ROOH-UL-AMIN KHAN, J. Through this common order, we propose to decide the instant COC Petition in WP No.3452-P/2018, filed by Sher Daraz Khan and four others and connected COC Petition No.43-P/2021 in Writ Petition No.2307-P of 2019, filed by Adul Khaliq and Cr.M No.1183-P of 2020 in COC No.536-P of 2016 in WP No.538-P of 2019, filed by Dost Muhammad Khan and three others, the petitioners, respectively, against the Secretary Health Government of Khyber Pakhtunkhwa and others, the respondents, as in all the petitions the petitioners are seeking initiation of contempt of court proceedings against the respondents on the ground of their failure to implement the judgments of this Court.
2. Facts in brief forming the background of instant COC Petition are that Sher Daraz Khan and others, the petitioners, filed Writ Petition No.3452 of 2018 against the respondents to the effect that the petitioners provided land free of cost for construction of MCHs and CDs under Khusal Pakistan Programme and People Works Programme in their respective areas. After completion the Medical Centers/Civil Dispensaries, SNE proposal were prepared and sent for creations of posts. Accordingly, hundred posts were created but were allotted to other Health faculties which were constructed later in time than those constructed over the lands of donated lands petitioners. Due to non-provisions of the required staff to the health facilities, the buildings so constructed have deteriorated due to wear and tear. The petitioners approached this court for redressal of their grievance in Writ Petition No.3452 of 2018, which was decided vide judgment dated 12.02.2020. Operative part of the judgment is reproduced below:- "In the said writ petition, a similar mater was raised and this Court had taken serious notice of non-providing health facilities in the erstwhile tribal areas. Now after the omission of Article 247 through 25th Constitutional amendment, all the tribal areas have been merged into settled area and declared as tribal districts, therefore, the citizens of the merged areas stand on equal footing with citizens of the rest of the country. They enjoy equal opportunities, rights and other fundamental rights and could not be singled out for any ulterior motives.
Petitioners only seek the enforcement of right of health facilities which is part and parcel of Articles 4 and 25 read with Article 38 of the Constitution. The record reveals that in the area where the petitioners reside, the posts for civil dispensaries and medical centers have not been created due to which people of the area is in extreme hardship and have to travel far and wide for getting basic necessities of health. Since this Court has already taken serious note of lace of provision of health facilities in the erstwhile FATA area, the petitioner have an inalienable right to be treated in accordance with law.
Hence, the instant writ petition is allowed with the direction to the respondents to do the needful in accordance with the contentions as raised in the petition."
3. Connected COC Petition No.43-P of 2021, has been filed by petitioner Abdul Khaliq for implementation of judgment dated 30.09.2020 passed by this Court in WP No.2307-P of 2019. In the said writ petition the petitioner had sought issuance of a writ to the effect that respondents be directed to induct required staff in the newly constructed/created Medical Centers/Civil Dispensaries etc under Khushal Pakistan Programme and People Works Program. This court while deciding the writ petition on 30.09.2020, passed the following order:- "Dr. Farooq Jameel Special Secretary-II Health Department along with Malik Akhtar Hussan AAG present on court notice states that process of induction of the staff and medical appliances are in pipeline. Case for creation of the posts of essential Health Workder force has been placed before the financial Department which after scrutiny by the Committee is to be approved. To bring in running condition the Centers will take some time, hence, he requested for time.
In view of the above, this writ petition is disposed of in the terms that the respondents shall finalize the process within a period of six months, positively and a report in this regard shall be submitted to this Court through the Additional Registrar (Judicial)".
4. Through connected Cr.M. No.1183-P of 2020, petitioners, seek implementation of order dated 31.05.2018, passed in COC No.536-P of 2016 in WP No.538-P of 2013. COC No. 536-P of 2016, was filed by Malik Qasam Khan and others for initiating contempt of court proceedings against the respondents including Federal Government SAFRON Division and concerned Authorities in the FATA Secretariat for disobeying and not honouring the order/verdict of this court dated 18.02.2016, which was disposed of in the following manner:- "Today when the case was taken up for hearing a copy of notification dated 15.04.2016 was submitted on behalf of the respondents, showing approval of SNE by Government of Khyber Pakhtunkhwa whereby posts have been created for Basic Health Unit, Community Health Center, Civil Dispensary and Mother & Child Health (MCH)
Centre.
In other words, following approval of the staff, the scheme stand completed and grievance of the petitioners redressed with compliance of the judgment of this court dated 18.02.2016, therefore, COC is disposed of as having served its purpose."
Through Cr. M. 1183-P of 2020, grievance of the petitioners is that on obtaining copy of Notification dated 08.05.2018, they came to known that approval of staff for eight out of total 13 facilities has been granted whereas for the remaining four facilities through the Notification ibid only two posts have been allotted to each facility whereas the staff approved in the original SNE of 21.06.2012, was 05 for each CD and 06 for each CHC.
5. Arguments of learned counsel for the parties heard whereas, the Secretary Health Department Government of Khyber Pakhtunkhwa was provided an opportunity of personal hearing.
6. On first hearing of the COC petitions on 03.09.2020, Syed Sikandar Hayat Shah, worthy AAG present in the court was directed to file a detailed reply explaining therein as to why judgments of this court are not being implemented by the respondents. On 15.12.2020, Mr. Muhammad Riaz AAG stated before the court that according to respondent No.2 SNE regarding concerned health facilities has been sent to the Finance Department and is pending for approval. On 15.09.2021, Sardar Ali Raza, AAG produced SNE proposal of six Health Facilities completed non-ADP Schemes of Sub Division Wazir Barmu, according to which fourteen posts of different categories have been allocated for different civil dispensaries at Bannu, however, appointments against the said posts could not be made due to ban by the Government of Khyber Pakhtunkhwa. In view of the above, this court passed the following order:- "The matter of posting staff in the Civil Dispensaries and Community Health Centers is pending since 2007 for non good reason, therefore, the worthy Director General Health Services Government of Khyber Pakhtunkhwa is directed to personally appear before the court tomorrow i.e. 16.09.202 at 09.00 A.M. sharp and explain the actual situation".
On 16.09.2021, the following order was passed by this Court:- "In pursuance of the order dated 15.09.2021, the worthy DG Health Services put appearance and states that though facancies in different dispensaries have been created at Sub-Division Wazir District Bannu, however, appointments could not be made as certain inquires have been initiated in the are against ghost and fake dispensaries being running in personal Hujras and houses of different people. He also pointed out that sanction for substantive posts was received on 22.10.2020, however, the said posts could not be advertised for employment because the Provincial Government has imposed ban on appointments against different posts in BPS.5 to 16 on 09.03.2020, which is still existing. The explanation furnished by the worthy DG Health Services is not satisfactory as on daily basis in routine, different departments are advertising posts from BPS.5 to 16 and making inductions in civil services.
So far as the inquires and investigations by the Provincial Task Force with regard to ghost and fake dispensaries is concerned, suffice it to say that through the proceedings in case since 2016, this has never remain the stance of respondents nor anything has been brought on record to slightly suggest any such impediment in filling the posts at various dispensaries. Even today, no notification qua constitution of alleged Task Force or any extract or proceedings carried by any such authority has been produced.
We have noted with great concern that despite availability of vacant posts, the appointments were not made in various dispensaries of the Province. The substantive vacant posts have been left unfilled in the Basic Health Unit at rural areas for the reason best known to the persons sitting on the helm of affairs. The reasons explained by the worthy DG Health Services, is a lame excuse, which does not suit with the moral ethos of bureaucracy.
We have confronted with worthy DG Health Services as to whether any action has been taken or proposed by the Provincial Government against the delinquent officers or a person who has established such like dispensaries in the rural area, he could not wriggle out of the situation, however, stated that this practice is going on for the last twenty years. At this moment, Mr. Muhammad Riaz Mohmand, ADPG NAB present in the court came to the rostrum and stated that he will inform the high ups of NAB authorities about such amusing mega scam in the Province and definitely an inquiry shall be initiated to dig out the misdeeds of delinquent officers or their accomplices. Be that as it may, the NAB Authorities may indulge in the matter at the end, however, towards the implementation of judgment of this Court, the worthy DG Health Services is directed to initiate the process of appointment in those dispensaries which have been cleared by the alleged Task Force and shall submit the report to the Additional Registrar (Judicial) of this Court within one month time positively."
7. On the next date of hearing i.e. 24.03.2022, Rafi Jan Inquiry Officer NAB along with Syed Azeem Dad DPG for NAB appeared and submitted inquiry report copy of which was given to Mr. Umar Farooq, worthy AAG who requested for time to share the same with the Secretary and Director General Health Services Khyber Pakhtunkhwa. Accordingly, the case was posted to 31.03.2022 i.e. today with direction that the Secretary and the Director General Health Services KP shall personally appear before the court and explain their position in light of report of the Inquiry Officer of the NAB.
8. Today, Mr. Tahir Orakzai, the worthy Secretary and Dr. Shaheen Afridi, the worthy Director General Health Services Khyber Pakhtunkhwa along with Dr. Zafar DDHO (erstwhile FR Bannu) appeared and submitted a detailed report. Before adverting to the report of the worthy Secretary Health Services KP, Peshawar, we would refer to the inquiry report submitted by Rafi Jan Assistant Director NB (KP), Peshawar, who was also present in person before the Court. According to Inquiry Report, he visited the spot along with NAB team and observed that total 125 Civil Dispensaries/BHUs/CHCs/MCHs, have been established in Sub-Division Wazir District Bannu, out of which 21 were found non-functional. During spot inspection/ground check of 52 Health Facility Centers, the Inquiry Officer noticed 08 Health Facility Centers semi functional in which only one or two employees were posted, whereas seven facilities were found non-functional. Similarly, he observed that in two facilities no employee was posted one was found completely damaged, two other were found locked and in other two the employees were found absent. He observed that land donors are still acting as owner of the Health facilities premises. Some facilities were found to be used as Hujras. Almost all the health facilities were found against the names of the land donors instead of the locality. Employees in few facilities were absent but were marked present in attendance registers. It was further observed by the Inquiry Officer that majority of Class-IV employees are the relatives of the land donors in almost all the health facilities. Some health facilities were short of employees whereas in some more employees were posted than the sanctioned strength. In some health facilities basic equipments like thermometer, blood Pressure Machines, Stethoscopes etc were not available. In some health faculties even the OPD slips were not available. Similarly, some of the health facilities were having no boundary walls, electricity, toilets, water supply etc and found in poor dilapidated condition. The NAB's team requisitioned the record from Health Department on the basis whereof spot inspection was conducted w.e.f.
28.02.2022 to 04.03.2022 of the health facilities in Sub-Division Wazir District Bannu and observed the following:- a. The existing health facilities revealed that 125x Civil Dispensaries/BHUs/CHCs/MCHs etc have been established duly sanctioned by the Government of Khyber Pakhtunkhwa in sub-Division Wazir District Bannu, out of which 104 are functional and 21 are reported as non-functional quoting reasons by the concerned Department due to lack of budgetary allocation, damaged buildings etc. b. It has also been reported that 339 DHQH/THQH/Civil Dispensaries/BHUs/CHCs/HCHs, etc have been established in North Waziristan Tribal District out of which 310 are function while 29 are non functional. c. The scrutiny and analysis of record procured further disclosed that there are 709 sanctioned posts in Sub- Division Wazir District Bannu out of which 520 posts are filled, whereas, 189 posts are still vacant. Similarly, there are 425 sanctioned positions in North Waziristan, out of which 299 positions are occupied whereas 126 positions are still vacant. Health Facility centers namely, CHC Asif Mamand Khel and CHC Niaz Wali of Sub- Division Wazir District Bannu were found to be used as Hujras by the land donors and in some facility centers animal were fastened.
In support of his findings, the Inquiry Officer has annexed all the relevant record with his report and snap-shots of the BHU. In the snap shots one can see that some health facilities are being used as Hujras and in some, animals are fastened and used as abode of the animals.
9. When confronted with the Inquiry report of the NAB, the worthy Secretary Health Government of KP admitted the factum of existence of realities narrated in the enquiry report of the NAB, however, stated that all the mentioned health units were under the control of Federal Government run through the Political Administration.
There was no proper arrangement or basic planning for providing health facilities in the said units. The Federally Administered Tribal Areas (FATAs) were merged in Khyber Pakhtunkhwa on 25th May, 2018 as a result of 25th Constitutional Amendment. The decision was taken among other to bring the newly merged districts at par with the settled districts to provide the civic facilities and improve service delivery systems of health, education and other public sectors. The Provincial Health Department has initiated the process of resuscitation of health units from comatose situation despite the fact that at initial stage there was constrained environment and multiple inherited challenges including weak planning while establishing health facilities in these areas. Likewise, monitoring system was compromised and no clear picture of the human resource and infrastructure was available. To oversee the developmental projects and effective governance system in the newly merged district, the Government of Khyber Pakhtunkhwa constituted a high level Provincial Task Force comprising of, inter alia, the worthy Chief Minister Khyber Pakhtunkhwa, Commander-H Corps, the Chief Secretary, Inspector General of Police, Minister Health, Secretary Health and Divisional and District Administration, Khyber Pakhtunkhwa. Health Department, in compliance with the decision of the Provincial Task Force, held detailed discussion at provincial level and reviewed the available record of the newly merged districts and its establishment in the remote areas.
He disclosed that from scrutiny of available record it came to light that there are multiple healthcare facilities that were approved not on need-basis or standardized criteria. The average population for different types of healthcare facilities is not corresponding to the established standard e.g. a BHU must have a catchment population of 18000-25000 people. On the basis of such discussions, Health Department decided to started detailed verification and assessment of Primary & Secondary Care Health Facilities for rationalization purposes.
In this regard a detailed structured questionnaire was designed comprising of 82 different functionality indicators.
The exercise was conducted in the presence of Pakistan Army, District Administration, District Health Management Team and independent Monitoring Unit, Health staff. This exercise was completed in three months.
A total 1108 health facilities were assessed on the following criteria:- Criteria for rationalization: Catchment population. 3000 Nearby Healthcare Facilities (HCFs): 02 KM Premises of HCFs (Government/Rented)
Service Delivery 10 per day in CDs/BHUs Physical Condition of infrastructure.
Availability of essential health workforce (Medic. Paramedic. Midwife).
Result of Rationalization Exercise: Based on the above criteria, following was the result:- Functional Health Facilities: 776 (69%J Non-Functional Facilities: 277 (30%)
Completely damaged Health facilities: 45 (0.69%)
Report of the Secretary Health, KP, Peshawar further depicts that most of the Non-Functional Health Facilities are located in North and South Waziristan and Tribal Sub-Division Wazir. Overall 65% of the health facilities are located within 2 Km radius having highest clustering being in North Waziristan followed by Sub-Division Jandola, Sub-Division Bhittani and Sub-Division Wazir. 56% of the facilities in Sub-Division Wazir are located within 2 KM radius of other facility. Apart from coordination at the Provincial level, close coordination was also observed at division and district levels on the rationalization process. On the basis of the above facts and circumstances, respective District Health Officers of the newly merged district were called for consultation and de-notification of de-emphasized health facilities. So far 62 healthcare facilities in North Waziristan and 29 in South Waziristan have been de notified. Report further depicts that further rationalization process is ongoing. A committee has been constituted to oversee rationalization process by the Health Department including Civil Military participation. Similarly, the health facilities are closely monitored by the independent Monitoring Unit to ensure provisions of healthcare services in the newly merged District. Provincial Government has allocated funds to revamp the delivery system at primary and secondary levels. The merged districts are also included in the revamping process through dedicated PC-I to ensure medicine availability, equipment functionality, infrastructure and presence of technical staff. Report submitted by the worthy Secretary Health, 10, Peshawar further depicts that some of the non-functional secondary care hospitals have also been outsourced, which are providing services through Public Private Partnership i.e. DHQ Mishtimela Orakzai, THQ Mammad Gat (Mohmand) THQ Dogar (Lower & Central Kurram), Cat-D Darazinda, (TSD DI Khan), Cat.D Sholam (South Waziristan), Cat.D Sarae Maula Khan (South Waziristan), Cat.D. Tol Khula (South Waziristan). Other such hospitals are also being assessed on key performance indicators such as medicine availability, equipment functionality etc and presence of technical staff through Health Foundation, KP for outsourcing purposes. In collaboration with Pak Army under the auspices of the Provincial Task Force, regular monitoring of the Healthcare facilities from the top leadership at provincial and regional levels is being undertaken for greater ownership, visibility of the Government efforts and community engagement. Apart from this, the IMU is visiting regularly each facility for data collection on the key performance indicators of all primary and secondary care facilities.
10. In view of report of the worthy Secretary Health, Khyber Pakhtunkhwa Peshawar, we are of the considered view that the judgments of this court to some extent have been implemented while for the remaining health units, the worthy Secretary Health Department made assurance at the bar. From hearing of the case on different dates and attitude of the Health Department, we could not find any reluctance and disobedience of the respondents towards implementation of judgments of this Court, however, it is manifest from the circumstances that the department moving forward with a snail pace towards reviving of the dead units in the erstwhile FATA, which surely will take a lot of time.
11. Keeping in view the enquiry report of the NAB Authorities and response of the worthy Secretary Health Government of KP, Peshawar, this and the connected COC petitions have served its purpose, which are disposed of accordingly, however, it is expected that the worthy Secretary Health Government of KP in collaboration with the Provincial Task Force, constituted for the purpose, shall resuscitate the demise health units in the erstwhile FATA on war footing, particularly, within a period of three months, followed by completion and compliance report to be submitted to the worthy Additional Registrar (Judicial) of this Court in the week of August 2022. MIS Rafi Jan and Muhammad Faqir Ali, the Assistant Directors NAB Khyber Pakhtunkhwa (Investigating Officers) have un-veil a lot of illegalities, irregularities and slackness of the local administration of health department which cannot be buried without any result. The NAB authorities in light of the enquiry report submitted by the above named Investigating Officers would be at liberty to proceed in the matter, if they deem it a fit case for investigation. The Secretary Health Government of KP shall also proceed against the delinquent officials/officers found responsible for negligence in the performance of their duties in accordance with law.