1986 PLP 2906 (MLD)

3. After the registration of the case a raid was conducted on 12‑9‑1981 at 12‑20 p.m. when the petitioner had gone to the residence of the said Basheer Ahmad to see his sick animal after duty hours. The Raiding Party was headed by Muhammad Akram Cheema, Magistrate' Ist Class, Kasur, respondent No.4, while the raid was arranged by Zulfiqar Ali, Inspector, Anti‑Corruption, the then Circle Officer, Anti‑Corruption Establishment, Kasur, i.e. respondent No.3. The petitioner was allegedly caught red‑handed while accepting Rs.100 as fee from Basheer Ahmad. The petitioner was, thereafter, arrested for the aforementioned offences under the orders of respondent No.4.

4. Subsequently, the petitioner filed the present Constitutional Petition assailing the action of the respondents as unlawful and without legal authority.

5. It has been mainly urged on behalf of the petitioner that after duty hours he was entitled to private practice and could lawfully receive fee amounting to Rs.100 when he visited the sick animal of the complainant at his residence at a distance of one mile from the hospital. It has further been contended that under the relevant Service Rules the petitioner was well within his right to private practice after duty hours and there was no limit on his fee. It has been stated in the writ petition that on an earlier occasion a similar raid was conducted on one Dr. Muhammad Anwar Chaudhary, Veterinary Assistant Surgeon on 30‑5‑1974. It was alleged against him that he had received fee for visiting a sick animal at the residence of the livestock owner. Government of the Punjab, Livestock and Dairy Development Lahore, however, addressed a letter, dated 29‑6‑1974 to the Director, Anti‑Corruption Department, Punjab, Lahore, wherein it was clarified that under the Rules containing terms and conditions of service of Dr. Muhammad Anwar Chaudhary, viz. Punjab Veterinary Service (Class II) Rules, 1933, he was authorized to engage in private practice. It was also clarified in the letter that the said Rules still held the field and were not cancelled,, repealed or superseded. Consequently, Dr. Muhammad Anwar Chaudhry was exonerated and was allowed to recover the amount seized by the Anti‑Corruption Department. Copy of that letter has been annexed with the present Constitutional Petition as Annexure 'C'. Copies of the relevant Rules have also been annexed.

6. The Director, Anti‑Corruption Establishment, Punjab, Lahore, i.e. respondent No.1 and the other respondents have contested the writ petition and have repudiated the contentions raised in the writ petition by the petitioner. It has been, inter alia, pleaded by the respondents that the petitioner visited the residence of Basheer Ahmad complainant during the duty hours and that under the existing Rules governing his terms and conditions of service, he was not entitled to engage himself in private practice.

7. It is notworthy that the officers of the Punjab Veterinary Service who were previously designated as Veterinary Assistant Surgeons have now been re‑designated after the re‑organization of the Service as Veterinary Officers. Previously, this post was in Class II, but after re‑organization, the officers of that Class have been placed in Grade‑17 (BPS‑17). As per Punjab Civil Servants (Change in Nomenclature of Service and Abolition of Classes) Rules, 1974, the posts which have been placed in Grade‑17 are to be treated as Class‑I posts while posts of Grade‑16 are to be treated as Class‑II posts.

8. Rule 13 of the Punjab Veterinary Service (Class II) Rules, 1933, permits a member of the Service to engage in private professional practice on the conditions prescribed under that rule. It has, however, been argued on behalf of the respondents that 1933 Rules, have since been superseded by the subsequent Rules. The subsequent Rules are "The West Pakistan Animal Husbandry Service (Class II) Rules, 1963." Rule 11 of these Rules is to the effect that in all matters not expressly provided for in these rules, members of the Service shall be governed by such rules as have been or may hereafter be prescribed by Government and made applicable to them.

9. It is noteworthy that 1963, rules are silent regarding the question of private practice. In the light of rule 11 supra the provisions contained in rule 13 of 1933 Rules regarding private practice are, therefore, to be deemed to still hold the field.

10. As regards the respondents' contention that, as a matter of fact, 1933 Rules or the successor Rules of 1963 do not apply to the case of the petitioner because after the re‑organization of the service, his post has been placed in Class‑I whereas 1933 Rules and 1963 Rules govern the terms and conditions of service of Class II officers, it may be observed that in case of Class‑I posts, "The Punjab Veterinary Service Rules, 1930," notified vide Notification No.3252‑D, dated 17‑9‑11930, are applicable. Rule 14 of these Rules reads: "Officers appointed to the Punjab Veterinary Service, Class I, will be allowed to undertake private professional practice, subject to the proviso that the Local Government may forbid private practice whenever it appears likely to interfere with the efficient performance by an officer of his official duties." The respondents have not been able to produce any letter or notification indicating that the Provincial Government has prohibited private practice as envisaged in rule 14 ibid. It is rather evident from the contents of Annexure 'C' that after 'the registration of a case against Dr. Muhammad Anwar Chaudhary, Veterinary Assistant Surgeon, on 30‑5‑1974, a communication was addressed by the Livestock and Dairy Development Department to the Director, Anti‑Corruption Department intimating that under 1933 Rules, which still held the field, Dr. Muhammad Anwar Chaudhary as Class II Officer was entitled to engage in private practice.

11. The petitioner has also annexed with the Constitutional. Petition a teleprinter message, dated 13‑9‑1978 issued by the Director (Extension), Livestock and Dairy Development, Punjab, Lahore indicating .the new hospital timings. As per these timings, in the summer the morning hours of duty were from 7 a.m. to 11‑30 a.m. while evening hours were from 16‑30 hours to 18‑00 hours.

12. It has also been certified vide Annexure 'E', copy of Memo. No.18048, dated 28‑11‑1979 and of Memo. No.18332, dated 4‑12‑1979, from the Director (Extension), Punjab Livestock and Dairy Development, Lahore to the Deputy Director, Livestock and Dairy Development, Sargodha, that no visiting fee had been fixed for the Veterinary Officers attending the sick animals at the residences of livestock owners. Copy of this communication was forwarded to all the Veterinary Officers for information and strict compliance by the Assistant Director, Livestock and Dairy Development, Sargodha, vide Letter's Endorsement No.402.41, dated 24‑1‑1980.

13. It has thus been amply shown through the documentary evidence produced by the petitioner, which has, of course, not been contradicted by the respondents that under 1933 and 1963 Rules relating to Class II Officers of the Veterinary Department and also under 1930 Rules relating to Class I Veterinary Service, the petitioner could engage in private practice. He admittedly visited the sick animal of Basheer Ahmad complainant at his residence after the duty hours i.e. at 12‑20 p. m. while morning duty hours came to end at 11‑30 a.m. and the evening duty hours had not yet commenced as the same were to commence at 16‑30 hours. It has also come on the record that no limit was prescribed on the fee of the petitioner while engaging in private practice and, I therefore, by no stretch of imagination it can be said that by charging, Rs.100 he abused his official position.

14. The learned Additional Advocate‑General, who argued the case on behalf of the respondents, placed reliance on the case of Lt.‑Col. Farzand Ali and others v. Province of West Pakistan P L D 1970 S C 98 wherein it was held that collateral action could not be challenged by invoking writ jurisdiction of superior Courts. In that case compulsory retirement of the petitioner was challenged, inter alia, on the ground that the Constitutional provisions governing the compulsory retirement were passed in the Session of the Assembly in which certain members were not qualified to act as members and, therefore, could not vote in favour of the amendment and their votes could not be counted towards 2/3rd majority. It was observed by the Supreme Court of Pakistan that collaterally the membership of the members of the National Assembly was challenged. No such circumstances exist in the under consideration case. The petitioner who has been adversely affected has challenged the vires of the respondents' action on the basis of the terms and conditions of his service.

15. For the foregoing conclusions, it is held that, in fact, no offence has been committed by the petitioner and, therefore, the respondents had no authority or jurisdiction to register a criminal case against him under section 161, P.P.C. or section 5 of Act II of 1947. The impugned action of the respondents, in this view of the matter, is held to be without lawful authority and of no legal effect. The writ petition is accordingly allowed, but there shall be no order as to costs. S.A.???????????????????????????????????????????????????????????????????????????????????????????????????? Petition accepted.