1. ' The petitioner who is working as Audit Officer in Sindh Textbook Board at Jamshoro filed the Constitution petition and has prayed the following relief:--
(1) Direct the respondent No,3 to explain under what authority he is holding the post of Chairman in presence of his subsisting disqualification.
(2) Restrain the respondent No,3 from acting, exercising and or performing the function of Chairman, Sindh Textbook Board which is against the provision of law, illegally and without lawful authority.
(3) Further direct the respondent No,1 to appoint a qualified person as Chairman, Sindh Textbook Board, Jamshoro and pass any other orders as deemed to be fit and proper under the circumstances.
2. ' The contention of the learned counsel for the petitioner is that the respondent No,3 who was appointed as Chairman with effect from 1st January, 1997 is disqualified to hold the post of Chairman or to be the Chief Executive of the Board for the simple reason that his wife Mst. Mehrun Nissa is proprietor of M/s. Zeenat Printers which is enrolled in the Sindh Textbook Board as registered publisher, as such, he is disqualified to be appointed as Chairman under section 4 of the Ordinance XII of 1970.
3. ' Perusal of section 4 would reveal that the Board shall consist of a Chairman, and not less than four and not more than six other members to be appointed by the Government. The Chairman shall be the Chief Executive of the Board. There is no qualification prescribed for the appointment of Chairman as Chairman of the Textbook Board. The contention of the learned counsel for the petitioner is based upon section 5(1)(c) which reads as follows:-- "(1)... (c). Has, knowingly acquired or continues to hold, directly or indirectly, or through a partner, any share or interest' in any contract or employment with or by or on behalf of the Board or in any land or property which in his knowledge is likely to benefit or has been fitted as a result of the operation of the Board; or... ... ..."
4. According to him that since the wife of respondent No,3 is proprietor of a publishing concern which is enrolled with the Textbook Board therefore, the writ of quo warranto could be issued and he could be asked as to under which authority of law he is exercising such position. This argument of the learned counsel of the petitioner completely overlooks that it is the power of the Government who may by an order in writing remove the Chairman if he incurred any disqualification. If at all any disqualification has been incurred by the respondent No,3 it is the power of the Government to take such action in terms of section 5 of the Ordinance No,XII of 1970. The respondent No,3 has no inherent disqualifications from being appointed as the Chairman of the Textbook Board.
5. ' The object of the writ of quo warranto is that no person should be allowed to usurp public office, which is not the case here.
6. ' The contention of the learned counsel for the petitioner that because the wife of respondent No,3 is publisher and owns a Printing Corporation therefore, it must be presumed that the respondent No,3 who is her husband must have some share or enjoy the benefits which his wife may derive. In the comments it has been stated that the concern of the wife of respondent No,3 is enrolled since 1972. Moreover the argument of the learned counsel for the petitioner is based upon presumption. It is well-settled principle of law that presumption howsoever strong it may be cannot be equated with proof. The respondent No,3 has not acquired or continues to hold directly or indirectly or through a partner any share or interest in any contract with or by or on behalf of the Board or in any land or property which in his knowledge is likely to benefit or has been fitted as a result of the operation of the Board. Even if that be so yet it is the power of the Government to remove the Chairman by order in writing but it will certainly not attract the quo warranto jurisdiction of this Court under Article 199 of the Constitution.
7. ' The respondent No,3 is not inherently disqualified to be appointed as a Chairman or continue as Chairman or the Chief Executive.
8. ' The learned counsel for the petitioner has relied on the following judgments:--
(1) Muhammad Aqil Khan v. Falak Sher 1981 CLC 1409.
(2) Muhammad Sadeque v. Syed Rafiq Ali PLD 1965 Dacca 330.
(3) Abdul Haq Kauser and another v. Alim Akhtar Shah and 2 others 1989 CLC 1907.
(4) Muhammad Ramzan v. Deputy Commissioner, Attock and another PLD 1992 Lahore 322.
(5) Muhammad Shafique Raja v. Government of Punjab 1991 CLC 617.
9. ' Perusal of these authorities would reveal that these are all distinguishable and not applicable in the circumstances of the present case. In the case of Muhammad Ramzan PLD 1992 Lahore 322 since the person was inherently qualified therefore the writ was rightly issued. In the case of Muhammad Shafi Raja 1991 CLC 617 since he was not appointed by competent authority therefore appropriate writ was issued and was restrained from performing functions as such. It is not the case of the petitioner here that his appointment is not valid nor he has been appointed by any competent'authority therefore such authority has no bearing on the case, of the petitioner. Equally in the case of Abdul Haq Kauser 1989 CLC 1907 the qualifications prescribed were not met and misrepresented his qualifications therefore, writ was issued. In this case the respondent No,3 has not misrepresented his qualifications nor he has acquired the post through any foul means as was the case in the reported matter. In the case of Muhammad Sadeque PLD 1965 Dacca 330 the person who was elected possessed inherent disqualification as such, quo warranto jurisdiction of the High Court was legally exercised. Equally in the case of Muhammad Aqil Khan 1981 CLC 1409 since there was inherent disqualification (as the person was employed in the Army service) therefore, it was declared by the Court that he was disqualified to be the member of Parliament.
10. Again such judgment is not applicable. Learned counsel for the respondent No,3 contended that the respondent No,3 is a civil servant and was not holding public office, he drew our attention to Article 260 of the Constitution. We invited his attention that the writ of quo warranto can be issued against any person as contemplated under Article 199(1)(b) and the definition of person is given in Article 199(5) of the Constitution. Since the respondent No,3 was holding office and person in terms of Article 199(5) of the Constitution therefore, amenable to writ jurisdiction. The learned counsel for the respondent No,3 subsequently conceded.
11. Since the respondent No,3 is not inherently disqualified to hold the office of Chairman nor any qualification is so prescribed under the law therefore, writ of quo warranto could not be exercised therefore, no case was made out to exercise writ jurisdiction under Article 199 of the Constitution.
12. Consequently, therefore we dismiss this petition in limine.
3. . Consequent upon the dismissal of the petition this application is also dismissed.