1. HAMOODUR RAHMAN, C. J.---This appeal, by special leave, arises out of a judgment of a Division Bench of the High Court of West Pakistan, Karachi Seat, dismissing a petition under Article 98 of the Constitution of 1962, wherby the validity of a notification of the then Provincial Government issued on the 23rd of January 1967, purporting to terminate the appointment of the appellant as a Notary Public within the local limits of the Nawabshah District, was sought to be challenged.
2. The appellant was, it appears, by a notification issued on the 27th of June 1963, in exercise of the powers conferred by section 138 of the Negotiable Instruments Act, 1881 read with the late Government of India (Home Department Judicial) Notification No. 267/37-Judicial, dated the 23rd December 1938 appointed by the then Governor of West Pakistan, as a Notary Public within the local limits of the Nawabshah District for an indefinite period.
3. Section 138 of the Negotiable Instruments Act reads as follows :- "The Central Government may, from time to time, by Notification in the official Gazette, appoint any person, by name or by virtue of his office, to be a notary public under this Act and to exercise his functions as such within any local area, and may, by like notification, remove from office any Notary Public appointed under this Act."
4. Section 139 of the said Act empowered the Central Govern--ment to ,make rules cons1stent with the Act for the guidance and control of Notaries Public appointed under the Act. Such rules were framed and published on the 30th September 1886, whereby provisions were made inter alia, for forms to be used by Notaries and scales of fee chargeable by Public Notaries for noting instruments were also prescribed, but no qualifications for appointment as a Public Notary were laid down.
5. It may also be mentioned here that on the 14th of June 1961, the President had promulgated an Ordinance, called the Notaries Ordinance No. XIX of 1961 which was to come into effect from a date to be notified by the Government. Section 3 of this Ordinance gave power to the Provincial Government to appoint notary for the whole or any part of the Province. Section 4 required the Provincial Government to maintain a reg1ster of such Notaries in a prescribed form. Section 8 laid down the functions of Notaries and section 10 empowered the Provincial Government to remove the name of a Notary from the reg1ster on the following grounds :-
(a) at his own request,
(b) if he had failed to pay the fees prescribed,
(c) if he was an undischarged insolvent, or
(d) if he had been found upon enquiry to be guilty of pro--fessional or such other misconduct as, in the opinion of the Government, rendered him unfit to practise as a notary.
6. Section 15 of the Ordinance empowered the Provincial Govern--ment to make rules, by notification in the official Gazette, for carrying out the purposes of the Ordinance and, in particular, for providing amongst other things the qualifications of a Notary.
7. Section 16 of this Ordinance, however, saved all appointments made earlier. This section is in the following terms :- "Nothing in this Ordinance affects the provisions of the Negotiable Instruments Act, 1881, or any appointment made in pursuance of section 138 of that Act or the powers of any person so appointed."
8. This Ordinance, although promulgated on the 14th of June 1961, did not come into force in the Province of West Pakistan until the 5th of January 1966. Until this date, therefore, the appointments of Notaries continued to be made under the Negoti--able Instruments Act and the appellant was one of such persons so appointed under the Act.
9. In pursuance of the rule-making power granted by section 15 of the Ordinance the Provincial Government framed rules which were published on the 5th January 1966, whereby qualifications for appointment as Public Notaries were for the first time laid down. The qualifications prescribed by rule 3 were as follows :- "3. Qualifications for appointment as a notary. No person shall be eligible for appointment as a notary unless on the date of the application for such appointment-
(a) he is a notary public appointed by the Master of Faculties in England ; or
(b) he has been practising as a legal practitioner for at least five years."
10. After the coming into force of the Ordinance the respondent No. 3 herein applied for appointment as a Notary Public for the District of Nawabshah. At first his application was turned down; presumably because the appellant was already holding that office; although there was no bar either under the Ordinance or under the Act of 1881 for the appointment of more than one person as a Public Notary for the same area. In spite of this refusal, the respondent No. 3 again moved the Government for being appointed as such Notary Public and on this occasion acting on the report of the local officials the Provincial Government on the 23 of January 1967 issued the impugned notification which is quoted below :-- "No. 5/8-H. Jud1. (II)/65.-Under the provisions of rule 8(3) of the West Pakistan Notaries Rules, 1965, the Governor of West Pakistan is pleased to appoint Mr. Muhammad Mushtaq, Advocate, Nawabshah, as Notary Public within the local area of Nawabshah District, for a period of three years in the vacancy of Pir Sarfraz Ahmad who ceases to function as Notary Public, from the date of the issue of this notification."rd It has to be mentioned here that before issuing this notifica--tion no notice of any kind whatsoever was given to the appellant nor was he informed as to how or why he had ceased to function as a Notary Public. The appellant, accordingly, promptly chal--lenged the validity of this notification by filing a petition under Article 98 of the late Constitution on the 3rd of February 1967. The petition was admitted for hearing on the same date but was finally disposed of on the 3rd of November 1967.
11. Before the High Court three points were urged on behalf of the appellant, namely :--
(i) that the petitioner's appointment was made under section 138 of 1881-Act and rules framed under that Act which did not prescribe any legal qualifications for the appointment as Notary Public and, therefore, the petitioner's appointment was valid ab initio,
(ii) that the petitioner's appointment being for an indefinite period will continue to hold good in view of section 16 of the Ordinance, and
(iii) that the impugned Notification offended the principle audi alteram partem, because the petitioner was afforded no opportunity to show cause against the termination of his appointment as a Notary Public, The respondent Government filed a counter-affidavit before the High Court and in this it was admitted that the appellant was appointed as a Notary Public within the local limits of Nawabshah District under section 138 of the Act of 1881 and that by virtue of section 16 of the Ordinance of 1961 appointments made under the Act of 1881 were saved, but it was contended that notwith-- standing this saving clause the powers of Government to remove a Notary Public under section 138 of the Negotiable Instruments Act were, in no way, affected. This averment was no doubt made to get over the difficulty posed by section 10 of the Ordinance which clearly contemplated that the removal of the name of a Notary Public from the reg1ster maintained for that purpose could only be made on the grounds specified therein and in the manner therein prescribed. Under section 138 of the Act of 1881 Tower was given to the Government to remove by the issuance simpliciter of a notification. The difference in the phraseology of these provisions may well have led the draftsman of the counter- 8 affidavit to erroneously think that the power given by the Act was in the nature of a naked power without any limitation of any kind.
12. It is, furthermore, interesting to note that in this counter-- affidavit it was not the case of the Government that the removal of the appellant had been made on the ground that he did not possess the qualifications prescribed under the Ordinance. Indeed, it was specifically averred in this counter-affidavit that "the question of qualification does not arise nor is it a relevant consideration under section 138 of the Negotiable Instruments Act. The removal of the petitioner has been on the grounds as stated in paragraph 1 of the counter-affidavit".
13. The reference to paragraph 1 is patently wrong, as the grounds of removal have been set out in paragraph 2 of the counter-affidavit in the following terms :- "The petitioner, according to the report of the Deputy Commissioner, Nawabshah, was not working as such in Nawab--shah nor was he available there and was residing mostly at Tando Adam where he was carrying on business. Since the petitioner was appointed for carrying on functions as a Notary Public in Nawabshah, his non-functioning as such was causing a lot of hardships and inconvenience to the litigant public. The report was accordingly made for his removal by the Deputy Commissioner on the 22nd of November 1966, on the above grounds."
14. In his affidavit in rejoinder the appellant controverted this allegation and filed a number of documents to show that the report of the Deputy Commissioner was not only factually incorrect but had been made ex parte on the basis of deliberately false information supplied to him by interested parties.
15. At the time of the hearing of the writ petition in the High Court the ground alleged in the counter- affidavit for the removal of the appellant was given a complete go-by, and a new case was sought to be made out for the removal of the appellant on the ground that he did not possess the necessary legal qualifications, although as earlier pointed out the question of qualifications was specifically averred to be irrelevant.
16. This argument, nevertheless, appears to have impressed the learned Judges of the High Court, who took the view that since a Notary Public has to perform important functions in relation to commercial and business transactions, it was in the public interest necessary that a person with adequate experience and knowledge in the relevant branch of the law should be appointed to such a post and, therefore, strict application of service rules should not be ins1sted upon where the effect thereof would clearly be deleterious to the public interest. Indeed, in the concluding paragraph of their judgment the learned Judges of the High Court have actually opined that "this was not a fit case in which discretionary relief may be granted to the petitioner (now appel--lant) to hold an appointment for which unfortunately he does not possess the proper qualifications, and which appointment having regard to the public interest cannot be viewed with equanimity, if certain minimum standards are to be maintained in the conduct public affairs."
17. Having taken this view the High Court found no difficulty in also d1stinguishing a series of decisions of this Court starting from the case of Messrs Faridsons Limited (PLD 1961 SC 537) which was reaffirmed in the cases of the University of Dacca and another v. Zakir Ahmad (PLD 1965 SC 90) and Abdus Saboor Khan v. Karachi University and another (PLD 1966 SC 536). In all these cases this Court had, in no uncertain terms, laid down that the principle embodied in the maxim audi alteram partem has been applied by this Court in all cases "where orders passed by admin1strative tribunals or authoritie3, affecting the rights of citizens, in point of property, or other rights, had been passed, without giving an opportunity for defence to the person concerned." Indeed, this Court had gone so far as to point out that "in the absence of any express words in the enactment giving such power, excluding the application of the principles of natural justice, the Courts of law are inclined generally to imply that the power so given is coupled with a duty to act in accordance with such principles of natural justice as may by applicable in the facts and circumstances of a given case".
18. The Courts of law are not, as has repeatedly been said, con--cerned with questions of policy or as to the effects, whether deleterious or beneficial, that will result from the enforcement of judicial principles cons1stently enunciated and recognised by the highest Court of law in the country. The High Court, in it's anxiety to see that, what it conceived to be a public interest. I should not suffer, has, we regret to say, overlooked a far more important principle that the vested right of a citizen to earn a livelihood by legitimate means should not be taken away without giving him, at least, an opportunity of showing cause. If the public interest demanded that a person of proper qualification should have been appointed, then we fail to appreciate why the High Court could not presume that when the original appointment of the appellant was made as a Notary Public it was also made with due regard to that very public interest which was now sought to be invoked. It is a well- established principle that the law presumes that all official acts are regularly and properly per-- formed until the contrary is proved. There is no suggestion here that the appellant was not capable of performing the functions of a notary public.
19. In view of the clear and categorical provisions of section 16 of the Ordinance of 1961 saving the appointments made under section 138 of the Negotiable Instruments Act, we find it difficult also to accept the contention of the respondent Government that notwithstanding the saving clause the Government could, at its sweet will, revoke an appointment made under the previous law without any cause. Such an interpretation of the provisions of a saving clause will amount to rendering the saving clause itself nugatory. We, therefore, have no hesitation in saying that the High Court was clearly in error in disregarding the principles laid down by this Court in the decisions above- mentioned. We see no reason at all to depart from those salutary principles.
20. The only question that remains now to consider is as to whether those principles were attracted in the case of the appellant, even apart from the provisions of the saving clause contained in section 16 of the Ordinance of 1961 ?
21. That the office of a Public Notary is a public office of profit there can be no manner of doubt. In Black's Law Dictionary, (3rd Edition) a Notary Public is defined as "a public officer whose function is to admin1ster oaths; to attest and certify, by hi` hand and official seal, certain kinds of documents."
22. Similarly in the Oxford English Dictionary a notary public is described as "a person publicly authorized to draw up or attest contracts or similar documents, to protest bills of exchange, etc. And discharge other duties of a formal character." In Halsbury's Laws of England (3rd Edition), Volume 28, page 113, a notary public is defined as a person holding a "Public Office" of great antiquity which is recognized "in all civilised countries, and by the law 011 nations his acts have credit everywhere."
23. Indeed this was not even disputed in the High Court that this was a public office, for, it was said, that a Notary Public "per--formed important public functions in relation to commercial and business transaction."
24. That the office is also an office of profit is clear from the rules framed under section 139 of the Negotiable Instruments Acc and the Ordinance of 1961 themselves which prescribe scales of fee leviable by Notaries Public for the functions to be performed by them. The removal of a Notary Public amounts, therefore to the removal of a person holding a public office and to depriving him of valuable rights which accrue to him as an incumbent of that office. The general rule in such cases is that a person should not be deprived of his vested rights except for sufficient cause.
25. In Halsbury's Laws of England, 3rd Edition, Volume 28, page 120, it has been stated that in England a Notary Public once lawfully appointed can only be removed "for misconduct as a notary or for other good cause." This clearly contemplates that removal can only be as a result of a finding after an enquiry that the Public Notary has been guilty of some misconduct. The same principle, it appears, has been incorporated in section 10 of the Ordinance of 1961. We have, therefore, no hesitation in holding that in spite of the general words used in section 138 of the Act of 1881 the intention of the Legislature was no different. The power of removal given by section 138 of the Negotiable Instruments Act was exercisable only in accordance with law. The law not having excluded either expressly or by necessary implica--tion the principles of natural justice they were to be deemed to be implied in the statute. It would necessarily follow from this that removal would be proper only when made after adopting the correct procedure and not that removal could take place at the whim or caprice of the Provincial Government.
26. Indeed, if ever there was a case in which a show-cause notice was necessary, it was the present case, for, the only ground alleged in the counter-affidavit for the removal was a factual ground, namely, as to whether the appellant was or was not performing his duties as a Notary Public at Nawabshah itself. The materials that he has produced would seem to indicate that he had abundant material in his possession to disprove the allegation, if the Deputy Commissioner had been conscious of the requirements of law and natural justice and had taken the trouble to follow the proper procedure by calling upon the appellant to show cause as to why he should not be removed. The High Court should not, in our opinion, have allowed the respondent in this appeal to raise a new ground which was not raised in the counter-affidavit, particularly, when the same had no bearing on the question before it.
27. For the reasons given above, we have no hesitation in coming to the conclusion that the High Court was clearly in error in taking the view that the removal of the appellant from the office of a Public Notary was proper or justified. His order of removal cannot, therefore, be sustained.
28. This does not, however, render the appointment of respondent No. 3 bad, for, as already pointed out, there is nothing either in the Ordinance of 1961 or in the Negotiable Instruments Act of 1881, which prohibits the Government from appointing more than one person in the same area as a Public Notary. If the Government was so minded and the volume of work in the District of Nawabshah so justified, the Government could well have appoint--ed the respondent No. 3 as a Public Notary in addition to the appellant.
29. The initial appointment of the respondent No. 3, which was for a period of three years, it appears, has now expired but the said respondent, we are told, has applied under subsection (2) of section 5 of the Ordinance of 1961, to be permitted to continue to practice as such Public Notary. This application is still pending with the Government. It has the power to renew it for three years at a time, unless it decides to remove the applicant under the provisions of section 10 of the Ordinance.
30. We have no doubt that this application for renewal will be dealt with in accordance with law. In this view of the matter, we would allow, this appeal in part and set aside that portion of the impugned notification which purports to remove the appellant from the office of a Public Notary. If it is still considered necessary to remove the appellant from that office, a show-cause notice should first be issued to him, he should be given an opportunity to defend himself and his case should be dealt with in accordance with the principles of natural justice.
31. There will, however, be no order as to costs in this appeal in view of the fact that the success is divided.