1. ' AMAN ULLAH KHAN, J.---By this Judgment, we propose to dispose of Constitutional Petitions Nos.950 of 1999 and 548 of 2000, as in both the petitions, common questions of law and facts are involved.
2. ' Succinctly, the facts are, that an advertisement appeared in Daily Newspaper of 12th September, 1999, whereby applications were invited by the Respondent-Secretary, Excise and Taxation Department, for filling vacancies of Inspectors for Kalat, Naseerabad and Kech Districts. The date of submission of applications was 18th September, 1999 and Interviews were to be held on 29th September, 1999. On such advertisement, applications were submitted by number of candidates and ultimately the respondent Director, Excise and Taxation, interviewed the candidates and appointed respondents 4 to 35 (in Constitutional Petition No,950 of 1999) as Inspectors (hereinafter referred to as "Respondent-Inspectors") by way of initial recruitment vide Notification, dated 27th September, 1999 and thereafter they were posted at various places by means of another Notification of 29th September, 1999. Petitioners (in Constitutional Petition No, 950 of 1999) who are serving as Sub-Inspectors in the Excise and Taxation Department, being aggrieved from the appointment of respondent-Inspectors, have filed Constitutional petition No,950 of 1999, praying therein, for issuance of a writ of quo warranto, requiring the respondents to show; under what authority of law, they claim to hold the said posts of Inspector. For sake of convenience, the prayer clause is reproduced hereinbelow:-- "It is accordingly respectfully prayed that it may be declared:--
(a) That the order dated 27th September, 1999, whereby respondents Nos.4 to 35 have been appointed as Inspectors in Excise and Taxation Department is unconstitutional, corum non-judice, arbitrary, mala fide and contrary to the relevant rules and of no legal effect;
(b) That the official respondents may be directed to cancel the appointments so made by them, and to fill the vacancies in accordance with the relevant rules relating to departmental quota.
(c) Any other relief as may be deemed fit and proper in the circumstances of the case may also be awarded. The said petition was contested by respondents. They filed their respective counter- affidavits. Respondent-Inspectors, inter alia, also challenged the maintainability of petition.
3. ' During pendency of this petition, under the directions of Director, Excise and Taxation, Balochistan, the Director, Excise and Taxation, Quetta, issued show-cause notices to the Respondent-Inspectors; calling upon them; as to why their services may not be terminated, as their appointments being irregular and against the Balochistan Excise and Taxation Department (Grade-1 to 15) Service Rules, 1982 (hereinafter referred to as 'the rules'). Being aggrieved from the issuance of said show- cause notices. The Respondent-Inspectors have filed Constitutional Petition No,548 of 2000 (petitioners herein). The said petition has been vehemently opposed by the Government of Balochistan, Board of Revenue through its Secretary (respondent No,1) and Director, Excise and Taxation (respondent No,2).
4. ' We have heard Mr. H. Shakeel Ahmad, learned Counsel for the petitioner (in Constitutional Petition No,950 of 1999), Mr. Basharatullah, learned Counsel for the Respondent-Inspectors (in Constitutional Petition No,950 of 1999 and 548 of 2000) and Mr. Ashraf Khan Tanoli, learned Advocate-General for the official Respondents.
5. ' Learned Counsel for the petitioners contended; that Respondent-Inspectors have been appointed in violation of the Rules. He pointed out that appendix to the Rules was amended in the year, 1984, whereby the mode of appointment of Inspectors, Excise and Taxation has been prescribed and Quota was fixed for Sub-Inspectors, already working in the department to be promoted as Inspectors, and due to the direct recruitment of Respondent-Inspectors, the petitioners' right of promotion has been usurped. Learned Counsel further contended, that at the time of appointment of Respondent-Inspectors, there was no vacancy, but after their appointment, the posts were created illegally. He further pointed out that at the time of their appointment, 16 posts were already in excess, falling to the share of direct recruitees. Learned Counsel stated, that the appointments were made, purely on the recommendations of the Ex-Minister Ehsan Shah and Ex-Minister Excise and Taxation Department, Mir Abdul Karim Nausherwani. Learned Counsel lastly pointed out, that as per the Advertisement, the appointments were to be made from District Kalat, Naseerabad and Kech, but candidates from Quetta District were also appointment.
6. ' Mr. Basharatullah, learned Counsel for the Respondent-Inspectors, vehemently opposed the petition (Constitutional Petition 950 of 1999) on the ground, that appointment of Respondent- Inspectors, was made by the competent Authority and appointment and removal of a Civil Servant, falls within the competence of Service Tribunal, therefore, this Court has no jurisdiction to adjudicate upon the matter, thus, the petitioners should have approached the Services Tribunal. He further argued, that writ in the nature of quo warranto is discretionary and is to be issued in very exceptional cases, whereas no such ground exists for issuance of writ of quo warranto and since alternate and efficatious remedy is available to petitioners, therefore, this Court should abstain from exercising writ jurisdiction in the nature of quo warranto. Learned Counsel stated that the orders of appointment have been acted upon and at the time of advertisement and Interviews no such objection was raised by petitioners and further the Respondent-Inspectors are performing their duties since the date of their appointments. Therefore, petition (Constitutional Petition No,950 of 1999) merit dismissal. In Constitutional Petition No,548 of 2000, he only contended, that since show-cause notices have been issued to Respondent-Inspectors, which have been duly replied, thus, the writ petition, challenging the show-cause notices is competent, as no order has been passed on the same.
7. ' Learned Advocate-General, while supporting Constitutional Petition No,950 of 1999 and vehemently opposing Constitutional Petition No,548 of 2000, contended; that respondent- Inspectors were appointed in violation of the Rules, as the vacancies were to be filled by promotion of the Sub-Inspectors already working in the department, as per the quota fixed for them and by not doing so, the petitioners have been deprived of the right of their promotion. Learned A.-G.
8. Contended, that the Rules were to be followed, strictly in letter and spirit. He also affirmed that at the time of appointment, 16 Inspectors were already appointed in excess of the quota reserved for the direct Recruitees. Learned Advocate-General emphatically argued, that this Court had the jurisdcition to issue writ of quo warranto; calling upon the Respondent-Inspectors, as to under what authority, they are holding the posts, and since the very appointment of Respondent-Inspectors has been challenged, therefore, this Court has the jurisdiction to adjudicate upon the matter and burden is upon the respondent-Inspectors, to show, that they have been appointed in accordance with the Rules. Learned Advocate-General, further contended, that at the time of advertisement, no post of Inspector existed and the posts were created subsequently. Thus, the advertisement was made in violation of the Balochistan Civil Servant (Appointment, Transfer and Promotion) Rules, 1979, which contemplates, that appointment should be made against available vacancies and not against availability of future expected vacancies. Learned Advocate-General, thus argued, that the very basic methodology adopted by the official respondents, was illegal.
9. ' We have given our anxious consideration to the arguments of learned Counsel for parties and the record of case has also been perused.
10. ' Before dilating upon the merits of case, it is deemed appropriate to first decide the question of jurisdiction.
11. ' We are not persuaded to agree with the contention of Mr. Basharatullah, learned Counsel for the Respondent-Inspectors, that petitioner had an alternate remedy by way of approaching the Services Tribunal and that since the matter pertains to appointment of respondents, which is one of the term and condition of the service of a Civil Servant, therefore, this Court has no jurisdiction to adjudication upon the matter.
12. ' It may be observed here, that under Article 199(2)(b)(ii) of the Constitution of Islamic Republic of Pakistan, the High Court in exercise of its writ jurisdiction, is competent to enquire from a person; that, by what authority, he is holding an office and in such cases, a writ of quo warranto is maintainable. This question has been resolved by the Hon'ble Supreme Court in the case of Masoodul Hassan. v. Khadim Hussain (PLD 1963 SC 203) wherein following observations were made:-- "Referring again to the monograph on Crown proceedings in volume 11 of Halsbury's Laws of England, the now obsolete writ of quo warranto was in its nature an information lying against a person who 'claimed or usurped an office, franchise or liberty' and ' was intended' to enquire by what authority he supported his claim in order that the right to the- office may be determined.' It was necessary for the issue of the writ that the office should be one created by the State, by charter or by statute, and that the duty should he of a public nature."
13. ' In the same very case, the Hon'ble Supreme Court further observed that "it is well-settled that when the writ is moved by a law officer on behalf of the State, it is for the respondent to establish his legal right to retention of the office in question. But where a private petitioner seeks the writ, right to hold such office is placed upon the petitioner".
14. ' The said view has been consistently approved by the Hon'ble Supreme Court and even in the latest case of Capt. (Retd.) Muhammad Naseem Hijazi v. Province of Punjab through Secretary, Housing and Physical Planning and 2 others (2000 SCMR 1720) the same has been upheld. Relevant observations therefrom are reproduced hereinbelow:-- ' Under Article l99(2)(b)(ii) of the Constitution of the Islamic Republic of Pakistan the High Court in exercise of its Constitutional jurisdiction is competent to enquire from any person, holder of a public office to call upon him to show that under what authority he is holding the said office. In such-like cases where a writ in the nature of quo warranto is instituted the duty of the petitioner is to lay an information before the Court that such and such officer has no legal authority to retain such office. For a petitioner who acts, in tact. As an informer is not required to establish his locus standi to invoke the jurisdiction of the Court. In this behalf reference may be made to Masood-ul- Hassan v. Khadim Hussain and another (PLD 1963 SC 203). In this report it has been held that writ of quo warranto in its nature is an information laying against persons who claimed or usurped an office, franchise or liberty and was intended to inquiry by what authority he supported his claim in order that right to office may be determined. It was further held that it is not necessary for the issuance of writ that the office should be one created by the State of character or by statute and that the duty should be of a public nature. Similarly in the case of M.U.A. Khan v. Rana Muhammad Sultan and another (PLD 1974 SC 228) this Court held that writ of quo warranto could be moved by 'any person who even may not be an aggrieved party but is holding a public office created by character or statute by the State'. Yet in another case which is reported from the jurisdiction of High Court of Azad Jammu and Kashmir i,e, Ali Hussain Bukhari and 39 others v. Azad Jammu and Kashmir Government through Chief Secretary and 2 others (1992 PLC (C.S) 289), it was observed that any person can move the High Court to challenge the unauthorised occupation of a public office on any such application Court is not only to see that the incumbent is holding the office under the order of a competent Authority but it is to go beyond that and see as to whether he is legally qualified to hold the office or to remain in the office, the Court has only to see if statutory provisions have been violated in making the appointment. The invalidity of appointment may arise not only from one of the qualifications but also from violation of legal provision for appointment.
15. ' It may also be observed that on question of locus standi of the respondent to challenge the appointment of petitioner reliance can also be placed on Al-Jehad Trust through Raeesul Mujahideen Habib-ul-Wahab-ul-Khairi and others v. Federation of Pakistan and others (PLD 1996 SC 234) and Malik Asad Ali and others v. Federation of Pakistan through Secretary Law, Justice and Parliamentary Affairs, Islamabad and others (PLD 1998 SC 161). Thus, we are persuaded to hold that Secretary-General Workers' Union i,e,, respondent No,3 legitimately invoked the jurisdiction of the Court by filing writ in the nature of quo warranto challenging the status of petition to hold the office in BPS-19 in G.D.A."
16. ' Thus, in view of the above settled law and consistent view, the contentions of learned Counsel, as to the jurisdiction of this Court is repelled being without merit.
17. ' Reverting to the contention, that the Respondent-Inspectors were appointed in violation of the Rules. Mr. Shakeel Ahmad, Advocate, pointed out that the respondent-Inspectors were appointed in excess of their quota, and further at the time of appointment, already 16 Inspectors appointed against the quota of direct recruitment, were working in excess, the break-up of which is as under:- - I. Total Strength. 51 Departmental quota. 38 Posts filed in by promotion so far. 27 Less appointments by promotion. 11 Quota of direct recruitment. 13 Posts filled in by direct recruitment. 29 Excess appointment by direct recruitment. 16 ' Before dilating-upon the argument of learned Counsel Mr. Shakeel Ahmad, it is appropriate to refer to the amendment made in the Appendix to the rules, which reads as under:-- Post. Qualification Mode of Appointment.
18. E&T Inspector.Graduate from a recognized University.(a) 25% by initial recruitment.
(b) 65 % by promotion on the basis of seniority- cum- fitness from amongst members of the Service holding the posts of Sub - Inspectors having five years experience as such.
19. (c)10 %byselectiononmerit from amongst members of the service holding post of Sub-Inspector, who have an outstanding record and are thirty two years of age and possess sound health; Provided that where a person with such qualification is not available for appointment to any such vacancy, the vacancy shall be filled in the manner provided in clause(b).
20. ' Learned Advocate-General, while supporting the arguments of learned Counsel for petitioner, verified that at the time of appointment of Respondent-Inspectors, already 16 Inspectors in excess were working in the department. Learned Advocate-General further pointed out that Advertisement appeared in the Newspaper, inviting applications for the post of Inspectors on 12-9- 1999 and the Interviews were held on 20-9-1999, whereas the posts were created on 24th and 25th September, 1999. Summary was prepared by the Secretary, Excise and Taxation for appointment and approval of respondents and same was approved on 26th September, 1999, by the Authority concerned and the appointment Orders were issued on 27th September, 1999. Learned A.G. Argued that the methodology adopted by the official respondents at the time of appointment was illegal, being in violation of the Civil Servant (Appointment, Transfer and Promotion) Rules, 1979, which contemplates ,that appointment is to be made against the available vacancy and not against the future expected vacancy.
21. ' In the Rules, the quota-prescribed for appointment of Inspectors, Excise and Taxation is 25% by initial recruitment, 65% by promotion and 10% by selection on merits from amongst the Sub- Inspectors, already working in the department. In the case in hand, admittedly the Inspectors, who were holding the posts, prior to the appointment of Respondent-Inspectors, were in excess of their quota, as the quota for direct recruitment was for 13 Inspectors, whereas 29 Inspectors were appointed and in this way 16 appointments were made in excess. Thus, the appointment orders on the face of it are illegal and in excess of authority. The contention of learned Advocate-General has substance, that without relaxing the Rules and without availability of vacancies, the appointments were made in a haphazard manner, deviating from the rules, causing prejudice to the petitioner, whereby their right of promotion has been denied.
22. ' It may be observed, that if a Statute requires a thing to be done in a particular (way, it must be done by the authority in the manner as prescribed by the Statute, else departure from the Rules, will invalidate the thing done in the manner other then prescribed by Rules.
23. ' Learned Counsel for the petitioner, contended, that amendment made in the Rules, was to be followed strictly, specifically when appointments were being made in large number. According to learned Counsel, the Rules can be relaxed only in an individual case, and that too, purely on the ground of public interest. But since the Respondent-Inspectors, who are 31 in number and were appointed in violation of the Rules and without relaxation of the same, thus, their appointments were in utter violation of the Rules, which has caused grave prejudice to the petitioners, who as a result of such appointments, were deprived of the right of their promotion to a higher post, as they were entitled to be considered for promotion, against the reserved quota, as per the Rules and they have been denied the right of competing for the posts of Inspectors. Besides, the appointments against the posts of Inspectors, were already in excess of their quota. In this regard, reliance is placed on the case of Atta Muhammad Qureshi v. The Settlement Commissioner, Lahore Division Lahore and 2 others (PLD 1971 SC 61) wherein following observations have been made:-- "It is well-settled that the neglect of the plain requirement of a statutory enactment, which prescribes how something is to be done, will invalidate the thing being done in some other manner if the enactment is absolute but not if it is merely directory. The real question which thus arises for consideration is when an enactment is to be considered as absolute and when as merely directory? It is not possible to lay down a general rule of universal application in this behalf, but the one which is suggested by reported authorities in this connection is the affirmative or negative character of the language in which the provision is couched. It is negative, that is to say, if the statute enacts that certain action shall be taken in a certain manner and in no other manner, it has been held that the requirements are absolute and that neglect to attend them will invalidate the whole procedure. If, on the other hand, the language is affirmative, it may he considered as a directory provision. Nonetheless, it appears that in several reported English cases, it has been held that an enactment, prescribing the formalities which are to be observed for validating an action, are not absolute, although expressed in negative or prohibitory language."
24. ' In the said Report, it was further observed that "One other principle which has been 'enunciated in this behalf is that as a general rule, statutes which enable persons to take legal proceedings under certain specified circumstances, demand that those circumstances must be accurately obeyed, notwithstanding the fact that the provisions thereof are expressed in merely affirmative language.
25. At page 226 of the Craies on Statutory laws, 6th Edition. This rule is stated thus:-- "That when a statute confers jurisdiction upon a tribunal of limited authority and statutory origion, the conditions and qualifications annexed to the grant must be strictly applied."
26. ' Thus. In view of the above discussion, it is held that the appointments of Respondent-Inspectors was made in violation of the Rules and in excess of Authority by the department, which even otherwise, has also been admitted by the department in the parawise comments filed in Constitutional Petition No,950 of 1999). As a result, Constitutional Petition No, 950 of 1999 is accepted and the appointments of respondent-Inspectors (respondents Nos.4 to 35 in Constitutional Petition No, 950 of 1999) are declared as of no legal effect and Constitutional Petition No,548 of 2000 is dismissed.
27. ' No order as to costs.
28. ' Before parting with the Judgment, we may observe that it has been invariably noticed that many appointments in the past have been made in violation of the Rules, on extraneous consideration.
29. Thus, the Government Departments, are directed to make all appointments in future, strictly in accordance with the rules and concerned Head of the Departments, are required, that while making such appointments, the Rules should be followed strictly, in letter and spirit, to make the process of appointment transparent, so that there should not be any heart burning and amongst the public servants and other Contestants. Concerned Head of the Departments are also directed not to follow the illegal orders, issued by the concern Ministers or any other Authority, while making appointments.
30. ' Copy of this Judgment be sent to the Chief Secretary, Government of Balochistan, for information and compliance.