' MAMOON KAZI, J.----These four appeals, by leave of this Court, arise out of four petitions filed before the High Court of Sindh which have been disposed of by a common judgment, dated 25-11- 1992.
2. Constitutional Petition No,D-798 of 1989 was filed by Shah Wali, appellant in C.A. No,623 of 1993 challenging appointment of respondent No,1, Ferozuddin as Deputy Secretary, by the Karachi Port Trust. The appellant had averred that although the Board of Trustees of the Karachi Port Trust had recommended vide Resolution No,933 that such appointment be made by the Board's Selection Committee, but the Chairman of the Board fabricated a similar resolution sanctioning appointment of respondent Ferozuddin. Reference was made by the Karachi Port Trust in its parawise comments to the resolution of the same number which indicated that the said respondent's appointment had been approved by the Board and sanctioned by the Federal Government. Question therefore, arose which of the two resolutions had been passed by the Board of Trustees. The High Court declined to grant relief to the appellant since the petitioner had raised a factual controversy.
3. Another Constitutional Petition (No,471 of 1990) was filed by Mughees Ahmed Samdani, who is appellant in C.A. No,625 of 1993 and C.A. No,626 of 1993 respectively, to challenge appointment of respondent Tanweer Hussain. The former was an employee of the Karachi Port Trust and was also Joint Secretary of Organization of Workers, which was a registered trade union. He applied for appointment to the said post but instead respondent Tanweer Hussain was appointed. The case of appellant Mughees Ahmed Samdani before the High Court was that the said respondent had been preferred as he was nephew and son-in-law of the General Manager (Finance). The High Court however, declined to go into a question as, according to it, office of Deputy Manager Stores (Purchase) was not a public office and therefore, writ of quo warranto was not maintainable.
4. Two more appeals (C.A.No,623 of 1993 and C.A. No,626 of 1993) have also been filed by appellants Shamim Ahmed and Mughees Ahmed Samadani, who were petitioners in the High Court in C.P. No,393 of 1990 and C.P. No,471 of 1990 respectively, to challenge the appointment of respondent Jamil A. Shaikh as General Manager (Finance) in Karachii Port Trust. The case of the petitioner against the said respondent was that after creation of the post of General Manager (Finance) in BPS-21, the Karachi Port Trust in their Resolution No,269, dated 13-10-1982, recommended Shamim Ahmed for the said post. However, when the proposal was sent for approval of the Federal Government, it appointed respondent Jamil A. Shaikh although, neither the letter was qualified to hold such appointment nor the Government was competent under the law to make such appointment.
5. The High Court although, agreed with appellant that the Federal Government had overstepped its authority to initiate such appointment and had usurped the powers of Trustees of the Karachi Port Trust to make a selection, but it refrained from issuing a writ as the learned counsel then appearing for the said respondent requested the learned Judge for sympathetic approach in the matter. According to him, the said respondent had a vast experience of 24 years and his appointment had even been approved by the then Prime Minister. Furthermore, the respondent had very little chance of getting another appointment as he was already nearing the age of superannuation. Consequently, both the petitions were dismissed by the High Court.
6. Leave was granted by this Court to examine legality of the judgment passed by the High Court and to determine the question as to the authority which was competent to make such appointment.
7. So far as the case of Shah Wali (Civil Appeal No,623 of 1993) is concerned, the writ filed by him before the High Court only appears to have sought declaratory relief in the nature of cerciorari and not in the nature of quo warranto as observed by the High Court. However, it is not necessary for us to go into this question or the question regarding its maintainability as we find ourselves in agreement with the view held by the High Court that the controversy raised by the petitioner being purely a factual one, could not be decided in the writ jurisdiction. Consequently, C.A.No,623 of 1993 is dismissed, but with no order as to costs.
8. Turning now to the appeal filed by appellant Mughees Ahmed Samadani against respondent Tanweer Hussain, the circumstances of the case indicate that the Chairman of the Karachi Port Trust had accorded his approval on 10-1-1990 to respondent Tanweer Hussain to assume duty as Deputy Manager (Purchase) in BPS-18 in response to latter's application made in this regard. An extract from the minutes of the meeting of the Board of Trustees of the Karachi Port Trust held on 7- 3-1990, a copy of which has been filed with the appeal, indicates that although the said respondent possessed all the qualifications for the said post but only lacked experience, which requirement was relaxed by the Members of the Board. Thereafter, sanction of the Government was sought which was also granted. Resolution No,830 passed by the Board of Trustees indicates that the said post was sanctioned in BPS-18 after appointment of respondent Tanweer Hussain against the same on one year's probation period. Although the letter of the Federal Government indicates that sanction for the said post was granted on 9-4-1990 whereas the appointment was made on 7-3- 1990, but it appears to have made no material difference so far as the appointment of respondent Tanweer Hussain is concerned. The grievance of Mughees Ahmed Samdani nevertheless is that the said post was not advertised in the Press and on account of such .Omission the petitioner lost his chance to apply for the post as he was equally eligible for the same. Although the grievance of the petitioner does not appear to be unfounded and normal procedure of advertising the said post should have been followed by the Karachi Port Trust, but since respondent Tanweer Hussain was already appointed to the post and sanction was also accorded to the same by the Federal Government, we are inclined to agree with the judgment of the High Court by declining to disturb the appointment of respondent Tanweer Hussain. Therefore, C.A. No,625 of 1993 is also dismissed with no order as to costs.
9. This leaves us now with the appeals filed by appellants Mughees Ahmed Samdani and Shamim Ahmed (C.A. No,626 of 1993 and C.A. No,624 of 1993, Although these appeals have not been seriously challenged by the learned counsel for, the respondents in the said appeals except for Mr. Manzoor Ali Khan who made a half-hearted attempt on behalf of respondent Jamil A. Shaikh to resist the appeals.
10. As to the question whether the Federal Government was empowered to directly appoint respondent Jamil A. Shaikh as a General Manager in Karachi Port Trust, it is pertinent to refer to certain provisions of the Karachi Port Trust Act, 1886 (hereinafter referred to as "the Act". Section 23 of the Act empowers its Board of Trustees with all administrative powers including those of appointing, promoting, etc., the officers and servants of the Board. The said section reads as follows:-- "23.--(1) Subject to the provisions of the regulations made under section 22 and of the schedule of officers and servants for the time being in force, all administrative powers including those of appointing, promoting, suspending and punishing the officers and servants of the Board and of grant of leave to them shall be exercised by the Chairman in the case of persons drawing pay in the scale of which the maximum does not exceed five hundred rupees and in every other case by the Board: ' Provided that the Chairman may by order in writing delegate all or any of his powers under this subsection to the respective Head of Departments or such other officer as he may think fit.
(2) In the case of an order passed by a Head of the Department or other officer in exercise of the power delegated to him under subsection (1) an appeal shall lie to the Chairman and in the case of any other order under that subsection to the Federal Government and the orders of the Chairman or Federal Government, as the case may be, in such appeal shall be final.
(3) An appointment made in this section shall not be deemed to be a contract or agreement within the meaning of section 18."
' Section 24 of the Act which follows section 23 further provides that:- "24. Every order or regulation made by the Board in respect of Head of Department, or in respect of officers holding posts in the scale of which the maximum is not less than eleven hundred rupees shall be subject to the previous approval of the Federal Government."
' The next important section for the purpose of resolving the present controversy is section, 79-A of the Act which empowers the Federal Government to cancel, suspend or modify acts or proceedings of the Board. The said section provides as under:-- "79A. All acts and proceedings of the Board shall be subject to the control of the Federal Government and the Federal Government may cancel, suspend or modify any such acts or proceedings."
11. It would be seen that power to appoint officers or servants of the Board vests in the Board itself.
However, such appointment would be subject to the sanction by the Federal Government in case the officer to be appointed holds a post in the scale of which the maximum is not less than eleven hundred rupees. Section 79A further indicates that the Federal. Government has been vested with overall authority, overall acts and proceedings of the Board of Trustees as the same have been made subject to the control of the said Government which has been further empowered to cancel, suspend or modify any such act or proceedings.
12. In the present case, there is no controversy in regard to the fact that although the Board accorded approval to the appointment of appellant Shamim Ahmed to the post of General Manager (Finance) who, admittedly had better qualifications than respondent Jamil A. Shaikh for the said post, nevertheless the latter was appointed by the Federal Government. There is also no controversy in regard to the fact that the appointment of Shamim Ahmad by the Board of Trustees was based on merit and within the framework of the Act as the incumbent fulfilled all the requirements laid down by the Board. However, the Government in clear violation of the provisions of sections 23 and 24 of the. Act selected respondent Jamil A. Shaikh for the said post. Admittedly, the said respondent at the time of his selection was serving at Airport Development Agency and had not even been interviewed by the Board's Selection Committee, neither was he recommended by the Board of Trustees of the Karachi Port Trust. There is, therefore, no doubt that the appointment of respondent Jamil A. Shaikh was made contrary to the law and practice of the Karachi Port Trust. In spite of such irregularities having been committed in the appointment of respondent Jamil A. Shaikh, the learned Judges in the High Court condoned the same on compassionate grounds.
13. Arguing on behalf of the said respondent, Mr. Manzoor Ali Khan, learned counsel for the respondent, has however pointed out that the appointment of Mr. Jamil A. Shaikh was in accordance with he general instructions issued by the Government as authority to make appointments in Grade-21 vested in the Prime Minister. However, the learned counsel very candidly conceded that these were the general instructions which could not override the provisions of the Act which clearly vested the Board of Trustees of the Karachi Port Trust with power to make appointments of all officers and servants and the same was only made subject to the approval of the Federal Government or any modification or cancellation that may be made by it under section 79A of the Act. Therefore, the Federal Government had clearly exceeded its authority while making the said appointment.
14. However, respondent Jamil A. Shaikh has made a statement today in writing whereby he has opted to take a premature retirement with effect from 30-12-1999 subject, however, to all retirement benefits admissible to him.
' To such retirement learned counsel for the Karachi Port Trust has also no objection. He has further given his no objection to the promotion of Mr. Shamim Ahmed to the said post of General Manager (Finance) with effect from 31-12-1999.
15. In the result, Civil Appeals Nos.624 and 626 of 1993 were disposed of by a short order, dated 30- 12-1999, which reads as follows:-- "After we heard these appeals at length the respondent No,1 Jamil Ahmed. Shaikh has filed a written statement that he opts for retirement from the post of General Manager (Finance), KPT with immediate effect. Learned counsel for KPT as well as Federal Government has no objection to the acceptance of the said offer by the authorities subject to the Rules governing such retirement. In view of above statement and for reasons to be recorded separately Mr. Jamil Ahmed Shaikh shall stand retired with effect from 30th December, 1999 subject to payment of benefits as admissible under the Rules and as a consequence thereof the Board of KPT shall appoint Mr. Shamim Ahmed as General Manager (Finance) from 31st December, 1999 in terms of Board Resolution No,269, dated 13-10-1987. The appeals stand disposed of. There shall be no order as to costs.