' This judgment will dispose of Writ Petitions Nos.11025 and 6858 of 2003 as common questions of law and fact are involved in the two cases.
2. The petitioner in Writ Petition No,11025 of 2003 is serving as a Director (Pulses) in the Ayub Agriculture Research Institute, Faisalabad, while the two petitioners in Writ Petition No,6858 of 2003 are respectively Asstt. Botanist and Asstt. Research Officer in the Directorate of Pulses, Ayub Agriculture Research Institute, Faisalabad. In both these petitions, the grievance is .Against the notification dated 4-4-2003, whereby Dr. Ghulam Ahmad, respondent No,3, has been granted extension in service w,e,f, 3-3-2003 as Director-General of the said Institute, for a period of two years after he had reached the age of superannuation. In both these petitions information has been laid for issuance of a writ in the nature of quo warranto.
3. Hafiz Tariq Nasim, Advocate appeared for the petitioner in W.P. No, 11025 of 2003. He submits that the case of extension of service of respondent No,3 was placed before the Selection/Re- employment Board in the meeting held on 22-3-2003, in which, the Secretary Agriculture had recommended re-employment of respondent No,3 but none of the other members of the Selection/Re-employment Board agreed with the proposal of the Agriculture Department.
Notwithstanding the negative recommendation of the Board, the Chief Minister allowed extension to respondent No,3 in an arbitrary manner. According to him, unless the eligible officers in the organization were considered for appointment as Director-General, and were found unfit, the extension in service could not be granted to respondent No,3. The instructions issued by the Government of the Punjab from time to time particularly the instructions contained in the letters No,S.O.R.I. (S&GAD) 10-1/71 dated 1-9-1979, 6-10-1980 and 11.8-1975 were relied upon. According to the learned counsel, these instructions have the force of the rules. He maintains that extension in service/re-employment is to be allowed in exceptional cases i,e,, when replacement of the incumbent is not possible. He further contends that according to the letter dated 118-1975, the initiating authority has to obtain the order of the Minister incharge in the first instance which was not done and no reason for this omission is forthcoming from the record. The proposal for reemployment should be supported by detailed reasons as to why replacement is not available.
The letter dated 1-10-1976 of the Services Department, whereby the D.O. Letter No,8576/A-3 dated 4-9-1976 of the Establishment Division was endorsed to all the departments of the Punjab Government was relied upon in support of the above submission. He further contended that nobody was indispensable, while respondent No,3 was involved in financial irregularities and an Anti-Corruption inquiry was pending against him. In support of his submissions he placed reliance on Dr. Sher Bahadur Khan Panee v. The Government of West Pakistan (PLD 1956 (W.P.) Peshawar 77), A.R. Azar, Deputy Chief. Engineer, West North-Western Railways, Lahore and others v. The Federation of Pakistan and A.S. Farooqui, Director Civil Engineering, Railway Division, Karachi (PLD 1958 (W.P.)
Lah. 185) and Walayat Ali Mir v. Pakistan International Air Lines Corporation through its Chairman and another (1995 SCMR 650) to contend that discretion to grant extension in service to respondent No,3 was not exercised in a just, fair and proper manner, it was arbitrary and against the rules.
4. Ch. Mushtaq Masood, Advocate also appeared for the petitioner in Writ Petition No,11025 of 2003, He maintains that the above referred instructions requiring the recommendation of the Selection/Reemployment Board qualify as "rules" by virtue of the provisions of section 23 of the Punjab Civil Servants Act and if the Chief Minister was not satisfied with the recommendation of the Selection/Re-employment Board, the matter should have been referred to the Selection/Reemployment Board for re-consideration. According to him, administrative discretion could only be validly exercised in accordance with the rules and reason and not in an arbitrary manner.
5. Dr. Muhammad Akmal Saleemi, Advocate appeared for writ petitioner in Writ Petition No,6858 of 2003. He submits that the reason for grant of extension to the petitioner as recorded in the order by the Chief Minister was, inter alia, completion of the ongoing projects, According to him, the projects are executed by the Directors and not by the Director-General and, therefore, the extension in service was granted to respondent No,3 without any valid reason. According to him the impugned notification based on the order of the Chief Minister is based as on irrelevant consideration and stands vitiated.
6. Dr. A. Basit, Advocate appeared on behalf of respondent No,3 and contended that petitioners in both these cases are civil servants and the dispute raised by the petitioners relates to the terms and conditions not only of their service but also of the service of respondent No,3. Therefore, Article 212 completely bars the jurisdiction of this Court. He next submits that against the impugned notification, a remedy of review/representation was available and without exhausting the said remedy, the writ petition is not maintainable. He submits that the instructions being relied upon are subject to the orders of the Chief. Minister. While passing the order allowing extension to the petitioner, the Chief Minister took into consideration the relevant factors and thus, exercised discretion in a just and proper manner which is not open to judicial review particularly in a case seeking a writ/direction in the nature of quo warranto. He next maintains that there is only one post of Director-General and no promotion blockade was involved because at worst only one person could be said to be affected by the grant of extension to respondent No,3. He maintains that the petitioners in Writ Petition No,6858 of 2003 filed on the record of the said case, copies of the representations purporting to have been filed by various Directors of the Institute which were, in fact not, filed by them as ascertained from them in writing and, therefore, the said petitioners not having approached the Court with clean hands are not entitled to be heard in equitable jurisdiction of this Court.
7. Mr. Aamir Rehman, Addl. Advocate-General, defended the impugned notification. According to him, the Chief Minister overruled the recommendation of the Selection/Re-employment Board by duly applying his mind which was within the competence of the Chief Minister. He also pressed the bar of jurisdiction contemplated by Article , 212 of the Constitution.
8. Exercising the right of rebuttal, the learned counsel for the petitioner in Writ Petition No,11025 of 2003 contended that a writ in the nature of quo warranto could be filed even by a civil servant and the bar of jurisdiction contemplated by Article 212 is not attracted. Reliance was placed on a Full Bench judgment of this Court in Writ Petition No,6388 of 1990 and other connected petitions decided on 31-5-2001, another Full Bench judgment of this Court in Dr. Muhammad Azhar v. Dr. Tariq Mahmood Malik and 2 others (2002 PLC (C.S.) 57) and Abdul Bashir and 9 others v.
Government of Balochistan -through Chief Secretary, Civil Secretariat, Quetta and 3 others (2001 PLC (C.S.) 771). It may be noted that in Writ Petition No,6388 of 1990 and the case of Dr. Muhammad Azhar, supra, the petitioners before this Court were civil servants and were aggrieved of the appointment made directly in the Provincial Civil Service (Executive Branch) in the first cast and appointment as Professor of Cardiology in the other case.
9. I have considered the submissions made by the learned counsel for the parties and have perused the recorded. Although, the Selection/Re-employment Board had not recommended extension in service of respondent No,2, yet the Chief Minister recorded the following order: "Normally I am averse to the idea of re-employment which leads to heart burning and promotion blockade. In the instant case, the rich professional expertise and experience gained by Dr. Ghulam Ahmad Chaudhry cannot be ignored. I, therefore, tend to disagree with the recommendations of the Selection Board for re-employment and approve the proposal of the Agriculture Department contained at para 4 ante.
' Dr. Ghulam Ahmad Chaudhary would, however, ensure that all the on-going 17 Agricultural Research Projects/Schemes mentioned at para 3 ante would be completed during this two years tenure of his re-employment and no further extension would be granted on the pretext of any delay in the completion of these Projects."
' Therefore, apart from the bar of jurisdiction, the other question which requires determination is whether the impugned notification, based on the aforesaid order of the Chief Minister was against any provision of a mandatory rule or was arbitrary as being contended.
10. I will first like to deal with the contention regarding bar of jurisdiction. In Writ Petition No,6388 of 1990 and in the case of Dr. Muhammad Azhar, supra, the civil servants had approached this Court by filing Constitutional petition in the nature of quo warranto. The bar of jurisdiction based on Article 212 of the Constitution was raised and repelled by this Court. Dr. A. Basit, Advocate tried to distinguish the said judgments by contending that in the said cases induction in the service was involved while the present case relates to reemployment/extension in service. The contention has no merit. I may add that if a civil servant approaches this Court to enforce any of the terms and conditions of his service, bar of jurisdiction is attracted but A not when he does not so claim and does not ask for any relief to himself except laying an information before this Court against usurpation of a public office. There is another aspect of the matter. The impugned order had the effect of depriving petitioner in Writ Petition No,11025 of 2003 for being considered for promotion/appointment to the post of Director-General, it affects his prospect of promotion which does not fall within the scope of terms and conditions of service of a civil servant. Reference may be made to Dr. Ehsan-ul-Haq v. The Province of Punjab and others (1980 SCMR 972) in which it was held that prospects of promotion are not terms and condition of service of a civil servant. Unless a dispute brought before this Court relates to terms and conditions of service of a civil servant, the bar of Article 212 will not apply, Therefore, the objection of the learned counsel for the respondents based on Article 212 has no merit.
11. The other question is as to whether the impugned order of the Chief Minister was against the rules or arbitrary calling for interference of this Court in exercise of Constitutional jurisdiction, particularly in a petition in the nature of quo warranto. The perusal of the said order shows that the Chief Minister was fully alive to the primary consideration for re-employment i,e, whether any promotion blockade was involved. However, the professional experience of respondent No,3 was taken into consideration and further that there were 17 ongoing projects which were directed to be completed within two years, the period of extension allowed to him.
12. The main thrust of the argument of the learned counsel for the petitioners has been that since the Selection/Re-employment Board had not recommended re-employment of respondent No,3, the Chief Minister could not grant it. The argument presupposes that, the Chief Minister is bound, in all cases, to accept the recommendation of the Selection/Re- I employment Board. I have examined the instructions being referred to and relied upon by the learned counsel for the petitioners. Although, these have the force of rules by virtue of section 23 of the Punjab Civil Servants Act, 1974, yet a perusal thereof shows that these are regulatory and directory in nature and not mandatory and the competent authority remains possessed of necessary power to re- employ a retired civil servant. The Employment/SelectiOn Board is only a recommendatory body and recommendation of - such a body could not be said to be binding on the competent authority since the substantive power to direct re-employment of a civil servant flows from section 13 of the Punjab Civil Servants Act, 1974. Although, the aforesaid section does not provide a guideline to exercise the discretion, the instructions being relied upon supply the guidelines to regulate the said discretion. Reference may also be made to Dr. Habibur Rahman v. The West Pakistan Public Service Commission, Lahore and 4 others (PLD 1973 SC 144) in which the Hon'ble Supreme Court had observed that recommendations of Public Service Commission were advisory in nature and the competent authority was not bound by such recommendations.
13. A writ in the nature of quo warranto cannot be claimed as of right. What was required to be seen in this case was whether the Chief Minister had exercised discretion with due application of mind and I am satisfied that it was so done. This Court cannot substitute its opinion for the opinion of the competent authority for the justification for the extension in service granted to respondent No,3.
14. The judgments cited by the learned counsel for the petitioners have been examined. In the case of A.R. Azhar, supra, the President had allowed extension to an officer after he had reached the age of superannuation. On examination of the relevant rules it was found that no extension in service could be granted to an officer of Class-I of the Railway service. In the case of Sher Bahadar, supra, the learned Peshawar, High Court found that the Chief Minister had passed an order directing re- employment of a civil servant without recording any reason. In the case ofWalayat Ali Mir it was observed that while exercising discretion the authority should not act arbitrarily, unreasonably and in complete disregard of the rules. There cannot be any dispute with this broad proposition.
14. For what has been stated above, I find no merit in these petitions which are, accordingly, dismissed. No order as to costs.