 All appointments made to public institutions must be based on a

process that is palpably and tangibly fair and within the parameters of
applicable rules, regulations and bye-laws Syed Mubashir Raza Jaffri and
others v. Employees Old-Age Benefits Institutions (EOBl) through President
of Board, Board of Trustees and others (2014 SCMR 949).

• There has to be a process which ensures that the widest possible pool of
qualified candidates is available to the Government. From this pool, through
a transparent selection process, appointments can be made. Randomly
entertaining CVs or seeking nominations from arbitrarily selected
consultees do not meet the requirement. The requirement can be achieved
by open advertisement i.e. inviting applications through Press from all
those who are eligible, deserving and desirous or through the auspices of
talent scouts who have the needed expertise and who can keep the
confidentiality Muhammad Ashraf Tiwana and others v. Pakistan and others
(2013 SCMR 1159) and Government of N.W.F.P. through Secretary, Forest
Department, Peshawar and others v. Muhammad Tufail Khan (PLD 2004 SC
313).

• Autonomy of Regulators and other Public Bodies is only possible when

appointments to key positions are made in a demonstrably transparent
manner Muhammad Yasin v. Federation of Pakistan through Secretary,
Establishment Division, Islamabad and others (PLD 2012 SC 132).

• The integral link between good governance and a strong and honest
bureaucracy can only come about if appointments are based on a clear
merit criterion as opposed to favoritism and nepotism Syed Mubashir Raza
Jaffri and others v. Employees Old-Age Benefits Institutions (EOBI) through
President of Board, Board of Trustees and others (2014 SCMR 949).

• Whenever there are statutory provisions or rules or regulations which

govern the matter of appointments, the same must be followed, honestly
and scrupulously Syed Mahmood Akhtar Naqvi and others v. Federation of
Pakistan and others (PLD 2013 SC 195).

• Where there are no explicit rules governing the appointment process, and
appointments are to be made in the exercise of discretionary powers, such
discretion must be employed in a structured, fair, even, just and reasonable
manner and in the public interest and not whimsically or arbitrarily Syed
Mahmood Akhtar Naqvi and others v. Federation of Pakistan and others
(PLD 2013 SC 195) and Ghulam Rasool v. Government of Pakistan through
Secretary, Establishment Division Islamabad and others (PLD 2015 SC 6).

• The Courts are duty bound to judicially review the integrity of the
selection process adopted for appointments to public offices to ensure that
the requirements of law have been met. However, they will not engage in
any exhaustive or full-fledged assessment of the merits of appointee nor
would seek to substitute their own opinion for that of the Executive
Muhammad Ashraf Tiwana and others v. Pakistan and others (2013 SCMR
1159) and Muhammad Yasin v. Federation of Pakistan through Secretary,
Establishment Division, Islamabad and others (PLD 2012 SC 132).

* The august Supreme Court in the case of ‘Salahuddin and 2 others v.

Frontier Sugar Mills and Distillery Ltd., Tokht Bai and 10 others’ [PLD 1975
SC 244] has quoted with approval the test laid down regarding a public
office by Ferris (Extraordinary Legal Remedies, 1926 Edition, p.145) and
the same is as follows.-

“a public office is the right, authority and duty created and conferred by
law, by which an individual is vested with some portion of the sovereign
functions of the Government to be exercised by him for the benefit of the
public, for the term and by the tenure prescribed by law. It implies a
delegation of a portion of the sovereign power. It is a trust conferred by a
public authority for a public purpose, embracing the ideas of tenure,
duration, emolument and duties. A public officer is thus to be distinguished
from a mere employment or agency resting on contract, to which such
powers and functions are not attracted..... The determining factor, the test,
is whether the office involves a delegation of some of the sovereign
functions of Government, either executive, legislative or juridical, to be
exercised by the holder of the public benefit. Unless his powers are of this
nature, he is not a public officer.”

* In the case of ‘Dr. Kamal Hussain and 7 others v. Muhammad Sirajul

Islam and others’ [PLD 1969 SC 42] the august Supreme Court has
observed and held that in the context of Article 199(1)(b)(ii) of the
Constitution, a petitioner need not be an aggrieved person and that the
Court is competent to test the bona fide of a relator to see if he or she has
approached the Court with clean hands, because the constitutional powers
vested in the High Court under the Constitution are of discretionary nature.
It has been further held that a writ of quo warranto cannot be issued as a
matter of course on sheer technicalities or on the basis of a doctrinaire
approach.

* In the case of ‘Lt. Col. Farzand Ali and others v. Province of West
Pakistan through the Secretary, Department of Agriculture, Government of
West Pakistan, Lahore’ [PLD 1970 SC 98] the august Supreme Court has
succinctly held that if a writ in the nature of quo warranto is allowed then
it would take effect from the date of the pronouncement of the judgment
by the High Court and not from any date anterior thereto on the ground
that the acts or orders done or passed are protected under the doctrine of
defacto.
* In the case of N-W.F.P. Public Service Commission through Chairman
and another v. Dr. Samiullah Khan and 2 others [1999 SCMR 2786] the
scope of the writ of quo warranto has been delineated and it has been
observed that a writ of quo warranto can be issued against a person who
is holding a public office without fulfilling the necessary qualifications
prescribed by law to hold such a post.

* In the case of ‘Hafiz Hamdullah v. Saif Ullah Khan and others’ [PLD
2007 SC 52] the august Supreme Court has enunciated the principles and
law and has held that the object of writ of quo warranto is to determine the
legality of the holder of a statutory or constitutional office and to decide
whether he is holding such an office in accordance with law or was
unauthorizedly occupying a public office.

* The august Supreme Court has observed and held in the case of
‘Pakistan Tobacco Board and another v. Tahir Raza and others [2007 SCMR
97] that the powers vested in a High Court are primarily inquisitorial and
not adversarial. It has further been held that a person holding an office
without any legal warrant is taxing the public exchequer, besides causing
injury to others who may be entitled to that office. It has also been
observed that such powers can be exercised by the Court suo motu even if
the attention of the High Court is not drawn by the parties concerned.

* The principles and law laid down in the case of ‘Capt. (R) Muhammad
Naseem Hijazi v. Province of Punjab through Secretary Housing and
Physical Planning and 2 others’ [2000 PLC (C.S.) 1310] are.-

(i) the duty of the petitioner is to lay an information before the High Court
and that he acts as an informer. The latter is not required to establish his
or her locus standi;

(ii) the validity or invalidity of an appointment may arise not only from one
of the qualifications but also from violation of legal provision for
appointment;

(iii) it is not necessary that the office should be one created by the State
character or by statute and that the duty entrusted to the person holding
a post be of public nature, and lastly

(iv) the Court is not only to see that the incumbent is holding the office
under the order of a competent authority but it has to go beyond that and
see as to whether he is legally qualified to hold the office. Invalidity of
appointment may arise not only from one of qualifications but also from
violation of legal provision for appointment.

* The principles and law laid down and enunciated in the case of
‘Ghulam Shabbir v. Muhammad Munir Abbasi and others’ [2011 PLC (C.S.)
763] are to the effect that no precise rules can be laid down for exercise of
discretion in the context of Article 199(1)(b)(ii) of the Constitution. The
Court can and will enquire into the conduct and motive of the petitioner. It
is not necessary that a petitioner should be an aggrieved person and that
the relief can be declined if the Court is satisfied that the petitioner has
approached the Court with ulterior motives, mala fide intention, etc.

* In the case of ‘Muhammad Rafiq and 2 others v. Muhammad Pervaiz

and others’ [2007 PLC (C.S.) 853] two Hon’ble Judges of the august
Supreme Court have rendered the judgment and have held that minor
irregularities in the appointment are not sufficient for issuance of a writ of
quo warranto and that laches can also be relevant consideration for
entertaining a petition.

* In the case of ‘Qazi Hussain Ahmed, Ameer Jamaat-e-Islami Pakistan

and others v. General Pervaiz Musharraf, Chief Executive and others’ [PLD
2002 SC 853] the august Supreme Court observed and held that a writ of
quo warranto cannot be brought through collateral attack and that the
principles of laches does not apply to the writ of quo warranto. It has further
been held that the Court cannot ignore the conduct of a petitioner which
militates against his or her bona fides.

* The august Supreme Court in the case of ‘Malik Nawab Sher v. Ch.
Muneer Ahmed and others’ [2013 SCMR 1035] has held and observed that
if a person does not hold a public office then a writ of quo warranto will not
be issued. Moreover, it has been observed that the jurisdiction of a High
Court in a writ of quo warranto is primarily inquisitorial and not adversarial
and that the Court can undertake such inquiries as it may deem necessary
in the facts and circumstances of each case, including examination of the
entire record and such exercise can even be done suo motu.

(Masudul Hassan VS Khadim Hussain And Another) PLD 1963 Supreme

Court 203.

Referring again to the monograph on Crown proceedings in volume 11 of

Halsbury’s Laws of England, the now obsolete writ of quo warranto was in
its nature an information laying against a person who claimed or usurped
an office, franchise or liberty and was intended to enquire by what authority
he supported his claim in order that the right to the office may be
determined. It was necessary for the issuance of the writ that the office
should be one created by the State, by charter or by statute, and that the
duty should be of a public nature.

(Hafiz Hamdullah VS Saifullah Khan and others) PLD 2007 Supreme Court
52
Writ of quo warranto is in the nature of laying an information before a
Court, against a person who claimed and usurped an office, franchise or
liberty, requesting for holding an enquiry to enable him to show the
authority under which he supported his claim of right to the office, franchise
or liberty¬-Object of writ of quo warranto is to determine legality of the
holder of a statutory or Constitutional office and decide whether he was
holding such office in accordance with law or was unauthorizedly occupying
a public office---Where a person prays for a writ of quo warranto, the Court
would be under an obligation to inquire whether the incumbent is holding
the office under the orders of a competent authority and also to examine
whether he would be legally qualified to hold the office or to remain in the
office----Any person can move High Court to challenge the usurpation or
unauthorized occupation of a public office by the incumbent of that office.

(Dr. Mujahid Ali Mansoori and others VS University of The Punjab and
others) 2005 PLC (C.S.) 694

The aim and object of a writ in the nature of quo warranto is to pose a
question to the person holding public office to show his authority as to
under what law he claims to hold such office, and if it is proved that public
office is being usurped, then the writ may be issued by the Court. In order
to succeed in a petition for quo warranto, it is to be shown that such a
disqualification to hold a public office must exist and persist not only on the
date of institution of the petition, but also at the time of decision by the
Court. Writ of quo warranto is not issued, if it is found that the issuance of
such a writ will be futile. If the holder of public office is ineligible for
appointment to that office and remains ineligible up to the date of the
hearing of writ petition, he is undoubtedly a usurper and the principle of
futility of writ would not be attracted.

(Muzammal Ahmed Khan VS Imran Meer and others) 2010 PLC (C.S.) 1023

A writ of quo warranto is confined to the limited object of an inquiry into

the appointment of a person holding a public office to show under what
authority of law, the incumbent claims to hold that office, whereas the other
writs seem to be wider in scope as they seek relief in respect of an act,
which is either to be refrained from for being not permitted by law or to be
done for being required by law or to be declared to be without lawful
authority.

(Muhammad Iqbal Khattak VS Federation of Pakistan) 2011 PLC (C.S.) 65

Writ of quo warranto is in the nature of a public interest litigation, where

undoing of a wrong or vindication of a right is sought by an individual not
for himself but pro bono public.

(Barrister Sardar Muhammad VS Federation of Pakistan and others) PLD

2013 Lahore 343

Quo warranto proceedings afforded a judicial remedy by which any person,

who held an independent substantive public office was called upon to show
by what right he held the said office, so that his title to it might be duly
determined, and in case the finding was that the holder of the office had
no title, he would be ousted from that office by a judicial order.

(Waheed Sabir VS Rana Zahid Hussain Khan and others) PLD 2013 Lahore
586

Writ of quo warranto can be issued against a person, who is holding a public
office without any lawful authority or he is a usurper.

2016 PLC 1335 = 2016 PLJ 42

The Constitutional jurisdiction cannot be resorted to settle the personal
differences between the parties. Thus this Court is inclined to observe that
the petition is outcome of the personal vengeance and the same is not
maintainable on this score. Guidance in this respect can be sought from the
cases of “Dr. Muhammad Tahir-ul-Qadri v. Federation of Pakistan through
Secretary M/o Law, Islamabad and others (PLD 2013 SC 413), “Dr. Shazia
Khawaja v. Chairman and Dean of Sheikh Zayed Post Graduate Medical
Institute and Hospital, Lahore and 7 others” (2012 PLC (C.S.) 1057), Tariq
Mehmood A. Khan and 3 others v. Sindh Bar Council through Secretary and
others” (2011 YLR 2899), “Allauddin Abbasey v. Province of Sindh through
Chief Secretary, New Sindh Secretariat, Karachi and 3 others” (2010 PLC
(CS) 1415).