1. ' YAHYA AFRIDI, J.----Muhammad Sheraz seeks to invoke the constitutional jurisdiction of this Court praying that: "It is, therefore, humbly prayed that on acceptance of the instant writ petition, for declaration to the effect that any action taken hereafter, and taken earlier against law after the revival of Ayub Medical College Board of Governors Ordinance, 1978, and any other matter related to Ayub Medical College taken by Management Council established under the N. -W.F.P. Medical and Health Institution and Regulations of Health Care Services Ordinance 2002 be delared to be illegal, unlawful, without any lawful authority and therefore, liable to be set aside and the respondents be directed not to take any decision against law to the extent of the affairs of Ayub Medical College but in accordance with law and respondent No,4 be directed to immediately call a meeting of Board of Governors in accordance with law for Ayub Medical College and any other relief which this honourable Court deemed fit and proper in the circumstances of the case may also be granted."
2. The essential background to the legislative evolution governing the affairs of Ayub Medical College, Abbottabad ("AMC"), in chronological order, are as follow:- 27 November, 1978 Ayub Medical College (Board of Governors) Ordinance, 1978 .
2. ("Ordinance of 1978")
3. ' A Board of Governors of AMC was constituted for administration and management of the affairs of AMC; 10 January, 1981 Ayub Medical College (Terms and Conditions of Service) Regulations, 1980 ("Regulations of 1980")
4. ' These Regulations were amended from time to time and finally vide Notification dated 25-4-1995; 13 October, 1999 ' N.-W.F.P. Medical and Health Institutions Reforms Act, 1999 ("Act of 1999")
5. ' AMC came within the purview of "Medical Institutions", as provided under section 2(f) of the Act of 1999; ' Under section 19 (Supra), the Ordinance of 1978 was repealed. However, the employees of AMC were to serve on their existing terms and conditions, under the supervision and control of Management Committee, appointed under the Act of 1999; 7th June, 2000 Notification of application to AMC ' The application of the Act of 1999 was made applicable to AMC.
6. 26 June, 2001 N.-W.F.P. Medical Institutions Rules, 2001 ("Rules of 2001")
7. ' Rules of 2001 were framed by the Provincial Government under section 16 of Act of 1999 and were to apply to all medical institutions including AMC.
8. 1 November, 2002 N.W.F.P. Medical and Health Institutions and Regulations of Health Care Service Ordinance. 2002 ("Ordinance of 2002")
9. ' The Preamble of the Ordinance of 2002, 'inter alia' , provided that; "Whereas it is expedient to regulate on sound physical and technical footings[....] the services being rendered by a private hospital, nursing home or maternity home clinic, including medical, dental and x-ray clinics, clinical laboratory and a blood bank, other than those owned or administered by Government, a Local Government or any other body or authority incorporated by law, in the manner hereinafter appearing."
10. ' AMC came within the purview of an 'institution' as provided under section 2(k) of the Ordinance of 2002; Moreover, under section 3 (Supra), AMC had already been notified to be governed under the Act of 1999, and so the provisions of Ordinance of 2002 were made applicable thereto; ' Act of 1999 was repealed. However, the employees serving in AMC were to continue their services on the existing terms and conditions under the supervision and control of the "Management Committee" appointed under the Ordinance of 2002; ' Furthermore, Rules of 2001 were to continue until altered, or amended under the Ordinance of 2002.
11. 13 January, 2007 Khyber Medical University Act, 2006. ("Act of 2006")
12. ' Khyber Medical University was established and AMC was declared to be a 'constituent college' thereof; ' Notwithstanding anything contained in any other law for the time being in force, AMC was academically, financially and administratively declared autonomous; ' The employees of AMC were thus to be regulated under the provisions of the Act of 2006; ' Ordinance of 2002 was not expressly repealed under the Act of 2006. However, in view of non obstante clause provided in section 3 thereof, Khyber Medical University had complete control over the affairs of AMC; ' Ordinance of 1978 was, however, expressly repealed under section 53 of the Act of 2006.
13. 21 July, 2008 26 September, 2008 N.-W.F.P. Ordinance No,X of 2008 N.W.F.P. Act No,IV of 2008 ("Act of 2008")
14. ' Section 53 of the Act of 2006 was deleted ("amending provisions") and as a consequence thereof, "(a) all movable and immovable properly, including fixed assets of the constituent colleges and institutions, and all liabilities pertaining so such colleges and institutions, which were transferred to the University by virtue of section 37 hereby deleted shall revert back to the respective colleges and institutions;
(b) the services of all employees of the constituent colleges and institutions transferred to the University under section 51 hereby deleted shall revert back to the respective colleges and institutions; and
(c) The Ayub Medical College Board of Governors Ordinance, 1978, (N-W.F.P Ord. No,X1X of 1978), repealed under section 53 hereby deleted,,. Shall stand revived as if it had never been repealed."
15. (Emphasis provided for its relevancy)
16. 2 July, 2009 ' Notification of application of Ordinance of 2002 ' The Government notified that the Ordinance of 2002 shall apply to AMC.
17. 29 May 2012 ' Khyber Pakhtunkhwa Universities Act, 2012. ("Act of 2012")
18. ' Universities mentioned in the Schedule were to be governed under Act of 2012; Ayub Medical College was not listed in the Schedule.
3. Now, to the stance taken by the Government of Khyber Pakhtunkhwa, Health Department; it had in an earlier petition filed by the present petitioner (Writ Petition No,155/2010 in case titled Muhammad Shiraz v. Chief Executive and others submitted written comments on 16-5-2011, wherein it was stated that; "In reply to Para No,3, it is submitted that after the repeal of Khyber Medical University Act, 2008, the Board of Governor of Ayub Medical College has been revived but it is pertinent to mention that there is no Board of Governors so appointed by the Government of Khyber Pakhtunkhwa for Ayub Medical College and further more both the Ayub Medical College and Ayub Teaching Hospital should be governed by Board of Governors or by the Institutional Management Council and not separately. Board of Governors has not been constituted as per the Board of Governors Ordinance, 1978."
19. ' When during the proceedings of the present petition on 21-12-2012, this Court sought the stance of the Provincial Government on the matter in dispute, this Court noted that; "Mr. Dilawar Khan, Section Officer (Litigation) has appeared today and submitted in writing letter dated 20-12-2012, wherein he sought time for preparation and submission of parawise comments.
20. ' What is strange to note that this petition has been argued on nine previous dates, wherein, the arguments of all parties have been concluded and the matter was only left for verification regarding the earlier written comments filed by the department. Now the stance of the respondents to file fresh comments is not in accordance with proper assistance to the Court and appears to be delaying the process of administration of justice. This conduct on the part of the department is highly regrettable.
21. ' The learned AAG present in Court states that he had repeatedly sought the representation of a responsible officer of the department for filing comments in the present matter but to no avail.
22. ' The learned counsel for the petitioner vehemently argued that once a stance is taken in the comments; the same cannot be resiled from. Seeks reliance on Farzana Rasool and 3 others v. Dr. Muhammad Bashir and 3 others (2011 SCMR 1361), Muhammad Afzal v. Government of Balochistan (1995 PLC (C.S.) 567), Moin Nawaz fang; v. Riaz Ahmad (PLD 1985 Karachi 530) and Muhammad Jamil v. Provincial Government (2007 PLC (C.S.) 145) .
23. ' This objection taken by the learned counsel for the petitioner shall be decided at the time of final hearing of the case.
24. ' The dictates of safe administration of justice require that all be provided an opportunity of hearing.
25. ' The respondents are granted seven days to file their comments.
26. ' The office is directed to send a copy of this Order to worthy Chief Secretary to ensure that this callous attitude on the part of the department should not be repeated".
27. ' Finally, the comments were filed, wherein the stance of the Government on the present subject matter was that; "3. Incorrect, as Khyber Medical University Act, 2006 has been amended to the extent of Ayub Medical College through Khyber Medical University Amended Ordinance, 2008 which later on became an Act. Subsequent to which vide Notification No, SOF-IV/2- 18/KMC dated 2-7-2009, Medical Health Institution and Regulations of Health Care Services Ordinance 2002, was made applicable to Ayub Teaching Hospital and Ayub Medical College Abbottabad. (Annex-A)
28. Afterwards, the KMU Act of 2006 with its amendments has been repealed with the promulgation of Khyber Pakhtunkhwa Universities Act 2012, through notification dated 17-8-2012 (Annex-B). It is in this context of mentioned subsequent development that these comments are submitted in accordance with the comments earlier submitted in W.P. No,155/2010 as regards the matter of constitution of Board of Governors. Hence, the Ayub Medical Institution (ATH & AMC) are to be governed by the Medical Health Institution and Regulations of Health Care Services Ordinance 2002.
8. Incorrect, the section 6(c) of KMU Ordinance 2008 is reproduced as "The Ayub Medical College Board of Governors Ordinance 1978, (N.-W.F.P. Ordinance No,XIX of 19 78) repealed under section 53 hereby deleted, shall stand revived as if it had never been repealed." The section 53 of KMU Act 2006 being deleted vide the Amendment mentioned above, the notification dated 2-7-2009 was made for the effective administration of the institutes (ATH & AMC). Whereas the present position of the applicable law is already replied in detail in Para 3 above."
4. Moving on to the submissions of learned counsel for petitioner; he vehemently contended that with promulgation of N.-W.F.P. Act-IV of 2008, section 53 of Act of 2006 was deleted and the Ordinance of 1978 was revived, as the same had never been repealed; that under the `mischief rule' of interpretation of statutes, intention of rule is to make such construction as shall suppress the mischief and advance the remedy; that under the 'golden rule' Of interpretation, which means that literal construction leads to some absurdity or unreasonable result, it is permissible to interpret the provisions of the statute in a manner so as to lead to a reasonably practicable result; that if law is amended but subsequently repealed, the amendment is to be completely ignored; that when provisions of former statute is inconsistent and in conflict with provision of a later statute and the two cannot be reconciled or harmonized so as to stand together, then the provisions of the earlier statute will give way to similar provision in the later statute on the doctrine of 'implied repeal'; and that all laws which are enacted have to be enforced with effect from same time and date; no one can have legitimate grievance to say that since it was not enforced in the past and it shall not be made applicable to a given situation after the date of its enforcement.
29. ' Learned counsel for private respondents aggressively argued and contended that Ordinance of 1978 was repealed under section 19 of the Act of 1999 and thus could not be repealed twice; that though section 34 of Ordinance of 2002 repealed the Act of 1999 but there is no express provision contained therein reviving the Ordinance of 1978; that section 53 of Act of 2006 could not repeal the Ordinance of 1978, when the same has not been revived after its initial repeal by Act of 2002; that amended Act of 2008 could not revive or repeal section 53 whereby the Ordinance of 1978 was again revived.
30. ' Learned counsel representing the Principal of Ayub Medical College, contended that when under Section 19 of Ordinance of 1999, the Ordinance of 1978 was repealed, the same could not be revived by Act of 2002 unless expressly stated or provided so in the said statute; and that Section 53 of the Act of 2006 could not repeal Ordinance of 1978, which was then not Valuable arguments of the learned counsel for the parties heard and the available record of the case thoroughly considered.
6. On reviewing the legislative progression in dealing with the affairs and management of AMC, this Court finds the following admitted position; I Ordinance of 1978 was repealed by Act of 1999; II -Rules of 2001 made under Act of 1999 were applicable to AMC; III Ordinance of 2002 repealed Act of 1999, while the Rules of 2001 were to continue in force; IV Act of 2006 declared AMC to be a 'Constituent College' and all its affairs and management were to be governed under Act of 2006; V Ordinance of 1978 though repealed by Act of 1999 was again repealed under section 53 of the Act of 2006; VI. The repealing provision of section 53 of Act of 2006 whereby the Ordinance of 1978 was repealed was further deleted and was declared to have revived as if it had never been repealed.
7. The first issue, which requires the attention of this Court, is whether on the repeal of the repealing Act, the repealed Act would be revived or otherwise.
31. ' Under the English Common Law, when a repealing enactment was repealed by another statute, the former Act stood revived. However, with the introduction of the Interpretation Act, 1889, the position was altered and if an Act repealing a former Act was itself repealed, the last repeal did not revive the previously repealed Act, unless words are clearly provided reviving the former Act.
32. ' Under the Indian jurisdiction, it is noted that in certain cases the English Common Law has been applied and the repeal of repealing enactment was declared to have revived the original Act, even if the repealing enactment did not expressly revive the previous enactment but it manifested an intention to the contrary, as was held in Amir-un-Nisa Begum v. Mehboob Begum AIR 1955 SC 352).
33. However, the contrary view has been more consistently followed by their superior Courts, wherein, an express command for the revival of the previous enactment is required. Reliance may be placed on case titled India Tobacco Company Limited v. Commercial Tax Officer (AIR 1975 SC 155).
34. ' As far as our jurisdiction is concerned, the provisions of section 7 of the West Pakistan General Clauses Act, 1956 ("Act") is very clear, which reads; "In any West Pakistan Act it shall be necessary, fr. The purpose of reviving either wholly or partially, any enactment wholly or partially repealed, expressly to state that purpose."
35. ' In view of the aforementioned provision of the Act, this Court finds that the Ordinance of 1978 was repealed by Act of 1999, which was in turn repealed by Ordinance of 2002. Thus, Ordinance of 1978 would not be revived by the repeal of Act of 1999, as the Ordinance of 2002, which had repealed the Act of 1999, did not expressly revive the provisions of Ordinance of 1978.
8. Another important issue raised in the present petition was whether the Act of 2006, impliedly repealed the Ordinance of 2002.
36. ' As noted hereinabove, Ordinance of 2002 was not expressly repealed by the Act of 2006. However, the entire management and affairs of AMC were to be governed under the provisions of the Act of 2006 and not the provisions of Ordinance of 2002.
37. ' In regard to implied repeal, the general principle of 'Interpretation of Statues' is that there is a strong presumption against implied repeal. This matter came up for consideration before the High Court of Australia in Share Gold v. Tanner (2002 76 ALRJ 808), wherein, a five member bench quoted with approval, its earlier judgment in Saraswati v. The Queen (1991 172 CLR 1) that; "It is a basic of construction that in the absence of express words an earlier statutory provision is not repealed altered or derogated from by a latter provision unless an intention to that effect is necessary to be implied. There must be very strong grounds to support that indication, for there is a general presumption that the legislature intended that both provisions should operate and that, to the extent that they would otherwise overlapped, one should be read as subject to the other."
38. ' Thus, it would be safe to state that as far as implied repeal of an earlier law is concerned, it can only be inferred, when the latter law overrides the earlier law and is totally inconsistent with the earlier law and the two cannot stand and co-exist together.
39. ' N S Bindra on 'Interpretation of Statutes' (10th Edition) provides that: "Where there is a "clear and direct" inconsistency between the two Acts and it is "absolutely irreconcilable" bringing the two Acts into "direct collision" then only one of these may be regarded as impliedly repealed by the other"
40. ' Hallsbury's Laws of England has rendered certain tests for 'implied repeal', which can be explained as follows: I If its provisions are so plainly repugnant to the subsequent statute; II If the two standing together would lead to wholly absurd consequences; III If the entire subject-matter of the first is taken away by the second.
41. ' When we apply the aforementioned tests to the facts of the present case, this Court finds that Act of 2006 and Ordinance of 2002 are not hit by any of the three tests, stated hereinabove. The most crucial being the third test. The provisions of Ordinance of 2002 is clearly not restricted to 'medical institutions, such as, AMC but also extends to other institutions, such as private hospitals, nursing homes, maternity home clinics, laboratories and blood banks. Accordingly, the Act of 2006, which was restricted to 'Medical Institutions', such as AMC, did not provide any provisions for dealing with private hospitals, nursing homes and others, which remained within the domain of the Ordinance of 2002. Thus, the Act of 2006 did not 'take away' the entire subject matter of the Ordinance of 2002.
42. ' The superior Court of our jurisdiction have in various cases applied the aforementioned tests in determining whether any statute has impliedly repealed an earlier enactment or otherwise.
43. Reference may be made to Khudai Dad's Case (PLD 1997 Quetta 69). Hence, this Court finds that Ordinance of 2002 is not impliedly repealed by the Act of 2006.
9. This brings us to the most crucial provision introduced by N.-W.F.P. Act No,IV of 2008, whereby section 53 of. Act of 2006 was deleted and in consequence thereof all the movable and immovable property and assets, the service of all the employees of the "Constituent Colleges" were no more the property or under the control of the Khyber Medical University and were in fact reverted back to the institutions, such as AMC. More importantly, this Court has to interpret and render the implication and effect of N.-W.F.P. Act No,IV of 2008, which reads that: "The Ayub Medical College Board of Governors Ordinance, 1978, (N. -W.F.P. Ordinance No,XIX of 1978), repealed under section 53 hereby deleted,; shall stand revived as if it had never been repealed."
44. ' As far as the aforementioned provision, whereby section 53 of Act of 2006 was deleted; this Court can only analyze and comment upon the same after we have understood the effect of section 53 of the Act of 2006, whereby the Ordinance of 1978 was repealed, which already stood repealed by section 19 of Act of 1999.
45. ' It is but a cardinal principle of Intelpretation of Statutes', that the legislature is presumed to know the law, judicial decisions and general principles of law. And as stated by Sutharland, in 'Statutory constructions' that; "The legislative language will be interpreted on the assumption that the legislation was aware of existing statutes, the rules of statutory construction, and judicial decisions and that if a change occurs in legislative language a change was intended in legislative result."
46. ' However, the above rule of interpretation has exceptions, which may include where the legislative statute renders an erroneous declaration of existing law. This matter came up before the Privy Council in the case titled Mollwo, March and Co v. Court of Wards (LR IA Supplement 86), wherein, it was discussed that; "The enactment is no doubt entitled to great weight as evidence of law but it is by no means conclusive; and when the existing law is shown to be different from that which the legislature supposed it to be, the implication arising from the statute cannot operate as a negation of its existence."
47. ' In view of the above principle of 'Interpretation of Statutes', this Court has no hesitation to declare that section 53 of the Act of 2006 could not repeal the Ordinance of 1978, when the same already stood repealed by Act of 1999. Hence, this part of the provision cannot negate the non-existence of the Ordinance of 1978.
48. ' Now, moving on to the deletion of section 53 of Act of 2006 by virtue of the provision contained in N.-W.F.P. Ordinance No,X of 2008 and later re-affirmed by N.-W.F.P. Act No,IV of 2008, this Court finds the same to be within legislative authority of its "maker" to delete. Moreover, Section 53 of the Act of 2006 had no legal value, for it was an erroneous declaration of existing law.
49. ' This brings us to the part of the amending provision introduced by N.-W.F.P. Act No,IV of 2009, whereby the Ordinance of 1978 was revived as if it had "never" been repealed. This Court cannot add or delete words to a statute or give it an effect, so as to expand or restrict its meaning.
50. ' In fact, the cardinal principle of 'interpretation of statutes' is for the Courts to first give the ordinary meaning to the words used in the statute. It is only when rendering of the ordinary to the words used in the statutes results in an absurdity or irrationality or leads to a view completely contrary to the object of the statute then the Courts are to apply various principles of interpretation of statutes developed and recognized in law.
51. ' This matter has been very eloquently described in N S Bindra on 'Interpretation of Statutes' (10th Edition) that:- "It is said that when the meaning of language is plain we are not to resort to evidence to raise doubts. That is rather an axiom of experience than a rule of law, and does not preclude consideration of persuasive evidence if it exists This rule embodies the old maxim absolute sententia expositore non eget---plain words need no explanations or in other words, language that is unequivocal and unambiguous does not require an interpreter. There is an exception in the application of this maxim to statutes. The exception is as follows: 'A case with the letter is not within the meaning of the statute if it is not within the .Intention of the legislature, and a case not within the letter is within the meaning of statute, if it is within the intention of the legislature.'
52. "The rule of construction embodied in the Latin maxim is that the legislature meant what it has actually expressed, and the underlying principle is that the meaning and intention of a statute must be collected from the plain unambiguous expression used therein, rather than from any notions which may be entertained by the Court as to what is just and expedient."
53. ' The language used in no way expressly or otherwise restricts the revival of the Ordinance of 1978 to its repeal by section 53 of Act of 2006. The intention of the legislature was, thus, clear in the use of words in the aforementioned provision of reviving law. The word 'never' used by the legislature in the said reviving 'provision is very crucial.
54. ' The dictionary meaning of the word "Never"; as per Oxford Dictionary; is that it is an adverb, means 'at no time in the past or future; not ever'; In Merriam Webster Dictionary, the word 'never' means; 'not ever' 'at no time' and as per Cambridge Dictionary it means; 'not at any time or not on any occasion'.
55. ' Thus, it is the considered opinion of this Court that Ordinance of 1978 was revived by the amending provisions of the Act of 2008, as if it had 'never' been repealed by the Act of 1999 or the Act of 2006.
10. As far as the stance taken by the Provincial Government is concerned, this Court is disheartened by the casual and wavering stance taken by the Provincial Government. What is disturbing is that in an earlier petition filed by present petitioner (W. P. No,155 of 2010), the Provincial Government in their comments clearly supported the view that the Ordinance of 1978 stood revived. While in the present petition, the stance has been changed and it is that Ordinance of 2002 would apply and in this regard the Notification of 3-7-2009 had been issued.
56. ' The reason, so recorded in the latest comments filed by the Provincial Government in the present petition, for the changed stance taken by the Provincial Government is because of the effects and implications of the amending provisions introduced through N.-W.F.P. Act No,IV of 2008 and the Notification of 3-7-2009. This Court does not agree and accept the said reason, as the same is factually incorrect and legally not sustainable in the eyes of law.
57. ' In this regard, the earlier comments in W.P. No,155 of 2010, the Provincial Government clearly stated that the Ordinance of 1978 stood revived and the said comments were filed on 16-5-2011, well after the amending provisions introduced through the N.-W.F.P. Act No,IV of 2008 and even the Notification or 3`-7-2009. This, it does not hold factually correct to state the same to be the anchor sheet of its changed stance for revival and application of Ordinance of 2002 to AMC. Thus, this wavering of stance, raises serious questions regarding the 'bona fide' and 'consistency' of the Government functionaries and this surely diminishes the sacred trust of the public in the commitments made by such government functionaries. Surely, by such callous actions of the executive, the 'victim' would be the 'public trust' and the much needed "good governance".
58. ' This Court is of the firm view that the Notification of 3-7-2009 issued by the Provincial Government-would not apply to AMC, as the provisions of N.-W.F.P. Ordinance No,X of 2008 and N.- W.F.P. Act No,IV of 2008 had revived the Ordinance of 1978. In view of the clear provision of the statutory enactment, the subordinate legislation in the form of the Notification of 3-7-2009 would not be legally applicable to AMC.
11. Before parting with the judgment, this Court was informed that the affairs of AMC have been governed and orders and actions have been taken under Ordinance of 2002 since the Notification of 2-7-2009. What is strange to note is that this was despite the fact that the Ordinance of 1978 was revived by. N.-W.F.P. Ordinance No,IV of 2008. These actions and orders need to be protected and preserved, unless dealt with otherwise in accordance with law, on the principles of 'closed and past transactions'. Reliance may be placed on Tika Iqbal Muhammad Khan's case (PLD 2008 SC 615), Zafar Ali Shah's case (PLD 2000 SC 869), Col. (R) Syed Mukhtar Hussain v. Chairman, Federal Land Commission, Islamabad and 3 others (2004 CLC 1019), Naheed Fatima v. Syed Amir Azam Rizvi and others (PLD 1987 Karachi 670) and Muhammad Afzal v. Province of Sindh and others (2000 YLR 1395).
12. Accordingly, for the reasons stated hereinabove, this Court accepts the present petition in terms that; I. Ayub Medical College (Board of Governors) Ordinance, 1978 stands revived; II Notification of 3-7-2009 shall have no legal application to AMC; III The actions taken and order passed in regulating and carrying on the affairs and management of AMC since 2-7-2009 under Ordinance of 2002 stand protected under the principle of 'past and closed transactions', unless the same are varied, set aside or altered in accordance with law; IV The respondents in particular the Provincial Government are directed to take all steps to ensure the constitution and functioning of the Board of Governors of AMC, as provided under Ordinance of 1978 and the Regulations of 1980.