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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

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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