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Petitioner: Dr. IFTIKHAR AHMED, SENIOR MEDICAL OFFICER, ABBOTTABAD VS Respondent: GOVERNMENT OF KHYBER PAKHTUNKHWAHonorable Justice Nisar Hussain KhanMushtaq Ali Tahirkhaili,Abdul Latif Yousafzai
2016 P L C (C.S.) 993
[Peshawar High Court (Abbottabad Bench)]
Before Mazhar Alam Khan Miankhel, C.J., Nisar Hussain Khan, Mrs. Irshad Qaiser, Syed Afsar Shah and Muhammad Younis Thaheem, JJ
Dr. IFTIKHAR AHMED, SENIOR MEDICAL OFFICER, ABBOTTABAD
Versus
GOVERNMENT OF KHYBER PAKHTUNKHWA through Chief Secretary Civil Secretariat, Peshawar and 4 others
Writ Petition No.420 of 2015, decided on 23rd December, 2015.
(a) Khyber Pakhtunkhwa Medical Teaching Institutions Reforms Act (IV of 2015)---
----Preamble---Constitution of Pakistan, Arts. 137, 141, 148, 154, Fourth Schedule, Part II, Entries Nos. 11 & 12---Constitution (Eighteenth Amendment) Act (X of 2010), Preamble---Federal and Provincial laws---Obligations of Provinces and Federation---Functions and rules of procedure---Petitioners challenged the constitutionality of Khyber Pakhtunkhwa Medical Teaching Institutions Reforms Act, 2015 on the ground that the Provincial Legislature was not competent to make the Act---Validity---Object of Constitution (Eighteenth Amendment) Act, 2010 was to vest the Provinces with maximum autonomy, both in legislative and administrative spheres---Authority of the Federal Government in the matters mentioned in the Concurrent List had been taken away with certain safeguards supplied in Arts. 137 & 148 (1) of the Constitution in the administrative and executive fields respectively---Article 154(1) of the Constitution related to the formulation of policies relating to Entries Nos.11 and 12, Part-II of Fourth Sched. of the Constitution, which explicitly spoke of legal, medical and other professions and standards in the institutions for higher education and research, scientific and technical institution---Federal Government could formulate policies and regulations---However, Art. 154 of the Constitution with reference to the Entries Nos.11 and 12 could not be blown out of proportion to an extent which might take away the legislative and executive powers of the Province enshrined in Arts.137 & 141 of the Constitution---Title and Preamble of Khyber Pakhtunkhwa Medical Teaching Institutions Reforms Act, 2015 explicitly referred to the Medical Institutions and Health care services, which had remained subject of the Province, being its sole domain---Medical Institutions and health care services had never been the subject of the Federal Government, even prior to Constitution (Eighteenth Amendment) Act, 2010---Objection was overruled. A, B, C, D, E & F
(b) Khyber Pakhtunkhwa Medical Teaching Institutions Reforms Act (IV of 2015)---
----Preamble----Khyber Pakhtunkhwa Medical and Health Institutions and Regulation of Health-Care Services Ordinance (XLVII of 2002) [since repealed], Preamble---'Occupied Field' doctrine of---'Repugnancy', doctrine of---Paramountcy', doctrine of---Scope and applicability---Conflicting, supplemental, duplicative provisions, existence of---Effect---Petitioners contended that as field (medical institutions and health care services) was already occupied by Khyber Pakhtunkhwa Medical and Health Institutions and Regulation of Health-Care Services Ordinance, 2002 [Since repealed], hence, the impugned Act was liable to be struck down---Validity---Held, no repugnancy or occupied field arose in the present case---Principles.
Such objection was to be raised only when Provincial Legislature enacted statute on the subject which was already occupied by a Federal Act. Doctrine of 'Occupied Field' was based on the principle, which was to avoid any conflict of the Central and Provincial laws, and when such conflict emerged between the two laws, the same attracted the principle of repugnancy. In case both Legislatures, Provincial and Federal, were competent to concurrently legislate on the same subject and obedience to the provincial legislation would not be achieved without disobeying the Federal law, then Provincial law to that extent would be repugnant and thus void. G & K
"Doctrine of paramountcy" provided that where there was conflict between the validity of Provincial and Federal laws, the Federal law would prevail, and the Provincial law would yield to the extent which contradicted with the Federal law. In case both Provincial and Federal laws were although overlapping but field of their operation was clear and the same did not conflict inter se in their operational fields, then neither of the laws might be ultra vires; however, if the field was not clear, then the Federal law was to prevail. In case Provincial statute contained conflicting provisions along with supplemental and duplicative provisions to the Federal statute, the conflicting provisions might be severed and the supplemental might be operative when the same did not conflict with the Federal law, and to the extent the same would be valid and operate concurrently with the Federal law. G
Provincial Secretary of P.E.I. v. Egan and A.G., of P.E.I. (1941), S.C.R. 396; Grand Trunk Railway Company of Canada v. A.G. of Canada (1907) A.C.65 by Privy Council; Clyde Engineering Company Limited v. Cowburn and Metters Limited v. Pickard and Lever Brother Limited v. Pickard (1926)-High Court of Australia-466 rel.
Principles of "occupied field", "repugnancy" and "doctrine of paramountcy" were applied when two laws were concurrently been enacted on the same subject-matter by two competent Legislature, Federal and Provincial. Federal Legislature had no concern with the health institutions of the Province, which was sole domain of the latter; for which reason, no Federal law existed in the field. No repugnancy or occupied field, therefore, arose in present case. H, I & J
Zeerbhai Ajmaidas v. The State of Bombay (1954 AIR 752); Ch.Tikka Ramji and others v. State of Uttar Pradesh AIR 1956 SC 676; Ex Parte Mclean (1980) 48-C.L.R. 472 and Stock Motor Club Ltd. (1932) 48 CLR 128 rel.
(c) Khyber Pakhtunkhwa Medical Teaching Institutions Reforms Act (IV of 2015)---
----Ss. 16, 23, 24, 26 & Preamble----Khyber Pakhtunkhwa Medical and Health Institutions and Regulation of Health-Care Ordinance (XLVII of 2002) [Since repealed], Preamble---General Clauses Act (X of 1897), S.6---Khyber Pakhtunkhwa General Clauses Act (VI of 1956), S. 4---Constitution of Pakistan, Arts. 240(b) & 265---Service of Medical Teaching Institution---Power to make rules/regulations---Petitioner raised the objection that under Khyber Pakhtunkhwa Medical Teaching Institutions Reforms Act, 2015, the rights accrued to the petitioners under Khyber Pakhtunkhwa Medical and Health Institutions and Regulation of Health-Care Ordinance, 2002 [Since repealed] would be taken away---Validity---Article 240 (b) of the Constitution spoke of service of the Province, and posts in connection with affairs of the Province to be determined by or under the Act of the Provincial Assembly---Services of the Medical Teaching Institutes and the employees thereof had been protected under S. 16 of Khyber Pakhtunkhwa Medical Teaching Institutions Reforms Act, 2015; whereas, rest of the conditions and terms of appointment, maintenance of seniority, promotion and matters ancillary and incidental thereto were to be determined and regulated by the rules and regulations framed under Ss.23 & 24 of Khyber Pakhtunkhwa Medical Teaching Institutions Reforms Act, 2015---Provisions of Art. 265 of the Constitution, which was a saving clause, S.6 of General Clauses Act, 1897 and S.4 of Khyber Pakhtunkhwa General Clauses Act, 1956, were meant to obviate a situation of chaos and confusion and not to affect the legal proceedings taken under the repealed Act-Actions taken under Khyber Pakhtunkhwa Medical and Health Institutions and Regulation of Health-Care Ordinance, 2002 [Since repealed] had also been saved under Ss. 26 (4) & 26 (5) of Khyber Pakhtunkhwa Medical Teaching Institutions Reforms Act, 2015. L
(d) Khyber Pakhtunkhwa Medical Teaching Institutions Reforms Act (IV of 2015)---
----Preamble----Constitution of Pakistan, Arts. 2-A & 199---Judicial review, doctrine of---Parameters---Objectives Resolution, scope and applicability of---Functions of Judiciary---Principles---Acts of Legislature, presumptions as to---Petitioners contended that Khyber Pakhtunkhwa Medical Teaching Institutions Reforms Act, 2015 had been passed to frustrate the judgments of the High Court and Supreme Court to undermine the independence of judiciary---Validity---Held, Khyber Pakhtunkhwa Medical Teaching Institutions Reforms Act, 2015 had been validly and competently been enacted by the Provincial Legislature---Principles.
High Court observed that when law was enacted by Federal or Provincial Legislature through chosen representatives of the people, the same reflected the will of the people. Presumption of constitutionality and validity was always inherently embedded in such legislation. Mala fide or malice could not be attributed to the competent Legislature. Person challenging the validity of legislation was under bounden duty to prove that the law had malafidely been legislated or the same was in violation of the Fundamental Rights or Constitutional provisions. Courts have the power of judicial review of the enactment but within the parameters laid down in the Constitution. Court was not to enquire into motive of the legislature nor could the court ascertain the wisdom of the legislature. Powers of judicial review were corrective and directive which were only meant to see legality of administrative action. Khyber Pakhtunkhwa Medical Teaching Institutions Reforms Act, 2015 could not be called as colourable legislation, as the Legislature was competent to enact the same. M & N
Zia ur Rehman's case PLD 1975 SC 49; Fauji Foundation v. Shamim ur Rehman PLD 1983 SC 457; Multiline Associates v. Ardeshir Cowasjee and 2 others PLD 1995 SC 423; PLD 1966 SC 854; Baz Muhammad Kakar and others v. Federation of Pakistan through Ministry of Law and Justice and others PLD 2012 SC 923 and KC Gajapati Narain Deo v. State of Urissa AIR 1953 SC 375 rel.
Independence of judiciary could not be judged at the touchstone of the Objectives Resolution nor on the basis of Objectives Resolution, any provision of the Constitution or law might be struck down. Function of the judiciary was not to legislate or to question the wisdom of the Legislature in making a particular law nor could the judiciary refuse to enforce the law even if the same might result in nullifying its own decision. O
Asma Jeelani's case PLD 1972 SC 139 and Al-Samraz Enterprise v. Federation of Pakistan 1986 SCMR 1917 rel.
Courts are to decide lis in accordance with law in vogue at the relevant time and not to go behind the previous laws. Courts are to consider the laws in operation and to express its opinion in accordance therewith. Court cannot and should not bind the legislature nor refrain it from new legislature with the changing circumstances. High Court observed that law is an organic document in substance, which with the change of human complexities, socio-economic values and demographic attitudes, might be molded, altered, amended or reconstituted by repeal of the earlier laws with the changed requirements. Law might not be kept as stagnant or static, which, with the passage of time, might not cope with the situation nor catered with the needs of the people for whose welfare laws were enacted. Legislature being the representative of the people, was the best judge of determination of the suitability of the law with the prevailing circumstances. Khyber Pakhtunkhwa Medical Teaching Institutions Reforms Act, 2015 had been validly and competently enacted by the Provincial Legislature. P
Federation of Pakistan through Secretary Ministry of Law v. Munir Hussain Bhatta and others PLD 2011 SC 752 and Mehr Zulfiqar Ali Babu and others v. Government of Punjab and others PLD 1997 SC 11 rel.
(e) Khyber Pakhtunkhwa Medical Teaching Institutions Reforms Act (IV of 2015)---
----S. 16 & Preamble----Khyber Pakhtunkhwa Medical and Health Institutions and Regulation of Health-Care Ordinance (XLVII of 2002) [Since repealed], Ss. 5, 9 & Preamble---Constitution of Pakistan, Part II, Chap. 1 [Arts.8 to 28] & Art. 199---Fundamental Rights---Service of Medical Teaching Institutions, protection of---Petitioner had contended that Khyber Pakhtunkhwa Medical Teaching Institutions Reforms Act, 2015 was violative of the Fundamental Rights as enshrined in Part II, Chap.1 of the Constitution by promulgation of the Act autonomy of the Medical Institutions had been taken away and the control of the bureaucracy had been brought about, and that outsiders (being non-doctors) could not be assigned the task of management and administration of the Medical Institutions---Validity---Concept of assigning task to non-doctors to administer the Medical Institutions also existed in Khyber Pakhtunkhwa Medical and Health Institutions and Regulation of Health-Care Ordinance (XLVII of 2002) [since repealed]---Profession and efficiency of a professional was one thing, whereas administration of the body was altogether different phenomenon---Objection that the government had taken control of the Institution was belied by the fact that three members of the Board being the nominees of the Government had not been given the right to vote---Decision making power had absolutely been vested in the private member belonging to the public at large---Administrative landscape had been broadened by Khyber Pakhtunkhwa Medical Teaching Institutions Reforms Act, 2015---Services of the employees had been protected by virtue of S. 16 of Khyber Pakhtunkhwa Medical Teaching Institutions Reforms Act, 2015---Rights accrued to petitioner under the repealed Ordinance had not been affected by Khyber Pakhtunkhwa Medical Teaching Institutions Reforms Act, 2015---High Court observed that phrase 'till further orders' occurring in S. 16 (2) of Khyber Pakhtunkhwa Medical Teaching Institutions Reforms Act, 2015 appeared to be not compatible with cl.(2) and substituted cl.(3) of S. 16 of the Act, and the same being unreasonable and unjustified was liable to be omitted and deleted. Q & R
(f) Khyber Pakhtunkhwa Medical Teaching Institutions Reforms Act (IV of 2015)---
----Preamble---Right to hold post of Medical Superintendent---Scope---No one had vested right to remain on a post for all times to come---Petitioner contended that the main object of Khyber Pakhtunkhwa Medical Teaching Institutions Reforms Act, 2015 was to nullify the judgments of the High Court and Supreme Court previously passed in his favour, and that after his removal from the post he had not been assigned any post in the Institution---Validity---High Court had not issued any writ in favour of the petitioner to retain the post of Medical Superintendent for all times to come, and Management Council of the Hospital had been asked to consider for appointment of the most eligible, suitable and senior medical officer possessing extra ordinary qualities both medical and professional for the post---Ratio of the judgment was that only Management Council was to make transfers and appointments within the Institution, keeping in view the criteria---Supreme Court, while maintaining said judgment of the High Court, had observed that procedural failings had resulted in the judgments without any serious restraints on future action, which showed that the petitioner had not been disturbed from the post but with some serious reservations---Statute enacted by the competent legislature might not be struck down merely on the ground that the same was enacted for nullifying the judgments of the Courts that too judgment in personam, not in rem---Once the petitioner had opted to be absorbed in the service of the Institution after his removal from the post, then he might not be treated according to the whim of the administration and should have been assigned suitable post according to his qualification---High Court directed the authorities to address said grievance of the petitioner without fail. S, T, U & V
(g) Khyber Pakhtunkhwa Medical Teaching Institutions Reforms Act (IV of 2015)---
----Preamble---Petitioners, Para-Medical staff of the Hospital, contended that doctors and nurses had been separately provided with their respective Directors, whereas the Para-Medical staff had been left without any Director---Validity-- -No reference of Para-Medical Staff performing functions falling within the responsibilities of other medical and nursing wings had been made in Khyber Pakhtunkhwa Medical Teaching Institutions Reforms Act, 2015, and the Hospital Director was the overall incharge of non-clinical functions of the hospital---Para-Medical Staff, being the highest in strength as compared to doctors and nurses, was required to have a Director of Para-medics---Clinical functions could not be suitably and adequately discharged without cooperation and coherence of the Para-Medical Staff---Legislature was responsible for leaving any deficiency in Khyber Pakhtunkhwa Medical Teaching Institutions Reforms Act, 2015---High Court directed the authorities to make suitable amendment in the Khyber Pakhtunkhwa Medical Teaching Institutions Reforms Act, 2015 for provision of Director of Para-Medical Staff. V
(h) Khyber Pakhtunkhwa Medical Teaching Institutions Reforms Act (IV of 2015)---
----Preamble---Khyber Pakhtunkhwa Essential Services (Maintenance) Act (XXXIV of 1958), Preamble---Agreement between Doctors' Association and Provincial Government allowing the doctors to entertain private patients during normal working hours in the Hospital---Discipline in Department and the establishment, requirement of---Scope---Held, administration could not enter into any such agreement with the employees (doctors)---Principles.
Agreement between the doctors and the Provincial Government had allowed the doctors for the first time to entertain private patients during normal working hours in the hospitals. Provincial Legislature being representatives of the populace of the Province had reflected the will of the people in Khyber Pakhtunkhwa Medical Teaching Institutions Reforms Act, 2015. Preamble of the Act was manifestation of the will that was intended for provision of effective, efficient and suitable health-care services to the people of the Province, but neither the people of the Province nor their representatives were signatory to the agreement, at the altar of which the whole scheme of Khyber Pakhtunkhwa Medical Teaching Institutions Reforms Act, 2015 had been frustrated. Doctors' Association, after filing Constitutional petitions against Khyber Pakhtunkhwa Medical Teaching Institutions Reforms Act, 2015, had influenced the administration by their protests, processions and strikes either to withdraw the Act or come to their terms. High Court had previously directed that medical services be declared as essential services in terms of Khyber Pakhtunkhwa Essential Services (Maintenance) Act, 1958. High Court expressed concerns about the weak 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 Khyber Pakhtunkhwa Essential Services (Maintenance) Act, 1958 had not been resorted to. High Court observed that doctors had not only constituted their associations but were also found chanting slogans, marching processions on the roads, leaving the patients in the emergency and operation theatres crying for their survival. Said inhumanly and indifferent attitude exhibited by the educated people was unbecoming of such noble profession. Mere promulgation of an Act was not big achievement unless the same was enforced and implemented in letter and spirit without fear or favour. High Court directed that the administration could not enter into any such agreement with the employees of the Medical Institutions at the cost of public at large to frustrate the spirit of Khyber Pakhtunkhwa Medical Teaching Institutions Reforms Act, 2015. W
High Court remarked that for smooth and effective functioning and rendering proper services to the public, smooth, responsive and strict discipline of the staff was the hallmark of an establishment. Department or establishment was bound to fail in all respect if it is faced with disarray and lack of discipline in ranks and files and has disrespect to the rule of law. Discipline could be maintained by loose administration, by pick and choose and discriminatory application of laws and regulations. Government to address the issue was not only to enact the law but also jealously implement the same. High Court directed the Government to make suitable amendments and introduce effective rules of discipline for their application and implementation to curb the menace of mismanagement, day to day protests and procession and if there was any resistance from any quarter, to proceeded against the same taking disciplinary action under the relevant laws and rules as well as Essential Services (Maintenance) Act, 1958. X & Y
(i) Interpretation of statutes---
----Constitutional provisions, interpretation of---Principles. B, C & E
(j) Constitution of Pakistan---
----Art. 199---Judicial Review---Scope. E
Mushtaq Ali Tahirkhaili for Petitioner.
Abdul Latif Yousafzai, A.G. for official Respondents.
Syed Arshad Ali and Shakeel Ahmad for MTIs for Respondents.
Date of hearing: 7th December, 2015.
JUDGMENT
NISAR HUSSAIN KHAN. J.- Through this single judgment, we are going to decide as many as 7 Writ Petitions bearing Nos.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 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, mala fide, 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 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 bona fide one being against the interest of general public. As such, the petitioner pleads for declaring the impugned enactment as ultra vires constitution and restorations of Ordinance of 2002.
4. Writ Petition 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…
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