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Petitioner: ALL PAKISTAN PARAMEDICAL STAFF FEDERATION UNIT, SZPMI, LAHORE VS Respondent: ALL JUDGMENT
Court Name: Lahore High Court Judge(s): Muhammad Farrukh Irfan Khan Title:ALL PAKISTAN PARAMEDICAL STAFF FEDERATION UNIT, SZPMI, LAHORE vs ALL
JUDGMENT
Reported As: PLD 2017 Lahore 640 Result: Order accordingly Judgment JUDGMENT MUHAMMAD FARRUKH IRFAN KHAN, J.---In the beginning I feel it appropriate to explain that hearing of various matters stated in para 2 hereof was completed on 16.02.2017 and the judgment reserved. However, I was posted at Rawalpindi Bench of this Court to perform judicial responsibilities for a period of six weeks w.e.f 20.02.2017 to 08.04.2017. Being the Senior Judge a lot of my time was taken up in administrative matters besides a very long list of 50 to 60 court cases, mostly comprising of old vintage being regular First Appeals, Civil Revisions and Regular Second Appeals etc. which meant that I could not spend the requisite time required for writing this judgment. Again I was required to work at Bahawalpur Bench for two weeks w.e.f. 29.05.2017 to 10.06.2017. All these factors contributed in causing a bit of delay in releasing the judgment. However, I would like to express a word of appreciation for the valuable assistance rendered by the learned counsel for the parties which enabled me to reach the decision below. 2. This judgment will deal with and decide W.P. No.6104-12, W.P. No.25701-16, W.P. No.8078-14, W.P. No.22543-15, W.P. No.21520-15, W.P. No.25444-15, W.P. No.32852-15 and W.P. No.31505-16 as they all are connected and dependent on each other. The whole controversy in these matters revolves around the devolution/transfer of Sheikh Zayed Postgraduate Medical Institute to Government of Punjab vide impugned OFFICE MEMORANDUM No.4-3/2012-MM.I dated 14.02.2012 of the Cabinet Division on the orders of the Prime Minister of Pakistan to transfer administrative control thereof along with its components, assets, liabilities, staff etc. from Government of Pakistan (Cabinet Division) to Government of Punjab and subsequently various orders, directions, notifications issued thereunder, appointments made and actions taken in this behalf by the Government of Punjab,
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Board of Trustees /management set up by the latter. 3. The chronological trial of events leading to the controversy in hand is that vide deed dated 06.11.1973 a Trust known as Zulfiqar Ali Bhutto Trust (hereinafter referred to as the Trust) was constituted by H.E. Sheikh Zayed Bin Sultan Al-Nahiyan, the then ruler of Abu Dhabi with the object: "(a) to establish, maintain and run a hospital and /or a medical college in Larkana; (b) to promote, medical, education, religious, economic, Social and cultural well-being of the people of Pakistan and for such purpose/purposes to undertake or establish a project or projects in any part of Pakistan." Initially the Board of Trustees (BOT) comprising of Begum Nusrat Bhutto, Mr. Yar Muhammad Bhutto and Mr. Agha Hasan Abedi appointed in the Trust managed the affairs of the Trust but later on through Martial Law Order No.22 dated 15.10.1977 the activities of the Trust and its Board of Directors of connected institutions and the control of the Trust was transferred from Board of Trustees to the Chief Martial Law Administrator. Thereafter through President's Order No.4 dated 26.03.1978 the Trust was renamed as Sheikh Zayed Bin Sultan Alnahyan Trust and all the powers and functions were assigned to Board of Trustees composed of members who were to be appointed by the President of Pakistan from time to time. Through Ministry of Health and Population (Health Division) SRO No.580(I)78 dated 21.05.1978 whereby following persons were appointed as the Board of Trustees:- 1. Secretary General-in-Chief Chairman 2. Attorney General for Pakistan Member 3. Auditor-General of Pakistan Member 4. Secretary, Ministry of Health and Population (Health Division)Member 5. Secretary, Ministry of Housing and Works Member Through S.R.O. No.870(I)/84 dated 07.1 0.1984 *ssued by Ministry of Health, Special Education and Social Welfare (Health Division), the Board of Trustees of Sheikh Zaed Bin Sultan Al-Nahyan Trust was reconstituted to appoint the following persons. 1. Ministry for Finance and Coordination Chairman 2. Attorney General for Pakistan Member 3. Auditor-General of Pakistan Member 4. Representative of His Highness the Ruler of Abu DhabiMember 5. Secretary, Ministry of Health, Special Education and Social WelfareMember 6. Secretary, Ministry of Housing and Works Member 7. Chairman, Pakistan Medical Research Council Member The Government of Pakistan Cabinet Secretariat (Cabinet Division) vide Notification No.F.5/2194- SZH(L) VOL-V dated 23.08.2001 made composition of the Board of Trustees Shaikh Zayed Bin Sultan Al-Nahyan Trust as under:- 1. Minister for Finance Chairman 2.Mr. Mumtaz Hasan, Principal, King Edward Medical College, LahoreVice-Chairman 3.H.E. Dr. Ezzeddin Ibrahim Shah Mustafa, Cultural Advisor to H.H. the President of U.A.E., Presidential Court, Abu DhabiMember 4.H.E. Mr. Sultan Al-Rumaithy, Advisor, Presidential Court, Abu DhabiMember
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5.H.E. Mr. Muhammad Atiq Al-Qamzi, Ambassador of U.A.E. in PakistanMember 6.Mr. Muhammad Munk Chaudhry, Advisor Embassy of U.A.E.Member 7.Cabinet Secretary. Member/ Secretary 8.Education Secretary Member 9.Health Secretary Member 10.Provincial Chief Secretaries by special invitation for projects in their provinces.Member 4. In the year 1986, the Federal. Government of Pakistan through its Health Division's Resolution dated 29th of May 1986 established Sheikh Zayed Postgraduate Medical Institute (SZPMI). Initially the administrative control of the Institute remained with the Ministry of Health, Special Education and Social Welfare Government of Pakistan, Islamabad. Subsequently, to ensure autonomous status of the SZPMI, the Government vide Notification No.F8-1/94-Est.1 dated 13.02.1994 transferred its control from the Ministry of Health to the Cabinet Division and amendment in schedule II, Rule 3(3) of the Rules of the Business of the Federal Government vide serial No.17 under the head of Cabinet Division was made accordingly. After the I8th Amendment to the Constitution the administrative control of SZPMI along with its components, all assets, liabilities, staff etc. was transferred to Government of Punjab vide Cabinet Division's Notification No.4-3/2012.Min.1 dated 14.02.2012 which is basically under challenge in the litigation in hand and consequently notifications, appointments made and actions done thereafter by the management of the Punjab Government have been sought to be declared as illegal, without lawful authority and ultra vires of the constitution. Initially, the Institute consisted of two components i.e. (i). Federal Postgraduate Medical Institute (ii). National Health Research Complex. Later on, with the passage of time, tangible developments were carried out in the Institute under the auspices of the Federal Government by the addition of (1) Shaikha Fatima Institute of Nursing and Health Sciences, (2) National Institute of Kidney Diseases (WWF-Block), (3) Shaikh Khalifa Bin Zayed Al-Nahyan Medical College and (4) Liver Transplant Centre. Even the University of Health Sciences was established within the premises of SZPGMI in the main building of Shaikha Fatima Institute of Nursing and Health Sciences over 5 acres of piece of land. 5.Learned counsel for the petitioners contend that SZPMI, Lahore was established by the Federal Government and its management and control was run by the Board of Governors under the resolution dated 29.05.1986 as such the Board of Governors is the only decision making body of the said institute: that the Board of Governors was constituted by the Federal Government from time to time through executive orders and lastly it was constituted on 30.04.2009; that under the garb of 18th Amendment transfer of administrative control of SZPMI, Lahore along with its components, assets, liabilities and staff from the Government of Pakistan to the Government of Punjab through Notification dated 14.02.2012 is illegal, unlawful, mala fide, without lawful authority and violative of fundamental rights of the petitioners as guaranteed by Articles Nos.9, 18 and 25 of the Constitution of Islamic Republic of Pakistan, 1973; that at the time of devolution SZPMI Lahore was under the administrative control of Cabinet Division and not under the Federal Ministry of Health as such it could not be devolved; that on account of its autonomous status, unique and special character it did not fall under the domain of 18th Amendment; that according to Fourth Schedule Article 70(4) entries Nos. 15 and 16 of Part-I and entries Nos.11 and 12 of Part-II of the federal legislative list of the Constitution, the institutes for research, professional training, medical profession etc. being the exclusive subjects of Federal Government could not be handed over to the Provincial Government;
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that even according to the provisions of sections 8'of Article 270 AA of the Constitution the process of devolution was to be completed by the thirtieth day of June, two thousand and eleven which was cut off date given in the Constitution for devolution of all the departments falling in the concurrent legislative list and the Federal Government as per sub-clause 9 of the Article ibid was bound to carry out this process through Implementation Commission under Eighteenth Amendment Act, 2010. As SZPM 1, Lahore was not working under the Health Ministry since 1994 and was under the direct control of Cabinet Division, it was treated exceptionally and after the cut off date provided in the Constitution, it could not be devolved by the Prime Minister who otherwise was not competent to do so alone bypassing the Cabinet; that SZPMI comprised of different components, and one of them namely National Clinical Research Complex of the Pakistan Medical Research Council has been retained in the Federal Government which is also indicative of mala fide and colorful exercise of powers by the Prime Minister. 6.It was next argued that Shaikh Zayed Post-medical Institute, Lahore was not established under any Trust; that there was no mentioning of any Trust in the entire resolution under which the SZPMI, Lahore was established, moreso, if SZPMI had been created under the auspices of the Trust as alleged by the respondents, there should have been a reference to the definition of the Trust and the Trustees and the resolution dated 29th of May, 1986 should not have been issued by the Government of Pakistan but by the Trust; that the Trust Deed of 1973, (only copy of which is available on record) was registered at Karachi and manifestly it related to establishment of a hospital and a medical college at Larkana, and it had nothing to do with SZPMI, Lahore which was set up independently by the Federal Government of Pakistan; that none of the aims and objects of the Trust indicate that any research institute is to be established at Lahore and any other place; that it also stands established on record that construction of SZPMI started and completed by the finances provided by the Ministry of Planning Commission and Ministry of Health from their own budget and no funds were provided by the Trust; that right from the day first, the control of this Institute was with the Federal Government and not the Board of the Trustees of the Trust; that its employees were governed by the Civil Servant Act, 1973 and their posts are pensionable and appointments always notified in the Gazette of Pakistan which clearly reflects that it is a Federal Government Institute; that just to legitimize and justify the act of illegal transfer by the Prime Minister on the basis of devolution the respondents are trying to stand behind the alleged Trust; that the Federal Service Tribunal in Ghazala Perveen's case (1994 PLC CS 684) has already declared that SZPMI is a Federal Government Department and not a Trust. The said judgment was not assailed by the respondents and still holds the field, therefore, this question cannot be raised again at this belated stage. On the basis of above submissions learned counsel prayed that the acts and actions of the respondents regarding transfer of SZPMI Lahore from the Federal Government to the Provincial Government under the garb of devolution of matters/subjects given in the concurrent legislative list, formation of Board of Trustees/ Board of Governors, appointment of Head of the Institution/ chairman and subsequent appointments made by him be declared illegal, unlawful, ultra vires, coram non judice and of no legal effect. Lastly while referring to case cited as "Sheikh Zayed Hospital and Post Graduate Medical Institute v. Dr. Muhammad Saeed" (2010 PLC (CS) 967) learned counsel agitated that appointments have been made by the respondents against different posts/vacancies through pick and choose and in sheer disregard to the guidelines provided in the said judgment. 7. Learned counsel appearing for the respondents have vehemently opposed the contentions made on behalf of the petitioners. It is argued that the above referred Trust dated 06.11.1973 was not only meant for establishing a hospital and/or a medical college at Larkana, Province of Sindh but by virtue of sub-clause (b) of clause 4 the scope of its activities was extendable to the whole of Pakistan. It was specifically provided that the object of the Trust was to promote medical,
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education, religious, economic, social and cultural well being of the people of Pakistan and for such purpose/purposes to undertake or establish a project or projects in any part of Pakistan. It is thus clear that this Trust was not restricted to a particular city, province, area or territory. Moreover, by rule of implied interpretation if the intention behind the first institution was to create a Trust then it can be inferred that intention behind the second and the third institute/hospital should have been the same. Although SZPMI, Lahore was established as an autonomous institute, yet the funds were provided by the Trust. It is, therefore, not correct that SZPMT, Lahore has nothing to do with the aforesaid Trust. 8. Learned counsel for the respondents as well as the learned law officer next argued that after 18th Amendment to the Constitution the concurrent legislative list was abolished as such the devolution of SZPMI is justified under entries No.10 (Trust and Trustees) and entry No.38 (Curriculum, syllabus, planning, policy, centres of excellence and standards of education of the concurrent legislative list). It was forcefully contended that mere violation of clauses (8) and (9) of Article 270-AA would not render the act of devolution invalid. Article 254 of the Constitution clearly spells out that any act or thing which is required to be done within a particular period and if it is not done within that period, the doing of the act or thing shall not be invalid or otherwise ineffective by reasons only that it was not done within that period. Secondly nowhere in the Constitution it is commanded that only the Implementation Commission, as constituted under sub-clause (9) of Article 270-AA can sanction the devolution and no devolution can be undertaken otherwise. The Implementation Commission was established to facilitate the devolution process and not to determine what was devolved and what was not. Moreover, Article 270-AA is a transitional provision which cannot be interpreted to defeat the scope and intent of the abolishment of concurrent legislative list from the Constitution. Learned counsel further contended that even otherwise SZPMI was an autonomous body under the control of the Cabinet Division and the Prime Minister, under proviso to rule 3 read with sub-rule (8) of Rule 5 and Serial No.1 of Schedule I of the Rules of Business, 1973 competently transferred the administrative control of this Institute to Government of Punjab; that the aspect of devolution/ transfer of SZPM1 to Government of Punjab has already been upheld by this Court in "Salmon Kazmi v. Secretary of Cabinet Division" (PLD 2014 Lahore 451), which still holds the field. In 'respect of appointments it was submitted that the guidelines given in the 2010 judgment supra were followed in letter and spirit but within the post devolution scenario. The impugned appointments were made strictly in accordance with rules, regulations and on merit by the Competent Authority. The writ petitioners want to undo the workings of the Board of Governors and to stop it from performing administrative functions for their personal gains and benefits. Learned counsel prayed for dismissal of the writ petitions. 9. I have heard detailed arguments of learned counsel for the parties and gone through the available record with their able assistance. 10. The first and foremost question for determination, by this Court is whether Shaikh Zayed Hospital and Postgraduate Medical Institute, Lahore have been created under the Trust and can thus function under the same. In order to decide this bone of contention first of all we have to go by the Resolution whereby the Institute was made operational after completion of the building by Ministry of Health, Special Education and Social Welfare (Health Division), Islamabad. This Resolution is dated 29th of May, 1986 which is reproduced as under:-. "MINISTRY OF HEALTH, SPECIAL EDUCATION AND SOCIAL WELFARE (Health Division) RESOLUTION Islamabad, the 29th May, 1986
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Whereas it is expedient to establish the Sheikh Zayed Postgraduate Medical Institute and to give autonomous character to facilitate its unhindered and efficient functioning. 1. Definitions.---In this Resolution, unless there is anything repugnant in the subject or context: (a) "Board" means the Board of Governors of the Institute referred to in paragraph 5; (b)"Chairman" means the Chief Executive of the Institute; (c) "Institute" means the Federal Postgraduate Medical Institute, Lahore. And includes; (i)the Sheikh Sayed Hospital, Lahore and (ii)the National Clinical Research Complex of the Pakistan Medical Research Council. (d)"Executive Committee" means the Executive Committee referred to in paragraph 7; (e)"Administrator" means the Executive Director of the Institute; (f) "prescribed" means prescribed by rules or regulations; (g)"President" means the President of the Board: (h)"regulations" means regulations made under this Resolution; and (i) "rules" means rules made under this Resolution; 2. Objectives.---The Institute shall (a) manage the administration and development of the Institute, Federal Postgraduate Medical Institute and the National Clinical Research Complex; (b) provide treatment facilities in the Sheikh Zayed Hospital of an internationally accepted high standard; (c) develop training facilities for postgraduate medical qualifications of the University of the Punjab and the College of Physicians and Surgeons, Pakistan, and any other examining body after approval of the Board; (d) Educate and train medical men and women to become leaders in the medical research, education and health delivery system; (e) Develop a system to impart continuing medical health education and training; (f) The Pakistan Medical Research Council of the Ministry of Science and Technology will develop in the Institute the National Clinical Research Complex which would arrange clinical research studies on national health problems and provide research support at primary and higher levels, and co- ordinate with National Institute of Health, Islamabad, other research centres of the Pakistan Medical Research Council, Universities and other national and international research organizations; (g) Develop as a centre for dissemination of knowledge of medical sciences and establish liaison with international centres for medical research and education; and (h) Perform such other function as may be assigned to it by the Government for the purposes of this Resolution. 3. Directives from the Federal Government.--The Federal Government may, from time to time, issue to the Institute such directives and instructions as it may consider necessary for carrying out the purposes of this Resolution and the Institute shall follow and carry out such directive and instructions. 4. Management.---The Institute shall perform its functions under this Resolution through its :- (a) Board; (b) Executive Committee; and (c) Chairman. 5. Board.---(l) The overall control, direction and superintendence of the affairs of the Institute shall vest in a Board of Governors which may exercise all powers, perform all functions and do all acts and things which may be exercised, performed and done by the Institute. (2) In particular and without prejudice to the generality of the powers conferred by sub-paragraph (1) the Board shall:- (i) approve overall plans, policies and programmes of the Institute in routine to the approved
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policy of the Federal Government; (ii) examine and approve teaching and research programmes of the Institute; (iii) examine and approve the annual report and evaluation report of the Institute for submission to the Federal Government; and (iv) approve the annual development and non-development budget of the Institute. 6. Composition of the Board.---(1) The President of Pakistan shall be the patron-in-Chief of the Institute; (2) The Board shall consist of:- (a) Federal Minister for Health, Special Education and Social Welfare.President (b) Secretary, Ministry of Health, Special Education and Social Welfare.Vice President (c) Auditor-General of Pakistan. Member (d) One member of the National Assembly to be nominated by the Federal Govt.Member (e)Secretary, Federal Ministry of Science and Technology.Member (t) Secretary, Ministry of Finance. Member (g) Vice-Chancellors, the University of Punjab.Member (h) Director-General, Health, Health Division, Islamabad.Member (i) Chairman; Pakistan Medical and Research Council.Member (j) Secretary, Health, Government of the Punjab.Member (k) Elected Mayor of Lahore Municipal Corporation.Member (l) President of College of Physicians and Surgeons of Pakistan.Member (m) Chairman Member/Secretary 7. Executive Committee.---( I) There shall be an Executive Committee which shall consist of the following members, namely:- (a)the Chairman (b)three members of the Board to be nominated by the Board (2) Subject to the provisions of this Resolution, the rules and regulations and the general or special directions of the Board, the Executive Committee shall be the Principal administrative body of the Institute and shall:- (a)be responsible for the management and administration of all affairs of the Institute and control of its funds within the overall policy and guide-lines of the Board; (b)undertake regular review and evaluation of the performance of teaching, research and development projects and programmes of the Institute and make a six monthly report to the Board; (c)prepare and submit the annual development and non-development budget of the Institute for approval of the Board; and prepare draft regulations and rules for approval of the Board. 8. Chairman.---(1 ) The Chairman, who shall be an eminent person of scientific and medical
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repute, shall be the Chief Executive of the Institute and shall be appointed by the Federal Government for a term of three years extendable a further period not exceeding three years at a time on such terms and conditions as may be determined by the Federal Government: Provided that the Federal Government may, at any time, terminate the appointment of the Chairman without assigning any reason. (2)The Chairman shall work under the general policy guidelines of the Board and have such powers, functions and duties as may be conferred or imposed on him by or under this Resolution. (3)The Chairman may, from time to time, for the purpose of ensuring efficient functioning of the Institute and to facilitate its day to day functions or other officers of the Institute all or any of his functions, powers and duties, subject to such conditions, if any as he may deem fit. 9. Meetings.---(1) The meetings of the Board shall ordinarily be held at least once every year and shall be presided over by its president or in his absence, by the Vice-President. (2)The meetings of the Executive Committee shall be held at least thrice a year and shall be presided over by the Chairman. (3)Unless otherwise prescribed, the number of members whose presence shall be necessary to constitute a quorum for a meeting of the Board shall be one-third of the total members and for a meeting of the Executive Committee one half of the total members of the Committee. (4)All questions at a meeting of the Board and the Executive Committee shall be decided by majority of votes and, in case of equality of votes, the person presiding shall have a second or casting vote. 10. Delegation of Powers.---The Board may, by general or special order in…
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