PLD 2011 Karachi 226 (PLP)

TUFAIL H. EBRAHIM, J.

The petitioner claims to be the Chairman of Sindh Doctors Ethad and has filed this Constitutional Petition seeking following prayers:-- (1) That this Court may be pleased to give direction to the respondent A No.2 to amend policy regarding the age limitation for the public representatives/public servants. (2) That to declare medical fitness compulsory for the politicians, public representatives public servants and leaders of the people as it is compulsory for the common civil servants. (3) That to declare the maximum age and retirement age of politicians, public representatives/public servants should be same. (4) That a medical board may be constituted to determine the physical fitness of all those public servants who exceed 60 years. (5) That the Court may be pleased to pass injunction directing the respondents Nos.1, 2, 3, 4 and 5 to declare medical fitness compulsory for the politicians and bureaucrats immediately stop them from performing their public duties until they obtain a Medical Fitness Certificate from a Competent Medical Board. (6) That all the contracts appointments of those bureaucrats who exceed 60 years may be declared illegal forthwith. From the plain reading of the aforesaid prayers, it appears that the petitioner is seeking direction from the respondents to frame legislation for framing the rules of medical fitness and maximum age limit for public representatives and executives. The counsel for the petitioner has argued that Constitution of Islamic Republic of Pakistan has fixed minimum age of 25 years to contest election on the premise that a person is physically and mentally matured when he had attended 25 years of age, but no age of retirement has been mentioned in the Constitution although government servants, Judges of the superior judiciary have to retire on attaining age of superannuation. Learned counsel contends that a person on attaining old age becomes prone to physical and medical disabilities and cannot perform their duties entrusted to them in a befitting manner and thus become unsuitable for executive post. The petition is not even filed on any factual controversy but has been based on general medical assumptions and presumptions, which cannot be dilated or determined under constitutional jurisdiction of this court. No order has been impugned or point of law has been raised for determination or adjudication and no fundamental right of the petitioner or any aggrieved person as guaranteed under the Constitution has been alleged to be abridged. The learned counsel for the petitioner has failed to satisfy us as under what constitutional provision or showed us any statute through which this court could issue any direction to the respondents for framing any law or policy as to obtaining medical/physical fitness certificate of affixing maximum age restriction on the parliamentarians or the executives. The petitioner has also not sought any declaration against the respondents in respect of any act done or proceedings taken by them which is without lawful authority and is of no legal effect. The petitioner has also failed to point out how his or any other aggrieved person's fundamental right conferred under Chapter 1 of Part 2 of the Constitution of the Islamic Republic of Pakistan has been abridged. The petitioner has miserably failed to justify whether such matters as, raised in the petition would fall within the ambit of any provisions of Article 199 of the Constitution of Islamic C Republic of Pakistan. The Constitution of the Islamic Republic of Pakistan has defined the parameters of the three organs of the State. It is now more than a settled proposition of law that it is the exclusive jurisdiction and responsibility of the legislature to legislate, amend and/or strike down any law and it is the prerogative of the Government to formulate policies according to their priorities and requirements in accordance with the Constitution and the I Government is the sole arbiter to exercise such executive authority. On the other hand it is the duty of the superior courts to interpret such laws and policies and repeat for emphasis sake not to enact laws or challenge the wisdom of the legislature in making a particular law, if it has been made competently without transgression the limitation of the Constitution as held by the apex court in the case of The State v. Zia-ur-Rehman and others reported in PLD 1973 SC 49, and reiterated time and again and lastly in the landmark judgment in the case of Dr. Mobashir Hassan and others v. Federation of Pakistan and others reported in PLD 2010 SC

265. The above are the reasons and grounds for our short order dated 7-12-2010 for dismissal of the petition in limine along with the listed application. S.A.K./M-43/K Petition dismissed.