' The petitioner has filed the writ petition seeking a declaration that action of respondents in keeping the application filed for recognition by the petitioner pending since 1994 was an act of mala fide, without jurisdiction and without lawful authority and has prayed for issuance of direction to the respondents to decide the application of the petitioner without any loss of further time. The comments were called from the respondents and the writ petition was admitted to regular hearing to examine whether respondent No,1 was under a legal obligation to, forward every application for recognition of the college to Ministry of Health.
2. I have heard the learned counsel for the parties and have given my anxious consideration to the point of law involved.
3. Respondent No,1 has not denied the fact that an application for recognition of the college was made by the petitioner but it was contended on his behalf that the procedure for recognition of a Homeopathic College was laid down under section 17(4) of Act II of 1965 and the petitioner had not fulfilled the requirements for the recognition as required by regulations framed by respondent No,1.
It was also contended that the regulations framed by respondent No,1 had been notified after obtaining prior approval in writing of the Federal Government which was accorded in exercise of power conferred under clause (G) of section 47 of Act II of 1965. Regarding facts mentioned in the petition it was also submitted that the petitioner's application was considered in view of the inspection ,report in the 73rd meeting of the council held at Rawalpindi from 18th to 20th April, 1995 and after consideration and deliberation it was decided that the case was rejected. The information was accordingly transmitted to the petitioner and the petitioner thus had no right to recognition. Respondent No,2 in reply had not commented on the factual position except that the petitioner had made a complaint to the Ministry of Health and had requested that the inspection of the college may be got conducted by some officer of the Ministry. It was also admitted that the Board was constituted by respondent No,1 consisting of Deputy Secretary (Admn ) and Assistant Director (Homeo), Ministry of Health who had made a detailed report of inspection and had reported that the petitioner's college almost fulfilled the requirements for recognition of '
Homeopathic Medical College, however, submitted that certain deficiencies were also pointed out by the said board.
4. To determine the question on which the matter was admitted I shall have to refer to section 17(4), Act II of 1965 which reads as under:-- "S.17(4)--After considering the report of such local inquiry, if any, and making such further inquiry as may appear to it to be necessary the Council shall forward the application together with its recommendation whether the recognition asked for should or should not be granted to the Federal Government which may, by order grant or refuse to grant recognition and the grant or recognition may be subject to such terms and conditions, if any as may be specified in the order."
5. Respondent No,1 had referred to the regulations notified by respondent No,1 after obtaining prior approval of the Federal Government which was accorded under section 47(G) of Act II of 1965 and it was the said regulations that respondent No,1 was insisting while reserving to itself the prerogative of according recognition.
6. The regulations framed under the law and notified after prior approval of the Federal Government in the year 1988 could not override the law under which the said regulations were framed. The parent statute was to override the regulations wherever they were to come in conflict with the provisions of the Act as regulations were subordinate legislations.
7. Notwithstanding the decision of the Council of respondent No,1, taken in its 73rd meeting which may be in accordance with the regulations though, the Court still have to seek guidance from the parent statute itself to interpret the intention of the Legislature, the wisdom of which cannot be questioned.
8. Section 17(4) of Act supra has been reproduced above. The following words occurring in the said sub-para. Are to be appreciated, "... The council shall forward the application together with its recommendation whether the recognition asked for should or should not be granted to the Federal Government which may, by order grant or refuse to grant recognition...".
' The word ' shall' used in the sub-para. (4) leaves no discretion with respondent No,1 to withhold the application or to kill the same at ambriyo stage. It is mandatory to froward the application notwithstanding the nature of its recommendation and in view of the above the decision of respondent No,1 taken in its 73rd meeting of the Council in rejecting the application is declared to be without lawful authority and without jurisdiction.
9. Resultantly the writ petition is accepted. Respondent No,1 is directed to forward the application to the Federal Government in compliance of the provisions of subsection (4) of section 17 of Act II with its recommendation within one month. Respondent No,2 is also directed to pass an order in accordance with law.
10. There shall be no order as to costs.