2012 PLP 1308 (CLC)

NOOR-UL-HAQ N. QURESHI, J.

The Writ Petitions, captioned above, involve similar facts and law therefore same are being decided through this single order.

2. The National Council for Homoeopathic, a body corporate, was established under Section 3 of the Unani, Ayurvedic and Homoeopathic Practitioners Act, 1965. The said Body consists of 21-members elected and nominated in accordance with Section 5 of UAH Act, 1965, the term whereof is five years. The petitioners were nominated in terms of Section (a) d) of UAH Act 1965 vide Notification dated 1-3-2012. The respondents, through letter dated 21-3-2012, called the petitioners to attend a meeting of NCH, which is going to be held on 30-3-2012. In pursuance of the said letter, when the petitioners visited Islamabad to attend the scheduled meeting, they were languished to note that respondent No.1, through another Notification, replaced them. Therefore, they immediately rushed to respondent No.1, who confirmed the said position. The act of respondent No.1 was therefore presumed to be illegal, null and void, without any authority or justification, based upon mala fide and ulterior motive, same is liable to be quashed, having no legal effect. Therefore, the petitioners seek relief and requested that the act of respondent No.1 may be declared illegal, null and void, without any authority or justification, as such, based upon ulterior motive and mala fide intentions, as such, same be set aside.

3. Learned counsel for the petitioners referred Notification dated 1-3-2012, which is reproduced hereunder:

Sr. No. Name and Address Section of the Act under which candidate nominated Date of Nomina-tion

1. Homoeopathic Doctor Jamil Akhtar Ghauri Assistant Director Homoeo, Director General Health Services, Punjab, 24-Cooper Road, Lahore (Punjab) 5(a) 13-3-2012

2. Homoeopathic Doctor Muhammad Aslam Khan House No.340, Block-A, Latifabad, Hyderabad (Sindh) -do- -do-

3. Homoeopathic Doctor Waheed Ahmed, Nusrat Homoeo Pharmacy, 4-Patel Road, Quetta -do- -do-

4. Homoeopathic Doctor Mazhar-ul-Haq, Village Khanzana Payan, Tehsil and District, Peshawar -do- -do-

5. Homoeopathic Doctor Khalid Mahmood, House No.60, St. No.3, Faizabad Burewala, District Vehari (Federal) 5(d) -do-

6. Homeopathic Doctor Mehboob Ahmed, Chak No.94/W.B. Tehsil Mailsi, District Vehari (Federal) -do- -do-

7. Homoeopathic Doctor Rozina Mahmood, Village and P.O. Ausia, Tehsil Murree, District Rawalpindi (Federal) -do- -do-

8. Deputy Secretary, Ministry of National Regulations and Services, Islamabad (Federal) -do- -do-

2. The nominated members of National Council for Homoeopathy shall start working with establishment of new Council. Another Notification dated 22-3-2012 whereby names of the petitioners were replaced by some other Homoeopathic Doctors, who too, were nominated under section 5(a)(d) of the said UAH Act, 1965. For convenience, the said Notification is also reproduced hereunder: - Sr. No. Name and Address Section of the Act under which candidate nominated Date of Nomina-tion

1. Homoeopathic Doctor Aleem ul Haq, House No.248, Chaklala Scheme No.3, Street No.12, Lane No.06, Rawalpindi (Punjab) 5(a) 22-3-2012

2. Homoeopathic Doctor K.S. Mujahid Khan Baloch, Principle Shah Abdul Latif Bhitai Homoeopathic Medical College, Karachi (Sindh) -do- -do-

3. Homoeopathic Doctor Ahmad Jamal, Sikandarpur, Peshawar (KPK) -do- -do-

4. Homoeopathic Doctor Muhammad Yasir Naseer, Yasir Homoeopathic Clinic, Village and Seryab Road, Quetta (Balochistan) -do- -do

5. Homoeopathic Doctor Mehboob Ahmad, Chak No.94NVB, Tehsil Mailsi, District Vehari (Federal), Scientist Member 5(d) -do

6. Homoeopathic Doctor Sabeel Ahmad Qureshi, House No.NW-355, Mohala Raja Sultan, Street No.08, Rawalpindi (Federal) -do- -do-

7. Homoeopathic Doctor Rubina Kosar. The Educated School, Super Chowk, Rehman Town, Lodhran (Federal) -do- -do-

8. Deputy Secretary, Ministry of National Regulations & Services, Islamabad (Federal) -do- -do-

2. The nominated members of National Council for Homoeopathy shall start working with establishment of the new Council. A letter issued for withdrawal of the Notification dated 1-3-2012 has also been communicated to the petitioners, containing their names, which too, is reproduced herein below: - Ref. No.NCH/F.5-1(135th M)/2012-17700, Dated 27th March, 2012

1. Homoeopathic Doctor Jamil Akhtar Ghauri Assistant Director Homoeo, Director General Health Services, Punjab, 24-Cooper Road, Lahore Punjab) Cell No.0333-4240639

2. Homoeopathic Doctor Muhammad Aslam Khan, House No.340, Block-A, Latifabad Hyderabad (Sindh) Cell No_0300-3068192

3. Homoeopathic Doctor Waheed Ahmad, Nusrat Homoeo Pharmacy, 4-Patel Road, Quetta (Balochistan) Cell No.0333-7809060

4. Homoeopathic Doctor Mazhar-ul-Haq Village and P.O. Khanzana Payan Tehsil and District Peshawar Khyber Pakhtunkhwa Cell No.0313-9874365 Homoeopathic Doctor Rozina Mahmood Village and Post Office Ausia, Tehsil Murree District Rawalpindi (Punjab) Cell No.0300-8545142-0332-8545142

6. Homoeopathic Doctor Khalid Mahmood House No.60, St. No.3, Faizabad Burewala District Vehari (Punjab) Cell No.0300-6995408 Subject: 135th Inaugural Meeting of National Council for Homoeopathy In pursuance of Ministry of National Regulations & Services Notification No.F.107(1)/2010-S.O. (Admin.) dated 22nd March, 2012, this Office letter No.F.5-1(135th M)/2012-17560 dated 21st March, 2012 on the subject noted above, addressed to your good self is hereby withdrawn. Learned counsel for the petitioners argued that once a Board of NCH is nominated under section 5, it can only be removed/replaced in accordance with section 13 (2) of UAH Act, 1965 read with Rule 15 of Unani, Ayurvedic and Homoeopathic System of Medicine Rules, 1980, but in the instant case, such an opportunity was not provided to the petitioners, therefore, their act withdrawing the earlier Notification, is illegal on the face of it. He has argued another legal aspect that once a Notification is issued, the same authority cannot call it back in view of doctrine of "locus poenitentiae". In support of his contention, he submitted following case-law:

(1) 2000 CLC 443 (Mir Ghulam Abid Khan v. Pakistan through Secretary and another):

(b) General Clauses Act (X of 1897) S. 21

Locus poenitentiae, principle of

Limitations on the power exercised by Competent Authority

Scope

Provisions of S.21 of General Clauses Act, 1897, postulate that an Authority which passes an order is competent to vary, rescind or cancel the order passed by that Authority but such power is not absolute as the same is subject to certain limitations

Where the order sought to be varied, rescinded or cancelled is communicated to other party and subsequent to that communication that party acts upon such order, a very valuable right accrues to that party

Authority passing such order becomes functus officio to vary, rescind or cancel its earlier order as the law does not allow "volte face" to the Authority in circumstances". (2) 1981 CLC 392 (Ch. Khushi Muhammad v. Government of Punjab and another):-- (ii) West Pakistan General Clauses Act (VI of 1956)

S. 20

Power to vary and rescind orders

Held: order having effect of creating rights not to be rescinded by functionary making order. (iii) Natural Justice

Principle of

Right to be heard

Auction

Confirmation of

Confirmation accorded but withdrawn before communication of same to petitioner

Petitioner not to claim any right in pursuance of bid unless same confirmed by Controlling Authority

Such Authority not required to hear bidder before refusing to confirm bid

Held: petitioner not deprived of any right vesting in him

No right of hearing required to be afforded to him before making order under challenge. (3) PLD 1985 (AJ&K) 17 (Syed Muneeb Nazir Shah v. Azad Kashmir Government and others) (a) General Clauses Act (X of 1897) S. 21

Power under section 21 to vary, rescind or cancel an order passed by an authority

Cannot be exercised in cases where order has already been communicated to other party and/or subsequent to that communication, that party has acted upon it

In such case a very valuable right accrues to other party and authority passing in such circumstances becomes incompetent to vary, rescind or cancel its previous order. (4) 2000 CLC 1535 (Rehan Hassan Naqvi v. Pakistan Defence Officers Housing Authority through Secretary): (c) General Clauses Act (X of 1897) S. 21

"Locus Poenitentiae", principle of

Applicability

Authority competent to make order had power under S.21, General Clauses Act, 1897 to undo the same but the order could not be withdrawn or rescinded once it had taken legal effect and certain rights were created in favour of an individual and that the principle of locus poenitentiae would be attracted in such situation. (5) PLD 1991 Lahore 230 (Mahmooda Begum v. District Magistrate, Sialkot and 2 others). (g) General Clauses Act (X of 1897) S. 21

West Pakistan General Clauses Act (VI of 1956), S.20

Authority that has the power to make an order has the power to undo it subject to the exception that where the order has taken legal effect and in pursuance thereof certain rights have been created in favour of any individual such an order cannot be withdrawn or rescinded to the detriment of those rights.

4. From perusal of above authorities, it appears that valuable rights accrued to that party on communication of such order when acted upon. Therefore, it positively infers that mere issuance or communication of an order, Notification or bye-laws as provided by sections 20 and 21 of General Clauses Act, does not mean that it has taken final effect.

5. Only the doctrine of "locus poenitentiae" would apply, when such order, Notification is issued or communicated to the party concerned, which is fully acted upon, then authority who issued it, cannot rescind or cancel it.

6. From the general impression created in the mind, it appears that unless such order is acted upon in its true spirit, then the authority is not equipped with the power to undo it by exercising powers vested to the same authority under section 21 of General Clauses Act.

7. More to that, while referring section 5 (a) and (d) of UAH Act, 1965, both provide nomination by the Federal Government after consultation with the Provincial Government concerned. Both provisos with section 5 are submitted herein below:-- "

5. Composition of the National Council for Homoeopathy.

The National Council for Homoeopathy shall consist of the following members namely:-- (a) Four members, being registered Homoeopaths, to be nominated by the Federal Government after consulting the Provincial Government concerned, of whom one shall be from each Province. (d) Four members, to be nominated by the Federal Government, of whom one shall be a scientist from the related field and one Deputy Secretary (Budget), Ministry of Health, who shall also be Chairman of the Finance Committee.

8. Learned counsel for the petitioners also referred section 13(2) of UAH Act, 1965, whereby on finding failure, excess or abuse adversely affecting the efficient conduct of such member, he is to be given an opportunity of showing cause against the action proposed to be taken by notification in official gazette, then it qualifies him for the members of the Council. When the said member of the Council, any committee or Examining Body is appointed under subsection (3) of section

22. In support of his contention, he also relied upon case-law reported as 2011 CLC 427 (Homoeopathic Doctor Muhammad Zahir v. Federation of Pakistan through Secretary, Ministry of Health, Government of Pakistan, Islamabad and another), whereby his Lordship Mr. Justice Riaz Ahmed Khan of this Court while considering such legal proposition as envisaged by section 13(2) and section 22(3) of UAH Act, 1965, accepted the petition and such removal of petitioner after three years was set aside.

9. In the instant case, facts as well as application of law is totally different, when only against issuance of Notification dated 1-3-2012, petitioners were nominated in view of section 5(a) and (d) by respondent No.1 and same was merely withdrawn without its implementation. As apparently, the case of the petitioners that they never commenced their such duties in pursuance of said Notification and only in the 1st meeting, they were required to appear, before that, such Notification was rescinded by respondent No.1.

10. In my humble view, nomination is the prerogative of respondent No.1, coupled with the fact that Notification in respect of nomination of petitioners has not taken effect yet, therefore, same cannot be termed as "Acted upon". Therefore, in my humble view, the petitions in hand, carrying no weight to even issue a notice, are hereby dismissed in limine with enlisted applications. M.H./93/Isl. Petition dismissed.