PLJ 2013 Islamabad
Present: Iqbal Hameed-ur-Rehman, C.J.
Dr. M. SOHAIL
KARIM HASHMI--Petitioner
versus
FEDERATION OF PAKISTAN
W.P. Nos. 969
and 2041 of 2011, decided on 13.1.2012.
Medical &
Dental Council Ordinance, 1962 (XXXII of 1962)--
----Ss. 9(1)(c) & 33(1)--Medical & Dental Council Regulations,
2007, Regul. 55--Pakistan
Medical and Dental Council Employees Service and Administrative Rules, 2009,
Scope of--Constitution of Pakistan
2009
SCMR 1472, 2010 SCMR 1495 and PLD 2011 SC 132 ref.
Mr. Muhammad Shoaib Shaheen, Advocate alongwith Sardar Nasir Ahmed Saghir, Advocate for
Petitioner.
Mr. Tariq Mahmood Jahangiri, D.A.G. for
Respondent Nos. 1, 2 & 5.
Malik Qamar Afzal, Advocate for
Respondents No. 3 & 4.
Dates of
hearing: 23 and 24.12.2011.
Judgment
By this single
Judgment, I intend to decide both the captioned writ petitions, as both these
writ petitions are filed by one petitioner and common questions of law and
facts are also involved in both the captioned writ petitions.
2. In Writ Petition No. 969/2011, the petitioner
has made the following prayer:--
"It is
respectfully prayed that the writ may kindly be issued by declaring the
impugned order as illegal, unlawful, without any lawful authority and based on
mala fide and in consequence thereof, the respondents may kindly be directed to
restore the petitioner to his original position as Secretary/Registrar.
It is further
prayed that the PM&DC Employees Service & Administrative Rules, 2009
may kindly be declared as Illegal, unlawful and without approval from the
Federal Government and any action taken under the said rules may kindly be
declared as void, ab-initio and without any lawful
authority.
3. In Writ Petition No. 2041/2011, the
petitioner has prayed that the writ petition may graciously be accepted and the
impugned order may kindly be set aside and in consequence thereof, the illegal
disciplinary proceedings initiated against the petitioner may kindly be
declared as null and void.
4. The petitioner in Writ Petition No. 969 of
2011 has impugned the Notification dated 21st December, 2010 issued by the
President PM&DC, whereby, the petitioner was put under suspension due to
registration of a criminal case against him vide FIR No. 31/2010 dated 02-11-2010
under Sections 409/468/471, PPC read with 5(2)47 PCA at Police Station FIA
Crime Circle Rawalpindi. Petitioner has alleged that he was reinstated in
service by the Hon'ble Supreme Court of Pakistan vide
Judgment dated 13-07-2009, as such, the proceedings initiated against the
petitioner are not only without lawful authority but are also against
Article-13 of the Constitution of the Islamic Republic of Pakistan, 1973 and
the impugned action of the respondents is the worst example of colorable
exercise of power by the authority and is against the principles of natural
justice, fair play and equity. The petitioner has also challenged the PM&DC
Employees Service and Administrative Rules-2009.
5. Through Writ Petition No. 2041/2011, the
petitioner has impugned the order dated 05-05-2011 passed by the Prime
Minister's Secretariat, Islamabad
6. The brief facts giving rise to the filing of
the captioned writ petitions, as mentioned by the petitioner, are that the
petitioner was appointed as Additional Registrar/Additional Secretary (BPS-19)
in the Pakistan Medical & Dental Council, Islamabad Islamabad Pakistan Islamabad
7. Learned counsel for the petitioner while
arguing the petitions at length, has taken multiple stances and argued that the
service rules of Pakistan Medical & Dental Council are statutory in nature,
as such, this Court has the jurisdiction to entertain and adjudicate upon the
matters agitated through the captioned writ petitions; that writ petition
against the suspension order of the petitioner is maintainable because the said
order is based on malafide intentions and ulterior
motives; that the proceedings initiated against the petitioner are hit by
Articte-13 of the Constitution of the Islamic Republic of Pakistan, 1973
because earlier the respondents had initiated proceedings against the
petitioner on the basis of same charges and those proceedings were declared as
illegal by the Hon'ble Supreme Court of Pakistan,
hence, the respondents once again, cannot proceed against the petitioner on the
same charges and if it is presumed that the previous proceedings were not
finally concluded then under which law, the respondents are proceeding against
the petitioner? Learned counsel for the petitioner has further argued with
vehemence that it is yet to be determined that whether the proceedings against
the petitioner are competent under the Removal from Service (Special Powers)
Ordinance, 2000 or E & D Rules, 1973 or under the PM&DC Employees
Service and Administrative Rules, 2009? that the proceedings initiated against
the petitioner by Dr. Asim Hussain,
Vice President/Acting President, Pakistan Medical & Dental Council,
Islamabad are illegal and void because he at the relevant time was not validly
notified Vice President/Acting President of Pakistan Medical & Dental
Council, Islamabad; that Respondent No. 5/Principal Secretary to the Prime
Minister has acted malafidely, because previously he
while acting as Secretary Ministry of Health, Islamabad had submitted comments
against the petitioner, hence, he while acting as Principal Secretary to the
Prime Minister of Pakistan, with ulterior motives, has managed to get declared
the departmental appeal/representation of the petitioner as "not
maintainable; that before deciding the departmental appeal/representation of
the petitioner through correspondence dated 05-05-2011, the Prime Minister's
Secretariat, Islamabad, had never obtained comments from the Establishment
Division as well as Law & Justice Division and even the legal opinion from
the Attorney-General for Pakistan had been obtained by concealment of facts;
that the Pakistan Medical and Dental Council Employees Service and
Administrative Rules, 2009 are in violation of the Medical and Dental Council
Regulations, 2007 and the same have been framed without approval of the
Ministry of Law & Justice as well as the Establishment Division; that all
the proceedings initiated against the petitioner are contrary to law and rules
on the subject because the competent authority for BPS-20 Officer is the Prime
Minister of Pakistan and after the announcement of the Judgment dated
13-07-2009 by the Hon'ble Supreme Court of Pakistan
in Civil Petitions No. 912/2009 and 913/2009 filed by the petitioner, the
Pakistan Medical & Dental Council, Islamabad had requested the Prime
Minister of Pakistan for delegation of powers for initiating proceedings
against BPS-20 Officer, which was turned down by the Prime Minister of Pakistan;
that Pakistan Medical & Dental Council, Islamabad is a regulatory body,
which controls Private Medical Colleges and Respondent No. 4 is the owner of a
private university named as Dr. Zia-ud-Din University
and is also running a private Medical College as well he is also the President
of Private Medical Colleges Association and the petitioner being Registrar of
PM&DC had proceeded against Dr. Zia-ud-Din
University, hence, Respondent No. 4 is proceeding against the petitioner on the
basis of personal grudges; that when the petitioner was in active service, only
18 Medical Colleges were registered/recognized by the Pakistan Medical &
Dental Council, whereas, at present more than 100 Medical Colleges are
registered with PM&DC; that a case FIR No. 31/2010 dated 02-11-2010 under
Sections 409/468/471, PPC read with 5(2)47 PCA was got registered by the
respondents against the petitioner at Police Station FIA Crime Circle
Rawalpindi, however, the pre-arrest bail of the petitioner was confirmed by the
Special Judge, (Central) Rawalpindi vide order dated 22-02-2011 and the said
order was upheld by this Court vide order dated 07-03-2011 passed in Crl. Misc. No. 139-BC of 2011; that the proceedings against
the petitioner have been initiated by the respondents with malafide
intentions and ulterior motives, hence, the same are liable to declared as
illegal and void; that the normal period of suspension under the E&D Rules,
1973 is three months, whereas, under the Pakistan Medical and Dental Council
Employees Service and Administrative Rules, 2009 the period of suspension is
mentioned as six month which is contrary to the law on the subject. Learned
counsel for the petitioner has relied upon 2010 SCMR 1495, 2010 PLC (C.S.) 876.
2007 SCMR 229, PLD 2007 S.C. 323, 1990 SCMR 999, PLD 2010 Lahore
8. Conversely learned Deputy Attorney-General,
appearing on behalf of Respondents No. 1, 2 & 5 argued that the order of
the Prime Minister is self explanatory and in this regard opinion of the
Attorney-General for Pakistan was also obtained; that under Section 9(1) (c) of
the Medical & Dental Council Ordinance, 1962, the Council may appoint
Registrar of the Council and all the proceedings against the petitioner are
initiated by the President of the Pakistan Medical & Dental Council; that
in view of the legal provisions the Pakistan Medical & Dental Council,
Islamabad is fully authorized to deal with the matter.
9. Learned counsel appearing on behalf of
Respondents No. 3 & 4 has argued that as far as the mala fide in concerned,
the same has been attributed to an Organization, which has the bearing on the
international level and the working of the Organization is the moot point which
is to be adjudged; that plain reading of the Medical & Dental Council
Ordinance, 1962 gives a reflection of independence of the Council; that the
petitioner was inducted in the Pakistan Medical and Dental Council as
Additional Registrar on 4th December, 2000 and he while in service of PM&DC
remained with the view that the Council is an independent entity and there is
no control of the Federal Government over the same; that the petitioner is
habitual litigant and his litigation is extended upto
18 writ petitions; that in the year 2004 PM&DC had become one man show and
the petitioner was running the Council according to his own whims; that there
were numerous complaints against the petitioner and ultimately, the Federal
Government was constrained to create a Commission of Inquiry vide notification
dated 11th July, 2006 and the proceedings against the petitioner had been
initiated on the basis of report of Commission of Inquiry, which was
constituted by the Prime Minister of Pakistan; that contempt proceedings were
also initiated against the petitioner by a Division Bench of the Lahore High
Court, Rawalpindi Bench, Rawalpindi and he was charge-sheeted, though,
subsequently the contempt proceedings were dropped; that the petitioner was
appointed in BS-18, thereafter, he got himself promoted in BS-19 and
subsequently in BS-20 and when the Pakistan Medical & Dental Council
initiated inquiry against him about his illegal promotion in BS-20, he took the
stance that under the Removal from Service (Special Powers) Ordinance, 2000, the
competent authority for BS-20 Officer is the Prime Minister of Pakistan; that
issue of competent authority of the petitioner came under litigation and the
PM&DC with the consent of the Federal Government decided to repatriate the
petitioner, in the Ministry of Health, Islamabad; that the petitioner
challenged his repatriation initially before the Federal Service Tribunal and
subsequently before the August Supreme Court of Pakistan; that Article-13 of
the Constitution of the Islamic Republic of Pakistan, 1973 does not attract to
the extent of the petitioner and as far as, the question of malafide
intentions is concerned, the same requires evidence; that alternate remedy of
filing appeal under the Pakistan Medical and Dental Council Employees Service
and Administrative Rules, 2009 is available to the petitioner and the High
Courts have always avoided from interfering in such like circumstances, while
exercising extraordinary constitutional jurisdiction under Article-199 of the
Constitution of the Islamic Republic of Pakistan, 1973; that Dr. Asim Hussain was duly notified as
Acting President of the Pakistan Medical & Dental Council by the President
PM&DC vide notification dated 29th March, 2010; that service rules of
Pakistan Medical & Dental Council are non-statutory, hence, the writ
petitions are not maintainable; that writ petition can be filed against
Pakistan Medical & Dental Council but as the service rules of the PMDC
employees are non-statutory, hence, the PM&DC employees cannot approach
High Court in exercise constitutional jurisdiction under Article-199 of the
Constitution of the Islamic Republic of Pakistan, 1973 for redressal
of their grievances; that the competent authority under the Pakistan Medical
and Dental Council Employees Service and Administrative Rules, 2009 is the
President, PM&DC; that the petitioner was put under suspension due to his
involvement in a criminal case and writ petition does not lie against
suspension order; that there is no authority of Government over the PM&DC,
hence, the service rules of the PM&DC are non-statutory in nature and
principle of master and servant applies to the petitioner; that the petitioner
has no cause of action as well as locus standi to
file the writ petitions and even under the law writ petition is not maintainable
against the issuance of a Show Cause Notice. Learned Counsel for Respondents
No. 3 & 4 has argued that suspension is one aspect and illegality in the
proceedings of suspension is a different aspect; that no illegality on the part
of the competent authority has been pointed out by the petitioner while issuing
the suspension order; that the petitioner had also filed a Criminal Original
No. 11 of 2010 before the Hon'ble Supreme Court of
Pakistan, wherein, all these submissions were made, hence, the writ petitions
are not maintainable; that the petitioner has so far, filed 18 writ petitions
and he is harassing a statutory body, hence, is not entitled for any
discretionary relief; that all the points raised in the writ petitions relate
to disputed questions of facts and the allegations belong to a factual
controversy, hence, writ jurisdiction cannot be exercised; that the act of the
petitioner amounts to abusing the Court process, hence, both the writ petitions
are liable to be dismissed with costs. Learned counsel for Respondents No. 3
& 4 has relied upon 2011 SCMR 1886, 2011 SCMR 1990, PLD 2010 Lahore 404,
2011 SCMR 132, 1993 SCMR 346, PLD 2005 S.C. 806, PLD 1992 S.C. 132, 2007 PLC (C.S.) 751, 2011 SCMR 1912, 1991
SCMR 78, 2010 PLC (C.S.) 573, 2011 SCMR 1990.
10. Learned counsel for the petitioner, in
rebuttal, has argued that as far as the pendency of contempt petition before
the Hon'ble Supreme Court, filed by the petitioner is
concerned, the matters agitated through the present petitions are quite different
and the issues agitated by the petitioner through the instant writ petitions do
not relate to a factual inquiry.
11. I have heard the learned counsel for the
petitioner, learned Deputy Attorney-General as well as learned counsel for
Respondents No. 3 & 4 at length and perused the record meticulously.
12. I am not oblivious that at the very inception
questions of jurisdiction to adjudicate upon the matters and maintainability of
the captioned writ petitions are to be decided by this Court.
13. The Pakistan Medical & Dental Council was
created under the Medical & Dental Council Ordinance, 1962 (Ordinance No. XXXII of 1962). Section-33 of the Medical & Dental
Council Ordinance, 1962 provides that the Council may, with the previous
sanction of the Federal Government, make Regulations generally to carry out the
purposes of this Ordinance, and, without prejudice to the generality of this
power. In exercise of the powers conferred by sub-section (1)
of Section 33 of the Pakistan Medical and Dental Council Ordinance, 1962
(Ordinance No. XXXII of 1962), the Council, with the
previous sanction of the Federal Government, made the regulations namely
Medical and Dental Council Regulations, 2007. According to Regulation-55
of the Medical and Dental Council Regulations, 2007, the powers and duties of
the officers and staff and all other related matters shall be such as may be
laid down from time to time in the Administrative and Financial Rules framed on
the subject by the Council. In exercise of the powers conferred by Regulation
55 of Medical and Dental Council Regulations, 2007, made with the previous
sanction of the Federal Government under Section 33(1) of Pakistan Medical
& Dental Council (PM&DC) Ordinance, 1962 (Ordinance No. XXXII of 1962)
the Council made the rules known as "The Pakistan Medical and Dental
Council Employees Service and Administrative Rules, 2009. The Hon'ble Supreme Court of Pakistan while deciding Civil
Petitions No. 912 & 913/2009 filed by the present petitioner, through the
judgment reported, as 2009 SCMR 1472 (Dr. M. Sohail Karim Hashmi versus Federation of
Pakistan through Secretary, Ministry of Health, Government of Pakistan,
Islamabad and another) has held that:--
"......At
any rate, the Council remains an independent body, which performs its functions
subject to statutory controls and limits."
14. The Hon'ble Supreme
Court of Pakistan in Judgment reported as 2010 SCMR 1495 (Chairman, State Life
Insurance Corporation and others versus Hamayun Irfan and 2 others) has laid down the criteria for
determination of statutory or non-statutory regulations in the following
verdict:--
"------------Statutory
regulations---Scope---Statutory regulations mean regulations which are
legislative (as opposed to executive) made by a rule making authority in exercise
of statutory power with the approval of Federal Government or Provincial
Government; it is the exercise of delegated legislative power by rule making
authority--------Making and promulgation of rule should be attended by certain
formalities e.g. publication in government gazette------------Regulations
framed under statutory power after completing all legal formalities are within
the ambit of relevant status is of statutory regulations."
In PLD 2010
Supreme Court 676, the Hon'ble Supreme Court of Pakistan
has held that:--
"---------Pakistan
International Airlines Corporation was performing functions in connection with
the affairs of the Federation but since services of employees were governed by
the contract executed between both the parties and not by statutory rules
framed under S.30 of Pakistan International Airlines Corporation Act, 1956,
with prior approval of Federal Government, therefore, they would be governed by
the principle of `Master and Servant'----Appeal was disposed of accordingly."
15. The Hon'ble Supreme
Court of Pakistan in case reported as PLD 2011 Supreme Court 132 (Pakistan
Telecommunication Co. LTD. through Chairman versus Iqbal
Nasir and others) has held that :--
"24.
However, this Court, in the case of Principal Cadet College Kohat
v. Muhammad Shoaib Qureshi
(PLD 1984 SC 170), while dealing with the question, as to whether in absence of
any breach of statutory provision the employees of a corporation can maintain
an action for reinstatement, held that where the conditions of service of an
employee of a statutory body were governed by statutory rules, any action
prejudicial taken against him in derogation or in violation of the said rules
could be set aside by a writ petition; however, where his terms and conditions
were not governed by statutory rules but only by regulations, instructions or
directions, which the institution or body, in which he was employed, had issued
for its internal use, any violation thereof would not, normally, be enforced
through a writ petition. Recently, this Court in Tanweer-ur-Rehman's
case (supra), while dealing with the issue of invoking of jurisdiction of the
High Court under Article-199 of the Constitution by the employees of the PIAC,
held that although the appellant-Corporation was performing functions in
connection with the affairs of the Federation, but since the services of the
respondent-employees were governed by the contracts executed by them with the
employer, and not by the statutory rules framed under Section 30 of the
Pakistan International Airlines Corporation Act, 1956 with the prior approval
of the Federal Government, therefore, they would be governed by the Principle
of `Master and Servant'. On the question whether in absence of any breach of
statutory provision, the employees of appellant-Corporation could maintain an
action for reinstatement etc., it was observed that the said question needed no
further discussion in view of the facts that this Court was not of the opinion
that if a Corporation was performing its functions in connection with the
affairs of the Federation, the aggrieved persons could approach the High Court
by invoking its constitutional jurisdiction. But as far as the cases of the
employees regarding their individual grievances were concerned, it was held
that they were to be decided on their own merits, namely if any adverse action
was taken by the employer in violation of the statutory rules, only then such
action would be amenable to the writ jurisdiction. Therefore, in absence of
statutory rules, the principle of `Master and Servant' would be applicable and
such employees would be entitled to seek remedy permissible before the Court of
competent jurisdiction. Similarly, in M. Tufail Hashmi (supra), after discussing the aforesaid two
judgments in detail, it was held that the employees of those organizations,
which were performing functions in connection with the affairs of Federation,
were eligible to approach the High Court under Article-199 of the Constitution
if their services were governed by statutory rules. It was further held that
since the employees of AIOU, SME Bank and Pakistan Steel Mills, who approached
the Service Tribunal for redressal of their
grievances, were not enjoying protection of statutory rules, therefore, the
Service Tribunal had no jurisdiction to adjudicate upon such matters and they
would be governed by the principle of Master and Servant'.
25. The learned counsel for the respondents
though placed on record a copy of the Pakistan Telecommunication Corporation
Service Regulations, 1996 framed under Section 20 of the Act of 1991, but
failed to show whether the said Regulations were duty notified in the official
Gazette. However, even if such Regulations were duly made, they were not
holding the field after the repeal of the Act of 1991 under which the said
Regulations were made .........."
(Emphasizing
underlining is mine)
16. After the meticulous perusal of the above
mentioned judgments of the Hon'ble Supreme Court of
Pakistan, I have reached to the conclusion, that Medical & Dental Council
was created under the Medical & Dental Council Ordinance, 1962 (Ordinance
No. XXXII of 1962) and in exercise of the powers conferred by sub-section (1)
of Section-33 of the Medical & Dental Council Ordinance, 1962, the Council
made the Regulations known as Medical and Dental Council Regulations, 2007,
which were duly notified in the official gazette. Thereafter, in exercise of
the powers conferred by Regulation 55 of Medical and Dental Regulations-2007,
made with the previous sanction of the Federal Government under Section 33(1)
of Pakistan Medical & Dental Council (PM&DC) Ordinance, 1962, the
Council made the rules known as "The Pakistan Medical and Dental Council
Employees Service and Administrative Rules, 2009" with the previous
sanction of the Federal Government. However, these rules i.e. "The
Pakistan Medical and Dental Council Employees Service and Administrative Rules,
2009" were not notified in the official gazette. As
such, after a careful analysis of the (i) Medical and
Dental Council Ordinance, 1962 (Ordinance No. XXXII of 1962) (ii)
Medical and Dental Council Regulations, 2007 and (iii) The Pakistan Medical and
Dental Council Employees Service and Administrative Rules, 2009, I am of the
considered view that the terms and conditions of service of the petitioner are
not governed by statutory rules, rather the same are governed by "The
Pakistan Medical and Dental Council Employees Service and Administrative Rules,
2009" which have been issued by the Pakistan Medical and Dental Council
for its internal use and are not notified in the official gazette, hence,
keeping in view the dictum laid down by the Apex Court, in the judgments
mentioned in the preceding paragraph, I am of the considered view that the
service of the petitioner is not governed by statutory rules, rather, the same
is governed by non-statutory rules, hence, he cannot invoke the extra-ordinary
constitutional jurisdiction of this Court, under Article-199 of the
Constitution of the Islamic Republic of Pakistan, 1973 for redressal of his
grievance. Resultantly, both the captioned writ petitions are not maintainable
and the same stand dismissed. However, the petitioner,
may approach appropriate forum for redressal of his
grievances.
(R.A.) Petitions
dismissed
