Ejaz Manzoor Chaudhary VS Mst. Fauzia Viqar etc.

Form No: HCJD/C-121

ORDER SHEET.

IN THE ISLAMABAD HIGH COURT, ISLAMABAD,

(JUDICIAL DEPARTMENT).

Writ Petition No. 1487 of 2023

Ejaz Manzoor Chaudhary Versus Fauzia Viqar and 04 others.

S.No. of Date of Order with signature of Judge and order/ order/ that of parties or counsel where proceeding proceeding necessary.

(04)14.12.2023 Mr. Muhammad Ramzan Khan, Advocate for the petitioner.

Mr. Jawad Khurshid, Advocate for respondents No. 1 & 4.

Mr. Munawar Iqbal Duggal, Additional Attorney General.

Malik Muhammad Iqbal Kallue, Assistant Attorney General.

Rehman Shahzad, Registrar, FOSPAH. Mehr Jamy, Law Officer, FOSPAH.

Through the instant writ petition filed under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, the petitioner has challenged the appointment of respondent No. 1 as Federal Ombudsperson for Protection against Harassment of Women at Workplace under section 21 of the Federal Ombudsmen Institutional Reforms Act, 2013 for a period of four years vide notification dated 28.02.2023, issued by respondent No.

5/Ministry of Law and Justice.

Writ Petition No. 1487 of 2023

02.Learned counsel for the petitioner, inter-alia, contends that the appointment of respondent No. 1 against the post of Federal Ombudsperson for Protection against Harassment of Women at Workplace is totally against the law; it is categorically mentioned in the section 7(2) of Protection against Harassment of Women at the Workplace Act, 2010, that, “A person shall be qualified to be appointed as an Ombudsman who has been a judge of High Court or qualified to be appointed as a judge of High Court”.

Respondent No. 1 has neither worked as a Judge of High Court nor she is qualified to be appointed as a Judge of High Court on the ground that she is not an Advocate/law graduate, hence her appointment is illegal and unlawful and the same is liable to be set- aside.

03.On the other hand, learned counsel for respondents No. 1 & 4, has controverted the arguments advanced by learned counsel for the petitioner and has stated that the petitioner with malafide intentions has

Writ Petition No. 1487 of 2023

deliberately tried to mislead this Court by creating a false impression that appointment of respondent No. 1 has been made under section 7 of the Protection against Harassment of Women at the Workplace Act, 2010, whereas in actual fact, the appointment of respondent No. 1 has been made under section 21 of the Federal Ombudsmen Institutional Reforms Act, 2013;

the petitioner has no locus standi to file the instant writ petition, as the same is the outcome of malafide intentions; section 21 of the Act, 2013, empowers the President of Islamic Republic of Pakistan to appoint respondent No. 1, as Federal Ombudsperson for Protection against Harassment of Women at Workplace by virtue of section 24 which gives overriding effect to section 21 of the Act, 2013, in place of section 7 of the Protection against Harassment of Women at the Workplace Act, 2010 and has prayed that instant petition be dismissed with heavy cost as the petitioner has wasted time of Court by mentioning wrong facts and assertions.

Writ Petition No. 1487 of 2023

04.Arguments advanced by learned counsel for the petitioner and learned counsel for respondents No. 1 & 4 have been heard and record has been perused with their able assistance.

05.The respondent No. 1, Fauzia Viqar was appointed as Federal Ombudsperson for Protection against Harassment of Women at Workplace under section 21 of the Federal Ombudsmen Institutional Reforms Act, 2013, (“The Act”) for a period of four years with effect from the date of taking oath of the said office.

06.The petitioner has not mentioned a single word/ground in the contents of the writ petition that what violation of law has been committed by appointing the respondent No. 1, under section 21 of the Act, 2013.

07.The main emphasis of the petitioner is that respondent No. 1 does not fulfill the criteria mentioned in section 7(2) of the Protection against Harassment of Women at

Writ Petition No. 1487 of 2023 the Workplace Act, 2010, which provides as under;

“A person shall be qualified to be appointed as an Ombudsman who has been a judge of High Court or qualified to be appointed as a judge of High Court.”

08.Respondent No. 1 has not been appointed under section 7(2) of the Protection against Harassment of Women at the Workplace Act, 2010, rather she has been appointed under section 21 of the Act, 2013, which is reproduced as under:

“Miscellaneous.---A woman, with an experience of atleast ten years in the matters relating to protection of women against harassment shall also be eligible to be appointed by the President as Ombudsman under the Protection against Harassment of Women at the Workplace Act,

09.The petitioner has not called in question that respondent No. 1 is not eligible to fulfill the criteria, as mentioned in section 21 of the Act, 2013.

Writ Petition No. 1487 of 2023

10.It is also provided under section 24 of the Act, 2013, that:

“Overriding effect.---(1) The Provisions of this Act shall have effect notwithstanding anything contained in any other law for the time being in force.

(2)In case there is a conflict between the provisions of this Act and the relevant legislation, the provisions of this Act to the extent of inconsistency, shall prevail.

11.The Supreme Court in its recent judgment, which is reported as Jawad Ahmad Mir Versus Prof. Dr. Imtiaz Ali Khan, Vice Chancellor, University of Swabi, District Swabi, Khyber Pakhtunkhwa and others (2023 SCMR 162), delineated the scope of writ of quo warranto and necessary conditions for its issuance. In the aforenoted judgment it is held that:

“8....The conditions necessary for the issuance of a writ of quo warranto are that the office must be public and created by a statute or Constitution itself; the office must be a substantive one and not merely

Writ Petition No. 1487 of 2023 the function of an employment of a servant at the will during the pleasure of others; there has been contravention of the Constitution or a statute or statutory instrument by appointing such person to that office. The essential grounds for issuing a writ of quo warranto are that the holder of the post does not possess the prescribed qualification; the appointing authority is not the competent authority to make the appointment and that the procedure prescribed by law has not been followed....”

Moreover, this Court in the case of Ayaz Ahmed Khan Vs. Federation of Pakistan through Secretary Ministry of Interior, Islamabad and 4 others (2021 PLC(C.S.)

1394), aptly expressed the position of law regarding writ of quo warranto and the relevant extracts are reproduced herein below:

“4. It is well settled that the High Court's power under Article 199 of the Constitution to grant relief to a petitioner by issuance of directions, orders or writs is purely discretionary. This power can be exercised to grant relief only to a person whose conduct does not

Writ Petition No. 1487 of 2023 disentitle him to obtain such relief. The exercise of writ jurisdiction has to be founded on sound discretion and on consideration of recognized judicial principles governing exercise of such discretion. The High Court cannot refuse to take into consideration a petitioner's conduct which disentitles him from such relief.”

“5. A writ of quo warranto is not to be issued as a matter of course. It is in the discretion of the Court to refuse or grant it according to the facts and circumstances of the case. The foremost obligation of the Court while hearing a petition seeking the issuance of a writ of quo warranto is to enquire into the conduct and motive of the relator and may, in its discretion, decline to issue a writ where it would be vexatious to do so....”

12.Reliance is also placed on the following judgments:

i. Dr. Muhammad Naseem Khan Vs. Dr. Shahzad ALi Khan and 3 others (2023 PLC (C.S.) Note 8.

ii. Dr. Azim-ur-Rehman Khan Meo Vs. Government of Sindh and another

(2004 SCMR 1299).

Writ Petition No. 1487 of 2023

13.As the petitioner has failed to point out any illegality/violation of law, rules regarding appointment of respondent No. 1, hence instant petition is dismissed being meritless with costs of Rs. 50,000/- (Fifty Thousand only).

(TARIQ MEHMOOD JAHANGIRI)

JUDGE

Approved for Reporting.

Bilal /-