' MUSHIR ALAM, C J.---The petitioner, who is Pharmacist prayed for issuance of writ of qua warranto against Saleem Ishrat Hussain, Ex-Secretary Pharmacy Council of Sindh respondent No, 5 and has secondly impugned the notification dated 3-10-2005 issued in purported exercise of powers and authority under subsection (2) of section 26 of the Pharmacy Act, 1967 as amended by Pharmacy Amendments Act, 1973 issued by the Pharmacy Council of Sindh, whereby fees for registration of Pharmacist in Category "A" including fees for renewal and issuance of verification letter besides prescribed fine for late submission.
2. To seek writ of quo warranto it was contended by the learned counsel ,for the petitioner that in terms of section 15 of the Pharmacy Act, 1967, the Secretary of Council is to be appointed from amongst persons eligible for registration as pharmacists, by the Council with the approval, in the case of the Central Council, of the Federal Government and in the case of a Provincial Council, of the Provincial Government. Learned counsel further contended that the respondent No, 5 though eligible to be appointed but since the appointment was not made in accordance with the provisions i,e, by the Council nor it has obtained concurrence of the Provincial Government, therefore, such appointment is nullity and, therefore, the writ of quo warranto must necessarily be issued.
3. As regard challenge to the impugned Notification fixing, the fees in purported exercise of power under subsection (2) of section 26 of the Pharmacy Act, 1967 is concerned it was contended that it is in colourable exercise of authority. According to Mr. Sohail Hameed, till such time bye-laws are framed per section 34(3) of the Pharmacy Act, 1967 it is the prerogative of the President of the Council to prescribe such fee and no other office or the authority has such power. It is urged that indeed the Council may make bye-laws in terms of section 34 of the Act in respect of various matters inter alia including bye laws in respect of fee to be paid under this Act (see Clause (g) ibid) and in absence of such bye-laws under section 34(3) ibid, the President is competent to prescribe the fees and issue notification.
4. Mr. Abrar Hassan, learned counsel for the respondents Nos. 4 and 5 challenged the maintainability of the petition on two fold grounds; firstly no writ of qua warranto would be maintainable where other relief is also clubbed and secondly, the writ of quo warranto in terms of Article 199(1)(b)(ii) would be maintainable unless it is shown that the person against whom such writ is prayed for 'holds the public office. According to him, the respondent No, 5 held such office till 2008 and the petition was filed on 12-9-2009, even in the title of the petition, the petitioner himself arrayed the respondent No, 5 as Ex-Secretary, Pharmacy Council of Sindh. In support of his contention, reliance is placed of the case of Capt. (Retd.) Muhammad Naseem Hijazi v. Province of Punjab (2000 SCM R 1720), relevant page 1725, which reads as follows:- "It was observed that any person can move the High Court to challenge the unauthorized occupation of a public, office on any such application Court is not only to see that the incumbent is holding the office under the order of a competent Authority but it is to go beyond that and see as to whether he is legally qualified to hold the office or to remain in the office: the Court has also to see if statutory provisions have been violated in making the appointment. The invalidity of appointment may arise not only from one of qualifications but also from violation of legal provision for appointment."
5. As regards the objection as to the vires of the notification impugned in this petition, it is contended that the notification was issued by the Council in exercise of power vested in him under subsection (2) of section 26 of the Pharmacy Act, 1967.. Accordingly to him, the Council in terms of section 5 of the Act, 1967 is comprised of person nominated by the Provincial Government. It was urged that since the President is an officer of the Council, therefore, the impugned notification could validly be deemed to have been issued by the President under section 34(3) of the Act, 1967, he therefore, prays for the dismissal of the petition.
6. In rebuttal, learned counsel for the petitioner contended that the powers and authority of the Council are prescribed under section 23 of the Pharmacy Act, 1967, which inter alia provides that the functions of a Provincial Council (a) to prepare and maintain registers of pharmacist and apprentices pharmacy, (b) to register pharmacists and grant certificates of registration (c) to conduct examinations for the purpose of registration as pharmacists and to do such other acts and things as it may be empowered or required to do by this Act. It was further urged that such authorization conferred on the Provincial Council to empower on the issue which are within its competence.
7. Learned Addl. A.G. Has supported the contentions of the learned counsel for the respondents Nos.
4 and 5.
8. We have heard the arguments of the learned counsel for the parties and perused the material available on record.
9. As regards first contention, as noted in the case of Capt. (Retd) Muhammad Naseem Hijazi v.
Province of Punjab. In order to challenge the occupation of the public office, the petitioner must have rights in present and secondly that the person whose appointment is challenged must be holding office when the petition is brought before this Court and thirdly such person is not qualified to hold such office.
10. As narrated above, admittedly the respondent No, 5 was not holding any public office at the time when the present writ was brought to this Court therefore; writ of qua warranto on this ground alone fails.
11. Coming to the vires of the impugned notification, in terms of section 34 of the Pharmacy Act, the Council with the previous approval of Federal and or the Provincial Government as the case may be for carrying out the purposes of Pharmacy Act is empowered to make bye-laws, in particular and without prejudice to the generality of the powers to frame the bye-laws in respect of matter detailed in subsection C (2) ibid including power to prescribe fee per Clause (g) thereof.
12. It is contended that no bye-laws till date have becn framed per subsection (2) of section 34 ibid. In terms of subsection (3) of section 34 ibid unless and until bye-laws are framed by the Council the President of the Council is empowered to regulate all or any of the matters specified in subsection (2) thereof by issuing instruction as may be considered necessary including prescribing fee. Any instructions issued by the President will automatically be rescinded upon making of bye- laws by the Council. Admittedly, as noted above till date no bye-laws have been framed.
13. In the light of above, now examining the impugned notification available at Page 25 of the File, the preamble of the impugned notification, reads as follows:- "No, P.C.S/08/06:--In pursuance of the Provisions of subsection (2) of section 26 of the Pharmacy Act, 1967 as amended by Pharmacy Amendments Act 1973. The Pharmacy Council of Sindh is pleased to prescribe the tees for registration of Pharmacist in "A" category including fee for renewal of such registration and issuance of verification letter and prescribed the tine for late submission as under"
Notification is followed by schedule of renewal fees and registration fees.
14. From the preamble of the impugned notification it is evident that it is issued in purported exercise of authority under subsection (2) of section 26 of the Pharmacy Act, 1967. Section 26 ibid prescribes procedure for registration and subsection (2) thereof provides that an application for registration shall contain such particulars and be made in such form as may be specified by the Provincial Council and shall be accompanied by, such fee as may be prescribed by the bye-laws. It is E admitted position that till date no bye-laws have been framed, therefore the question of prescribing fee through bye-law does not arise. Section 26 ibid only authorizes the Provincial Council to invite application on a form as may be, prescribed by the "Council through official Gazette for the registration of pharmacist or as apprentices in pharmacy and subject to qualification, may enlist such person in appropriate register. No authority under said provision is conferred on the Provincial Council to prescribe any fee for registration.
15. Under Article 5 of the Constitution of Islamic Republic of Pakistan, 1973 obedience to the Constitution and law is the inviolable obligation of every citizen and public functionary are no exception on the contrary public functionaries who are repository of public trust would stringently adhere to the Constitution and law. When law prescribes any thing to be done in particular manner it is to be done as mandated by law, any transgression amount to stepping over the authority rendering the act without lawful authority. In terms of Article 4 of the Constitution of Islamic Republic of Pakistan, 1973 all persons are entitled to be H treated in accordance with law and no one can compel a person to do something, which the law does not require him to do.
16. In the facts and circumstances, we are of the opinion that the Provincial Council had no authority in terms of subsection (2) of section 26 of the Pharmacy Act, 1967 to prescribe fees for relgation of Pharmacist in "A " category including fee for renewal of such registration and issuance of verification letter and prescribed the fine for late submission", which is accordingly struck down.
17. We may however, observe that it is desirable that the Central Council and Provincial Council should frame Bye-laws for carrying out the purpose of the Pharmacy Act, 1967 as required under section 34(1) and (2) of the Pharmacy Act as soon as possible. The matter may be placed before the Provincial and Central Council in the forth coming meeting to consider framing the bye- laws as required under the law with the approval of the Federal and Provincial Government as the case may be Till bye-laws are framed the President of the Council may regulate all or any matter specified in subsection (2) of section 34 of the Act, 1967 including fee to be prescribed under the Pharmacy Act, 1967.
18. In view of the foregoing discussion, petition seeking writ of qua warranto as against respondent No, 5 is dismissed. Petition as regard impugned Notification under subsection (2) of section 26 of the 1K Pharmacy Act, 1967 dated 3-10-2005 is allowed.