Abdul Hayee VS Federation of Pakistan etc

FORM No. HCJD/C-121

ORDER SHEET

LAHORE HIGH COURT, MULTAN BENCH,

MULTAN.

JUDICIAL DEPARTMENT

W.P.No.20161 of 2023 Abdul Hayee versus Federation of Pakistan, etc.

Sr. No. of order/ Date of order/ Order with signature of Judge, and that of Proceedings Proceeding Parties” counsel, where necessary 04.12.2024 Syed Muhammad Shahid Hashmi, Advocate for the petitioner.

Mr. Nadeem Ahmad Tarar, Deputy Attorney General for Pakistan.

Hafiz Tariq Naseem, Advocate for the respondents No.5 and 6.

Rao Muhammad Iqbal, Advocate for respondent No.4. Ms. Huma Noreen, legal consultant (M.O. Railways) and Haroon Latif, D.G. Legal Affairs, Railways.

The petitioner, Abdul Hayee through the instant petition in the nature of Quo-warranto filed under Article 199(i)(b)(ii) has prayed as under:- “In view of above, it is therefore, inter alia most respectfully prayed that this Hon'ble Court may very graciously be pleased to call for and summon(s) the records and proceedings from the Respondents and on considerations of above facts and grounds be pleased to accept this petition, admit the same and as such Petitioner also prays for order(s)/Declaration(s)/ Direction(s)/Judgment/appropriate writ against the Respondents here in as follows;

i. To issue Writ of Quo-Warranto against the Respondents No.5 & 6, there current appointments, being in blatant violation of the Estab. Div OM dated 12-10-2012 and further hit by Rules-3 of S.R.O 874 (I) 90 dated 23-08-1990 and to restrain both the Respondents from performing their duties immediately till the final disposal of the above titled petition.

ii. To direct Respondent No.1 to ensure implementation of Estab. Div OM dated 12- 10-2012 and Rules-3 of S.R.O 874 (1) 90 dated 23-08-1990 in its true letter and spirit. iii. To direct the Respondent No.1 & 2 to take appropriate action against the Respondents No.5 & 6 for such mala fide acts of

concealment from the authorities concerned for their personal gains.

iv. To restrain Respondents No.1, 2 & 3 from considering the promotion case of Respondents No. 5 & 6 in the upcoming promotion board likely to sit w.e.f 14.07.2023 till final disposal of the instant writ of Quo Warranto.

Any other relief which this Hon”ble Court may deem fit and appropriate in the larger interest of justice may be awarded to the petitioner.”

2.The claim of the petitioner is based on the facts that Pakistan Railways is one of the departments of Federal Government and is governed under the rules framed by the Federal Government and the procedures made thereunder. Officers of Pakistan Railways (Commercial & Transportation) Group are allocated the Service Group after passing Central Superior Services (CSS) Examination through Federal Public Service Commission (FPSC), who as per prescribed procedure, are required to undergo following mandatory trainings/ Examination during their probation period: i. Initial Training Program (ITP)/Common Training Program (CTP).

ii. Specialized Training Program (STP) iii. Final Passing Out (FPO) Examination.

3.After passing the aforementioned examination, the seniority of the officers is fixed on the basis of total marks obtained in the CSS, ITP/CTP, STP and FPO. An officer who passes CSS examination but fails to qualify any of the aforesaid training program or final passing out examination, renders his appointment liable to termination without notice. It is claimed that respondents No.5 and 6 failed to qualify their STP training as per their respective result of STP, attached with the petition as Annex-B, thus have not successfully completed their probation period and could not be appointed to the posts

they are presently holding, hence they be directed to explain that under what authority they are holding their offices.

4.The learned counsel for the respondents and the law officers have controverted the arguments of the learned counsel for the petitioner and have prayed for dismissal of this petition. The respective stance of the parties shall be discussed in latter portion of this order.

5.An officer who seeks to be appointed in the Pakistan Railways (Commercial & Transportation) Group is required to qualify Central Superior Services (CSS) Examination through Federal Public Service Commission (FPSC). Thereafter as per sub-rule (1) of Rule 3 of the Occupational Groups and Services (Probation, Training and Seniority) Rules, 1990 (“the Rules”) made by the President of Pakistan in exercise of powers conferred by Section 25 read with Section 6 & 8 of the Civil Servants Act, 1973, notified through S.R.O. 874(I)90 dated 23.08.1990 published in the Official Gazette on 25.08.1990, he as a probationer has to undergo training in such training institutes at such times and places as may be prescribed by the Government and any probationer who fails to undergo prescribed training and qualify the prescribed examination renders his appointment liable to termination without notice. As per sub-rule (2) of Rule 3 of the Rules, the probationer is required to qualify every examination to the satisfaction of the head of the training institution where he is undergoing training. Sub-rule (3) of rule 3 of the Rules provides that in addition to 1500 marks of CSS examination, 500 marks shall be allocated for initial training program, 600 marks for specialized training program and 1000 marks for the final passing out

examination. Sub-rule (4) of rule 3 of the Rules provides that every probationer shall be required to qualify the Final Passing Out Examination in the subjects approved by the Government.

Rule 7 of the Rules provides that the seniority of the probationers shall be determined by the appointing authority after Final Passing Out Examination. Sub rule (4) of Rule 7 provides that for the purpose of determining the inter-se-seniority of the probationers who commence their training with initial training program the marks obtained by a probationer in the competitive examination of the Commission or his notional marks, as the case may be, shall be added to the marks obtained by him in the initial training program, specialized training program and the marks obtained by qualifying the Final Passing Out Examination in his first attempt i.e. total of their respective scores in CSS, ITP/CTP, STP and FPO.

6.Learned counsel for the petitioner claims that it has come to the knowledge of the petitioner that respondent Nos. 5 and 6 failed in their respective Specialized Training Program (STP) with the following attributes: Name of Officer STP Ref. STP Final Result th Syed Mazhar Ali 25 STP Failed in Column 13 Shah, Respondent Examination i.e. Commercial No. 5 Coaching Shoaib Adil, 26th STP Failed in Column 3 & Respondent No. 6 Examination 19, Absent in Columns

7.On the basis of afore-said assertions, it has been claimed by the petitioner that as per the statutory rules, mentioned above, Respondents No.5 and 6 are not confirmed into the Service of Pakistan Railways yet as having failed in mandatory training of Specialized Training Program (STP). It has been further pointed out that another blatant violation of appointing Respondents No.5 & 6 at present position is that Pakistan Railways

(Commercial & Transportation) Group became Occupational Group in 2012 vide Rules and Procedures applicable to Occupational Groups/Services promulgated through Establishment Division”s O.M. No. F.1/13/92- CP-II dated 12.10.2012 (“the Relevant Rules”). Rule 1.16(8) of the relevant rules permits the officer of the Railways (Commercial and Transportation) Group to be posted in Secretariat Group in BS-19 and above but said rules are prospective in nature and cannot be given retrospective effect. Therefore, Respondents No.5 and 6, who belong to the batch which joined service before 2012 are ineligible to hold the posts in Secretariat Group being ex-cadre officers and not part of any Occupational Group. It has also been claimed that a High Powered Selection Board will tentatively sit to consider the case of promotion of officers from BS-21 to BS-22, where through concealment of the aforementioned facts, cases of Respondents No.5 and 6 are also going to be considered.

8.The FPSC in its reply, which is relied upon by the learned Deputy Attorney General for Pakistan, has mentioned that prima facie the petitioner has no grievance with respondent No.3 (FPSC) which has no relevance to the High Powered Selection Board which considers promotion cases of Officers from BS-21 to BS-22. It has further been mentioned that as per the record available with the FPSC, Respondent No. 5 (Syed Mazhar Ali Shah) was a probationer of Railway (Commercial and Transportation) Group of 25th Common Training Program (CTP). On recommendation of respective Specialized Training Program (STP), he participated in Final Passing Out Examination (FPOE), held by FPSC in which he was declared pass. The said document is attached with the reply as Annex-I. As

regards Shoaib Adil (Respondent No. 6), he was originally probationer of Railway (Commercial and Transportation) Group/service of 26th CTP. He could not qualify the FPO examination in terms of the Rules. However, he appealed before Federal Services Tribunal which was allowed by the Tribunal vide judgment dated 03.12.2007 and upheld by the Supreme Court of Pakistan vide its judgment dated 21.11.2011. Accordingly the probationer was given an additional chance to appear in Final Passing Out Examination (FPOE) vide Ministry of Railways Notification dated 21.02.2011, attached as Annex-II with the comments. Consequently, Shoaib Adil (respondent No. 6) participated in the FPO Examination held by FPSC along with probationers of 37th CTP and he was declared as successful. The copy of pass result card has been attached as Annex-III with the comments.

9.Respondents No.5 and 6 have also controverted the assertions of the petitioner and defended their rights to hold the posts they are presently holding by claiming that petition has been filed with ulterior motive and requires inquiry into a factual controversy beyond the scope of petition for Quo-Warranto besides having been belatedly filed after 23 years relating to a matter which relates to January 2000, without seeking condonation of delay. It is further claimed that STP examination result (Annex-B) upon which the petitioner has based his claim is a fake document as Respondents No.5 and 6 qualified the training, passed final examination and then were relieved by the Director General Walton Academy and the Departmental Authorities after examining each and every aspect of the matter promoted the said Respondents on recommendations of duly constituted DPC/CSB and are continuing since long without any complaint whatsoever, and the petitioner had filed this petition to blackmail the

said Respondents on flimsy grounds and also negated the allegations of collusion as they had no active role in consideration of cases for promotion.

10.In the reply submitted by the Pakistan Railways it is mentioned that the petitioner has annexed fake document as Annex-B in the writ petition as Respondents No.5 and 6 successfully qualified the training and they were relieved by the Director General Walton Academy and the departmental authorities after examining each and every aspect of the matter promoted the Respondents No.5 and 6 on the recommendation of duly constituted DPC/CSB. The allegation of collusion of authorities with Respondents No.5 and 6 was also denied. The stance of respondent Nos. 5 and 6 was reiterated. Along with the reply supported by other documents, letter dated 12.04.2000 issued by the Directorate of Walton Training Academy addressed to the General Manager (Personnel) Pakistan Railways, Headquarters Office Lahore was also attached in which it has been mentioned that on completion of training, Syed Mazhar Ali Shah, probationer had been relieved from the said directorate to report to General Manager (Personnel) for further orders.

11.On the one hand, the petitioner claims that respondent Nos. 5 and 6 have not passed the STP by relying upon Annex-B comprising of documents attached with the petition showing that the said respondents had not completed the said training program and on the other hand the respondents have claimed the said documents to be fake and have relied upon successful completion of the examination process by referring to various other documents. Whether such documents forming part of Annex-B were genuine or fake require determination of disputed facts which is not permissible in the

constitutional jurisdiction of this Court as this Court has nothing available on the record to show that the genuineness of said documents was determined by a forum of competent jurisdiction, which could enable the Court to comment upon the genuineness of the same. Reliance is placed on Fida Hussain and another versus Mst. Saiqa and others (2011 SCMR 1990) and Punjab Small Industries Corporation versus Ahmad Akhtar Cheema (2002 SCMR 549), Secretary to the Government of the Punjab, Forest Department, Punjab, Lahore through Divisional Forest Officer versus Ghulam Nabi and 3 others (PLD 2001 SC 415), wherein it is mentioned that the High Court in its Constitutional jurisdiction can only decide the matter on the basis of undisputed facts or on the basis of facts that do not require deeper appreciation of material available on the record for determination of disputed facts, hence this Court at this stage would not entertain the grievance raised by the petitioner by entering the arena for determining the said disputed facts.

12.Another aspect of the matter is that all the learned counsels representing Respondents No.5 and 6, FPSC and Pakistan Railways, have claimed that only after passing the ITP and STP the probationer can appear in the Final Passing Out Examination (FPOE) and the passing of the said examination means that all the procedure inclusive of the training has successfully been completed. The said aspect of the matter has been contested by the petitioner but reference has not been made to any provision whereby a probationer who had not successfully completed the ITP and STP was permitted to appear in the Final Passing Out Examination.

13.Moreover, the petitioner wants this Court to declare that Respondents No.5 & 6 are not qualified to hold their respective posts as having failed to qualify the STP. As already observed that for passing the FPO Examination after qualifying the CSS Examination, completion of ITP and STP training were pre-requisite conditions. Respondents No.5 and 6 have been shown to have qualified the FPO Examination which is the final step in inducting a civil servant in the service of Pakistan. Thus, if it is declared that Respondents No.5 & 6 have not passed STP, the result of FPO Examination has also to be set aside, for which purpose this is not the correct forum as in the constitutional jurisdiction of this Court, the Court cannot indulge in fishing inquiry in the internal working of the respondent department/academy.

14.Similar questions had arisen in an election matter when the nomination papers of Senator Justice (Retd.) Muhammad Rafiq Tarrar for contesting the elections for the office of the President of Pakistan were submitted before the Acting Chief Election Commissioner of Pakistan. At the time of scrutiny, an objection was raised by Mr.Aftab Shahban Mirani, who was another contesting candidate, to the candidature of the petitioner (Senator) on the ground that he had been defaming and ridiculing the judiciary and was as such disqualified to contest the election for the Office of President of Pakistan. This objection prevailed with the learned Acting Chief Election Commissioner/Returning Officer who rejected the candidature of the petitioner (Senator), vide his order dated 18.12.1997, which has been assailed by the petitioner (Senator) by filing Constitutional petition on 19.12.1997 in the Lahore High Court, Lahore and came up for hearing before a Full Bench of this Court, where the question arose that whether the Acting

Chief Election Commission of Pakistan could declare that petitioner (Senator) was disqualified to contest the presidential elections for lacking qualification for holding the office of President of Pakistan provided in Sub- Article (2) of Article 41 of the Constitution of the Islamic Republic of Pakistan, 1973, when the basic qualification for appointment as President of Pakistan was the same as provided for a member of Parliament along with added qualification of being a Muslim having minimum age of 45 years, especially when by such declaration he was to be declared as lacking qualification to hold office of member of Parliament and if it is done whether it would not also amount to disqualifying the senator to remain a member of the Parliament and whether the same could be done without following the procedure prescribed by law.

15.In the said petition, a Full Bench of this Court through order dated 12.01.1998 reported as Muhammad Rafiq Tarrar versus Justice Mukhtar Ahmad Junejo, Acting Chief Election Commissioner of Pakistan and 6 others (PLD 1998 Lahore 414) while granting interim relief to the Senator to contest elections for the Office of President of Pakistan, observed as under:- “11. Prima facie, therefore, we are of the view that the Returning Officer was not justified in rejecting the petitioner's nomination on the basis of Article 63(1)(g) of the Constitution of Islamic Republic of Pakistan, 1973. Furthermore, to us it appears to be anomalous, at least at this stage, to hold that though the petitioner may continue to be a Member of the Parliament yet he is not qualified to be elected as President. Tentatively speaking, this question could only be considered by the Chief Election Commissioner on a reference made by the Chairman of the Senate under Article 63(2) of the Constitution.”

16.In the same petition through final order dated 09.02.1998 reported as Muhammad Rafiq Tarrar versus Justice Mukhtar Ahmad Junejo, Acting Chief Election Commissioner of Pakistan and 6 others (PLD 1998

Lahore 461) while granting final relief to the Senator to contest elections, the Full Bench of this Court observed as under:- “21. We cannot lose sight of the fact that the petitioner at the time when he did file nomination papers was a sitting Member of the Parliament. But for his' election to the Office of the President the petitioner should have continued to be so. It would, therefore, be anomalous that though the petitioner could remain a Member of the Parliament, he was not qualified to contest election for the Office of President. If a person is a sitting Member of the Parliament he can only be disqualified from being so by the Chief Election Commissioner on a reference made by the Speaker or the Chairman of the Senate, as the case may be, and it is not open to any other functionary to take any decision in that respect in any manner other than that provided by the Constitution. Pir Sabir Shah v. Federation of Pakistan etc. (PLD 1994 SC 738) may be referred to with advantage.”

17.In the instant case, position is somewhat similar as the petitioner in this petition has prayed that Respondents No.5 & 6 be directed to show to the Court under what authority of law they claim to hold their respective present offices and are qualified for consideration of their cases for further promotion by requiring the said Respondents to show that whether they had successfully completed STP training before passing the Final Passing Out Examination and the same, in fact, would amount to challenging their basic appointment to the Service of Pakistan in the Railways Department under the process initiated by the FPSC and such an order cannot be passed at this stage without there being a declaration from the Walton Training Academy or the FPSC that Respondents No.5 & 6 had not successfully completed the probation period by qualifying the training or Final Passing Out Examination as this Court, at this stage, without such a declaration is not in a position to go beyond the result of Final Passing Out Examination for the reason that all the previous trainings had merged into the result of the Final

Passing Out Examination which is stated to have been successfully qualified by Respondents No.5 and 6 as per the stance taken by the said respondents and seconded by the official respondents. Needless to say that where an officer is qualified to hold office in the Service of Pakistan by passing the Final Passing Out Examination, he cannot be treated to be ineligible to hold a post that he is qualified to hold on the basis of passing such examination along with other prescribed qualifications if possessed by him. Therefore, unless it is declared by the competent authority that he did not either qualify the CSS examination conducted by the FPSC or is declared by the academy that he did not qualify the Final Passing Out (FPO) examination, no adverse inference can be drawn against any of Respondents No.5 and 6.

18.Even otherwise the instant petition appears to be barred by laches as Respondents No.5 and 6 cleared the Final Passing Out Examination many years ago and are now serving in grade 21. Throughout their service, the matter of failing to complete STP before passing the FPOE was never raised and appears to have been raised at this belated stage without having first have had resort to find out with precision whether the said training had been completed before clearing FPOE, hence this petition is liable to be dismissed on the question of laches as well. Reliance may be placed on Muhammad Rafique and 2 others versus Muhammad Pervaiz and 2 others (2005 SCMR 1829) wherein the Hon”ble Supreme Court of Pakistan held that Constitution petition filed after a period of five years when the petitioners had already been confirmed in their appointments after successful completion of probation period suffered from gross laches without there being any justifiable explanation. The Hon”ble Supreme Court of Pakistan in judgment

reported as Asif Hassan and others versus Sabir Hussain and others (2019 PLC (CS) 1375) held that no doubt a writ in the form of quo warranto is an extraordinary discretionary jurisdiction and the Court is not bound to exercise such jurisdiction in each and every case especially where on account of laches the matter has lost its significance or in cases of minor discrepancies, sheer curable technicalities or where the approach is doctrinaire unless it is shown that non-interference would result in grave injustice or would amount to endorsing the retention of illegal gains. Similar view has also been taken by the Lahore High Court, Lahore in cases reported as Ammad Ahmad versus National Highway Authority through its Chairman and 5 others (2018 PLC (CS) Note 187 Lahore) and Rizwan Ali Sayal versus Federation of Pakistan and others (PLD 2024 Lahore

19.It is also pertinent to be noted here that the Hon”ble Supreme Court of Pakistan in judgment reported as Dr. Azim-ur-Rehman Khan Meo versus Government of Sindh and another (2004 SCMR 1299) has laid down the principles for exercising jurisdiction relating to issuance of writs of Quo-warranto and has held the same to be purely discretionary and all the circumstances of the case taken together must govern the discretion of the Court, which has to be exercised in accordance with judicial principles and not to be exercised as a matter of course on sheer technicalities or a doctrinaire approach. The operative portion of the said judgment is reproduced below:- “It is well-settled by now that “under Article 199 all the reliefs obtainable under it are purely discretionary and on the principles governing writs of quo warranto the relief under Article 199(2)(b)(ii) is particularly so. Quo warranto is not issued as a matter of course. The Court can and will enquire into the conduct and

motive of the relator. No precise rule can be laid down for the exercise of discretion by the Court in granting or refusing an information in the nature of quo warranto. All the circumstances of the case taken together must govern the discretion of the Court. The discretion has to be exercised in accordance with judicial principles. The writ is not to issue as a matter of course on sheer technicalities on a doctrinaire approach.” Federation of Pakistan v. Muhammad Saifullah Khan PLD 1989 SC 166, Federation of Pakistan v. Muhammad Saifullah Khan 1988 SCMR 1996, Azizur Rahman Chowdhury v. M. Nasiruddin PLD 1965 SC 236 and Hari Shankar v. Sukhdeo Prasad AIR 1954 All. 227. There is no cavil with the proposition that in respect of order of quo warranto it is not necessary that a person must be aggrieved and no such restriction could be placed which is in fact contemplated under sub‐clause (a) of clause 1 of Article 199 of the Constitution and accordingly any person irrespective of the fact whether he is an aggrieved person or otherwise can invoke the Constitutional jurisdiction by way of writ of quo warranto against usurpation of a public office by a person without having any lawful authority. In this regard we are fortified by the dictum laid down in the following cases:

M.U.A. Khan v. M. Sultan PLD 1974 SC 228; Salahuddin v. Frontier Sugar Mills. and Distillery Ltd. PLD 1975 SC 244, M.U.A. Khan v. M. Sultan 1981 SCMR 74, Federation of Pakistan v. Muhammad Saifullah Khan PLD 1989 SC 166 and Federation of Pakistan v. Muhammad Saifullah Khan 1998 SCMR 1996.”

20.The question of violation of rules and regulations in appointing respondents No.5 & 6 at present positions on the ground that Pakistan Railways (Commercial & Transportation) Group became Occupational Group vide Establishment Division”s O.M. No. F.1/13/ 92-CP-II dated 12.10.2012, Rule 1.16(8) whereof permits an officer of the said group to be posted in Secretariat Group in BS-19 or above, being prospective in operation and therefore not being applicable to Respondents No.5 and 6 with retrospective effect, who had been appointed in Pakistan Railways much prior to the same, relates to terms and conditions of service and in terms of Rule 1.16(10) thereof may be raised before the Anomaly

Committee comprising representatives (not below the rank of BS-21) of the Establishment Division and Ministry of Railways where the final decision is to be made by Secretary Establishment Division and resort may also be had to the Services Tribunal, therefore due to availability of alternate remedy it is not required to be determined in the petition of Quo warranto. Reliance may be made to Azim-ur-Rehman Khan Meo”s case (supra) wherein it has been held that:- “After having perused the entire record we are of the considered opinion that High Court cannot issue writ in the nature of quo warranto by removing a person from public office. The incumbent, did not suffer from any disqualification to hold a public office or to warrant removal from such office because issue of qualification relates to terms and conditions of service which aspect of the matter fell exclusively within the jurisdictional domain of Service Tribunal.”

21.Furthermore, question of violation of terms and conditions of a civil servant ought to be raised before the Service Tribunal instead of having resort constitutional jurisdiction of this Court. Reliance in this regard has also been placed on judgment reported as Ahmad Ullah and others v. District Education Officer (Male), Buner and others (2024 SCMR 2004).

22.The question of collusion of Respondents No.5 and 6 with the official respondents for seeking promotion by concealment of facts is not prima facie established on the record to the extent of facts which are undisputed between the parties and deeper appreciation of disputed facts for determining the authenticity of the said allegations is not permissible in the constitutional jurisdiction of this Court.

23.The objections of the instant petition being mala fide and filed for purpose of blackmail raised before this Court by the respondents against the petitioner do not

require to be addressed at this stage because the same do not have any effect on the decision reached by this Court, hence are left open and undecided.

24.For what has been discussed above, it is observed that there is presently no ground to hold that Respondents No.5 and 6 lack qualification to hold the offices that they are presently holding, hence this petition being devoid of merits is dismissed.

C.M.Nos.4248, 7984 & 7985 of 2024

25.As the main case has been dismissed, therefore, these applications seeking interim relief along with all other pending applications have become infructuous and are disposed of accordingly.

(MUZAMIL AKHTAR SHABIR)

JUDGE

*KMSubhani*

APPROVED FOR REPORTING.