Judgment Sheet
IN THE HIGH COURT OF SINDH KARACHI
Constitutional Petition No. D – 1684 of 2013
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Date Order with signature of Judge .
Present
1. Chief Justice
2. Mr. Justice Nadeem Akhtar
1. For Katcha Peshi :
2. For hearing of Misc. No.8499/2013 :
Petitioner : Dr. Nasir Ali Khan along with
Mr. Rab Nawaz Qureshi, Advocate.
Respondents No.1 to 4 : Professor Manzoor Hussain, Dr. Raja Amjad Mahmood, the President PMDC, and the Executive Council Committee, PMDC, through Afaq Saeed Advocate.
Respondent No.5 : Ministry of National Regulations and
Services, Government of Pakistan,
Date of hearing : 26.04.2013.
J U D G M E N T
Nadeem Akhtar, J. – Through this Constitutional Petition, the petitioner has impugned the action of the respondents, whereby the nomination paper filed by him to contest the Election 2013 of the Pakistan Medical and Dental Council (PMDC) as a Member thereof from Sindh, was rejected without notice to him, without assigning any reason and without affording him any opportunity of hearing.
2. The relevant facts of this case are that PMDC published a public notice in newspapers on 22.03.2013, announcing the schedule of the Election of its Members for the year 2013. According to the public notice, every registered medical / dental practitioner from each Province having valid registration, was qualified to be nominated as a candidate, provided he / she had at least ten years good standing in the profession according to the record of PMDC and was a resident of the respective Province as per the PMDC’s record. Every nomination form was required to dispatched so as to reach the PMDC’s Islamabad Office on or before 03.04.2013, or was to be delivered at the said office on or before the said date. The nomination form was to be accompanied inter alia by a bank draft of Rs.50,000.00, original statement by the candidate on a non-judicial stamp paper accepting the terms and conditions of the Election, and, in case the candidate was employed, a certificate of good behavior and good character from the employer and an NOC for the Election. The scrutiny of the nomination papers was to be held at the PMDC’s Islamabad Office on 05.04.2013 at 10:00 am.
3. The petitioner filed his nomination form with PMDC within time along with all the requisite attachments, for the position of a Member from Sindh. At the time of the scrutiny on 05.04.2013 when the petitioner was present, he was informed that his statement / affidavit on the non-judicial stamp paper was missing from the PMDC’s record. The petitioner insisted that the same had been attached by him along with his nomination form, however, in order to avoid any complication, he filed a fresh affidavit on the same day. It is the case of the petitioner that he was shocked when he came to know about the rejection of his nomination form through the list of the rejected candidates displayed by PMDC on its website on 11.04.2013. The petitioner has alleged that, despite fulfillment of all the requirements by him as per PMDC’s instructions, his nomination form was rejected by the respondents without any notice to him, without assigning any reason to him, and/or without affording him any opportunity of hearing. Against the rejection of his nomination form, the petitioner filed an appeal before respondent No.2 on 12.04.2013, but no action has been taken thereon by respondent No.2 according to the petitioner. Malafides and bias on the part of respondents 1 to 4 have been specifically alleged by the petitioner.
4. The learned counsel for respondents 1 to 4 conceded that the nomination form of the petitioner was rejected. He, however, submitted that it was rightly rejected as the petitioner had not attached with his nomination form his statement / affidavit, the certificate of good behavior and good character from his employer, and the certificate from the employer that the employer had no objection to the petitioner’s contesting the Election. He further submitted that, since the petitioner was not eligible to contest the Election because of the non-fulfillment of the mandatory requirements, he was not entitled to any notice prior to the rejection of his nomination form, or for the reasons thereof, or of being heard. The learned counsel challenged the maintainability of this petition, and prayed for its dismissal.
5. We have observed that there are two affidavits on record ; one showing that the non-judicial stamp paper of Rs.20.00 was purchased at Karachi on 02.04.2013 with an affidavit typed thereon, duly sworn by the petitioner at Karachi on the same day ; and the second showing that the non-judicial stamp paper of Rs.60.00 was purchased at Islamabad on 05.04.2013 with an affidavit typed thereon, duly sworn by the petitioner at Islamabad on the same day. This supports the contention of the petitioner that he attached the affidavit with his nomination form, which was to be filed / delivered latest by 03.04.2013, and that he filed the second affidavit at Islamabad on 05.04.2013, on the date of the scrutiny. When the learned counsel for respondents 1 to 4 was confronted with the record, he changed his stance and submitted that the affidavit ought to have been filed before 03.04.2013, and since it was not filed within time, the nomination form was rejected. We inquired from the learned counsel as to why the second affidavit was accepted in the first instance if the same was filed beyond time, and whether or not any objection to this effect was recorded thereon by respondents 1 to 4. No satisfactory reply to the first query was given by the learned counsel, and regarding the second one, he conceded that the second affidavit was accepted from the petitioner without any objection. In view of the above, the objection regarding the petitioner’s affidavit, is without any force.
6. The second objection raised on behalf of respondents 1 to 4 was that the petitioner did not file the certificate of good behavior and good character and the NOC from his employer. The record shows that the requisite certificates of good behavior, good character and the NOC, were issued by the petitioner’s employer on 30.03.2013, that is, prior to the last date of submission of the nomination form. Respondents 1 to 4 admit that such certificates were issued to the petitioner, and the same were attached by him with his nomination form. Their only objection is that the same were not issued by the petitioner’s employer. We have noticed that the said certificates were issued by the Principal & Chairman Academic Council, Karachi Medical & Dental College, Abbasi Shaheed Hospital, Karachi Metropolitan Corporation. The petitioner has stated in this petition that he is working in the aforementioned College since 1997. Thus, the Karachi Metropolitan Corporation is the employer of the petitioner. It is not the case of respondents 1 to 4 that the petitioner is not working at the said College or is not employed by the Karachi Metropolitan Corporation. This objection, being misconceived and baseless, is therefore overruled.
7. It would not be out of place to mention here that PMDC itself issued a ‘Certificate of Good Standing’ to the petitioner on 01.04.2013, that is, two days prior to the last date of submission of the nomination form. In the said certificate, the registration status of the petitioner was shown as ‘permanent’ ; his date of registration was mentioned as 10.05.1994 ; his qualifications were mentioned ; and, it was certified that no disciplinary proceedings under the Pakistan Medical & Dental Council Ordinance, 1962, and the Code of Ethics of practice for Medical & Dental Practitioners approved by PMDC had been finalized, or were in progress against the petitioner, and he had never been found guilty of any professional negligence or misconduct by the Disciplinary Committee of the Council.
8. The admitted position that has emerged is that the petitioner is a qualified dental practitioner ; he was registered with PMDC on 10.05.1994, with ‘registration status’ as ‘permanent’ ; he has more than ten years good standing in the profession according to the record of PMDC ; he filed his nomination paper for the position of a Member from Sindh ; he is a resident of Sindh as per the PMDC’s record ; the nomination paper filed by him was within time ; along with his nomination paper, he submitted the requite pay order and all the documents ; the petitioner also submitted the certificates of good behavior, good character and the NOC from his employer ; and, the second affidavit filed by him on 05.04.2013 at Islamabad was accepted by respondents 1 to 4 without any objection or protest. Thus, the petitioner was fully eligible to contest the Election, and his nomination form was wrongly rejected. Moreover, the rejection of the petitioner’s nomination form by the respondents without notice to him, without assigning any reason to him, and / or without giving him an opportunity of hearing, was malafide, illegal and against the principles of natural justice. The impugned action / decision of the respondents is, therefore, declared as without lawful authority and of no legal effect.
The above are the reasons for the short order announced by us on 26.04.2013, whereby the petitioner Dr. Nasir Ali Khan was allowed to contest the Election of PMDC for the year 2013.
Chief Justice
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*CPD-1684-2013 Election PMDC.docx/Judgments DB/Court Work/ARK*