posts in the Inspectorate of Mines Balochistan. Pursuant to that petitioner applied for the post of Mechanical Foreman (B-14) alongwith five other candidates and after qualifying written test held on 4th July, 1994 by the Chief Inspector of Mines was declared as successful and called for interview on 7-8-1994 conducted by the Departmental Selection Committee of the Inspectorate of Mines Balochistan, and finally selected for the post of Mechanical Foreman. The petitioner, however, could not get appointment order as Abdul Qayyum (respondent No, 1) was appointed vide appointment order dated 6th October, 1994 as Mechanical Foreman in spite of the fact that he was having a Diploma in Civil Engineering while prescribed and advertised requisite qualification was Diploma in Mechanical Engineering. The respondent was appointed without completion of necessary formalities such as written test and interview by the Selection Committee. Being aggrieved of it, the petitioner moved an application to the authorities concerned about his genuine grievances but with no avail, hence this Constitutional petition.
3. It is mainly contended by Mr. S.A.M. Quadri, Advocate on behalf of petitioner that respondent being not qualified in Mechanical Engineering is not eligible to hold the post of Mechanical Foreman and as such respondent is not validly holding the public office, and therefore, he has to be restrained from performing function as such by issuance of writ of quo warranto. It is next contended that the formalities mandatory in nature were never complied with and appointment has been made in violation of the prescribed procedure and relevant-service rules and as such, being unlawful the respondent has absolutely no right to perform his duties as Mechanical Foreman.
4. Chaudhary Ejaz Yousaf, Additional Advocate-General appeared on behalf of Chief Inspector of Mines (respondent No, 2) and strenuously controverted the position as canvassed by Mr. S.A.M.
Quadri, Advocate on behalf of petitioner. He urged vehemently that petitioner has no locus standi to move such petition being not an aggrieved person as no legal right whatsoever was vested in him, hence the question of its infringement does not arise. It is next urged that the Minister concerned was fully competent to make such appointment in view of the powers as conferred upon him and besides that the appointing authority was competent to make such appointment in exercise of powers as delegated under Rule 11 of Balochistan Civil Servants (Appointment, Promotion and Transfer) Rules, 1979. It is, however, conceded candidly that respondent No, 1 was not called for interview by the Selection Committee.
5. Notice to respondent No, 1 was issued through his office, but he deliberately avoided to it and preferred to remain absent and due to his lawful . Absence his salary was subsequently withheld by the office concerned.
6. We have carefully examined the respective contentions as adduced on behalf of petitioner and for respondent in the light of relevant provisions of law and record of the case. Before we could dilate upon the respective contentions of the parties let we discuss in brief the nature of writ of quo warranto issuance of which is the main prayer. "Quo warranto is special writ and was devised to meet this need which goes under the name quo warranto, that is to say it poses the question by what warrant or authority, the respondent holds or claims a particular office". (AIR 1954 Bom. 116).
We have no hesitation regarding our authority and we are fully competent for issuance of such writ under A Article 199(1)(b)(ii) of -the Constitution and by requiring a particular person with the territorial limits of this province to show under what authority of law he claims to hold that office, how he was elevated to that office and by whom and as such the appointing authority is not immune but is equally answerable to explain his competency under law. "A proceeding of a writ of quo warranto is initiated to test the validity of an appointment to a public office, and the petitioner does not seek to enforce any right of his as such, nor does he complain of non-performance of any duty towards him. What is in question is the right of respondent to hold an office of public nature".
(PLD 1964 (W.P.) Lah. 125). It seems proper to mention here a few words about public office which in our view cannot be confined to a limited definition which even otherwise is not possible. The Public Office however, has been defined as a right authority and duty Created and conferred by law, by which an individual is invested with some portion of the sovereign functions of the Government to be exercised by him for the benefit of the public. A person holding such public office which in the olden times was issued in the form of writ of quo warranto". (PLD 1966 Lah. 270). In Prem's Civil Practice the following observations has been made (2nd Edition, Volume 7, page 4805): "To make the office a public office, the pay must come out of national and not out of local funds, and the office must be public in the strict sense of that term is not enough that the due discharge of the duties of the office should be for the public benefit in a secondary and remote sense." (1891) 1 QB 594 (596, 597)).
7. In view of said background now we proceed to examine the legal and factual aspect of the matter. The contention as adduced by learned Additional Advocate-General on behalf of respondent No, 2 that petitioner has no locus standi to invoke the provisions as contained under Article 199(1)(b)(ii) of the Constitution, seems to be devoid of merits because any person irrespective of the fact whether he is aggrieved or not can question the validity of appointment of the holder of a Public Office and redress can be sought under Article 199 of the Constitution against the usurpation of a public office. (PLD .1963 SC 203; Rex v. Speyer (1916) 1 (KB) 595). "A writ of quo warranto can be issued at the instance of a private person, for "every subject has an interest in securing that public duties shall be executed only by those competent to exercise". PLD 1955 Sindh 96; PLD 1957 Kar. 387, PLD 1967 Lah. 227, PLD 1969 SC 42 and PLD 1965 Dacca 330).
8. It is an admitted position that the post of Mechanical Foreman was advertised on 10-3-1994 by Inspectorate of Mines Balochistan Labour and Manpower Department for the post of Mechanical Foreman (B-14) and the prescribed qualification was mentioned as Diploma in Mechanical Engineering plus 3 years' experience. The said advertisement seems to be in accordance with the notification which was issued to the Government of Balochistan in exercise of powers as conferred upon it under section 25 of the Balochistan Civil Servants Act, 1974 (IX, 1974) whereby additional amendment in the Appendix to the Balochistan Inspectorate of Mines (Grade 1--15) Technical Services Rules, 1982 was made whereby minimum qualification prescribed for appointment of Mechanical Foreman by initiate recruitment was Diploma in the Mechanical from recognised University or Board and three years' experience in Mechanical work. There is no ambiguity whatsoever in so far as the prescribed qualifications for the post of Mechanical Foreman are concerned. In response to the said advertisement, admittedly, the petitioner qualified written test and subsequently declared as successful by the Selection Committee. It is, however, not understandable that as to how respondent No, 1 was appointed in utter violation and disregard of the relevant rules as mentioned above. We have not been able to persuade ourselves to agree with Chaudhary Ejaz Yousaf Additional Advocate-General by whom it is contended that such appointment could have been made by the Minister in view of Rule 11 of the Balochistan Civil Servants (Appointment, Promotion and Transfer) Rules, 1979, which is reproduced hereinbelow for ready reference:-- "Initial appointments to posts in Grades 1 to 15 shall be made on the recommendations of the Departmental Selection Committee after the vacancies in Grades 3 to 15 have been advertised in newspapers."
9. A bare perusal would indicate that the Departmental Selection Committee has been authorised to make recommendation for all initial appointments (Grades 1--15) after advertising of the same in newspapers. No authority whatsoever has been given to Minister concerned for appointment of a person at his own and without recommendations of the Departmental Selection Committee. The learned Additional Advocate-General could not show any .Notification having the sanctity of law authorising the Minister either to bypass the recommendations of the Departmental Selection Committee or make appointment at his own. Such an illegal practice is required to be checked in order to minimise the legitimate and genuine grievances of the masses at large. It would be pertinent to note here at this juncture that Hon'ble Supreme Court has taken a serious view of such illegal practice by observing as under:-- "While inquiring into various complaints of violation of Fundamental/Human Rights, it has been found that the Federal Government, Provincial Governments, Statutory Bodies and the Public Authorities have been making initial recruitments, both ad hoc and regular, to posts and offices without publicly and properly advertising the vacancies and at times by converting ad hoc appointments into regular appointments. This practice is prima facie violative of Fundamental Rights (Article 18 of the Constitution) guaranteeing to every citizen freedom of profession. Subject to notice to all concerned, and subject to final orders after full hearing in the matter, it is ordered as an interim measure that the violation of this Fundamental/Human Right shall be discontinued forthwith. Steps shall immediately be taken to rectify, so as to bring the practice in accord with the Constitutional requirement."
(Human Rights Case No, 104 of 1992).
10. The abovementioned verdict was circulated by the Government of Balochistan Services and General Administration Department vide letter dated 3rd February, 1993 object whereof seems to be that the dictum of Hon'ble Supreme Court be followed in letter and spirit. The above appointment is also in contravention of the guideline as provided by the Hon'ble Supreme Court of Pakistan.
11. Here the question arises that what relief can be granted. We are, conscious of the fact that relief being discretionary cannot be granted ,without a concrete base and sufficient justification. The relief which can be granted in writ of quo warranto is that of manifold:--
(a) Imposing restriction on the performance of public duty by the person holding public office by means of injunction;
(b) Declaration of Public Office as vacant;
(c) Judicial scrutiny of the appointment orders assigning the Public Office; (PLD 1963 SC 203).
(d) Examining the competency of appointing authority.
(e) To assess the validity and legality of rules on the basis whereof such appointment was made;
(f) The removal of person holding Public Office.
12. In our view no legal and specific right vested in the petitioner has been infringed and it is the sole discretion of the appointing authority to make appointment, but in accordance with law, prevalent rules and prescribed procedure. No power whatsoever has been given to a Minister to pass any order in violation of the prevalent rules and any order passed by the Minister should have some legal sanctity behind it as law does not confer any authority on a Minister to act whimsically.
13. In the light of what has been stated above, we declare the post of Mechanical Foreman as vacant which shall be filled in accordance with prescribed procedure and prevalent Service Rules.
The Notification of even number, dated 6-10-1994 issued by Chief Inspector of Mines, whereby respondent No,1 was appointed, is resultantly declared as null and void. The petition is accordingly disposed of in abovementioned terms.