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Petitioner: Dr. SALMAN KAZMI VS Respondent: SECRETARY CABINET DIVISION and others
Court Name: Lahore High Court Judge(s): Umar Ata Bandial Title: Dr. SALMAN KAZMI vs SECRETARY CABINET DIVISION and others Case No.: Writ Petitions Nos.3685 of 2012, 7441 and 17121 of 2013 Date of Judgment:2013-10-07 Reported As: PLD 2014 Lahore 451 Result: order accordingly
JUDGMENT
JUDGMENT UMAR ATA,BANDIAL C.J.---This judgment shall also dispose of Writ Petitions Nos. 7441 and 17121 of 2013 involving common questions of law and fact. 2. Instant writ petition is filed by Pakistan Medical Association, Lahore ("PMA") for relief against the respondent No,1, Secretary, Cabinet Division, Government of Pakistan, Islamabad and respondent No,3, Chairman, Shaikh Khalifa Bin Zayed Al-Nahyan Hospital, Lahore in the following terms: "Under the above stated circumstances of the case, it is therefore, most respectfully prayed that the present petition may kindly be accepted. Writ of mandamus may kindly be issued/granted against the respondent Nos. 1 and 3, declaring that the fee structure of respondent No,2 is discriminatory, without lawful authority and is of no legal effect, moreover, directing the respondents Nos.1 and 3 to develop their fee structure commensurate and at par/rate with the public sector Medical and Dental Colleges in the province. Any other relief which this honourable Court deems fit and appropriate may also be awarded to the petitioner." 3. The same prayer is also made in two other petitions filed by students of Shaikh Khalifa Bin Zayed Al-Nahyan Medical and Dental College, Lahore ("College"). The College is a component of the Shaikh Zayed Postgraduate Medical Institute ("Institute") and was inaugurated by the Prime Minister of Pakistan on 23-5-2009. 4. After the promulgation of the Constitution (Eighteenth Amendment) Act, 2010 on 24-4-2010, the Institute including all its component entities, assets, liabilities and staff has devolved to the Province of Punjab vide notification of transfer issued by the Cabinet Division of the Federal
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Government on 14-2-2012. The Government of Punjab ("Provincial Government") is impleaded as respondent No,4 in this petition. Petitioner's Challenge: 5. The present petition challenges the fee collected by the College from its students during the financial years 2009-2010, 2010-2011 and 2011-2012. Pursuant to transfer of the Institute on 14-2-2012, the Provincial Government has during hearing in this matter intimated its decision dated 28-10- 2013 to grant admission to the College on the basis of a province wide open merit list. The tuition fee structure adopted at other government medical colleges in the Province shall be applied to the merit students at the College. It is an admitted position that during the aforesaid three financial years tuition fee has been charged from students of the College at the rate of Rs,4,00,000/- per annum apart from Rs,75,000/- collected initially as admission fee and other charges. The petitioner's challenge to the said fee structure is firstly based on the premise that as a component of the Institute, the College is a public sector entity; it must charge its student fee in accordance with the structure applicable to government medical colleges. Reliance is placed on the petitioner PMA's letter dated 5-5-2010 to the Prime Minister of Pakistan wherein the said plea is urged. It is claimed that the Federal Government has not responded the petitioner's letter. 6. The second premise of the petition rests on the assertion that the College can at most charge fees authorized by the Federal Government according to the financial feasibility of the College prepared in the year 2001-2002. This feasibility projects an annual tuition fee of Rs,2,00,000/- per student plus Rs,10,000/- as annual admission fee. Documents filed with the petition evidence approval of the said fee structure. The written statement by the Institute explains the point by attaching a Summary prepared by the Cabinet Division for the Chief Executive about the establishment of the College. It contains a note by the Federal Secretary, Finance dated 30-3-2002, the Minutes of the 19th meeting of the Board of Governors of the College ("Board") dated 27-12-2001 and a presentation for the Chief Executive prepared by Chairman of the Institute dated 26-1-2002. These documents, inter-alia, propose the fee structure mentioned above. On the basis of the said proposal the Chief Executive Secretariat, Islamabad by order dated 17-4-2002 approved establishment of the College by the name of "Shaikh Khalifa Bin Zayed Al-Nahyan Medical and Dental College, Lahore" but subject to the condition that the project would be self-financing without support of additional funds from the Federal Government. 7. It is argued that contrary to the fee structure approved by the Federal Government in 2002 for setting up the College, when admissions to the College opened for the first time in November-2009, the impugned fee structure of Rs,4,00,000/- as annual tuition fee plus Rs,75,000/- as admission fee and other charges were unlawfully billed to and collected from students of the College. Considering the said allegation by the petitioners to have weight, a learned Single Judge of the Court passed an interim order dated 27-2-2012 restraining the College from charging fee in excess of the rate approved by the Board on 27-12-2001 and endorsed by the Federal Government on 17- 4-2002. Brief history of the College: 8. Before considering the arguments in rebuttal by learned counsel for the College, it may be useful to recount the brief history of the Institute of which the College is a component. The Institute was conceived in the year 1973 as a benefaction by Shaikh Zayed Bin Sultan Al Nahyan that was placed in a public trust bearing the name "Zulfiqar Ali Bhutto Trust". Under MLO No,22 of 1977 dated 15-10- 1977 the Chief Martial Law Administrator suspended the Board of Trustees and took over charge of the said Trust and its assets. The Resolution: 9. Some nine years later a notification dated 29-5-1986 was issued by Ministry of Health, Special Education and Social Welfare of the Federal Government to organize the affairs of the Trust by
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establishing the Sh. Zayed Postgraduate Medical Institute and settling matters regarding its management. The notification is expressed as a Resolution by the Federal Government ("Resolution") on the above mentioned subject. The recitals made in the Resolution declare its object is to "give autonomous character" to the Institute and to facilitate "its un-hindered and efficient functioning". At the time of issuance of the Resolution, the Institute included two components Shaikh Zayed Hospital, Lahore and the National Clinical Research Complex of the Pakistan Medical Research Council. In the years that have followed, the Institute has added other component entities to its strength. These include the Shaikha Fatima Institute of Nursing and Health Sciences, Federal Postgraduate Medical Institute and recently the College in the year 2009. It is common ground that the Resolution still remains the legally relevant instrument for governing the affairs of the Institute and its aforementioned component entities. 10. According to the Resolution, the management of the Institute is entrusted to a Board of Governors ("the Board"), the composition of which is stated in paragraph 6 of the instrument. The Institute is autonomous and functions under the directions of its Board in all matters including finance and budgeting. Under para 6 of the Resolution, the 13 nominated members of the Board are all Federal Government functionaries with the exception of the Secretary Health, Government of Punjab, the Mayor of Lahore Municipal Corporation and the President of the College of Physicians and Surgeons of Pakistan. Under the Resolution, the Chairman of the Institute is an appointee of the Federal Government. In paragraph 7 the Resolution creates an Executive Committee which includes the Chairman of the Board and three of its members nominated by the Board to be the principal administrative body of the Institute working under the directions of the Board. With regard to financial and budgetary matters, the Executive Committee draws the annual budget for the approval of the Board. Thereafter, under paragraph 13 of the Resolution, the annual budget of the Institute must be submitted for approval to the Federal Government showing, inter alia, the financial support required from the Federal Government during the financial year. Respondentsrebuttal: 11. The points to be answered by the learned counsel for the respondent Institute are firstly, that the impugned fee structure implemented by the College does not bear the approval of the competent authority, namely, the Board and the Federal Government. Secondly, even otherwise the Board and the Federal Government cannot authorize and charge student fees in excess of rates applied in other public sector medical Colleges. Otherwise the respondents are succumbing to the profit motive which rules the private sector medical colleges. 12. Learned counsel for the College has rebutted the said contentions with reference to the record of the Board and the Federal Government. In addition, he has drawn attention to a recent decisive event, namely, the devolution of the Institute from the Federal Government to the Provincial Government pursuant to the Constitution (Eighteenth Amendment) Act, 2010 which came into effect on 24-4-2010. Since then the affairs of the Institute remained in flux until notification dated 14-2-2012 by the Federal Government transferring the Institute, its component entities, their assets, liabilities and staff, from the superintendence of the Federal Government to that by the Provincial Government. As a result of the said notification, the Board constituted by the Resolution became non-functional. The notification 14-2-2012 by the Cabinet Division declares to the following effect: "Government of Pakistan Cabinet Secretariat Cabinet Division Islamabad, the 14th February, 2012. No,4-3/2012-Min.I OFFICE MEMORANDUM
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SUBJECT: TRANSFER OF SHAIKH ZAYED POSTGRADUATE MEDICAL INSTITUTE, LAHORE TO GOVERNMENT OF THE PUNJAB. The undersigned is directed to state that the Prime Minister has been pleased to order transfer of administrative control of Shaikh Zayed Postgraduate Medical Institute, Lahore along with its components, assets, liabilities and staff etc. From Government of Pakistan (Cabinet Division) to Government of the Punjab with immediate effect. (Omar Hamid Khan) Joint Secretary to the Cabinet The Chief Secretary, Government of the Punjab, Lahore. Copy forwarded to the:- 1) Secretary General to the President. 2) Principal Secretary to the Prime Minister 3) Chief Secretaries of the Provincial Governments. 4) Secretaries Senate/National Assembly Secretariats. 5) Secretaries/Additional Secretaries In charge of Ministries/Divisions, Islamabad. 6) Chairman, Shaikh Zayed Postgraduate Medical Institute, Lahore. (Omar Hamid Khan) Joint Secretary to the Cabinet" Transfer of the administrative control of the Institute has empowered the Government of Punjab to superintend decisions of the Board about the Institute. This includes, as in the present case, matters regarding budget and finance of the Institute and its component entities. The matter in issue, namely, fee structure of the College that was in force prior to 14-24012, in the financial years 2009-2010, 2010-2011, 2011-2012 falls partly in a period when the administrative responsibility for the Institute was in transition. After the Eighteenth Constitutional Amendment 2010 and during the transition, Federal Government involvement in the affairs of the Institute declined understandably. This led to complications in the formation and implementation of policy decisions about the Institute. 13. The learned counsel for the Institute and the College has pointed out that this Court's interim order dated 27-2-2012 limiting the annual tuition fee of students to Rs,200,000/- under the fee structure originally approved by the Federal Government on 17-4-2002 has led to a shortfall in revenue for the College. This is because students have demanded adjustment of higher fee paid in the past period against their present judicially directed dues. According to the learned Addl.A.G. The Provincial Government is willing to assume financial responsibility for the Institute with effect from the transfer notification dated 14-2-2012. Therefore, the matter in issue boils down to whether the College possesses lawful authorization from its competent authority for its fee structure enforced in the academic years 2009-2010, 2010-2011 and 2011-2012. 14. Consequent upon devolution of the College vide order of the Chief Minister dated 25-2-2012, the Provincial Government has set up a Committee for management of Shaikh Zayed Hospital, Lahore. This Committee comprises officers of the Provincial Government, Chairman of the Institute, a member of the College faculty, a renowned social worker who is presently Chairman of the Punjab Health Care Commission and a Member of Parliament from Punjab, who is its Chairman. The principal object of the Committee is to ensure the smooth functioning of the Institute including the Shaikh Zayed Hospital and component entities. In the light of the proceedings in the Hon'ble Supreme Court in Suo Motu Case No,1 of 2012, the Provincial Government acknowledges the autonomous status of the Institute. By order dated 16-3-2012 passed in the said proceedings a direction has been issued to both the Federal and Provincial Governments in the following terms:
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"Copies of both the aforesaid reports be also sent to the Head of the Transition Committee set up by the Government of Punjab as also to the Cabinet Secretary, Government of Pakistan with reference to the proposals made therein to ensure the autonomy of Sheikh Zayad Hospital. In the meanwhile and till the final decision is taken in this regard, the current autonomous status of Sheikh Zayed Hospital shall be maintained in letter and spirit. " It is explained that on account of pending litigation about the Institute no further steps by the Provincial Government have been itaken for organizing and streamlining the management of the Institute and its component entities. However, the budgets of Institute pertaining to the period falling after the notification of transfer of the Institute dated 14-2-2012, namely, 2011-2012 and 2012- 2013 have been placed before the Transition Committee for approval. The learned counsel for the Institute claims that as the budget estimates of the Institute for the financial years 2009-2010 and 2010-2011 have been approved by the Board, these statements are also being placed before Transition Committee for ratification and confirmation of the expenditures. Essential parameters and relevant record: 15. Admittedly, the College has during the financial years 2009-2010 and 2010-2011 charged and collected from its students the disputed tuition fee and other charges. It is, inter-alia, the said receipts that are under scrutiny and review by the Transition Committee. The legal propriety of the said receipts would depend on whether firstly, the Board has approved the corresponding budgetary estimates for the financial years 2009-2010 and 2010-2011 in accordance with the terms of the Resolution dated 29-5-1986. The second criterion under the Resolution is whether the Federal Government has endorsed any Board decision envisaging the impugned annual tuition fee of Rs,4,00,000/- plus Rs,75,000/- as admission fee and other charges. 16. To substantiate the disputed fees and charges collected by the College from its students, learned counsel for the College has referred to the Minutes of the 33rd meeting of the Board held on 16-5-2009. Item No,2 of the Minutes deals with the establishment of the College and related matters. The Chairman of the Organizing Committee, who is the current Chairman of the Institute made a presentation to the Board about the proposed College. The presentation included a feasibility report regarding funding sources of the College. The following minute is recorded in relation to the feasibility report:-- "I. ... 2. Prof. Zafar Iqbal, Chairman of the Organization Committee for the Commissioning of College submitted detailed briefing to the Board about the feasibility report of the college (annexed in the working paper). It was informed that infrastructure and facilities are available to commission the college. The college is being housed in the building of SFINHS. This will be run on self finance basis. The report was prepared after extensive discussion and deliberation, with existing facility of FPGMI/SFINHS and consultant staff of the SZH. 3. ....... 4. The Board agreed with the strong recommendations of the faculty unanimously. After detailed deliberations, the Board approved the feasibility report but expressed its reservations on the issue of creation of new posts. The Board directed that the proposal for creation of new posts for the college/ any other components of the SZPGMI, if required, should be sent to the Cabinet Division immediately. "(emphasis supplied) The feasibility report approved by the Board is also available on record. The revenue estimates given in the report are based on annual tuition fee for local residents at Rs,3,50,000/- with an estimated number of 75 students yielding a total amount of Rs,26.25 million as revenue. The projected admission fee is Rs,15,000/- per student. Accordingly for present purposes, the Board approved a figure of Rs,3,50,000/- as annual tuition fee and Rs,15,000/- as admission fee and other charges At item No,12 of the agenda of the said meeting of the Board, approval was given for, inter-
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alia, the Constitution of the Academic Council of the College. Pursuant to the said decision of the Board, the Chairman of the Institute wrote to the Cabinet Division of the Federal Government for notification of the freshly constituted Academic Council of the College. This was done by the Cabinet Division on 3-8-2009 in the following terms: "Government of Pakistan Cabinet Secretariat Cabinet Division Islamabad, the 3rd August, 2009 File No,1/34/2004-SZH The Chairman/Dean Shaikh Zayed Postgraduate Medical Institute, Lahore. Subject:- RE-CONSTITUTION OF ACADEMIC COUNCIL/ HOSPITAL MANAGEMENT COMMITTEE AND SUB-COMMITTEES. Reference to your letter No, BOG/388 dated 12-6-2009 on the above cited subject. 2. Competent authority is pleased to delegate powers to proposed re-constituted committees for the Academic council of the FPGMI, Academic Council of Shaikh Khalifa Bin Zayed AlNahyan Medical and Dental College and Hospital Management Committee. (Saleem Shahzad Malik) Section Officer (SZH)." Thereafter the Academic Council of the College commenced to deliberate and decide matters relating to the affairs of the College from time to time Learned counsel for the College has referred to the minutes of the meeting of the Academic Council of the College held on 5-9-2009 which was presided by the Chairman of the Institute and attended by its 18 members belonging to the College faculty. In this meeting, the Academic Council approved an enhanced fee structure of Rs,4,00,000/- as annual tuition fee and Rs,75,000/- as annual admission fee per student. The said figures accordingly revised the rates approved by Board in its 33rd meeting held on 16-5-2009. 17. On Court's query, learned counsel for the College has explained that the figures submitted before the Board in 33rd meeting were based on financial support of Rs,300.0 million provided by the D Federal Government. The said subvention was later announced by the Prime Minister of Pakistan at the opening ceremony of the College on 23-5-2009. However, the PC-I form claiming such financial support was rejected by the CDWP of the Federal Government on 19-11-2009. Hence, an enhanced fee structure became a necessity for the College. 18. Notwithstanding the refusal by the Federal Government to extend financial support to the College, renewed effort was made by the College under a revised PC-I form submitted in July-2011 to secure the promised Rs,300.0 million funding from the Federal Government. Letter dated 13-2- 2012 convey the comments of the Planning and Development Division of the Federal Government given on the revised PC-I. These comments refer the self-finance status of the College as being the fundamental basis of its establishment. Paragraphs iii, iv and vii of the said comments recall the clear understanding noted in the Chief Executive's order dated 17-4-2002 that the College shall be run on self-finance basis. The repeated effort by the College to obtain financial E support of the Federal Government was disapproved and. Rejected. 19. The learned counsel for the College next referred to the Minutes of 40th meeting of the Board held on 13-11-2010. At item No,2 the Board delegated certain financial powers to the Principal of the College and its financial management committee after observing that the College was run on self- finance basis and incurred multi-faceted costs ranging from payment of salaries, provision and maintenance of infrastructure to the establishment of class rooms and laboratories, fully equipped with the state-of-the-art facilities. Therefore, a financial management committee comprising four members was constituted to judiciously and transparently spend College money. An Item No,3 in
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the said Minutes, the Board approved a construction project costing Rs,20.5 million to be funded with self-generated revenues of the College. The minutes also recorded that the abortive PC-I for grant of Rs,300.0 million to the College was based on the Prime Minister's assurance given at the time of inauguration of the College on 23-5-2009. The decision of the Board about the source for financing the fresh construction is reproduced below: "In view of urgent demand of the College, the BOG approved the proposed plan of construction of additional storey of existing building of the Shaikha Fatima Institute of Nursing and Health Sciences for SKZMDC and granted permission for its execution through tender/ open bidding and by observing other codal formalities. All the expenditure on this account should be met from the receipts of the medical college. "(Emphasis added) 20. On the basis of the minutes of the 40th Board meeting, learned counsel for the College contends that to authorize the construction of project valuing Rs,20.5 million the Board factored the resources of the College generated on self-finance basis. These include revenue generated by charging of fee. As such it is claimed that the Board impliedly approved the quantum of impugned fee charged by the College from each of its students. The record shows that the decisions and minutes of the Board were sent to the Cabinet Division for approval. In the present case, the minutes of the 33rd, 35th and 40th meetings of the Board were approved by Cabinet Division vide letters dated 23-5-2009, 28-8-2009 and 26-11-2010 respectively. Therefore, the decisions taken in these Board meetings have binding and conclusive effect. 21. With reference to the probity and transparency of the financial management of the Institute, its learned counsel submit that except for the year 2006-2007 the financial accounts of the Institute and all its component: entities have been duly audited by Auditor General for Pakistan. However, letter dated 8-12-2011 by Directorate General (Audit), Federal Government, sub-office Lahore intimates the conduct of special audit of accounts of the Institute for the years 2005-2006 to 2009- 2010 at the sub-office at Lahore. Thus even the excepted year was covered. He has exemplified his claim by reference to letters from the said Directorate. Objection by the Petitioner: 22. During the course of the hearing an objection was raised by the learned counsel for the petitioner that several documents were allowed to be produced on record by the Institute under various CMs. As a result, the learned counsel for the petitioner had been put to a disadvantage in presenting his case. The objection has been answered by highlighting the Court's queries during the hearing regarding the transparency of the Institute's financial affairs and Federal Government endorsement of Board decisions about financial and administrative matters: in particular practical demonstration of the College being approved and established as a self-finance Institute. These issues are not raised in the writ petition which pleads for a fee structure at the College that matches the level prevalent in other government medical colleges. According to learned counsel for the Institute, to the extent of the case pleaded in the petition, the relevant documents were placed along with the parawise comments and reply filed by Institute and the College. These show…
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