' SHAH KHAWAR, J. --- Brief facts of the case are that petitioners were offered appointment as Paid Post Graduate Trainee (FCPS-II) by the Principal, Dera Ghazi Khan Medical College, Dera Ghazi Khan vide office orders dated 30.07.2013 and 28.10.2013 respectively. The petitioners accepted the offer of appointment and started working at D.G. Khan Medical College, D.G. Khan. Eleven months have elapsed but not a single penny has been paid to any of the petitioners in the shape of stipend. It is averred that admittedly other P.G.R's. Working in the other institutions/Medical Colleges including Nishtar Medical College, Multan are receiving stipend of Rs, 47,500/- per month but the petitioners have been discriminated. It is also averred in the writ petition that as per clause-13 of the offer of appointment all the petitioners were made to swore an affidavit to the effect that they will not draw any kind of pay/stipend from any other institution till their services with Dera Ghazi Khan, Medical College, Dera Ghazi Khan, thus, ensuring their stipend from D.G. Khan Medical College excluding any other source of income. The petitioners prayed for a direction to the respondents to release the stipend of the petitioner due since their offer of appointment dated 30.07.2013 and 28.10.2013. It was further prayed that respondent No, 1 be directed to sanction SNE for 30 posts of PGR in Dera Ghazi Khan Medical College, Dera Ghazi Khan. Alongwith the writ petition the petitioners have annexed letter dated 03.03.2014 written by the Principal, D.G. Khan Medical College, D.G. Khan to the Secretary, Government of the Punjab, Health Department, Lahore in which he requested for sanction of SNE for three categories i,e, to be made permanent on regular basis through budget estimate during the year 2014.
2. Conversely, the instant petition was vehemently opposed by the respondents. Report and parawise comments were requisitioned, which were so filed. In the report submitted on behalf of the Secretary, Health Department it is contended that the Principal, D.G. Khan Medical College, D.G.
Khan, at his own, selected some Post-Graduate Trainees including the. Petitioners subject to the condition that training will be without stipend vide clause 1 of the offer of appointment dated 30.07.2013 issued by the Principal. D.G. Khan Medical College. D.G. Khan. !t is further mentioned that a proposal of creation of further 290 P.G. Slots for medical colleges functioning under Government of the Punjab, Health Department, in which 30 seats were reserved for D.G. Khan Medical College, which has not been approved by the competent authority as Finance Department has not yet given its concurrence due to financial crunch. It is further submitted that the Post-Graduate Training is allowed to only FCPS Part-II training enrolled by the College of Physician & Surgeons of Pakistan under a Supervisor posted at the relevant institution. Another report on behalf of respondent No, 1 was submitted which inter alia contains that in order to increase the number of paid slots for P.G. Trainees, the Government of Punjab forwarded a summary for the Chief Minister on 22.7.2013. According to which, the Health Department proposed allocation or total 290 seats including 30 seals of D.G. Khan Medical College and on the receipt or information from the Medical College the matter was again forwarded to the Chief Minister, Punjab, through Secretary Finance with the proposal that finds amounting to Rs, 147.900 Million may be released through supplementary grant during the current financial year 2013-14. The Finance Department turned down the proposal of the Health Department on 09.04.2014 by advising that:- "Summary has been re-examined. Finance Department observes that first batch of MBBS enrolled in most of the medical colleges, has not yet Graduated. It is therefore, not advisable to create scats or Postgraduate trainees in such medical colleges at this stage. As far as the other medical colleges are concerned department may indicate total number of seats or Postgraduate trainees in these medical colleges and submit the case for their re-location."
' Finally it is stated that in compliance of the Finance Department observation, the Health Department asked the concerned institution to furnish the requisite information vide letter dated 22.04.2014 and subsequent reminders on 22.5.2014 and 13.6.2014. The requisite information is being compiled and case of SNE shall be re-submitted to the Finance Department on a summary.
3. The Secretary, Health Department, Government of the Punjab appeared personally and explained the position as envisaged in the report and parawise comments. He took a strange stance to the effect that the petitioners were selected by the Principal, D.G. Khan Medical College D.G. Khan, at his own, and no sanction whatsoever was accorded by respondent No, 1.
4. The explanation assigned by respondent No, 1 is not confidence inspiring. The learned counsel for the petitioners invited attention of this Court on the order No, SO(ND)226/2012, dated 03.01.2013. The relevant portion of the order is reproduced hereunder:--- "Governor of the Punjab is further pleased to accord sanction that take home stipend of P.Gs. For 1st year P.G. Trainees shall be equivalent to 90 percent of take home salary of newly inducted regular Medical Officer, posted in Lahore with immediate effect. Simultaneously second year PG Trainee shall get stipend equal to 90% of the take home salary of Medical Officers in 2nd year of service and such formula shall apply till 5th year will be allowed as per CPSP criteria."
5. It has been established that the Governor of the Punjab has been pleased to accord sanction that the stipend of P.Gs. For 1st year P.G. Trainees shall be equivalent to 90% of the salary taken by the regular Medical Officer and in the same manner second year P.G. Trainee shall get stipend equal to 90% of the salary of Medical Officers in 2nd year or service and such formula shall apply till 5th year P.G. Trainee. The above-said notification was issued by the Secretary, on behalf of the Government of the Punjab, Health Department as approved by the Governor of the Punjab.
Meaning thereby, a policy is holding existence in the shape of the above notification for payment or stipend to the P.G. Trainees. The reason assigned for non-payment of stipend to the petitioners and other equally placed P.G. Trainees (FCPS Part-II) as mentioned in the report filed by respondent No, 1 is not acceptable. As proposed in the summary that an amount of Rs, 147.900 Million may be released through supplementary grant during the current financial year 2013-14.
6. The justification assigned by the Finance Department is in violation of the fundamental rights as enshrined in the Constitution of the Islamic Republic of Pakistan, 1973. The supplementary grants are allocated in the annual budget to be spent on the expenditure, which are not specifically sanctioned for a particular purpose. Such grants are allocated for the purposes of such like expenditure, which may occur during the current financial year. According to the mandate of the Constitution of the Islamic Republic of Pakistan, 1973, the Chapter of fundamental rights is an integral part of the Constitution of Pakistan. The fundamental rights as mentioned in the said Chapter are to be adhered to by all State functionaries or the country. The every statutory body or pubic functionary is supposed to function in good faith, honestly and within precincts or its powers so that person concerned should be treated in accordance with law as guaranteed by Article 4 of the Constitution of the Islamic Republic or Pakistan, 1973. Under Article 199 of the Constitution of Pakistan, the High Court, have been given powers to protect the fundamental rights of the citizens and to make sure that a person performing duties within the territorial jurisdiction of the Court, functions in connection with the affairs of Federation, a Province or a local authority to refrain from doing anything he is not permitted by law to do or to do anything he is required by law to do.
7. In the instant case the petitioners have been deprived of their fundamental rights by denying stipend ever since their date of selection. In connection with their training, the petitioners are imparting medical services to the patients in the teaching hospitals like doctors employed on regular basis. Clause-I or the offer letter is violative of the fundamental rights which contemplates that "you will be paid any stipend from this institution." Meaning thereby that the Principal, D.G.
Khan Medical College, D.C. Khan has not to paid stipend but the Province of the Punjab, Ministry of Health Department, which is not paying the petitioners on the excuse that Finance Division has declined the summary.
8. In the said manner clause 13 of the offer of appointment, seems to be standard format for the P.G. Trainees, provides that the trainee must submit an affidavit to the extent that he/she is not drawing any kind of pay/stipend from other institution at the same time he/she will be bound to return the said pay/stipend from other institution at the same time he/she will be bound to return the said pay/stipend in addition to the legal action under the rules. The condition contained in clause 13 above is also in gross violation of the fundamental rights of the citizens. On the one hand, as per clause 1 or the offer of appointment, the trainee has been denied any stipend but in clause 13 they are bound not to receive or draw any kind of pay/stipend from other institutions. Both of the two clauses mentioned in the offer for appointment are in violation or the fundamental rights on the face of it and same are hereby struck down being void and unconstitutional. As mentioned in the report and parawise comments filed by respondent No, 1, Secretary, Government of the Punjab, Health Department that a proposal was formulated in the shape of summary to the Chief Minister on 22.7.2013 where 290 allocation of seats of PG trainees were solicited, this was the bounded duty of the Minister Health as well as the Chief Minister to make a budget proposal in the budget for the year 2014-15 but the same was not done. It reflects the priorities of the executive as to how they are serious in promoting medical education and training.
9. As mentioned above, the supplementary grants are allocated in every financial year in the annual budget to cater with such type of expenses, which are not part of annual budget. The reason assigned that Finance Department did not accede to the proposal of the Ministry is not in accordance with law and the Constitution. Rather the Finance Division is an institution, which has to place check and balance upon the financial activities of the Provincial Government but should also be mindful or the fact that training of doctors and research is need of the times, which will improve the expertise of the Medical Practitioners and the positive affect will trickle down to the down troddens, who cannot afford expensive medical treatment from the private hospitals.
10. For the foregoing reasons, the instant writ petition is allowed with a direction to respondent No, 1, Government of the Punjab, Health Department through its Secretary, Punjab, Lahore to re-submit summary to the Finance Division for providing funds through supplementary grant during the current financial year 2014-15 with a copy of order of this Court so that the Finance Division may not turn down the same on the stereo type grounds. So far as the payment of stipend to the present petitioners is concerned, respondent No, 1, Secretary, Government of the Punjab, Health Department, Lahore is directed to arrange the same after re-appropriation of funds from the heads where budget is unutilized and pay stipend to the petitioners as set by Order dated 03.01.2013 issued un-utilized the Punjab Health Department, Lahore with the approval of the Governor of the Punjab. This exercise shall be completed within a period of thirty days positively.