1. ' In this Constitutional petition, the petitioner has sought the following reliefs:--
(1) Declaration that the respondents Nos.4 to 9 are acting as such illegally and contrary to provisions contained in HUACT and Statutes and the respondents Nos.5 to 9 be directed to vacate the illegally occupied Public Offices of HU.
(2) Restrain the respondents from interfering with the exercise of powers, privileges and functions of their offices.
(3) In terms of provisions contained in clause 1(b)(ii) quo warranto, the respondent No,4 may be required and directed by this Hon'ble Court to show under what authority of law he is claiming Public Office of HUVC and membership of statutory authorities of HU.
(4) In terms of provisions contained in clause 1(b)(ii) quo warrnato, the respondents Nos.5 to 9 may be required and directed by this. Hon'ble Court to show under what authority of Law they are claiming the Public Offices of HU and membership of statutory authority of HU.
(5) Any other better relief, which this Hon'ble Court deemed fit in the facts and circumstances of the case to improve the working of the UC in accordance with the law in public interest may also be granted.
(6) It is, therefore, respectfully prayed that the petition may kindly be accepted.
2. ' The petitioner, according to the contents of the memo. Of petition, is a professor and educationist of Hamdard University, Karachi which was established by Sindh Act No,VI of 1992 known as the Hamdard University Act, 1991 (hereinafter referred to as the Act).
3. ' According to the Act, an employee would retire from service on the date when he would complete 25 years' service qualifying for pension or on attaining the age of 60 years. The petitioner further submitted that clause 24 of the Service Statutes of Hamdard University provided that all employees of the University would retire in accordance with the provisions contained in the Act thus making retirement of every employee attaining the age of 60 years as compulsory. The grievance of the petitioner is that respondent No,2 had employed respondents Nos.4 to 9 in violation of the provisions of the Act and the Service Statutes inasmuch as either they did not possess the requisite qualifications for appointment to the aforesaid posts or had crossed the age of 60 years.
4. ' Comments/objections were filed on behalf of respondent No,2 wherein preliminary legal objections were raised with regard to the maintainability of the petition. One of the legal objections was that the petitioner suffered from laches as the petitioner was appointed in Hamdard University on 26-2-1997 and continued to discharge the functions of his post/office alongwith respondents Nos.4 to 9 without ever raising any objection with regard to the legality of their appointments. It was also submitted that the petitioner had approached the Court with mala fide intention, unclean hands and in suppression of material facts inasmuch as he was suspended from performing his duties with effect from 2-7-2002; was served with a charge-sheet dated 31-7-2002 for serious administrative and financial lapses which might warrant penal action against him besides termination from service; and Mr. Justice (R) Salahuddin Mirza was appointed as Inquiry Officer to conduct the inquiry against him.
5. ' On facts, the allegations made by the petitioner with regard to the incompetency/ineligibility of respondents Nos.4 to 9 in being over age and not possessing the requisite qualifications were vehemently denied. It was also denied that any illegality or irregularity was committed by respondent No,2 in making appointments of respondents Nos.4 to 9 on their respective posts/offices.
6. ' With regard to the contention that clause 16 of the Service Statutes provided re-employment of retired persons who had served in Hamdard University, it was submitted that the interpretation made by the petitioner was absolutely contrary to the law as the provisions did not restrict re- employment of retired employees of the University alone which would be obvious and clear from the wordings of paragraph 16 where the word used is "person" and, not 'employee" which has been defined in clause 1.1(8) of the Service Statutes to mean an' employee of the University appointed by the Competent Authority. It was submitted that the petitioner had challenged the appointments of respondents Nos.4 to 9 on false, frivolous and baseless grounds reiterating that all the officers and the functionaries of the University were appointed and were holding their respective offices in accordance with the law, the Act and the Service Statutes.
7. ' M/s. Malik A.R. Arshad and Nadeem Qureshi, Advocates had filed power on behalf of the petitioner but on the date of hearing they requested for their discharge as the petitioner did not require their services. The petitioner who was present in Court did not controvert the above statement,. As a result of which both Mr. Malik A.R. Arshad and Mr. Nadeem Qureshi were discharged from their responsibilities as Advocates for the petitioner and the petitioner himself proceeded to argue his case. Mr. Fazle Ghani Khan, Advocate appeared on behalf of the respondents and submitted his arguments.
8. ' Issuance of directions or providing reliefs under Article 199 of the Constitution of the Islamic Republic of Pakistan is purely discretionary and it is more so in relation to the principle governing issuance of writ of quo warranto under Article 199(2)(b)(ii) of the Constitution. In issuing the writ the Court can and will take into consideration the conduct and motive of the petitioner for determining as to whether the person who has challenged the appointments of certain .Persons has done so with good intention of upholding the law or with mala fide and dishonest motive to settle some personal grudge and animosity with the person(s) holding the offices to certain posts.
9. ' However, before taking up the issue relative to the bona fides of the petitioner to file this petition, it will be appropriate if the issue of laches/delay which was very vehemently argued by Mr. Fazl-e- Ghani Khan be taken up. In this connection, it is to be observed that the petitioner was appointed in Hamdard University on 26-2-1997 when majority of the officers mentioned as respondents Nos.4 to 9 were already in the service of Hamdard University and the petitioner did not raise any objection with regard to their appointments on the ground that they did not possess the requisite qualifications for holding the offices held by them. The petitioner in reply to the arguments of Mr. Fazl-e-Ghani Khan submitted that the question of laches was not relevant for filing a Constitutional petition for issuance of writ of quo warranto on the ground that a person holding a Public Office without fulfilling the requisite qualifications and without lawful authority would be committing a serious wrong which would be a continuing wrong till such time as he continued to hold the office and such a wrong had to be set right whenever questioned without giving any heed to the delay.
10. He, further submitted that on the ground of laches or delay, a Constitutional petition for directions in the nature of quo warranto could not be dismissed. The delay/laches would not come in the way of the petition wherein directions in the nature of quo warranto are sought provided that it is established that the petition has been filed in good faith with bona fide motive to set a wrong which had been committed in the appointment of a person to an office but if the petitioner failed to establish his bona fide and good faith and it appeared that the petition was filed with a mala fide intention for settling personal grudge or animosity with the person(s) holding certain offices on the premise that the petitioner was a candidate or desirous of holding such office. It is also an established fact that the person who challenges the appointments of a certain person(s) on the ground that he did not possess requisite qualifications or his appointment was illegal should not necessarily be an aspirant to the office held by the respondents, therefore, the question of delay/laches is to be considered after first determining as to whether the petitioner has approached this Court in good faith with bona fide intention to set right illegalities committed by respondent No,2 in making appointments of respondents Nos.4 to 9 to the respective offices held by them or that the petition has been filed with ulterior motive and mala fide intention with a view to settle some personal grudge, disliking or animosity which he might be having against respondents Nos.2 and 4 to 9.
11. ' In this connection, the most vital point to be considered is the fact that for five years after his appointment in Hamdard University the petitioner did not approach this Court for challenging the appointments of any one of the respondents Nos.4 to 9 and worked in association with them. Mr. Fazl-e-Ghani Khan submitted that the petitioner had acquiesced in the appointments of respondents Nos.4 to 9 and holding of the respective offices by them, which would debar him from challenging the alleged illegality of their appointments. In support of his contention, he placed reliance on the case of Muhammad Shafique Raja v. Government of the Punjab and 2 others (1991 CLC 617). On the question as to whether laches or delay was relevant and ought to be considered in filing a writ for seeking directions in the nature of quo warranto, he placed reliance on the cases of Syed Manzoor Hussain Gillani v. Sain Mullah, Advocate and 2 others (PLD 1993 SC (AJ&K) 12) and Syed Ali Raza Asad Abidi v. Ghulam Ishaq Khan, President of Pakistan and another (PLD 1991 Lah.
12. 420) wherein it was pronounced that ordinarily laches/delay would not be strictly applicable to a case of quo warranto but the Court could also not ignore the application of this principle if the attending circumstances were such which militated against the bona fides of the petitioner and the delay in a case of quo warranto would be considered as an important piece of evidence in support of the pleas of mala fides of the relator and it would be especially so when the relator was not an aspirant to the office(s) which he intended to get vacated. It was further observed that the aggrieved person was required to establish invasion of his personal right when there was a plea of mala fides by the person(s) whose authority to hold the office(s) was challenged.
13. ' From a bare perusal of the memo. Of petition and other material on record, it is to be found that the petitioner had not claimed his right to any of the offices held by the respondents Nos. 4 to 9. It is pertinent to note that this Constitutional petition had been filed after the petitioner was suspended and a charge-sheet was served on him in accordance with the provisions of the Service Statutes of Hamdard University for serious administrative and financial lapses which might warrant some penal action against him. It is also to be noted that an Inquiry Officer has been appointed to hold an inquiry into the matter. It is pertinent to note that though he was suspended on 2-7-2002 yet this fact was not mentioned by him in his memo. Of petition. Non-disclosure of this fact was very material inasmuch as mention of this fact would have led to a presumption that the petitioner had approached this Court on account of animosity and with vengeance for being placed under suspension and would have supplied an obvious mala fide motive on the part of the petitioner to file the above Constitution petition.
14. ' Reverting to the question of locus standi or the right of, the petitioner to file a Constitutional petition for seeking directions in the nature of quo warranto, it will be advantageous to refer to a case decided by the Supreme Court wherein this question was discussed in great detail by the Supreme Court. It is the case of Dr. Kamal Hussain and 7 others v. Muhammad Sirajul Islam and others (PLD 1969 SC 42) and it will be appropriate to reproduce the relevant portion from the aforesaid judgment as under:-- ' "Under Article 98(2)(b) 'any person and not necessarily an aggrieved person can seek redress from the High Court against the usurpation of a public office by a person who is allegedly holding it without lawful authority'. On that account it cannot be doubted that Mr. Siraj-ul-Islam did have the locus standi to file the petition. But the grant of relief in writ jurisdiction is a matter of discretion, wherein it is quite legitimate on the part of the High Court to test the bona fides of the relator to see if he has come with clean hands. A writ of quo warranto in particular is not to issue as a matter of course on sheer technicalities on a doctrinaire approach. In the present case, considering all the circumstances, I cannot escape the feeling that Mr. Siraj-ul-Islam is not entirely playing his own game, for high altruistic motives, and that he has instituted the writ petition not so much" for the vindication of any public right or the redress of a public wrong as to redeem the discomfiture of the defeated candidates, and to fight their battle on another front which some of them had already waged by the process of the election petitions within its limitation."
15. ' The.Question of the locus standi of a person to file a petition for seeking directions in the nature of quo warranto as well as question of delay/laches in filing the same was also considered by the Supreme Court in Civil Appeal No,314 of 1988 (Federation of Pakistan and others v. Haji Muhammad Saifullah Khan and others and five others civil appeals/petitions) reported in PLD 1989 SC 166 and the Supreme Court observed that though there was no restriction on the person for filing a Constitutional petition in the nature of quo warranto as were available for filing Constitutional petitions in the nature of mandamus/certiorari/ habeas corpus yet there was nothing to stop the Court from testing the bona fides of the relator to see if he had come with clean hands. It was further observed that the delay which had occurred in the filing of the petition if not satisfactorily explained would have an adverse effect. This question was also considered by the Supreme Court of (Azad Jammu and Kashmir) in the case of Syed Manzoor Hussain Gilani v. Sain Mullah, Advocate and 2 others, reported in PLD 1993 SC (Azad Jammu and Kashmir) 12 wherein the Supreme Court of (Azad Jammu and Kashmir) pronounced that: (i) principle of laches was not strictly applicable to a case of qua warranto but it was definitely a relevant consideration when mala fides were pleaded in defence; (ii) relator must show that invasion of his personal right .Where there was a plea of mala fide, despite that fact that a writ of quo warranto might be sought by a person who had no personal interest in the matter.
16. ' To test the good faith and bona fides of the petitioner to file this petition on the ground of locus standi, reference can be made to the case of Syed M. Yousuf Shah v. Azad Government and another (1993 CLC 2234). In this case, the petitioner who was a Prosecuting Inspector in the Police Department had challenged the appointment of respondent official, D.1.-G., Police to hold the office on contract basis after his superannuation. The Azad Jammu and Kashmir High Court held that the petitioner being a Prosecuting Inspector in Police Department did not have a right to claim or hold the office of D.I.-G. Police and further because he was suspended from the service by the respondent official, the petitioner neither had locus standi to file the Constitutional petition nor had approached the Court in good faith and with bona fide intention but that his petition was motivated on the aforesaid two grounds.
17. ' The case of the petitioner is on a similar footing as that of the petitioner Prosecuting Inspector in the cited case. The petitioner neither was an aspirant nor could be promoted to anyone of the offices held by respondents Nos.4 to 9 and further that he bore a grudge and animosity towards respondent No,2 Hamdard University for being placed under suspension and for initiation of proceedings against him in accordance with their Service Statutes.
18. ' The petitioner has thus failed to establish his bona fides and good faith in approaching this Court for a writ of quo warrant against respondents Nos.4 to 9 and has also not been able to advance any plausible and justifiable reason for the delay of five years in filing this petition as he had joined the service of Hamdard University in February, 1997 but kept quiet till July, 2002.
19. ' For the foregoing facts, reasons and discussion, this Constitutional petition was found to be suffering from laches mala fide intention, and suppression of material facts not meeting any consideration and without any substance. By a short order dated 19-11-2002, it was dismissed in limine for reasons to be recorded later. These are the reasons for the said short order.