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Petition No. 38 of 1967, decided on 3rd November 1967.

Ss. 3,10& 16 read with (Vest Pakistan Notaries Rules, 1965, rr. 3 and 8(3), General Clauses Act (X of 1897), S. 16, and Constitution of Pakistan (1962), Art. 177 Notary Public‑Not a civil servant‑Cannot avail of guarantee available to civil ‑servants under Art. 177 of Constitution (1962)‑. Notary Public's appointment not terminated for misconduct but because he did not satisfy conditions prescribed in new Rules‑No investigation into facts being necessitated, principle of natural justice "No one shall be condemned unheard", held, not applicable‑Fact that such Notary's appointment had been made for indefinite period and before coming into force of 1965 Rules‑Provincial Government could still remove him under section 16. General Clauses Act, 1897 Constitution of Pakistan (1962), Art. 98.

Abdus Saboor Khan v. Karachi University and another P L D 1966 S C 536; The University of Dacca and another v. Zakir Ahmad P L D 1965 S C 90; Faridsons Ltd. v. Government of Pakistan P L D 1961 S C 537 and Kh. Ghulam Sarwar v. Pakistan P L D 1962 S C 142 distinguished.

The Province of East Pakistan and others v. Muhammad Abdu Miah P L D 1959 S C (Pak.) 276 ref.

S. Nasir‑ud‑Din for Petitioner.

Muhammad 1laleem, Asstt. A.‑G. for Respondents Nos. 1. and 2.

Fakhruddin G. Ibrahim for Respondent No. 3.

.‑The Petitioner, who describes himself as "a social and political worker at Nawabshah" was appointed Notary Public by the Provincial Government under section 138 of the Negotiable Instruments Act, 1881, with effect from 27th June 1963. The appointment was for an indefinite period and the Notification (a copy of which is Annex. 'A/1') was published in the Official Gazette on the 12th of July 1963.

2. In the meantime the Notaries Ordinance, 1961 (Ordinance XIX of 1961) came into force on the 5th of January 1966. However, section 16 of the Ordinance preserved all appointments made under section 138 of the. 1881 Act and therefore the Petitioner continued, to perform the functions of Notary Public in Nawabahah uninterrupted. It appears, however, that Respon dent No. 3' who is a legal practitioner at Nawabshah, applied for the appointment as Notary Public under the West Pakistan Notaries Rules, 1966, framed under section 15 of the Ordinance and which came into force on the same date as the Ordinance, namely, 5th January 1965. The application was refused apparently on the ground that the petitioner was already appointed Notary Public for the district and there was no need for the appointment of another Notary Public in the same district. It seems that sometimes after tire rejection of his first application, respondent No. 3 applied afresh for appointment as Notary Public and on the recommendation of the District Authorities; he was appointed Notary Public for Nawabshah district by the Provincial Government vide Gazette Notification dated 23rd January 1966 (hereinafter called the impugned Notification), (copy Annex. 'A/4') which reads as follows:---

"No. 5/8‑H. Judl. (11)/65.‑Under the provisions of Rule 8(3) of the West Pakistan Notaries Rules, 1955, 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 Sarfaraz Ahmad who ceases to function as Notary Public, from the date of the issue of this notification."

The effect of the underlined" words plainly is to terminate the appointment of the Petitioner. It appears, as is stated in paragraph 8 of the Petition, that Respondent No. 3 was appointed Notary Public in place of .the Petitioner because the latter did not possess legal qualifications prescribed under rule 3 of the Notaries Rules, which reads‑---

"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."

3. Aggrieved by the impugned notification appointing respondent No. 2 as the Notary Public for the district of Nawabshah in his place, the Petitioner has moved this writ petition under Article 98 of the Constitution for a. declaration that the impugned notification is without lawful authority and of no legal effect, and the Petitioner be treated to continue as the Notary Public within the local limits of Nawabshah district.

4. Learned counsel for the Petitioner made the following submissions in support of the writ petition, 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 the Notary Public.

5. The respondent did not question the correctness of the first and the second propositions. The impugned notification was, however, sought to be justified on the ground that the petitioner did not possess legal qualifications necessary for the proper performance of the functions of a Notary Public, therefore, the Provincial Government appointed respondent No. 3 who possessed the legal qualification and therefore, was better fitted to perform the functions of a Notary Public. It was further argued that in the circumstances of the present case the principle of 'audi alteram partem' would not be attracted because the petitioner's appointment was not terminated for reasons of any misconduct on his part and the Authorities con cerned were, therefore, not obliged to hold any enquiry or to afford an opportunity to the Petitioner to show cause against the termination of his appointment. Thus the argument in the case was confined only to the third proposition set out above.

6. In support of the third proposition learned counsel for the Petitioner relied upon a recent judgment of the Supreme Court in Abdirs Saboor Khan v. Karachi University and another (P L D 1966 S C 536). That was the case of a student of an Engineering College at Karachi whose result was withheld by University on the com plaint of the Examiner, that the former had used unfair means in the examination. In the course of enquiry by the University Authorities he sent a representative to the University Authorities that be should be allowed an opportunity to answer the accusations against him so that "he may not be deprived of the right of explaining the true facts of the matter." The University Authorities did not accede to his request and on the basis of an ex parte enquiry issued Disqualification Circular debarring him from appearing in any examination of the University and from admission to any class in the University or affiliated colleges for a period of two years. The main argument urged in the Supreme Court in defence of the impugned order against the appellant in that case and which incidentally prevailed in the High Court was, that the rules bearing on the subject did not provide for a notice to the delinquent and therefore the University Authorities were not under any obligation to issue notice to the Appellant, before penalizing him for his misconduct. The argument was repelled and their Lordships held‑----

" Whenever any person, or body of persons, is empowered to take decisions, after ex post facto investigation into facts which will result in consequences affecting the person, property or other right of another person, then, 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 be applicable in the facts and circumstances of a given case."

7. In support of this view their Lordships of the Supreme Court relied upon their earlier judgment in The University of Dacca and another v. Zakir Ahmad (PLD1965SC90). That was also a case of a University student who on the report of a University teacher was accused of disorderly behaviour on the occasion of Annual Convocation of the University. Upon the consideration of the report of the teacher, the Residents, Health Disciplinary Board of the University pre sided over by the Vice‑Chancellor unanimously recommended his expulsion from the University for a period of two years. This recommendation was accepted by the Syndicate and the delinquent student was rusticated. In this case, too, no opportunity, whatever, was afforded .to Zakir Ahmad to answer the charge of disorderly behaviour and the disciplinary proceedings were entirely ex parte against him. It was in these circumstances that it was held that in all proceedings whether judicial or administrative, the principles of natural justice embodied in the maxim 'audi alteram partem' shall be observed. But their Lordships again qualified the above declaration, by the following observation 3t page 103 of the report:

"From a careful review of the decisions cited before us it appears that wherever any person or body of persons is empowered to take decisions after ex post facto investigation into facts which would result in consequences affecting the person, property or other right of another person, then 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 the duty to act in accordance with such principles of natural justice as may be applicable in the facts and circumstances of a given case."

8. Messrs Faridsons's case (PLD1961SC537) to which reference was also trade in the above two cases arose out of the suspension of the registration of the appellant firm by the C. C. I. & E. under clauses (iv), (i) and (ii) of the Registration. of Imports and Exports Order, 1952 owing to some secret complaint alleging malpractices by the appellant firm. As a result or an ex parte enquiry, the allegations were treated as proved against the firm without any notice being given to it. Therefore, in this case in the very nature of things the allegations against the firm entailed ex post facto investigation into facts which on the basis of an ex pane enquiry were found to exist. As a result, an order suspending the registration of the appellant firm was passed which virtually threw the firm out of business.

9. Thus it will be seen that the principle of natural justice "no one will be condemned unheard" was applied to cases in which there were allegations of misconduct or misbehaviour, and the person against whom such allegations were made, was penalized without being afforded any opportunity of answering to those allegation or defending himself, but nevertheless on the premises that the allegations were correct. In all these cases, either the rules required some enquiry to be made or in the very nature of things, ex post facto investigation had to be made of facts, on the proof of which penal action could be taken. The question therefore is whether this principle is attracted to the instant case For a proper answer to this question regard must be had to the nature of the appointment held by the Petitioner and the circumstances in which it was terminated. It is no body's case that the Petitioner's appointment was terminated by reasons of any misconduct on his part. That being the case, there was hardly any occasion for any investigation or enquiry into facts before his appointment could be terminated. As admitted in paragraph 8 of the writ petition the Petitioner's appointment was terminated 'because he did not satisfy the conditions prescribed in rule 3 of the 1966 Rules. It is true that the Rules in terms do not apply to the Petitioner's case because his appointment was made long before the Rules came into force. But the fact remains that the Petitioner did not possess the legal qualifications which are considered necessary for the proper performance of duties of Notary Public. Therefore, Authorities concerned terminated hi, appointment and appointed in his stead a person possessing such qualification. This the Provincial Government had full power to do vide section 16 of the General Clauses Act, 1897, notwithstand ing the fact that the Petitioner was appointed for an indefinite period. It is true that the Petitioner held a statutory appointment but his appointment was not assimilable to that of a civil servant, who is appointed to a post, and who, except when his appointment is temporary, cannot be removed from service, except as a result of disciplinary proceedings against him. This is because of the guarantee available to a Civil Servant under Article 177 of the Constitution, to which the Petitioner cannot possibly lay any claim. His appointment as Notary Public did not invest him with the status of a civil servant, and therefore the principle enunciated in Khawaja Ghulam Sarwar's case (P L D 1962 S C 142) would not be applicable to the instant case.

10. There is yet another aspect of the case which cannot possibly be overlooked. It is not disputed that a Notary Public performs certain important functions in relation to commercial and business transactions. Therefore, it will conduce to public interest that a person with adequate experience or knowledge in the relevant branch of law is appointed. As observed by their Lordships of the Supreme Court in The Province of Last Pakistan and others v. Muhammad Abdu Miah (P L D 1959 S C‑(Pak.) 276) that‑---

" . in matters affecting the public service results, deleterious to the public interest can readily follow if questions of application of service rules are approached as if the duty is merely to assert rights vested in: the public servant who is the complainant . . . ".

These observations were made in a different context but, in my opinion, would be apt in the instant case if we also were to keep in view the public interest which the appointment in question is to sub-serve. It is not denied that the petitioner seeks, what after all, is discretionary relief. Having given my anxious considera tion to the circumstances of the case, in my opinion, it is not a fit case in which discretionary relief may be granted to the Petitioner to hold an appointment for which unfortunately he does not possess the proper qualifications, arid which appointment having regard to the public interest cannot be viewed with equanimity, if certain minimum standards are to be maintained in the conduct of public affairs.

11. For the foregoing reasons, I would dismiss the writ petition, leaving the parties to bear their own costs.

‑I agree.

S. A. H. Petition dismissed.

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