Al Wakeelo
Your Digital Lawyer, Always on Duty
Initializing Secure Chambers
Your Digital Lawyer, Always on Duty
Initializing Secure Chambers
Petitioner: IRSHAD ALI and 42 others VS Respondent: PROVINCE OF SINDH through Chief Secretary JUDGMENT
Court Name: Sindh High Court Judge(s): Muhammad Ali Mazhar, Adnan Iqbal Chaudhry Title:IRSHAD ALI and 42 others vs PROVINCE OF SINDH through Chief Secretary
JUDGMENT
Reported As: PLD 2019 Sindh 596 Result: Petitions dismissed Judgment JUDGMENT ADNAN IQBAL CHAUDHR Y, J.-- All these petitions have been brought to challenge acts taken by health officials to stop the medical/health practice/business being carried on by the Petitioners. Since these petitions are for a similar cause and raise common questions of law , these are decided by us by a common judgment. C.P. No. D-858/2016, Irshad Ali and others v . Province of Sindh and others 1. These are 42 Petitioners who hail from Sukkur , Shikarpur , Kashmor , Dadu, Khairpur , Ghotki and Umerkot respectively , where they claim to be providing services as Health Technicians by way of private practice. Per the Petitioners they have "set-up centers within the locality of their residence to provide first-aid and treatment for common conditions as well as to earn livelihood for themselves and their dependents". Per the Petitioners, they are competent to engage in such practice, and in support of that, most of the Petition ers rely on a Health Technician Certificate issued to them by the Sindh Medical Faculty , which appears to be an examining body under the Health Department of the Government of Sindh. The Health Technician Certificate states that the holder thereof has completed the Medical Technician Course from a certain training school and passed the Health Technicians' Examination, and that he/she is a fit person to be entrusted with the duties of a Health Technician. The primary grievance of the Petitioners (Health Technicians) is that health officials are harassing them by conducting raids on their health centers' on the allegation that the Petitioners are quacks practicing medicine. 2. Mr. Faizan Memon, learned counsel for the Petitioners (Health Technicians) submitted that the Petitioners do not hold themselves out as doctors, however as certified Health Technicians they are competent to practice "first-aid", "the treatment of common conditions ", and to provide "basic health facilities " to the general public by way of private practice. To demonstrate such competency , Mr. Faizan Memon Advocate relied firstly on Clause 1.7 of the Health
---
## Page 2
Technicians Training Guide, published in 1990 by the National Basic Health Services Cell, Health Division, Government of Pakistan, which describes the functions of a Health Technician. Secondly , he submitted that at Basic Health Units and Rural Health Centers in villages where a Medical Officer is not available, a Health Technician is ordinarily authorized by the Government to undertake duties of an "incharge". Thirdly , he relied on the Allopathic System (Prevention of Mis-use) (West Pakistan) Rules, 1968 [frame d under the Allopathic System (Prevention of Misuse) Ordinance, 1962], where under qualified Health Technicians and Dispensers with a certain experience were eligible to apply for permits to prescribe antibiotics and dangerous drugs. Though it is not the case of the Petitioners that they were ever issued permits under the Allopathic System (Prevention of Mis-use) (West Pakistan) Rules, 1968, Mr. Faizan Memon submitted that the aforesaid is to show that the independent practice by Health Technicians of providing first-aid and treatment of common conditions, especially in rural areas, through independently set-up "health centers ", is envisaged under the law, and therefore the stopping of such practice/business by health officials violates the Petitioners' Fundamental Rights enshrined under Articles 8, 18 and 25 of the Constitution of Pakistan. Learned counsel for the Petitioners (Health Technicians) further submitted that pursuant to the Eighteenth Amendment to the Constitution of Pakistan, the Allopathic System (Prevention of Misuse) Ordinance, 1962 was replaced in Sindh by a more or less identical law called the Sindh Allopathic System (Prevention of Unauthorized Use) Act, 2014; but since the Government of Sindh has failed to frame Rules thereunder similar to the Allopathic System (Prevention of Misuse) Rules, 1968, the Petitioners are denied the opportunity to apply for permits to prescribe antibiotics and dangerous drugs. Based on the aforesaid submissions, the Petitioners pray for writs to restrain the official Respondents from stopping the private practice/business of the Petitioners as Health Technicians; and for a direction to the Government of Sindh to frame Rules under the Sindh Allopathic System (Prevention of Unauthorized Use) Act, 2014 to enable the said Petitioners to obtain permits for prescribing antibiotics and dangerous drugs. C.P. No.D-3475/2016, Sawan Kalmati Baloch and others v . 'Province of Sindh and others 3. The Petitioners 1 to 18 reside at Thatta where they claim to be 'practicing ' as Dispensers. Per the said Petitioners, they are qualified Dispensers, and in support of that, most of them rely on a Dispensers' Certificate issued to them by the Sindh Medical Faculty , which certificate states that the holder thereof has passed the Dispenser's Examination, and that he/she is fit to be entrusted with the duties of a Dispenser and Compounder . The Petitioners 19 to 22 also reside at Thatta where they claim to be practicing respectively as Midwives, Nurses and Health Visitors. Per these Petitioners , they are competent to provide such services, and in support of that, they rely on diplomas issued to them by the Sindh Nurses Examination Board, which is an examining Board under Section 1 1 of the Pakistan Nursing Council Act, 1973. 4. It is the case of these Petitioners (Dispensers, Nurses, Midwives and Health Visitors) that they "provide basic health facilities to the general masses in particular to the rural and far flung areas where the general population is deprived of primary health care facilities.......; and that they have "setup their places within the locality". Therefore, like the petitioners of C.P. No.D-858/2016, the Petitioners of this C.P. No.D-3475/2016 are also engaged in private practice at independently-run health centers/ clinics. Their grievance is that the District Health Officer Thatta has vide notice dated 09-03-2016 required the said Petitioners to close down their "illegal allopathic practice " on the ground that the same is in violation of the Allopathic System (Prevention of Misuse) Ordinance, 1962 and the Pakistan Medical and Dental Council Ordinance, 1962. Mr. Khalid Ahmed Khan, learned couns el for the Petitioners adopted the submissions of Mr. Faizan Memon Advocate made in C.P. No.D-858/2016. He further submitted that the aforesaid private practice by the Petitioners is lawful because as duly certified Dispen sers/ Compounders, Midwives, Nurses and Health Visitors, they are competent to engage in such practice; that the Allopathic System (Prevention of Misuse) Ordinance, 1962 does not prohibit such practice by the Petitioners, but only regulates it; that the Petitioners' right to carry on such practice/business is also protected by Article 18 of the Constitution of Pakistan; and therefore these Petitioners pray for writs to restrain the official Respondents from stopping their practice/bus iness and from taking coercive measures against them in that regard.
---
## Page 3
C.P. No.D-6810/2016, Muhammad Shahid and 80 others v . Province of Sindh and others; C.P. No.D-191/2016, Khan Muhammad and 23 others v . Province of Sindh and another; C.P. No.D-161/2017, Prem Das and 49 others v . Province of Sindh and another; C.P. No.D-339/2017, Asadullah and 23 others v . Province of Sindh and another; C.P. No.D-654/2017, Ghulam Mustafa Jatoi and 8 others v . Province of Sindh and another; C.P. No.D-1402/2017, Muhammad Younis Baloch and 1 1 others v . Province of Sindh and others; C.P. No.D-1631/2017, Mohan Lal Aadwani and 25 others v . Province of Sindh and another; C.P. No.D-6718/2017, Hameed Ali and 3 others v . Province of Sindh and another . 6. The Petitioners of these petitions claim to be engaged in private practice as Dispensers and Health Technicians respectively at Shaheed Benazirabad, Tando Alahyar , Sanghar , Noushero Feroz, Ghotki, Matyari, Khairpur , Mirpurkhas, Dadu, Larkana, Jamshoro, Umerkot and Hyderabad. In support of such practice, most of them rely on Dispensers' Certificates and Health Technician Certificates issued to them by the Sindh Medical Faculty , which certificate states that the holder thereof has passed the requisite examination and that he/she is fit to be entrusted with the duties of Dispenser , Compounder and Health Technician respectively . Others have filed certificates issued to them by various private training institutes. 7. Mr. Mukesh Kumar Khatri, learned counsel for the Petitioners submitted that the Petitioners operate private dispensaries where they only provide first-aid to walk-in patients before referring them to trauma centers and/or a registered medical practitioner . He submitted that pursuant to orders passed by this Court at Hyderabad Circuit in C.P. No.D-919/2014, the local administration and health officials were directed to take action against quacks operating illegal dispensaries/ clinics in various localities; that though such order did not apply to the Petitioners who were duly certified Dispensers and Health Technicians, still the local administration and health officials are raiding and shutting-down the dispensaries of the Petitioners; therefore, these Petitioners pray for writs to restrain the official Respondents from stopping the lawful practice/ business of the Petitioners and for directions to de-seal their dispensaries. In support of their petition, the Petitioners rely on an order dated 18-10-2000 passed by a Division Bench this Court at Hyderabad Circuit in C.P. No.D-329/2000 whereby a similar petition was disposed off by prohibiting Dispensers from prescribing antibiotics and dangerous drugs, but by permitting them to practice first- aid. 8. While opposing all of the subject petitions, Mr. Ghulam Shabbir Shah, learned AAG Sindh, accompanied by the Additional Secretary Health, Government of Sindh, submitted that the practice of the Petitioners manifests that they hold-out to the public that they are qualifie d medical practitioners which makes them 'quacks' within the meaning of the Sindh Healthcare Commission Act, 2013, and therefore action was taken against them pursuant to the order dated 20-10-2016 passed by a Division Bench of this Court at Hyderabad Circuit in C.P. No.D-919/2014. He submitted that while Dispensers, Health Technicians, Midwives, Nurses and Health Visitors perform an invaluable and salutary function/service, their purpose and function is essentially to act in aid of registered medical practitioners, whereas the fact that the Petitioners are operating independent clinics, dispensaries and health centers and selling thereat medicines to the general public, manifests that they are in fact practicing medicine without the prescribed qualification, which acts, not only do they put the public health at risk, but are also prohibited by the Pakistan Medical and Dental Council Ordinance, 1962 and the Drugs Act, 1976. He pointed out that the certification relied upon by most of the Petitioners, issued to them by the Sindh Medical Faculty , categorically states that "This certificate does not authorize the holder to practice W estern Medicine." 9. We heard the learned counsel for the parties, the Additional Secretary Health, and also some of the Petitioners who wanted to explain the nature of the practice they were engaged in. The Petitioners do not claim to be medical practitioners within the meaning of the Pakistan Medical and Dental Council Ordinance, 1962, but they claim that as certified Health Technicians, Dispensers, Nurses, Midwives and Health Visitors respectively , they too are qualified and permitted to engage in the private practice of providing certain medical/health services to the public directly and independently . Such private practice is carried on by the Petitioners at premises they manage themselves, which some Petitioners call 'health centers' and some 'dispensaries', and it is to safeguard such private practice that they are before this Court.
---
## Page 4
10. It is the case of the Petitioners that the private practice they are engaged in is the providing of 'first-aid' and/or 'the treatment of common conditions' and that their respective certification is sufficient qualification to permit them to engage in such practice. But ironically , as regards the certificates issued by the Sindh Medical Faculty to Health Technicians and Dispensers, those certificates categorically state that "This certificate does not authorize the holder to practice Western Medicine". As regards the Petitioners who are Nurses, Midwives and Health Visitors, while they claim to hold diplomas issued by the Sindh Nurses Examination Board, none of them produced any document to show that they were registered with the Pakistan Nursing Council under Section 20 of the Pakistan Nursing Council Act, 1973. While none of the Petitioners have filed any certificate to show that they have received training in 'first-aid', the meaning of 'treatment of common conditions' was elaborated by the Petitioners themselves on queries put by-us during the hearing, to state that it meant the treatment of common ailments such as cough, sore throat. cold, fever , stomach aches etc., by way of prescribing and selling medicines. Mr. Faizan Memon Advocate did not dispute that such practice was, for all intents and purposes, the practice of allopathy , however in support of such practice (to the extent of Health Technicians) he relied on Clause 1.7 of the Health Technicia ns Training Guide published in 1990 by the National Basic Health Services Cell, Health Division, Government of Pakistan, to argue that a Health Technician is competent to engage in the private practice of allopathy . On the other hand, the learned AAG and the Additional Secretary Health had submitted that the reliance placed by the Petitione rs on the said Training Guide to practice medicine was misleading, as such Training Guide was not a document prescribed by law, but was published for a specific health project being undertaken by the Government at the time. Though the said Training Guide was not produced before us in its entirety to enable us to gauge its scope, nonetheless, Clause 1.7 thereof which is filed with the petition as an extract, reads as follows: "1.7 JOB DESCRIPTION OF HEAL TH TECHNICIANS (MALE AND FEMALE) Statement of Work. As members of the health team of the RHC where the team leader is the Medical Officer , the Health Technicians, both male and femal e, provide mainly health promotive, illnes s preventive services and some curative services. Health Technicians are to provide the following services at the BHU or RHC, and through outreach activities in their assigned areas: Family health services. Maternal health services. Control of communicable diseases. Health education. Community participation and coordination. Referral. First-aid and treatment of common conditions. Record keeping . Training." The above Clause 1.7 shows that the functions listed therein are envisaged by Health Technicians "As members of the health team " of the BHU or RHC run by the Government "where the team leader is the Medical Officer ...........". In other words, it does not envisage that Health Technicians could engage in an independent private practice of allopathy . Therefore, the reliance placed on the aforesaid Clause 1.7 is misplaced. 11. We now turn to discuss the primary submission made on behalf of the Petitioners viz, that the Allopathic System (Prevention of Misuse) Ordinance, 1962 and the Allopathic System (Prevention of Mis-use) (West Pakistan) Rules, 1968 envisage the practice of allopath y by other persons as well who may not be registered as medical practitioners with the Pakistan Medical and Dental Council. On the other hand, the learned AAG had cited the case of Iftikhar Hussain Butt v. Government of Punjab (2016 CLC 95) to submit that after the Sindh Healthcare Commission Act, 2013, the Allopathic System (Prevention of Mis-use) (West Pakistan) Rules, 1968 do not hold the field. In Iftikhar Hussain's case (2016 CLC 95), as in this case, the submission of the petitioners before the Lahore High Court was that though they were not registered medical practitioners under the Pakistan Medical and Dental Ordinance, 1962, nevertheless the Allopathic System (Prevention of Misuse) Ordinance, 1962 and the Allopathic System (Prevention of Mis-use) (West Pakistan) Rules, 1968 envisaged that they could undertake the practice of allopathy . Their grievance was that their applications for the grant of permits to prescribe antibiotics and dangerous1
---
## Page 5
drugs under the Allopathic System (Prevention of Mis-use) (West Pakistan) Rules, 1968 had been rejected by the Government of Punjab. One of the grounds cited by the learned Single Judge for dismissing the said petition was that subsequent to the Punjab Healthc are Commission Act, 2010, the Govern ment of Punjab had issued a notification dated 08- 03-2012 to repeal the Allopathic System (Prevention of Mis-use) (West Pakistan) Rules, 1968. But, and as highlighted infra, the said Rules of 1968 were Provincial Rules, and in the petitions before us it is not the case of the learned AAG Sindh that the Province of Sindh too has expressly repealed the said Rules. Therefore, a decision on the submissions recorded in this para necessitates a discussion on the law that has progressed in the Province of Sindh to regulate medical/health service providers, and as we discuss the relevant statutes (infra), we have simultaneously opined on how each statute affected the practice of allopathy by persons such as the Petitioners who were not registered medical practitioners under the Pakistan Medical and Dental Council Ordinance, 1962. 12. The Medical and Dental Council Ordinance, 1962 [hereinafter 'the PMDC Ordinance, 1962 '] came into effect on 05.06.1962 and extended to the whole of Pakistan. It was promulgated primarily to regulate basic and higher qualifications in medicine and dentistry , and consequently to regulate the practice of such medical practitioners as follows: "29.- (1) Notwithstanding anything to the contrary contained in any other law for the time being in force, no one other than a registered medical practitione r or a registered dentist shall be competent to hold any medical or dental appointment in a medical or dental college or its attached hospitals or as a Commissioned Medical or Dental Officer in any branch of the Armed Forces or as a Medical or Dental Officer in any hospital, asylum, infirmary , dispensary , or lying-in hospital, maintained or aided by any Government, Railway or local authority . (2) Notwithstanding anything to the contrary contained in any other law for the time being in force, no certificate required by any such law to be obtained from a medical or dental practitioner shall be valid unless it is signed by a registered medical practitioner or a registered dentist, as the case may be. (3) No person shall be entitled to recover any charge in any court of law for any medical dental or surgical advice or attendance, or for the performance of any operation, or for any medicine prescribed or supplied unless he shall prove upon the trial that he is a duly registered medical practitioner or a registered dentist. It appears that at the time it was promulgated, the PMDC Ordinance, 1962 did not expressly bar the practice of allopathy by persons not registered as medical practitioners under the Ordinance. 13. The Allopathic System (Prevention of Misuse) Ordinance, 1962 [hereinafter 'the ASPMO 1962' ] came into ef fect on 07-06-1962. It extended to the whole of Pakistan and it was promulgated "to prevent the misuse of the allopathic system of medicine and to provide for matters connected therewith." Section 3 of the ASPMO 1962 confined the use of the word "doctor" and its variations to a 'registered medical practitioner' i.e., a person registered under the PMDC Ordinance, 1962 (not applicable to a person on whom a Doctor's degree other than a medical degree has been conferred by any university in or outside Pakistan). Section 4 restricted the use of a medical degree or a medical diploma for any purpose connected with medical practice, unless such degree or diploma was recognized under the PMDC Ordinance, 1962. Section 6 of the ASPMO 1962, which is of most significance to the discussion that follows, stated that 'No person other than a registered medical practitione r or a person authorized in this behalf by the Provincial Government shall prescribe any antibiotic or dangerous drug specified in the rules made under this Ordinance.' Per Section 8 of the APSMO 1962, The Provincial Government may make rules for carrying out the purpose of this Ordinance.' Section 9 provided for punishment for contravention of Sections 3 to 7. 14. The Rules under Section 8 of the ASPMO 1962 were framed by the Provinc ial Government of the erstwhile West Pakistan which were titled the Allopathic System (Prevention of Mis-use ) (West Pakistan) Rules, 1968 [hereinafter 'the ASPM Rules, 19681. Rule 3 of the ASPM Rules, 1968 provided: "(1) Any person, other than a medical Practitioner , desirous of prescribing any antibiotic or dangerous drug shall make an application in Form I to Government through the District Health Officer, Civil Surgeon or Agency Surgeon2 3
---
## Page 6
as the case may be, for the area where the applicant ordinarily resides, for the grant of a permit." (2) If the application is in proper form and the applicant appears to be a person eligible for the grant of a permit to prescribe antibiotic or dangerous drugs, the officer receiving the application shall forward the same to the appropriate Regional Screening Board constituted under rule 5." The Regional Screening Board, after scrutinizing the applications and interviewing the applicants was required to submit a report to the Provincial Screening. Board (see Rule 6), and the latter Board was then required to consider the applications and reports and to advice the Government as to which of the applicants fulfils the conditions for a grant of a permit (see Rule 7). Rule 4 of the ASPM Rules, 1968 listed those 'other persons' who were not registere d medical practitioners but were nevertheless eligible for the grant of a permit under Rule 3, and such persons included a Health Assistant and a Dispenser in the following terms: "4. Eligibility .- No person shall be eligible for the grant of a permit unless - (b) he has studied for a period of not less than one and a half years, a course of medical education in any institution which, in the opinion of the Provincial Screening Board had, at the time when the applicant studied therein, the facilities laid down in Schedule "A" and has been declared successful in the final examination, conducted by that institution and has not less than five years of practice in Allopathic System of medicine ; or (d) he is a Health Assistant duly registered with the West Pakistan State Medical Faculty and has not less than five years of practice in Allopathic System of medicine; or (e) he is a dispenser duly registered with the West Pakistan Medical Faculty and has not less than seven years of practice in Allopathic System of medicine". Rule 9 of the ASPM Rules, 968 provided: "(1) A person, who is authorized to presc ribe antibiotics and dangerous drugs shall be granted a permit in Form 2 bearing the signature of an of ficer authorized by Government in this behalf. (2) A person to whom a permit has been granted under this rule shall be entitled to prescribe any antibiotic or dangerous drug specified in Schedule "B". Rule 13 of the ASPM Rules, 1968 required : "13. Mode of keeping the permit. - (1) The permit shall be displayed in the premises where normally the person holding the permit is engaged in practice and photostat copy of duplicate permit shall be carried by him while going out to visit patients at their residences." 15. A perusal of the ASPMO 1962 and ASPM Rules, 19f9 shows that those did envisag e the practice of allopathy by a person other than a medical practitioner registered under the PMDC Ordinance, 1962; however such practice was regulated by mandating that the prescribing of antibiotics and dangerous drugs would be subject to a permit granted by the Provincial Government. A Health Assistant and a Dispenser with the requisite registration and experience were amongst persons eligible to apply for the said permit. Furthermore, subsection (1) of Section 31 of the Pharmacy Act, 1967 that prohibited a person to practice as a pharmacist unless he was a registered pharmacist, did not, per sub-section (4) of…
Read the unabridged text and precedent citation network on Al Wakeelo Legal Research Platform.