This petition in the nature of quo warranto is directed against respondent No, 6 to show as to under what authority of law he is holding the office of Secretary (BPS-19), Printing Corporation of Pakistan, Islamabad.
2. By Government Notification dated 13-11-1995, the respondent No,6 while posted as Director, Export Promotion Bureau, Karachi, was transferred. His services were placed at the disposal of Cabinet Division for posting as Secretary, Printing Corporation of Pakistan. Respondent No, 6 assumed the charge of the said post on 30-11-1995. Respondent No, 1 issued the impugned office order dated 1- 9-1996, to the effect that respondent No,6 was confirmed as Secretary (BS-19) of the Corporation pursuant to the decision dated 28-8-1996 by the Board of Directors of the respondent-Corporation.
It appears that the representations made by the petitioner to the Federal Government as well as to the respondent-Corporation were not finally decided. The respondent No, 6 was appointed without decision of the same.
3. Learned counsel for the petitioner argued that under the Employees Service Rules, 1977 of the respondent-Corporation were statutory in nature having been framed under the Pakistan Essential Services (Maintenance) Act, 1952 read with the Pakistan Essential Services (Maintenance) Rules, 1952. Under the said Rules, the method of recruitment and the qualifications for the post of Secretary had been prescribed. It was stated that respondent No, 6 did not possess the requisite qualification of the Master's Degree with 15 years' experience of handling corporate and labour matters in an organization of repute or A.C.Is. with five years post qualification experience. His qualification was B.Sc.
4. My attention was drawn to the report and parawise comments to this petition submitted on behalf of Federation of Pakistan wherein it was pointed out that the respondent No, 6 did not fulfill the requisite qualifications for the post. Learned counsel relied on the cases of Muhammad Afzal and another v. Government of Baluchistan, through Secretary, Services and General Administration Department, Quetta and 4 others (1995 PLC (C.S.) 567), Muhammad Azam Malik v. Ghulam Murtaza Buttar (1993 PLC (C.S.) 253), Muhammad Aslam Saleemi v. The Pakistan Television Corporation and another (PLD 1997 Lahore 852), and Ghulam Mustafa v. Ulfat Hussain Qureshi PTV Corporation, Rawalpindi and 3 others (PLJ 1979 Lahore 429) in support of his contentions. He argued that the respondent No, 6 was holding a public office under the respondent No, 1 which being a Government Corporation was amenable to the jurisdiction of this Court. Reference was also made to the cases of Farhat Ali Khan v. Muhammad Siddique, Advocate (1995 SCMR 1570) and Tariq Javed v. Director- General, F.I.A., Islamabad and 3 others (1997 PLC (C.S.) 273) that the question of laches was not attracted in the cases of quo warranto.
5. On the otter hand, learned counsel for respondents Nos. 4 and 6 argued that the respondent- Corporation was established and wholly controlled by the Federal Government. The employees of the Corporation were deemed to be civil servants by section 2-A of the Service Tribunals Act,. 1973.
The only remedy which the petitioner could avail was by way of an appeal before the Service Tribunal. The bar of Article 212 of the Constitution of Islamic Republic of Pakistan, 1973, was clearly attracted in the case. Only the question of eligibility as distinguished from fitness to hold the post was involved. The cases of Dr. Ahmed Salman Waris, Assistant Professor, Services Hospital, Lahore v.
Dr. Naeem Akhtar and 5 others (PLD 1997 SC 382) and Abid Mahmood v. Government of Pakistan through Secretary, Establishment Division, Islamabad and 241 others (1996 PLC (C.S.) 1061) were relied on It was further argued that the mere adoption of rules by the Corporation would not be treated to be in the nature of statutory rules so as to make the office being held by respondent No, 6 to be a public office. Reference was made to the cases of M.H. Mirza v. Federation of Pakistan through Secretary, Cabinet Division, Government of Pakistan, Islamabad and 2 others (1994 SCMR 1024):
6. Learned Standing Counsel for Pakistan has referred to para. 4 of Article 3 of the Memorandum and Articles of Association of Printing Corporation of Pakistan (Private) Limited, in order to show that the Corporation was competent to appoint such person as Secretary upon such terms and conditions as the Company might determine. He also stated that the report submitted by the Federal Government did support the case of the petitioner. The Additional Secretary, Cabinet Division, who was Vice-Chairman and the Director Finance of the respondent-Corporation voted against the proposal of the appointment of respondent No,
6. He further pointed out that the Establishment Division had constituted a Selection Board to consider the promotion of the petitioner as Secretary. Before Selection Board could meet, the respondent No,6 was appointed by the respondent-Corporation in its 48th meeting of the Board of Directors headed by a Federal Minister. He further brought to my notice that respondent No,6 had been employed by the Establishment Division just on contract basis and had been transferred to Corporation on deputation. The minutes of 48th meeting in view of the Federal Government were not correctly recorded.
7. I have heard the learned counsel for the parties at length. I find thatthe matter of appointment of respondent No,6 as Secretary of the respondent-Printing Corporation of Pakistan was discussed by the Board of Directors of the Corporation in its 47th meeting. The Board decided that the matter be examined under the relevant rules. Subsequently, in its 48th meeting, on 28-8-1996, held in the Chamber of the Federal Minister for Education, the Board of Directors decided to confirm the appointment of respondent No,6 as Secretary. The minutes of the said meeting clearly show that respondent No,6 was present and associated himself in the deliberates of the Board of Directors.
This was violative of all norms of decency morality and principles of natural justice. The proceedings of 48th meeting of the Board of Directors are vitiated on account of real likelihood of bias. In the circumstances of the present case it is not necessary to prove as to what extent the decision of the Board was influenced by the presence of respondent No,6.
8. It is now well-settled that in appropriate cases the proceedings are liable to be quashed on the ground of bias where there is reasonable likelihood that justice is not seen to be done. Reference may be made to the cases of Rahim Jan v. Institute of Chartered Accountants and another (PLD 1977 Lahore 1450), A.K. Kraipak v. Union of India (AIR 1970 SC 150), D.K. Khanna v. Union of India (AIR 1973 Himachal Pradesh 30), Satya Narayan Rao v. State of Karnataka (AIR 1977 Karnataka 221), Dicken v. Edwards and others (1910) 10 CLR 243), R.V. Essex Justices (1927) 2 K.B. 475), Cooper v.
Wilson (1971) 2 QB 662), Ridge v. Baldwin (1963) All. E.R. 66) = 1964 A.C. 40 (H.L.), King v. Salford Assessm ent Committee Ex parte; Odgen (1937) 2 K.B. 1), R.V. Susses Justice, Ex parte; McCarthy (1924) 1 K.B. 256) and R.V. East Kerrier Justices Ex parte; Mundy (1952 QB D-144).
9. In the case of Rahim Jan (supra), the mere presence of two members in the meeting of Council of Institute of Chartered Accountants having a grievance against the petitioner therein was held to be enough to vitiate the proceedings.
10.In A.K. Kraipak (supra), the selection was made by the Committee for promotion of Stale Forest Officers to All India Cadre of Forest Service. The Acting Chief Conservator of Forest was an ex-officio member of the Selection Committee. He was also a candidate for promotion. His name was finally recommended by the Selection Committee. On being challenged, it was conceded before the Court that he was just present but did not participate in the deliberations of the Committee when his name was considered. The Court took the view that the very fact that he was a member of the Selection Committee must have had its impact on the decision of the Selection Committee. It was observed that real question was not whether he was biased. It was difficult to prove the state of mind of a person. Therefore, what had to be seen was whether there was a reasonable ground for believing that he was likely to have been biased.
11.In D.K. Khanna (supra) the High Court quashed the selection of a candidate on the ground that one of the members of the Selection Committee was his son-in-law. Somewhat similar view was taken in the matter of K.B. Satyanarayan Rao (supra).
12.The Dickson's case from the Australian jurisdiction involved a disqualification of a member of a society. The District Chief Ranger was the head of the society. He was required, by the Rules of the Society, to preside at certain meetings, including those of a certain Tribunal. It was held that the rules did not require or permit the District Chief Ranger to Preside, even formally on the Tribunal on the hearing of a charge against a member in which he was in a position of a person complaining of an offence against himself personally. Mere presence sufficient to quash the decision of the Tribunal. (sic).
13.In Essex Justices (supra), the clerk of the justices had formally been solicitor for a party in a dispute arising out of the same subject-matter as that before the Court. The party had consulted the solicitors clerk at a branch office where the clerk was left almost entirely on his own. No mention of the matter was made to the Solicitor himself, except one very short reference to it in a weekly report from his clerk. It was held that the applicant had a right to take objection to the presence of the Solicitor as clerk to the justice, which would create in his mind a reasonable impression that justice was not being done.
14.Cooper v. Wilson involved the question of validity of investigation of an officer's conduct by a Watch Committee. The Chief Constable who had preferred the complaint against the accused officer remained sitting with members of the Watch Committee throughout the hearing. The decision of the Watch Committee was quashed by a writ of certiorari. It was observed that:-- "I ask myself what would anyone have thought who came into the room where the Committee were sitting, after the plaintiff had gone out while they were considering their decision, and found, sitting on the Bench with the Committee, one of the respondents to the appeal, who had opened the case, though he had left the calling of the witness to Superintendent Hughes. Such a person, if responsible, would have been likely to say to himself." There has been an opportunity here for one of the parties to influence the judgment of the Committee, and it looks as if justice may seem not to have been done."
Somewhat similar view had been expressed by the House of Lords in Ridge v. Baldwin (supra).
15.In Kind v. Salford Assessm ent Committee Ex parte": Odgen (supra) an officer of rating authority was under a duty to attend the meetings of the rating Committee for the purpose of taking minutes of proceedings. So, he would obtain knowledge of all the transactions of the rating authority. He was appointed by the Assessment Committee for that area, as an acting clerk to that Committee. He would have to advise the Assessment Committee upon matters of procedure. The Assessm ent Committee would have to consider an objection by the rating authority to a proposal to amend the valuation list. A writ of prohibition was issued directing the Assessment Committee to refrain from acting on the resolution appointing the office rating clerk to the Assessment Committee and also directing him to remain in attendance on the Committee during the hearing of the objection to the appellants' proposal to amend the valuation list and the deliberations of the Committee thereon. If the officer/clerk was present at the meeting of the Assessment Committee when the objection and the proposal were being heard or advised that Committee on procedure, it would be impossible to hold that it was a cause where justice appeared manifestly and undoubtedly to be done.
16.In Rex v. Sussex Justices Ex parte: Mc Carthy (supra) It was observed that:-- "The question, therefore, is not whether in this case the deputy clerk made any observation or offered any criticism which he might not properly have made or offered. The question is whether he was so related to the case in its civil aspect as to be unfit to act as clerk to the justices in the criminal matter. The answer to that question depends not upon what actually was done but upon what might appear to have been done. Nothing is to be done which creates even a suspicion that there has been an improper interference with the course of justice."
17.In R. v. East Kerrier Justices Ex parte: Mundy (supra) where the justices had retired to consider the guilt and had come to the conclusion of finding the accused guilty. The clerk of Court obtained an information from the Police Officer and informed the Justices in the retiring -oom for considering the question of sentence on account of previous conviction. The final order was challenged by means of an application in the nature of certiorari.
Lord Goddard, C.J. observed that:-- "It has been said over and over again that decision must be the decision of the justices not the decision of the justices and their clerk, still less the question of the clerk, and, if the clerk retires with the justices, people will inevitably form the conclusion that the justices' clerk may influence the justices, or may take some course which it is for the justices alone to take."
Devlin, J. expressed that:-- "I should like to state what I believe to be the principle on which the Court is acting. We are not dealing with a case of actual justice. If we were, that would be the end of the matter, and clearly the conviction would be quashed. We are dealing with an infringement of the rule that justice must not only be done, but must also manifestly appear to be done, and, accordingly, we are dealing with matters of form. The Courts have held in the past that it is important not only that justice should be done, but also that it should be seen to be done, and that a person who has been found guilty by the justices should know that there has been no (sic).
18.At one stage the Board of Directors itself was of the view that the case of respondent No, 6 was required to be examined in accordance with the rules. Thereafter, there was no justification to act in disregard thereof or to ignore the petitioner to consider his case for promotion who was a Deputy Secretary of the Corporation with requisite qualifications. Admittedly, respondent No,6 did not possess the Masters' degree with 15 years' experience of handling corporate and labour matters in an organization of repute requisite for the direct recruitment for the post of Secretary of the Corporation. He was not qualified for appointment to the said post. There was nothing on the record to show that the post of the Secretary was advertised at all. Such improper appointments have already been disapproved by the Hon'ble Supreme Court of Pakistan. See the cases of Munawar Khan v. Niaz Muhammad and 7 others (1993 SCMR 1287) and In re: Abdul Jabbar Memon and others (1996 SCMR 1349).
19. The respondent-Corporation has been established and is a fully controlled by the Government of the Pakistan. It is a Government Corporation for all intents and purposes.
Respondent No, 6 being the Secretary of the Corporation is holding a responsible position involving duties of public nature. A writ of quo warranto can be issued against the holders of a public office of a Government Corporation. In the case of Salahuddin and 2 others v. Frontier Sugar Mills & Distillery Ltd. Takht Bhai and 10 others (PLD 1975 SC 244), it was held that offices of the Directors and Chief Executive including a Managing Director of a Public Limited Company were to be a regarded as public offices. They involved the performance of public duties which were of the greatest importance to the public interest in the field of the operation of public joint-stock companies under the Company Law. Needless to add that respondent No, 6 was sent by the Federal Government to be posted as Secretary of the respondent-Corporation on deputation only.
20.The next argument of the learned counsel for the respondents as to the ouster of the jurisdiction of this Court by Article 212 of the Constitution of Islamic Republic of Pakistan, 1973, needs to be examined. It seems to be a case of respondent No, 6 that he is a civil servant and, therefore, the only way of challenging his appointment is by way of an appeal before the Federal Service Tribunal and not through the present writ of quo warranto. I am of the view that ordinarily the challenge to the initial appointment and holding of public office can be made by a petition in the nature of quo warranto under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973.
Bar of Article 212 of the Constitution would not be attracted in such cases. See the cases of Muhammad Aslam Khan v. Government of Pakistan (PLD 1993 Karachi 41), Ahmad Salman Waris and Tariq Javed (supra) and Dr. Mrs. Zahida Mir v. Punjab Public Service Commission (1992 PLC (C.S.) 1010).
21. For the foregoing reasons I declare that Commander (Retd.) Saeed Ahmed Memon, respondent No,6, is holding the office of the Secretary of Printing Corporation of Pakistan without any authority of law. Consequently, he shall cease to hold the said office. The writ petition is accepted. There shall, however, be no order as to costs.