dr.iftikhar and others ok - peshawarhighcourt.gov.pk · m/s syed arshad ali & shakeel ahmad,...
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JUDGMENT SHEET
IN THE PESHAWAR HIGH COURT, PESHAWAR
JUDICIAL DEPARTMENT
Writ Petition No. 420/2015
JUDGMENT
Date of hearing : 7th December,2015
Petitioner(Dr.Iftikhar Ahmad): Mr. Mushtaq Ali Tahirkhaili, Advocate. Respondents(Govt of KPK : Mr. Abdul Latif Yousafzai, A.G. for and others) official respondents.
M/S Syed Arshad Ali & Shakeel Ahmad, Advocates for MTIs..
__________________
NISAR HUSSAIN KHAN. J.- Through this single judgment, we
are going to decide as many as 7 writ petitions bearing
No.420/2015, 526/2015, 2024/2015, 3188/2015, 3189/2015,
3395/2015 and 2643/2015 as, by and large, in all these petitions,
vires of Khyber Pakhtunkhwa Medical Teaching Institutions
Reforms Act, 2015, have been challenged.
2. Petitioner in W.P.420/2015, challenging the vires
of the Khyber Pakhtunkhwa Medical Teaching Institutions
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Reforms Act, 2015, seeks issuance of an appropriate writ with the
following prayer :-
“Under the circumstances, it is respectfully prayed
that the Khyber Pakhtunkhwa Medical Teaching
Institutions Reforms Act, 2015 be declared
unconstitutional, unreasonable, impracticable,
malafide, perverse and be struck off from the book of
statutes and the Khyber Pakhtunkhwa Medical
Teaching Institutions and Regulation of Health Care
Services Ordinance, 2002, be graciously restored
with its full effect by setting aside all the orders
which might have been issued by any authority by
virtue of the Act of 2015.”
3. Brief facts as averred in W.P.No.420/2015 are that
petitioner was serving in the Ayub Teaching Hospital as Medical
Superintendent whose services were regulated through Khyber
Pakhtunkhwa Medical Teaching Institutions and Regulations of
Health Care Services Ordinance, 2002 (hereinafter referred to as
Ordinance of 2002); that as per Ordinance of 2002, the Institution
was autonomous in its governance and functions; that the
institution was functioning efficiently sans any problem or
interference by the government functionaries when all of a
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sudden, in the year 2007, petitioner was transferred, which act of
the respondents was challenged in W.P.No.326/2007. The writ
petition was allowed on 25.10.2007 whereby interference of the
government into health institutions was deprecated. The
judgment was maintained by the apex court on 18.10.2012; that in
2014, petitioner was transferred yet again from the post of
Medical Superintendent which was challenged in W.P.No.232-
A/2014 and the petition was allowed on 30.4.2014; that this
situation could not be digested by the respondents who out of
anxiety and frustration, promulgated Khyber Pakhtunkhwa
Medical Teaching Institutions Reforms Act, 2015, whereby posts
of Medical Superintendent and Chief Executive have been
abolished. It is further averred that the respondents/authorities at
the helm of affairs, being debarred from interfering in affairs of
health institutions through judicial pronouncements, referred to
above, were under extreme stress, and impugned enactment is
the culmination of the same; that through impugned Act,
respondents have snatched the autonomy of the Institutions as
now they have succeeded in acquiring administrative control over
the affected Medical Institutions which act cannot be called a
bonafide one being against the interest of general public. As
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such, the petitioner pleads for declaring the impugned enactment
as ultra vires constitution and restorations of Ordinance of 2002.
4. W.P.No.526-P/2015 has been moved by
Association of Professors, Associate Professors and Assistant
Professors etc of Health institutions. It is averred in the petition
that Government has been striving in the past to bring
bureaucrats and non-technical persons to rule and administer the
medical and teaching institutions but could not accomplish their
designs because of judicial pronouncements of the superior
courts, barring the appointment of non-Doctors to rule the
medical/health institutions. It is further stated in the petition that
despite existence of Ordinance of 2002, the government has
promulgated yet another Act called as Khyber Pakhtunkhwa
Medical, Teaching Institutions Reforms Act, 2015, in order to
govern the Doctors and Teaching Institutions through non-
doctors and thereby direct interference of Ministers and other
non-doctors has been introduced which will affect their service
structure. Thus, the petitioners seek to declare the impugned Act
of 2015 to be ultra vires Constitution, being beyond the
competence of the provincial legislature.
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5. Petitioner in W.P.No.2024-P/2015 is President of
an Association of Doctors working since decades for the welfare
and interests of the Doctors and patients in KPK and throughout
Pakistan. He is also aggrieved of the impugned Act of 2015 and
alleges that entire administration of the Health Institutions under
the impugned Act of 2015 would be run by non-doctors,
especially the Board of Governors. However, he prayed that the
impugned advertisement dated 29.5.2015 and 1.6.2015 regarding
appointment of Directors and other staff in the health institutions
in the light of Ordinance of 2002 may be declared illegal, without
jurisdiction and without lawful authority and consequently, the
old set up of administration be restored.
6. Petitioners in W.P.No.3188-P/2015 are nursing
staff of Hayatabad Medical Complex, Hayatabad, consisting of
both categories of autonomous body and civil servants, duly
performing their duties under NWFP Medical and Health
Institutions Reforms Act, 1999 and Khyber Pakhtunkhwa Medical
Teaching Institutions and Regulations of Health Care Services
Ordinance, 2002. They are also aggrieved of the impugned Act of
2015 on the apprehension that respondents would ultimately
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privatise the health sector and would consequently jeopardise
their service structure.
7. Similarly, petitioners in W.P.No.3189-P/2015 are
also employees of the Hayatabad Medical Complex Peshawar who
have challenged Sections 5,6,7(1) & (3), 8, 9, 10, 11,, 12 & 16
(1)(2)(3) and (5) of Khyber Pakhtunkhwa Medical Teaching
Institutions Reforms Act, 2015. They are also aggrieved of the
amendment brought in Section 16(3) of the impugned Act of 2015
and pray for issuance of direction to the Provincial Government
to add the provision of Director _Para-Medical at par with the
provisions of Hospital Director, Medical Director, Nursing Director
under Section 10, 12, & 14 of the impugned Act, 2015. They have
also taken exception to the new timing schedule of the hospitals.
8. Petitioner in W.P.3395-P/2015 has already filed
W.P.No.2024-P/2015, discussed above, but in this writ petition he
is aggrieved of appointment of respondent No.4 as Chairman of
Board of Governors of LRH as according to him he left Pakistan
in 1966 and obtained American nationality. Now he would be
ruling and operating the Health institutions from America. The
petitioner prays that the appointment of respondent No.4 as
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chairman of Board of Governors of PGMI Lady Reading Hospital
be declared as illegal and without lawful authority.
9. Petitioners in W.P.No.2643-P/2015 are the office
bearers of Para-Medical Association, Lady Reading Hospital,
Peshawar, comprising of institutional employees and civil
servants. It is averred in the petition that petitioners represent
health technicians, technologists, radiologists, anaesthetists,
pathologists, lab assistants, pharmacists, pharmacologist,
surgical technicians, emergency care-givers, physiotherapists,
dietetics and all those working in various fields supplementing
and supporting doctors and other health care providers in various
adjunctive roles. It is further averred in the petition that the
Government has been trying in the past to apply different recipes
at public health institutions, in the garb of reforms and the instant
Act of 2015 is the part of same exercise which seems to be
mixture of opposites and true picture of hotchpotch. They further
submitted that although a clear protection is provided to
petitioners under section 16(3) of the impugned Act 2015, that
they shall continue to render services in medical teaching
institutions on the same terms and conditions, yet respondent
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No.4 has issued a letter No.786/III, dated 24.6.2015 with an
alarming subject of “withdrawal of civil servants from MTIs”
proposing therein to create a “surplus pool” in Health Department
with a view to withdraw all civil servants from MTIs and placing
them in the so-called surplus pool which requires to be
withdrawn. They finally pleaded this court to declare that
respondents are not entitled to adversely change the terms and
conditions of service of the paramedical staff of LRH through any
further order and that respondents are bound to allow
meaningful representation of the petitioners’ association in the
Board of Governors of LRH through appointment of a
Paramedical Director.
10. Mr.Mushtaq Ahmad Tahirkhaili, learned counsel
for petitioner in W.P.No.420/2015 by opening the case, at the very
outset, raised preliminary objection regarding fixation of this case
before this Larger Bench because, earlier, this case was heard by
a Division Bench of this court and after conclusion of arguments
on both sides, instead of announcing the order, case has been
fixed before this Bench and as such taking away the case at such
stage, is against the judicial propriety. The objection is
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misplaced and misconceived. Though the case was heard by a
Division Bench, nevertheless, it was sent by the same Hon’ble
Bench to Hon’ble the Chief Justice for fixation before any other
Bench. Since this Bench was already hearing similar cases
wherein vires of KPK Ehtesab Commission Act, 2013 was
challenged, therefore, counsel in rest of petitions requested that
this and the connected cases be also fixed before this Bench and
by doing so, interest of no one has been prejudiced, hence
objection being misplaced was repelled at the outset.
11. Learned counsel submitted that petitioner has
challenged the vires of Khyber Pakhtunkhwa Medical Teaching
Institutions Reforms Act, 2015 (hereinafter referred to as Act of
2015) as it is based on the malafides of the originators of this Act;
that for achievement of their hidden objectives through the
impugned Act, the bureaucracy through Notification dated
25.3.2015 have abolished the posts of Medical Superintendent
and Chief Executive which resulted in removal of petitioner from
the post of Medical Superintendent, Ayub Teaching Hospital and
since then he is sitting idle at home. Learned counsel by
highlighting the backdrop of facts leading to the impugned
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enactment, contended that battle between petitioner and
government started in the year 2007 when petitioner was
transferred by the respondents with replacement of Dr.Zafeer
Hussain which order was impugned before this Court in W.P.No.
326/2007 which was decided in his favour on 25.10.2007. This was
not the end of the episode. Petitioner was once again transferred
in 2014 which order was struck down by this Court in W.P.No.
232-A/2014. That this Court by setting aside the transfer orders of
the petitioner held that Government has no authority to interfere
in the affairs of the Medical Teaching Institutions and since then
the matter has attained finality as the apex Court too maintained
the rule laid down by this Court.; that before impugned Act of
2015, the affairs of the Ayub Teaching Hospital were regulated by
Ordinance of 1978 which remained in vogue till 1999 when NWFP
Medical and Health Reforms Act, 1999 was promulgated and the
former was repealed. However, Act of 1999 was repealed when
Ordinance of 2002 came into existence. The Ordinance of 2002
remained in the field till promulgation of the impugned Act of
2015. Learned counsel for petitioner went on to state that the
Ordinance of 2002 was a beneficial legislation, catering all
requirements of the Medical Institutions and; that out of the blue,
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respondents enacted the impugned Act with malafide intention to
get control over the selected Medical Institutions. At this juncture,
learned counsel for petitioner took us to various provisions of
both enactments, i.e. Ordinance of 2002 and Act of 2015 and
submitted that under Section 3 of Ordinance of 2002, all the
Medical Teaching Institutions were declared autonomous and all
the affairs of the Health Institutions were regulated and
controlled by the Medical Council, constituted under Section 7 of
the repealed Ordinance of 2002, which autonomy has been taken
away through the impugned Act of 2015. Learned counsel further
submitted that the judgments passed by this courts in earlier writ
petitions, referred to above, are judgment in Rem because these
judgments barred the interference of the bureaucracy into the
affairs of the Health Institutions and as such the impugned
enactment is violent disregard of the judgments of this Court.
Further submitted that in the Preamble of the impugned Act of
2015, on one hand, the respondents propagated about autonomy
of the Health Institutions while on the other, they themselves have
not only snatched away, rather destroyed and strangulated such
autonomy by replacing the Management Council through Board
of Governors whose most of the members would be lay members
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hailing from the private Sector. Learned counsel while arguing the
case on point of malafide and bad intention behind the impugned
enactment, submitted that the pronouncement of the superior
courts regarding autonomy of the Medical Institutions has been
violated by the impugned legislation as it is short of its bonafide
intents. In this regard he referred to ratio of Contempt
Proceedings against Chief Secretary, Sindh and others(2013-
SCMR-1752) and Baz Muhammad Kakar Vesus Federation of
Pakistan through Ministry of Law and Justice & others (PLD 2012
Supreme Court – 923) and submitted that the impugned
legislation is violation of Article 2-A of the Constitution relating to
Objective Resolution because it has been promulgated for
collateral object of the bureaucracy, which also infringes the
independence of judiciary. He maintained that since the
impugned legislation is offending the very spirit of objective
resolution, embodied in Article 2-A of the Constitution, therefore,
such legislation being ultra vires Constitution may be struck
down. He placed reliance on Wattan Party through President
versus Federation of Pakistan through Cabinet Committee of
Privatization, Islamabad PLD 2006 Supreme Court 697 , Messrs
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Brooke Bond Pakistan Limited through Chief Executive
Versus Province of Sindh through Province of Sindh through
Secretary, Ministry of Finance, Sindh and 3 others (2001 CLC-
148) and KC Gajapati Narain Deo Vs State of Urissa ( AIR 1953
SC-375). He went on to state that the very object of impugned
legislation militates the provisions of the Constitution as it does
not cater the requirements of the people of KPK. To supplement
his arguments, he placed reliance on Manager Jammu & Kashmir,
State Property in Pakistan Vs Khuda Yar and another (PLD 1975-
SC 678) and submitted that it is the prerogative of this court to
determine the hidden object of the legislation in hand. By
concluding his arguments, learned counsel submitted that just to
remove the petitioner, entire exercise of promulgation of
impugned enactment has been undertaken which is based on
malafide and ulterior motive and is required to be struck down.
12. Mian Muhibullah Kakakhel, learned counsel for
petitioner in W.P.No.526/2015, 2024/2015 & 3395/2015 while
referring to Articles 240, 27 and 212 of the Constitution of Islamic
Republic of Pakistan, 1973 which deal with the service of
Pakistan, contended that civil servants cannot be dealt with in the
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manner provided in the impugned Act of 2015 as all the
employees working in the Medical Institutions and Medical
Colleges are civil servants and before promulgation of impugned
Act of 2015, their services were regulated through Ordinance of
2002, Civil Servant Act,1973 & Efficiency & Disciplinary Rules,
1973 and in the presence of all these laws, there was no need to
introduce the impugned Act 2015. He further submitted that there
are certain inherent deficiencies in the impugned Act of 2015
because of which it has been challenged to safeguard the interest
of the employees and all other stake holders; that there are 10
Medical Institutions in the province of KPK but only four out of
them have been singled out for application of impugned Act
which act on the part of respondents clearly manifests their
malafide intent; that petitioner is Teachers Association which is
not a registered body but in light of judgment of the apex court in
Habibullah Energy Limited and another Vs WAPDA through
Chairman and others (PLD 2014 SC-47), even a passer-by can
bring the cause. Whereas the petitioners are government servants
working in the Medical Institutions of KPK; that as per impugned
Act 2015, the non-doctors would run the Medical institutions
which is against the soul and spirit of the principle laid down by
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the august Supreme Court in 2003 SCMR – 104 wherein it has
been categorically held that there should be Doctor to control
affairs of the Doctors. Learned counsel took exception to the
constituent members of the Board of Governors and submitted
that it consists of non-doctors and even imported members; that
under the impugned Act 2015, the appointment of Principal and
other slots would be made on the novel criteria of “merit-cum-
fitness” disregarding the erstwhile criteria of “seniority-cum-
fitness” which of course is a new invention for intervention into
service structure. Learned counsel for petitioners took us to the
various provisions of the impugned Act and submitted that this
Act in terms of Section 16(5) has taken away the status of civil
servants from the employees of Medical Institutions while on the
other hand Section 21 of the Act speaks otherwise as such it is
inherently defective and self destructive. Learned counsel while
highlighting the background of the Khyber Medical College
submitted that it was first Medical College in the province of KPK
which was an independent entity but in the year 1975 it was taken
over by the Government and since then its employees and assets
are owned by the Government. At the initial stages, Khyber
Medical College and Hayat Shaheed Teaching Hospital were taken
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over under the Taking Over Act of 1975; that Medical Teaching
Institutions (MTIs) are the components of Medical Colleges and
each MTI is affiliated or attached with Medical College while under
the impugned Act of 2015, all the MTIs would be run by the Board
of Governors, a component of private members, which will
appoint and regularize the services of the employees of the MTI
which is against the spirit of Civil Servants Act. He submitted that
though malafide to the legislature cannot be attributed but out of
sheer zeal to achieve their ulterior motives, they have
promulgated this Act and while doing so, they have introduced
some of the provisions which are offensive, rather violative of the
constitutional provisions and that under this Act even retired and
private people would be employed in the MTI, which is against
Civil Servants Act as well as the judicial verdict of the apex court
and placed reliance on Mir Muhammad Idris and others
Vs Federation of Pakistan through Secretary Ministry of Finance
and others(PLD 2011 SC-213). He further contended that
expression life used in Article 9 of the Constitution of Islamic
Republic of Pakistan, 1973, has an extended meaning which
includes a right to work and earn. He also contended that though
in the normal cases no malafide can be attributed to an act of the
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Legislature but where it is enacted to oust the incumbents to pave
the way for a blue eyed, it would be malafide out and out and
would thus call for being struck down. He went on to argue that
the impugned Act of 2015 has made the MTIs as money minting
machines or industries, while these are supposed to provide all
medical facilities to the people, free of cost. To supplement his
host of the arguments, placed reliance on 2013 SCMR 1752, 2014
SCMR 484, 2013 SCMR -195, 2006 SCMR – 697. 2001 CLC- 148,
PLD 2014 Islamabad High Court-83, PLD 2012 SC-292, PLD 2014-
Sindh-48. On the point of discrimination, he submitted that the
impugned Act is discriminatory in the sense that by bringing
outsiders to the Institutions, the incumbents already serving in
the Institutions would be by-passed and their chances of
promotions would be diminished and contended that if any right
is taken away by the certain law, it is to be struck down under
Article 8 of the Constitution and placed reliance on PLD 2014 SC –
283. At the last leg of his arguments, he submitted that it is
settled law that if some of the provisions are mischievous or
repugnant to certain provisions of the Constitution, it requires to
be struck down as a whole. Placed reliance on PLD 1947 Privy
Council- 387.
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13. Mr. Muhammad Zafar Tahirkheli, learned counsel
for petitioners in W.P.No.3188 & 3189 of 2015 submitted that
petitioners are nursing staff of the Medical Institutions and they
are aggrieved of certain offensive provisions of the impugned
Act, especially relating to their service structure i.e. Sections
10(4), 16(3) and 14 of the impugned Act. However, on assurance
of learned counsel for the respondents that the said offending
provisions have been withdrawn, nevertheless, learned counsel
despite assurance, sought for judicial review of the Act. Placed
reliance on 2013 SCMR – 1752.
14. Mr. Shumail Ahmad Butt, learned counsel for
petitioners in W.P.No. 2643-P/2015 submitted that petitioners, who
are paramedics staff, are doing the same job like the Doctors and
nurses and they are part and parcel of the system but the
impugned Act of 2015 is not only silent about their fate but no
Director for their cadre has been provided in the Act which
amounts to sheer discrimination. He referred to Article 264 of the
Constitution read with Section 6 of the General Clauses Act and
submitted that a right has been accrued to them under repealed
erstwhile Ordinance of 2002. He went on to state that the Health
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Sector is concern of the Federal Government in accordance with
Entries No.11 & 12 of fourth schedule of Constitution (Part-II)
read with Articles 153 & 154 of Constitution and the matter is sent
to the Council of Common Interests which is also represented by
Chief Ministers of all the provinces. He further submitted that
after 18th amendment, all the provinces through Resolution of the
Provincial Assemblies entrusted authority, to regulate entries
No.11 & 12, in the Federal Government under Article 144, which
led to the establishment of Health Regulatory Authority.
Regarding reasonability and proportionality of the impugned Act,
he relied on PLD 2006 SC-697(e) and stated that this court can
strike down the Act on the ground of un-reasonability. Placed
reliance on PLD 2013 Lahore 693 (a,b, p), PLD 2007 SC – 642,
2912 PLC (CS)-1052 (b). He further submitted that the phrase” till
further orders” in Section 16(2) of the impugned Act is a hanging
sword for the petitioners; that services of the petitioners are
governed through Rules of 2001 which have been given
protection under Section 34(3) of Ordinance, 2002, but impugned
Act of 2015 is silent about Rules of 2001 as in the event of repeal
of Act or Rules, their rights cannot be taken away under Section 6
of the General Clauses Act read with Article 264 of the
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Constitution. He submitted that there are two types of Ultra vires,
one is procedural and the other is substantive, placed reliance on
PLD 2013 Lahore 693 and contended that the superior courts
have the power to see reasonability and proportionality of the law
enacted; that the impugned Act is violative of Article 25 of the
constitution as by not appointing Director for cadre of petitioners,
it has not provided rational classification. Placed reliance on
1990-SC-513(e).
15. While responding to the arguments of learned
counsels for petitioners, Mr.Syed Arshad Ali, learned counsel for
respondents/ LRH&HMC/MTIs contended that so far as
restoration of the petitioner Dr. Iftikhar against the post of Medical
Superintendent is concerned, after promulgation of Act of 2015,
the post of M.S. in all the MTIs has been abolished; that the
authority which created the post, can also abolish the same; that
appointment of petitioner against post of M.S. is not his vested
right as the petitioner being Senior Medical Officer can be
appointed in any Ward or Hospital without affecting his pay and
status and the Ordinance of 2002 does not provide any tenure for
the said post as it is a selection post; that petitioner pleads for
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revival of Khyber Pakhtunkhwa Medical Teaching Institutions and
Regulation of Health Care Services Ordinance, 2002 which has
been repealed through impugned enactment, suffice it to say that
the Ordinance is not applicable to Ayub Medical College and
Teaching Institution; as regards nullifying the effect of judgments
of this court barring interference of government in the Medical
institutions, the learned counsel stated that though Ordinance of
2002 was discussed in the said judgments but nowhere vires of
the said Ordinance were challenged; that Ordinance, of 2002 dealt
with two organs, i.e. Health Regulatory Authority and the Medical
Institutions, managed and controlled by the Management council
and Management Committees of the concerned MTIs. At this
juncture, learned counsel took us to various provisions of the
repealed Khyber Pakhtunkhwa Medical Teaching Institutions and
Regulation of Health Care Services Ordinance, 2002 and
contended that option was also given in the earlier Ordinance, of
2002 and same has been provided in the impugned enactment as
well but with bit difference that previously there was a combined
seniority of MTI employees and non-MTI employees serving in the
MTI as civil servants but now the employees who will not opt for
adjustment in the MTI will be dealt with in accordance with
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Section 11-A of the Civil Servants Act, so the issue of joint
seniority has been done away in the instant set up. He further
contended that basic concept of introducing private people to the
administration of the Health sector is to provide autonomy as well
as better health facilities to the people. Learned counsel further
submitted that as per impugned Act 2015, the internal
administration of the hospital would be in the hands of Doctors
and in order to support this arrangement, learned counsel
submitted, that not only in Pakistan but throughout the world, the
Health institutions are controlled and managed by the lay-
members, rather Bar councils are managed by lay members. He
quoted the example of Agha Khan Hospital, Karachi, Shaukat
Khanam Hospital, Lahore and Indus Hospital. He went on to state
that the erstwhile Ordinance of 2002 covered all the health
institutions but now two Acts, i.e. Khyber Pakhtunkhwa Medical
Teaching Institutions Reforms Act, 2015 and Khyber
Pakhtunkhwa Health Care Commission Act, 2015 are in place and
each Statute is governing its own fields; that in the previous set
up, Chief Executive and the Management council were running
the show while under the impugned Act of 2015, both have been
replaced by Board of Governors who shall be assisted by
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Directors of various disciplines including Hospital, Medical,
Finance and Nursing Directors etc. and all these Directors would
be responsible to the Board. Regarding doctrine of occupied field
he submitted that legislature is better placed to assess the need
of new legislation. As regards W.P. No.2024/2015, he submitted
that petitioner is neither employee of the institution nor a
government servant or a civil servant, so he has no locus standi,
being an unregistered association, so writ is not maintainable. In
support of his above submissions, he placed reliance on PLD
1983-S.C -457, PLD 1997-SC-11, 2002 SCMR -312, 2013 SCMR –
1752, PLD 2012 Sindh - 129, 2015-SCMR -1739PLD 2003 SC- 143,
1999-SCMR – 1566, 1999-PLC(CS) 2357, 2011 CLC – 368, 2011 PLC
(CS) 336, PLD 1964-Lahore-138 and 2013 PTD 1582.
16. M/s Isaac Ali Qazi and Muhammad Farooq Malik,
learned counsel for respondent No.5/KTH in W.P. No.2024/2015
contended that under the impugned Act, services of civil servants
working in the MTIs have been protected under Section 11-A of
the Civil Servants Act 1073, thus the apprehension of the
petitioners that they will not be given due right is misconceived
and unfounded as numerous vacancies are available in other
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Health Institutions where they can be absorbed/adjusted. He
further submitted that the impugned Act is re-organization and
streamlining of the Health Institutions as previously the Hospitals
were run by the Chief Executives but now the entire
managements has been distributed and assigned to a team of
specialized brains of respective fields, e.g. Medical Director,
Hospital Director, Finance Director and Nursing Director etc . He
went on to submit that credibility of members of Board of
Governors would be above board who will perform their duties
without any salary, except normal T.A/DA charges for attendance
of Board meeting.
17. Mr. Shakeel Ahmad, learned counsel for
respondents/ HMC/LRH in W.P.No.2643 & 526 of 2015 submitted
that wisdom of the legislature cannot be challenged in writ
jurisdiction, placed reliance on PLD 1957-Dacca-101 and CLC
2002 Peshawar-624 and PLD 1970 Lahore – 741; that malafide
cannot be attributed to legislature, placed reliance on PLD 2015
Peshawar-26, PLD 1988 Supreme Court (AJK)-53 and PLD -2005-
Karachi-55.Regarding argument of the learned counsel for
petitioner that the impugned enactment is tantamount to
25
nullifying the effect of judgments passed by the superior courts,
learned counsel relied on 2003-SCMR-1611. He further submitted
that the impugned enactment would not snatch rights of the
employees, placed reliance on PLD 2015 Quetta-69.
18. Learned Advocate General while defending the
impugned enactment contended that vires of a statute in view of
the pronouncements of the superior courts, can be adjudged on
the touchstone of three grounds :-
I Whether the law enacted is against Fundamental Rights
guaranteed by the Constitution of Islamic Republic of
Pakistan, 1973?
ii. Whether the impugned enactment is against any provision
of the Constitution?
iii. Whether it is against the independence of judiciary.
He submitted that since under Article 137 of the Constitution, it is
within the legislative competence of provincial legislature to
enact the impugned law which is an effort to improve the health
facilities which is prime responsibility of the Government under
Article 38 of the Constitution, so it is in accord with command of
Constitution. As regards violation of fundamental rights, the
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learned AG submitted, that he has not been able to understand as
to how this enactment is violative of fundamental rights, rather it
is mere an unfounded assertion. The learned AG took us to
various provisions of the Constitution and stated that Articles 29
to Articles 40 deal with the policy matters and stated that the
impugned Act is not against any of the provisions of the
Constitution. Responding to the arguments of learned counsel for
petitioner in W.P.No.420/2015, he contended that after
commencement of the impugned Act, petitioner’s post of Medical
Superintendent has been abolished and the Government is
competent to do so, beside that, petitioner has no vested right to
remain as M.S. for ever. As regards the argument regarding
nullifying the effect of judgments of this court, he submitted that
in the said judgments, vires of Ordinance of 2002 were not
discussed nor challenged, so this argument has no force. He
relied on 2002-SCMR-312 wherein it has been held that vires of a
statute cannot be questioned on the ground that it nullifies the
judgment. As regards the argument that the impugned enactment
has been passed in a haphazard manner without being debated in
the Assembly, he contended that proceedings of the Assembly
under Articles 68 & 69 of the Constitution are immune from being
27
challenged in any Court. Likewise, conduct of a judge of superior
courts cannot be discussed or debated in the parliament. He
relied on PLD 1958-SC-397, PLD 1990-Lahore 488, 1999-MLD-2411,
1990 MLD – 3431. PLD – 2011 Lahore-115. He went on to argue
that Objective Resolution was made part of the Constitution in
1985 but an enactment cannot be declared ultra vires on the basis
of objective resolution unless it is violative of any provision of
the Constitution. Rather Article 2-A of the constitution cannot be
used to struck down a statute. To augment his viewpoint, he
placed reliance on PLD -1993 SC-901. PLD 1989-Karachi-371,
1996 CLC – 722. 2015 SCMR 1379 and PLD -2015 SC – 395.
19. Learned counsel for petitioner in W.P.No.420/2015
in rebuttal to arguments of learned Advocate General and other
counsel for the respondents, submitted that Ayub Medical
College is not a teaching institution as worded in the opening
sentence of Impugned Act 2015. Rather it is basically a medical
and health institution and not teaching institution alone. Before
1999, AMC was run under the Ordinance of 1978. The intent of the
impugned Act is only to take over the control and management of
the Health Institutions by the Government. He further submitted
28
that when there was already an enactment of Ordinance 2002
under which all the Health Institutions of the province were
efficiently controlled and managed, the Legislature is not
competent to legislate when the field is already occupied. He
placed reliance on 2013 SCMR-1752 , and stated that by
promulgating impugned Act of 2015, the respondents have done
the same thing which was condemned by the High Court and
Supreme Court in their judgments which is tantamount to
nullification of judgments of the superior courts through
enactment, as such the impugned Act of 2015 has achieved
nothing except warding off the impact of judgments. So in this
background, it amounts to colourful legislation. He went on to
argue that every effort should be made to maintain independence
of judiciary, placed reliance on PLD 1993 SC 901 (a), PLD 2015 SC
401(C-d), PLD 2012 SC 923(p) and PLD 2014 Islamabad-83 (a& b).
He maintained that if the impugned Act is looked into the
background of judgments of the superior courts, it undermines
the independence of judiciary which is thus ultra vires
constitution. Placing reliance on 2000 SCMR -567(a), stated that it
is the superior courts which have been vested with power of
judicial review of an enactment, as the new law has brought
29
nothing but chaos and anarchy in the institution. He also placed
reliance on PLD 1947 Privy council-387(b) and submitted that if
certain portion of the Act is ultra vires, the entire law is held ultra
vires constitution.
20. Learned counsel for petitioners in W.P.No.526 and
2024 of 2015 in reply to arguments of learned counsel for
respondents highlighted the background of objective Resolution
till its becoming part of the Constitution in 1985 through 8th
Amendment and submitted that independence of judiciary should
be fully secured, placed reliance on 1973-Lahore-164 (b) and 1992
SCMR -2192 (s). He further contended that at present Health
Regulatory Authority has been replaced by Health Commission
Act, 2015. Though Essential Services Act, 1958 is in the field but it
failed to control day to day strikes and mismanagement in the
health institutions. BOG is headed by a person, aged about 78
year, who is politically motivated, thus paving way for political
influence and privatization of health institutions. That MTI Act of
2015 does not cater for emergencies in the hospitals, therefore, it
is in conflict with the Essential Services Act of 1958. He further
submitted that the Government had sent hundreds of Doctors to
30
get training in Management cadre but impugned Act of 2015 is
silent about their fate; that the impugned Act of 2015 has been
made applicable to only four institutions in the province while
remaining 6 institutions are out of its domain. As regards
agreements arrived at between the Doctors and the Government,
he contended that these agreements were signed through
coercive measures. Placed reliance on PLD 2013 Supreme Court-
195 and 2013 SCMR – 1752 (c, a).
21. Syed Arshad Ali, learned counsel for respondents,
responding to the arguments of learned counsel for petitioners
stated that Article 264 is not applicable to the ordinary Acts; that
rights claimed by the petitioners are under the Rules and not
under the Act. He placed reliance on 2002 SCMR – 312, 2014
SCMR – 1630. As regards the request of petitioners/paramedics
qua appointment of their Director, he submitted that suggestion
may be made and considered. He relied on PLD 1995-SC-423, PLD
1993-SC- 210 and 2012 SCMR -686, 1995 SCMR – 1856, PLD 1995
SC -423(e) , PLD 2007 Quetta-155, 2013 SCMR- 279 and 1062 and
2014 SCMR – 1630.
31
22. We have heard learned counsel for petitioners, in
all the writ petitions, the learned Advocate General and counsel
for the respondents at length and have gone through the case law
and material appended with the petitions and produced at the bar,
with their valuable assistance.
23. To begin with, it would be apt to refer the saying
of Aristotle: “To seek to be wiser than the law is the very thing
which is by good laws forbidden” while Chief Justice Marshall
said: “Judicial power, as contra distinguished from the power of
the law, has no existence. Courts are the more instruments of the
law, and can will nothing”. Quotations of two legendaries of their
times: a sage and a jurist Judge would be warp and woof for
entering in the realm of constitutional and legal discourse. The
quotations referred by Mr. A.K. Brohi in his “Fundamental Law of
Pakistan” would be beacon for steering us to justly resolve the
questions before us.
24. The controversy stated in grounds of the petitions
and as emerged during the arguments of all the counsel for
declaration the impugned Act ultra vires the Constitution can
precisely be enumerated as :
32
I. Firstly, it was an incompetent legislation;
II. Secondly, the field was already occupied by Ordinance of
2002;
III. Thirdly, that it was a malafide legislation to nullify the
judgments of the High Court as well as Supreme Court;
IV. Fourthly it is offending the Fundamental Rights of the
petitioners enshrined in the Constitution, falling in
mischief of Article-8 of the Constitution of Islamic
Republic of Pakistan, 1973;
V. Fifthly, that the rights accrued to the petitioners, whether
employees of the institution or civil servants, in view of
the previous legislation cannot be taken away through the
impugned Act; and
VI. Sixthly, that outsiders being non-doctors cannot be
assigned the task of management and administration of
the Medical profession as well as institution.
25. We, firstly, would like to examine the
Constitutionality and competence of legislation of the impugned
Act of 2015 (Act No. IV of 2015) which, of course, is of paramount
33
consideration on which rests the fate of later questions, raised by
the petitioners.
26. Mr.Shumail Ahmad Butt, counsel for petitioners in
W.P.No.2643/2015 has emphatically urged the ground by referring
to Article 154 and entries No.11 & 12 of Part-II of 4th Schedule of
the Constitution. Article 153 of the Constitution relates to Council
of Common interests to be appointed by the President ,
comprising of Prime Minister as its Chairman and Chief Ministers
of the Provinces and 3 members from the Federal Government to
be nominated by the Prime Minister as its members which is
responsible to the parliament and submit its annual report to both
the houses. Article 154(1) of the Constitution contemplates that
the council shall formulate and regulate policies in relation to
matters in Part-II of Federal Legislative List and shall exercise
supervision and control over the related institutions. Rest of the
sub clauses of Article relate to procedural contours of the
council. Before 18th amendment, entry No.11 of Part-II of the 4th
Schedule was part of the Concurrent Legislative List as entry
No.43 while entry No.12 is new conception, and modified abstract
of entry 38 of concurrent legislature list. In concrete textual form,
34
before 18th amendment it was neither part of Federal Legislative
List nor of Concurrent Legislative List. The object of 18th
amendment, obviously, was to vest the provinces with maximum
autonomy, both, in legislative and administrative spheres. The
authority of the Federal Government in the matters occurring in
concurrent list has been taken away with certain safeguards
supplied in Article 137 & 148(1) in the administrative& executive
fields, respectively. While interpreting an Article of the
Constitution, it may be taken conjunctively with the rest of the
Articles of the Constitution. An Article may not be taken in
isolation for a specific purpose in disregard of rest of the
provisions of the Constitution, in a way that it may defeat the very
intent and command of the whole scheme. It is basic principle of
interpretation that it be harmoniously visualised by putting the
whole content of the constitution in juxtaposition to evolve
harmonious and purposive construction, demonstrating the very
intent of the legislature. The interpretation that may lead to a
discordant letter and dissonant spirit is to be avoided. The
concept of written constitution is to provide guidelines for
smooth functioning of different organs of the state, within the
bounds of their defined respective domains, to achieve the
35
ultimate goal of a civilized society and a prosperous state. The
fabric of our constitution is artistically articulated with fine fibres
of different shades, representing all the entities, with meticulous,
brainstorming efforts put in marathon sessions of legislature.
Every word and Article is complementary and supplementary to
the other. An incongruous construction or interpretation is bound
to nullify the very spirit of the constitution which the courts have
always avoided, being custodian of it, by virtue of their oath.
Article 154(1) of Constitution relates to the formulation of policies
relating to entry No.11 & 12 of Part-II of the 4th Schedule. It
explicitly speaks of legal, medical and other professions and
standards in the institution for higher education and research,
scientific and technical institutions. There is no cavil about
formulation of policies and regulations of legal, medical and other
professions being the domain of Federal Government. By
retaining this entry in Part-II of Federal Legislative List, primarily,
the legislature has given protection to establishments, like
Pakistan Medical and Dental Council established under Pakistan
Medical and Dental Council Ordinance, 1962, Pakistan Bar
Council being creation of Legal Practitioners and Practice Act,
1973 and Pakistan Engineering Council created by Pakistan
36
Engineering Council Act,1976. These and alike are the institutions
which regulate the relevant professions within their domain and
also provide standards of education by formulating the policies
and rules. Entry No.12 is also supplementary to Entry No.11 by
virtue of which formulation and regulation of the policies
regarding standards of higher education and research have also
been vested in the Federal Government to give legal sanctity to
the establishment like Higher Education Commission which sets
out the standards of higher education, qualification of different
degrees and allied functions. By no stretch of imagination, Article
154 of the constitution with reference to entries No.11 & 12 to
Part-II of the 4th schedule can be blown out of proportion to an
extent which may take away legislative and executive powers of a
province enshrined in Article 137 and 141 of the Constitution.
27. The Constitution of 1973 is based on trichotomy of
powers pronouncing three pillars of the State: legislature,
executive and judiciary. The legislature has the power to legislate
the law and executive is to implement the same. Whereas the
judiciary is to supervise the whole mechanism and oversee the
acts and omissions of the executive as to whether those are
37
being exercised within the parameters set in the Constitution and
the law or otherwise. It is well settled that none of the organs of
the State is supposed nor required to interfere or encroach upon
the field of others. Though the courts have the power of judicial
review of every action of the executive, nevertheless is not
empowered to legislate nor supposed to. On this principle, the
courts are to interpret the law and dispense justice in accordance
with the law in existence. They are not to supply an omission in
any statute nor in the constitution. Since the courts are creation
of the Constitution itself, they are supposed to exercise their
powers within its framework and at the same time are also to
protect the constitution and the rights provided therein if are
infringed and invaded. Article-8 of the Constitution expressly
commands that State shall not make any law which may take
away or abridge the rights conferred and if so made in
contravention thereof, that shall be void. No law can be enacted
by the legislature which may take away or affect any right
conferred under Chapter-I of Part-II of the Constitution. The High
Court while examining the law if finds it violative of fundamental
rights, oppressive, confiscatory in nature or beyond the
38
legislature competence, is to strike it down while exercising its
power under Article-199 of Constitution.
28. This bring us to examine the KPK Act, 2015 at the
touchstone of principle expounded hereinabove. The very title of
the impugned Act of 2015 describes it as Khyber Pakhtunkhwa
Medical Teaching Institutions Reforms Act, 2015. The preamble of
the impugned Act speaks to provide autonomy to the government
owned Medical Teaching Institutions and their affiliated Medical
Teaching Hospitals in the province of the Khyber Pakhtunkhwa
and to improve performance, enhance effectiveness, efficiency
and responsiveness for the provision of quality healthcare
services to the people of the Khyber Pakhtunkhwa. The title and
preamble of the Act explicitly refer to the Medical Institutions and
Health care services, which, all along have remained subject of
the province being its sole domain. The Medial Institutions and
Health Care services have never been the subject of Federal
Government even prior to 18th amendment which is conspicuous
by its absence from the erstwhile Concurrent Legislative List and
Federal legislative list of fourth schedule, with only exception of
entry No.23 of concurrent legislature list relating to reception and
39
treatment of mental illness and mental retardation. The
establishment of different medical institutions and medical
colleges through different legislative instruments, soon after the
promulgation of Constitution of 1973, is the express and vivid
manifestation of exclusive domain of the provinces. One may
conveniently refer to Ayub Medical College (Board of Governors)
Ordinance, 1978. In view of this Constitutional, legal and factual
position, objection so raised is not sustainable.
29. The next objection required to be addressed is of
“occupied field”. According to learned counsel for petitioners,
the field was already occupied by Khyber Pakhtunkhwa Medical
and Health Institutions Regulation of Health Care Ordinance, 2002
(Ordinance No.XLVII of 2002), hence impugned Act is liable to be
struck down on this ground too. This objection more often than
not, is raised when a provincial legislature enacts a statute on the
subject which is already occupied by the Federal Act. The
doctrine is based on the principle to avoid any conflict of
the central and provincial laws. When such conflict emerges
between the two laws, it attracts principle of repugnancy. It is
settled that when both the legislatures, provincial and Federal are
40
competent to concurrently legislate on the same subject and
obedience to provincial legislation would not be achieved without
disobeying the federal law, the provincial law to that extent would
be repugnant and thus void. This question has since long
remained subject of consideration of the foreign courts as well as
courts of sub-continent, during which allied and ancillary
principle of paramountcy, pith and substance, occupied field and
principle of repugnancy emerged. The doctrine of paramountcy
states that where there is conflict between the validity of
provincial and federal laws, the Federal law will prevail and the
provincial law will yield to the extent which contradicts with the
federal law. The principle is based on the notion that compliance
of both laws is impossible or actual compliance is possible to
provincial law, but is incompatible to the spirit of federal law and
thereby frustrate the independence of the federal enactment.
However, if both the laws are, though overlapping but field of
their operation is clear and they do not conflict inter se, in their
operational fields, neither of them may be ultra vires. However, if
the field is not clear then federal law is to prevail. The principle is
to obviate the obvious result that the compliance with the one law
involves breach of the other. There may be a situation where
41
provincial statute may have some conflicting provisions
alongwith supplemental and duplicative to the Federal statute.
The conflicting provision may be severed, for supplemental may
be operative when those do not conflict with the federal law and
to that extent it shall be valid and operate concurrently with the
federal law. The principles of paramountcy, duplication and
supplemental provision have elaborately been discussed and
settled in Provincial Secretary of P.E.I. Versus Egan and A.G., of
P.E.I. (1941) S.C.R.396. In case of Grand Trunk Railway Company
of Canada Vs A.G. of Canada ( 1907) A.C.65 by the Privy Council.
Clyde Engineering Company Limited Vs Cowburn and Metters
Limited Vs Pickard and Lever Brothers Limited Vs Pickard( 1926 –
High Court of Australia – 466).
30. On acquisition of independence by the people of
sub-continent and emergence of two States, they promulgated
their respective Constitutions. In Article 254 of the Indian
constitution, principle of repugnancy of the provincial law to the
extent of its conflict with the federal law has been set out. In
42
Zeverbhai Amaidas Vs The State of Bombay ( 1954 AIR-752), the
same principle was adopted with reference to Article 254 (2) of the
Indian Constitution by holding that when there are laws covering
the same ground, both by the Federal and Province, and both
being competent to enact the same, the law of the centre will
prevail over that of the state law. In Ch.Tikka Ramji & others Vs
State of Uttar Pradesh ( AIR 1956 SC-676), beside other it was
also stated that no question of repugnancy under Article 254 of
the Constitution would arise where parliamentary legislation and
State legislation occupied different fields and dealt with different
and distinct matters, although of allied characters. While
examining the repugnancy it would be taken into account that
whether parliamentary and state legislations while legislating on
entry in the concurrent legislative list, exercise their power over
the same subject matter and whether laws enacted by
the parliament were intended to be extensive so as to cover
the entire field. By commenting on this aspect, the
Indian Supreme Court referred to excerpt of Isaac J in Clyde
Engineering Company Limited Versus Cowburn which reads as
under :-
43
“If, however, a competent legislature, expressly or
impliedly, evinces its intention to cover the whole
field, that is conclusive test of inconsistency
where other legislature assumes to enter to any
extent upon the same field.”
Another reference was made to observation of Dixon J. made in
Ex Parte Mclean (1980) 48-C.L.R. 472 which reads as follows :
“When the parliament of the Commonwealth and
the parliament of a State each legislate upon the
same subject and prescribe what the rule of
conduct shall be, they make laws which are
inconsistent, notwithstanding that the rule of
conduct is identical which each prescribes and
section 109 applies. That this is so settled, atleast
when the sanctions they impose are diverse. But
the reason is that, by prescribing the rule to be
observed, the Federal statute shows an intention
to cover the subject matter and provide what the
law upon it shall be. If it appears that the federal
law was intended to be supplementary to or
accumulative upon state law, then non
inconsistency would be exhibited in imposing the
same duties or in inflicting different penalties. The
inconsistency does not lie in the mere co-
44
existence of two law which are susceptible of
simultaneous obedience. It depends upon the
intention of paramount legislature to express by
its enactment, completely, exhaustively or
exclusively, what shall be the law governing the
particular conduct or matter to which its attention
is directed. When a federal statute discloses such
an intention, it is inconsistent with it for the law of
a State to govern the same conduct or matter.”
In case of Stock Motor Club Ltd (1932) 48 CLR – 128, it is
observed that the State and Federal laws may be inconsistent
though obedience to both is possible. There may also be a
inconsistency when each law imposes same duty of obedience
and by concluding so the inconsistency was attributed to a state
law not because federal law invalidate or conflict with it but
because federal law has covered the field.
31. What we want to highlight, by referring case laws
from the different jurisdictions, is that the principle of occupied
field, repugnancy and doctrine of paramountcy applies when
there are two laws, concurrently enacted on the same subject
matter, by two competent legislatures, federal and provincial.
Whereas it is not the case before us because there is no federal
45
law occupying the field relating to the same subject matter. When
learned counsel for petitioners were asked to refer to any Article
of the Constitution or law declared by the courts that in absence
of any federal law, provincial legislature is incompetent to
legislate on the same matter, on which the earlier legislation of
the province is in the field, they were unable to lay hand on any
law in support of their this particular argument.
32. The doctrine of repugnancy is expressly provided
in Article 143 of the Constitution of Islamic Republic of Pakistan,
1973 which enjoins in explicit terms that if any provision of an Act
of provincial Assembly is repugnant to any provision of an Act of
(Majlis Shura) (Parliament) which latter is competent to enact, the
Act of parliament whether passed before or after the provincial
assembly shall prevail and the Act of provincial assembly shall to
the extent of repugnancy be void. The Constitution has provided
mechanism and domain of legislation to cope with each and every
situation. In terms of Article 141 of the Constitution, parliament
and provincial assemblies have been vested with power to
legislate in their respective spheres. In Article 142 of the
Constitution, some limitations have been supplied including
46
exclusive domain of legislation of the provincial assembly has
been recognized in Article 142(c) of the Constitution. To cope with
any eventuality of inconsistency or repugnancy, Article 143 of the
Constitution has been enacted. As already held that federal
legislature has no concern with the health institutions of the
province which is latter’s sole domain. It is the same reason, that
there is no federal law in the field on this subject. Thus no
question of repugnancy or occupied field arises. This objection of
the petitioners too is misplaced.
33. Article 240 of the Constitution of Islamic Republic
of Pakistan, 1973, particularly, sub-clause (b) thereof speaks of
service of provinces and posts in connection with affairs of
province to be determined by or under Act of the Provincial
Assembly. There is no cavil about the legal position that MTIs and
the employees thereof are rendering services in connection with
the affairs of the province of KPK. The protection to their service
has been supplied in Section 16 of the ibid Act. Rest of the
conditions and terms of appointment, maintenance of seniority,
promotion and matters ancillary and incidental thereto are to be
determined and regulated by the Rules and regulations framed
47
under Sections 23 & 24 of the Act. Same had all along remained
the position in the repealed, KPK Medical Teaching Institutions
Regulations of health care Ordinance, 2002 (Ordinance XLVII of
2002) . Article 264 of the Constitution is saving clause which has
supplied protection to all orders made, action taken, rights
accrued, liability incurred, penalty or punishment inflicted in
respect of offences committed against law and to save the
investigation, legal proceedings initiated or imposed under the
repealed laws, except expressly provided otherwise. Same is the
tenor of language employed in section 6 of the General Clauses
Act 1897 and Section 4 of the West Pakistan General Clauses Act,
1956. The obvious object of the said constitutional and legal
provision is to obviate a situation of chaos and confusion and not
to affect the legal proceedings taken under the repealed Act. In
view of the constitutional command and legal provision of
General Clauses Act, protection to the service of the employees
of the institutions has been supplied in Section 16(2) of the ibid
Act. Likewise actions taken under Ordinance,2002 have also been
saved under Section 26(4) and (5) of the impugned Act of 2015.
Thus, objection of the petitioners in W.P.No.2643/15 is unfounded.
48
34. Now we are to examine the third limb of
arguments regarding malafide of the legislature to frustrate
judgments of the High Court as well as Supreme Court and
consequently, to undermine and impinge the independence of
judiciary, which no doubt is to be secured at any cost. When a law
is enacted by federal or provincial legislature through chosen
representatives of the people, it reflects the will of the people. The
parliament and provincial assemblies are empowered to legislate
within their respective domains. The presumption of
constitutionality & validity is always inherently embedded in such
legislation. The malafide or malice cannot be attributed to the
competent legislature. It is the bounden duty of the person who
challenges the validity,to prove that the law has malafidely been
legislated or is in violation of Fundamental Rights or
constitutional provisions. There is no cavil about the legal
position that the courts have the power of judicial review of an
enactment but within the parameters laid down in the
Constitution. Similar question was examined in Zia ur Rehman’s
case( PLD 1975 Supreme Court – 49) . Similarly, in Fauji
Foundation Vs. Shamim ur Rehman ( PLD 1983 Supreme Court –
457 ) the principle was once again examined. It was observed
49
that the courts are not to enquire into motive of the legislation nor
can ascertain the wisdom of the legislature. The powers of
judicial review are corrective and directive which are only meant
to see legality of administrative action. In Multiline Associates Vs
Ardeshir Cowasjee and 2 others ( P L D 1995 Supreme Court – 423
) it was laid down in Para-35 of the report as follows :-
“Cardinal principle of interpretation of statues is
that a law should be interpreted in such a manner
that it should be saved rather than destroyed. The
Courts should lean in favour of upholding
constitutionality of legislation and it is, therefore,
incumbent upon the Courts to be extremely
reluctant to strike down laws as unconstitutional.
This power should be exercised only when
absolutely necessary, for injudicious exercise of
this power might result in grave and serious
consequences. In support of the proposition
reference can be made to the case of Province of
East Pakistan v. Sirajul Huq Patwari (PLD 1966 SC
854). The same principle of interpretation shall
apply to subordinate legislation Including
Regulations as in this case.”
50
It was reiteration of the principle earlier laid down in ( PLD
1966 Supreme Court-854) . In case of Baz Muhammad
Kakar and others Vs Federation of Pakistan through
Ministry of Law and Justice and others ( P L D 2012
Supreme Court – 923), the Supreme Court while examining
the question of colourable legislation and competency of
legislature has made reference to an excerpt of Indian
Supreme Court in KC Gajapati Narain Deo Vs State of
Urissa ( AIR 1953 SC-375) which reads as follows :-
“It may be made clear at the outset that the
doctrine of colourable legislation does not
involve any question of bona fides or mala fides
on the part of legislature. The whole legislature
doctrine resolves itself into the question of
competency of a particular legislature to enact a
particular law. If the legislature is competent to
pass a particular law, the motives which impelled
it to act are really irrelevant. On the other hand, if
the legislature lacks competency, the question of
motive does not arise at all. Whether a statute is
constitutional or not is thus always a question of
power. A distinction, however, exists between a
legislature which is legally omnipotent like the
Brittish Parliament and the laws promulgated by
51
which could not be challenged on the ground of
competency, and a legislature which enjoys only
a limited or a qualified jurisdiction. If the
constitution of a state distributes the legislative
powers amongst different bodies, which have to
act within their respective spheres marked out by
specific legislative entries, or if there are
limitations on the legislative authority in the
shape of fundamental rights, questions do arise
as to whether the legislature in a particular case
has or has not, in respect to the subject-matter of
the statute or in the method of enacting it,
transgressed the limits of its constitutional
powers. Such transgression may be patent,
manifest or direct, but it may also be disguised,
covert and indirect and it is to this latter class of
cases that the expression ‘colourable legislation’
has been applied in certain judicial
pronouncements. The idea conveyed by the
expression is that although apparently a
legislature in passing a statute purported to act
within the limits of its powers, yet in substance
and in reality it transgressed these powers, the
transgression being veiled by what appears, on
proper examination, to be a mere pretence or
disguise. As was said by Duff. J. in Attorney-
General for Ontario v. Reciprocal Insurers, (1924
AC 328 at p.337)
52
“Where the law making authority is of a limited or
qualified character it may be necessary to
examine with some strictness the substance of
the legislation for the purpose of determining
what is that the legislature is really doing.
“In other words, it is the substance of the Act
that is material and not merely the form or
outward appearance, and if the subject-matter in
substance is something which is beyond the
powers of that legislature to legislate upon, the
form in which the law is clothed would not save it
from condemnation. The legislature cannot
violate the constitutional prohibitions by
employing an indirect method.”
There is reference of Jaora Sugar Mills’s case in the same
report relating to the same question which for ready
reference is reproduced as follows :-
“The challenge to the validity of a Statute on the
ground that it is a colourable piece of legislation is
often made under a disconnection as to what
colourable legislation really means. As observed
by Mukherjea J., in K.C. Gajapati Narayan Deo and
others v. The State of Orissa (1954 S.C.R. 1 at p.II,
“”the idea conveyed by the expression ‘colourable
legislation’ is that although apparently a
53
Legislature in passing a statute purported to act
within the limits of its powers, yet in substance
and in reality it transgressed these powers, the
transgression being veiled by what appears, on
proper examination, to be a mere presence or
disguise.” This observation succinctly and
effectively brings out the true character of the
contention that any legislation is colourable
legislation. Where a challenge is made on this
ground, what has to be proved to the satisfaction
of the Court is that though the Act ostensibly is
within the legislative competence of the
Legislature in question, in substance and in reality
it covers a field which is outside its legislative
competence………………. Therefore, we do not
think there is any substance in the argument that
the Act is invalid on the ground that it is a
colourable piece of legislation”
After cursory survey of the case law on the subject, the
august Supreme Court set following principle in Para-96 of
the report :-
“From the above discussion in the case law, following
principles are deduced:
a. The whole doctrine resolves itself into the
question of competency of a particular
54
legislature to enact a particular law. If the
legislature is competent to pass a particular
law, the motives which impelled it to act are
really irrelevant.
b. In other words, it is the substance of the Act
that is material and not merely the form or
outward appearance, and if the subject-matter
in substance is something which is beyond the
powers of that legislature to legislate upon, the
form in which the law is clothed would not save
it from condemnation.
c. The legislature can only make laws within it
legislative competence. Its legislative field may
be circumscribed by specific legislative entries
or limited by fundamental rights created by the
Constitution.
d. The idea conveyed by the expression
‘colourable legislation’ is that although
apparently a Legislature in passing a statute
purported to act within the limits of its powers,
yet in substance and in reality it transgress
these powers, the transgression being veiled by
what appears, on proper examination, to be a
mere presence or disguise.
e. Where a challenge is made on this ground,
what has to be proved to the satisfaction of the
55
Court is that though the Act ostensibly is with
the legislative competence of the Legislature in
question, in substance and in reality it covers a
field which is outside its legislative
competence.
f. It is only when a legislature which has no power
to legislate frames a legislation so
camouflaging it as to appear to be within its
competence when it knows it is not, it can be
said that the legislation so enacted is
colourable legislation.
g. If in pith and substance the legislation does not
belong to the subject falling within the limits of
its power but is outside it, the mere form of the
legislation will not be determinative of the
legislative competence.
When the case in hand is examined at the touchstone of the
principles laid down in Baz Muhammad Kakar’s case, we could
not find to call it as colourable legislation by the legislature which
was competent to enact the law.
35. The independence of judiciary cannot be judged at
the touchstone of objective resolution nor on the basis of
objective resolution, any provision of the Constitution or law may
56
be struck down. In Asma Jeelani case (PLD 1972 Supreme Court –
139), it was further observed that the objective resolution is the
grund-norm of Pakistan which is principle of legal sovereignty
ensuing therefrom. It was observed that objective resolution of 7th
March, 1949 does not stand on higher pedestal than that of
constitution itself. It just set out principles of guidance, in the
light of which, Constitution was to be framed. By the objective
resolution, general contours and guidelines for the framers were
provided. It is an enigma of Constitutional history, yet to be
resolved by the nation and historian that why in substance, the
constitution was not framed, instead of adopting a resolution?
And why the nation has to wait till 1973, for a consensual
constitution, for 26 years. However, this aspect of objective
resolution and constitutions of 1956 and 1962 are irrelevant for
the question at hand. When the Constitution of 1973 was framed,
all those aspects were considered and it attained the finished
form. Though the objective resolution has been made part of
preamble of the Constitution by Article 2-A, nevertheless, it is not
a supra constitutional document. In District Bar Association
Rawalpindi and others Vs Federation of Pakistan and others
(PLD 2015 Supreme Court – 401) while considering the impact of
57
Article 2-A of the Constitution it was held in Para-65 of said
judgment authored by the then Honourable Chief Justice that
notwithstanding inclusion of Article 2-A relating to objective
resolution as substantive part of the Constitution, it neither
controls other provisions of the constitution nor other provisions
of the constitution can be struck down on the ground that they
are in conflict with it. It can only be used for interpretation of the
other provisions of the constitution in case of doubt.
36. In Zaman Cement Company (Pvt) Ltd Vs Central
Board of Revenue and others ( 2002 SCMR – 312 ) while
examining the same objection that Section 31-A of the Customs
Act 1969 was inserted to nullify the judgment of the Supreme
Court in Al-Samrez Enterprise Vs Federation of Pakistan (1986
SCMR -1917) held in Para-13 as under:-
“the function of the judiciary is not to
legislate or to question the wisdom of
Legislature in making a particular law nor it
can refuse to enforce it even if the result of it
be to nullify its own decision, provided the
law is competently made. Its vires can only
be challenged being violative of any of the
58
provisions of the Constitution and not on the
ground that it nullifies the judgment of the
Superior Court”.
It is well settled that the courts are to decide lis in accordance
with law in vogue at the relevant time and not to go behind the
previous laws. On the same principle, the courts are to consider
the laws in operation, and express its opinion in accordance
therewith. It cannot and should not bind the legislature nor refrain
it from new legislation, with the changing circumstances. The law
is an organic document in substance which with the change of
human complexities, socio-economic values and demographic
attitudes, may be moulded, altered, amended or reconstituted by
repeal of the earlier laws with the changed requirements. It may
not be kept as stagnant or static, which, with the passage of time,
may not cope with the situation nor cater with the needs of the
people, for whose welfare, laws are enacted. The legislature being
the representative of the people is best judge of determination of
the suitability of the law with the prevailing circumstances. It
would be apt to refer to Benjamin Cardozo, an American jurist on
“adherence to precedent” “We have to pay in countless ways for
59
the absence of prophetic vision. No doubt the ideal system, if it
were attainable, would have been to supply for every conceivable
situation, the just and fitting rule. But life is too complex to bring
the attainment of this ideal within the compass of human
powers”quoted by Mr.Justice Jawwad S.Khawaja, Judge, in
Federation of Pakistan through Secretary Ministry of Law Vs
Munir Hussain Bhatta and others ( P L D 2011 Supreme Court –
752). In Mehr Zulfiqar Ali Babu and others Vs Government of
Punjab and others ( PLD 1997 Supreme Court – 11 ) the same
objection of nullification of judgment of Supreme Court by act of
provincial legislature was discarded. In this case it was prayed
that Punjab Local Government (Repeal) Act, 1996 be declared
ultra vires Articles 4, 17, 25 and 32 of the Constitution and also
members of majority party be proceeded for contempt for
frustrating the decision of the Supreme Court in C.A.No.1254 &
1255 decided on 26.6.1996. The august Supreme Court did not
agree with the petitioner’s contention and petition was dismissed.
Thus we have no shred of doubt in our mind that the impugned
Act has validly and competently been enacted by the provincial
legislature.
60
37. Though the petitioners have averred that the Act
of 2015 is liable to be struck down being violative of their
Fundamental Rights but failed to demonstrate their stance. In
their wisdom, Ordinance (No.XLVII of 2002) was proper and
competent legislation which need not be interfered with. Though
the Ordinance, 2002 was promulgated when the Assemblies,
provincial and national, were not in existence but the same was
later on validated by virtue of 17th Constitutional amendment.
First objection on the impugned Act of 2015 is that by its
promulgation, autonomy of the institutions has been taken away
and the control of the bureaucracy has been brought about. When
both the legislations are put in juxtaposition, one finds that
section 5 of the Ordinance, 2002 explicitly speaks: “subject to the
general supervision and control of government”, Management
Council shall exercise its administrative and management
powers. While Chief Executive of the medical Institutions by
virtue of Section-9 of the Ordinance, was to exercise powers and
perform such duties and functions as may be assigned to him “by
the Government”. There were maximum 5 non-official persons as
members of the management council, nominated by the
Government. Chief Executive being the nominee of the
61
government was to run and control affairs of the medical
institution while rest of the members under the ibid Ordinance
were the officials of the institutions. As against that under the
impugned Act of 2015, Board of Governors of each Medical
Institution is to administer and manage its affairs and shall
comprise of not exceeding 10 members, 3 of which are from the
Government department and 7 from the private sector. The
Chairman is to be elected by the members from the private sector
through voting from amongst themselves who is to preside over
the Board meeting. He would not be direct nominee of the
government which is a departure from the government control
towards autonomy. The concept of private members is not a new
phenomenon. Rather it is also available in Ordinance of 2002. The
Management Council provided under Section 6 of the Ordinance
has been replaced by the Board of Governors. While the private
members would not be directly nominated by the government but
would be recommended by the Search and Nomination Council
constituted under Section 8 of the impugned Act, 2015. So far as
the objection that non-Doctors have been assigned the task to
administer the medical institutions, suffice it to say that this
objection of the petitioners is misplaced. The concept is not
62
alien to the institution. Even in Ordinance, 2002, there were
private members who were non-doctors in the Management
Council. Learned counsel for the respondents/Institution provided
us administrative structures of different professional bodies
around the globe and submitted that their administrators are
non-professionals and they are better administrators. No cavil
that profession and efficiency of a professional is one thing
whereas administration of the body is altogether different
phenomenon. Best qualified Doctor, lawyer or engineer equipped
with the foreign degrees may be best professionals in their
respective fields but may not be good administrators which is the
job of administrators. Thus the objection so raised is not tenable.
It is strange that on one hand it is objected that the government
has taken control of the institution by snatching their autonomy
and on the other it is alleged that the private persons have been
assigned the task of administration. Both the arguments are
mutually exclusive and self destructive. The petitioners
themselves are not certain about form and substance of their
objection. Moreso, the objection that the government has taken
control of the institution is belied by simple facts that 3 members
of the Board being the nominee of the government have not been
63
given right of vote. The decision making power has absolutely
been vested in the private members belonging to the public at
large who may better protect and represent the interest of the
public, in general, and patients, in particular.
38. By virtue of Section 12 of Ordinance, 2002, there
were different sub-committees to administer affairs of the Medical
Institutions; comprising of executive sub-committee, Finance and
Departmental Grants sub Committee, the Registration and
Medical Ethics Sub Committee, The Establishment and Medical
Staff sub committee, the Nursing and Paramedics Sub
Committees and Academic, Research and Publication Sub
committee which have been replaced by Hospital Director,
Medical Director, Nursing Director and Finance Director.
Particularly, services of the employees have also been protected
by virtue of Section 16 of the ibid Act, as amended. Similar
protection was supplied in Section 11 of Ordinance, 2002 on
repeal of private medical institution (Regulation of Service)
Ordinance, 1984 and Medical Institutions Reforms Ordinance,
1999. It is pertinent to mention that on repeal of Ordinance, of
1999, no one has ever questioned the Ordinance of 2002. The
64
comparative analysis of both the legislations is reflective that
administrative landscape has been broadened by the impugned
Act as against ibid Ordinance of 2002. The counsel for petitioners
in all the petitions have failed to point out any provision of the Act
to be violative of any Constitutional provision or their
Fundamental Rights, enshrined in the Constitution. Nor rights
accrued to them under the repeal Ordinance, 2002 have been
affected by the impugned Act of 2015. Hence this objection too is
not tenable. However, phrase “till further orders” occurring in
Section 16(2) appears to be not compatible with clause (2) and
substituted clause (3) of Section 16 of the impugned Act. The
phrase tagged with sub clause (2) is a Damocles sword for the
employees who though opt for absorption in the MTI.It is
unreasonable and unjustified as such is liable to be omitted and
deleted from the Statute.
39. Now coming to the case of Dr.Iftikhar Ahmad who
alleged that there are judgments of the High Court and Supreme
Court in his favour, nullification of which is the main object of
promulgation of the impugned Act of 2015. His litigation’s
history, for retention of post of Medical Superintendent of Ayub
65
Teaching Hospital Abbottabad starts with W.P.No. 326/2007 which
was decided in his favour. In that case, respondent No.3, Dr.
Zafeer Hussain was appointed as Medical Superintendent of Ayub
Teaching Hospital by the Secretary Health government of KPK
from outside which was questioned by the petitioner who was
holding the said post at that time. The order was struck down by
this court having been passed without jurisdiction. However,
Management Council of Ayub Teaching Hospital was asked to
consider most eligible, suitable and senior medical officer
possessing extra ordinary qualities both medical and
professional for the post of Medical Superintendent (M.S). No
declaratory writ was issued in his favour to retain the post of M.S.
at ATH Abbottabad for all times to come. Ratio of the judgment is
that it was the Management council to make transfers and
appointments within the institution, keeping in view the criteria of
eligibility, suitability and seniority as well as experience of
management, administration and profession. In 2014, once again
Dr.Zafeer Hussain was transferred and posted as M.S. ATH by
transferring petitioner which was challenged by him in
W.P.No.232-A/2014 at Abbottabad Bench of this court. This
petition was accepted while relying on the earlier judgment in
66
W.P.No.326/2007. It was also observed in concluding the
judgment that the government do deserve the right of posting
through its management cadre employees against the said post
but unless and until the post is vacant and not occupied by the
institutional employee, who could only be removed/transferred by
the Management Council. The judgment was maintained by the
august Supreme Court, nevertheless, it was observed in Para-8 by
the Supreme Court that: in pith and substance, it is procedural
failings which have resulted in the impugned judgment without
any serious restraints on future action. It was further observed
that various legal issues appear to be lurking in the shadows
which are not being commented upon and are left to be decided
as and when they arise in some other appropriate matter. These
observations of the august Supreme Court are indicative that the
impugned judgment was maintained and petitioner was not
disturbed but with some serious reservations.
40. We have been provided a copy of the Notification
No.alrhid.1(7)03/11/7335, dated 21.7.2008 whereby Section 53 of
Khyber Medical University Act, 2006 was deleted by virtue of
Ordinance No.X of 2008 which was later on translated into Act.
67
Section 53 in its original form has repealed Ayub Medical College
(Board of Governors) Ordinance, 1978 which was the initial legal
instrument, relating to the affairs of the Ayub Medical College, on
its inception. By virtue of this legal position, W.P.No.648-A/2012
was issued on 17.1.2013 in which it was declared that the Ayub
Medical College Board of Governors Ordinance, 1978 stands
revived and Notification dated 3.7.2008 shall have no legal
application to the Ayub Medical College. The actions taken and
the orders passed in regulating and carrying on the affairs of
Ayub Medical College since 2.7.2009, under Ordinance, 2002 were
protected on the principle of past and closed transactions, with
the direction to government to take all necessary steps to ensure
the constitution and functioning of the Board of Governors of
AMC, as provided under Ordinance of 1978 and Regulations of
1980. It appears that at the time of hearing of W.P.No.232/2014,
though judgment of W.P.No.326/2007 was referred but that of
W.P.No.648/2014 decided on 17.1.2013 was not brought into
notice of Division Bench and court was not properly assisted
which resulted in reliance on Ordinance, of 2002 and
W.P.No.326/2007 and consequential acceptance of his writ
petition. By virtue of Act No.IV 2015 Ayub Medical College (Board
68
of Governors) Ordinance, 1978 alongwith other enactments of
Ordinance, 1999 and Ordinance of 2002 have been repealed. Had
Ayub Medical College (Board of Governors) Ordinance, 1978 not
been operative, there was no reason to repeal the same. It
appears that Ayub Medical College was still being managed, run
and controlled under the provisions of XLVII of 2002 despite
revival of Ayub Medical College (Board of Governors) Ordinance,
1978. To remove this complex and anomalous legal position,
there was dire need of enactment to streamline the medical
teaching institution which has been supplied. It has already been
observed in the preceding paragraphs that the Statute enacted by
the competent legislature may not be struck down merely on the
ground that it is nullifying the judgments of the courts that too a
judgment in personam, not in rem. Even in case of judgment in
rem, in Zaman Cement ‘s case (supra) and Mehr Zulfiqar Ali Babu
(supra) the objection of nullification of the judgment of the
Supreme Court through new enactment was repelled. In the
instant case, one person for the sake of his personal interest, is
seeking declaration of an Act as void as he strives to retain the
post of M.S., of ATH at any cost.
69
41. We are conscious of the fact that so many writ
petitions filed by Doctors associations and individuals
challenging the validity of Act No. IV of 2015 have been
withdrawn. The legislation is always aimed at for the benefit of
public at large. It can never be intended for causing harm to an
individual. “Salus papuli, sperma lex”, indeed, is always soul and
spirits of every enactment. One may assume that an individual
may go to an extent to cause harm to his opponents, to settle the
score. But it is next to impossible that legislature comprising of
treasury and opposition benches, representing the whole
populace of the province would converge on one point agenda of
removal of petitioner from the post of M.S. If it is so, then
purportedly the populace of province do not want him to remain
on this post. It is settled law that no one has a vested right to
remain on a particular post for all times to come. However, as
petitioner has contended that after his removal from the post of
M.S. , he has not been assigned any post in the Institution and
sitting idle at home. Once he has opted to be absorbed in the
service of the Institution, he may not be treated according to the
whims of the administration. He is to be assigned a suitable post
according to his qualification in the institution. This grievance of
70
the petitioner shall be redressed by the respondents at the
earliest without fail, compliance report whereof shall be submitted
to the Registrar of this Court for our perusal.
42. It is vehemently contended on behalf of Para-
medical Staff in W.P.No.2643/2015 that Doctors and Nurses,
though pertain to medical staff but have separately been provided
with their respective Directors whereas Para-Medical Staff of the
institution, despite more than double of the collective strength of
both the disciplines, has been left astray. There is an uncertainty
and frustration that to whom they are answerable and before
whom they may pursue their cause for redressal of their
grievance, if any . The grievance so urged seems to be
reasonable one. Though there is a Medical Director responsible
for all clinical functions of the hospital and Nursing Director to
look after functions of nurses, pertaining to their training,
adequate nursing staff for clinical needs and maintenance of high
nursing standards. There is no reference of Para-Medical Staff
performing functions falling within the responsibilities of other
medical and nursing wings. Hospital Director is over all incharge
of non-clinical functions of the hospital. It is undisputed that the
71
Para-Medical Staff is highest in strength as compared to Doctors
and Nurses, so is required to have a Director of Para-medics.
Though it was the responsibility of the Legislature not to leave
any deficiency but the credit goes to the Para-Medical Staff who
wish to be, managed, supervised and administered by their own
Director before whom they may lodge their complaints or
grievances. Beside that clinical functions cannot be suitably and
adequately discharged without cooperation and coherence of the
Para-Medical Staff, consisting of Health Technicians,
Technologists, radiologists, anaesthetists, pathologist, Lab
Assistants, Pharmacists, Pharmacologists, surgical technicians,
emergency care-givers, physiotherapists, dietetics etc. In view of
this deficiency, respondents shall make suitable amendment in
the impugned Act for provision of Director of Para-Medical Staff.
43. During the course of hearing of these petitions, we
have been provided a copy of the agreement executed between
the Doctors’ association on one hand and the Secretary Health
Government of KPK on the other. On the basis of that agreement ,
some writ petitions, challenging the vires of the impugned Act of
2015 and fixed today with similar writ petitions, have been
72
withdrawn. Though we would not have commented upon the
terms of the agreement because one of the party i.e. Doctors who
have entered into agreement are not before us after withdrawal of
their writ petitions. However, had they not withdrew their petitions
and contested their cause , the result would have been the same,
as has been discussed herein above. Because same was the
grievance and objections raised in those petitions which have
been addressed in these cases. Since we were struck and
stunned after going through the terms of the agreement, so we
cannot withhold recording our observations relating to the terms
of the agreement which are affecting the interest of the public and
the patients who are the main stakeholders in this whole exercise.
They were not party to the agreement when terms of their fate
were being settled by others: the Doctors’ association and the
Secretary Health for Government of KPK . The provincial
legislature being the representatives of the populace of the
province have reflected the will of the people in the Act of 2015.
The preamble of the Act is manifestation of that will that it is
intended for provision of effective, efficient and suitable health
care services to the people of the KPK but neither people of the
KPK nor their representatives are signatory to this agreement, at
73
the alter of which, the whole scheme of the impugned Act 2015
has been frustrated. The courts being custodians of the rights of
people cannot remain as silent spectators, despite noticing
Clause-(iv) of the agreement, affecting the poor masses, who are
neither before the Court nor party to the agreement. To properly
appreciate the matter Clause (iv) of the agreement is reproduced
which runs as :-
“Private Practice during normal working hours:
It was decided that separate arrangements will be
made for entertaining private patients during
normal working hours. It was further agreed that
the normal OPD will not be affected.”
Bare perusal of Clause (iv) of the agreement transpires that
Doctors have been allowed private practice during normal
working hours in the hospitals which has never ever been allowed
in the past. Though it has been suffixed with a stale condition that
normal OPD will not be affected. But it is a matter of common
knowledge that once an aperture is left open, no one would be
able to control the decomposition of the whole scheme. It appears
that after filing petitions, Doctors’ association have influenced the
respondents by their protests, processions and strikes to either
74
withdraw the Act or else come to their terms. Clause (iv) of the
agreement is vivid manifestation of that arm-twisting. It has been
argued before us that after insertion of this clause in the
agreement, OPD has been made operational since morning till
evening. We are afraid that the administration is so week that it
cannot achieve this goal by exercise of its administrative skill and
is not resorting to Essential Services Act 1958 which has already
been made applicable to all services of Health Institutions
including administrative, curative, rehabilitative, preventive,
promotive and supportive services, partially or fully funded from
the general exchequer who are under direct or indirect control of
Government, for the purpose of West Pakistan Essential Services
(Maintenance) Act, 1958, vide Notification No. E&A(Health)/ 4-
138/Declaration of HS/2011, dated 13th June, 2012. It is pertinent
to mention that this Notification too was issued after direction of
this court considering plight and agonies of patients, while
deciding W.P.No.2265/2009 on 13.10.2010. After passage of 5
years we are again confronted with the same situation which was
faced in 2010 when this court was constrained to pass direction
that medical services be declared as essential services in terms
of West Pakistan Essential Services (Maintenance) Act, 1958. We
75
record our strong reservations and concern about week and
maladministration and non-adherence to the public services at
the altar of favouritism, nepotism and political pressures of the
Doctors which prevailed with the administration and the
provisions of West Pakistan Essential Services (Maintenance)
Act, 1958 were not resorted to. It is a matter of record that
Doctors have not only constituted their associations but are
found chanting slogans, marching processions on the roads,
leaving the patients in the emergency and operation theatres
crying for their survival. This inhumanly and indifferent attitude
exhibited by the educated people is unbecoming of such a noble
profession. We always hear a student at the teen age declaring
that he would become a Doctor to serve the humanity but when
he becomes a Doctor, he shows volte-face, oblivious of his earlier
commitment and demonstrate a conduct which may not be
described in proper words. However, public at large in general
and patients in particular, are crying of their oppressive and
unprofessional conduct. If no effective administrative measure
against such callous demonstration is taken, tomorrow
administration would be facing strikes, agitations and
processions of law enforcing agencies and other employees of
76
the Essential services by following the suit. Mere promulgation of
an Act is not a big achievement unless it is enforced and
implemented in letter and spirit, without fear or favour. It is a
common saying that “where there is a will, there is a way”. If
administration is sincere in welfare of the people, they are
required to implement laws in all fairness without any
discrimination or favour so that tales of woes and affliction of
masses, if not vanished, at least may be reduced, in all spheres of
life. We have also been informed during the course of arguments
and it is also a matter of common knowledge that Doctors are at
the pay-role of pharmaceutical companies. They prescribe recipe
of long list of medicines for the poor patients which even though
are not required. A disease which can be cured by a tablet of
Panadol or Disprin, is put on long list of medicines and patient
being at the mercy of Doctor is constrained to inhale all those
medicines which ultimately transpose him to actual patient by
side effects of bulk of medicines, proceeds of which goes to the
pockets of this racket. The companies are fleecing the public
with active connivance of Doctors. At the same time, Doctors
have also liaison with their assigned particular Laboratories from
77
whom they share the booty and also procure results of their own
choice.
44. For smooth and effective functioning and
rendering proper services to the public, smooth, responsive and
strict discipline of the staff is hallmark of an establishment. If a
department or establishment is faced with disarray and lack of
discipline in ranks and files, and have disrespect to the rule of
law, it is bound to fail in all respects. Discipline cannot be
maintained by loose administration, by pick and choose and
discriminatory application of the laws and regulations. It may not
be compromised at any cost. Government is required to address
this aspect of the issue as well and not only enact the law but
jealously implement the same, as well. Here we may better quote
Abraham Lincoln:
“It is as much the duty of government to render
prompt justice against itself, in favour of citizens,
as it is to administer the same between
individuals”.
44. In view of the above discussion, respondents are
directed to make suitable amendments and introduce effective
78
rules of discipline for their application and implementation, to
curb the menace of mismanagement, day to day protests and
processions and if there is any resistance from any quarter , they
may be proceeded against by taking disciplinary action under the
relevant laws and rules as well as Essential Services
(Maintenance) Act, 1958, because no one is indispensable.
45. For what has been discussed above, these
petitions are decided in the terms as follows:-
� The impugned Act is an enactment of competent
legislature, hence is declared as intra vires the
constitution and all the writ petitions to the extent of
challenging the validity and constitutionality of the
impugned Act-IV of 2015 are dismissed.
� Petitioner of W.P. No.420/2015 shall be adjusted in the
Institution at the post, equivalent to his qualification, if
already not assigned any post in the institution.
� W.P.No.2643/2015 is partially allowed to the extent that
suitable amendment in the impugned Act shall be made
for creation of post of Director of Para-Medical Staff.
79
� Respondents shall suitably amend the legislation in light
of observations made in the judgment and frame
corresponding rules to maintain strict discipline in the
institution, mainly focusing on provision of timely and
effective services to the public.
� The phrase “till further orders” tagged in Section 16(2) of
the Act 2015 is hereby struck down.
� The law shall also be suitably amended with framing of
corresponding rules to break the cartel of Doctors and
pharmaceutical companies.
� The respondents cannot enter into agreement with the
employees of the MTIs at the cost of public at large,
frustrating the very spirit of MTIs Reforms Act, 2015.
CHIEF JUSTICE
J U D G E
J U D G E
J U D G E
Announced on
23rd
Dec , 2015. J U D G E