MUHAMMAD FARRUKH IRFAN KHAN, J.---In the beginning I feel it appropriate to explain that hearing of various matters stated in para 2 hereof was completed on 16.02.2017 and the judgment reserved. However, I was posted at Rawalpindi Bench of this Court to perform judicial responsibilities for a period of six weeks w.e.f 20.02.2017 to 08.04.2017. Being the Senior Judge a lot of my time was taken up in administrative matters besides a very long list of 50 to 60 court cases, mostly comprising of old vintage being regular First Appeals, Civil Revisions and Regular Second Appeals etc. which meant that I could not spend the requisite time required for writing this judgment. Again I was required to work at Bahawalpur Bench for two weeks w.e.f. 29.05.2017 to 10.06.2017. All these factors contributed in causing a bit of delay in releasing the judgment. However, I would like to express a word of appreciation for the valuable assistance rendered by the learned counsel for the parties which enabled me to reach the decision below.
2. This judgment will deal with and decide W.P. No.6104-12, W.P. No.25701-16, W.P. No.8078-14, W.P.
No.22543-15, W.P. No.21520-15, W.P. No.25444-15, W.P. No.32852-15 and W.P. No.31505-16 as they all are connected and dependent on each other. The whole controversy in these matters revolves around the devolution/transfer of Sheikh Zayed Postgraduate Medical Institute to Government of Punjab vide impugned OFFICE MEMORANDUM No.4-3/2012-MM.I dated 14.02.2012 of the Cabinet Division on the orders of the Prime Minister of Pakistan to transfer administrative control thereof along with its components, assets, liabilities, staff etc. from Government of Pakistan (Cabinet Division) to Government of Punjab and subsequently various orders, directions, notifications issued thereunder, appointments made and actions taken in this behalf by the Government of Punjab, Board of Trustees /management set up by the latter.
3. The chronological trial of events leading to the controversy in hand is that vide deed dated 06.11.1973 a Trust known as Zulfiqar Ali Bhutto Trust (hereinafter referred to as the Trust) was constituted by H.E. Sheikh Zayed Bin Sultan Al-Nahiyan, the then ruler of Abu Dhabi with the object: "(a) to establish, maintain and run a hospital and /or a medical college in Larkana;
(b) to promote, medical, education, religious, economic, Social and cultural well-being of the people of Pakistan and for such purpose/purposes to undertake or establish a project or projects in any part of Pakistan."
Initially the Board of Trustees (BOT) comprising of Begum Nusrat Bhutto, Mr. Yar Muhammad Bhutto and Mr. Agha Hasan Abedi appointed in the Trust managed the affairs of the Trust but later on through Martial Law Order No.22 dated 15.10.1977 the activities of the Trust and its Board of Directors of connected institutions and the control of the Trust was transferred from Board of Trustees to the Chief Martial Law Administrator. Thereafter through President's Order No.4 dated 26.03.1978 the Trust was renamed as Sheikh Zayed Bin Sultan Alnahyan Trust and all the powers and functions were assigned to Board of Trustees composed of members who were to be appointed by the President of Pakistan from time to time. Through Ministry of Health and Population (Health Division)
SRO No.580(I)78 dated 21.05.1978 whereby following persons were appointed as the Board of Trustees:-
1. Secretary General-in-Chief Chairman
2. Attorney General for Pakistan Member
3. Auditor-General of Pakistan Member
4. Secretary, Ministry of Health and Population (Health Division)Member
5. Secretary, Ministry of Housing and Works Member Through S.R.O. No.870(I)/84 dated 07.1 0.1984 *ssued by Ministry of Health, Special Education and Social Welfare (Health Division), the Board of Trustees of Sheikh Zaed Bin Sultan Al-Nahyan Trust was reconstituted to appoint the following persons.
1. Ministry for Finance and Coordination Chairman
2. Attorney General for Pakistan Member
3. Auditor-General of Pakistan Member
4. Representative of His Highness the Ruler of Abu DhabiMember
5. Secretary, Ministry of Health, Special Education and Social WelfareMember
6. Secretary, Ministry of Housing and Works Member
7. Chairman, Pakistan Medical Research Council Member The Government of Pakistan Cabinet Secretariat (Cabinet Division) vide Notification No.F.5/2194- SZH(L) VOL-V dated 23.08.2001 made composition of the Board of Trustees Shaikh Zayed Bin Sultan Al-Nahyan Trust as under:-
1. Minister for Finance Chairman 2.Mr. Mumtaz Hasan, Principal, King Edward Medical College, LahoreVice-Chairman 3.H.E. Dr. Ezzeddin Ibrahim Shah Mustafa, Cultural Advisor to H.H. the President of U.A.E., Presidential Court, Abu DhabiMember 4.H.E. Mr. Sultan Al-Rumaithy, Advisor, Presidential Court, Abu DhabiMember 5.H.E. Mr. Muhammad Atiq Al-Qamzi, Ambassador of U.A.E. in PakistanMember 6.Mr. Muhammad Munk Chaudhry, Advisor Embassy of U.A.E.Member 7.Cabinet Secretary. Member/ Secretary 8.Education Secretary Member 9.Health Secretary Member 10.Provincial Chief Secretaries by special invitation for projects in their provinces.Member
4. In the year 1986, the Federal. Government of Pakistan through its Health Division's Resolution dated 29th of May 1986 established Sheikh Zayed Postgraduate Medical Institute (SZPMI). Initially the administrative control of the Institute remained with the Ministry of Health, Special Education and Social Welfare Government of Pakistan, Islamabad. Subsequently, to ensure autonomous status of the SZPMI, the Government vide Notification No.F8-1/94-Est.1 dated 13.02.1994 transferred its control from the Ministry of Health to the Cabinet Division and amendment in schedule II, Rule 3(3) of the Rules of the Business of the Federal Government vide serial No.17 under the head of Cabinet Division was made accordingly. After the I8th Amendment to the Constitution the administrative control of SZPMI along with its components, all assets, liabilities, staff etc. was transferred to Government of Punjab vide Cabinet Division's Notification No.4-3/2012.Min.1 dated 14.02.2012 which is basically under challenge in the litigation in hand and consequently notifications, appointments made and actions done thereafter by the management of the Punjab Government have been sought to be declared as illegal, without lawful authority and ultra vires of the constitution. Initially, the Institute consisted of two components i.e. (i). Federal Postgraduate Medical Institute (ii). National Health Research Complex. Later on, with the passage of time, tangible developments were carried out in the Institute under the auspices of the Federal Government by the addition of (1) Shaikha Fatima Institute of Nursing and Health Sciences, (2)
National Institute of Kidney Diseases (WWF-Block), (3) Shaikh Khalifa Bin Zayed Al-Nahyan Medical College and (4) Liver Transplant Centre. Even the University of Health Sciences was established within the premises of SZPGMI in the main building of Shaikha Fatima Institute of Nursing and Health Sciences over 5 acres of piece of land.
5.Learned counsel for the petitioners contend that SZPMI, Lahore was established by the Federal Government and its management and control was run by the Board of Governors under the resolution dated 29.05.1986 as such the Board of Governors is the only decision making body of the said institute: that the Board of Governors was constituted by the Federal Government from time to time through executive orders and lastly it was constituted on 30.04.2009; that under the garb of 18th Amendment transfer of administrative control of SZPMI, Lahore along with its components, assets, liabilities and staff from the Government of Pakistan to the Government of Punjab through Notification dated 14.02.2012 is illegal, unlawful, mala fide, without lawful authority and violative of fundamental rights of the petitioners as guaranteed by Articles Nos.9, 18 and 25 of the Constitution of Islamic Republic of Pakistan, 1973; that at the time of devolution SZPMI Lahore was under the administrative control of Cabinet Division and not under the Federal Ministry of Health as such it could not be devolved; that on account of its autonomous status, unique and special character it did not fall under the domain of 18th Amendment; that according to Fourth Schedule Article 70(4) entries Nos. 15 and 16 of Part-I and entries Nos.11 and 12 of Part-II of the federal legislative list of the Constitution, the institutes for research, professional training, medical profession etc. being the exclusive subjects of Federal Government could not be handed over to the Provincial Government; that even according to the provisions of sections 8'of Article 270 AA of the Constitution the process of devolution was to be completed by the thirtieth day of June, two thousand and eleven which was cut off date given in the Constitution for devolution of all the departments falling in the concurrent legislative list and the Federal Government as per sub-clause 9 of the Article ibid was bound to carry out this process through Implementation Commission under Eighteenth Amendment Act, 2010. As SZPM 1, Lahore was not working under the Health Ministry since 1994 and was under the direct control of Cabinet Division, it was treated exceptionally and after the cut off date provided in the Constitution, it could not be devolved by the Prime Minister who otherwise was not competent to do so alone bypassing the Cabinet; that SZPMI comprised of different components, and one of them namely National Clinical Research Complex of the Pakistan Medical Research Council has been retained in the Federal Government which is also indicative of mala fide and colorful exercise of powers by the Prime Minister.
6.It was next argued that Shaikh Zayed Post-medical Institute, Lahore was not established under any Trust; that there was no mentioning of any Trust in the entire resolution under which the SZPMI, Lahore was established, moreso, if SZPMI had been created under the auspices of the Trust as alleged by the respondents, there should have been a reference to the definition of the Trust and the Trustees and the resolution dated 29th of May, 1986 should not have been issued by the Government of Pakistan but by the Trust; that the Trust Deed of 1973, (only copy of which is available on record) was registered at Karachi and manifestly it related to establishment of a hospital and a medical college at Larkana, and it had nothing to do with SZPMI, Lahore which was set up independently by the Federal Government of Pakistan; that none of the aims and objects of the Trust indicate that any research institute is to be established at Lahore and any other place; that it also stands established on record that construction of SZPMI started and completed by the finances provided by the Ministry of Planning Commission and Ministry of Health from their own budget and no funds were provided by the Trust; that right from the day first, the control of this Institute was with the Federal Government and not the Board of the Trustees of the Trust; that its employees were governed by the Civil Servant Act, 1973 and their posts are pensionable and appointments always notified in the Gazette of Pakistan which clearly reflects that it is a Federal Government Institute; that just to legitimize and justify the act of illegal transfer by the Prime Minister on the basis of devolution the respondents are trying to stand behind the alleged Trust; that the Federal Service Tribunal in Ghazala Perveen's case (1994 PLC CS 684) has already declared that SZPMI is a Federal Government Department and not a Trust. The said judgment was not assailed by the respondents and still holds the field, therefore, this question cannot be raised again at this belated stage. On the basis of above submissions learned counsel prayed that the acts and actions of the respondents regarding transfer of SZPMI Lahore from the Federal Government to the Provincial Government under the garb of devolution of matters/subjects given in the concurrent legislative list, formation of Board of Trustees/ Board of Governors, appointment of Head of the Institution/ chairman and subsequent appointments made by him be declared illegal, unlawful, ultra vires, coram non judice and of no legal effect. Lastly while referring to case cited as "Sheikh Zayed Hospital and Post Graduate Medical Institute v. Dr. Muhammad Saeed"
(2010 PLC (CS) 967) learned counsel agitated that appointments have been made by the respondents against different posts/vacancies through pick and choose and in sheer disregard to the guidelines provided in the said judgment.
7. Learned counsel appearing for the respondents have vehemently opposed the contentions made on behalf of the petitioners. It is argued that the above referred Trust dated 06.11.1973 was not only meant for establishing a hospital and/or a medical college at Larkana, Province of Sindh but by virtue of sub-clause (b) of clause 4 the scope of its activities was extendable to the whole of Pakistan. It was specifically provided that the object of the Trust was to promote medical, education, religious, economic, social and cultural well being of the people of Pakistan and for such purpose/purposes to undertake or establish a project or projects in any part of Pakistan. It is thus clear that this Trust was not restricted to a particular city, province, area or territory. Moreover, by rule of implied interpretation if the intention behind the first institution was to create a Trust then it can be inferred that intention behind the second and the third institute/hospital should have been the same. Although SZPMI, Lahore was established as an autonomous institute, yet the funds were provided by the Trust. It is, therefore, not correct that SZPMT, Lahore has nothing to do with the aforesaid Trust.
8. Learned counsel for the respondents as well as the learned law officer next argued that after 18th Amendment to the Constitution the concurrent legislative list was abolished as such the devolution of SZPMI is justified under entries No.10 (Trust and Trustees) and entry No.38 (Curriculum, syllabus, planning, policy, centres of excellence and standards of education of the concurrent legislative list). It was forcefully contended that mere violation of clauses (8) and (9) of Article 270-AA would not render the act of devolution invalid. Article 254 of the Constitution clearly spells out that any act or thing which is required to be done within a particular period and if it is not done within that period, the doing of the act or thing shall not be invalid or otherwise ineffective by reasons only that it was not done within that period. Secondly nowhere in the Constitution it is commanded that only the Implementation Commission, as constituted under sub-clause (9) of Article 270-AA can sanction the devolution and no devolution can be undertaken otherwise. The Implementation Commission was established to facilitate the devolution process and not to determine what was devolved and what was not. Moreover, Article 270-AA is a transitional provision which cannot be interpreted to defeat the scope and intent of the abolishment of concurrent legislative list from the Constitution. Learned counsel further contended that even otherwise SZPMI was an autonomous body under the control of the Cabinet Division and the Prime Minister, under proviso to rule 3 read with sub-rule (8) of Rule 5 and Serial No.1 of Schedule I of the Rules of Business, 1973 competently transferred the administrative control of this Institute to Government of Punjab; that the aspect of devolution/ transfer of SZPM1 to Government of Punjab has already been upheld by this Court in "Salmon Kazmi v. Secretary of Cabinet Division" (PLD 2014 Lahore 451), which still holds the field. In 'respect of appointments it was submitted that the guidelines given in the 2010 judgment supra were followed in letter and spirit but within the post devolution scenario. The impugned appointments were made strictly in accordance with rules, regulations and on merit by the Competent Authority. The writ petitioners want to undo the workings of the Board of Governors and to stop it from performing administrative functions for their personal gains and benefits. Learned counsel prayed for dismissal of the writ petitions.
9. I have heard detailed arguments of learned counsel for the parties and gone through the available record with their able assistance.
10. The first and foremost question for determination, by this Court is whether Shaikh Zayed Hospital and Postgraduate Medical Institute, Lahore have been created under the Trust and can thus function under the same. In order to decide this bone of contention first of all we have to go by the Resolution whereby the Institute was made operational after completion of the building by Ministry of Health, Special Education and Social Welfare (Health Division), Islamabad. This Resolution is dated 29th of May, 1986 which is reproduced as under:-.
"MINISTRY OF HEALTH, SPECIAL EDUCATION AND SOCIAL WELFARE (Health Division)
RESOLUTION Islamabad, the 29th May, 1986 Whereas it is expedient to establish the Sheikh Zayed Postgraduate Medical Institute and to give autonomous character to facilitate its unhindered and efficient functioning.
1. Definitions.---In this Resolution, unless there is anything repugnant in the subject or context:
(a) "Board" means the Board of Governors of the Institute referred to in paragraph 5; (b)"Chairman" means the Chief Executive of the Institute;
(c) "Institute" means the Federal Postgraduate Medical Institute, Lahore. And includes; (i)the Sheikh Sayed Hospital, Lahore and (ii)the National Clinical Research Complex of the Pakistan Medical Research Council.
(d)"Executive Committee" means the Executive Committee referred to in paragraph 7; (e)"Administrator" means the Executive Director of the Institute; (f) "prescribed" means prescribed by rules or regulations; (g)"President" means the President of the Board: (h)"regulations" means regulations made under this Resolution; and
(i) "rules" means rules made under this Resolution;
2. Objectives.---The Institute shall
(a) manage the administration and development of the Institute, Federal Postgraduate Medical Institute and the National Clinical Research Complex;
(b) provide treatment facilities in the Sheikh Zayed Hospital of an internationally accepted high standard;
(c) develop training facilities for postgraduate medical qualifications of the University of the Punjab and the College of Physicians and Surgeons, Pakistan, and any other examining body after approval of the Board;
(d) Educate and train medical men and women to become leaders in the medical research, education and health delivery system;
(e) Develop a system to impart continuing medical health education and training;
(f) The Pakistan Medical Research Council of the Ministry of Science and Technology will develop in the Institute the National Clinical Research Complex which would arrange clinical research studies on national health problems and provide research support at primary and higher levels, and co- ordinate with National Institute of Health, Islamabad, other research centres of the Pakistan Medical Research Council, Universities and other national and international research organizations;
(g) Develop as a centre for dissemination of knowledge of medical sciences and establish liaison with international centres for medical research and education; and
(h) Perform such other function as may be assigned to it by the Government for the purposes of this Resolution.
3. Directives from the Federal Government.--The Federal Government may, from time to time, issue to the Institute such directives and instructions as it may consider necessary for carrying out the purposes of this Resolution and the Institute shall follow and carry out such directive and instructions.
4. Management.---The Institute shall perform its functions under this Resolution through its :-
(a) Board;
(b) Executive Committee; and
(c) Chairman.
5. Board.---(l) The overall control, direction and superintendence of the affairs of the Institute shall vest in a Board of Governors which may exercise all powers, perform all functions and do all acts and things which may be exercised, performed and done by the Institute.
(2) In particular and without prejudice to the generality of the powers conferred by sub-paragraph
(1) the Board shall:-
(i) approve overall plans, policies and programmes of the Institute in routine to the approved policy of the Federal Government;
(ii) examine and approve teaching and research programmes of the Institute;
(iii) examine and approve the annual report and evaluation report of the Institute for submission to the Federal Government; and
(iv) approve the annual development and non-development budget of the Institute.
6. Composition of the Board.---(1) The President of Pakistan shall be the patron-in-Chief of the Institute;
(2) The Board shall consist of:-
(a) Federal Minister for Health, Special Education and Social Welfare.President
(b) Secretary, Ministry of Health, Special Education and Social Welfare.Vice President
(c) Auditor-General of Pakistan. Member
(d) One member of the National Assembly to be nominated by the Federal Govt.Member (e)Secretary, Federal Ministry of Science and Technology.Member
(t) Secretary, Ministry of Finance. Member
(g) Vice-Chancellors, the University of Punjab.Member
(h) Director-General, Health, Health Division, Islamabad.Member
(i) Chairman; Pakistan Medical and Research Council.Member
(j) Secretary, Health, Government of the Punjab.Member
(k) Elected Mayor of Lahore Municipal Corporation.Member
(l) President of College of Physicians and Surgeons of Pakistan.Member
(m) Chairman Member/Secretary
7. Executive Committee.---( I) There shall be an Executive Committee which shall consist of the following members, namely:- (a)the Chairman (b)three members of the Board to be nominated by the Board
(2) Subject to the provisions of this Resolution, the rules and regulations and the general or special directions of the Board, the Executive Committee shall be the Principal administrative body of the Institute and shall:- (a)be responsible for the management and administration of all affairs of the Institute and control of its funds within the overall policy and guide-lines of the Board; (b)undertake regular review and evaluation of the performance of teaching, research and development projects and programmes of the Institute and make a six monthly report to the Board; (c)prepare and submit the annual development and non-development budget of the Institute for approval of the Board; and prepare draft regulations and rules for approval of the Board.
8. Chairman.---(1 ) The Chairman, who shall be an eminent person of scientific and medical repute, shall be the Chief Executive of the Institute and shall be appointed by the Federal Government for a term of three years extendable a further period not exceeding three years at a time on such terms and conditions as may be determined by the Federal Government: Provided that the Federal Government may, at any time, terminate the appointment of the Chairman without assigning any reason.
(2)The Chairman shall work under the general policy guidelines of the Board and have such powers, functions and duties as may be conferred or imposed on him by or under this Resolution.
(3)The Chairman may, from time to time, for the purpose of ensuring efficient functioning of the Institute and to facilitate its day to day functions or other officers of the Institute all or any of his functions, powers and duties, subject to such conditions, if any as he may deem fit.
9. Meetings.---(1) The meetings of the Board shall ordinarily be held at least once every year and shall be presided over by its president or in his absence, by the Vice-President.
(2)The meetings of the Executive Committee shall be held at least thrice a year and shall be presided over by the Chairman.
(3)Unless otherwise prescribed, the number of members whose presence shall be necessary to constitute a quorum for a meeting of the Board shall be one-third of the total members and for a meeting of the Executive Committee one half of the total members of the Committee.
(4)All questions at a meeting of the Board and the Executive Committee shall be decided by majority of votes and, in case of equality of votes, the person presiding shall have a second or casting vote.
10. Delegation of Powers.---The Board may, by general or special order in writing delegate any of its powers to the Chairman and Administrator.
11. Validity of proceedings etc.---No act, proceeding or decision of the Board or the Executive Committee shall be invalid by reason only of the existence of a vacancy in, or any defect in the constitution of the Board or, as the case may be, the Committee.
12. Funds.---(1) The Federal Government mute a fund to which shall be credited all sums received by the Institute and out of which shall be defrayed all expenditure incurred by the Institute.
(3) The funds of the Institute shall consist oay, from time to time, place funds at the disposal of the Institute for the smooth discharge of its functions and the efficient conduct of its affairs.
(2) There shall be constituted for the Institf:- (a)grants by the Federal Government and (b)income from other sources such as users charges. consultancy, publications etc.
(4) The funds of the Institute shall be maintained and operated in accordance with the directions of the Federal Government in this behalf.
13. Budget and accounts.---(1) The Institute shall, by such date and in such form as may be prescribed by rules, submit to the Federal Government for approval its budget for each financial year showing the estimated receipts and expenditure and the sums which are likely to he required from the Federal Government during the financial year.
(2)The accounts of the Institute shall be maintained in such form and in such manner as the Federal Government may determine in consultation with the Auditor-General of Pakistan.
(3)The accounts of the Institute shall be audited by the Auditor-General of Pakistan.
14. Investment of Funds.---Subject to such instructions as the Federal Government may, from time to time issue, the Institute may invest its funds in any security of the Federal Government.
15. Appointment of officers etc.---(I) The Institute may, subject of the provisions of sub-paragraph
(2) appoint such officers, advisers, consultants and employees as it may consider necessary for the efficient performance of its functions on such terms and conditions as may be prescribed and approved by Federal Government.
(2) The Federal Government may direct the Institute to terminate the services of any officer, advisor, consultant or employee and the Institute shall be bound to comply with such direction.
16. Submission of periodical reports, etc.---(1) The Institute shall submit to the Federal Government as soon as possible after the end of each financial year, but not later than the last day of December next an annual report including a summary of accounts, on the conduct of its affairs for that year.
(2) The Institute shall also render to the Federal Government information, comments and advice on any specific point as may be asked for.
17.Discoveries and Inventions to vest in the Institute.---All rights relating to technologies involved and any improvements in materials, methods, processes, apparatus or equipment made by any officer or employee of the Institute in the course of his employment shall vest in the Institute: Provided that, in the case of collaborative projects, such rights shall be shared with the collaborating agencies in such manner as may be prescribed by regulations.
18.Power of make rules.---The Federal Government may, by notification in the official Gazette, make rules for carrying out the purposes of this Resolution.
19.Power to make regulation.---The Institute may, make such regulations not inconsistent with the provisions of this Resolution and the rules as may be expedient for achievement of its aims and objects and for the performance of its functions.
20.Head Office.---The headquarters of the Institute shall be at Lahore.
21.ORDERED that this Resolution be published in the Gazette of Pakistan Extraordinary and copies thereof sent to the Provincial Government, Division concerned, etc. S. H. RIZVI, Joint Secretary."
The preamble of the above Resolution clearly spells out the intention and purpose for creation of the Institute. Through this Resolution SZPMI was given autonomous status by the Federal Government with the intention to facilitate its unhindered and efficient functioning. This was the basic document which expressly explained therein the purpose/objectives of the Institution, its controlling body and the mode and manner of its management etc. In Paragraph No.3 of this Resolution it is provided that - " The Federal Government may, from time to time, issue to the Institute such directives and instructions as it may consider necessary for carrying out the purposes of this Resolution and the Institute shall follow and carry out such directives and instructions." Paragraph No.5 thereof provides that, "the overall control, direction and superintendence of the affairs of the Institute shall vest in a Board of Governors which may exercise all powers, perform all functions and do all acts and things which may be exercised, performed and done by the Institute." And under Paragraph No.12, the Federal Government is empowered to place funds at the disposal of the Institute for the smooth discharge of its functions and the efficient conduct of its affairs. Sub Paragraph (4) further provides that "The funds of the Institute shall be maintained and operated in accordance with the directions of the Federal Government in this behalf". It may also be noted that throughout the entire Resolution there is no mention of any Trust or Trustee. Neither it contains any provision that all movable and immovable property of the institute shall vest in any Trust or in the Board of Trustees nor there is anything to show that it has been authorized to sue and be sued in its own name. The.. said Resolution was not issued on behalf of the Trust or the Board of Trustees but on behalf of the Federal Government which was duly notified in the gazette of Pakistan and as such sanctity is attached to this document. I have gone through the alleged Trust Deed dated 06.11.1973 only copy of which is placed on the file, the original is neither in possession of the respondents nor it was found available with the record of the Registration Authorities at Karachi. It reads as under:- "This deed of Trust is declared at Abul Dhabi on the sixth day of November 1973 by His Highness Sheikh Zaid Bin Sultan Al-Nahiyan, the Ruler of Abu Dhabi (hereinafter called the "Donor", which expression shall wherever the context permits includes his heirs of successors) investing the subject matter of this Trust in (1) Begum Nusrat Bhutto, resident of Larkana (Pakistan), (2) Mr. Yar Muhammad Bhutto, son of Mr. Adnan Khan Bhutto, resident of Neu Dera, Dist, Larkana (Pakistan) and (3) Mr. Agha Hasan Abedi, son of Syed Ghulam Abbas, resident of Karachi (Pakistan) as Trustees under this Deed (hereinafter called the "Trustees") as set-forth herein.
WHEREAS, the Donor is desirous of setting on Trust a sum of US $ 100,000 (Dollars one hundred thousand only) and Pak Rs.72,72,1051- (Rupees seventy two lacs seventy two thousand one hundred five only) or there about and such other sums of money as he may in future wish to add to the corpus of the subject matter of the Trust for promoting the medical, educational, religious, economic, social and cultural welfare of the people of Pakistan who are over-whelmingly Muslims is general and for establishing a hospital and/or a medical college at Larkana in the Province of Sindh, Pakistan, in particular. WHEREAS the Trustees above named are willing to be invested with the ownership of the monies and properties looking the subject matter of the Trust for the purpose of carrying out the object of the Trust Set-forth herein.
NOW IT IS HEREBY DECLARED BY THE DONOR as follows:
1. The Trust shall be called and known as "Zulfiqar Ali Bhutto Trust" (hereinafter referred to as the "Trust").
2. The Donor hereby conveys, transfers and grants unto the Trust the said sum of US$100,000 (Dollars one hundred thousand only) and Pak Rs.72,72,105/- (Rupees seventy two lacs seventy two thousand one hundred five only) deposited by the Donor with United Bank Limited, Abu Dhabi and I.
I. Chundrigar Road, Karachi, branches respectively.
3. The Trustees have agreed to accept the Trust on the conditions set-forth herein.
4. Without prejudice to the generality of the purposes of the Trust as aforesaid and without restricting or limiting the activities and discretion of the transfers the objects of the Trust are: a)To establish, maintain and run a hospital and/or a medical college in Larkana. b)To promote medical, educational, religious, economic, social and cultural well-being of the people of Pakistan and for such purpose/purposes to undertake or establish a project or projects in any part of Pakistan.
5. The subject matter of the Trust shall be spent or invested in the manner and as safely and profitably as the Board of Trustees deems fit and all the expenses and outgoings of the Trust shall be met from the income from such investment and/or from the corpus of the Trust.
6. The Trustees shall have power to invest the Trust funds or any part thereof or any other money from time to time in or upon such lands, buildings stocks, funds, securities of whatever nature or in any other manner as the Trustees in their discretion them fit and shall have power to alter, vary and transpose such investment or investments from time to time into or for others of the same or like nature without being liable or responsible for any loss or the concessional thereby.
7. The Trustees may, in their entire discretion, out of the corpus of the subject matter of the Trust spend such money for constructing, laying out erecting, equipping, furnishing and running hospitals, research institutes of any other organizations and for any purpose provided that it is related to the objects of the Trust.
8. The Trustees shall have the power at their sole discretion to open and operate bank accounts in the name of the Trust, with any bank or banks they may so decide. The Trustees shall have the powers to borrow any sums of money from banks or any other financial institutions for the requirements of the Trust and to pledge. hypothecate or mortgage any assets of the Trust as security against such borrowings.
9. In case of any vacancy arising in the Board of Trustees it will be open to surviving Trustees to till in the vacancy or vacancies by any suitable person; provided always and it is hereby expressly the Board that no person shall be elected or nominated a Trusted who does not profess the religion of Islam and no person shall continue to act as a Trustee who has renounced Islam.
10.It is hereby further declared that the Trustees or the survivors of the Trustees or the Trustees for the time being shall stand vested and possessed of the present corpus of the subject matter of the Trust and all future donations to the Trust or the income therefrom or of the properties purchased, acquired or built out of the Trust; funds and to manage the properties of the Trust with full powers to rent out, to realize rents, pay taxes, rates and to meet all expenses, out-goings and disbursements of the Trust.
11.Any question arising in or relating to the administration of the Trust shall be decided by the majority of the Trustees acting for the time being. If the voting is equal then the Chairman shall have a casting vote.
12.Begum Nusrat Bhutto shall be the Chairman of the Board of Trustees.
13.In case of Begum Nusrat Bhutto vacating the office of the Chairman of the Board of Trustees, it shall be open to the remaining/surviving Trustees to elect from amongst themselves the Chairman provided always a person nominated by Begum Nusrat Bhutto in writing to succeed her as the Chairman of the Board of Trustees shall be elected and act as the Chairman.
14.The Chairman of the Trust may appoint from adopted the Trustees a Managing Trustee who may exercise all or any of the powers and authority and discharge all or any of the obligations of the Board provided always that Managing Trustee shall be under overall control and supervision of the Board of Trustees.
15.If any vacancy arises in the Board of Trustees on account of the death, incapacity, persistent neglect or un-willingness to act, the retaining, Trustees shall carry on the work of the Trust till the vacancy is filled and all their acts shall be as valid as if there had been no vacancy. The Trustees may increase the number of Trustees if and when considered necessary and expedient and for that purpose co-opt one or mere persons in the Board of Trustees.
16. The quorum for the meeting of the Board of Trustees shall be two which shall compromise of the Chairman and any one of the Trustees.
17.A Trustee may renounce his office by not lying in writing the other Trustees of the Board of his intention to do so.
18.The Trustees may from time to time appoint at any salary and upon any terms as they may think proper a secretary, clerks, or other employees whom they may think necessary or desirable for the purpose of carrying out the objects of the Trust and powers of this Deed and may at any time dismiss any of the purpose so appointed.
19.The Trustees may at any time employ an actuary or other professional person to advise them on any point arising in connection with the Trust and Powers.
20.The Trustees may at any time to time appoint doctors, nurses, educationalists, scientists, teaches and other professional and technical personnel as they may think necessary or desirable for the purpose of carrying out the objects of the Trust.
21.All salaries and fees of any person or persons appointed or employed shall be paid by the Trustees out of the corpus or income of the Trust.
22.The administration of medical, educational, educational and other undertakings and schemes shall be the superintendence, control and direction of the Trustees.
23.The Trustees shall have power and authority to settle, compromise consumed all and any debts, claims, outstanding accounts disputes, demands, suits and procuring, whatsoever by from or against them or any, there on relating to the kinds or any part there or any matter touching the to (sic) or includes hereof an (sic) if necessary to refer the same to arbitration.
24. The Trustees shall be entitled by Dated Supplemental hereto much and to the provisions of this Deed in such manner and to such extreme a .. may consider expedient for any purpose provided that the Trustees he (sic) certify on writing that in their opinion such matriculation, alteration or addition counted only to enable the provisions of this Deed to be more conveniently on specially manages and does not alter the fundamental provisions or obstacle on the Trust.
IN WITNESS WHEREOF THE PARTIES HERETO HAVE SIGNED THIS DEED.
Witness Donor"
A perusal of the above Trust Deed clearly reflects that none of its objects specifically provide that any research institute is to be established at Lahore or anywhere in the country. The respondents have failed to show any nexus of the Trust with SZPMI or to show that the Trust was instrumental in any activity involved in the creation thereof or the land of SZPMI, Lahore was purchased out of funds of the Trust or any amount was so released for construction of the buildings and for providing any machinery to the institute. Whereas the petitioners have placed on record copy of the Notification No.P-15/1/78 which indicates that construction of this institution started in the year 1978 with the funds of Ministry of Planning Commission and Ministry of Health from their own budget. It is also to be noted that the Federal Government has from time to time been reconstituting the Board of Trustees of the Sheikh Zayed Bin Sultan Alnahyan Trust, however, at no given time, so constituted Board of Trustees were assigned or in fact acted as the Board of Trustees of SZPMI.
11. So far as contention of the respondents that this Institute is a Trust managed by the Government, I may observe that corporate status of a body is always created by its incorporation under a Statute/Act and whenever a Trust is created it is subject to certain obligations and duties and the Trust in question is apparently failing in fulfilling the mandatory requirements under the Trust Act, 1882. Even if it is presumed for the sake of arguments that there was a Trust created in 1973 it would be difficult to support the survival of the said Trust after the Martial Law Order No.22 dated 15th October, 1977 it remained no longer. Though by President's Order No.4 dated 26.03.1978 the Trust was renamed as Sheikh Zayed Bin Sultan Al-Nahyan Trust and Board of Trustees was constituted on different occasions with different persons as Members of the Board of Trustees but there is nothing on record to show that the said Trust with its Board of Trustees was ever involved with the working of SZPMI. Similarly absence of a mention of any sort of the Trust in the Resolution of 29.05.1986 brings me to the irresistible conclusion to hold that Sheikh Zayed Postgraduate Medical Institute, Lahore, is an Institution established by the Federal Government and it is not the creation of the Trust dated 06.11.1973 as has been alleged before this Court and under the umbrella whereof certain acts and actions have been undertaken to run and manage Sheikh Zayed Postgraduate Medical Institute, Lahore.
12. Next comes the issue of devolution. As per contention of the respondents the transfer of Sheikh Zayed Postgraduate Medical Institution, Lahore from Federation to the Province was triggered by the 18th Amendment as a result of which the concurrent legislative list was omitted from the Fourth Schedule. However it is not denied that at the time of devolution this institute was working directly under the Cabinet Division, Islamabad. It is also an admitted position that the administrative control of this Institution was transferred from Government of Pakistan (Cabinet Division) to Government of Punjab by the Prime Minister. In this scenario I would like to discuss as to whether devolution of this Institution is lawful and constitutionally justified. The amended provisions of clauses 6 to 9 of Article 277-AA contemplate as under:- "6. Notwithstanding omission of the Concurrent legislative List by the Constitution (Eighteenth Amendment) Act, 2010, all laws with respect to any of the matters enumerated in the said list (including Ordinance, Orders, rules, bye-laws, regulations or any part thereof or other legal instruments having the force of law), in force in Pakistan or any part thereof or having extraterritorial operation, immediately before the commencement of the Constitution (Eighteenth Amendment) Act, 2010, shall continue to remain in force until altered, repealed or amended by the competent authority.
7.Notwithstanding anything contained in the Constitution, all taxes and fees levied under any law in force immediately before the commencement of the Constitution (Eighteenth Amendment) Act, 2010, shall continue to be levied until they are varied or abolished by an Act of the appropriate legislature.
8.On the omission of the Concurrent Legislative List, the process of devolution of the matters mentioned in the said list to the Provinces shall be completed by the thirtieth day of June, two thousand and eleven.
9. For purpose of the devolution process under clause (8), the Federal Government shall constitute an Implementation Commission as it may deem fit within fifteen days of the commencement of the Constitution (Eighteenth Amendment) Act, 2010. "
It is thus clear that under Clause 6 reproduced above all the notifications, rules and regulations etc. which were in force before the 18th Amendment stood protected while as per Clause 8 it was mandated that the process of devolution shall be completed by the 30th of June, 2011 through constitution of an Implementation Commission within fifteen days in terms of Clause 9 of the aforesaid Article. The Implementation Commission, so constituted, within the given time frame devolved the following seven ministries:- i) Ministry of Environment ii) Ministry of Food and Agriculture iii) Ministry of Health iv) Ministry of Labour and Man Power v) Ministry of Monitories Affairs vi) Ministry of Sports vii)Ministry of Women Development Sheikh Zayed Postgraduate Medical Institute, Lahore continued to work under the control of the Cabinet Division. It is to be noted that the associated hospital of the Institute i.e. Sheikh Zayed Bin Sultan AlNahyan Hospital was mentioned in the attached departments of Ministry of Health, Quetta. The devolution of Sheikh Zayed Postgraduate Medical Institute, Lahore took place on 14.02.2012 much after the cut off date in violation of the sub-clauses (8) and (9) of Article 277-AA of the Constitution which cannot he regarded as a mere irregularity curable under Article 254 of the Constitution. A Full Bench of Sindh High Court, Karachi (C.P.D.-1692/2011) has interpreted the very purpose of the Implementation Commission in the following terms:- "It is pertinent to note that the term 'devolution' does not appear anywhere else in the Constitution.
Thus, it had a specific meaning: it only meant that process (which was to be completed by 30.06.2011) whereby federal matters relating to the omitted entries were to be transferred to the Provinces. For this purpose, an Implementation Commission was to be set up in terms of clause (9).
As is clear from the opening words of this clause, the Commission was to be constituted for one purpose alone: the 'devolution process' contemplated by clause (8). Thus, whenever the word 'devolution' is used anywhere, and in the context of the 18th Amendment, it can have only the meaning and purpose ascribed to it in clause (8), and none other. Furthermore, the remit, jurisdiction and authority of the Implementation Commission set up in terms of clause (9) were also likewise clearly spelt out, being 'for the purpose of the devolution process under clause (8)." The contention of the petitioner is that Sheikh Zayed Postgraduate Medical Institute, Lahore is performing such functions which directly fall under entry No.16 (part-I) of Federal Legislative List which is relating to Federal Agencies and institutes for the following purposes, that is to say, for research, for professional or technical training, or for the promotion of special studies and entry Nos.11 and 12 (part-2) of the Federal Legislative List relating to legal, medical and other professions and standards in institutions for higher education and research, scientific and technical institutions, therefore, this being a federal subject the D Institute could not be devolved to the Province of Punjab. As per terms of reference set for the Implementation Commission, it was constitutionally within the purview of the said Commission to satisfy itself as to whether or not the matter related to any entry on the concurrent Legislative List as was omitted and if the answer was in the affirmative then only clause (8) was to be put in service. Therefore, in my view the process of devolution of Sheikh Zayed Postgraduate Medical Institute, Lahore could only be legally and validly completed in terms of clauses (8) and (9) of the amended Article 270-AA of the Constitution.
13. The next point is whether Prime Minister was competent to transfer the Institute in question from the Federal Government to the Provincial Government. Admittedly, at the time of devolution, Sheikh Zayed Postgraduate Medical Institute, Lahore was under the control of Cabinet Division. According to Article 90 of the Constitution, the Federal Government shall consist of the Prime Minister and the Cabinet. This means that alone the Prime Minister is not the Federal Government. The Hon'ble Supreme Court of Pakistan in case of "Messrs Mustafa Impex, Karachi and others v. The Government of Pakistan through Secretary Finance, Islamabad and others" (2016 PTD 2269) while interpreting the provisions of Articles 91 and 97 of the Constitution held as under:- "Cabinet being the supreme body of the Executive, with a high constitutional status, could not and ought not to be treated as a mere rubber stamp for decision making by the Prime Minister--- Constitution envisaged a parliamentary form of Government which was based on decision making by the Cabinet---To turn the Cabinet into a rubber stamp in pursuit of decision making by the Prime Minister to the exclusion of his Cabinet would violate the letter and spirit of the Constitution, as it would reduce a Cabinet form of Government into a prime ministerial one which was a concept alien to the Constitution."
It was further held that:- "Prime Minister was the head of the Cabinet. He was the single most person in the Cabinet, but he did not stand in the position of the Cabinet. He was neither a substitute nor a surrogate for the Cabinet. He could not exercise his powers by himself. The reason that he could not stand in the position of the Cabinet was because the Cabinet was, infact, the Federal Government. Treating the office of the Prime Minister as being equivalent to that of the Cabinet, would mean that the Prime Minister, by himself, as a single individual, would become the Federal Government. This was simply inconceivable.
Function of the Chief Executive (Prime Minister) is to execute and implement the policy decision taken by Cabinet i.e. the Federal Government. He executes policy decisions, he does not take them by himself. The executive function, even on a literal basis, is to execute or implement decisions. On this interpretation the whole structure now falls into place. The Prime Minister cannot take decisions by himself, or by supplanting or ignoring the Cabinet because the power to take decisions is vested with the Federal Government i.e. the Cabinet, and unilateral decisions taken by him would be a usurpation of power. The decisions of the Federal. Government are the decisions of the Cabinet and not of the Prime Minister. Any decision taken by the Prime Minister on his own initiative lacks the authority of the law of the Constitution."
In view of the above explicit interpretation of the Constitutional provisions by the Hon'ble apex Court of the Country the impugned office memorandum/notification dated 14.02.2012 issued by the Prime Minister to the exclusion of his Cabinet did not carry legal sanction behind it and as such, it is liable to be struck down on Constitutional plane. This Court is, therefore, under its statutory duty to make the following declarations and orders that:-
(i) The Sheikh Zayed Postgraduate Medical Institute, Lahore is an institution established by the Federal Government and is not the creation of the purported Trust dated 06.11.1973 and consequently all notifications/directions etc. regarding establishment of Board of Trustees under the said Trust to hold administrative control and run the affairs of this institution are held to be ultra vires of the Ccinstitution and of no legal effect.
(ii)The impugned office memorandum/notification dated 14.02.2012 issued by the Prime Minister is declared to be unconstitutional, coram non judice, without legal authority and of no legal effect.
(iii)All the acts done, orders made, directions and notifications etc. issued pursuant to the purported transfer/devolution shall cease to have any legal effect.
(iv)The Sheikh Zayed Postgraduate Medical Institute, Lahore along with all its components shall stand restored to the Federal Government in the position where it was before the impugned devolution within a period of six months from the date of this judgment and without prejudice to the generality of the foregoing the restoration and return shall include the actual resumption by the Federation of all the financial obligations and Administrative Control in relation to the institutions and all serving or retired employees thereof.
(v)The Federal and the Provincial Government and all related authorities, departments etc. shall co-operate and provide full assistance in so far as they are concerned to the transfer in question.
(vi)All such appointments, including the Chairman of the Institution, which were made by the Provincial Government after the purported devolution are declared to be illegal, void ab initio and ultra vires of the Constitution.
14. All the writ petitions mentioned in para No.2 of this Judgment are allowed and disposed of in the above terms.