' SHEZADA MAZHAR. J.--- Petitioner prays for issuance of direction to respondents to hold election of National Council and Branch Council as per election schedule dated 27.10.2014 under Cost and Management Accountants Act, 1966 and Cost and Management Accountants Regulations, 1990 in free, fair and transparent manner.
2. It is the case of the learned counsel for petitioner that respondents cannot carry out the election announced on 27.10.2014 on the basis of notification issued on 12.11.2014 whereby certain amendments have been made in the Cost and Management Accountants Regulations, 1990. It is also the case of the petitioner that Election Committee cannot demand undertaking from the candidates on the basis of amendment made in the regulations on 12.11.2014 and that amendment made in the regulations cannot operate retrospectively. It is also the assertion of the learned counsel for the petitioner that since the election schedule has been announced, and the election is to be held under Cost and Management Accountants Regulations, 1990 (Revised upto September, 1999), therefore, no new amendment can be made applicable to the present elections.
3. Learned counsel for the petitioner has relied upon "Muhammad Asif Khan and 173 others v. Azad Government of the State of Jammu and Kashmir through Chief Secretary and 14 others" (2014 PLC (C. S) 534) as well as "Water and Power Development Authority, Lahore through Chairman and others v. Haji Abdul Aziz and others" (2012 SCM R 965)
4. On the other hand, it is being canvassed on behalf of respondents that captioned petition is liable to be dismissed on the ground that the petitioner has concealed the facts as the nomination papers were already accepted without the undertaking. It is also the case of the respondents that the notification dated 11.11.2014 will not affect the petitioner adversely. Therefore, the same cannot be called in question by him. Notification No.S.R.O.1020(I)/2014 dated 11.11.2014 has neither imposed any duty nor has taken away any right of the petitioner, therefore, the petitioner cannot be held to be an aggrieved person. It is the case of the respondents that only two changes have been made through the present notification i.e. Instead of postal ballot, now overseas members can also cast their vote online, and the voters personally can now cast their vote electronically. The above amendment will not in any manner prejudice the election of any member. Therefore, this petition is liable to be rejected. It is also the case of the respondents that it was the petitioner who himself sought online voting for the overseas members and therefore, now cannot challenge the same. It is also the case of the respondents that procedural amendment can apply retrospectively and in this regard learned counsel for the respondents relied upon "Federation of Pakistan and others v.
Ammar Textile Mills (Pvt.) Limited and others" (2002 SCM R 510) and "K. Kapen Chako v. The Provident Investment Company (P) Ltd." (1977) 1 Supreme Court Cases 593. It is also the case of the respondents that in election matters the crucial date is the date of scrutiny which is 26.11.2014 and in this regard learned counsel for the respondents relied upon "Ch. Muhammad Yusuf and others v.
Azad Government through Chief Secretary, Muzaffarabad and others" (PLD 2001 Azad J&K 60).
Learned counsel states that as the scrutiny of nomination papers is to be carried out after the above said notification therefore, the same is applicable to the present elections.
5. I have heard the learned counsel for the parties and have gone through the case law produced before the Court as well as law on the point.
6. Dispute in the case in hand is with regard to the Notification dated 12.11.2014 issued by the Federal Government with the approval of the Council, as elaborated under section 9 of the Cost and Management Accountants Act, 1966. The Notification No.S.R.0.1020(1)/2014 was issued on 11.11.2014 whereby certain amendments were made in the Regulations however, for the purpose of present dispute the following changes in the election procedure are only relevant:- "(i) Whereas previously overseas members of Respondent No.4 were allowed to cast votes via postal ballot (Regulation No.25), through the amendment brought about by the Notification they are now allowed to cast their votes through a secure online voting portal;
(ii) For those voters who will vote in person, instead of a traditional paper ballot they will be allowed to register their vote electronically through a computer screen, therefore, eliminating chances of errors during recording of votes (Regulation 35).
' The said amendments allow overseas members to vote online instead of earlier procedure of postal ballots.
7. Petitioner's case is that amendment cannot apply retrospectively as election schedule was announced on 27.10.2014 therefore, not applicable on the present elections. Whereas the case of the respondent is that procedural amendments can be applied retrospectively.
8. I am afraid the issue is not only with regard to the applicability of the notification retrospectively or prospectively. It is also with regard to duties of the Council as well. The amendment issued by the Federal Government with the approval of Council under section 34(4) of the Cost and Management Amendments Act, 1966 reads as follows: "34(4) The Council shall, as soon as practicable, send a copy of any Regulation made by it to every member of the Institute"
9. Neither the respondents' counsel states a single word with regard to the above said duty nor anything is mentioned in the written reply filed by the respondent that they have already sent the amendments to each member of the institute. In absence of the circulation of the amendment the Council cannot claim its application. The circulation was only made by the Election Committee to the contesting candidates and not by the Council to all its members. Therefore, the duty imposed on Council under the law has not been fulfilled by the Council. Therefore, on this account the Council cannot claim implementation of the same.
10. The claim of the respondent counsel that the date of scrutiny is important in election matters and in this regard relied upon "Ch. Muhammad Yusuf and others v. Azad Government through Chief Secretary, Muzaffarabad and others" (PLD 2001 Azad J&K 60).
11. I have gone through the said judgment wherein the issue was with regard to the Ordinance issued by the President of AJ&K whereby certain qualification and disqualification were imposed.
The said Ordinance was challenged wherein it was held that the crucial date in election matter is the date of scrutiny which was after the promulgation of Ordinance. I am afraid the said judgment is not relevant to the case in hand. In the present case, issue is not with regard to the qualification or disqualification of candidates instead the balloting process has been changed through notification. Earlier all overseas members were to cast their vote through postal ballots however, now they were allowed to cast their vote online.
12. Perusal of the Regulations, prior to the amendment, reveals that there was no procedure mentioned in the regulations with regard to issuance of ballot papers or the time within which such ballot papers were to receive back by the Election Committee. In other words there was nothing specific with regard to the overseas members voting. Through the present notification overseas members have been given new right to cast their votes online. This new right cannot be applied retrospectively by the respondents Council.
13. There is another angle to the present amendment, under Regulation No.49 of the Cost and Management Accountants Regulations Act, 1990, member is liable for disciplinary action if candidate is involved in canvassing. The regulation states;
(a) Canvassing done by a candidate directly or indirectly through others for his/her election.
' However, he is allowed to do canvassing through letters and circulars. As per provisions of Election Regulations earlier there was no online procedure available, therefore, it is possible that a candidate may not approach overseas member for canvassing. However, now with the present amendment, overseas members have also become important for any candidate. Hence these amendments have also affected the rights of all the contesting candidates, therefore, this amendment cannot be allowed to operate retrospectively. In this regard reference is made "Water and Power Development Authority, Lahore through Chairman and others v. Haji Abdul Aziz and others" (2012 SCM R 965) wherein it is held:- "It is an established law that the rules operate prospectively and if a right is created in favour of an employee under the old rule, it cannot be taken away, inter alia, on the ground that the amended rule has allowed others to compete"
' It was further held in the judgment that:- "Any amendment which deprives a person of his right has to be construed prospectively".
14. In the case in hand also, a new procedure has been introduced for balloting of overseas members which in fact affects the rights of the contesting candidates as well, and therefore, it cannot be allowed to apply retrospectively.
15. In view of the above, this petition is allowed and respondents are directed to hold election to be held on 18.01.2015 on the basis of Cost and Management Accountants Regulation, 1990 without taking into account the amendments made on 11.11.2014. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.