1. ' JAWAD HASSAN, J.--- Through this appeal, the Appellant has called in question the judgment rendered in W. P. No,13311/2015 dated 22.09.2015 passed by the learned Single Judge (the "Impugned Judgment"), whereby the constitutional petition of the Respondent No,1 was allowed.
2. The Appellant also seeks a direction to the Respondents Nos.2 and 3 to honour the recommendations of the Respondent No,4/ Punjab Public Service Commission ("PPSC") in his favour.
3. 2.Brief facts for the disposal of instant appeal are that the in pursuance of advertisement for the post of Sub-Inspector (BPS-14), the Appellant applied in minority quota and after undergoing written test and psychological test as well as interview, qualified for the same. The Respondent No,1 also applied and qualified in written test but failed in interview. After due process and codal formalities, the name of the Appellant was recommended by the Respondent No,4 for issuance of appointment/ recruitment orders. Feeling aggrieved by the recommendations of the PPSC in favour of the Appellant, the Respondent No,1 filed W.P. No,13311/2015 which was allowed by the learned Single Judge vide the judgment Hence, the instant appeal.
4. 3.Notice was issued to the Respondents vide order dated 14-01-2016 and in pursuance of which they put their appearance through their respective representatives.
4. Learned counsel for the Appellant submitted that the impugned judgment is against law and facts as the same has been passed by ignoring the Certificate dated 09.06.2015. Learned counsel also argued that the learned Single Judge has not appreciated the fact that after taking into consideration the required chest measurement the PPSC/the Respondent No,4 has recommended the name of the Appellant for appointment/ recruitment. Learned counsel further contended that the learned Single Judge has oversighted the fact that the Respondent No,1 herself consented for referring the matter to Mayo Hospital, Lahore for medical re-examination of the Appellant in which he found to be upto the required standard. Learned counsel also pointed out that despite the fact that by the orders of the Court itself the Appellant was undergone to medical examination by the Medical Board and found to be qualified for the required standard, the writ petition was allowed by ignoring the said fact. Learned counsel also maintained that the Respondents Nos.2 and 3 had no authority to refuse honouring the recommendations of the Respondent No,4/PPSC rather they were duty bound to do the same. Learned counsel also contended that the Respondent No,1/Petitioner had been ousted from the recruitment process after not qualifying in the interview, therefore, had no locus standi to file the writ petition. Learned counsel also argued that the learned Single Judge has allowed the writ petition irrespective of the fact that the same involves factual controversy and cannot be adjudicated upon under its constitutional jurisdiction, hence the impugned judgment is liable to be set aside. In support of his contentions learned counsel placed reliance on the case titled Yousaf Haroon and others v. Punjab Public Service Commission, Agha Khan/Davis Road, Lahore through Secretary and others (PLD 2001 SC 1012).
5. 5.On the other hand learned counsel for the Respondent No,1 and learned Law Officer submitted that the impugned judgment has rightly been allowed as there is no illegality in the impugned judgment. Learned counsel also contended that the Appellant was not fulfilling the chest expansion requirements on the cutoff date, as such was not entitled to be issued recruitment orders. Learned counsel also argued that the appellant himself admitted that he was not allowed to join interview when he was deficient to the chest expansion. Learned counsel also pointed out that the Appellant has failed to establish that under what rules and regulations he was allowed to submit revised medical certificate when he was previously not fit for chest expansion. Learned counsel also maintained that the instant appeal is liable to be dismissed as there is nothing in the impugned judgment which needs interference by this Division Bench.
6. 6.We have heard the arguments of the learned counsel for the parties and have perused the record.
7. 7.From the perusal of record it reveals that admittedly, the Appellant and the Respondent No,1 applied for the post of SI under Minority Quota in which the Appellant qualified and recommendations by the Respondent No,4 were issued in his favour whereas the Respondent No,4 did not pass the interview and was ousted from the recruitment process.
8. 8.It is sine qua non for initiation of proceedings under Article 199 of the Constitution that the Petitioner should have a locus standi to institute the proceedings or in other words the Petitioner should be an aggrieved party from the action of the Respondents. Pivotal judgment of the apex Court on this issue is Mian Fazal Din v. Lahore Improvement IA Trust, Lahore (PLD 1969 SC 223) and the Lahore High Court titled Montgomery Flour and General Mills Ltd., Montgomery v. Director, Food Purchases, West Pakistan and others (PLD 1957 (W.P) Lahore 914) wherein it was observed that for a person to have locus standi to initiate a petition for issuance of writ, he/she must have some right in the matter and he/she need not have a right in that strict sense of the term which is provided in Article 170 of the Constitution. Reliance is also placed on the case titled Dr. Imran Khattak and another v. Ms. Sofia Waqar Khattak, PSO to Chief Justice and others (2014 SCM R 122). Further, in N.W.F.P. Public Service Commission and others v. Muhammad Arif and others (2011 SCM R 848) it was observed as follows: "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 a statutory right or a right 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. Unless whatever right personal or otherwise, on which the application is based is established, no order can be issued under Art.199."
9. 9.In view of the above judgments of Hon'ble Supreme Court of Pakistan and from the facts of the case, it is evident that the Respondent No, 1/Petitioner is not aggrieved of any orders, acts or proceedings done or taken against her by the Respondents Nos.2 to 5. It is interesting to note that in paragraph 3 of the petition, the Respondent No,1/Petitioner stated that she was surprised to see the merit list on the website that the Appellant is recommended for the reserved post of minority.
10. Infact, the matter i,e, recommendations are only between the Respondents Nos .2 to 4 and the Appellant which have nothing to do with the Respondent No,1/Petitioner, therefore, she was not an aggrieved person to approach the Court under Article 199 of the constitution.
11. 10.From the perusal of record it is evident that it is not the case of the Respondent No, 1/Petitioner that along with the Appellant she also qualified and would be the next candidate, in case the Appellant is declared disqualified, rather she did not pass the interview and admittedly exiled from the recruitment process. Therefore, the Petitioner cannot be said to be an aggrieved person and has locus standi to file the writ petition based on the principle laid down by the Hon'ble Supreme Court of Pakistan. Furthermore, the Respondent No,1/Petitioner has not attached any document/order of the Respondents Nos .2 to 5 to show that she has been aggrieved of the acts/proceedings of the said Respondents. In this regard the Petitioner has only prayed that the writ petition be accepted and the recommendations of the Respondent No,4 may be declared illegal, discriminative, without following the merit policy and may be declared null and void.
11. Moreover, from the perusal of the impugned judgment as well as record made available, we note that the learned Single Judge while deciding the writ petition has indulged with factual controversy. Record shows that firstly the learned Single Judge, vide order dated 08.06.2015 has ordered for Appellant's medical examination by the Medical Superintendent, Mayo Hospital, Lahore; that DPO, Sahiwal was ordered to conduct an inquiry in the matter vide order dated 09.06.2015 by the learned Single Judge; that vide order dated 16.06.2016 an opportunity to the Petitioner was provided to produce proof of relationship between the Petitioner/the Respondent No,1 and Constable Amjad; that notice was also issued to the Doctors who had examined the Appellant to appear along with record to prove the medical certificate vide order dated 23.06.2016 and thereafter M.S. DHQ, Hospital Sahiwal was also issued notice to explain his position in the matter. All these proceedings by the learned Single Judge show that the same carried the case towards factual controversy which cannot be decided without recording of evidence. There is no cavil to the proposition that writ petition is not maintainable where factual controversy is involved. The learned Single Judge has failed to take into consideration the point of factual controversy and erred while allowing the writ petition filed by the Respondent No,
1. Reliance can be placed on the case titled Fida Hussain and another v. Mst. Saiqa and others (2011 SCM R 1990) wherein the Hon'ble Supreme Court of Pakistan has held as follows: "On examination of the material made available before us it becomes evident that the appellants had, in their replies (available at pages 23 and 45 of the paper book), specifically denied the allegations of respondent No,1 and in support had produced some documents noted above meaning thereby that matter involved disputed facts which for the purpose of determination required factual inquiry by recording evidence. It is well settled by way of plethora of case-law laid down by Superior courts that the High Court is not to resolve the disputed question of facts in exercise of constitutional jurisdiction under Article 199 of the Constitution. In the instant case, however, it appears that learned Single Judge proceeded to record statement of the respondent No,1 Mst. Saiqa on 4-10-2010 (available at page 29 of paper book). Both the appellants, who were present in Court, were, however, not provided an opportunity to cross- examine her and on the basis of her statement impugned order was passed same day."
12. 12.Furthermore, the comments submitted by the Respondent No,4 clearly mentioned that the Commission has gone through the record and found that Mr. Kamran Martin (recommendee) produced a revised Medical Certificate (Annex-C) showing his chest expansion 33 x 34-1/2 issued by the Medical Superintendent, DHQ Hospital, Sahiwal which was according to the advertisement/Service Rules.
13. 13.For what has been discussed above, the impugned judgment is not sustainable and calls for interference by this Division Bench; consequently the instant Intra Court Appeal is hereby allowed and the Writ Petition No,13311/2015 being not maintainable is dismissed.