NISAR HUSSAIN KHAN. J.- Through this single judgment, we are going to decide as many as 7 writ petitions bearing No.420/2015, 526/2015, 2024/2015, 3188/2015, 3189/2015, 3395/2015 and 2643/2015 as, by and large, in all these petitions, vires of Khyber Pakhtunkhwa Medical Teaching Institutions Reforms Act, 2015, have been challenged.
2. Petitioner in W.P.420/2015, challenging the vires of the Khyber Pakhtunkhwa Medical Teaching Institutions Reforms Act, 2015, seeks issuance of an appropriate writ with the following prayer :- "Under the circumstances, it is respectfully prayed that the Khyber Pakhtunkhwa Medical Teaching Institutions Reforms Act, 2015 be declared unconstitutional, unreasonable, impracticable, malafide, perverse and be struck off from the book of statutes and the Khyber Pakhtunkhwa Medical Teaching Institutions and Regulation of Health Care Services Ordinance, 2002, be graciously restored with its full effect by setting aside all the orders which might have been issued by any authority by virtue of the Act of 2015."
3. Brief facts as averred in W.P.No.420/2015 are that petitioner was serving in the Ayub Teaching Hospital as Medical Superintendent whose services were regulated through Khyber Pakhtunkhwa Medical Teaching Institutions and Regulations of Health Care Services Ordinance, 2002 (hereinafter referred to as Ordinance of 2002); that as per Ordinance of 2002, the Institution was autonomous in its governance and functions; that the institution was functioning efficiently sans any problem or interference by the government functionaries when all of a sudden, in the year 2007, petitioner was transferred, which act of the respondents was challenged in W.P.No.326/2007. The writ petition was allowed on 25.10.2007 whereby interference of the government into health institutions was deprecated. The judgment was maintained by the apex court on 18.10.2012; that in 2014, petitioner was transferred yet again from the post of Medical Superintendent which was challenged in W.P.No.232- A/2014 and the petition was allowed on 30.4.2014; that this situation could not be digested by the respondents who out of anxiety and frustration, promulgated Khyber Pakhtunkhwa Medical Teaching Institutions Reforms Act, 2015, whereby posts of Medical Superintendent and Chief Executive have been abolished. It is further averred that the respondents/authorities at the helm of affairs, being debarred from interfering in affairs of health institutions through judicial pronouncements, referred to above, were under extreme stress, and impugned enactment is the culmination of the same; that through impugned Act, respondents have snatched the autonomy of the Institutions as now they have succeeded in acquiring administrative control over the affected Medical Institutions which act cannot be called a bonafide one being against the interest of general public. As such, the petitioner pleads for declaring the impugned enactment as ultra vires constitution and restorations of Ordinance of 2002.
4. W.P.No.526-P/2015 has been moved by Association of Professors, Associate Professors and Assistant Professors etc of Health institutions. It is averred in the petition that Government has been striving in the past to bring bureaucrats and non-technical persons to rule and administer the medical and teaching institutions but could not accomplish their designs because of judicial pronouncements of the superior courts, barring the appointment of non-Doctors to rule the medical/health institutions. It is further stated in the petition that despite existence of Ordinance of 2002, the government has promulgated yet another Act called as Khyber Pakhtunkhwa Medical, Teaching Institutions Reforms Act, 2015, in order to govern the Doctors and Teaching Institutions through non-doctors and thereby direct interference of Ministers and other non-doctors has been introduced which will affect their service structure. Thus, the petitioners seek to declare the impugned Act of 2015 to be ultra vires Constitution, being beyond the competence of the provincial legislature.
5. Petitioner in W.P.No.2024-P/2015 is President of an Association of Doctors working since decades for the welfare and interests of the Doctors and patients in KPK and throughout Pakistan. He is also aggrieved of the impugned Act of 2015 and alleges that entire administration of the Health Institutions under the impugned Act of 2015 would be run by non-doctors, especially the Board of Governors. However, he prayed that the impugned advertisement dated 29.5.2015 and 1.6.2015 regarding appointment of Directors and other staff in the health institutions in the light of Ordinance of 2002 may be declared illegal, without jurisdiction and without lawful authority and consequently, the old set up of administration be restored.
6. Petitioners in W.P.No.3188-P/2015 are nursing staff of Hayatabad Medical Complex, Hayatabad, consisting of both categories of autonomous body and civil servants, duly performing their duties under NWFP Medical and Health Institutions Reforms Act, 1999 and Khyber Pakhtunkhwa Medical Teaching Institutions and Regulations of Health Care Services Ordinance, 2002. They are also aggrieved of the impugned Act of 2015 on the apprehension that respondents would ultimately privatise the health sector and would consequently jeopardise their service structure.
7. Similarly, petitioners in W.P.No.3189-P/2015 are also employees of the Hayatabad Medical Complex Peshawar who have challenged Sections 5,6,7(1) & (3), 8, 9, 10, 11,, 12 & 16 (1)(2)(3) and (5) of Khyber Pakhtunkhwa Medical Teaching Institutions Reforms Act, 2015. They are also aggrieved of the amendment brought in Section 16(3) of the impugned Act of 2015 and pray for issuance of direction to the Provincial Government to add the provision of Director _Para-Medical at par with the provisions of Hospital Director, Medical Director, Nursing Director under Section 10, 12, & 14 of the impugned Act, 2015. They have also taken exception to the new timing schedule of the hospitals.
8. Petitioner in W.P.3395-P/2015 has already filed W.P.No.2024-P/2015, discussed above, but in this writ petition he is aggrieved of appointment of respondent No.4 as Chairman of Board of Governors of LRH as according to him he left Pakistan in 1966 and obtained American nationality. Now he would be ruling and operating the Health institutions from America. The petitioner prays that the appointment of respondent No.4 as chairman of Board of Governors of PGMI Lady Reading Hospital be declared as illegal and without lawful authority.
9. Petitioners in W.P.No.2643-P/2015 are the office bearers of Para-Medical Association, Lady Reading Hospital, Peshawar, comprising of institutional employees and civil servants. It is averred in the petition that petitioners represent health technicians, technologists, radiologists, anaesthetists, pathologists, lab assistants, pharmacists, pharmacologist, surgical technicians, emergency care- givers, physiotherapists, dietetics and all those working in various fields supplementing and supporting doctors and other health care providers in various adjunctive roles. It is further averred in the petition that the Government has been trying in the past to apply different recipes at public health institutions, in the garb of reforms and the instant Act of 2015 is the part of same exercise which seems to be mixture of opposites and true picture of hotchpotch. They further submitted that although a clear protection is provided to petitioners under section 16(3) of the impugned Act 2015, that they shall continue to render services in medical teaching institutions on the same terms and conditions, yet respondent No.4 has issued a letter No.786/III, dated 24.6.2015 with an alarming subject of "withdrawal of civil servants from MTIs" proposing therein to create a "surplus pool" in Health Department with a view to withdraw all civil servants from MTIs and placing them in the so- called surplus pool which requires to be withdrawn. They finally pleaded this court to declare that respondents are not entitled to adversely change the terms and conditions of service of the paramedical staff of LRH through any further order and that respondents are bound to allow meaningful representation of the petitioners' association in the Board of Governors of LRH through appointment of a Paramedical Director.
10. Mr. Mushtaq Ahmad Tahirkhaili, learned counsel for petitioner in W.P.No.420/2015 by opening the case, at the very outset, raised preliminary objection regarding fixation of this case before this Larger Bench because, earlier, this case was heard by a Division Bench of this court and after conclusion of arguments on both sides, instead of announcing the order, case has been fixed before this Bench and as such taking away the case at such stage, is against the judicial propriety.
The objection is misplaced and misconceived. Though the case was heard by a Division Bench, nevertheless, it was sent by the same Hon'ble Bench to Hon'ble the Chief Justice for fixation before any other Bench. Since this Bench was already hearing similar cases wherein vires of KPK Ehtesab Commission Act, 2013 was challenged, therefore, counsel in rest of petitions requested that this and the connected cases be also fixed before this Bench and by doing so, interest of no one has been prejudiced, hence objection being misplaced was repelled at the outset.
11. Learned counsel submitted that petitioner has challenged the vires of Khyber Pakhtunkhwa Medical Teaching Institutions Reforms Act, 2015 (hereinafter referred to as Act of 2015) as it is based on the malafides of the originators of this Act; that for achievement of their hidden objectives through the impugned Act, the bureaucracy through Notification dated 25.3.2015 have abolished the posts of Medical Superintendent and Chief Executive which resulted in removal of petitioner from the post of Medical Superintendent, Ayub Teaching Hospital and since then he is sitting idle at home. Learned counsel by highlighting the backdrop of facts leading to the impugned enactment, contended that battle between petitioner and government started in the year 2007 when petitioner was transferred by the respondents with replacement of Dr. Zafeer Hussain which order was impugned before this Court in W.P.No. 326/2007 which was decided in his favour on 25.10.2007. This was not the end of the episode. Petitioner was once again transferred in 2014 which order was struck down by this Court in W.P.No. 232-A/2014. That this Court by setting aside the transfer orders of the petitioner held that Government has no authority to interfere in the affairs of the Medical Teaching Institutions and since then the matter has attained finality as the apex Court too maintained the rule laid down by this Court.; that before impugned Act of 2015, the affairs of the Ayub Teaching Hospital were regulated by Ordinance of 1978 which remained in vogue till 1999 when NWFP Medical and Health Reforms Act, 1999 was promulgated and the former was repealed.
However, Act of 1999 was repealed when Ordinance of 2002 came into existence. The Ordinance of 2002 remained in the field till promulgation of the impugned Act of 2015. Learned counsel for petitioner went on to state that the Ordinance of 2002 was a beneficial legislation, catering all requirements of the Medical Institutions and; that out of the blue, respondents enacted the impugned Act with malafide intention to get control over the selected Medical Institutions. At this juncture, learned counsel for petitioner took us to various provisions of both enactments, i.e. Ordinance of 2002 and Act of 2015 and submitted that under Section 3 of Ordinance of 2002, all the Medical Teaching Institutions were declared autonomous and all the affairs of the Health Institutions were regulated and controlled by the Medical Council, constituted under Section 7 of the repealed Ordinance of 2002, which autonomy has been taken away through the impugned Act of 2015. Learned counsel further submitted that the judgments passed by this courts in earlier writ petitions, referred to above, are judgment in Rem because these judgments barred the interference of the bureaucracy into the affairs of the Health Institutions and as such the impugned enactment is violent disregard of the judgments of this Court. Further submitted that in the Preamble of the impugned Act of 2015, on one hand, the respondents propagated about autonomy of the Health Institutions while on the other, they themselves have not only snatched away, rather destroyed and strangulated such autonomy by replacing the Management Council through Board of Governors whose most of the members would be lay members hailing from the private Sector.
Learned counsel while arguing the case on point of malafide and bad intention behind the impugned enactment, submitted that the pronouncement of the superior courts regarding autonomy of the Medical Institutions has been violated by the impugned legislation as it is short of its bonafide intents. In this regard he referred to ratio of Contempt Proceedings against Chief Secretary, Sindh and others(2013- SCMR-1752) and Baz Muhammad Kakar Vesus Federation of Pakistan through Ministry of Law and Justice & others (PLD 2012 Supreme Court 923) and submitted that the impugned legislation is violation of Article 2-A of the Constitution relating to Objective Resolution because it has been promulgated for collateral object of the bureaucracy, which also infringes the independence of judiciary. He maintained that since the impugned legislation is offending the very spirit of objective resolution, embodied in Article 2-A of the Constitution, therefore, such legislation being ultra vires Constitution may be struck down. He placed reliance on Wattan Party through President versus Federation of Pakistan through Cabinet Committee of Privatization, Islamabad PLD 2006 Supreme Court 697 , Messrs Brooke Bond Pakistan Limited through Chief Executive Versus Province of Sindh through Province of Sindh through Secretary, Ministry of Finance, Sindh and 3 others (2001 CLC- 148) and KC Gajapati Narain Deo Vs State of Urissa ( AIR 1953 SC-375). He went on to state that the very object of impugned legislation militates the provisions of the Constitution as it does not cater the requirements of the people of KPK. To supplement his arguments, he placed reliance on Manager Jammu & Kashmir, State Property in Pakistan Vs Khuda Yar and another (PLD 1975 SC 678) and submitted that it is the prerogative of this court to determine the hidden object of the legislation in hand. By concluding his arguments, learned counsel submitted that just to remove the petitioner, entire exercise of promulgation of impugned enactment has been undertaken which is based on malafide and ulterior motive and is required to be struck down.
12. Mian Muhibullah Kakakhel, learned counsel for petitioner in W.P.No.526/2015, 2024/2015 & 3395/2015 while referring to Articles 240, 27 and 212 of the Constitution of Islamic Republic of Pakistan, 1973 which deal with the service of Pakistan, contended that civil servants cannot be dealt with in the manner provided in the impugned Act of 2015 as all the employees working in the Medical Institutions and Medical Colleges are civil servants and before promulgation of impugned Act of 2015, their services were regulated through Ordinance of 2002, Civil Servant Act,1973 & Efficiency & Disciplinary Rules, 1973 and in the presence of all these laws, there was no need to introduce the impugned Act 2015. He further submitted that there are certain inherent deficiencies in the impugned Act of 2015 because of which it has been challenged to safeguard the interest of the employees and all other stake holders; that there are 10 Medical Institutions in the province of KPK but only four out of them have been singled out for application of impugned Act which act on the part of respondents clearly manifests their malafide intent; that petitioner is Teachers Association which is not a registered body but in light of judgment of the apex court in Habibullah Energy Limited and another Vs WAPDA through Chairman and others (PLD 2014 SC-47), even a passer-by can bring the cause. Whereas the petitioners are government servants working in the Medical Institutions of KPK; that as per impugned Act 2015, the non-doctors would run the Medical institutions which is against the soul and spirit of the principle laid down by the august Supreme Court in 2003 SCMR 104 wherein it has been categorically held that there should be Doctor to control affairs of the Doctors. Learned counsel took exception to the constituent members of the Board of Governors and submitted that it consists of non-doctors and even imported members; that under the impugned Act 2015, the appointment of Principal and other slots would be made on the novel criteria of "merit-cumfitness" disregarding the erstwhile criteria of "seniority-cumfitness" which of course is a new invention for intervention into service structure. Learned counsel for petitioners took us to the various provisions of the impugned Act and submitted that this Act in terms of Section 16(5) has taken away the status of civil servants from the employees of Medical Institutions while on the other hand Section 21 of the Act speaks otherwise as such it is inherently defective and self destructive. Learned counsel while highlighting the background of the Khyber Medical College submitted that it was first Medical College in the province of KPK which was an independent entity but in the year 1975 it was taken over by the Government and since then its employees and assets are owned by the Government. At the initial stages, Khyber Medical College and Hayat Shaheed Teaching Hospital were taken over under the Taking Over Act of 1975; that Medical Teaching Institutions (MTIs) are the components of Medical Colleges and each MTI is affiliated or attached with Medical College while under the impugned Act of 2015, all the MTIs would be run by the Board of Governors, a component of private members, which will appoint and regularize the services of the employees of the MTI which is against the spirit of Civil Servants Act.
He submitted that though malafide to the legislature cannot be attributed but out of sheer zeal to achieve their ulterior motives, they have promulgated this Act and while doing so, they have introduced some of the provisions which are offensive, rather violative of the constitutional provisions and that under this Act even retired and private people would be employed in the MTI, which is against Civil Servants Act as well as the judicial verdict of the apex court and placed reliance on Mir Muhammad Idris and others Vs Federation of Pakistan through Secretary Ministry of Finance and others(PLD 2011 SC-213). He further contended that expression life used in Article 9 of the Constitution of Islamic Republic of Pakistan, 1973, has an extended meaning which includes a right to work and earn. He also contended that though in the normal cases no malafide can be attributed to an act of the Legislature but where it is enacted to oust the incumbents to pave the way for a blue eyed, it would be malafide out and out and would thus call for being struck down. He went on to argue that the impugned Act of 2015 has made the MTIs as money minting machines or industries, while these are supposed to provide all medical facilities to the people, free of cost. To supplement his host of the arguments, placed reliance on 2013 SCMR 1752, 2014 SCMR 484, 2013 SCMR -195, 2006 SCMR 697. 2001 CLC- 148, PLD 2014 Islamabad High Court-83, PLD 2012 SC-292, PLD 2014 Sindh-48. On the point of discrimination, he submitted that the impugned Act is discriminatory in the sense that by bringing outsiders to the Institutions, the incumbents already serving in the Institutions would be by-passed and their chances of promotions would be diminished and contended that if any right is taken away by the certain law, it is to be struck down under Article 8 of the Constitution and placed reliance on PLD 2014 SC 283. At the last leg of his arguments, he submitted that it is settled law that if some of the provisions are mischievous or repugnant to certain provisions of the Constitution, it requires to be struck down as a whole. Placed reliance on PLD 1947 Privy Council- 387.
13. Mr. Muhammad Zafar Tahirkheli, learned counsel for petitioners in W.P.No.3188 & 3189 of 2015 submitted that petitioners are nursing staff of the Medical Institutions and they are aggrieved of certain offensive provisions of the impugned Act, especially relating to their service structure i.e. Sections 10(4), 16(3) and 14 of the impugned Act. However, on assurance of learned counsel for the respondents that the said offending provisions have been withdrawn, nevertheless, learned counsel despite assurance, sought for judicial review of the Act. Placed reliance on 2013 SCMR 1752.
14. Mr. Shumail Ahmad Butt, learned counsel for petitioners in W.P.No. 2643-P/2015 submitted that petitioners, who are paramedics staff, are doing the same job like the Doctors and nurses and they are part and parcel of the system but the impugned Act of 2015 is not only silent about their fate but no Director for their cadre has been provided in the Act which amounts to sheer discrimination.
He referred to Article 264 of the Constitution read with Section 6 of the General Clauses Act and submitted that a right has been accrued to them under repealed erstwhile Ordinance of 2002. He went on to state that the Health Sector is concern of the Federal Government in accordance with Entries No.11 & 12 of fourth schedule of Constitution (Part-II) read with Articles 153 & 154 of Constitution and the matter is sent to the Council of Common Interests which is also represented by Chief Ministers of all the provinces. He further submitted that after 18th amendment, all the provinces through Resolution of the Provincial Assemblies entrusted authority, to regulate entries No.11 & 12, in the Federal Government under Article 144, which led to the establishment of Health Regulatory Authority. Regarding reasonability and proportionality of the impugned Act, he relied on PLD 2006 SC-697(e) and stated that this court can strike down the Act on the ground of un- reasonability. Placed reliance on PLD 2013 Lahore 693 (a,b, p), PLD 2007 SC 642, 2912 PLC (CS)-1052 (b). He further submitted that the phrase" till further orders" in Section 16(2) of the impugned Act is a hanging sword for the petitioners; that services of the petitioners are governed through Rules of 2001 which have been given protection under Section 34(3) of Ordinance, 2002, but impugned Act of 2015 is silent about Rules of 2001 as in the event of repeal of Act or Rules, their rights cannot be taken away under Section 6 of the General Clauses Act read with Article 264 of the Constitution. He submitted that there are two types of Ultra vires, one is procedural and the other is substantive, placed reliance on PLD 2013 Lahore 693 and contended that the superior courts have the power to see reasonability and proportionality of the law enacted; that the impugned Act is violative of Article 25 of the constitution as by not appointing Director for cadre of petitioners, it has not provided rational classification. Placed reliance on 1990-SC-513(e).
15. While responding to the arguments of learned counsels for petitioners, Mr. Syed Arshad Ali, learned counsel for respondents/ LRHBHMC/MTIs contended that so far as restoration of the petitioner Dr. Iftikhar against the post of Medical Superintendent is concerned, after promulgation of Act of 2015, the post of M.S. In all the MTIs has been abolished; that the authority which created the post, can also abolish the same; that appointment of petitioner against post of M.S. Is not his vested right as the petitioner being Senior Medical Officer can be appointed in any Ward or Hospital without affecting his pay and status and the Ordinance of 2002 does not provide any tenure for the said post as it is a selection post; that petitioner pleads for revival of Khyber Pakhtunkhwa Medical Teaching Institutions and Regulation of Health Care Services Ordinance, 2002 which has been repealed through impugned enactment, suffice it to say that the Ordinance is not applicable to Ayub Medical College and Teaching Institution; as regards nullifying the effect of judgments of this court barring interference of government in the Medical institutions, the learned counsel stated that though Ordinance of 2002 was discussed in the said judgments but nowhere vires of the said Ordinance were challenged; that Ordinance, of 2002 dealt with two organs, i.e. Health Regulatory Authority and the Medical Institutions, managed and controlled by the Management council and Management Committees of the concerned MTIs. At this juncture, learned counsel took us to various provisions of the repealed Khyber Pakhtunkhwa Medical Teaching Institutions and Regulation of Health Care Services Ordinance, 2002 and contended that option was also given in the earlier Ordinance, of 2002 and same has been provided in the impugned enactment as well but with bit difference that previously there was a combined seniority of MTI employees and non-MTI employees serving in the MTI as civil servants but now the employees who will not opt for adjustment in the MTI will be dealt with in accordance with Section 11-A of the Civil Servants Act, so the issue of joint seniority has been done away in the instant set up.
He further contended that basic concept of introducing private people to the administration of the Health sector is to provide autonomy as well as better health facilities to the people. Learned counsel further submitted that as per impugned Act 2015, the internal administration of the hospital would be in the hands of Doctors and in order to support this arrangement, learned counsel submitted, that not only in Pakistan but throughout the world, the Health institutions are controlled and managed by the lay-members, rather Bar councils are managed by lay members.
He quoted the example of Agha Khan Hospital, Karachi, Shaukat Khanam Hospital, Lahore and Indus Hospital. He went on to state that the erstwhile Ordinance of 2002 covered all the health institutions but now two Acts, i.e. Khyber Pakhtunkhwa Medical Teaching Institutions Reforms Act, 2015 and Khyber Pakhtunkhwa Health Care Commission Act, 2015 are in place and each Statute is governing its own fields; that in the previous set up, Chief Executive and the Management council were running the show while under the impugned Act of 2015, both have been replaced by Board of Governors who shall be assisted by Directors of various disciplines including Hospital, Medical, Finance and Nursing Directors etc. And all these Directors would be responsible to the Board.
Regarding doctrine of occupied field he submitted that legislature is better placed to assess the need of new legislation. As regards W.P. No.2024/2015, he submitted that petitioner is neither employee of the institution nor a government servant or a civil servant, so he has no locus standi, being an unregistered association, so writ is not maintainable. In support of his above submissions, he placed reliance on PLD 1983-S.C -457, PLD 1997-SC-11, 2002 SCMR -312, 2013 SCMR 1752, PLD 2012 Sindh - 129, 2015-SCMR -1739PLD 2003 SC- 143, 1999-SCMR 1566, 1999-PLC(CS) 2357, 2011 CLC 368, 2011 PLC (CS) 336, PLD 1964-Lahore-138 and 2013 PTD 1582.
16. M/s Isaac Ali Qazi and Muhammad Faruq Malik, learned counsel for respondent No.5/KTH in W.P.
No.2024/2015 contended that under the impugned Act, services of civil servants working in the MTIs have been protected under Section 11-A of the Civil Servants Act 1073, thus the apprehension of the petitioners that they will not be given due right is misconceived and unfounded as numerous vacancies are available in other Health Institutions where they can be absorbed/adjusted. He further submitted that the impugned Act is re-organization and streamlining of the Health Institutions as previously the Hospitals were run by the Chief Executives but now the entire managements has been distributed and assigned to a team of specialized brains of respective fields, e.g. Medical Director, Hospital Director, Finance Director and Nursing Director etc . He went on to submit that credibility of members of Board of Governors would be above board who will perform their duties without any salary, except normal T.A/DA charges for attendance of Board meeting.
17. Mr. Shakeel Ahmad, learned counsel for respondents/ HMC/LRH in W.P.No.2643 & 526 of 2015 submitted that wisdom of the legislature cannot be challenged in writ jurisdiction, placed reliance on PLD 1957-Dacca-101 and CLC 2002 Peshawar-624 and PLD 1970 Lahore 741; that malafide cannot be attributed to legislature, placed reliance on PLD 2015 Peshawar-26, PLD 1988 Supreme Court (AJK)-53 and PLD -2005 Karachi-55. Regarding argument of the learned counsel for petitioner that the impugned enactment is tantamount to nullifying the effect of judgments passed by the superior courts, learned counsel relied on 2003-SCMR-1611. He further submitted that the impugned enactment would not snatch rights of the employees, placed reliance on PLD 2015 Quetta-69.
18. Learned Advocate General while defending the impugned enactment contended that vires of a statute in view of the pronouncements of the superior courts, can be adjudged on the touchstone of three grounds :- I Whether the law enacted is against Fundamental Rights guaranteed by the Constitution of Islamic Republic of Pakistan, 1973? ii. Whether the impugned enactment is against any provision of the Constitution? iii. Whether it is against the independence of judiciary.
He submitted that since under Article 137 of the Constitution, it is within the legislative competence of provincial legislature to enact the impugned law which is an effort to improve the health facilities which is prime responsibility of the Government under Article 38 of the Constitution, so it is in accord with command of Constitution. As regards violation of fundamental rights, the learned AG submitted, that he has not been able to understand as to how this enactment is violative of fundamental rights, rather it is mere an unfounded assertion. The learned AG took us to various provisions of the Constitution and stated that Articles 29 to Articles 40 deal with the policy matters and stated that the impugned Act is not against any of the provisions of the Constitution.
Responding to the arguments of learned counsel for petitioner in W.P.No.420/2015, he contended that after commencement of the impugned Act, petitioner's post of Medical Superintendent has been abolished and the Government is competent to do so, beside that, petitioner has no vested right to remain as M.S. For ever. As regards the argument regarding nullifying the effect of judgments of this court, he submitted that in the said judgments, vires of Ordinance of 2002 were not discussed nor challenged, so this argument has no force. He relied on 2002-SCMR-312 wherein it has been held that vires of a statute cannot be questioned on the ground that it nullifies the judgment. As regards the argument that the impugned enactment has been passed in a haphazard manner without being debated in the Assembly, he contended that proceedings of the Assembly under Articles 68 & 69 of the Constitution are immune from being challenged in any Court. Likewise, conduct of a judge of superior courts cannot be discussed or debated in the parliament. He relied on PLD 1958-SC-397, PLD 1990-Lahore 488, 1999-MLD-2411, 1990 MLD 3431. PLD 2011 Lahore-115. He went on to argue that Objective Resolution was made part of the Constitution in 1985 but an enactment cannot be declared ultra vires on the basis of objective resolution unless it is violative of any provision of the Constitution. Rather Article 2-A of the constitution cannot be used to struck down a statute. To augment his viewpoint, he placed reliance on PLD -1993 SC-901. PLD 1989-Karachi-371, 1996 CLC 722. 2015 SCMR 1379 and PLD -2015 SC 395.
19. Learned counsel for petitioner in W.P.No.420/2015 in rebuttal to arguments of learned Advocate General and other counsel for the respondents, submitted that Ayub Medical College is not a teaching institution as worded in the opening sentence of Impugned Act 2015. Rather it is basically a medical and health institution and not teaching institution alone. Before 1999, AMC was run under the Ordinance of 1978. The intent of the impugned Act is only to take over the control and management of the Health Institutions by the Government. He further submitted that when there was already an enactment of Ordinance 2002 under which all the Health Institutions of the province were efficiently controlled and managed, the Legislature is not competent to legislate when the field is already occupied. He placed reliance on 2013 SCMR-1752 , and stated that by promulgating impugned Act of 2015, the respondents have done the same thing which was condemned by the High Court and Supreme Court in their judgments which is tantamount to nullification of judgments of the superior courts through enactment, as such the impugned Act of 2015 has achieved nothing except warding off the impact of judgments. So in this background, it amounts to colourful legislation. He went on to argue that every effort should be made to maintain independence of judiciary, placed reliance on PLD 1993 SC 901 (a), PLD 2015 SC 401(C-d), PLD 2012 SC 923(p) and PLD 2014 Islamabad-83 (a& b). He maintained that if the impugned Act is looked into the background of judgments of the superior courts, it undermines the independence of judiciary which is thus ultra vires constitution. Placing reliance on 2000 SCMR -567(a), stated that it is the superior courts which have been vested with power of judicial review of an enactment, as the new law has brought nothing but chaos and anarchy in the institution. He also placed reliance on PLD 1947 Privy council-387(b) and submitted that if certain portion of the Act is ultra vires, the entire law is held ultra vires constitution.
20. Learned counsel for petitioners in W.P.No.526 and 2024 of 2015 in reply to arguments of learned counsel for respondents highlighted the background of objective Resolution till its becoming part of the Constitution in 1985 through 8th Amendment and submitted that independence of judiciary should be fully secured, placed reliance on 1973-Lahore-164 (b) and 1992 SCMR -2192 (s). He further contended that at present Health Regulatory Authority has been replaced by Health Commission Act, 2015. Though Essential Services Act, 1958 is in the field but it failed to control day to day strikes and mismanagement in the health institutions. BOG is headed by a person, aged about 78 year, who is politically motivated, thus paving way for political influence and privatization of health institutions. That MTI Act of 2015 does not cater for emergencies in the hospitals, therefore, it is in conflict with the Essential Services Act of 1958. He further submitted that the Government had sent hundreds of Doctors to get training in Management cadre but impugned Act of 2015 is silent about their fate; that the impugned Act of 2015 has been made applicable to only four institutions in the province while remaining 6 institutions are out of its domain. As regards agreements arrived at between the Doctors and the Government, he contended that these agreements were signed through coercive measures. Placed reliance on PLD 2013 Supreme Court-195 and 2013 SCMR 1752 (c, a).
21. Syed Arshad Ali, learned counsel for respondents, responding to the arguments of learned counsel for petitioners stated that Article 264 is not applicable to the ordinary Acts; that rights claimed by the petitioners are under the Rules and not under the Act. He placed reliance on 2002 SCMR 312, 2014 SCMR 1630. As regards the request of petitioners/paramedics qua appointment of their Director, he submitted that suggestion may be made and considered. He relied on PLD 1995- SC-423, PLD 1993-SC- 210 and 2012 SCMR -686, 1995 SCMR 1856, PLD 1995 SC -423(e) , PLD 2007 Quetta-155, 2013 SCMR- 279 and 1062 and 2014 SCMR 1630.
22. We have heard learned counsel for petitioners, in all the writ petitions, the learned Advocate General and counsel for the respondents at length and have gone through the case law and material appended with the petitions and produced at the bar, with their valuable assistance.
23. To begin with, it would be apt to refer the saying of Aristotle: "To seek to be wiser than the law is the very thing which is by good laws forbidden" while Chief Justice Marshall said: "Judicial power, as contra distinguished from the power of the law, has no existence. Courts are the more instruments of the law, and can will nothing". Quotations of two legendaries of their times: a sage and a jurist Judge would be warp and woof for entering in the realm of constitutional and legal discourse. The quotations referred by Mr. A.K. Brohi in his "Fundamental Law of Pakistan" would be beacon for steering us to justly resolve the questions before us.
24. The controversy stated in grounds of the petitions and as emerged during the arguments of all the counsel for declaration the impugned Act ultra vires the Constitution can precisely be enumerated as : I. Firstly, it was an incompetent legislation; II. Secondly, the field was already occupied by Ordinance of 2002; III. Thirdly, that it was a malafide legislation to nullify the judgments of the High Court as well as Supreme Court; IV. Fourthly it is offending the Fundamental Rights of the petitioners enshrined in the Constitution, falling in mischief of Article-8 of the Constitution of Islamic Republic of Pakistan, 1973; V. Fifthly, that the rights accrued to the petitioners, whether employees of the institution or civil servants, in view of the previous legislation cannot be taken away through the impugned Act; and IV. Sixthly, that outsiders being non-doctors cannot be assigned the task of management and administration of the Medical profession as well as institution.
25. We, firstly, would like to examine the Constitutionality and competence of legislation of the impugned Act of 2015 (Act No. IV of 2015) which, of course, is of paramount consideration on which rests the fate of later questions, raised by the petitioners.
26. Mr. Shumail Ahmad Butt, counsel for petitioners in W.P.No.2643/2015 has emphatically urged the ground by referring to Article 154 and entries No.11 & 12 of Part-II of 4th Schedule of the Constitution.
Article 153 of the Constitution relates to Council of Common interests to be appointed by the President , comprising of Prime Minister as its Chairman and Chief Ministers of the Provinces and 3 members from the Federal Government to be nominated by the Prime Minister as its members which is responsible to the parliament and submit its annual report to both the houses. Article 154(1) of the Constitution contemplates that the council shall formulate and regulate policies in relation to matters in Part-II of Federal Legislative List and shall exercise supervision and control over the related institutions. Rest of the sub clauses of Article relate to procedural contours of the council. Before 18th amendment, entry No.11 of Part-II of the 4th Schedule was part of the Concurrent Legislative List as entry No.43 while entry No.12 is new conception, and modified abstract of entry 38 of concurrent legislature list. In concrete textual form, before 18th amendment it was neither part of Federal Legislative List nor of Concurrent Legislative List. The object of 18th amendment, obviously, was to vest the provinces with maximum autonomy, both, in legislative and administrative spheres. The authority of the Federal Government in the matters occurring in concurrent list has been taken away with certain safeguards supplied in Article 137 & 148(1) in the administrative& executive fields, respectively. While interpreting an Article of the Constitution, it may be taken conjunctively with the rest of the Articles of the Constitution. An Article may not be taken in isolation for a specific purpose in disregard of rest of the provisions of the Constitution, in a way that it may defeat the very intent and command of the whole scheme. It is basic principle of interpretation that it be harmoniously visualised by putting the whole content of the constitution in juxtaposition to evolve harmonious and purposive construction, demonstrating the very intent of the legislature. The interpretation that may lead to a discordant letter and dissonant spirit is to be avoided. The concept of written constitution is to provide guidelines for smooth functioning of different organs of the state, within the bounds of their defined respective domains, to achieve the ultimate goal of a civilized society and a prosperous state. The fabric of our constitution is artistically articulated with fine fibres of different shades, representing all the entities, with meticulous, brainstorming efforts put in marathon sessions of legislature. Every word and Article is complementary and supplementary to the other. An incongruous construction or interpretation is bound to nullify the very spirit of the constitution which the courts have always avoided, being custodian of it, by virtue of their oath. Article 154(1) of Constitution relates to the formulation of policies relating to entry No.11 & 12 of Part-II of the 4th Schedule. It explicitly speaks of legal, medical and other professions and standards in the institution for higher education and research, scientific and technical institutions. There is no cavil about formulation of policies and regulations of legal, medical and other professions being the domain of Federal Government. By retaining this entry in Part-II of Federal Legislative List, primarily, the legislature has given protection to establishments, like Pakistan Medical and Dental Council established under Pakistan Medical and Dental Council Ordinance, 1962, Pakistan Bar Council being creation of Legal Practitioners and Practice Act, 1973 and Pakistan Engineering Council created by Pakistan Engineering Council Act,1976. These and alike are the institutions which regulate the relevant professions within their domain and also provide standards of education by formulating the policies and rules. Entry No.12 is also supplementary to Entry No.11 by virtue of which formulation and regulation of the policies regarding standards of higher education and research have also been vested in the Federal Government to give legal sanctity to the establishment like Higher Education Commission which sets out the standards of higher education, qualification of different degrees and allied functions. By no stretch of imagination, Article 154 of the constitution with reference to entries No.11 & 12 to Part-II of the 4th schedule can be blown out of proportion to an extent which may take away legislative and executive powers of a province enshrined in Article 137 and 141 of the Constitution.
27. The Constitution of 1973 is based on trichotomy of powers pronouncing three pillars of the State: legislature, executive and judiciary. The legislature has the power to legislate the law and executive is to implement the same. Whereas the judiciary is to supervise the whole mechanism and oversee the acts and omissions of the executive as to whether those are being exercised within the parameters set in the Constitution and the law or otherwise. It is well settled that none of the organs of the State is supposed nor required to interfere or encroach upon the field of others.
Though the courts have the power of judicial review of every action of the executive, nevertheless is not empowered to legislate nor supposed to. On this principle, the courts are to interpret the law and dispense justice in accordance with the law in existence. They are not to supply an omission in any statute nor in the constitution. Since the courts are creation of the Constitution itself, they are supposed to exercise their powers within its framework and at the same time are also to protect the constitution and the rights provided therein if are infringed and invaded. Article-8 of the Constitution expressly commands that State shall not make any law which may take away or abridge the rights conferred and if so made in contravention thereof, that shall be void. No law can be enacted by the legislature which may take away or affect any right conferred under Chapter-I of Part-II of the Constitution. The High Court while examining the law if finds it violative of fundamental rights, oppressive, confiscatory in nature or beyond the legislature competence, is to strike it down while exercising its power under Article-199 of Constitution.
28. This bring us to examine the KPK Act, 2015 at the touchstone of principle expounded hereinabove. The very title of the impugned Act of 2015 describes it as Khyber Pakhtunkhwa Medical Teaching Institutions Reforms Act, 2015. The preamble of the impugned Act speaks to provide autonomy to the government owned Medical Teaching Institutions and their affiliated Medical Teaching Hospitals in the province of the Khyber Pakhtunkhwa and to improve performance, enhance effectiveness, efficiency and responsiveness for the provision of quality healthcare services to the people of the Khyber Pakhtunkhwa. The title and preamble of the Act explicitly refer to the Medical Institutions and Health care services, which, all along have remained subject of the province being its sole domain. The Medial Institutions and Health Care services have never been the subject of Federal Government even prior to 18th amendment which is conspicuous by its absence from the erstwhile Concurrent Legislative List and Federal legislative list of fourth schedule, with only exception of entry No.23 of concurrent legislature list relating to reception and 39 treatment of mental illness and mental retardation. The establishment of different medical institutions and medical colleges through different legislative instruments, soon after the promulgation of Constitution of 1973, is the express and vivid manifestation of exclusive domain of the provinces. One may conveniently refer to Ayub Medical College (Board of Governors)
Ordinance, 1978. In view of this Constitutional, legal and factual position, objection so raised is not sustainable.
29. The next objection required to be addressed is of "occupied field". According to learned counsel for petitioners, the field was already occupied by Khyber Pakhtunkhwa Medical and Health Institutions Regulation of Health Care Ordinance, 2002 (Ordinance No.XLVII of 2002), hence impugned Act is liable to be struck down on this ground too. This objection more often than not, is raised when a provincial legislature enacts a statute on the subject which is already occupied by the Federal Act. The doctrine is based on the principle to avoid any conflict of the central and provincial laws. When such conflict emerges between the two laws, it attracts principle of repugnancy. It is settled that when both the legislatures, provincial and Federal are competent to concurrently legislate on the same subject and obedience to provincial legislation would not be achieved without disobeying the federal law, the provincial law to that extent would be repugnant and thus void. This question has since long remained subject of consideration of the foreign courts as well as courts of sub-continent, during which allied and ancillary principle of paramountcy, pith and substance, occupied field and principle of repugnancy emerged. The doctrine of paramountcy states that where there is conflict between the validity of provincial and federal laws, the Federal law will prevail and the provincial law will yield to the extent which contradicts with the federal law.
The principle is based on the notion that compliance of both laws is impossible or actual compliance is possible to provincial law, but is incompatible to the spirit of federal law and thereby frustrate the independence of the federal enactment. However, if both the laws are, though overlapping but field of their operation is clear and they do not conflict inter se, in their operational fields, neither of them may be ultra vires. However, if the field is not clear then federal law is to prevail. The principle is to obviate the obvious result that the compliance with the one law involves breach of the other. There may be a situation where provincial statute may have some conflicting provisions alongwith supplemental and duplicative to the Federal statute. The conflicting provision may be severed, for supplemental may be operative when those do not conflict with the federal law and to that extent it shall be valid and operate concurrently with the federal law. The principles of paramountcy, duplication and supplemental provision have elaborately been discussed and settled in Provincial Secretary of P.E.I. Versus Egan and A.G., of P.E.I. (1941) S.C.R.396. In case of Grand Trunk Railway Company of Canada Vs A.G. Of Canada ( 1907) A.C.65 by the Privy Council. Clyde Engineering Company Limited Vs Cowburn and Metters Limited Vs Pickard and Lever Brothers Limited Vs Pickard( 1926 High Court of Australia 466).
30. On acquisition of independence by the people of sub-continent and emergence of two States, they promulgated their respective Constitutions. In Article 254 of the Indian constitution, principle of repugnancy of the provincial law to the extent of its conflict with the federal law has been set out. In Zeverbhai Amaidas Vs The State of Bombay ( 1954 AIR-752), the same principle was adopted with reference to Article 254 (2) of the Indian Constitution by holding that when there are laws covering the same ground, both by the Federal and Province, and both being competent to enact the same, the law of the centre will prevail over that of the state law. In Ch. Tikka Ramji & others Vs State of Uttar Pradesh ( AIR 1956 SC-676), beside other it was also stated that no question of repugnancy under Article 254 of the Constitution would arise where parliamentary legislation and State legislation occupied different fields and dealt with different and distinct matters, although of allied characters. While examining the repugnancy it would be taken into account that whether parliamentary and state legislations while legislating on entry in the concurrent legislative list, exercise their power over the same subject matter and whether laws enacted by the parliament were intended to be extensive so as to cover the entire field. By commenting on this aspect, the Indian Supreme Court referred to excerpt of Isaac J in Clyde Engineering Company Limited Versus Cowburn which reads as "If, however, a competent legislature, expressly or impliedly, evinces its intention to cover the whole field, that is conclusive test of inconsistency where other legislature assumes to enter to any extent upon the same field."
Another reference was made to observation of Dixon J. Made in Ex Parte Mclean (1980) 48-C.L.R. 472 which reads as follows : "When the parliament of the Commonwealth and the parliament of a State each legislate upon the same subject and prescribe what the rule of conduct shall be, they make laws which are inconsistent, notwithstanding that the rule of conduct is identical which each prescribes and section 109 applies. That this is so settled, atleast when the sanctions they impose are diverse. But the reason is that, by prescribing the rule to be observed, the Federal statute shows an intention to cover the subject matter and provide what the law upon it shall be. If it appears that the federal law was intended to be supplementary to or accumulative upon state law, then non inconsistency would be exhibited in imposing the same duties or in inflicting different penalties. The inconsistency does not lie in the mere co- existence of two law which are susceptible of simultaneous obedience.
It depends upon the intention of paramount legislature to express by its enactment, completely, exhaustively or exclusively, what shall be the law governing the particular conduct or matter to which its attention is directed. When a federal statute discloses such an intention, it is inconsistent with it for the law of a State to govern the same conduct or matter."
In case of Stock Motor Club Ltd (1932) 48 CLR 128, it is observed that the State and Federal laws may be inconsistent though obedience to both is possible. There may also be a inconsistency when each law imposes same duty of obedience and by concluding so the inconsistency was attributed to a state law not because federal law invalidate or conflict with it but because federal law has covered the field.
31. What we want to highlight, by referring case laws from the different jurisdictions, is that the principle of occupied field, repugnancy and doctrine of paramountcy applies when there are two laws, concurrently enacted on the same subject matter, by two competent legislatures, federal and provincial. Whereas it is not the case before us because there is no federal law occupying the field relating to the same subject matter. When learned counsel for petitioners were asked to refer to any Article of the Constitution or law declared by the courts that in absence of any federal law, provincial legislature is incompetent to legislate on the same matter, on which the earlier legislation of the province is in the field, they were unable to lay hand on any law in support of their this particular argument.
32. The doctrine of repugnancy is expressly provided in Article 143 of the Constitution of Islamic Republic of Pakistan, 1973 which enjoins in explicit terms that if any provision of an Act of provincial Assembly is repugnant to any provision of an Act of (Majlis Shura) (Parliament) which latter is competent to enact, the Act of parliament whether passed before or after the provincial assembly shall prevail and the Act of provincial assembly shall to the extent of repugnancy be void. The Constitution has provided mechanism and domain of legislation to cope with each and every situation. In terms of Article 141 of the Constitution, parliament and provincial assemblies have been vested with power to legislate in their respective spheres. In Article 142 of the Constitution, some limitations have been supplied including exclusive domain of legislation of the provincial assembly has been recognized in Article 142(c) of the Constitution. To cope with any eventuality of inconsistency or repugnancy, Article 143 of the Constitution has been enacted. As already held that federal legislature has no concern with the health institutions of the province which is latter's sole domain. It is the same reason, that there is no federal law in the field on this subject. Thus no question of repugnancy or occupied field arises. This objection of the petitioners too is misplaced.
33. Article 240 of the Constitution of Islamic Republic of Pakistan, 1973, particularly, sub-clause (b) thereof speaks of service of provinces and posts in connection with affairs of province to be determined by or under Act of the Provincial Assembly. There is no cavil about the legal position that MTIs and the employees thereof are rendering services in connection with the affairs of the province of KPK. The protection to their service has been supplied in Section 16 of the ibid Act. Rest of the conditions and terms of appointment, maintenance of seniority, promotion and matters ancillary and incidental thereto are to be determined and regulated by the Rules and regulations framed under Sections 23 & 24 of the Act. Same had all along remained the position in the repealed, KPK Medical Teaching Institutions Regulations of health care Ordinance, 2002 (Ordinance XLVII of 2002) . Article 264 of the Constitution is saving clause which has supplied protection to all orders made, action taken, rights accrued, liability incurred, penalty or punishment inflicted in respect of offences committed against law and to save the investigation, legal proceedings initiated or imposed under the repealed laws, except expressly provided otherwise. Same is the tenor of language employed in section 6 of the General Clauses Act 1897 and Section 4 of the West Pakistan General Clauses Act, 1956. The obvious object of the said constitutional and legal provision is to obviate a situation of chaos and confusion and not to affect the legal proceedings taken under the repealed Act. In view of the constitutional command and legal provision of General Clauses Act, protection to the service of the employees of the institutions has been supplied in Section 16(2) of the ibid Act. Likewise actions taken under Ordinance,2002 have also been saved under Section 26(4) and (5) of the impugned Act of 2015. Thus, objection of the petitioners in W.P.No.2643/15 is unfounded.
34. Now we are to examine the third limb of arguments regarding malafide of the legislature to frustrate judgments of the High Court as well as Supreme Court and consequently, to undermine and impinge the independence of judiciary, which no doubt is to be secured at any cost. When a law is enacted by federal or provincial legislature through chosen representatives of the people, it reflects the will of the people. The parliament and provincial assemblies are empowered to legislate within their respective domains. The presumption of constitutionality & validity is always inherently embedded in such legislation. The malafide or malice cannot be attributed to the competent legislature. It is the bounden duty of the person who challenges the validity,to prove that the law has malafidely been legislated or is in violation of Fundamental Rights or constitutional provisions. There is no cavil about the legal position that the courts have the power of judicial review of an enactment but within the parameters laid down in the Constitution. Similar question was examined in Zia ur Rehman's case( PLD 1975 Supreme Court 49) . Similarly, in Fauji Foundation Vs. Shamim ur Rehman ( PLD 1983 Supreme Court 457 ) the principle was once again examined. It was observed that the courts are not to enquire into motive of the legislation nor can ascertain the wisdom of the legislature. The powers of judicial review are corrective and directive which are only meant to see legality of administrative action. In Multiline Associates Vs Ardeshir Cowasjee and 2 others ( PLD 1995 Supreme Court 423 ) it was laid down in Para-35 of the report as follows :- "Cardinal principle of interpretation of statues is that a law should be interpreted in such a manner that it should be saved rather than destroyed. The Courts should lean in favour of upholding constitutionality of legislation and it is, therefore, incumbent upon the Courts to be extremely reluctant to strike down laws as unconstitutional. This power should be exercised only when absolutely necessary, for injudicious exercise of this power might result in grave and serious consequences. In support of the proposition reference can be made to the case of Province of East Pakistan v. Sirajul Huq Patwari (PLD 1966 SC 854). The same principle of interpretation shall apply to subordinate legislation Including Regulations as in this case."
It was reiteration of the principle earlier laid down in ( PLD 1966 Supreme Court-854) . In case of Baz Muhammad Kakar and others Vs Federation of Pakistan through Ministry of Law and Justice and others ( PLD 2012 Supreme Court 923), the Supreme Court while examining the question of colourable legislation and competency of legislature has made reference to an excerpt of Indian Supreme Court in KC Gajapati Narain Deo Vs State of Urissa ( AIR 1953 SC-375) which reads as follows :- "It may be made clear at the outset that the doctrine of colourable legislation does not involve any question of bona fides or mala fides on the part of legislature. The whole legislature doctrine resolves itself into the question of competency of a particular legislature to enact a particular law.
If the legislature is competent to pass a particular law, the motives which impelled it to act are really irrelevant. On the other hand, if the legislature lacks competency, the question of motive does not arise at all. Whether a statute is constitutional or not is thus always a question of power. A distinction, however, exists between a legislature which is legally omnipotent like the Brittish Parliament and the laws promulgated by which could not be challenged on the ground of competency, and a legislature which enjoys only a limited or a qualified jurisdiction. If the constitution of a state distributes the legislative powers amongst different bodies, which have to act within their respective spheres marked out by specific legislative entries, or if there are limitations on the legislative authority in the shape of fundamental rights, questions do arise as to whether the legislature in a particular case has or has not, in respect to the subject-matter of the statute or in the method of enacting it, transgressed the limits of its constitutional powers. Such transgression may be patent, manifest or direct, but it may also be disguised, covert and indirect and it is to this latter class of cases that the expression 'colourable legislation' has been applied in certain judicial pronouncements. The idea conveyed by the expression is that although apparently a legislature in passing a statute purported to act within the limits of its powers, yet in substance and in reality it transgressed these powers, the transgression being veiled by what appears, on proper examination, to be a mere pretence or disguise. As was said by Duff. J. In Attorney-General for Ontario v. Reciprocal Insurers, (1924 AC 328 at p.337)
"Where the law making authority is of a limited or qualified character it may be necessary to examine with some strictness the substance of the legislation for the purpose of determining what is that the legislature is really doing.
"In other words, it is the substance of the Act that is material and not merely the form or outward appearance, and if the subject-matter in substance is something which is beyond the powers of that legislature to legislate upon, the form in which the law is clothed would not save it from condemnation. The legislature cannot violate the constitutional prohibitions by employing an indirect method."
There is reference of Jaora Sugar Mills's case in the same report relating to the same question which for ready reference is reproduced as follows :- "The challenge to the validity of a Statute on the ground that it is a colourable piece of legislation is often made under a disconnection as to what colourable legislation really means. As observed by Mukherjea J., in K.C. Gajapati Narayan Deo and others v. The State of Orissa (1954 S.C.R. 1 at p.II, ""the idea conveyed by the expression 'colourable legislation' is that although apparently a Legislature in passing a statute purported to act within the limits of its powers, yet in substance and in reality it transgressed these powers, the transgression being veiled by what appears, on proper examination, to be a mere presence or disguise." This observation succinctly and effectively brings out the true character of the contention that any legislation is colourable legislation. Where a challenge is made on this ground, what has to be proved to the satisfaction of the Court is that though the Act ostensibly is within the legislative competence of the Legislature in question, in substance and in reality it covers a field which is outside its legislative competence Therefore, we do not think there is any substance in the argument that the Act is invalid on the ground that it is a colourable piece of legislation"
After cursory survey of the case law on the subject, the august Supreme Court set following principle in Para-96 of the report :- "From the above discussion in the case law, following principles are deduced: a. The whole doctrine resolves itself into the legislature to enact a particular law. If the legislature is competent to pass a particular law, the motives which impelled it to act are really irrelevant. b. In other words, it is the substance of the Act that is material and not merely the form or outward appearance, and if the subject-matter in substance is something which is beyond the powers of that legislature to legislate upon, the form in which the law is clothed would not save it from condemnation. c. The legislature can only make laws within it legislative competence. Its legislative field may be circumscribed by specific legislative entries or limited by fundamental rights created by the Constitution. d. The idea conveyed by the expression 'colourable legislation' is that although apparently a Legislature in passing a statute purported to act within the limits of its powers, yet in substance and in reality it transgress these powers, the transgression being veiled by what appears, on proper examination, to be a mere presence or disguise. e. Where a challenge is made on this ground, Court is that though the Act ostensibly is with the legislative competence of the Legislature in question, in substance and in reality it covers a field which is outside its legislative competence.. f. It is only when a legislature which has no power to legislate frames a legislation so camouflaging it as to appear to be within its competence when it knows it is not, it can be said that the legislation so enacted is colourable legislation. g. If in pith and substance the legislation does not belong to the subject falling within the limits of its power but is outside it, the mere form of the legislation will not be determinative of the legislative competence.
When the case in hand is examined at the touchstone of the principles laid down in Baz Muhammad Kakar's case, we could not find to call it as colourable legislation by the legislature which was competent to enact the law.
35. The independence of judiciary cannot be judged at the touchstone of objective resolution nor on the basis of objective resolution, any provision of the Constitution or law may be struck down. In Asma Jeelani case (PLD 1972 Supreme Court 139), it was further observed that the objective resolution is the grund-norm of Pakistan which is principle of legal sovereignty ensuing therefrom.
It was observed that objective resolution of 7th March, 1949 does not stand on higher pedestal than that of constitution itself. It just set out principles of guidance, in the light of which, Constitution was to be framed. By the objective resolution, general contours and guidelines for the framers were provided. It is an enigma of Constitutional history, yet to be resolved by the nation and historian that why in substance, the constitution was not framed, instead of adopting a resolution? And why the nation has to wait till 1973, for a consensual constitution, for 26 years. However, this aspect of objective resolution and constitutions of 1956 and 1962 are irrelevant for the question at hand.
When the Constitution of 1973 was framed, all those aspects were considered and it attained the finished form. Though the objective resolution has been made part of preamble of the Constitution by Article 2-A, nevertheless, it is not a supra constitutional document. In District Bar Association Rawalpindi and others Vs Federation of Pakistan and others (PLD 2015 Supreme Court 401) while considering the impact of Article 2-A of the Constitution it was held in Para-65 of said judgment authored by the then Honourable Chief Justice that notwithstanding inclusion of Article 2-A relating to objective resolution as substantive part of the Constitution, it neither controls other provisions of the constitution nor other provisions of the constitution can be struck down on the ground that they are in conflict with it. It can only be used for interpretation of the other provisions of the constitution in case of doubt.
36. In Zaman Cement Company (Pvt) Ltd Vs Central Board of Revenue and others ( 2002 SCMR 312 ) while examining the same objection that Section 31-A of the Customs Act 1969 was inserted to nullify the judgment of the Supreme Court in Al-Samrez Enterprise Vs Federation of Pakistan (1986 SCMR -1917) held in Para-13 as under:- "the function of the judiciary is not to legislate or to question the wisdom of Legislature in making a particular law nor it can refuse to enforce it even if the result of it be to nullify its own decision, provided the law is competently made. Its vires can only be challenged being violative of any of the provisions of the Constitution and not on the ground that it nullifies the judgment of the Superior Court".
It is well settled that the courts are to decide lis in accordance with law in vogue at the relevant time and not to go behind the previous laws. On the same principle, the courts are to consider the laws in operation, and express its opinion in accordance therewith. It cannot and should not bind the legislature nor refrain it from new legislation, with the changing circumstances. The law is an organic document in substance which with the change of human complexities, socio-economic values and demographic attitudes, may be moulded, altered, amended or reconstituted by repeal of the earlier laws with the changed requirements. It may not be kept as stagnant or static, which, with the passage of time, may not cope with the situation nor cater with the needs of the people, for whose welfare, laws are enacted. The legislature being the representative of the people is best judge of determination of the suitability of the law with the prevailing circumstances. It would be apt to refer to Benjamin Cardozo, an American jurist on "adherence to precedent" "We have to pay in countless ways for the absence of prophetic vision. No doubt the ideal system, if it were attainable, would have been to supply for every conceivable situation, the just and fitting rule. But life is too complex to bring the attainment of this ideal within the compass of human powers"quoted by Mr.Justice Jawwad S.Khawaja, Judge, in Federation of Pakistan through Secretary Ministry of Law Vs Munir Hussain Bhatta and others ( PLD 2011 Supreme Court 752). In Mehr Zulfiqar Ali Babu and others Vs Government of Punjab and others ( PLD 1997 Supreme Court 11 ) the same objection of nullification of judgment of Supreme Court by act of provincial legislature was discarded. In this case it was prayed that Punjab Local Government (Repeal) Act, 1996 be declared ultra vires Articles 4, 17, 25 and 32 of the Constitution and also members of majority party be proceeded for contempt for frustrating the decision of the Supreme Court in C.A.No.1254 & 1255 decided on 26.6.1996. The august Supreme Court did not agree with the petitioner's contention and petition was dismissed. Thus we have no shred of doubt in our mind that the impugned Act has validly and competently been enacted by the provincial legislature.
37. Though the petitioners have averred that the Act of 2015 is liable to be struck down being violative of their Fundamental Rights but failed to demonstrate their stance. In their wisdom, Ordinance (No.XLVII of 2002) was proper and competent legislation which need not be interfered with. Though the Ordinance, 2002 was promulgated when the Assemblies, provincial and national, were not in existence but the same was later on validated by virtue of 17th Constitutional amendment. First objection on the impugned Act of 2015 is that by its promulgation, autonomy of the institutions has been taken away and the control of the bureaucracy has been brought about.
When both the legislations are put in juxtaposition, one finds that section 5 of the Ordinance, 2002 explicitly speaks: "subject to the general supervision and control of government", Management Council shall exercise its administrative and management powers. While Chief Executive of the medical Institutions by virtue of Section-9 of the Ordinance, was to exercise powers and perform such duties and functions as may be assigned to him "by the Government". There were maximum 5 non-official persons as members of the management council, nominated by the Government.
Chief Executive being the nominee of the government was to run and control affairs of the medical institution while rest of the members under the ibid Ordinance were the officials of the institutions.
As against that under the impugned Act of 2015, Board of Governors of each Medical Institution is to administer and manage its affairs and shall comprise of not exceeding 10 members, 3 of which are from the Government department and 7 from the private sector. The Chairman is to be elected by the members from the private sector through voting from amongst themselves who is to preside over the Board meeting. He would not be direct nominee of the government which is a departure from the government control towards autonomy. The concept of private members is not a new phenomenon. Rather it is also available in Ordinance of 2002. The Management Council provided under Section 6 of the Ordinance has been replaced by the Board of Governors. While the private members would not be directly nominated by the government but would be recommended by the Search and Nomination Council constituted under Section 8 of the impugned Act, 2015. So far as the objection that non-Doctors have been assigned the task to administer the medical institutions, suffice it to say that this objection of the petitioners is misplaced. The concept is not alien to the institution. Even in Ordinance, 2002, there were private members who were non-doctors in the Management Council. Learned counsel for the respondents/Institution provided us administrative structures of different professional bodies around the globe and submitted that their administrators are non-professionals and they are better administrators. No cavil that profession and efficiency of a professional is one thing whereas administration of the body is altogether different phenomenon. Best qualified Doctor, lawyer or engineer equipped with the foreign degrees may be best professionals in their respective fields but may not be good administrators which is the job of administrators. Thus the objection so raised is not tenable. It is strange that on one hand it is objected that the government has taken control of the institution by snatching their autonomy and on the other it is alleged that the private persons have been assigned the task of administration. Both the arguments are mutually exclusive and self destructive. The petitioners themselves are not certain about form and substance of their objection. Moreso, the objection that the government has taken control of the institution is belied by simple facts that 3 members of the Board being the nominee of the government have not been given right of vote. The decision making power has absolutely been vested in the private members belonging to the public at large who may better protect and represent the interest of the public, in general, and patients, in particular.
38. By virtue of Section 12 of Ordinance, 2002, there were different sub-committees to administer affairs of the Medical Institutions; comprising of executive sub-committee, Finance and Departmental Grants sub Committee, the Registration and Medical Ethics Sub Committee, The Establishment and Medical Staff sub committee, the Nursing and Paramedics Sub Committees and Academic, Research and Publication Sub committee which have been replaced by Hospital Director, Medical Director, Nursing Director and Finance Director. Particularly, services of the employees have also been protected by virtue of Section 16 of the ibid Act, as amended. Similar protection was supplied in Section 11 of Ordinance, 2002 on repeal of private medical institution (Regulation of Service) Ordinance, 1984 and Medical Institutions Reforms Ordinance, 1999. It is pertinent to mention that on repeal of Ordinance, of 1999, no one has ever questioned the Ordinance of 2002. The comparative analysis of both the legislations is reflective that administrative landscape has been broadened by the impugned Act as against ibid Ordinance of 2002. The counsel for petitioners in all the petitions have failed to point out any provision of the Act to be violative of any Constitutional provision or their Fundamental Rights, enshrined in the Constitution. Nor rights accrued to them under the repeal Ordinance, 2002 have been affected by the impugned Act of 2015. Hence this objection too is not tenable. However, phrase "till further orders" occurring in Section 16(2) appears to be not compatible with clause (2) and substituted clause (3) of Section 16 of the impugned Act. The phrase tagged with sub clause (2) is a Damocles sword for the employees who though opt for absorption in the MTI. It is unreasonable and unjustified as such is liable to be omitted and deleted from the Statute.
39. Now coming to the case of Dr.Iftikhar Ahmad who alleged that there are judgments of the High Court and Supreme Court in his favour, nullification of which is the main object of promulgation of the impugned Act of 2015. His litigation's history, for retention of post of Medical Superintendent of Ayub Teaching Hospital Abbottabad starts with W.P.No. 326/2007 which was decided in his favour.
In that case, respondent No.3, Dr. Zafeer Hussain was appointed as Medical Superintendent of Ayub Teaching Hospital by the Secretary Health government of KPK from outside which was questioned by the petitioner who was holding the said post at that time. The order was struck down by this court having been passed without jurisdiction. However, Management Council of Ayub Teaching Hospital was asked to consider most eligible, suitable and senior medical officer possessing extra ordinary qualities both medical and professional for the post of Medical Superintendent (M.S). No declaratory writ was issued in his favour to retain the post of M.S. At ATH Abbottabad for all times to come. Ratio of the judgment is that it was the Management council to make transfers and appointments within the institution, keeping in view the criteria of eligibility, suitability and seniority as well as experience of management, administration and profession. In 2014, once again Dr. Zafeer Hussain was transferred and posted as M.S. ATH by transferring petitioner which was challenged by him in W.P.No.232-A/2014 at Abbottabad Bench of this court. This petition was accepted while relying on the earlier judgment in W.P.No.326/2007. It was also observed in concluding the judgment that the government do deserve the right of posting through its management cadre employees against the said post but unless and until the post is vacant and not occupied by the institutional employee, who could only be removed/transferred by the Management Council. The judgment was maintained by the august Supreme Court, nevertheless, it was observed in Para-8 by the Supreme Court that: in pith and substance, it is procedural failings which have resulted in the impugned judgment without any serious restraints on future action. It was further observed that various legal issues appear to be lurking in the shadows which are not being commented upon and are left to be decided as and when they arise in some other appropriate matter. These observations of the august Supreme Court are indicative that the impugned judgment was maintained and petitioner was not disturbed but with some serious reservations.
40. We have been provided a copy of the Notification No.Alrhid.1(7)03/11/7335, dated 21.7.2008 whereby Section 53 of Khyber Medical University Act, 2006 was deleted by virtue of Ordinance No.X of 2008 which was later on translated into Act. Section 53 in its original form has repealed Ayub Medical College (Board of Governors) Ordinance, 1978 which was the initial legal instrument, relating to the affairs of the Ayub Medical College, on its inception. By virtue of this legal position, W.P.No.648-A/2012 was issued on 17.1.2013 in which it was declared that the Ayub Medical College Board of Governors Ordinance, 1978 stands revived and Notification dated 3.7.2008 shall have no legal application to the Ayub Medical College. The actions taken and the orders passed in regulating and carrying on the affairs of Ayub Medical College since 2.7.2009, under Ordinance, 2002 were protected on the principle of past and closed transactions, with the direction to government to take all necessary steps to ensure the constitution and functioning of the Board of Governors of AMC, as provided under Ordinance of 1978 and Regulations of 1980. It appears that at the time of hearing of W.P.No.232/2014, though judgment of W.P.No.326/2007 was referred but that of W.P.No.648/2014 decided on 17.1.2013 was not brought into notice of Division Bench and court was not properly assisted which resulted in reliance on Ordinance, of 2002 and W.P.No.326/2007 and consequential acceptance of his writ petition. By virtue of Act No.IV 2015 Ayub Medical College (Board of Governors) Ordinance, 1978 alongwith other enactments of Ordinance, 1999 and Ordinance of 2002 have been repealed. Had Ayub Medical College (Board of Governors)
Ordinance, 1978 not been operative, there was no reason to repeal the same. It appears that Ayub Medical College was still being managed, run and controlled under the provisions of XLVII of 2002 despite revival of Ayub Medical College (Board of Governors) Ordinance, 1978. To remove this complex and anomalous legal position, there was dire need of enactment to streamline the medical teaching institution which has been supplied. It has already been observed in the preceding paragraphs that the Statute enacted by the competent legislature may not be struck down merely on the ground that it is nullifying the judgments of the courts that too a judgment in personam, not in rem. Even in case of judgment in rem, in Zaman Cement 's case (supra) and Mehr Zulfiqar Ali Babu (supra) the objection of nullification of the judgment of the Supreme Court through new enactment was repelled. In the instant case, one person for the sake of his personal interest, is seeking declaration of an Act as void as he strives to retain the post of M.S., of ATH at any cost.
41. We are conscious of the fact that so many writ petitions filed by Doctors associations and individuals challenging the validity of Act No. IV of 2015 have been withdrawn. The legislation is always aimed at for the benefit of public at large. It can never be intended for causing harm to an individual. "Salus papuli, sperma lex", indeed, is always soul and spirits of every enactment. One may assume that an individual may go to an extent to cause harm to his opponents, to settle the score. But it is next to impossible that legislature comprising of treasury and opposition benches, representing the whole populace of the province would converge on one point agenda of removal of petitioner from the post of M.S. If it is so, then purportedly the populace of province do not want him to remain on this post. It is settled law that no one has a vested right to remain on a particular post for all times to come. However, as petitioner has contended that after his removal from the post of M.S. , he has not been assigned any post in the Institution and sitting idle at home. Once he has opted to be absorbed in the service of the Institution, he may not be treated according to the whims of the administration. He is to be assigned a suitable post according to his qualification in the institution. This grievance of the petitioner shall be redressed by the respondents at the earliest without fail, compliance report whereof shall be submitted to the Registrar of this Court for our perusal.
42. It is vehemently contended on behalf of Para medical Staff in W.P.No.2643/2015 that Doctors and Nurses, though pertain to medical staff but have separately been provided with their respective Directors whereas Para-Medical Staff of the institution, despite more than double of the collective strength of both the disciplines, has been left astray. There is an uncertainty and frustration that to whom they are answerable and before whom they may pursue their cause for redressal of their grievance, if any . The grievance so urged seems to be reasonable one. Though there is a Medical Director responsible for all clinical functions of the hospital and Nursing Director to look after functions of nurses, pertaining to their training, adequate nursing staff for clinical needs and maintenance of high nursing standards. There is no reference of Para-Medical Staff performing functions falling within the responsibilities of other medical and nursing wings. Hospital Director is over all incharge of non-clinical functions of the hospital. It is undisputed that the Para- Medical Staff is highest in strength as compared to Doctors and Nurses, so is required to have a Director of Para-medics. Though it was the responsibility of the Legislature not to leave any deficiency but the credit goes to the Para-Medical Staff who wish to be, managed, supervised and administered by their own Director before whom they may lodge their complaints or grievances.
Beside that clinical functions cannot be suitably and adequately discharged without cooperation and coherence of the Para-Medical Staff, consisting of Health Technicians, Technologists, radiologists, anaesthetists, pathologist, Lab Assistants, Pharmacists, Pharmacologists, surgical technicians, emergency care-givers, physiotherapists, dietetics etc. In view of this deficiency, respondents shall make suitable amendment in the impugned Act for provision of Director of Para- Medical Staff.
43. During the course of hearing of these petitions, we have been provided a copy of the agreement executed between the Doctors' association on one hand and the Secretary Health Government of KPK on the other. On the basis of that agreement , some writ petitions, challenging the vires of the impugned Act of 2015 and fixed today with similar writ petitions, have been withdrawn. Though we would not have commented upon the terms of the agreement because one of the party i.e. Doctors who have entered into agreement are not before us after withdrawal of their writ petitions. However, had they not withdrew their petitions and contested their cause , the result would have been the same, as has been discussed herein above. Because same was the grievance and objections raised in those petitions which have been addressed in these cases.
Since we were struck and stunned after going through the terms of the agreement, so we cannot withhold recording our observations relating to the terms of the agreement which are affecting the interest of the public and the patients who are the main stakeholders in this whole exercise. They were not party to the agreement when terms of their fate were being settled by others: the Doctors' association and the Secretary Health for Government of KPK . The provincial legislature being the representatives of the populace of the province have reflected the will of the people in the Act of 2015. The preamble of the Act is manifestation of that will that it is intended for provision of effective, efficient and suitable health care services to the people of the KPK but neither people of the KPK nor their representatives are signatory to this agreement, at 73 the alter of which, the whole scheme of the impugned Act 2015 has been frustrated. The courts being custodians of the rights of people cannot remain as silent spectators, despite noticing Clause-(iv) of the agreement, affecting the poor masses, who are neither before the Court nor party to the agreement. To properly appreciate the matter Clause (iv) of the agreement is reproduced which runs as :- "Private Practice during normal working hours: It was decided that separate arrangements will be made for entertaining private patients during normal working hours. It was further agreed that the normal OPD will not be affected."
Bare perusal of Clause (iv) of the agreement transpires that Doctors have been allowed private practice during normal working hours in the hospitals which has never ever been allowed in the past. Though it has been suffixed with a stale condition that normal OPD will not be affected. But it is a matter of common knowledge that once an aperture is left open, no one would be able to control the decomposition of the whole scheme. It appears that after filing petitions, Doctors' association have influenced the respondents by their protests, processions and strikes to either withdraw the Act or else come to their terms. Clause (iv) of the agreement is vivid manifestation of that arm-twisting. It has been argued before us that after insertion of this clause in the agreement, OPD has been made operational since morning till evening. We are afraid that the administration is so week that it cannot achieve this goal by exercise of its administrative skill and is not resorting to Essential Services Act 1958 which has already been made applicable to all services of Health Institutions including administrative, curative, rehabilitative, preventive, promotive and supportive services, partially or fully funded from the general exchequer who are under direct or indirect control of Government, for the purpose of West Pakistan Essential Services (Maintenance) Act, 1958, vide Notification No. E&A(Health)/ 4- 138/Declaration of HS/2011, dated 13th June, 2012. It is pertinent to mention that this Notification too was issued after direction of this court considering plight and agonies of patients, while deciding W.P.No.2265/2009 on 13.10.2010. After passage of 5 years we are again confronted with the same situation which was faced in 2010 when this court was constrained to pass direction that medical services be declared as essential services in terms of West Pakistan Essential Services (Maintenance) Act, 1958. We record our strong reservations and concern about week and maladministration and non-adherence to the public services at the altar of favouritism, nepotism and political pressures of the Doctors which prevailed with the administration and the provisions of West Pakistan Essential Services (Maintenance) Act, 1958 were not resorted to. It is a matter of record that Doctors have not only constituted their associations but are found chanting slogans, marching processions on the roads, leaving the patients in the emergency and operation theatres crying for their survival. This inhumanly and indifferent attitude exhibited by the educated people is unbecoming of such a noble profession. We always hear a student at the teen age declaring that he would become a Doctor to serve the humanity but when he becomes a Doctor, he shows volte-face, oblivious of his earlier commitment and demonstrate a conduct which may not be described in proper words. However, public at large in general and patients in particular, are crying of their oppressive and unprofessional conduct. If no effective administrative measure against such callous demonstration is taken, tomorrow administration would be facing strikes, agitations and processions of law enforcing agencies and other employees of the Essential services by following the suit. Mere promulgation of an Act is not a big achievement unless it is enforced and implemented in letter and spirit, without fear or favour. It is a common saying that "where there is a will, there is a way". If administration is sincere in welfare of the people, they are required to implement laws in all fairness without any discrimination or favour so that tales of woes and affliction of masses, if not vanished, at least may be reduced, in all spheres of life. We have also been informed during the course of arguments and it is also a matter of common knowledge that Doctors are at the pay-role of pharmaceutical companies. They prescribe recipe of long list of medicines for the poor patients which even though are not required. A disease which can be cured by a tablet of Panadol or Disprin, is put on long list of medicines and patient being at the mercy of Doctor is constrained to inhale all those medicines which ultimately transpose him to actual patient by side effects of bulk of medicines, proceeds of which goes to the pockets of this racket.
The companies are fleecing the public with active connivance of Doctors. At the same time, Doctors have also liaison with their assigned particular Laboratories from whom they share the booty and also procure results of their own choice.
44. For smooth and effective functioning and rendering proper services to the public, smooth, responsive and strict discipline of the staff is hallmark of an establishment. If a department or establishment is faced with disarray and lack of discipline in ranks and files, and have disrespect to the rule of law, it is bound to fail in all respects. Discipline cannot be maintained by loose administration, by pick and choose and discriminatory application of the laws and regulations. It may not be compromised at any cost. Government is required to address this aspect of the issue as well and not only enact the law but jealously implement the same, as well. Here we may better quote Abraham Lincoln: "It is as much the duty of government to render prompt justice against itself, in favour of citizens, as it is to administer the same between individuals".
44. In view of the above discussion, respondents are rules of discipline for their application and implementation, to curb the menace of mismanagement, day to day protests and processions and if there is any resistance from any quarter , they may be proceeded against by taking disciplinary action under the relevant laws and rules as well as Essential Services (Maintenance)
Act, 1958, because no one is indispensable.
45. For what has been discussed above, these petitions are decided in the terms as follows:- The impugned Act is an enactment of competent legislature, hence is declared as intra vires the constitution and all the writ petitions to the extent of challenging the validity and constitutionality of the impugned Act-IV of 2015 are dismissed.
Petitioner of W.P. No.420/2015 shall be adjusted in the Institution at the post, equivalent to his qualification, if already not assigned any post in the institution.
W.P.No.2643/2015 is partially allowed to the extent that suitable amendment in the impugned Act shall be made for creation of post of Director of Para-Medical Staff.
Respondents shall suitably amend the legislation in light of observations made in the judgment and frame corresponding rules to maintain strict discipline in the institution, mainly focusing on provision of timely and effective services to the public.
The phrase "till further orders" tagged in Section 16(2) of the Act 2015 is hereby struck down.
The law shall also be suitably amended with framing of corresponding rules to break the cartel of Doctors and pharmaceutical companies.
The respondents cannot enter into agreement with the employees of the MTIs at the cost of public at large, frustrating the very spirit of MTIs Reforms Act, 2015.