' There are two posts of Deputy Permanent Delegate of Pakistan to UNESCO (BPS-19) in Paris. On one post, appointment is made through the Ministry of Foreign Affairs, Government of Pakistan, on which presently wife of Mr. Masood Zahid, the respondent No,5, is posted. On the other post, appointment is made by the Ministry of Education. The present controversy relates to the appointment on the second post,
2. In June, 1997, the Education Department advertised for the said post. It is stated that only four applications from eligible candidates were received out of which only two persons including the present- petitioner were considered suitable for the appointment of Deputy Permanent Delegate of Pakistan to UNESCO. But since sufficient number of applications were not received, the Education Ministry decided to call for fresh applications. Consequently, the Ministry of Education by its Letter No,F4-1/84 UNESCO (NOC), dated the 27th August, 1997, addressed to joint Advisors and Vice- Chancellor of the Universities asked for nomination of suitable officers. For facility of reference contents of the said letter are reproduced below:-- "I am directed to say that a post of Deputy Permanent Representative (BPS-19) in Pakistan Mission for UNESCO at Paris being vacated will be filled in shortly. The following qualifications/experience hive been laid down for this post:--
(i) Qualification ' At least Second Class Master's degree in International Relations Education, Natural Sciences, Social Sciences, English. A higher degree from a recognized foreign University in U.K., USA, Europe, Canada will be preferred.
(ii) Experience
(i) At least three years' experience of working in dealing with an International Organization. UNESCO experience will be given preference.
(ii) At least five years' experience in the administrative/secretariat work.
(iii) Excellence in spoken and written English proficiency/knowledge of French will be an asset.
(iv) Age ' Not more than 45 years.
' Note.--Functionaries serving in Grade-20 or Grade-18 will not be considered.
(2) The appointment will be made for a period of three years extendable for further period of Government may, however, revert the officer to his parent department or to the service to which he belongs before the expiry of the period of tenure.
(3) I shall be grateful if nomination of three suitable officers (in order of preference) holding BPS-19 only who are in possession of the abovementioned qualifications and experience alongwith ten copies of their biodata, three copies of latest passport size photographs, complete A.C.R. Dossiers.
I.C.P. Chart and sparability certificate may kindly be sent to this Ministry by September 13, 1997.
(4) Incomplete/late nomination will not be entertained."
3. This time again sufficient number of persons did not apply (although the petitioner was again one of the applicants for the job). It was, thus, thought that the age limit may be relaxed as the same was the, main reason for receipt of small number of applications for the post of Deputy Permanent Delegate. Hence, in order to have sufficient numbers of eligible persons for selection, it was being considered to either relax the age limit or invite fresh nominations. While these proposals were under consideration, on the basis of a summary, dated 7-1-1998, submitted by the Establishment, Secretary to the Prime Minister, the name of Mr. Masood Zahid, the respondent No,5 was approved by the competent Authority, as Deputy Permanent Delegate of Pakistan to UNESCO at Paris, for a period of two years. On receipt of order, dated 24-1-1998, of the Establishment Division regarding appointment of respondent No,5 the Secretary, Ministry of Education, Government of Pakistan, submitted a summary to the Prime Minister on 9-2-1998, inter alia stating as under:
(3) Meanwhile, this Ministry has been informed by the Establishment Division that the competent Authority has been pleased to appoint Mr. Masood Zahid, Assistant Professor, Quaid-e-Azam University, Islamabad as Deputy Permanent Delegate of Pakistan to UNESCO in place of Dr. Siyal. A comparative chart showing the: (i) eligibility criteria and selection procedure for the post of Deputy Permanent Delegate and (ii) qualifications/experience of Mr. Masood Zahid, is at Annexure III for the kind review of the competent Authority. This Ministry has a feeling that since Mr. Zahid's appointment has not been made as per prescribed selection procedure, some embarrassing situation may arise for the Government as those who have applied for the post may call for judicial intervention.
(4) May the competent Authority, therefore, be pleased to review the earlier decision and be kind to approve the extension of services of Dr. R.A. Siyal, Deputy Permanent Delegate of Pakistan to UNESCO till 30th June, 1998, which will not only be in line with the Government's Policy to reward those who have rendered meritorious services for the country, but would also provide ample time to the Ministry to select, as per prescribed procedure, a most suitable candidate for the post.
' This summary was responded on 18-21998 through a U.O. Note of the Principal Secretary to the Prime Minister, the relevant extract of which is as under:--
(b) Mr. Masood Zahid whose appointment against the said post already stands duly approved, must assume charge immediately on completion of the stipulated period.
4. The petitioner being aggrieved of the appointment of respondent No,5 as Deputy Permanent Delegate of Pakistan to UNESCO has assailed the same through the instant Constitutional petitioner which was opposed on behalf of the Federal Government and also by respondent No,5 inter alia, the jurisdiction of this Court was also contested claiming that the matter relates to the terms and conditions service of the petitioner and respondent No,5 and the controversy could only be resolved by the Service Tribunal.
5. Hafiz S.A. Rehman, Advocate, the learned counsel representing respondent No,5 in this connection relying upon Khalid Mehmood Wattoo v. Government of Punjab and others (1998 SCMR 2280) contended that the jurisdiction of this Court was barred under the provisions of Article 212(2) of the Constitution to entertain any matter which relates to the terms and conditions of service of a civil servant or a person who under the provision of section 2-A of Service Tribunals Act, 1973, is deemed to be civil servant for the purpose of the said Act. Petitioner in the instant case is a civil servant . Presently being posted as Deputy Secretary-General (BPS-19) in the Pakistan National Commission for UNESCO, Ministry of Education, Government of Pakistan. Similarly respondent No,5 is an Assistant Professor in the Quaide-Azam University Islamabad which is a statutory body and its employee is civil servant by virtue of section 2-A of the Service Tribunals Act, 1973. Consequently, any service dispute between the petitioner and respondent No,5 exclusively falls within the domain of the Service Tribunal. Ch. Afrasiab Khan, the learned standing counsel adopting the arguments of the learned counsel for respondent No,5 also urged that the controversy involved in the instant case could not be brought before this Court by invoking the provisions of Article 199 of the Constitution.
6. The learned counsel for the respondents next contended that the instant petition purportedly seeking relief of quo warranto was not maintainable. In this context reliance was placed upon the Government of N.-W.F.P. v Muhammad Said Khan and another (PLD 1973 SC 514), claiming that the High Court cannot itself assume the functions of executive by selecting civil servants for a specific job. Hafiz S.A Rehman, Advocate, the learned counsel, also referring to subparagraph (ii) of paragraph of clause (i) of Article 199 of the Constitution contended that a writ of quo warranto can only be issued when a person holding or purporting to hold such office and is directed to show under what authority or law he claims to told that office. In the instant case, since respondent No,5 has not yet taken the charge of the office of Deputy Permanent Delegate of Pakistan to UNESCO, no writ can be issued against him. The learned counsel was also of the view that since the petitioner was himself interested in his posting on the same post even on that basis the writ of quo warranto was not maintainable.
7. Dr. G.S. Khan, Advocate, the learned counsel representing the petitioner, on the other hand, contended that the controversy involved in the instant petition was beyond the jurisdiction of the Service Tribunal as the same does not relate to terms and conditions of service of the petitioner or respondent No,5. He was of the view that the post of Deputy Permanent Delegate of Pakistan to UNESCO notwithstanding that he had applied for such post but the petitioner actually assails the appointment of respondent No,5 to the said post being an unqualified person. In this respect, he contended that the appointment of respondent No,5 as Deputy Permanent Delegate of Pakistan to UNESCO was against the Fundamental Right of equal opportunity before law. The learned counsel also contended that appointment of respondent No,5 was made without proper advertisement and was, thus, bad in the eye of law. In this respect, he referred to Munawar Khan v. Niaz Muhammad and 7 others (1993 SCMR 1287) Adbul Rashid v. Riaz-ud-Din and others (1995 SCMR 999) and in re: Abdul Jabbar Memon and others (1996 SCMR 1349) claiming that the apex Court had deprecated the appointments on behest of the members of the Provisional Assembly and National Assembly without adhering to the rules applicable to appointment on a particular post.
Reliance was also placed on Obaidullah and another v. Habibullah and others (PLD 1997 SC 835) to urge that where any appointment is not transparent or violate of the principle of equal opportunity, the provisions of Article 199 of the constitution can be invoked. Reference was also made to Muhammad Jawad Ali v. Vice-Chancellor, Islamia University, Bahawalpur and 2 others (1998 PLC (C.S) 549), where this Court had held that appointment which is not made in accordance with law and rules can be set at naught through a Constitutional petition.
8. In the instant petition, however, the questions relating to terms and conditions of service of neither of petitioner nor that of respondent No,5 are involved. The post of Deputy Permanent Delegate of Pakistan to UNESCO is a selection post and any person holding a post in BPS-19 whether in any Government Department or statutory body or a body set up or controlled by the Government and possessing the qualifications specified in the letter of the Ministry of Education, Government of Pakistan, dated the August 27,1997, could be selected to that post. It is not a right of any person holding a post in BPS-19 nor the post of Deputy Permanent Delegate to UNESCO falls in the line of promotion of the petitioner or that of respondent No,5 to claim such posting. In this respect, it was also pertinent to refer to the prayer made by the petitioner in the instant petition which for facility of reference is reproduced below:-- "In view of the foregoing, it is respectfully prayed for and on behalf of the humble petitioner that the impugned actions/orders may graciously be set aside/reversed/quashed/modified by issuing appropriate orders/directions/writs and in particular respondent No,5 be called upon to show under what authority of law he claims to hold or purports to hold the public office of Deputy Permanent Delegate of Pakistan to UNESCO at Paris. Pending the final determination of this writ petition, the impugned actions/orders which are outrightly void/untconstitutional/illegal/unlawful be suspended to save the exchequer from further continuous wrong and pending that as an interim relief, respondent No,5 be restrained from proceeding abroad. As an ad interim relief respondents Nos, 1, 2 and 3 be restrained from processing the departure formalities in respect of respondent No,5. An order of status quo may also graciously be granted against all respondents, inter alia, by suspending the operation of impugned notification (Appendices A and B). The petitioner may also be granted such other relief as may be granted such other relief as may be deemed just and fair, under the circumstances of the case alongwith costs."
9. It is clear from the above that the petitioner has not sought his appointment as Deputy Permanent Delegate of Pakistan to UNESCO but has only challenged the process and method in which allegedly an unqualified person was appointed to the said post. This matter as stated above does not relate to terms and conditions of service of petitioner and accordingly a petition on the nature of quo warranto under Article 199 of the Constitution could be moved and consequently the basis as contained in Article 212 (2) of the Constitution is not attracted in the instant case. It is also a matter where an appeal cannot be filed under the provisions of section 4 of the Service Tribunals Act, 1973. Therefore, as held in Dr. Ahmad Salman Waris, Assistant Professor, Services Hospital, Lahore v Dr. Naeem Akhtar and 5 others (PLD 1997 SC 382) the jurisdiction of the High Court to examine such matters is not ousted. Reference is also made to Abdul Shakoor v. Printing Corporation of Pakistan (Pvt.) Ltd. And 4 others (1999 PLC (C.S.) 114) and Tariq Javed v Director- General F.I.A, Islamabad and 3 others (1997 PLC (C.S.) 273) which follow the same principle. Similar view was taken in Muhammad Afzal and another v. Government of Baluchistan through Secretary, Services and General Administration Department, Quetta and 4 others (1995 PLC (C.S.) 567). In this context, the objection of the learned counsel for respondent No,5 that quo warranto cannot be issued because respondent No,5 had not yet taken the charge of this office is without force as admittedly order for his appointment has already been issued and he was only restrained from taking charge of his office because of stay order issued by this Court. It may be seen that in the case of selection of respondent No,5 for the post of Deputy Permanent Delegation of Pakistan to UNESCO the guidelines laid down by the Government were not at all observed. Such guidelines as approved by the President, are .Contained at Serial No,2-A at pages 310 to 313 of the ESTACODE, 1989 Edition. The qualifications and experience for the said post are contained in the Ministry of Education, Government of Pakistan, Letter No, F4-1/84-UNESCO (NOC), dated August 27, 1997, issued under the signatures of Joint Educational Advisor. This fact is not denied that respondent No,5, neither possessed the requisite qualification for the post of Deputy Permanent Delegate nor his selection was made in accordance with the policy guidelines. In this contexst, attention is drawn to the summary of Secretary, Ministry of Education, sent to the Prime Minister vide U.O. No,F4-1/84- UNESCO, dated the 9th February, 1998, wherein it was specifically asserted that Mr. Masood Zahid (respondent No,5) did not qualify for the post nor his appointment as Deputy Permanent Delegate was made as per prescribed section process. These facts were also admitted in the parawise comments to the present writ petition submitted on behalf of Ministry of Education, by the respondent No,2 on 10-6-1998. This is also an admitted fact that for this post selection was to be made by the Ministry of Education being the Administrative Authority, in accordance with the aforesaid guidelines and instructions.
11. The learned standing counsel relying upon Mrs. Saeeda Bukhari v. Secretary, Ministry of Education, Government of the Punjab, Lahore and another (PLD 1988 Lahore 553) contended that the Courts generally do not interfere in the matters requiring administrative decisions. It was also contended that since the appointment of respondent No,5 was approved by the competent Authority, no interference could be made in such appointment.
12. The instant case, however, was not case of appointment or promotion on a post solely dependent upon the discretion of the appointing authority. In fact, for the post of Deputy Permanent Delegate of Pakistan to UNESCO, educational qualifications, age and experience were specifically laid down. Again the process for selection thereof was duly prescribed. In this respect, it would not be out of place to point out that it is well-settled that the Departmental instructions or guidelines in absence of any rules to the contrary have the force of law and have to be followed.
These cannot be ignored simply in the name of administrative expediency. It is correct that under the Rules of Business, 1973, the Establishment Division is required to process the case of appointments of civil servants or of persons to the Government posts, but certainly the instant case as dealt with by respondent No, 1 does not inspire confidence nor reflects transparency. Before submission of summary for the appointment of respondent No, 5 as Deputy Permanent Delegate of Pakistan to UNESCO, the Administrative Ministry i,e, the Education Ministry Government of Pakistan (respondent No,2) was to be consulted. Neither the prescribed selection process was followed nor it was examined if respondent No,5 fulfilled the requisite qualifications for the said post. Certainly in such case, the Courts cannot close their eyes when any such matter is brought before them even where Government's own laid down guidelines and instructions are flouted because its decision may tantamount to interference in administrative discretion. It also goes without saying that the country is governed under a written Constitution which identifies the role and functions of each organ of the State and its functionaries. In this respect everyone, whatever position or office may be held by him is bound to follow the Constitution, law and rule made thereunder.
13. From the record, it appears that when the Establishment Division had put up Summary to the Prime Minister on 7-1-1998 the complete facts as to the qualifications of respondent No, 5 and that guidelines for selection of Deputy Permanent Delegate of Pakistan to UNESCO were prescribed or that he lacked the requisite qualifications were not brought to the notice of the competent Authority.
14. The representative of the Establishment Division who was present at the time of hearing and the learned standing counsel were also unable to show that if the summary of the Establishment Division was presented before the competent Authority or that the summary contained the approval or signatures of competent Authority for such appointment. In fact, from the record which was shown to the Court, it appears that the Establishment Secretary had submitted the summary to the Prime Minister of Pakistan vide U.O. No, 4/32/97 -T-IV, dated 7-1-1998, through the Principal Secretary. It was received back with the following remarks of the Joint Secretary (Admn.), Prime Minister' Secretariat (Public):-- "4. The competent Authority has been pleased to approve the proposal in para. 3 of the summary."
' But the actual approval or signatures of the competent Authority (Prime Minster of Pakistan) are not present on the, said summary. It was also interesting to note that when the summary of the Establishment Division was under submission to the competent Authority the Administrative Ministry i.e Ministry of Education was still considering whether to invite fresh applications or relaxation in the age limit be made to attract more suitable candidate for the job. In the circumstances the putting up of proposals by the Establishment Division for appointment of respondent No,5 as Deputy Permanent Delegate to UNESCO unilaterally without consultation of the Administrative Ministry or without preparing a panel of suitable persons for the post or without recommendations of the committee in the Administrative Ministry which includes a representative of the Establishment Division appears to have been made in clear contravention of the guidelines laid down by the President for selection of officers for posting abroad and, accordingly cannot be held to be in order.
15. For the foregoing reasons, the appointment of respondent No,5 to the post of Deputy Permanent Delegate of Pakistan to UNESCO is declared to be without lawful authority and consequently the Office Memorandum F.No,4/32/97-T-IV, dated the 24th January, 1998, is held to have been issued without lawful authority and of no legal effect. The present petition is allowed accordingly without any order as to costs.