2024 P L C (C.S.) 849
[Balochistan High Court]
Before Muhammad Hashim Khan Kakar and Iqbal Ahmed Kasi, JJ
Syed TAQVEEM SHAH
Versus
GOVERNMENT OF BALOCHISTAN, CHIEF SECRETARY, QUETTA and 3 others
C.P. No.1911 of 2022, decided on 12th December, 2022.
Constitution of Pakistan ---
----Art. 199---Writ petition ---Maintainability ---Civil service ---Transfer and posting---
Petitioner contended that government be directed not to make transfers/postings of civil
servants as such act of the government had caused public exchequer a huge loss ---Validity ---
Clause 1(a) of Art. 199 of the Constitution clearly postulates that High Court can make an order only on the application of any aggrieved party--- Petitioner, being not an aggrieved
party, could not competently make a resort to the High Court under its constitutional jurisdiction ---Petitioner had no locus standi for availing such jurisdiction---Neither had the
petitioner any nexus with the transfers/postings, nor had he any concern with it, rather it was the sole prerogative of the concerned department of the government to transfer/post any
suitable person from one place to another ---Constitution petition was dismissed in limini.
Messrs Associated Cement Companies Ltd. v. Pakistan through the Commissioner of
Income Tax PLD 1978 SC 151 rel.
Zaheer Ahmed for Petitioner.
Date of hearing: 29th November, 2022.
ORDER
IQBAL AHMED KASI, J. ---The instant Constitutional Petition filed under Article
199 of the Constitution of Islamic Republic of Pakistan, 1973 ("the Constitution"), carries the following prayer clause:
"In view of above circumstances, it is therefore, most respectfully prayed that this Honourable court may graciously pleased;
a) To direct the Government of Balochistan that not to make any transfer/postings of civil servants as this act of the Government of Balochistan i.e. Chief Minister and Chief Secretary has caused public exchequer a huge loss.
b) To further direct the respondent Government not to make any transfer/postings till the pendency of this instant constitutional petition.
c) To impose complete stay on transfer/postings of the civil servants till the completion
of general elections and taking oath of a new elected government in the province of Balochistan.
d) To grant any other relief/reliefs, as deemed fit and proper in the circumstances of the case in the best interest of justice equity and fair play."
2. It is the case of the petitioner that since the General Elections, 2023 are scheduled to
be held in the Province of Balochistan in less than sixty days and before the commencement of election process the MPAs, Ministers and other high officers of Government of Balochistan are misusing their positions and making new appointments and transfers/postings just for their personal gains, which is subject to cause a huge loss to the Government exchequer, therefore, the Government of Balochistan may be restrained from such illegal acts.
3. We have heard the learned counsel for the parties and have gone through the record
appended with the petition. At the very outset, it would be beneficial to reproduce herein
below a part of Article 199 of the Constitution, which reads as under:
"199. Jurisdiction of High Court.--(1) Subject to the Constitution, a High Court may, if it is satisfied that no other adequate remedy is provided by law,-
(a) on the application of any aggrieved party, make an order --
(i) directing a person performing, within the territorial jurisdiction of the Court, functions in connection with the affairs of the Federation, a Province or a local authority, to refrain from doing anything he is not permitted by law to do, or to do anything he is required by law to do; or
(ii) declaring that any act done or proceeding taken within the territorial jurisdiction of the Court by a person performing functions in connection with the affairs of the Federation, a Province or a local authority has been done or taken without lawful authority and is of no legal effect; or
(b) on the application of any person, make an order --
(i) directing that a person in custody within the territorial jurisdiction of the Court be
brought before it so that the Court may satisfy itself that he is not being held in
custody without lawful authority or in an unlawful manner; or
(ii) requiring a person within the territorial jurisdiction of the Court holding or purporting to hold a public office to show under what authority of law he claims to hold that office; or
(c) on the application of any aggrieved person, make an order giving such directions to any person or authority, including any Government exercising any power or performing any function in, or in relation to, any territory within the jurisdiction of that Court as may be appropriate for the enforcement of any of the Fundamental Rights conferred by Chapter 1 of Part II."
4. A bare perusal of clause 1 (a) of Article 199 of the Constitution clearly postulates that
this Court can make an order only on the application of any aggrieved party. The petitioner, being not an aggrieved party, could not competently make a resort to the High Court under its constitutional jurisdiction. It is worth mentioning that the petitioner has no locus standi for availing such a jurisdiction. As far as the plea so taken by the petitioner that since the Election Commission of Pakistan has announced the date of General Elections in the Province, and the postings/transfers being made in the Departments of Government of Balochistan, would be subject to cause prejudice to the process of election and also cause a huge loss to the public exchequer, is concerned, in our view, the same is in vacuum, devoid of force and has no legs to stand, as so far no date has been announced by the Election Commission of Pakistan for conducting elections in the Country, thus, by no stretch of imagination, the petitioner can be said to be an aggrieved party within the meaning of Article 199 of the Constitution.
5. Though the term 'aggrieved' or 'aggrieved party' has not been defined in the
Constitution, yet, from time to time, it has been interpreted by the superior Courts in a number of judgments. While interpreting the word/term 'aggrieved person', the Hon'ble Supreme Court in the case of "Messrs Associated Cement Companies Ltd. v. Pakistan through the Commissioner of Income Tax", (PLD 1978 SC 151) observed as under:
"In this Article the two expressions, namely, "if it is satisfied that no other adequate remedy is provided by law" and "aggrieved party" would seem to be important. It is true that under Article 98, a High Court had the jurisdiction to grant to an 'aggrieved party' relief in a proper case provided it could successfully show that there was 'no other adequate remedy' provided to him by law. Now in order to be an 'aggrieved party', within the meaning of sub- Article (2) of Article 98, it would be imperative f or
a party to show that any of his proprietary or personal right, as recognized by the laws of the country, has been invaded or denied to him. 'Right' and 'remedy' are no doubt complementary concepts, because right without remedy would be meaningless just as it would be inconceivable to think of a remedy without a corresponding right. In other
words 'a right', be it tangible or intangible, such as the right of a person to enjoy his
property or to remain secure in his reputation, clearly postulates something of value to a person for the protection or the realization of which remedy is provided in every civilized legal system. Inevitably, therefore, if a person is unable to show that any of his right as recognized by law has been invaded or denied to him then he would have
no cause of action to seek any relief, for evidently he cannot claim to be 'aggrieved'.
Seen in this context, Article 98 (ibid), which clearly does not confer upon or create
any substantive right in a party, would seem to provide to a party only an additional remedy provided he is able to show that any of his personal or proprietary right, duly recognised by law, has been invaded or denied to him. Now this being the plain connotation of Article 98, it is obvious that since the Company in this case has been supplanted by the Custodian of Enemy Property for all purposes, so long as the Company remains an 'alien enemy', it cannot claim to be an 'aggrieved' party so as to be able to insist that in the High Court the two petitions filed by it against the impugned orders were improperly dismissed."
6. From what has been discussed herein above, we have reached to a conclusion that
neither has the petitioner any nexus with the postings/transfers, nor has he any concern with
it, rather it is the sole prerogative of the concerned department of the Government to
transfer/post any suitable person from one place to another. In such view of the matter, the
petitioner has no locus -standi to invoke the constitutional jurisdiction of this Court.
In view of the above, the petition, being without merit, is hereby dismissed in limine.
JK/2/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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