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Petitioner: Dr. NADEEM RIZVI and 7 others VS Respondent: FEDERATION OF PAKISTAN and others
Court Name: Sindh High Court Judge(s): Ahmed Ali M. Shaikh, Muhammad Ali Mazhar, Munib Akhtar Title: Dr. NADEEM RIZVI and 7 others vs FEDERATION OF PAKISTAN and others Case No.: Constitutional Petition No,D-1692 of 2011 Date of Judgment:2016-07-04 Reported As: PLD 2017 Sindh 347 Result: Petition allowed
Judgment ORDER MUNIB AKHTAR, J.---By this judgment we intend disposing of the petitions listed, in para 48 below. The petitions raise issues centered on the 18th Amendment to the Constitution. Before we begin, it may be appropriate to give a word of explanation as to the rather extended period over which these petitions were heard. On 30.06.2011, a learned Division Bench of this Court referred the lead petition (C.P. D-1692/2011, around which the other petitions gradually accreted) to the Hon'ble Chief Justice for constitution of a larger Bench for hearing, if so deemed appropriate. A Full Bench was constituted, the composition of which changed over time on account of various exigencies, until the position crystallized in the members as noted above. As is well known, Full Benches in this Court (and, as we understand it, in other High Courts as well) do not ordinarily sit on a day to day basis on account of other judicial responsibilities of the member-Judges. The practice in this Court is that ordinarily Full (and other special) Benches sit on Mondays, and as will be appreciated this does tend to restrict the judicial time available for such matters. Furthermore, factors can intervene to prevent a hearing on the one day available, and so it proved. On many Mondays, one or the other of the learned counsel could not be available, and on other Mondays (regrettably all too many) judicial work got suspended for one reason or another. Summer vacations intervened and, on occasion, one or the other members of the Bench had sittings in a Circuit Court/Bench. All of these factors took their toll, temporally speaking. The cumulative effect was that the hearing proceeded in fits and starts, and the dates given above are only those on which some progress was actually made. However, we would like to place on record our appreciation of the efforts made by all the learned counsel who appeared (or perhaps it might be more appropriate to say, persevered) before us and brought the hearing, ultimately, to a conclusion.
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2. The central issue raised by these petitions is whether certain institutions that were, prior to the 18th Amendment, always (and exclusively) in the Federal domain could, in the post-Amendment scenario, be transferred from the Federation to the Province? It will be convenient to list the institutions at the outset. These are as follows:-- Institution Abbreviation used Related petitions Jinnah Post Graduate Medical CentreJPMC C.Ps. D-1692/2011; 2544/2011; 2860/2011; 3953/2012; 3095/2013; 3264/2013 National Institute of Cardiovascular DiseasesNICVD C.Ps. D-1692/2011; 2860/2011; 3953/2012 National Institute of Child HealthNICH C.P. D-1692/2011; 3953/2012 National Museum of Pakistan, KarachiNational Museum C.P. D-1387/2011 JPMC, NICVD, NICH and the National Museum are referred to as the "Institutions". We may note that the submissions by learned counsel focused on JPMC, NICVD and NICH, with the first Institution taking the lion's share of the time. Hardly any attention was given to the National Museum. 3. Mr. Anwar Mansoor Khan, learned counsel for the petitioners, submitted that the issues arising before the Court were as follows: (i) whether the subject of "health" was part of the Federal Legislative or Concurrent Legislative Lists? (The latter was of course omitted by the 18th Amendment.) (ii) Whether JPMC, NICVD and NICH came within the scope of entry No, 16 of Part I of the Federal List and/or entry Nos.11 and 12 of Part II thereof? (iii) Whether a notification dated 22.04.2011, issued by the Provincial Government was lawful and valid? And (iv) whether the executive authority over the three Institutions was not an "occupied field" of the Federal Government and therefore they could not be taken over by the Provincial Government? Learned counsel submitted that the petitioners whom he represented were all employees of the three Institutions and hence Federal Government civil servants. Referring to JPMC, learned counsel traced the history of this Institution and how it came to be set up. It was submitted that the roots of the Institution lay in pre-Partition days, going back to 1930, when the British had set up a Medical Corps Hospital in. Karachi. Reference was made to paras 5 and 6 of the lead petition (C.P. D- 1692/2011) where the details of the historical background and the present functioning of JPMC were given. As regards NICVD, learned counsel submitted that it was set up initially by a Trust Deed in 1976, which was dissolved and the institute made into a statutory body by means of the National Institute of Cardiovascular Diseases (Administration) Ordinance, 1979 (hereinafter "NICVD Ordinance"). The details of the functioning of NICVD were given in paras 7 to 10 of the lead petition. As regards NICH, learned counsel submitted that it was established initially in the pediatric ward in JPMC but was, shortly after it became functional, given the status of an institute. The details regarding this Institution were given in paras 11 to 13 of the lead petition. In support of the factual aspect of the case, i,e,, the manner in which these Institutions were structured and operated, learned counsel also made reference to the reply filed by the Provincial Government, which, according to him, corroborated what had been contended by the petitioners in their pleadings. 4. Learned counsel submitted that there was nothing in the 18th Amendment as devolved any of these Institutions to the Province, and thus their purported transfer from the Federation to the Province was wholly illegal. Indeed, as per learned counsel's submissions, it was unconstitutional since these Institutions were within the scope of entry No,16 of Part I and/or entry Nos. 11 or 12 of Part H of the Federal List. It was submitted that the subject matter of "health", in the general sense, had
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always vested exclusively in the Provinces and hence there was no need for, nor any question arose of, its "devolution". But, learned counsel submitted, the three Institutions did not fall within the general rubric; they were relatable to specific entries on the Federal List, and there was nothing in the 18th Amendment as "devolved" any, matter so relatable to the Provinces. Thus, the notifications issued and acts done in relation to the purported transfers were unconstitutional and of no legal effect. Three executive actions were in particular mentioned by learned counsel: (a) an office order of 30.06.2011 issued by the Federal Ministry of Health whereby "on transfer of [JPMC] to the Government of Sindh in pursuance of the Constitution (Eighteenth Amendment) Act, 2010", the officials of JPMC were transferred "on deputation basis" to the Provincial Government; (b) an office order of the same date whereby, on the same basis, the officials of JPMC (in relation to NICVD) were so transferred; and (c) a notification of 21.07.2011 issued by the Provincial Health Department whereby the officials so transferred were "allowed to join" the Provincial Government service with effect from 01.07.2011. 5. Referring to various Articles of the Constitution, and in particular, the three entries from the Federal List being relied upon, learned counsel submitted that it was well settled that the entries in the legislative lists had to be given the widest possible effect. The entries were fields of legislative power and had to be construed and applied in broad terms. Learned counsel submitted that the three Institutions clearly came within the scope of the entries being relied upon. They were relatable to matters that were, and remained, exclusively in the Federal domain. Hence, they could not be transferred to the Province. It was also submitted that the petitioners, serving in the three Institutions, could not be sent on deputation in the manner as undertaken by and between the Federation and the Province. It was prayed that the petitioners were entitled to the relief they were seeking. Mr. Yousuf Ali Sayeed and Dr. Tahir Rasheed, learned counsel appearing in some of the other petitions for the petitioners adopted the submissions made by Mr. Anwar Mansoor Khan. 6. The case for the Provincial Government was opened by Mr. Raza Rabbani, who led the case for the respondents. We may note that while Mr. Rabbani's submissions were in progress, he got elected to the office of Chairman, Senate. For understandable reasons he could not continue appearing on account of the nature and pressing demands of the high office to which he had been elevated and he conveyed his regrets to the Court accordingly. The mantle for the Province was taken up by Mr. Zeeshan Abdullah and we would like to place on record our appreciation of the manner in which he continued and concluded the case for the Provincial Government. Mr. Raza Rabbani submitted that the following questions required consideration: (i) whether being a hospital was the primary function of JPMC, NICVD and NICH? (ii) Whether JPMC (and the other two Institutions, which "derived" from it) were within the federal domain because "hospitals" and "public health" were with the Federation or because, at the relevant time, Karachi had been the federal/national capital? (iii) Whether the three Institutions could be regarded as coming within the scope of entry No, 16 of Part I of the Federal List simply because one or more of their functions, which were incidental and ancillary to the main function of being a hospital, could be said to come within the scope of the said entry? And (iv) whether the three Institutions, could be regarded as coming within the scope of entry No,11 or 12 of Part II of the Federal List? 7. Mr. Raza Rabbani gave the Court a detailed overview of the 18th Amendment and how it came to be enacted, and the Constitution amended in its terms. We appreciate the assistance provided by learned counsel in this regard, all the more valuable because Mr. Rabbini is widely acknowledged as one of the principal moving spirits behind the 18th Amendment. However, that history is not, with respect, strictly germane to the proper resolution of the issues before the Court and therefore (without intending any disrespect) we do not set out what was stated by Mr. Rabbani in this regard in any detail. What is of greater relevance is clause (9) of Article 270AA, which was referred to by Mr. Rabbani. Learned counsel submitted that in order meet' the constitutional mandate the
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Implementation Commission therein contemplated was duly constituted (and Mr. Rabbani was in fact appointed the Chairman). The Commission held 68 meetings. As a result, 70 Federal Ministries were devolved on the Provinces, in three phases, in order to give proper effect to the 18th Amendment. The Federal Government issued three notifications in this regard, dated 02.12.2010, 05.04.2011 and 29.06.2011. Referring to the last notification, learned counsel submitted that it devolved the Federal Ministry of Health to the Provinces and, as expressly set out in the notification itself, this led to the devolution of JPMC, NICVD and NICH to this Province. 8. After this general introduction, learned counsel turned to the specifics of his case. It was submitted, with reference to question (i) noted above, that "health" and "hospitals" in general were always the exclusive domain of the Provinces. Whenever any specific matter was to involve the Federation, it was expressly so provided in the legislative lists. As illustrations, learned counsel referred to entry No, 19 of Part I of the Federal List, which specifically refers to "seamen's and marine hospitals and hospitals connected with port quarantine" and entry No, 23 of the erstwhile Concurrent List, which had referred to "places for the reception or treatment of the mentally ill and mentally retarded". However, it was emphasized, hospitals in general were neither part of the Federal List nor had they been on the Concurrent List. They were thus exclusively in the Provincial domain. Learned counsel submitted, by making detailed reference to the factual aspects of how JPMC was structured and functioned, that this Institution was nothing but a general hospital. If at all any research was conducted there (which was not admitted) that was entirely incidental and ancillary. Putting the matter differently, it was contended that the pith and substance of JPMC's functioning and operations was not, and never had been, research as would bring it within the scope of entry No, 16 of Part I of the Federal List. Its primary function had always been, and remained, that of a general hospital. 9. Learned counsel turned to question (ii) noted above, and this in many ways constituted the heart of his case. That case, as presented by learned counsel, can be summarized as follows. JPMC had been under federal control and dominion not because it was a research institute or because the Federation had legislative (and hence executive) competence over "health" and "hospitals" in general, but simply because Karachi had been the federal capital after Partition, when the constituent elements/parts of JPMC were set up, and for several years thereafter. In relation to the federal capital territory (a position that remains true for the Islamabad Capital Territory under the present Constitution) the Federation always had plenary powers, i,e,, it could legislate in respect of matters exclusive to the Federation and concurrent, as well as those otherwise exclusive to the Provinces within their respective territories. (The Provinces of course could not legislate in respect of the federal capital territory.) It was for this reason (and this reason alone) that the Federation had been able to set up the constituent units and parts of JPMC and exercise control over them. However, with the passage of time Karachi ceased to be the federal capital and became part of the erstwhile Province of West Pakistan and subsequently of the Province of Sindh. When this came about, the Federation ceased to have any competence or power over JPMC and it ought then to have been transferred to the Province. This however, never came about, and Mr. Rabbani described this state of affairs as an "historical wrong" to the Province. JPMC continued to remain under Federal control and dominion (improperly on the legal plane, according to learned counsel) until the 18th Amendment presented a mandate and opportunity to right the "historical wrong". Thus, Mr. Rabbani's case was that the transfer of JPMC (and its "derivative" institutes, NICVD and NICH) was no more than, finally, due and proper factual recognition and regularization of a situation that had, in law, come about decades ago. 10. In Order to establish his case, learned counsel referred in great detail to the various legal and constitutional instruments, Orders and Acts which had affected Karachi's position, first as the federal capital and then ultimately as part of the provincial setup. The legal and administrative
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changes required -to give effect to the changing (constitutional) circumstances and position of the city were stated and the salient provisions of each instrument/ enactment highlighted. Since this aspect of the respondents' case is dealt with in a later section of this judgment, we do not refer to the material relied upon in detail here. It suffices (ir order to give a. flavor of the submissions) to note that lamed counsel started with the 1948 Governor-General's Order whereby Karachi was established as the federal capital, then took us to the Act of 1955 whereby the erstwhile Province of West Pakistan was created and then to a series of Presidential Orders of the 1960's whereby the position of Karachi shifted from being the federal capital to becoming part of the provincial setup. Reference was also made to the subsequent constitutional dispensation (the 1962 Constitution) and the Order of 1970 whereby the Province of West Pakistan was splintered into its constituent elements, the four Provinces that continue to exist today. According to learned counsel the crucial date was 01.07.1961. This was the date on which the West Pakistan Administration (Merger of the Federal Territory of Karachi) Order 1961 (President's Order 9 of 1961) came into effect. By means of this Order the (hitherto) federal territory of Karachi was merged into the Province of West Pakistan. Learned counsel referred in detail to the various articles of this Order and submitted that when this legal instrument took effect, Karachi ceased to be within the federal domain insofar as legislative (and hence executive) competence relating to exclusively provincial matters was concerned. Thus, from 01.07.1961 onwards, the constituent elements/parts of JPMC ought to have fallen in the exclusive provincial domain (being then the. Province of West Pakistan and latterly, and ultimately, the Province of Sindh). This date was the fulcrum on which this part of the case put forward by learned counsel turned. According to him, all that the devolution and transfer of JPMC pursuant to the 18th Amendment did was to belatedly recognize what had transpired years, indeed decades, ago on and with effect from 01.07.1961. 11. With regard to question (iii) (see para 6 herein above) learned counsel submitted that "hospitals" in general admittedly did not come within the scope of entry No, 16 of Part I of the Federal List. It was submitted that the entry (as presently relevant) related to research. Thus, the relevant institute had to be primarily and principally engaged in research to come within the scope of the entry. If research was only an incidental or ancillary activity, then the institute did not qualify. That was precisely the situation at hand. None of the three Institutions was primarily and principally engaged in research. Such activity was at most ancillary or incidental, an offshoot of the principal activity, which was simply that of a hospital. On 30.03.2015, Mr. Zeeshan Abdullah took over from Mr. Raza Rabbani for the reason already stated above. Continuing the Province's case, learned counsel, in relation to question (iii) traced the constitutional history of the entries being relied upon by the petitioners. Learned counsel submitted that since in pith and substance the three Institutions (and in particular JPMC) were nothing but hospitals, their continued control by the Federation would have been unconstitutional. The three Institutions were not research centers. Reference was made in particular to the JPMC prospectus. It was submitted that the activities of JPMC and its derivative institutes was something that was, and could be, done by hospitals in general. Thus, those activities could not be characterized as "research" especially for the purposes or within the meaning of entry No, 16. Learned counsel also referred to lists of research institutes in Pakistan, including that maintained by the Higher Education Commission. It was contended that JPMC did not appear on any such list. Learned counsel submitted further that entry Nos. 11 and 12 of Part II of the Federal List also had no application to the three Institutions. 12. With reference to clause (8) of Article 270AA, learned counsel candidly submitted that the transfer of the three Institutions did not, strictly speaking, come within the scope of devolution. However, learned counsel submitted, that was not the end of it. Reference was made to the terms of reference of the Implementation Commission that had been set up under Article 270AA(9), and to which reference has been made above. Learned counsel submitted that the terms of reference
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were settled by the Federal Government itself. Reliance was also placed on the final report issued by the Implementation Commission. The Commission only made recommendations, which were accepted by the Federal Cabinet. The transfer of JPMC and the other Institutions took place in these terms. The recommendations regarding the third phase (in terms of which the three Institutions were transferred) were approved by the Federal Cabinet on 28.06.2011, and the relevant notification, (referred to above) was issued on 29.06.2011. It was submitted that once effect had been given to the recommendations of the Commission, and all the three phases notified, even the Rules of Business of the Federal Government were amended to reflect the new ground realities. It was prayed that the petitions be dismissed. 13. Mr. Ali Almani, who also appeared for the Provincial Government, adopted the submissions made by Mr. Raza Rabbani and Mr. Zeeshan Abdullah and made certain additional submissions. Referring to entry No, 16, learned counsel submitted that even assuming (without conceding) that the three Institutions came within the scope of the entry, the following questions had to be addressed: (a) could the Provinces set up similar institutes? (b) Could institutes set up by the Federation under entry No, 16 be transferred to the Provinces? And (c) had there been a valid transfer in the facts and circumstances of the present case? As regards the first question learned counsel submitted that it clearly had to be answered in the affirmative. As regards the second question, learned counsel relied on Articles 97 and 173 of the Constitution. It was submitted that the Institutions had to be considered separately from the employees and officials thereof. Clause (1) of Article 173 did not, it was contended, require a specific law being enacted. It conferred executive authority for the purposes therein specified, i,e,, grant, sale disposition etc. of any property vesting (as here relevant) in the Federation. It was submitted that JPMC and NICH were transferred validly to the Province in terms of this provision. Learned counsel also referred to certain case law in this regard. As regards the employees, learned counsel submitted that their cases had to be considered separately from the Institutions and they had been validly deputed from Federal service to the Province. As regards NICVD, which was regulated by the NICVD Ordinance, learned counsel relied on Article 146(1) read with Section 8 of the General Clauses Act to submit that there had been a valid transfer in respect of this Institution as well. Reliance was also placed on certain case law. 14. Mr. Haq Nawaz Talpur, who appeared on behalf of the Jinnah Sindh Medical University, set up under an Act of the Sindh Assembly (a respondent in C.P. D-3953/2012 and intervener in the lead petition) also supported the transfer of the three Institutions. Learned counsel adopted what had been said by other counsel and made certain additional submissions. It was submitted that entry No, 16 applied only to those Federal institutes where the primary and principal activity was of research. Referring to Section 172 of the Government of India Act, 1935 (equivalent to Article 173 of the present Constitution), learned counsel submitted that the former had referred to not only location but also use or purpose of the relevant property. If either was within the Federal competence, it fell within the Federal domain. Referring to Article 131 of the 1956 Constitution, learned counsel submitted that that referred only to use of the property concerned. If the use was with the Province, then the property vested in the Province. The same approach was taken in the 1962 Constitution (Article 232) and the present Constitution (Article 173). It was submitted that on this basis, JPMC vested in the Province. It was contended that none of the three Institutions had been Federal institutes in the first place, nor was research in any meaningful sense carried out thereat. JPMC did not come within the scope of entry No, 16. As regards NICVD, learned counsel referred to Article 270A(3) (the Article inserted in the aftermath of the General Zia-ul-Haq Martial Law to validate laws made in that era) and submitted that the "appropriate legislature" in respect of this Institution was the provincial legislature. Hence, NICVD also came within the provincial domain, and all three Institutions had been validly transferred to the Province. As regards the
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employees and official thereof, they had been given an opportunity to join the Provincial service, and in regard reference were made to the final report of the Implementation Commission. The learned Additional Attorney General supported the transfer and adopted the submissions made by learned counsel for the Provincial Government. 15. Mr. Anwar Mansoor Khan, learned counsel for the petitioners, exercise his right of reply. Learned counsel submitted that the devolution of the three Institutions…
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