MUHAMMAD FARRUKH IRFAN KHAN, J.---- The matter in controversy and the issues involved herein this Writ Petition as well as connected Writ Petitions have already been exhaustively dealt with and determined on factual and legal plane by this court vide judgment dated 16.06.2017. However , in appeal (I.C.A. No,1359/2017) learned Division Bench of this Court vide order dated 03.04.2018 has remanded the matter to this Court for its decision afresh on the sole ground that since the matter involved interpretation of the constitutional provisions, therefore, notwithstanding the fact that the Deputy Attorney General and the Additional Advocate General Punjab appeared in the case and reply/comments on behalf of the Federal Government and the Government of Punjab were submitted, the mandatory requirement of Order XXVII-A Rule 1 of C.P.C. was not duly met with by this Court. The learned Division Bench observed as under: "We are convinced that the subject matter of these appeals (as also the petition s from which they have arisen entail the resolution of important question of constitutional law for which the notice to both Attorney General for Pakistan as well as Advocate General for Punjab was essential. For instance, in the order dated 11.04.2012 it has been noted by the learned Single Judge that "the question noted in the order dated 13.03.2012 requires elaboration by Federal Government as well as the Provincial Government. This is particularly important because under the 18th amendment hospitals belonging to the Federal Government and falling under the charge of Health Ministry have been devolved". This is a common thread running through the entire order sheet culminating in the impugned judgment and there too in paragraph 12 finds the determination with regard to the issues of devolution after the passing of the 18th amendment in the Constitution of Islamic Republic of Pakistan, 1973. Thereafter , the learned Single Judge proceeded to determ ine as to whether the devolution of the institution in question was lawful and "constitutionally justified". While doing so, the learned Single Judge proceeded to render a construction on the various clauses of Article 277-AA of the Constitution as also the effect of irregularity under Article 254. The interplay of the federal legislative list and the powe rs being exercised by the Provincial Government were also the subject of discussion by the learned Single Judge in the impugned judgment. Further , the learned Single Judge dilated upon the power and competence of the Prime Minister to transfer the institution in questio n from the Federal Government to the Provincial Government. In this regard, the interpretation of Article 90 of the Constitution was also undertaken.
In a nub, these questions constitute important questions of constitutional law and were covered by the enumerations of Order XXVII-A, Rule 1, C.P.C. We have no doubt in our mind that the learned Single Judge fell in an error by not issuing proper notice in terms of Order XXVII-A, Rule 1, C.P.C. and which, in turn, vitiated the judgment. Since we have given our finding on the baseline objection raised by the learned counsel for the appellants/petitioners, we do not deem it proper to enter the thicket of other issue s which arose in these appeals while laying a challenge to the impugned judgment.
In view of the above, these appeals are allowed. The impugned judgment is set aside. The matter is remanded to the learned Single Judge for decision afresh after issuing notice under Order XXVII-A, Rule 1, C.P .C.".
2. Pursuant to the above reproduced remand order , notice in terms of order XXVI I-A Rule 1 of C.P.C. was served upon the Attorney General for Pakistan and the Advocate General, Punjab in response to which Ch. Ishtiaq Ahmad Khan, Additional Attorney General along with Ms. Ambreen Moeen, Deputy Attorney General for Pakistan and Malik Abdul Aziz Awan, Additional Advocate General, Punjab have entered appearance on behalf of the Federal Government and the Government of Punjab. They have adopted the arguments already advanced in the matter by the then Deputy Attorney General for Pakistan and Additional Advocate General, Punjab during the earlier round of hearing / proceedings culminating into judgment dated 16.06.2017. In support of their case on the questions of law they have made the following additional submissions:- Article 90 Sub-Article (2) of the Constitution of Pakistan empowers the Prime Minister to pass an order/notification either directly or indirectly through his Federal Ministers i,e, Cabinet Division. The referred Judgment in Mustafa Impex case PLD 2016 SC 808 was passed in the year 2016 while the impugned memorandum was issued on 14.02.2012. In another Supreme Court judgment it has been explained that the judgment in Mustafa Impex case referred above shall have the prospective effect and not retrospective effect, therefore, the above cited judgment cannot be made applicable qua impugned memorandum. Article 254 of the Constitution of Islamic Republic of Pakistan provides that failure to comply with requirement as to time does not render an act invalid, therefore, the cut of date enumerated in clauses 8 and 9 of Article 270AA does not invalidate or make ineffective the impugned memorandum dated 14.02.2018. The influx of time does not render the act of devolution invalid especially when the said act of Prime Minister is backed by an. Act of the parliament in the shape of 18th Constitutional Amendment. Proviso of Sub-Rule (3) of Rule 3 of the Rules of Business, 1973 explains that "Provided that the distribution of business or the constitution of the Division may be modified from time to time by the Prime Minister". This provision of law clearly empowers the Prime Minister and not the Cabinet in distribution of business or the constitution of the Division. The fundamental rights of the petitioners are secured and have not been infringed by the devolution/transfer of institution (SZPMI) from Federal Government to Government of Punjab as the Board of Trustees have been reconstituted with the approval of the President. In the Federal Legislative List the institutes for research/professional and technical training means the institutes for research and professional training run and owned by the Federal Government while the SZPM Institute has been devolved/transferred into the Government of Punjab from 14.02.2012 by virtue of 18th Amendment Act, 2010. The Clause 2 of Schedule IV of the Rule of Business, 1973, explains that signatures of the Prime Minister are not required on any notification as the business of the Division shall ordinarily be disposed of by, or made the authority of the Secretary , Additional Secretary , Joint Secretary or Deputy Secretary or Section Officer. Further to this, Rule 5(8) states that the business of the Division shall ordinarily be disposed of by, or under the authority of the Minister- in-charge.
The validity , structure and composition of SZPM Institute is not in question in the instant writ petition and even the petitioners do not press the legality of formation of Trust Resolution dated 29.05.1986. The powers of the Prime Minister given by the constitution under Article 90 Sub- Article (2) and 18th Amendment Act, 2010 completely legalize and validate the Of fice Memorandum dated 14.02.2018.
In support of above contentions the learned Additional Attorney General has placed reliance on 2014 PCr.LJ 684 and PLD 2014 Lahore 451 .
3. Learned counsel for the petitioners submit that the above law points raised by the learned Additional Attorney General and the Advocate General, Punja b have already been dealt with exhaustively in the judgment of this Court dated 16.06.2017 and there was no occasion for remanding the matter to this Court and in all fairness if the appellate court was of the view that representation of the Federal and Punjab Government was defective in any way and not in accordance with the terms of Order XXVII-A Rule 1 of C.P.C. this requirement could be met before the learned Division Bench while deciding the Intra Court Appeal which was continuation of the writ petition. They emphatically argued that in the pre-remand proceedings of the writ petitions parawise comments on behalf of the Federal Government as well as Governm ent of Punjab were duly submitted pursuant to the order of this Court dated 11.04.2012 and Deputy Attorney General and the Advocate General Punjab have been appearing to represent their respective Governments and they argued the matter extensively before rendering the judgment dated 16.06.2017. They further submitted that even after the remand both the Governments have filed same replies/comments which they had earlier tendered and now under the pretext of purported notice they are trying to hoodwink the Courts by abusing the process of law. It was next contended that the petitioners have assailed the judgment dated 03.04.2018 passed by the learned Division Bench before the august Supreme Court of Pakistan in CPLA No,2312/L/2018 claiming it to be illegal, unlawful and judgment per incurim on the basis of judgment passed by the Full Bench of this Court in I.C.A. No,77347 of 2017, wherein it has been resolved that non mentioning of Notice under XXVII-A Rule 1 of C.P .C. in judicial proceedings is not a fatal error .
4. Arguments heard.
5. The questions of law raised by the learned Additional Attorney General for Pakistan on behalf of the Federation and learned Additional Advocate General of the Punjab Government, have already been discussed elaborately while rendering the earlier judgment dated 16.06.2017 which is merged and made part of this judgment. The functions of the Federal Government have been defined in Articles 90 to 99 of the Constitution of Pakistan.
Subsection (1) of Article 90 of the Consti tution provides "subject to the Constitution, the executive authority of the Federation shall be exercised in the name of the President of the Federal Government consisting of the Prime Minister and the Federal Ministers." The word "and." used in between the Prime Minister and the Federal Ministers is of great importance. It is defined as under:- "And - A conjunction connecting words or phrases expressing the idea that the latter is to be added to or taken along with the first. It expresses a general relation or connection, a participation or accompaniment in sequence, having no inherent meaning standing along but deriving force from what comes before and after it" (BLD Ed.IV).
It is thus manifestly clear that provisions of subsection (2) of Article 90 must be interpreted in correlation to subsection (1) of Article 90 of the Constit ution of Islamic Republic of Pakistan, 1973. In Article 91 Subsection (6) it has been provided that "the Cabinet, together with the Ministers of State, shall be collectively responsible to the Senate and the National Assembly ." It is cardinal principle of interpretation that any Article of the Constitution shall not be read isolation rather it must be read along with other relevant provisions on the subject. The conjunctive reading of subsection (2) along with subsection (1) of Article 90 and Article 91(6) of the Constitution makes it abundantly clear that the Prime Minister was not solitarily competent to transfer Sheikh Zayed Post Graduate Medical Institute from the Federal Government to the Provincial Government. It has been held in Messrs Mustafa Impex case that "The Prime Minister is the head of the Cabinet but he can neither supplant it nor replace it. In Article 90 he is described as the Chief Executive while in Article 91 his descrip tion is that of the Head of the Cabinet. He is the single most important person in the Cabinet but he does not stand in the position of the Cabinet.
He is neither a substitute nor a surrogate for the Cabinet. He cannot exercise powers by himself. The reason that he cannot stand in the position of the Cabinet is because the Cabinet is, in fact, the Federal Government and is so described in Article 90. If we treat the office of the Prime Minister as being equivalent to that of the Cabinet, it would follow that the Prime Minister , by himself, as a single individual, becomes the Federal Government. This is simply inconceivable."
6. In view of the above explicit interpret ation of Constitutional provisions of Articles .90 and 91 by the Hon'ble Supreme Court of Pakistan, the impugne d office memorandum dated 14.02.2012 issued by the Prime Minister to the exclusion of the Cabinet is held to be contrary to law and ultra vires of the Cons titution. An elaborate discussion on this question of law has already been made in my earlier judgment dated 16.06.2017 which will be treated and read as an integral part of this judgment.
7. The next question raised by the learned Law Officers is regarding enforcement and applicability of the judgment passed in Mustafa Impex case PLD 2016 SC 808, suffice it to observe that in the said judgment the Hon'ble Supreme Court has only interpreted the Articles and provisions of the Constitution and did not lay down any new law, therefore, the question whether it would have prospective ef fect or retrospective ef fect is preposterous.
8. The respondents have tried to take shelter under Article 254 of the Constitution to give legal cover to the impugned notification having been issued by the Prime Minister after lapse of two years of the devolution, whereas the original 18th Amendment in the Constitution was passed by 2/3 majority of both the houses of the Parliament and they specifically dealt with the question of limitation/af flux of time for the purpose of carrying out 18th Amendment in the Constitution by of inserting Article 267A which is reproduced as under:- "Power to remove difficulties- If any difficulty arises in giving effect to the provisions of the Constitution 18th Amendment Act, 2010, hereinafter in this Article referred as the Act, or for bringing the provision of the Act into effective operation, the matter shall be laid before both houses in a joint sitting which may by resolution direct that the provisions of the Act shall, during such period as may be specified in the resolu tion, have effect, subject to such adaptations, whether by way of modification, addition or omission, as may be deemed necessary or expedient: Provided that this power shall be available for a period of one year from the commencement of the Act."
9. In Article 267A reproduced above the legislation has specifically not only described the manner to extend the time for devolution or implementation of the 18th Amendment Act, 2010, but also curtailed the period upto only one year with the specific provision that both the houses in joint sitting in the Parliament may by a resolution direct the provision of the Act shall, during such period as may be specified in the resolution have the effect. There is no mentioning of the powers of the Prime Minister in this Article and the power is vested with the joint session of the Parliament with the specific proviso that such power will be available for a maximum period of one year. Moreso Article 254 is a general provision in the Constitution whereas Article 267A is a specific provision relating to the 18th Amendment and it is settled law that special provision shall override the general provision. Further Article 267A is later in time and it has the overriding effect upon Article 254. Therefore, the contention of the respondents that influx of time in complying with the requirements under clauses 8 and 9 of Article 270AA did not render the act of devolution invalid by virtue of Article 254 is devoid of any force. The next argument on behalf of the Federation is that proviso to sub-rule (3) of Rule 3 of the Rules of Business, 1973 empowers the Prime Minister and not the Cabinet to do the acts of distribution of business as per his prerogative. In this regard it is observed that distribution of works amongst the Ministers and an act of Parliament are entirely two different things. Rule 3 of Rules of Business is subject to Rule 6 which is an individual and collective responsibility . For the sake of convenience Rule 6 is reproduced as under:- "Individual and collective responsibility . - The Cabinet shall collectively be responsible for the advice tendered to, or the executive orders issued in the name of the President whether by an individual Minister or as a result of decision by the Cabinet; but the Minister shall assume primary responsibility for the disposal of business pertaining to his portfolio."
It is thus manifest that it is the Cabinet actually which is responsible for all functions of the Federal Government and not that of the Prime Minister alone.
10. It has also been alleged by the respondents that fundamental rights of the petitioner have not been infringed by transfer of the SZPMI from Federal Government to Government of Punjab as the Board of Trustees has been reconstituted with the approval of the President. This argument does not hold good for the reason that if a person who was being governed under the federal statute is transfer to Government of Punjab by the Prime Minister without any legal authority that would certainly offends his fundamental rights as envisaged under Article 4 of the Constitution. As to the ex-question raised on behalf of the respondents regarding Federal legislative list, this Court is of the view that SZPMI was under the administrative control of the Cabinet Division since 1994 and not under the Federal Ministry of Health. However , necessary amendments was made id the federal legislative list and entry No,16 was inserted in part-I. In part-II special entries Nos,12 and 13 were added. SZPMI is a post graduate training institute and its functions are still with the Federal Government according to the amended federal legislative list, hence the arguments of the respondents in this regard have no force of law keeping in view of the 18th Amendment Act and federal legislative list.
11. So far as the question regarding signa ture of the Prime Minister on the impugn ed notification is concerned, this Court has arrived at a conclusion that the Prime Minister alone had no authority to issue the impugned memorandum. No legal procedure was adopted before devolving the component of the Government falling in the federal legislative list. Had it been so simple there would have been no need of the 18th Amendment by both the Houses of the Parliament and this exercise could be carried out by the Prime Minister solely . The act of devolution was not within the domain of the Prime Minister alone, therefore, a specific exercise was carried out in the shape of 18th Amendment with 2/3 majority . So simply stating that as per clause 2 of Schedule IV of the Rules of Business, 1973, the impugned notification could be issued without signatures of the Prime Minister even by a Section Officer is not warranted under law .
12. It has also been contended on behalf of the respondents that validity / structure and composition of the SZPMI is not in question in the instant writ petition and even the petitioners do not quest the legality of formation of Trust Resolution dated 29.05.1986, this plea of the Government is totally misconceived. The Resolution of 1986 which has been appended with the petition has been perused. There is no mentioning of the word "Trust" in whole of the Resolution. Section 3 of the said Resolution deals with the directives from the Federal Government and section 6 describes the composition of Board. Sections 3 and 6 ibid are reproduced here as under:- "3. Directives and Instructions . The Board of Trustees or the government may, from time to time, issue directives and instructions to the Institute for carrying out the purposes of the institute, and the Institute shall faithfully observe and implement such directives and instructions.
6. Composition of the Board.- (1) the Chief Minister , Punjab who is the Chairman of the Board of Trustees shall be Patron-in-Chief of the institute.
(2) The Board shall consist of the following:- S# Members Designation
1. Minister for Health/Advisor to Chief Minister on Health; President
2. Secretary to the Government of Punjab Health Department.Vice President
3. Secretary to the Government of Punjab, Finance Department.Member
4. Secretary to the Government of Punjab, Law and Parliamentary DepartmentMember
5. Vice Chancellor , University of Health Sciences, Lahore Member
6. Managing Director , Punjab Pension Fund Member
7. Five persons appointed by the Government for a renewable terms of four years; andMember
8. Chairman Member/Secretary Whole of the body of the above Resolution revolves around the Federal Government who has the powers to appoint Board of Governors, issue directives, make rules and regulations. How that could be called as Trust by the Prime Minister when there was nothing on record regarding formation of the trust and the whole trust deed is relating to Sheikh Zayed Hospital Larkan a and not that of SZPMI , Lahore. Sheikh Zayed Hospital is a general name. One hospital in the name of Sheikh Zayed Hospital is functioning in Rahim Yar Khan and the other in Quetta and those are not trusts, therefore, the word 'Sheikh Zayed Institute should not be misconceived by the Federal or the Provincial Government. Sheikh Zayed Postgraduate Medical Institute, Lahore is an institution established by the Federal Government and it is not the creation of the trust.
13. The judgment (2014 PCr.LJ 684) relied upon by the respondents enunciates that Prime Minister being the executive head can exercise his authority in executive functions alone and to devolve one of the components from Federal to Provincial Government was not the executive function, rather it was purely legislative function falling under 18th Amendment Act by way of 2/3 majority , therefore, the referred judgment is not applicable to the issue in hand. Similarly the other judgment (PLD 2014 Lahore 451) cited by the respondents is distinguishable on facts and circumstances of the present case inasmu ch as Sheikh Zayed Postgraduate Medic al Institute, Lahore has not been proved as Trust. Moreover , that case is regarding the fee structure of the students of the medical institute and that judgment is also under challenge in I.C.A.
14. In view of the above, seeking guidance from interpretation of the constitutional provisions made by the Hon'ble Supreme Court of Pakistan, this Court has come to an irresistible conclusion that the impugned office memorandum / notification dated 14.02.2012 issued by Prime Minister alone to the exclusion of his Cabinet was ultra vires of the Constitution and did not carry legal sanction behind it as such the same is struck down.
Resultantly this petition is allowed and disposed of along with connected Writ Petitions Nos, 8078/2014, 22543/2015, 21520/2015, 25444/2015, 32852/2015, 25701/2016 and 31505/2016 with the following declaration/directions:- i). The Shiekh 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 af fairs of this institution are held to be ultra vires of the Constitution and of no legal ef fect. 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 ef fect. iii) All the acts done, orders made, directions and notifications etc. issued pursuant to the purported transfer/ devolution shall cease to have any legal ef fect. 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.