MUZAMIL AKHTAR SHABIR, J.--- This single judgment shall decide appeals i,e, ICA No,201/2009, ICA No,202/2009, ICA No,203/2009, ICA No,204/2009 and ICA No,206/2009 in which similar facts and question of law are involved.
2.The appellants, who are registered distributors of pesticides, have challenged order dated 08.07.2009 passed by learned Single Judge of this Court, who dismissed their constitutional petitions, whereby appellants had challenged the vires of Rule 9(5) of the Agricultural Pesticides Rules, 1973 as amended through SRO No,790(I)/2005 dated 05.08.2005 by the Government of Pakistan, Ministry of Food, Agriculture and Livestock.
3.The case of appellants is that they are registered distributors of pesticides and are being regulated under Agriculture Pesticides Ordinance, 1971 "the Ordinance" and Agricultural Pesticides Rules, 1973 "the Rules". As per rule 11 of the Rules, the appellants were required to maintain qualified technical staff consisting of Entomologist, Plant Pathologist and Toxicologist and appellants were fully complying with the above said requirements. Some of the appellants applied for renewal of their distributorship, when they were informed that through Notification SRO No,21(I)/2004 dated 13.01.2004, amendment had inserted new sub-clause (c) in rule 9 sub-rule (5) to the effect that persons engaged in the business operations of Agricultural Pesticides in more than one Province shall maintain adequately qualified staff of whom at least 10-persons should be agricultural graduates or post graduates. Through another SRO No,790(I)/2005 dated 05.08.2005, clause (c) of Rule 9, sub-rule (5) was replaced by an amended clause in the following terms: "(c)who maintains adequately qualified staff at the places where operations are carried out, as per strength given for each province in the following namely:-- Province of Punjab at least 10 Agricultural Graduates Province of Sindh at least 04 Agricultural Graduates Province of NWFP at least 02 Agricultural Graduates Province of Balochistanat least 02 Agricultural Graduates"
4. The constitutional petitions filed by appellants challenging the vires of amendment in rule 9(5)
(c) of the Rules made through SRO. No,790(I)/2005 were dismissed by the learned Single Judge in Chambers and said order is under challenge in the titled appeals. During the pendency of the appeals, through SRO No,637(I)/2011 dated 20.06.2015 the number of required agricultural graduates for Punjab was reduced to 5 by making following amendment in rule 9(5)(c) of the Rules: "(c) who maintains adequately qualified staff at the places where operations are carried our as per strength given for each province in the following namely:-- Province of Punjab at least 05 Agricultural Graduates."
5. The Contention of learned counsel for appellants is that they are only the distributors and not importers, therefore, the abovesaid SRO is not applicable to their case and even otherwise it is contended that SRO dated 05.08.2005 is ultra vires of Articles 4 and 8 of the Constitution of Islamic Republic of Pakistan, 1973; that Government was not authorized to issue such an order in terms of Section 29 of the Ordinance and that impugned SRO is also discriminatory as in other Provinces less number of agricultural graduates are required to be employed.
6. On the other hand, learned Law Officers have opposed the titled Intra-Court Appeals on the ground that framing of rules is the prerogative of the Federal Government and the Legislature; that keeping in view the different population and cultivatable area, different number of field staff has been required to be employed in the four Provinces, thus, appellants cannot claim discrimination. It is further argued that Legislature in its intent has laid classification which in the facts and circumstances is quite reasonable and covered by Article 25 of the Constitution of the Islamic Republic of Pakistan, 1973.
7. The real dispute revolves around the interpretation of Rule 9(5)(c) of the Rules and can be determined without going into the question of vires of amendment in Rule 9(5)(c) through SRO No,790 (I) 2005. Rules 9 and 11 of the Rules ibid are reproduced below:-- "9.Import of pesticides.--- (1) Subject to rule 9A, no pesticide, except for experimental purpose shall be imported into Pakistan unless it has been registered under rule 4. (2) No pesticide shall be imported unless it complies strictly with the details given in the application for registration.
(3) No pesticide shall be imported unless it is packed and labeled in conformity with the rules in part V.
(4) No pesticide shall be imported unless the importer has proper facilities for storage of pesticides as laid down in part VI.
(5) Pesticides shall be imported only by a person.
(a)to whom a Certificate of Registration is issued under rule 4: or (b)permitted import of pesticides under rule 9A, and shall be supplied and distributed either by himself or his authorized distributor duly registered with the respective Provincial Government.
(c)who maintains adequately qualified staff at the place where operation are carried out as per strength given for each Province in the following namely-- ' Province of Punjab at least 05 Agricultural Graduate. Province of Sindh at least 04 Agricultural Graduates ' Province of Khyber Pakhtunkhwa at least 02 Agricultural Graduates ' Province of Balochistan at least 02 Agricultural Graduates.
(d)who in case of a company, has a minimum paid up capital of Rs, one million or, in case of an individual, has capital investment of Rs .0.5 million.
(6) On and from 15th September, 2006, no pesticide shall be imported and cleared by customs authorities unless it is accompanied by a pre -- shipment Inspection certificate issued by international pre -- shipment inspection and survey agencies listed with the Department of Plant Protection and duly endorsed by the said department.
11. Condition to be fulfilled for the sale of a registered pesticide.-- A person to whom a certificate for the sale of a registered pesticide has been granted shall-
(a) maintain adequate number of properly qualified technical staff consisting of entomologists, plant pathologists and toxicologists having sufficient knowledge regarding the products, its use, storage transportation, packaging and safety measures; (b)maintain proper storage facilities for pesticides; (c)provide necessary training to the seller regarding safe, storage handling safety measures and use of pesticides; and (d)keep the pesticide and the prescribed package."
8. The perusal of Rule 9 above shows that it is related to persons ' who can import pesticides and its sub-rule (5) is applicable to: (i)importers to whom a certificate of registration is under rule 4; (ii)importers permitted to import under rule 9A and supply and distribute pesticides themselves; (iii)importers permitted to import under rule 9A and supply and distribute pesticides through distributors registered with respective provincial governments; and (iv)who maintains adequately qualified staff at the place where operation are carried out as per strength given for each Province i,e, 5 Agricultural graduates for Province of Punjab.
9. It is the importers and not the distributors who have to be registered under rule 9 mentioned above. A distributor who is not an importer is a person who is distributing or selling the pesticides and has to be issued a certificate under Rule 11 of the Rules, for which he has to maintain adequate number of qualified technical staff consisting of Entomologist, Plant Pathologist and Toxicologist.
The conditions prescribed in Rule 9(5)(c) of the Rules to maintain qualified staff of whom at least 10-persons (now reduced to 5 person) should be agricultural graduates has not been made applicable to the distributors who themselves are not importers. Only a distributor who is also an importer is liable to hire 5 agricultural graduates under Rule 9(5)(c) of the Rules. The learned Single Judge while relying upon order dated 13.05.2008 passed in W.P.No,1105/2006 (BWP) titled "Cotton Quality International v. Government of Punjab" has merely stated that similar constitutional petitions have been dismissed by this Court without referring to the reasoning laid down in those judgments or reproducing any matter that has been decided by those judgments. Therefore, the order of the learned Single Judge being devoid of reasoning is not sustainable.
10. The learned Standing Counsel relied upon the decision of appeal (I.C.A No,79/2008 in W.P.No,3519/2008 "M/s A.N. Pesticides, and another. v. Federation of Pakistan and others") decided on 21.04.2010 at Multan Bench of this Court to defend the order of learned Single Judge of this Court.
The observations made by this Court in the above said Intra-Court-Appeal are reproduced below: "As the impugned SRO was issued under section 29 of the Agricultural Pesticides Ordinance, 1971 which itself makes incumbent upon the government that the consultation with the said committee is a prerequisite, therefore, by reference to that section and issuance of a notification under that section inculcates the meaning and before issuance of the notification, the Federal Government had made a consultation with the said Advisory Committee. The contention of the learned counsel is repelled that the impugned notification/SRO of 2005 was issued in violation of section 29 of the said Ordinance. This ICA is dismissed."
11.The afore-referred decision has been made relating to vires of rule 9(5)(c) of the Rules at the touchstone of Section 29 of the Ordinance. As we have not based our decision on the vires of law but on the applicability of rule 9(5)(c) to distributors who are not importers, therefore the judgment passed in ICA No,79/2008 (supra) is distinguishable as the said judgment does not deal with the question decided by us and therefore the said judgment is not applicable to the present case.
In our opinion, Rule 9 ibid is applicable only to the importers, the appellants being not importers are not hit by the mischief of Rule 9 ibid; hence, we allow these appeals i,e, I.C.A No,201/2009, ICA No,202/2009, ICA No,203/2009, ICA No,204/2009 and ICA No,206/2009 and declare that the distributors who are not themselves importers are not liable to hire Agriculture Graduates as prescribed by the afore-referred SRO.
12.The appeals are allowed in the above terms. No order as to costs.