1987 PLP 740 (CLC)

Sardar Abdul Majeed Khan for Respondent No.l. . Shahudul Haq for Respondent No.2. Date of hearing: 18th November, 1986. NASIR ASLAM ZAHID, J.‑‑Petitioner No.l is Rehnemannian Cancer Relief Society of Pakistan, registered under Societies Act of 1860, petitioner No.2 is Sir Syed Homoeopathic Medical College, an educational institution of petitioner No.l Society; and petitioner No.3 is Homoeo Doctor A.Aziz, the founder, Chairman and member of the petitioner No.l Society. Respondent No.l is National Council for Homoeopathy, Government of Pakistan, and respondent No.2 is the Secretary, Ministry of Health and Social Welfare (Health and Social Welfare Division) Government of Pakistan. By notification dated 23‑8‑1982 published in the Gazette of Pakistan, the Federal Government accorded recognition to the petitioner No. 2 college with immediate effect in exercise of powers conferred by section 17(4) of the Unani, Ayurvedic and Homoeopathic Practitioners' Act of 1965. However, by Notification dated 23‑12‑1986, the Federal Government purporting to exercise powers conferred under section 19 of the said Act of 1965, withdrew the aforesaid recognition. This notification of withdrawal is challenged in the present constitutional petition. We have heard Mr. Syed Ishtiaq Ali, learned counsel for the petitioners and Mr. Sardar Abdul Majeed, learned counsel for respondent No.l, National Council for Homoeopathy and Mr. Shahudul Haq, Advocate on behalf of the respondent No.2. Federal Government.

2. The petitioners have challenged the impugned notification of withdrawal of recognition on the ground that prior to passing such notification /order, the Government, had not given any notice, as is specifically provided by the proviso to section 19(2) of the Act of 1965. In addition, it is submitted that the action of the Federal Government violates the principles of natural justice. Relevant section 19 of the Act 1965 is reproduced herein below: "

19. Withdrawal of recognition. (1) The Council when it thinks fit may, and when required to do so by the Federal Government shall make an enquiry whether any recognised institution should cease to be a recognised institution. (2) If, on making such an enquiry, and after considering all such information and reports as are referred to in the preceding section and making such further inquiry as may appear to it to be necessary, the Council is satisfied that the education provided or the examinations conducted by a recognised institution are not as such to secure an adequate standared of efficiency for the practice of the system of medicine taught in the institution, it shall submit a report to the Federal Government with its recommendation stating the reasons therefore, that the recognition of the institution should be withdrawn and the Federal Government may, on receipt of such report, make an order to be published in the Official Gazette, withdrawing the recognition of the institution: Provided that no order under this subsection shall be made unless the institution concerned has been given an opportunity to raise, within a specified time, the standard of the education and examination to the satisfaction of the Federal Government, and the institution has, in the opinion of the Federal Government, failed to As is evident from a perusal of section 19 of the Act of 1965 the Federal Government on the recommendation of the council, is empowered to withdraw the recognition granted to any college but no such order under subsection (2) of section 19 of the Act can be passed "unless the institution concerned has been given an opportunity to raise, within a specified time the standard of the education and examination to the satisfaction of the Federal Government, and the institution has in the opinion of the Federal Government, failed to do so."

3. On a question from the Court, Mr. Sardar Abdul Majeed and Mr. Shahudul Haq frankly conceded that on their record there is nothing to indicate that any notice or opportunity, after the recommendation, had been given by the Government. However, it was submitted by the learned counsel for the Council that some enquiries were conducted and, as the standard of the petitioner No.2 college is not upto the mark apparently for this reason, on the recommendation of the Council, action was taken by the Federal Government withdrawing recognition of petitioner No.2 college. However, the fact remains that the opportunity/ notice required to be given under the proviso to subsection (2) of section 19 of the Act, 1965, has not been given. In the circumstances, there is a clear violation of the provisions of section 19 of the Act of' 1965, and the impugned notification /order dated 23‑12‑1985 is liable to be declared as unlawful.

4. The order/ notification dated 23‑12‑1985 of the Federal Government withdrawing recognition of petitioner No.2, Sir Syed Homoeopathic Medical College and Hospital is declared to have been passed without lawful authority and to be of no legal effect. The respondents are, however, free to take action against the petitioner No.2 college, after complying with the provisions of section 19 of the Act of 1965. There will be no order as to costs. H.B.T./5129/K Petition allowed