This judgment will also dispose of Writ Petition No. 10762 of 1994 as questions of law and facts raised in both of them are common.
2. In this Constitutional petition legality of decision of respondent No. 6 (NCH) for appointment of a Settlement Committee and subsequent order dated 1-12-1994 passed by the said Committee as also the resolution passed by the same on 14-12-1994, have been challenged.
3. In the connected writ petition (Writ Petition No. 10762/94) it has been prayed that respondents Nos. 2 and 4 in the said writ petition may be directed to initiate proceedings under section 37-A of Act II of 1965 and in accordance with law against respondent No. 5 thereof by filing a complaint under section 41 of the said Act and respondents Nos. 1 to 4 be also ordered to ensure that respondent No. 5 should not continue to run fictitious and unrecognized College situated at 477-D, People's Colony, Faisalabad.
4. The case of the petitioner is that Al-Sehat (Pvt.) Ltd.; a Private Limited Company was originally established in the year 1963-64 by Dr. M.U. Khan as charitable institution who applied for its incorporation at the relevant time as Company. After the promulgation of the Companies Ordinance, 1984 all private Companies were designated as Private Limited Companies, therefore, the same was redesignated as Al-Sehat (Pvt.) Ltd. After the death of Dr. M.U. Khan (the father of M.Z.
Sohail Khan) Mr. M.Z. Sohail Khan as the Managing Director of the said Company/charitable institution, applied for recognition of newly set up Al-Sehat Homoeopathic Medical College, 494-D, People's Colony Faisalabad, to the Federal Government under the Unani Ayurvedic and Homoeopathic Practitioners Act of 1965, which was accorded under section 17(4) of the said Act by the Federal Government through letter dated 16-6-1986.
5. Respondent No. 1 Dr. Riaz Muhammad Riaz on 23-8-1979 made an application seeking appointment as Principal of the said Homoeopathic Medical College. He was appointed as Principal of the said College by Dr. M.U. Khan, the then Managing Director on the terms and conditions mentioned in the appointment letter which has been annexed with this petition.
According to the petitioner his services were subsequently terminated through letter dated 26-9- 1989. According to a certificate issued by the Deputy Commissioner, Sakkar Al-Sehat (Pvt.) Ltd. Was being run under the auspices of Al-Sehat (Pvt.) Ltd., Islamic Mission, Shikarpur, since 1965, therefore, learned counsel for petitioner submitted that the words Islamic Mission are being used by the said charitable institution which was accorded recognition by the Federal Government to run the Al- Sehat Homoeopathic Medical College.
6. The said Homoeopathic, College which was originally being run at 494-D People's Colony, has been now shifted to Ghulam Rasool Nagar, Sarfraz Colony, Faisalabad, whereas respondent No. 1 has started running Homoeopathic College as Principal at 477-D People's Colony, Faisalabad, in the name and style of Al-Sehat Homeopathic Medical College representing to the people that it was his said College which was the original College to whom recognition was granted by the Federal Government through letter dated 16-6-1986 as such it was the genuine College which could operate in pursuance of the said recognition.
7. The matter came to the notice of National Council for Homoeopathy established under the said Act which constituted a Committee through the decision of the Council taken in 62nd meeting which consisted of:--
(i) Dr. K.B. Naseem,
(ii) H/Dr. Professor Ahmad Hussain, and
(iii) H/Dr. M.B. Javed Awan, which submitted the report that the College being run by the petitioner was the genuine College being a College which was originally granted recognition and H/Dr. Abdul Shakoor was its Principal.
It was in fact the Al---Sehat Homoeopathic Medical College to which the Federal Government's recognition related and respondent No. 1 (Dr. Riaz Ahmad Riaz) was misusing the office and the name of the College without any lawful authority, therefore, the Council should direct its office to make correspondence or other official business with H/Dr. Abdul Shakoor as Principal, Al-Sehat Homoeopathic Medical College, run by the petitioner. As a consequence of this the N.C.H took a decision which was conveyed through letter dated 21-9-1991 which was to the following effect:-- "It was finally resolved by the House that the College of H/Dr. Riaz be strictly warned not to allow admission of any fresh/new-comer students in the first year class."
Respondent No. I was wanted again on 3-9-1992 by the N.C.H. To restrain from giving admission to the new-comers.
8. In spite of this respondent No. 1 gave advertisement in the Daily Business Report', Faisalabad for inviting applications for admission in the College of which he was the Principal. The Government of Pakistan Ministry of Health (Health Division) through letter dated 18-8-1994 directed the Registrar National Council for Homoeopathy to initiate action under section 37-A against him as his College was not a recognized institution under section 17 of U.A.H. Act as mentioned in the advertisement.
9. Respondent No. 1 as plaintiff No. 3 alongwith others including Chairman, Managing Committee Al-Sehat Islamic Mission Dr. Nazir Ahmad Chaudhry filed a suit against the National Council for Homoeophathy and others including Zaheer-ud-Din Sohail, the Managing Director of Al-Sehat
(Pvt) Ltd. Islamic Mission, Shikarpur, Sindh, and H/Dr. Abdul Shakoor who was the Principal of the College which was being operated by petitioner No. 1 which had already been recognized as the genuine College to which the recognition accorded by the Federal Government related. This suit was dismissed through judgment dated 31-10-1992. Certified copy of the judgment passed in the said suit has been placed on the record. The perusal of the said judgment shows that Assistant Director Homeo, Ministry of Health, appeared as P.W.2 who produced the record of Al-Sehat Homoeopathic Medical College. The Court while discussing the entire evidence and in particular the evidence of P.W.2 recorded a finding that as per admission of this witness in the cross- examination the institution to whom the Colleges were sanctioned had number of incorporation and notification Exh. P1 was issued in favour of the institution which had been mentioned in Exh. D 1 and Exh. D2. According to the finding Exh. D1 and Exh.D2 related to the institution known as Al-Sehat Islamic Mission of which Dr. M.Z. Sohail Khan was the Managing Director, therefore, it was held that the title of respondent No. 1 was defective and when it was so the suit for perpetual injunction could not be instituted and the plaintiffs should have filed suit for declaration in order to get their title and right declared by a competent Court. It may be mentioned here that since the expression Islamic Mission with Al-Sehat (Pvt.) Ltd. Had acquired importance and significance. In the said suit for perpetual injunction Dr. Nazir Ahmad Ch. Was joined as plaintiff No. 1 alleging that he was the Chairman Managing Committee Al---Sehat Islamic Mission in order to establish that the recognition of the Federal Government regarding Homoeopathic College in question related to Islamic Mission the Managing Committee of which was headed by him but according to the findings of Civil Court in the said suit the recognition accorded by the Federal Government to Homoeopathic College related to the College being run by Al.-Sehat (Pvt.) Ltd. Islamic Mission i.e. The petitioner of which the Managing Director was Dr. M.Z Sohail Khan.
10. The plaintiffs in the said suit according to learned counsel for petitioner, which fact was not denied by respondent No. 1, filed appeal before the Appellate Court which was dismissed through judgment dated 5-7-1994 as withdrawn. The respondent No. 1 subsequently alone filed a civil suit on 26-3-1994 in the Court of learned Senior Civil Judge, Faisalabad in which he impleaded the.
Controller of Examinations National Council for Homoeopathy and defendant No. 1, H/Dr. Ahmad Hussain the alleged Chairman, Examination Committee, National Council for Homeotathy, Karachi, as defendant No.2, Superintendent Examination Centre Al-Sehat Homoeopathic Medical College, Ghulam Rasool Nagar Behind Sarfraz Colony as defendant No. 3, Islamic Republic of Pakistan as defendant No. 4 and Ministry of Health Islamabad as defendant No. 5. In this suit a declaration was sought that it was on the application of the said plaintiff/respondent No. 1 that Homoeopathic College Faisalabad under the administration of Al-Sehat Islamic Mission was given recognition and A1.Sehat (Pvt.) Ltd. Did not make any application for the recognition of the same, now the same had been recognized in their favour and that it was his/respondent No. 1's College which had the right under the law to, run the College and a decree for perpetual injunction against the said defendants be passed that they should not take examination regarding Medical College being run by Al-Sehat (Pvt.) Ltd. Ghulam Rasool Nagar. Strangely the petitioner against whom the said reliefs were to operate and was to be the affected person/party was no impleaded as one of the defendants in the said suit. It has been brought to my notice that learned counsel for N.C.H. Was the counsel for respondent No. 1/plaintiff in the said suit which fact was not denied at the bar by the said learned counsel who appeared before me in these cases as counsel for N.C.H. In this suit the petitioner made an application for impleading it as a party but the' same was rejected by the said Court and through judgment dated 30-5-1994 the said suit was decreed. The petitioner has filed appeal against the said judgment and decree which is pending before the lower Appellate Court and a prohibitory order has already been issued according to which the said judgment and decree is legally under suspension. After having succeeded in getting decree in the said subsequent suit National Council for Homoeopathy took up the matter in its 71st meeting. A decision was arrived that a settlement/compromise was required to be made between the parties of the above two Colleges in order to save the prestige of the Council and use the offices of the respected members of the Council to bring about an amicable settlement. In the said meeting Resolution No. 20 was passed calling upon concerned parties of each College to propose two Members of the Committee for representing their cases. The 5th Member was to be appointed by the President/Registrar of the Council. Both the parties were directed to submit their undertaking to withdraw all the Court cases concerning their Colleges. Each party was also called upon to give an affidavit/undertaking that the verdict of the Settlement Committee would be binding and acceptable to them and if any of the parties would not fulfil the abovementioned requirements the Settlement Committee would give an ex parte decision which could be produced in the Court of law.
11. The petitioner did not submit to the authority of the said Committee and the decision made by N.C.H. And refrained from making any appointment of the two members as was required from it as according to learned counsel for petitioner the N.C.H. Had colluded with respondent No. 1 and in spite of a finding previously submitted by a Committee constituted by N.C.H. That it was petitioner's College which was the genuine and respondent No. 1 was warned not to give admission to any student in the College representing his College to be the College to which originally recognition was accorded by the Federal Government. The intimation to that effect was given to the Registrar of N.C.H. On behalf of the petitioner through letter dated 15-10-1994. However, an ex parte decision was made by the said so-called Committee to resolve the dispute on 1-12-1994, according to which respondent No. 1 was held to be running a genuine institution to which the recognition accorded by the Federal Government related and that the petitioner was running a fake and unrecognised institution through Mr. Zaheer-ud-Din Sohail, therefore, examinations and results etc. Of respondent No. 1 College with other facilities as recognized institutions should continue and legal action against the unlawful College of the petitioner should be taken, in pursuance of which the petitioner was informed through letter dated 19-12-1994 to see the President of N.C.H. Within 10 days, which was responded by the petitioner by a letter dated 2-1-1995 that it was not within the scope of powers of N.C.H. To settle the dispute through arbitration and the contents of earlier letter dated 15- 10-1994 were reiterated. All these acts and decisions have been challenged in this writ petition whereas in the other writ petition a direction has been sought against the respondents to act in accordance with the direction of the Federal Government and proceed against respondent No. 1 under section 37-A of Act II of 1965 for running a fake and unrecognized institution. .
12. Since an appeal is pending against judgment and decree passed in the declaratory suit subsequently filed by respondent No. 1 before the lower Appellate Court, therefore, it will not be proper to comment upon the merits of the same but the fact remains that the earlier suit filed by respondent No. 1 along with others including Dr. Nazir Ahmad Ch. Claiming to be the Chairman of Managing Committee Al-Sehat Islamic Mission to which according to respondent No. 1 his College belonged, to which the recognition was granted by the Federal Government, to claim that it was the genuine College under the said recognition failed as it was dismissed with a clear finding that according to the Federal Government it was the petitioner's institution which was accorded recognition as Homoeopathic College and it was his College which was a genuine College to which the said recognition related. In the subsequent suit the present petitioner was not impleaded as party independently, therefore, prima facie the judgment and decree obtained in the said suit according to the established law is not binding (on the petitioner) and it could rely upon the previous judgment and decree passed in the previous suit for perpetual injunction and the finding recorded therein against the respondents.
13. The petitioner could file the appeal against the judgment and decree passed in the subsequent declaratory suit in which it was not impleaded as party independently with the permission of the Appellate Court which the Appellate Court can grant keeping in view that the said judgment and decree was being enforced against its rights. In case the appeal is allowed to be maintained by the appellant by the Appellate Court then the same shall be decided on its own merits. Nevertheless the previous judgment and decree in suit for perpetual injunction and findings recorded therein against respondent No. 1 would be relevant factor for consideration by the lower Appellate Court and the same having not been further challenged it shall be seen as to whether the respondent No. l could maintain the subsequent suit in his personal capacity as Principal of the College to claim any right to run the College, for Dr. Nazir Ahmad Chaudhry through whom he was claiming rights did not agitate the matter any further against judgment and decree passed in the said previous suit for perpetual injunction in which he was one of the plaintiffs which judgment has become final against him. This aspect of the case has gained importance because Dr. Nazir Ahmad Chaudhary appears to be running rival Company in the same name and claimed that the said College belonged to his Company. Respondent No. 1 claimed that he was appointed as Principal by Dr. Nazir Ahmad Chaudhary, therefore, if Dr. Nazir Ahmad Chaudhary did not file any suit for declaration, the respondent No 1 as employee prima facie could not claim independent right to maintain any suit for declaration that he could in his own right run any College as his capacity remains as of employee whether under the petitioner or the rival Company being run by Dr. Nazir Ahmad Chaudhary. On the other hand according to the petitioner the services of the respondent No. 1 were terminated.
14. In my view the acts and the orders passed by the N.C.H in this case against the petitioner and of recognizing the College of the respondent as l genuine College as a College to which the recognition accorded by the Federal Government related are not sustainable. The writ petition is accepted. All the acts and proceedings done and taken by respondent No. 6 in respect of settlement of dispute between the petitioner's institution and respondent No. 1 College and the decision dated 1-12-1994 taken by it to the effect that respondent No. 1's College was a recognized institution/College to whom all facilities of examinations etc. Should be provided and subsequent letter calling upon the petitioner to abide by the said decision are all declared to be without lawful authority and of no legal effect and quashed. Till a contrary decision is taken by a competent Court the petitioner's institution/College shall continue to be deemed to be the genuine and recognized college to which recognition dated 16-6-1986 relates. Respondent No. 6 is hereby directed to accept the petitioner's Homoeopathic College to be the genuine College and allow it all the facilities of examinations etc. Which under the law a recognized institution is entitled to.
15. As regards connected writ petition respondent No. 6 in the said writ petition shall proceed against that institution which may ultimately be found to be fake in the said civil litigation i.e. The aforementioned appeal filed by the petitioner. This writ petition, therefore, is disposed of in these terms.