Zahid Hussain V. The Chairman Selection Committee/Chairman Balochistan Public Service Commission and 4 others,
Bench: Zaheer Ud Din Kakar
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Zahid Hussain, a student seeking admission to MBBS, filed a constitutional petition in the Balochistan High Court against the Chairman of the Balochistan Public Service Commission's Selection Committee and other respondents, including the Quetta Institute of Medical Sciences (QIMS). He wanted the court to declare that another candidate's admission to QIMS for the 2015-16 academic year was illegal, and to direct that he himself be admitted instead.
The core legal question was whether a constitutional petition under Article 199 of the Constitution could even be brought against QIMS, since it is a private medical institution not governed by any statutory rules. The petitioner's lawyer struggled repeatedly, over several hearings, to justify why the petition should be allowed to proceed against a private body, eventually arguing that the government partly funds some students there.
The court held that constitutional petitions are a public law remedy meant to enforce fundamental rights against public functionaries or to ensure statutory bodies act within their powers. They cannot be used to resolve disputes with private institutions that are not backed by statutory rules or performing functions on behalf of the government. Since QIMS was purely private and unregulated by statute, the petition could not be entertained. The court therefore dismissed the case at the outset, without even examining the merits of the admission dispute. The ruling reinforces the limits of constitutional court jurisdiction over private entities.
زاہد حسین نامی ایک طالب علم، جو ایم بی بی ایس میں داخلے کا خواہاں تھا، نے بلوچستان ہائی کورٹ میں بلوچستان پبلک سروس کمیشن کی سلیکشن کمیٹی کے چیئرمین اور دیگر مدعا علیہان کے خلاف، جن میں کوئٹہ انسٹی ٹیوٹ آف میڈیکل سائنسز (کیو آئی ایم ایس) بھی شامل تھا، ایک آئینی درخواست دائر کی۔ اس کا مطالبہ تھا کہ عدالت یہ اعلان کرے کہ سال 2015-16 کے تعلیمی سال کے لیے ایک دوسرے امیدوار کا کیو آئی ایم ایس میں داخلہ غیر قانونی ہے، اور یہ حکم دیا جائے کہ اس کی بجائے خود اسے داخلہ دیا جائے۔
اس مقدمے کا بنیادی قانونی سوال یہ تھا کہ کیا آئین کے آرٹیکل 199 کے تحت کیو آئی ایم ایس کے خلاف آئینی درخواست دائر بھی کی جا سکتی ہے، کیونکہ یہ ایک نجی طبی ادارہ ہے جو کسی قانونی ضابطوں (سٹیچوٹری رولز) کے تحت نہیں چلتا۔ درخواست گزار کے وکیل نے کئی سماعتوں کے دوران بارہا یہ ثابت کرنے کی کوشش کی کہ یہ درخواست ایک نجی ادارے کے خلاف ک
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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.