' The necessary facts relevant for the decision of this Constitutional petition are as follows:-- ' The petitioner is. Holding post of Superintendent of Police in the Department of Police and he is a State subject. In the year 2000 he fell ill consequently, he approached a Medical Specialist in C.M.H.
Rawalpindi. He was diagnosed as a patient of "Lymph Nodes" which is a kind of canes," . He remained under treatment for about a period of 1 year and as a result of this treatment he was restored to normal health which continued to 3 years. After 3 years he again felt the same trouble resultantly, he was admitted in C.M.H Rawalpindi. The relevant Doctor available in C.H.M. Rawalpindi obtained reports from various relevant Hospitals like Agha Khan Hospital Karachi and Shoukat Khanum Hospital Lahore. However, as stated in the petition, those reports were not found correct.
Subsequently, in view of nature of disease, possible treatment given to the patient and different opinions of relevant Doctors, it was decided that he might be referred to any Hospital aborad. His case was referred to Special Medical Board of Azad Jammu and Kashmir. The Board, after due consideration, recommended the petitioner to send him abroad for treatment. He, per decision of the Board, went abroad and remained under treatment for some time. The relevant Doctor abroad suggested 6 courses of "Chemotherapy". After completion of 3 courses out of 6 suggested by the doctor abroad, the blood position of the petitioner started reducing with result that clinical details and investigation result were sent to Professor David Cunningham at Royal Mersden Hospital U.K.
Who suggested treatment of 6 courses for further management plan. The said Professor advised to stop the treatment already suggested and recommended the alternate treatment i.e. "High dose Chemotherapy followed by peripheral blood stensil transplantation" at Royal Mersden Hospital London. The petitioner in the light of treatment recommended by the concerned doctor abroad submitted an application to the Prime Minister of Azad Jammu and Kashmir who was pleased to direct the Health Department to process his case. The case of the petitioner was duly considered by the Special Medical Board of AJ&K Health Department and it was recommended that he be sent for treatment abroad even though the facilities might be available in Pakistan because he was a high risk patient who had already been heavily treated with combination of Chemotherapy and also having high risk age factor.
' He was recommended treatment abroad for high dose Chemotherapy and peripheral blood stencil transplantation at Royal Mersden Hospital London. His case was referred to Finance Department for making necessary arrangement. The Finance Department observed to have Govt.
Sanction for treatment abroad. The matter was referred to the Govt. For the sanction of treatment abroad and advance drawl of the amount required for the purpose. The Prime Minister gave his approval for the treatment of the petitioner abroad however, the respondents did not notify this approval and procrastinated the matter unnecessarily which resulted into this Constitutional petition.
' This writ petition was brought before this Court on 17-3-2005. Initially it was seized with the learned Chief Justice therefore, he admitted it for regular hearing on the same date. The respondents were asked to submit their written statement and the case was posted to 21-3-2005. The respondents filed their written statement on the aforesaid date a copy of which was delivered to the learned counsel for the petitioner and the case was adjourned for replication/arguments on 22-3-2005. On the said date, the learned counsel for the petitioner in view of objections raised by the respondents in their written statement moved an amendment application. The learned counsel for the respondents sought adjournment to file objections to amendment application. His request was upheld and the case was posted to 24-3-2005 for objections to the amendment application. The case again was adjourned to 25-3-2005 for arguments on the amendment application. On the said date the arguments on the point of amendment were heard consequently, the amendment was allowed and the petitioner was directed to file amended writ petition on 28-3-2005. The respondents filed their amended written statement on the said and the case was posted to 30-3- 2005. On the said date the case was adjourned for arguments on 4-4-2005. The case fixed for arguments on the aforesaid date has been made over to this Bench.
' The learned Counsel for the petitioner submitted that, under rules, Special Medical Board was constituted who recommended the petitioner to have treatment abroad keeping in view his life- risk. His case was duly processed and an approval by worthy Prime Minister of the Azad Jammu and Kashmir was obtained but despite the fact of approval by the competent authority the concerned department prolonged the matter unnecessarily endangering the life of the petitioner.
The petitioner therefore, was constrained to file this writ of mandamus, Court to issue direction to the respondents to notify the approval by the Prime Minister and make the necessary arrangement to send him abroad for his treatment. However, unfortunately, when the writ petition was pending before this Court the respondents malafidely attempted to deprive the petitioner of his legitimate rights to have treatment abroad and of this purpose Chief Secretary through his influence manoeuvred to resubmit the case to the Prime Minister for review of his sanction order. The said Secretary succeeded in doing so consequently. The previous sanction order was reviewed and it was disclosed in the Court that as the sanction order by the Prime Minister stood reviewed therefore, the present writ petition was incompetent. This practice, according to the learned counsel, was nothing but an attempt to frustrate the cause already pending before the Court and such practice was not permissible in view of settled law. The Prime Minister was competent to review his previous order only when a violation of some rule/law is shown while making an order and only in that case any order could be re-submitted to him for review, the learned Counsel maintained. No violation of any law/rule was shown by the subordinate authority while re- submitting the case to worthy Prime Minister therefore, the review order in absence of violation of any law was not maintainable and the same deserved its quashment. It was further submitted that the review order was an attempt to frustrate the case already pending before the Court which under law, was not permissible. He, during arguments, placed reliance on PLD 1982 SC AJ&K 112, 1993 SCR 177 and PLD 1978 SC AJ&K 37 along with rule 11 of the Azad Jammu and Kashmir Govt.
Servants (Medical Attendance) Rules 1987 and rule 9 Sub-rule 4 of Rules of. Business 1985. He requested the Court to issue direction to the respondents to notify the approval order by the Prime Minister dated 5-3-2005 and make the necessary arrangement to send the petitioner abroad for his treatment by quashing subsequent notification dated 19-3-2005 being without lawful authority having passed with a mala fide intention and against the recommendation of Special Medical Board dated 21-2-2005.
' Conversely, the learned Counsel for the respondents while controverting the arguments on the side of the petitioner contended that as the treatment of the disease with which the petitioner was suffering from was available in Pakistan therefore, the petitioner was rightly refused to go abroad for his treatment.
' The record made available to this Court was examined carefully. The facts narrated in the petition are not disputed by the respondents however, a legal controversy has arisen in the instant case.
The case of the petitioner is that he, under law, was entitled to have treatment aborad whereas the respondents' side is raising objection in view of rule 11 of the Azad Jammu and Kashmir Govt.
(Medical Attendance) Rules 1987. Therefore, it appears necessary to reproduce the said rule so as to resolve this controversy. The said rule reads as under:--
11. (a) In very special and rare cases, medical facilities abroad shall also be provided to the serving Government servants according to the prescribed procedure and subject to specific certification of Special Medical Board in respect of the following:--
(i) that the disease from which the Government servant is suffering is such that it involves the risk of life or of permanetit disability;
(ii) that the disease is not curable/treatable in Pakistan;
(iii) that there are reasonable prospects of the disease being cured is a disease being cured in a foreign country;
(iv) that the foreign country in which treatment is recommended is nearest from Azad Kashmir/Pakistan;
(b) The following procedure is laid down for treatment abroad of Azad Jammu and Kashmir Government employees:--
(i) Government servants may approach Health Department through their parent Department with the request to be treated abroad on Government expenses;
(ii) Health Department may refer such cases to the Special Medical Board for examination/evaluation of the applicant for the purposes of treatment abroad;
(c) The constitution of special Board shall be as under:--
1. Secretary Health Chairman.
2. Specialist of the Disease to be treated Member.
3. Medical Specialist Member.
4. Surgical Specialist Member.
5. C.O. C.M.H Muzaffarabad Member.
(d) Special Medical Board in the presence of documentary evidence produced by the applicant shall specifically recommended the treatment abroad as well as the amount of foreign exchange required.
2. On receipt of the medical report from Special Medical Board, Health Department shall refer the case to the Finance Department for concurrence.
(3) On receipt of the concurrence of the Finance Department, Health Department shall submit a summary to Government for allowing treatment abroad.
(4) After the approval of the Government, Health Department shall refer the case again to the Finance Department for authorized of audit copies for release of Foreign Exchange wherein the amount in rupee covered is debited to the respective head of account.
(5) The authorized for release of Foreign Exchange shall be done by Finance Department.
' The above stated rule provides medical facilities abroad to Government servants after following prescribed procedure subject to recommendations of Special Medical Board when the disease from which the Govt. Servant is suffering from is such that it involves the risk of life or permanent disability. It also provides certification by the Special Medical Board that the disease is curable in a foreign country nearest from Azad Kashmir/ Pakistan. This rule also provides the procedure laid down for treatment abroad of Azad Jammu and Kashmir Govt. Employees. According to this procedure, any Govt. Servant may approach Health Department through his parent department with the request to be treated abroad on Govt. Expenses. Health Department, after a request has been made shall refer the case to a Special Medical Board for examination/evaluation of the applicant for the purpose of treatment abroad. The constitution of Special Medical Board has also been provided. A Special Medical Board shall consist of Secretary Health as its Chairman, Specialist of the disease to be treated, Medical Specialist, Surgical Specialist and Commanding Officer C.M.H Muzaffarabad as its members. The said Board after having the case of a patient examined/evaluated in presence of documentary evidence before them shall specifically recommed treatment abroad as well as the amount of Foreign exchange required. On receipt of report from Special Medical Board, Health Department shall refer the case to the Finance Department for concurrence. Health Department on receipt of concurrence of the Finance Department shall submit a summary to the Govt. For allowing treatment abroad. After obtaining approval of the Govt., Health Department shall refer the case to the Finance Department for authorization of audit copy kr release of finance exchange wherein the amount in a rupee coved is debited to the respective head of account.
' The question now arises as to whether the procedure prescribed in rule 11 of the aforesaid rules has been complied with while obtaining the approval by the Govt. The parties are in agreement that the procedure required under law was followed and the approval by the Prime Minister was accorded however, when the matter was processed to notify the approval the case was objected by Chief Secretary and the same was resubmitted to the Prime Minister to review his approval order. The record also shows that while obtaining approval order by the Prime Minister procedure was strictly followed and no legal flaw was committed while doing so. Under rule 9 Sub-rule 4 of Rules of Business 1985 worthy Prime Minister is competent to review his earlier order provided violation of some rule or law is pointed out by the subordinate authorities and not otherwise. Here in this case, as pointed out earlier that no violation of any rule was disclosed while resubmitting the case of the petitioner therefore, it is held that the review order of the Prime Minister and notification dated 19-3-2005 are bad under law having no legal authority. There is yet another aspect of this case. The officer, as it appears from the record who submitted previous summary to the Prime Minister for approval of the treatment abroad read of referring the matter to the Special Medical Board again referred the matter to Commanding Officer C.M.H alone who was a member of the Special Medical Board. If at all, the matter in hand required review of the Prime Minister's previous order it was to be referred to Special Medical Board for opinion who previously recommended the petitioner to have treatment abroad. The entire edifice has been raised after having a report from one member of the Special Medical Board and a private institute available in Karachi to which the papers of the patient were sent by the Secretary/DG Health for opinion. This exercise is a total disregard of the rules available for treatment of the Govt. Servants abroad and the rules allowing Prime Minister to review his earlier order. It is unfortunate that a person who previously prepared a summary and submitted the same to the Prime Minister subsequently, under the influence of his high-ups prepared a second summary contradicting his previous one and in total disregard of the law available on the subject. It is very discouraging on the part of a civil servant having gazetted cadre who does not care for the law of the land simply to please his high-ups. To follow orders of the high-ups by closing eyes to the rules, regulations and laws of the State is very much alarming.
This is also a question mark for those who are standing on the top of civil hierarchy. Those who are responsible to enforce and implement the law of.Land if do not care for the rules, regulations and laws holding field in a State and violate the same, it entails very serious consequences. A practice of this kind needs to be discouraged by all the concerned.
' If an act is required to be performed according to a prescribed manner by law or rule it should be performed according to prescribe manner alone or not at all. Reference may be made to 1993 SCR 177 and PLD 1978 S.C. AJ&K 37. Here in this case, if the respondents wanted to obtain review order by the Prime Minister they were under legal obligation to point out legal flaw in their previous action but unfortunately they failed to do so. Any order of review by the Prime Minister obtained in violation of rules is of no value therefore, his review order and notification in consequence of his order are liabel to be quashed.
' The respondents are also found to have attempted to frustrate the cause already pending before this Court as they after institution of the present writ petition hurriedly managed to have the review order by the Prime Minister. The Supreme Court of Azad Jammu and Kashmir in a case titled "Referring Authority/Chief Secretary of AJ&K v. Sardar Sakandar Hayait Khan (PLD 1982 SC AJ&K- 112) held that any amendment in a statute during pendency of a case before the Court depriving a party in a lis of his legitimate right cannot be allowed to prevail. The case in hand, in view of the aforesaid legal report, is at a better footing because in the precedent case even legislation during pendency of a case is not permissible what to talk of a review order passed in violation of law already available on the subject.
' The result therefore, is that the review order and notification dated 19-3-2005 being without lawful authority and against the recommendations of Special Medical Board dated 21-2-2005 are hereby quashed. The respondents are directed -to issue notification in view of approval order by Prime Minister dated 5-3-2005 and make the necessary arrangement to send the petitioner for his treatment abroad within fortnight positively as he is a high risk patient (life risk) per recommendation of Special Medical Board constituted under rules.