2016 PLP (C (PLC(CS))

CH. MUSHTAQ AHMAD, J.

The present petition has been filed invoking the constitutional jurisdiction of this Court to challenge the legality of impugned office memo. and notification whereby respondent No.6 was transferred/repatriated to his parent department without appointing any person as a Registrar, in his place.

2. Briefly, the case of petitioner is that respondent No.5 is an autonomous body and has its own mechanism for raising funds and has been duly constituted and consists of some very outstanding and exceptional professionals from the field of legal, medical and dental profession. Since the appointment of respondent No.6, performance of respondent No.5 has improved with enhancement of the reputation of the institution which was at stake as respondent No.6 diligently watched the interest of the petitioner/institution. On 30th August, 2013, respondent No.1 issued Office Memo. No.F.1-5/2013-DS(Admn) of even date titled as TRANSFER/REPATRIATION OF DR. RAJA AMJAD MEHMOOD, REGISTRAR, PMDC, whereby it was ordered that services of respondent No.6 on deputation basis, were no more required and that transfer of respondent No.6 through his repatriation, was an interference and meddling in the affairs of respondent No.5 without any reasonable and lawful justification which was bound to affect smooth functioning of respondent No.5, hence, it was prayed that impugned office memo/notification be declared as illegal, without jurisdiction, arbitrary, void ab-initio and against the interest of Doctors' community.

3. Preliminary objections have been raised by learned counsel for the contesting respondents Nos.1 and 2 that the petitioners' association had no locus standi to file petition nor it was an aggrieved person which was sine qua non for invoking the constitutional jurisdiction of this Court and that on this score petition was liable to be dismissed. It was further submitted that a deputationist did not have a vested right to remain on a post forever or for a stipulated period and could be ordered to be repatriated to the parent department at any time and on that ground, the petition was also liable to be rejected being not maintainable, before this Court.

4. Learned counsel for the petitioner, while responding to the above preliminary objections, contended that the petitioner/association was a body representing Doctors' community and the respondents Nos.1 to 4, through impugned notification, attempted to usurp the autonomy of respondent No.5 which they could not do under any circumstances, and that the actions, deeds and conduct of respondents Nos.1 to 4 militated against principles of fundamental rights as envisaged under the Constitution; that they had no authority under the law either to dictate respondent No.5 or direct it as respondent No.5 was an independent body.

5. Heard. Perused.

6. After hearing the learned counsel for the parties on the question of maintainability of this petition it is to be seen as to whether the petitioner could invoke the constitutional jurisdiction of this court under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973. Under Article 199(1), it is provided as under:-- "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. The words used in Article 199 (1)(a) "on the application of any aggrieved party" are important. It is to be seen whether the petitioner falls within the ambit of an "aggrieved party" or "aggrieved person". The above phrase has not been defined in Article 199 ibid., therefore, in order to understand its connotation, its meaning, as described in Black's Law Dictionary, 9th edition at page 1232, is as under:-- "A party entitled to a remedy especially a party whose personal, pecuniary or property rights have been adversely affected by another person's action or by a court's decree or judgment". According to above meaning, it is necessary for a party to become an "aggrieved person" or "aggrieved party" to show that his personal, pecuniary or property rights have been adversely affected by another person's action or by a court's decree or judgment. The perusal of the impugned notification dated 30.08.2013 shows that respondents Nos.1 and 2 had ordered repatriation of respondent No.6 to his parent department. From the perusal of the petition, it is clear that it was the respondent No.6 who was adversely affected by the impugned order passed by respondent No.2, whereby he was ordered to be repatriated to his parent department and it was not an order against the petitioner/association in any manner. The case law on the subject, is also to be found in many reported judgments. In a case "M/s Associated Cement Companies Ltd. v. Pakistan through the Commissioner of Income Tax, Lahore Range and 7 others" (PLD 1978 SC 151), it was laid down that "writ petition can be maintained by a person provided he be an 'aggrieved person' and in order to be an aggrieved person, imperative for party to show any of his proprietary or personal right, as recognized by law, to be invaded or denied". The same question came to be considered in another case titled as "Hafiz Hamid Ullah v. Saifullah etc." (PLD 2007 SC 52), wherein it was laid down that "the aggrieved person was elaborated and it was laid down that constitutional jurisdiction of High Court under Article 199(1)(a) of the Constitution can be invoked by aggrieved person which denotes the persons who have suffered a legal grievance against whom a decision has been pronounced which has wrongfully deprived him or wrongfully refused to him something which he was legally entitled". Another case on the subject is to be found "NWFP Public Service Commission etc. v. Muhammad Arif etc." (2011 SCMR 844). After considering the case law on this point, it was laid down that "the right which is the foundation of an application under Article 199 of the Constitution, is a personal and individual right. The legal right may be statutory right or a right to be recognized by the law. A person can be said to be aggrieved only when a person is denied a legal right by someone who has a legal duty to perform relating to the right. There must not only be a right but a justiciable right in existence, to give jurisdiction to the High Court in the matter. The reference may also be made to the cases reported in "Zaheeruddin Sheikh and 30 others v. United Bank Ltd." (2002 CLC 147), "Syed Mufeed Shah and another v. Principal, Khyber Medical College, Peshawar and 4 others" (2003 CLC 1348) and "Muhammad Idrees v. Province of Punjab through Collector District Sialkot and others" (2014 CLC 130) in this respect.

7. It is well settled that for a petitioner in a constitutional petition, it is essential that:-- (i) he had a locus standi to invoke constitutional jurisdiction being an aggrieved person as his right was denied to be give to him (ii) the right was infringed and the right so infringed was justiciable right and that (iii) he had no alternate, adequate remedy for redressal of his grievance except a petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973.

8. In the case in hand, admittedly, the respondent No.6 was ordered through impugned notification to be repatriated to his parent department. In fact he was the aggrieved person who could challenge the vires of the impugned notification but he has not come forward to challenge the same. It is further to be noticed that according to the petitioner, the impugned order had adversely affected smooth functioning of respondent No.5. Respondent No.5 is also a legal person and could sue the respondents Nos.1 to 4 in its independent capacity but respondent No.5 had also not opted to challenge the impugned notification, whereby respondent No.6 was repatriated. The petitioner/association being a third party, in my view, had no locus standi to challenge the impugned notification nor it falls within the ambit of aggrieved party.

9. Another aspect of this case is that admittedly, respondent No.6 was a deputationist and by the impugned notification he was ordered to be repatriated to his parent department. A deputationist did not have any vested right to remain on the post forever or for a stipulated period. He could be ordered to be repatriated to the parent department at any time without assigning any reason. Parent department of deputationist was not obliged by any law to assign any reason for his repatriation or vice versa. The above view is fortified by the law laid down in "S. Masood Abbas Rizvi v. Federation of Pakistan through Secretary Establishment and others" (2014 SCMR 799) and "Dr. Shafi ur Rehman Afridi v. C.D.A. Islamabad through Chairman and others"(2010 SCMR 378).

10. For the reasons recorded above, the objections raised on behalf of the respondents, are sustainable and petition in hand is found not maintainable.

11. Resultantly, the petition in hand is hereby dismissed. Parties are left to bear their own costs as incurred by them. ZC/P-3/L Petition dismissed.