Faqir Muhammad Khokhar, J.--The petitioner seeks leave to appeal under Article 185(3) of the Constitution of Islamic Republic of Pakistan, 1973, from orders dated 20.3.2003 and 17.6.2003 passed by the Lahore High Court, Rawalpindi Bench in Writ Petition No, 2316/2001 and I.C.A. No, 32/2003 respectively.
2. Briefly stated, the facts of the case are that the petitioner was appointed on 12.7.1989 as an Executive Officer (BS-19) in Agricultural Prices Commission (the Respondent No, 2) (hereinafter referred to as the Commission). The post of the Executive Officer/Director was upgraded from BS-19 to BS-20 by the Prime Minister of Pakistan. The petitioner was appointed as such by Notification dated 10.9.1998 issued by the Government of Pakistan, Ministry of Food, Agricultural and Livestock (hereinafter referred to as the Government) after his selection by an appropriate Selection Board constituted for the purpose with the approval of the Prime Minister.
3. The Chairman of the Commission by office orders dated 16.12.1999, 20.1.2000 and 7.3.2000, transferred and posted the petitioner to the lower post of Secretary of the Commission (BS-19), reduced his salary and placed him in the surplus pool respectively. The Chairman also initiated disciplinary proceedings and issued him a final show-cause notice dated 20.6.2000. On an appeal of the petitioner, the Chief Executive's Secretariat, directed the Federal Minister, Food, Agriculture and Livestock, to resolve the matter on merits being competent authority in the case of BS-20 and above officers of the Commission. By order dated 6.7.2000, the Government stayed the disciplinary proceedings against him. Nevertheless, the Chairman proceeded to pass an order dated 15.9.2000 imposing upon him, a major penalty of reversion to BS-18. The Federal Minister, by O.M. dated 19.4,2001, quashed the inquiry proceeding, and also orders dated 16.12.1999, 20.1.2000 and 7.3.2000 which had been passed by the Chairman, against the petitioner. .
4. Without waiting for the final outcome of his departmental appeal, the petitioner had preferred Regular Service Appeal No, 409' /C.S/2000 against orders dated 16.12.1999, 20.1.2000 and 7.3.2000 and Appeal No, 60' / C.S/2001 before the Federal Service Tribunal (hereinafter referred to as the Tribunal) against order dated 15.9.2000 of the imposition of major penalty of reduction of rank in BS-18. The Appeal No, 60 /C.S/2001 was dismissed by the Tribunal in limine, by judgment dated 30.4.2001, for non-prosecution, barred by limitation and on merits. He filed C.P.L.A. No, 1824/2001 before this Court there-against which was allowed to be withdrawn on 23.7.2002 in view of order dated 19.4.2001 passed by the Federal Minister and subsequent clarification by the Government in his favour. He was allowed by the Tribunal to withdraw his other Service Appeal No, 409 /CS/2000 on 10.9.2001 for the same reasons. He had also filed a writ petition against the adverse orders which was disposed of by the Lahore High Court, Rawalpindi Bench, on 20.6.2001 as having become infructuous in view of acceptance of his departmental appeal.
5. Thereafter, the Respondent No, 1, a driver of the Commission, showed up himself in the Lahore High Court, Rawalpindi Bench by filing a Writ Petition No, 2316/2001 against the petitioner under Article 199 of the Constitution 'of Islamic Republic of Pakistan in the nature of quo-warranto. A learned Single Judge in Chambers of the High Court, by the impugned order dated 20.3.2003, disposed of the same with the direction that, subject to the decision of this Court, the order dated 15.9.2000 of reduction in rank of the petitioner in BS-18, passed by the Chairman of the Commission as upheld by the Tribunal would remain in field. The holding of a post by the petitioner other than the one mentioned in order dated 15.9.2000 was declared to be without lawful authority. The petitioner filed ICA No, 32/2003 which was dismissed by a learned Division Bench Of the Lahore High Court, Rawalpindi Bench, by the impugned order dated 17.6.2003 as being not maintainable.
6. The learned counsel for the petitioner vehemently contended that the Chairman of the Commission had showed his resentment to the orders of the Minister and of the Government in favour of the petitioner. He was still hell bent to victimize the petitioner by all means. It was at the behest of the Chairman that the Respondent No, 1, who was his driver. was made .to file the writ petition. Therefore, the conduct of the petitioner disentitled him to the grant of discretionary relief in a writ of quo-warranto. The High Court acted in oblivion of the fact that the petitioner had already been allowed by this Court to withdraw his C.P.L.A. No, 1824/2001 on 23.7.2002 in view of favourable order dated 19.4.2001 by the Federal Minister and subsequent clarification by the Government.
Nothing was pending before this Court when the impugned order dated 20.3.2003 was passed. It was further submitted that even the judgment dated 30.4.2001 passed by the Tribunal in Service Appeal No, 60 /C.S./2001 on merits was bad in law as the same was to be dismissed for non- prosecution only. The petitioner did not pursue the same before the Tribunal for the reason that he had already been provided the requisite relief by the departmental authorities. It was argued that the learned Single Judge in Chambers did not give any reason for passing the impugned order dated 20.3.2003. Similarly, the learned Division Bench of the High Court also erred in law in taking the view that the Intra-Court Appeal was not maintainable under Section 3(2) of the Law Reforms Ordinance, 1972. However, the petitioner had also made an application before this Court for condonation of delay in filing this petition against the impugned order dated 20.3.2003. The learned counsel lastly contended that the Tribunal had itself allowed the petitioner to withdraw his Service Appeal No, 409-R(CS)/2001 as the higher departmental authorities had already redressed his grievances. It was lastly argued that even the High Court had disposed of the writ petition of the petitioner as having become infructuous on account of the grievances having already redressed by the higher departmental authorities.
7. On the other hand; the learned counsel for the Respondent No, 1 submitted that any person, not necessarily an aggrieved person, could file a writ of quo-warranto under Article 199(1)(b)(ii) of the Constitution in a case of usurpation of public office. The conduct of a writ petitioner could neither be relevant nor could be questioned by the Court. The learned counsel contended that the Commission was an autonomous body over which the Federal Government, a Minister and the Chief Executive of Pakistan had no power of control or supervision in regard to the disciplinary matters of its officers or employees. The orders passed by the Federal Minister and the Government being void and nullity in the eye of law were rightly ignored by the learned Single Judge of the Lahore High Court in the presence of order dated 30.4.2001 of the Tribunal.
8. We have heard the learned counsel for the parties at length. We find that the Respondent No, 1 being a driver of the Commission lacked bona fide in filing the writ of quo-warranto against the petitioner after favourable orders had been passed by the Federal Government and the Minister. It is unfortunate that sometimes the ministerial staff becomes instrumental in the hands of other senior Officers in the matter of inter-departmental rivalries so as to involved itself in vexatious litigation. It is high time that the growing tendency on the part of public servants and other persons to institute proceedings by way of writs of quo-warranto with oblique considerations or motives and just like puppets is to be deprecated by, the Courts. The learned counsel for the Respondent No, 1 could not give any explanation whatsoever as to what had prompted him to file the writ petition after a deep slumber of more than a decade. In an appropriate case the Court is entitled to look into the conduct, motive or lack of bona fides of a writ petitioner and also the delay in filing a writ petition in the nature of quowarranto for the purpose of grant or refusal of relief in the exercise of discretionary jurisdiction. The writ of quo-warranto is not issued as a matter of course on hyper-technicalities. The Court can see whether such a person has come with clean hands so as to deserve its indulgence.
9. The questions of conduct of a writ petitioner and the delay in filing a writ of quo-warranto was considered in a number of cases. In the Full Court judgment in Federation of Pakistan vs. Haji Muhammad Saifullah Khan and others (PLD 1989 S.C. 166 at page 218) the relevant observations made in earlier case of Dr. Kamal Hussain and 7 others vs. Muhammad Sirajul Islam and others (PLD 1969 S.C. 42) were reproduced 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 great 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 is 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 pubic 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 of the election petitions within its limitations. The delay has occurred in the filing of the petition which has not been satisfactorily explained is not without effect on the grant of this discretionary relief."
In M.U.A Khan vs. M. Sultan and another (1981 SCMR 74), this Court dealt with the issue in the following words :-- "Before parting with the case, we cannot help remarking that the petition instituted by the present appellant, does indeed appear to be an extension of the litigation commenced against the respondent by an official of his own Department. The appellant does not appear to have been motivated by any sense of public duty and it is accordingly a matter of some regret...
The observations made in the case of M.U.A. Khan (supra) apply, with equal force, to the facts and circumstances of the present case. In Ghulam Rasool vs. Muhammad Hayat (PLD 1984 S.C. 385) a pooling agent of a losing candidate for the election of Zilla Council had filed a writ of quo-warranto against the successful candidate. This Court took the view that such a person should be deemed to be acting not probono publico but for the benefit of a losing candidate and issuance of writ was declined. In the case of Azizur Rahman vs. M. Nasiruddin and others (PLD 1965 S.C. 236), it was held that a writ of quo-warranto was not a writ of course and the Court was entitled to inquire into "conduct and motives" of applicant and to refuse the writ where information laid was of a vexatious nature. In the case of Syed Ali Raza Asad Abidi vs. Ghulam Ishaqu Khan, President of Pakistan and another (PLD 1991 Lahore 420), a learned Division Bench of the Lahore High Court had dismissed a writ of quo-warranto on the ground of laches also where the inordinate delay of more than three years in filing the same was not explained.
10.In Halsbmy's Laws of England, 4th Edition, 1989, Volume 1 (1), at page 372 para 274, it is stated that :-- "an information in the nature of quo-warranto was not issued, and an injunction in lieu thereof would not be granted, as a matter of course. It was in the discretion of the Court to refuse or grant it according to the facts and circumstances of the case. The Court would inquire into the conduct and motives of the applicant, and the Court might in its discretion decline to grant a quo-warranto information where it would be vexatious to do so."
In a treatise titled The Law Of Extraordinary Legal Remedies, by Forest G. Ferris, page 142 Section 120, it is stated that the Attorney General, at common law, was the only person who could institute quo- warranto proceedings, and then only in cases of a public nature.
11.It seems to us that no one had brought to the notice of the learned Judge or Judges in Chambers of the High Court that this Court had already allowed the petitioner, on 23.7.2002. to withdraw his C.P.L.A. No, 1824 of 2001 in view of the fact that he had already got the relief from the higher departmental authorities. Thereafter, there was no live issue or matter which could be deemed to be pending before this Court for adjudication in relation to the petitioner. Once the High Court had assumed that the service matter of the petitioner was already subjudice before this Court (under Article 212 of the Constitution), it would have been well advised to exercise judicial restraint rather than issuing a rule nisi. In any case, there was no occasion or justifiable reason for the High Court to pass the impugned order dated 20.3.2003 albeit subject to an order of this Court.
Moreover, the service matter of the petitioner had already been decided in his favour by the higher departmental authorities. The same ought to have been considered by the High Court in its proper perspective while exercising its discretionary jurisdiction under Article 199 of the Constitution particularly when the Respondent No, 1 did not appear to have acted probono publico. In the peculiar facts and circumstances of the case the exercise of writ jurisdiction was not warranted as the subject-matter of writ was germane to the terms and conditions of service of the petitioner, a civil servant.
13.Needless to add that the High Court itself had disposed of a writ petition of the petitioner, on 20.6.2001, as having become infructuons and the Tribunal had also permitted the petitioner to withdraw his Service Appeal No, 409-R(C.S.)/2001 against orders dated 16.12.1999, 20.1.2000 and 7.3.2000 as, in the meantime, he had got the relief from the higher departmental authorities. These facts had escaped the notice of the learned Single Judge in Chambers of the High Court Now, the question of status of the Commission remains to be considered. The Commission was constituted by a resolution dated 10.3.1981 of the Government of Pakistan. It is neither a statutory body nor was it incorporated as such by or under any law for the time being in force. It seems to us that the sums required by the Commission to meet its expenditure are charged upon the Federal Consolidated Fund. The legal position of such like bodies and organizations has already been examined by this Court in the case of Mrs. M.N. Arshad and others vs. Miss Naeema Khan and others (PLD 1990 S.C.
612). Therefore, the Commission cannot claim to be a local authority or such an autonomous body which can be said to be completely independent of the control and supervision of the Federal Government.
14. In the peculiar facts and circumstances of this case, we do not consider it necessary to examine the question of maintainability or otherwise of the/Intra-Court Appeal before the High Court. Even the learned counsel for the parties did not address any arguments on the aspect of the matter.
Therefore, the application for condonation of delay in filing this petition against the impugned order dated 20.3.2003 is allowed for the reasons stated therein.
15. In view of above discussion, the petition is converted into appeal and the same is allowed with costs throughout. As a consequence, the impugned order dated 20.3.2003 passed by the High Court is set aside and the Writ Petition No, 2316 of 2001 filed by the Respondent No, 1 against the petitioner shall stand dismissed.