' The brief facts out of which the present writ petition arises are that respondent No,1 sent a letter to respondent No,2 under section 5(a) of Unani, Ayurvedic and Homoeopathic Practitioners Act, 1965 for nomination of members of National Council for Homoeopathy.
Respondent No,2 forwarded and recommended following Doctors to be nominated Members of National Council for Homoeopathy vide letter dated 2-6-2001:--
(1) H/Dr. Aman Ullah Khan Bismal Principal candidate
(2) H/Dr. Shazia Riaz alternative candidate
(3) H/Dr. Ijaz Ahmad alternative candidate ' Subsequently, respondent No,2 in continuation of letter dated 2-6-2001 forwarded following additional names regarding the nomination as Members on provincial seat under section 5(a) of Unani, Ayurvedic and Homoeopathic Practitioners Act, 1965 vide letter dated 11-7-2001:--
(1) H/Dr. Liaqat Ali Rajput
(2) H/Dr. Aleem-ul-Haq
(3) H/Dr. Khalid Mahmood Chaudhry ' Respondent No,1 appointed respondent No,3 as Member of the Council on the basis of recommendations dated 11-7-2001 by respondent No,2. The petitioner being aggrieved filed this writ petition.
2. Learned counsel of the petitioner submits that respondent No,2 had only recommended the persons mentioned in letter, dated 2-6-2001 and did not recommend the names of the persons mentioned in letter dated 11-7-2001. The names of the persons mentioned in letter dated 11-7-2001 were only forwarded by respondent No,2. He further submits that respondent No,1 has to appoint the Members in consultation with respondent No,2. Since name of respondent No,3 was not recommended by respondent No,2, therefore, his appointment is not valid. He further submits that the word "consultation" must have a specific meaning i,e, the consultation must be meaningful. In support of his contention he relied upon the following judgments:-- ' Burewala Textile Ltd. v. Punjab Government NLR 1979 Labour (Lah.) 297.
' Al-Jehad Trust v. Federation of Pakistan PLD 1996 SC 324. ' Abrar Hassan v. Pakistan PLD 1979 Karachi 653.
' He further urges that respondents filed report and parawise comments a copy of which had been supplied by the learned Deputy Attorney General to him which contained Annexure A/1 i,e, letter dated 25-4-2001. The case was fixed on 17-2-2003. The report and parawise comments filed by respondent No,1 did not contain the said annexure. Learned counsel of the petitioner was directed to hand over copy of Annexure All to Mr. Muhammad Nawaz Bhatti, Deputy Attorney General who was directed to verify from the relevant quarters qua the said document. According to the aforesaid Annexure All letter dated 25-4-2001 respondent No,1 sent letter to respondent No,2 to send names, addresses, qualifications of nominees to respondent No,1 in order of preference at the earliest possible but not later than one month from the receipt of this letter. Respondent No,2 sent the names of persons mentioned in letter dated 2-6-2001 in which the name of respondent No,3 was not mentioned. The name of respondent No,3 was sent by respondent No,2 to respondent No,1 vide letter dated 11-7-2001 much after the'target date.
3. Learned Deputy Attorney General submits that it is the prerogative of respondent No,1 to appoint any person out of the recommendees of respondent No,2 in view of rule 32 of U.A.H. System of medicine Rules, 1980 read with section 5(a) of U.A.H. Act, 1965. In support of his contention he relied upon unreported judgment of the Division Bench of Quetta High Court in C.P. No,8 of 2002. He further submits that respondent No,2 had recommended six persons vide letters dated 2-6-2001 and 11-7-2001. Respondent No,2 keeping in view the qualification, experience and necessity appointed respondent No,3 out of the second recommendation letter of respondent No,2 dated 11- 7-2001. He further submits that respondent No,1 had categorically mentioned in letter dated 11-7- 2001 in continuation of earlier letter dated 2-6-2001'. Learned Additional Attorney-General also adopted the arguments of learned Deputy Attorney-General. He further urges that writ petition is not maintainable.
4. Learned counsel of respondent No,3 also adopted the arguments of learned law officers. In addition to that he submits that section 5(a) and rule 32 reveal that recommendations be sent by respondent No,2 to respondent No,1 within the stipulated period but the penal consequences are not prescribed in the said provisions of law. Therefore, said provisions are directory in nature and are not mandatory. In support of his contention he relied upon the following judgments;-- ' Atta Muhammad Qureshi v. The Settlement Commissioner PLD 1971 SC 61.
' Niaz Muhammad Khan v. Mian Fazal Raqib PLD 1974 SC 134. ' Muhammad Rafiq v. Mahmud Khalid 1993 CLC 921.
' Muhammad Matin v. Mrs. Dino Manekji Chinoy PLD 1983 Karachi 387.
5. I have given my anxious consideration to the contentions of the learned counsel of the parties and perused the record myself.
6. It is better and appropriate to reproduce section 5(a), rule 32 and letters dated 25-4-2001, 2-6- 2001, 11-7-2001 and operative part of judgment of the Division Bench of Quetta High Court:-- Section 5(a) of Unani, Ayurvedic and Homoeopathic Practitioners Act, 1965.--- Four members, being registered Homoeopathies, to be nominated by the Federal Government after consulting the Provincial Government concerned, of whom one shall be from each Province."
Rule 32 of U.A.H. Rules 1980.--- Manner of consultation with Provincial Government on nomination to the Council/Board. The Federal Government may for the purpose of nomination of members under clause (a) of section 4 or clause (a) of section 5, request the Provincial Government to recommend the names of suitable persons for nomination under either of the said clauses within a specified period and the Provincial Governments shall, within the said period send their recommendations together with full particulars of the persons recommended to the Federal Government which may nominate one member from each Province from amongst the persons recommended."
Letter dated 25-4-2001:--- 1.
2. It is requested that names, addresses, qualifications etc. (supported by complete/detailed bio- data) of three suitable registered practitioners of Homoeopathic System of Medicine, belonging to your Province preferably serving persons, may kindly be furnished to this Division in order of preference at the earliest possible but not later than one month from the receipt of this letter.
Letter dated 2-6-2001:--- In supersession of this Department's letter of even number dated 25-5- 2001, on the subject noted above, I am directed to forward a following panel of three registered practitioner of Homoeopathic System of Medicines in order of preference:
(1) H/Dr. Aman Ullah Khan Bismal Principal candidate
(2) H/Dr. Shazia Riaz alternative candidate
(3) H/Dr. Ijaz Ahmad alternative candidate The department recommends the name of Homoeo Dr, Aman Ullah Bismal for the position of Member National Council for Homoeopathy on Provincial seat under section 5(a) of U.A.H. Act, 1965."
LetteI dated 11-7-2001:---" In continuation of this Department's letter of even number dated 2-6- 2001 on the subject noted above.
' Enclosed please find herewith applications of the following Homoeo doctors for additional names regarding the nomination as member National for Homoeopathy on Provincial seat under section 5(a), of U.A.H. Act, 1965.
' H/Dr. Liaqat Ali Rajput ' H/Dr. Dr. Aleem-ul-Haq ' H/Dr. Khalid Mahmood Chaudhry."
"Operative part of judgment of Quetta High Court.--- Nowhere in the above said rule it has been provided that the nomination shall be made in the order of Preference/Merit by the Provincial Government, rather it has been' made clear in section 5 of the Act, 1965, the Provincial Government to recommend the names of suitable persons for nomination within a specified period. Admittedly the name of petitioner along with other nominees were sent to the Federal Government wherein the name of petitioner was at S.No,1 and; out of the recommended' one , Member for the constitution of Board/Council was selected ice, respondent No,4 was selected by the Federal Government. The petitioner cannot stress or thrust upon the Federal Government to select from the recommended on the basis of seriatim as given in such neither list nor order of preference was given by the Provincial Government for being not provided by the rule. The petitioner has no valid claim to compel the Federal Government, Ministry of Health for his nomination to be made as member of the Board/Council. We are satisfied that there are no such rule by which the Provincial Government to recommend the names of candidates by preparing the list in seriatim preference and thus the Federal Government to be bound to make nomination accordingly. Also no violation of any fundamental right of petitioner could be shown in nominating the respondent No,4 as a member of the Council/Board. Consequently this Constitutional petition being without any substance is dismissed in limine."
7. In case the aforesaid letters are put in junta position then it brings the case of the parties in the area that respondent No,2 did not recommend the names of six persons vide letters dated 2-6- 2001 and 11-7-2001 within the specified period. Coupled with the fact that in letter dated 2-6-2001 respondent No,2 recommended the names mentioned in para-2 of that letter whereas letter dated 11-7-2001 reveals that he forwarded additional names and did not recommend' the persons mentioned in the second letter. This fact brings the case in the area that respondent No,2 did not recommend the persons within the stipulated period .As prescribed in the aforesaid provisions of law. It is settled principle of law when a thing is to be done in a particular manner it must be done in that way but respondent No,2 had only forwarded the name of respondent No,3 in the second letter dated 11-7-2001. Therefore, same is not in consonance with section 5(a) supra read with rule 32 supra which is mandatory in nature. In arriving to this conclusion I am fortified by the law laid down by the Division Bench of Quetta High Court in Dr. Haq Nawaz v. Balochistan Public Service Commissioner 1996 CLC 58.
8. In view of what has been discussed above, the writ petition is accepted to the extent that appointment of respondent No,3 is not in consonance with the aforesaid provisions of law. The judgment cited by the learned Deputy Attorney General is distinguishable on facts and law as is evident from the operative part reproduced above. In the cited judgment the names were sent by the Provincial Government to Secretary Health in one letter whereas in the present case the name of respondent was not recommended in the letter dated 2-6-2001 and in fact it was forwarded by respondent No,2 as is evident from letter dated 11-7-2001. Respondent No,1 is directed to request respondent No,2 to send fresh names for the post in question within 15 days from today.
Respondent No,2 shall send the recommendations under rule 32 read with section 5(a) within one month to respondent No,l. This process shall be completed within two months from today positively.
' With these observations the writ petition is disposed of.