P L D 1959 Supreme Court (Pak (PLP)

In view of the fact that small pox is prevalent in certain parts of Pakistan it is requested that necessary instructions may kindly be issued to all concerned in the Haji Camp Chittagong that every pilgrim taking part in the ensuing Hai pilgrimage should be vaccinated against small‑pox before departure from Chittagong irrespective of the fact whether he has already been vaccinated or not. (Sd.) ... for D. G. H. Copy forwarded to D. H. S., Karachi. The Health Officer, C. G. S. Colonies may please be asked to vaccinate against small‑pox every pilgrim in the Haji Camp irrespective of the fact whether he has already been vaccinated or not. (Sd.) .. for D. G. H." The letter dated the 30th April, 1957 was as follows:‑ " Subject: Haj pilgrimage 1957‑Countersignature of Health Certificates for the pilgrims. Sir, I have the honour to say that in view of the occurrence of a number of small‑pox cases in Karachi and in view of our special commitments during the current Haj season, it has been decided that the Health certificates of vaccination and inocula tion against small‑pox and cholera of pilgrims arriving in Karachi should be counter‑signed only at the Haji Camp, Karachi, and no where else. The special measures relate to the current Haj season only. Y. O. S. (Sd.) ... for D. G. H." These letters were signed by somebody in the office of the Director‑General of Health for the Director and in them there is no mention of any law or rule, under which these instructions were issued or whether they were being issued under orders of the Central Government. In his counter‑affidavit the appellant No. 2 relied upon Rule 38 of the Pakistan Aircraft (Public Health) Rules, 1950, made by the Central Government in exercise of the powers conferred by section 8‑A of the Indian Aircraft Act, 1934 (XXII of 1934), as the basis of the Government of Pakistan's instructions to him in the two aforesaid letters requiring the certificates to be countersigned only at the Haji Camp impliedly revoking thereby the authority given to Municipal Health Officer. It may be stated here that on the 7th June 1954 the Government of Pakistan had approved a list of persons who were authorized to authenticate certificates of inoculation and vaccination against Cholera and small‑pox under the International Sanitary Regulations. The list included the Municipal Medical Officers, one of whom had given the respondent a Health Certificate on the authentication of which by the appellant No. 2 respondent insisted. Rule 38 of the Pakistan Aircraft (Public Health) Rules, 1950, is as follows:‑ " Special provisions relating to Pilgrim Aircraft. 38.‑--No person shall be permitted by the Health Officer to embark on an aircraft with a view to proceeding by air to the Hedjaz on pilgrimage unless such person produces two medical certificates signed by persons who, in the, opinion of the Health Officer conducting the medical examination under rule 33, are duly qualified to grant such certificates, one showing that such person has been inoculated against cholera not more than six months and not less than six days prior to the date of medical inspection, and the other showing that such person has been vaccinated against small‑pox not more than three years and not less than fourteen days prior to the date of medical inspection Provided that the Health Officer making the inspection may dispense with the certificate of vaccination if in his opinion the person has marks of a previous attack of small‑pox." During the hearing of the writ petition, however, both the appel lants, who were present in the High Court, offered to authenti cate the International Certificate No. 3963, dated the 6th July, 1955, issued by the Public Health Department, Karachi Municipal Corporation, which the respondent already possessed, and did authenticate the same before it. As the object, for which the writ of mandamus was asked for, was achieved, the High Court did not issue a writ, but held that the order of the Director -General of Health, dated the 30th April, 1957, is illegal and of no effect, and that the insistence of the appellant No. 2, namely, the Health Officer, Haji Camp, on re‑vaccinating the respondent was without a legal sanction. The Court, therefore, did not issue any direction but ordered the present appellants to pay the costs of the respondent. In support of this appeal it was argued that as the High Court had not issued any writ or direction, it was not necessary for it to go into the legal question at all and that as authentica tion had been made, it was not necessary for the Court to proceed with the case at all. It was also urged that the respondent having omitted to mention the fact that he submitted to re vaccination in his writ petition, the writ petition should have been dismissed. The respondent, however, gave an explanation to the High Court for the omission of this fact, as he thought it was unnecessary to mention it in view of the fact that after re‑vaccina tion a new certificate was not issued to him by the appellant No. 2, which appears to have been accepted by ‑the High Court. The High Court had to go into the legal rights of the respondent before it, as it passed an order for costs against the opposite party. As before us an attempt was made to justify the action of the appellant No. 2 in insisting on re‑vaccination, we had to go into the legal questions involved in the case. Rule 38 of the Pakistan Aircraft (Public Health) Rules, 1950 is a statutory rule and could only be altered by the Central Government by an appropriate notification. It clearly lays down that a certificate A of vaccination against small‑pox would be valid for three years if granted by a proper authority mentioned therein. There is a reference to Rule 33 with regard to certain powers given to the Health Officer and that officer in the said rule is specified as the Health Officer of the aerodrome. It does not necessarily include the appellant No. 2, who was the Health Officer of the Haji Camp. Besides, the instructions relied upon by the appellant No. 2 contained in the endorsement dated the 22nd April, 1957 and letter dated the 30th April, 1957 purported to be from the Director‑General of Health and signed by someone in his office for him. There is no mention of any rule of law or order of the Central Government under which the Director‑General of Health was issuing those instructions. They cannot, therefore, override the provisions of the statutory Rule 38 of the Pakistan Aircraft (Public Health) Rules, 1950. They also appear to be unreasonable, as they require every pilgrim in the Haji Camp to be re‑vaccinated irrespective of the fact whether he had already been vaccinated or not or whether he was vaccinated, say fourteen days before, even by a Doctor approved in this behalf by the Government. This appeal is, therefore, dismissed with costs. K. B. A. Appeal dismissed.