2017 C L C 1195
[Balochistan]
Before Mrs. Syeda Tahira Safdar and Zaheer- ud-Din Kakar, JJ
BALOCHISTAN MEDICAL ASSOCIATION through President ----Petitioner
Versus
GOVERNMENT OF BALOCHISTAN through Secretary Health and others ----
Respondents
C.P. No.64 of 2013, decided on 16th May, 2017.
(a) Constitution of Pakistan ---
----Art. 199---Constitutional petition ---"Aggrieved person" ---Scope ---Petition under Art.199 of
the Constitution can only be made by an aggrieved person---Person cannot be said to be
aggrieve d unless he has a right in performance of statutory duty by a person performing
functions in respect of any right which he may have in relation to performance of such function--
-Any person invoking Constitutional jurisdiction of High Court must establish a direct or indirect
injury to himself and substantial interest in subject matter of proceedings.
Ahbab Cooperative Housing Society Ltd. v. Commissioner, Lahore Division PLD 1978
Lah. 273 and Jan Muhammad v. Government of NWFP 1993 CLC 1067 rel.
(b) Constitution of Pakistan ---
----Art. 199--- Constitutional petition --- Public interest litigation ---Scope---Petitioner assailed
selection process for training of candidates in post -graduate institutes ---Validity ---To invoke
Constitutional jurisdiction of High C ourt, one was required to first qualify test of being
aggrieved person and then to show that his case fell in any of the categories so defined by
Art.199 of the Constitution that there was no alternate legal remedy except the petition---To
satisfy requirem ents of an aggrieved person in public interest litigation under Art.199 of the
Constitution, petitioner was required to disclose a personal interest in performance of legal duty
owed to him which if not performed would result in loss of some personal benef it or advantage
or curtailment of a privilege in liberty or franchise except in relief in the nature of Habeas
Corpus or Quo Warranto the person had to show that he was an aggrieved person; it was also
imperative for petitioner to show that any of his proprietary or personal right as recognized by
law was invaded or denied ---Any person who failed to demonstrate such prerequisites as
recognized by law had no locus standi or any cause of action to seek any relief under Art.199 of
the Constitution ---Petitioner remained unable to meet the requirements and had no locus standi
to file petition ---Constitutional petition was dismissed in circumstances.
Ardeshir Kowasjee and 10 others v. Karachi Building Control Authority (KMC) Karachi
1999 SCMR 2883 and Dr. Akhtar Hassan Khan and others v. Federation of Pakistan and others
2012 SCMR 455 rel.
Zahid Malik for Petitioner.
Zahid Muqeem Ansari for Respondents Nos.3 to 20.
Saleem Baloch, A.A.G. for Respondents Nos.1 and 2.
Date of hearing: 26th April, 2017.
JUDGMENT
ZAHEER -UD-DIN KAKAR, J: This Constitutional Petition, filed under Article 199 of
the Constitution of Islamic Republic of Pakistan, 1973 "the Constitution", carries the following
prayer:
"It is, therefore, respectfully prayed that in the interest of justic e the record of the
respondents for the last five years may kindly be called for in respect of selections in Post
Graduate Institute for training, may kindly be scrutinized and particularly present
selections of about 18 candidates may also be set aside and the respondents may also be
directed to select the eligible competent candidates according to prescribed rules policy.
Any other relief deem fit and proper in the circumstances of the matter may kindly be
awarded to the petitioner."
2. It was the case of the petitioner that without adopting any procedure as per Rules, the
private respondents were selected for training in Post Graduate Institute.
3. Learned counsel for the petitioner contended that the respondent No.1 has nominated a
number of doctors for doing Masters in Public Health from the Institute of Public Health
contrary to the earlier practice whereby qualified doctors were invited through advertisements
and subsequently selected against the rules and regulations.
4. Conversely, the learned AAG as well as learned counsel for the private respondents
vehemently opposed the petition and contended that since the petitioner is not an aggrieved
person, therefore, he has no locus standi to file the instant petition. It is added that the petitioner
filed instant petition being President, Balochistan Medical Association, which is not a recognized
body, at this score too the petition is not maintainable.
5. We have heard learned counsel for the parties and have gone through the available
record. Before proceeding ahead, it would be necessary to mention here that on 14.3.2017, this
Court passed the following order:
"While going through the main petition the fact appeared that the petitioner is
Balochistan Medical Association through its President. It is a sked from the learned
counsel whether the petitioner Association is a registered body, and representing whom?
The learned counsel seeks time to place before the Court certificate of registration. He is
directed to place before the Court memorandum of Assoc iation of the petitioner's
Association. Further, to address whether the petitioner is competent to seek for the relief?
He is directed to address maintainability of the instant petition before going into merit of
the case".
6. On 26.4.2017, the learned counsel for the petitioner when asked to satisfy the Court as to
how the petition is maintainable and directed to address maintainability of the instant petition
and further directed to produce Memorandum of Association of the petitioner's Association. but
neither he produced Memorandum of Association of petitioner's Association as directed vide
order dated 14.3.2017, nor satisfied the Court regarding maintainability of the petition. Meaning
thereby that the petitioner's Association is neither registered, nor affiliated with Pakistan Medical
Association, which is a recognized body of the Doctors.
7. The first and foremost question which arises for determination in this Constitution
Petition is whether the petitioner is an 'aggrieved person' from the selection o f the private
respondent Nos.3 to 6 for Master of Public Health (MPH) training? and whether the petitioner
has locus standi to maintain the writ petition? Under Article 199 of the Constitution, a petition
can only be made by an aggrieved person. A person c annot be said to be an aggrieved person
unless he has a right in the performance of statutory duty by a person performing functions in
respect of any right which he may have in relation to the performance of such functions.
Reference may be made to the cas e of Ahbab Cooperative Housing Society Ltd. v.
Commissioner, Lahore Division reported in PLD 1978 Lahore 273. Likewise a person invoking
constitutional jurisdiction of High Court must establish a direct or indirect injury to himself and
substantial interes t in the subject matter a proceedings. Reference may be made to the case of Jan
Muhammad v. Government of NWFP reported in 1993 CLC 1067. Keeping in view this broad
principle, the case of the petitioner has to be examined. Admittedly, the petitioner cannot claim
to be a recognized body for the purposes of this case, as it is not a registered Association of
Doctors of Health Department. Further, the President of the Balochistan Medical Association,
who has filed this petition, is not even employee under the Health Department and he is himself
not eligible for admission to the MPH program at the Institute of Public Health, Quetta (IPHQ),
because as per Policy and Guidelines for admission of candidates to the MPH program at the
IPHQ issued by the Government of Balochistan. Health Department vide Memorandum dated
5.12.2012 clearly shows that the MPH program at the IPHQ is an in- service training program
akin to the various long and short courses under taken at the NIM -NSPP for the general and
administrative cadres of the Civil Service sides.
8. Admittedly, the constitutional jurisdiction of this Court could be invoked by all citizens
when there is infringement of any fundamental rights. Thus, in like case it is the duty of Court to
protect Fundamental Rights, guara nteed by the Constitution. Thus the powers available under
Article 199 of the Constitution this Court could issue appropriate directions for enforcement of a
Fundamental Right. To invoke the 'constitutional jurisdiction' of this Court one is required to fi rst
qualify the test of being 'aggrieved person' and then to show that his case falls in any of the
categories, so defined by the Article 199 of the Constitution, that there is no alternate legal
remedy else the petition. To satisfy the requirements of an 'aggrieved person' in public interest
litigation under Article 199 of the Constitution, the petitioner needs to disclose a person interest
in the performance of legal duty owed to him which if not performed would result in the loss of
some personal benefit or advantage or curtailment of a privilege in liberty or franchise. Reliance
is placed on decision given in the case of Ardeshir Kowasjee and 10 others v. Karachi Building
Control Authority (KMC) Karachi reported in 1999 SCMR 2883. It has also been stated that to
establish locus standi in the Context of public interest litigation, the petitioner would have to
show that he belongs to class of affected persons who are unable to access the Court for the
protection of their rights. Reliance is placed on judgme nt in case of Dr. Akhtar Hassan Khan and
others v. Federation of Pakistan and others reported in 2012 SCMR 455. It is also a settled legal
proposition that a person who does not fall within the ambit of aggrieved person have no right to
invoke the jurisdic tion under Article 199 of the Constitution. Except for relief in the nature of
Habeas Corpus or Quo Waranto a petitioner has as to show that he is an aggrieved person and it
is also imperative for him to show that any of his proprietary or personal right a s recognized by
law has been invaded or denied. Any person who fails to demonstrate the above pre requisites as
recognized by the law has no locus standi or any cause of action to seek any relief under Article
199 of the Constitution. The petitioner in the instant case remained unable to meet the
requirement, thus, have no locus standi to file the instant petition.
9. For the foregoing reasons, the writ petition has no merit, therefore, the same is
accordingly dismissed.
MH/79/Bal. Petition dismisse d.This judgment is reproduced from a publicly available source for informational purposes and does not constitute legal advice. If you believe this listing contains an error,
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