2017 C L C 426
[Balochistan]
Before Jamal Khan Mandokhail and Zaheer -ud-Din Kakar, JJ
ZAHID HUSSAIN---- Petitioner
Versus
The CHAIRMAN SELECTION COMMITTEE/CHAIRMAN BALOCHISTAN PUBLIC
SERVICE COMMISSION and 4 others ----Respondents
C.P. No.488 of 2016, decided on 14th November, 2016.
Constitution of Pakistan ---
----Art. 199--- Constitutional petition --- Maintainability --- Private institution ---Respondent being
private medical institution ---Constitutional petition did not lie with regard to the
institutio ns/bodies which did not have statutory rules or against private entities ---Respondent, in
the present case, was a private organization and was being run without any statutory rules ---
Relief under Article 199 of the Constitution was a public law remedy whic h was not available as
remedy against private wrongs ---Constitutional jurisdiction could be used for enforcement of
Fundamental Rights of the citizen connected with public functionaries or to compel the
public/statutory authorities to discharge their dutie s and to act within their bounds or to refrain
them from an act beyond their domain---Constitutional jurisdiction was equipped to serve as
judicial control over the administrative actions ---Constitutional petition was not maintainable for
resolution of pri vate dispute ---Respondent being not a person performing function in connection
with the affairs of Federation or Province and was not controlled under statutory rules ---
Constitutional petition was not maintainable and was dismissed in limine.
Pakistan Red Crescent Society and another v. Syed Nazir PLD 2005 SC 806 and Praga
Tools Corporation v. Shri C.A. Imanual and others AIR 1969 SC 1306 rel.
Nadir Ali Chalgari for Petitioner.
Abdul Latif Kakar, Addl. Advocate General for Respondent No.3.
Date of hear ing: 8th November, 2016.
JUDGMENT
ZAHEER -UD-DIN KAKAR, J. --- Through this Constitutional Petition under Article
199 of the Constitution of the Islamic Republic of Pakistan, 1973 "the Constitution", the
petitioner has made the following prayer:
"It is acco rdingly respectfully prayed that this Hon'ble Court may declare the act of
respondents Nos.2 to 4 is illegal and unlawful and without jurisdiction and declare the
admission of respondent No.5 in MBBS academic year 2015- 16 in the institution of
respondent N o.4 is void ab initio and set aside the same and direct the respondents Nos.2
and 4 to admit the petitioner in MBBS for academic session 2015- 16 in the institution of
respondent No.4 (QIMS), in the interest of justice, equity and fair play."
2. Perusal of the record shows that on 6.6.2016, the learned counsel for the petitioner was
asked to explain how the petition is maintainable against the private institution (respondent No.4)
i.e. Quetta Institute of Medical Sciences "QIMS". The learned counsel sought t ime to assist the
Court on the point and the matter was fixed for 13.6.2016 and on the said date learned counsel
once again sought time to appraise the Court about the maintainability of the petitioner. On
13.10.2016, office was directed to issue notices t o the parties, resultantly, on behalf of the
respondent No.3 (Principal Bolan Medical College "BMC"), the learned AAG filed parawise
comments and stated that, it has wrongly been arrayed as a party and this matter pertains to the
QIMS. On 19.10.2016, the l earned counsel for the petitioner was again directed to assist the
Court on the point of maintainability of the petition, but he sought time and in the interest of
justice the request was allowed as a last opportunity and the matter was adjourned for
24.10.2016. On 8.11.2016, the learned counsel for the petitioner came up with a plea that the
petitioner did appear in a test conducted by the BMC through NTS and on the basis of the same,
the petitioner applied in the QIMS. He added that the Government of Balochistan is funding
some students in the said institution, therefore, the present petition is maintainable.
3. The real issue for determination of the present petition is that whether a constitutional
petition is maintainable against a private institution? There is no dispute to the proposition that a
Constitutional Petition does not lie in respect of the bodies which do not have statutory rules or
against private entity. There is no denial to the fact that the QIMS is a private organization and is
being run without any statutory rules. A relief under Article 199 of the Constitution is pre -
eminently a public law remedy and is not available as remedy against private wrongs. It is used
for enforcement of fundamental rights of the public connected with public functionaries or to
compel the public/statutory authorities to discharge their duties and to act within their bounds or
to refrain them from an act beyond their domain. The constitutional jurisdiction of this Court is
admirably equipped to serve as judicial control over administrative actions and where a dispute is
of a private character, a Constitutional Petition is not maintainable for resolution of such private
dispute. The Hon'ble Supreme Court in case reported as Pakistan Red Crescent Society and
another v. Syed Nazir (PLD 2005 SC 806), while holding the Bank as a private institution held
that "Government control must be particular to the body in question and must be persuasive and
on the other hand, when the control is merely regulatory whether under the statute or otherwise it
would not be served to make the body a "State". The Supreme Court of India in case Praga Tools
Corporation v. Shri C.A. Imanual and others (AIR 1969 SC 1306), while dealing with scope of
writ of mandamus, held as under:
"6. But it is well understood that a mandamus lies to secure the performance of a
public or statutory duty in the performance of which the one who applied for it has a
sufficient legal interest. Thus, an application for mandamus will not lie for an order of
reinstate ment to any office which is essentially of a private character nor can such an
application be maintained to secure performance of obligation owed by a company
towards its workmen or to resolve any private dispute."
4. In view of above discussion, we have no manner of doubt that the respondent's No.4
QIMS, being not a person performing function in connection with affair of Federation or
Province and also being not governed under statutory rules, this constitutional petition is not
maintainable, thus, the sam e is dismissed in limine.
ZC/80/Bal. Petition dismissed.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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