' YAHYA AFRIDI, J.---This revision petition is directed against the judgment and decree of, the District Judge, Haripur dated 7-5-2010, whereby, the appeal of the present petitioner against the judgment and decree of Senior Civil Judge, Haripur dated 15-4-2010 was dismissed.
2. The brief and essential facts leading to the present petition are that Messrs R&S Pharmacy Establishment instituted a suit seeking declaration to the effect that:-- "(i) the plaintiff is entitled to run the business of pharmacy of DHQ Hospital, Haripur for the period December, 2009 to December, 2010 being the highest bidder in the open auction held under the orders of District Coordination Officer, Haripur without any interference by the defendants in any manner whatever;
(ii) that the orders dated 11-2-2010 passed on behalf of defendant No,2, Secretary to Government of Khyber Pakhtunkhwa, Health Department, Peshawar by defendant No,3, Section Officer (Drugs)
Health Department, Peshawar and the order dated 15-2-2010 passed by defendant No, 1, Medical Superintendent, DHQ Hospital, Haripur preventing the plaintiff from continuing his lawful business of the pharmacy are illegal, unlawful, without lawful authority, without jurisdiction, arbitrary, perverse, against the law of natural justice and consequently of no legal effect;
(iii) That in addition thereto, injunctive relief restraining the defendants from interfering in any manner in the process of business of pharmacy of plaintiff in DHQ Hospital, Haripur and allowing him free hand for the period of the tender i.e, December, 2009 to December, 2010;
(iv) that along with the plaint, the petitioner has also filed an application for granting temporary injunction."
3. The learned trial Court after hearing learned counsel for the parties, dismissed the application for granting of temporary injunction in his favour as well as suit of the of the petitioner, 'inter alia', holding the following:-- "that the plaintiff has not been able to make out a case for grant of temporary injunction in his favour.
' Since, the plaintiff is only a license holder, which has already been expired, on the basis of which no suit for declaration and injunction could be filed and is maintainable. At the most, he can recover the damages suffered in consequence of cancellation of agreement, if any, or dispossession from the property. No irreparable injury is likely to be suffered which can not be compensated in terms of money. Recovery of the damages is the ultimate remedy in the eventuality.
' Moreover, plaintiff has challenged the order of the Secretary Health, in the instant suit; enforceable throughout the province. The legality of the said order can not be questioned through suit for declaration and perpetual injunction before a Civil Court as the same being pure question of law is not the domain of Civil Court. Thus, it can safely be held that suit of the plaintiff is not maintainable at all.
' In view of above findings and discussion, the application for temporary injunction as well as suit is dismissed."
4. Being aggrieved from the said decision, the petitioner preferred an appeal before the learned District Judge, Haripur, which also met the same fate. Hence, the present petition.
5. When the learned counsel for the petitioner was confronted with his prayers Nos.(i) and (iii), he frankly conceded that the present petition to the extent of said prayers had served it purpose and had become infructuous. In this regard, it is blatantly clear from the record that the petitioner was seeking a relief till December, 2010, when the term of his contract was to expire. The said term having expired, the petitioner could not seek beyond his pleadings.
6. Needless to mention that this practice of availing judicial protection of interim orders beyond the term of contracts, reflect adversely not only on the legal fraternity but also upon the Courts as well.
7. Now moving on to the other prayer of the petitioners, relating to the authority of the Secretary Health Government of Khyber Pakhtunkhwa to interfere in the functioning of the affairs of District Headquarter Hospital, Haripur, the learned counsel for the petitioner vehemently argued that after promulgation of the N.-W.F.P. Medical and Health Institutions and Regulations of Health Services Ordinance, 2002 ("Ordinance"), the management of the District Headquarter Hospital, Haripur, being a Health Institution ("DHQ"), was vested in the Management Committee of DHQ to be established in pursuance of section 7 thereof and; that DHQ being a Health Institution and envisaged as an autonomous and independent organization, the management thereof could not be interfered in any manner, whatsoever, by the provincial government.
8. The learned A.A:-G. Rebutted the contention of the learned counsel for the petitioner and forcefully argued that the authority of the provincial government was intact over the affairs of DHQ under subsection (3) of section 1 of the Ordinance.
9. This Court considering the. Serious- nature of present case, requested Messrs Rashid-ul-Haq Qazi, Advocate Supreme Court, to assist the Court as amicus curiae . The learned counsel rendered his written submissions, 'inter alia', in following terms; "Now 1 will take, your Lordships to page 895 of the Manual of Services Laws by Ishfaq Ahmed, wherein a notification No/SOH11/3-15/99, 10 March, 2000, was promulgated wherein the following four medical institutions were brought within the ambit of N.-W.F.P. Medical and Health Institutions Reforms Act, 1999 (N.-WF.P Act No,XII of 1999):
(i) Khyber Medical College, Khyber Teaching Hospital and Khyber College of Dentistry, Peshawar.
(ii) Ayub Medical College and Ayub Teaching Hospital, Abbottabad.
(iii) Government Lady Reading Hospital and attached clinical departments of the Post-Graduate Medical Institute, Peshawar.
(iv) Hayatabad Medical Complex, Peshawar and Post-Graduate Medical Institute, Peshawar and its constitute clinical department and attached clinical departments.
' It is very clear in the repealing clause, i.e, S.34 of Ordinance No,XL VII of 2002 that rules framed under N.-W.F.P No,XII of 1999 have been saved and apart from this, S. 1(3) further confirms that Ordinance No,XLVII of 2002 is only applicable to the above four medical institutions and medical college institutions mentioned in Serial Nos. (1) to (iv) hereinabove. Section 1(3) further says that any medical institution or a health institution of the Government may be included under this Ordinance after issuance of proper notification. No notification until to date has been issued by the then Government of N.-W.F.P. (now Government of K.P.K), Department of Health bringing any of the DHQ hospitals in the entire province within the purview of the Ordinance No,XLVII of 2002.
' It may kindly be submitted that any health institution defined in S.2 of the Ordinance would strictly mean that institution which has been brought under this Ordinance by virtue of Notification No,S0H-11/3-15/99, 10 March, 2000 and no other hospital, medical or health institution has got anything to do with Ordinance No,XLVII of 2002 meaning thereby that all the DHQ hospitals in the province of K.P.K are directly under the administrative and management control of the Government of K.P.K, Department of Health. Therefore, the MS has limited administrative powers but cannot execute any agreement or contract with anyone as the law does not give him powers to do so. It is crystal clear that it is only the Secretary to the Government who is the head of the department and apart from other statutory obligations and duties, he alone can execute any agreement or contract with any person regarding leasing or renting out the Government land or structure to any private party or person. Therefore, under the law and rules, it was only the Health Secretary who was competent to execute an agreement with any pharmacist to, operate a pharmacy shop in the premises of DHQ hospital, Haripur, if the Government had allowed the same under any notification or rule Summing up my arguments, the petitioner has no case either on merits or at law, who has been misusing the premises of the Government-namely DHQ Hospital, Haripur, by using it for his pharmacy shop, in collusion with the Medical Superintendent, even after expiry of the illegal agreement long time back by filing frivolous litigation in the matter. Therefore, the titled Civil Revision No,228 of 2010 be graciously dismissed with special costs under the judicial policy."
10. Valuable arguments of the learned counsel for the parties heard and the available record of the case thoroughly considered.
11. On Court's query, it was confirmed by the learned A.A.-G. That DHQ is functioning as a hospital having 'teaching arrangement' . In view of this admitted position, DHQ would fall within the purview of the B definition of 'health institution', as, provided under section 2(h) of the Ordinance, which provides that:- "(2) Definition.---In this Ordinance, unless the context otherwise requires,--
(h) "health institution" means a hospital, nursing home or maternity home, clinic, including medical, dental and x-ray clinics, clinical laboratory and a blood bank, delivering health-care services to the public at large having teaching arrangements, whether in public or private sector, including institution, owned by autonomous or semi-autonomous corporate organization."
Now, when this Court reviews the extent and applicability of Ordinance, as provided in section 1 thereof, it is but clear that:-- "(1) Short title extent application and commencement-41) This. Ordinance may be called the North-West Frontier Province Medical and Health Institutions and Regulations of Health-Care Services Ordinance, 2002.
(2) It extends to whole of the North-West Frontier Province.
(3) It shall apply to private institutions, practitioners and other persons engaged in health-care services and such other institutions as Government may establish or may have established under the North-West Frontier Province Medical and Health Institutions Reforms Act, 1999 (N.-W.F.P. Act No, XII of 1999), hereinafter referred to as the repealed Act, or as may, from time to time, be notified by Government, in case of a medical institution or a health institution already functioning on the commencing day of the repealed Act.
(4) It shall come into force at one."
(emphasis provided)
' In view of the clear expression of the statute, it mandates that the provisions of the Ordinance would apply to the following:--
(i) Private Institutions
(ii) Practitioners
(iii) Persons engaged in health care service
(iv) Institutions as Government may establish or already established under N.-W.F.P. Act, No,XII of 1999
(v) Medical institutions and health institution, functioning on the commencement day of the repealed Act after they are notified in this regard by the Provincial Government.
' Accordingly, DHQ being a Health Institution functioning since 1999, would only come within the purview of management regime provided for in the Ordinance, when the Provincial Government notifies it, in this regard.
' The learned A.A.-G. Further informs the Court that the Provincial Government has till date not issued the said Notification. Hence, the provisions of the Ordinance are not applicable to the running affairs and management of the DHQ.
' In view of this clear legal position, this Court holds that the impugned orders of the Secretary Health dated 11-2-2010 and 5-11-1998 are 'intra vires' , and with lawful authority.
12. Before parting with the judgment, this Court appreciates the strenuous efforts of Messrs Rashid- ul-Haq Qazi, Advocate, extended in the present matter.
13. These are the detailed reasons for short order of this Court dated 2-4-2012, whereby the relief sought by the petitioner was disallowed and the impugned decisions of the two Courts below are maintained.
' However, the petitioner was directed to handover the clear possession of disputed premises to the Medical Superintendent, District Headquarter Hospital, Haripur, within fifteen days, positively.
' No order as to costs.