Aksa Abdul Jalil Vs Government of KPK and others

PESHAWAR HIGH COURT ABBOTTABAD

BENCH

JUDICIAL DEPARTMENT

JUDGMENT SHEET

WP No. 736-A/2023.

Date of hearing 02.10.2025.

Petitioner/s (Aksa Abdul Jalil & three others) by Sardar Aman Khan, Advocate.

Respondent/s (Government of Khyber Pakhtunkhwa through Chief Secretary) by Sardar Basharat Khan, Addl: AG.

Respondent/s (Policy Board, Medical Teaching Institution and others) by Sardar Muhammad Arshad, Advocate.

JUDGMENT

SYED MUDASSER AMEER, J. Through the instant petition under Article 199 of The Constitution of Islamic Republic of Pakistan, 1973 [‘The Constitution’], the petitioners have made the following prayer:

By accepting the instant writ petition, against the impugned decision approved by the Board of Governors (BOG) MTI, Ayub Teaching Hospital, Abbottabad vide meeting dated: 07.06.2022 whereby the service structure of nurses has been approved may kindly be set- aside and service structure notified by the health department of government of Khyber Pakhtunkhwa vide notification dated 14.02.2022 alongwith other notifications as

mentioned above may kindly be ordered to implement in its true letter and spirt.

2.Petitioners contend that they are employees of Ayub Teaching Hospital, Abbottabad, serving as nurses; that they were initially appointed under the provisions of the repealed Khyber Pakhtunkhwa Medical Teaching Institutions and Regulation of Health Care Service Ordinance, 2002; that they have been working in various grades and categories of nursing positions, but their seniority list was disturbed, leading to objections and grievances that were raised but went unaddressed; that no independent service structure was devised specifically for the nurses of the hospital by the concerned authorities, and matters relating to their appointment, promotion, and service conditions were dealt with according to policies issued by the provincial Health Department; that in February 2022, the provincial government announced a five-tier service structure for nurses, and this was later placed before the Board of Governors of the hospital for approval; that the Board, without giving due weight to the service rights of the petitioners and others in similar positions, approved the impugned structure. That

on learning of this development, the petitioners raised objections against what they considered to be an arbitrary and flawed arrangement, contending that it was contrary to the service rules earlier issued by the Health Department;

that their objections, however, were not properly addressed despite the fact that they also pointed out that even other governments, such as Gilgit Baltistan, which had issued a service structure for nurses on the analogy of notifications issued by the provincial Health Department, which highlighted the arbitrariness of the structure adopted by the Board; that despite repeated assurances, their rights have been ignored, and they are left with no option but to seek the intervention of this Court against the impugned actions of the respondents.

3.Heard and record available on file including written arguments filed by the learned counsel for petitioner gone through.

4.Petitioners are aggrieved of the nursing service structure for MTI-Abbottabad [‘the service structure’] approved by the Board of Governors of MTI (AMC, ATH) on 07.06.2022.

They feel that having been appointed as regular

employees, they have a legitimate expectation of career progression which has been denied to them for the last decade or more; that any restructuring of cadres and posts must be in line with the nursing service structure already prescribed under the law of Khyber Pakhtunkhwa; that although the Board may possess the authority to create, abolish, or re-designate posts for administrative purposes, such powers cannot be exercised in a manner that is discriminatory or detrimental to the rights of existing employees; that the impugned terms and conditions were never part of the earlier statutory rules of 2001 or the Regulation of 2018, and their incorporation now is beyond the scope of the law; and that the new regulations have deprived the petitioners of their right to career advancement by imposing an arbitrary and unreasonable mechanism for promotion. Thus they seek implementation of service structure notified by the Health Department of Government of Khyber Pakhtunkhwa vide notification dated: 14.02.2022.

5.The controversy begins with, and stems from, the Khyber Pakhtunkhwa Medical Teaching Institutions Reforms Act, 2015 [‘the KPMTI Act, 2015’]. The answer to the

controversy, thus, also lies within its provisions.

It is therefore important to examine some of the relevant provisions of the KPMTI Act, 2015. For convenience these are given below:

Preamble:

WHEREAS it is expedient to provide autonomy to the Government owned Medical Teaching Institutions and their affiliated teaching hospitals in the Province of the Khyber Pakhtunkhwa and to regulate on sound physical and technical footings the service being rendered by these institutions and to improve performance, enhance effectiveness, efficiency and responsiveness for the provision of quality healthcare services to the people of the Khyber Pakhtunkhwa and other matters ancillary and incidental thereto; It is hereby enacted as follows:

Board of Governors

7.Functions and powers of the Board---

(1)The Board shall be responsible for-

(a)ensuring that the objectives of the Medical Teaching Institution within the overall ambit of Government policy are achieved, overseeing the effective management, and providing strategic direction to the Medical Teaching Institution;

(b)policy making of a Medical Teaching Institution and ensuring that the performance of a Medical Teaching Institution and its programmes are efficient and effective;

(c)prescribe procedure for appointment, terms and conditions of service, disciplinary

matters and other service matters for the employees of a Medical Teaching Institution;

(c-i) creation, re-designation or abolition of posts; provided that while creating posts the financial implications do not exceed the approved annual budget;

(i)approval of bye-laws for medical staff and oversee the process for appointment of members of the medical staff;

(k)constitution of Finance Committee, and such other Committees or Sub- Committees, as it may deem appropriate; and

(I)compliance to Government and Board policies and base standards set under clause (a) of sub-section (4) of section 4A and in case of any deviation from agreed base standards or procedures, shall obtain prior approval from the Government or the Policy Board, as the case may be.

16.Service of the Medical Teaching Institution---(1) The Board may appoint such persons, experts or consultants in the service of a Medical Teaching Institution, as deemed necessary and on such terms and conditions as may be prescribed.

(2)Before the commencement of this Act, all administrative and teaching staff recruited by the Management Council in the prescribed manner under the repealed Khyber Pakhtunkhwa Medical and Health Institution and Regulation of Health Care Services Ordinance, 2002, regardless of status of terms and conditions of service, shall be

considered employees of the concerned Medical Teaching Institution on such terms and conditions as may be prescribed by regulations:

Provided that such terms and conditions shall not be less favorable in financial terms than the terms and conditions admissible to them immediately before the commencement of this Act.

(3)Before commencement of the Khyber Pakhtunkhwa Medical Teaching Institutions Reforms (Amendment) Act, 2018, all the civil servants serving in an existing Medical Teaching Institution, who opted for the employment of the Medical Teaching Institution shall be subject to terms and conditions of employment as prescribed by regulations including but not limited to their service structure, promotion and disciplinary matters. Such opting employees shall be entitled to post-recruitment benefits and emoluments as per existing government laws and rules. The Medical Teaching Institution shall deposit pension contribution on their behalf.

(3A) Civil servants who do not opt for absorption in the Medical Teaching Institution, so notified, shall be dealt with in such a manner as provided in section 11A of the Khyber Pakhtunkhwa Civil Servants Act, 1973, for their future posting, which includes deputation to the Medical Teaching Institution subject to a request being made by the Board: Provided that a civil servant working in a Medical Teaching Institution, shall at all time, be deemed to be on deputation. All deductions made from the

pay of such civil servants shall be deposited by the borrowing authority.

(3B) A civil servant at the request of the Board may be sent on deputation to a Medical Teaching Institution by the Government. For civil servants on deputation to the Medical Teaching Institution, pension contribution shall be made by the Medical Teaching Institution. The deputation of a civil servant to a Medical Teaching Institution may be terminated by the Board at any time without assigning any reason thereof and such civil servants services shall revert to the Government immediately upon such termination being notified by the Board.

(4)After the commencement of this Act, if the provisions of this Act are applied to any newly established Medical Teaching Institution within the meaning of section 3 of this Act, all the civil servants serving in such Medical Teaching Institution shall be dealt in a manner as provided in sub-section (3).

(5)A civil servant, who opt to serve the Medical Teaching Institution, shall cease to be civil servant from the date of his absorption in the service of the Medical Teaching Institution concerned and their seniority, pension and other matters vis-à-vis employment in the Medical Teaching Institution, shall be determined in the manner, as may be prescribed.

(6)If at any time, a Medical Teaching Institution reverts to Government for running under its own administration and

management for any reason, the employees appointed under sub-section (1) shall continue to serve the Medical Teaching Institutions, on the same terms and conditions as applicable to them immediately before such reversion.

(7)All employees of a Medical Teaching Institution, whether having opted or directly appointed prior to the commencement of the Khyber Pakhtunkhwa Medical Teaching Institutions Reforms (Amendment) Act, 2018, or pursuant to the Khyber Pakhtunkhwa Medical Teaching Institutions Reforms (Amendment) Act, 2018 shall be at all times governed exclusively by the terms and conditions of service, as may be prescribed by regulations.

(8)All employees of a Medical Teaching Institution shall have the right to file an appeal in the manner as may be prescribed by rules, against any penalty, termination of their employment or any order in connection with the terms and conditions of their service to the Appellate Tribunal established under section 16A of this Act.

24.Power to make regulations---(1) [Subject to clause (d) of sub-section (4) of section 4A,] Board may make regulations, not inconsistent with the provision of this Act and the rules, for carrying out the purposes of this Act.

(Underlining supplied)

6.The KPMTI Act, 2015 was a legislative step born of a simple but profound idea; that our teaching hospitals, being the cradles of both care and learning, must have the freedom to manage their own affairs [Preamble]. The law, therefore, gave them that freedom. It entrusted to the Board of Governors the control of each institution: to shape its human resource policies, to design its service structures, and to decide how best to reward merit and performance [sections 7, 16 and 24]. In short, it replaced rigid uniformity with functional autonomy.

7.The Act also recognized that change cannot be forced. It therefore contained a transitional clause of fairness [section 16]. Every civil servant then serving in a medical teaching institution was given a choice: to remain within the fold of the civil service, or to cross over and be absorbed into the new institutional framework.

Those who chose to stay remained under the health department’s umbrella. Those who opted- in became part of the MTI family, their terms henceforth governed by the Act, the Rules, and the regulations made by the Board of Governors.

8.Once that option was exercised, the consequence was complete. A person who opted into the MTI ceased to be a civil servant in law.

Their status, rights, and obligations now stem from the MTI Act and its regulations, not from the Civil Servants Act or the service rules of the Health Department. Their employer is no longer the provincial government, but the institution itself, acting through its Board. To that extent, the two streams diverge: one remains within the provincial service; the other flows within the autonomous domain of the MTI. Intelligible differentia exists between the two sets, which could easily be differentiated and such differentiation is clearly understood as logical and lucid and it is neither artificial nor contrived.

Thus no discrimination could be claimed by the petitioners in comparison with the civil servants or employees of the Government Health Department. Reliance can be placed on the case of Government of Balochistan v. Dr. Muhammad Tariq Jaffar and others (2020 SCMR 1689).

9.The grievance brought before this Court is that the petitioners, now absorbed as MTI employees, receive terms less favourable than those of their counterparts in the Health

Department. But that alone is not a ground for constitutional intervention. Courts do not sit to equalize every perceived hardship, nor to re-write policy choices lawfully made. The question is not whether the petitioners fare better or worse than before, but whether the institution acted within its lawful authority and observed the guarantees of fair treatment and legality.

10.The framework of the law (the KPMTI Act, 2015) is plain. The Board of Governors was empowered [sections 7, 16 and 24] to establish a distinct service structure, to fix grades, to determine pay and allowances, and to prescribe promotion criteria. So long as these decisions remain within the bounds of the KPMTI Act, 2015 and the Rules, and are neither arbitrary nor discriminatory in the constitutional sense, this Court cannot substitute its own view for that of the competent authority. Autonomy, once granted by statute, must be allowed to breathe.

11.That is not to say the MTI or its Board are beyond scrutiny. If they breach a statutory provision, disregard procedural fairness, or violate the legitimate expectations created at the time of absorption, this Court will not hesitate to

intervene. But where the complaint is only of inequality with civil servants governed by a different regime, the petition must fail; for the petitioners’ service conditions are determined by a different law, and a different employer altogether.

12.Promotion is neither a vested right nor any restriction or limitation could be imposed on the lawful power of the competent authority to create or alter the service structure or to provide higher/better qualifications for a higher post, on the ground that it would hinder a few persons’ promotion in some manner. In the case of Zafar Iqbal and another v. Director, Secondary Education, Multan Division and 3 others (2006 SCMR 1427) the apex Court held as follows:

“The Government is always empowered to change the promotion policy and the domain of Government to prescribe the qualification for a particular post through amendment in the relevant Rules, is not challengeable. This is also a settled law that notwithstanding fulfillment of the requirement, qualification and other conditions contained in the rules, the promotion cannot be claimed as a vested right.”

Similarly, in the case of Dr. Allyas Qadeer v.

Secretary Ministry of Education, Islamabad and others (2014 SCMR 997) it held that:

“It is not individual but institutional interest or uplift which shapes its service structure. Alright, at the time of appointment of the respondents, no such rules were enacted or enforced but it does not mean that the institution or the department having thus started would remain in wilderness. It may change with a change in attending circumstances and future prospects. Its right to improve and update it service structure to keep pace with modern age which is indisputably the age of specialization cannot be restrained or restricted on the ground that at the time of appointment of one or few civil servants, such qualification was not a requirement for promotion. Higher qualification or a more specialized qualification for a post in a higher scale is a need of the hour which has to be taken care of. The vices of the validity of Rules or amendments therein attending on such aspects, cannot, thereof be looked askance at. The more so when there is absolutely nothing in the Rules to show that they are either person specific or an off shoot of mala fides.”

13.The record also reveals that some of the petitioners were members of the committee constituted to devise the MTI nursing service structure. They participated in its meetings, and the recommendations of that committee were subsequently approved by the Board of Governors vide its meeting dated: 07.06.2022, then notified vide notification dated: 20.06.2022.

It is also part of the record that vide order dated 17.08.2024, petitioner No.1 got promoted from

BPS-17 to BPS-18 under the very impugned service structure she challenges. Similarly, petitioners No.3 and 4 also got promoted vide order dated: 13.05.2024 from BPS-16 to BPS-17.

Thus, the petitioner(s), having been part of the process of making of service structure along with other stake holders, i.e. Nursing Superintendents, Nursing Manager, Head Nurses, and Charge Nurses (seven in number) and after the approval of resultant impugned service structure, admittedly had also derived benefits of the same in shape of promotions, cannot now turn around to challenge its validity for being less beneficial than the provincial service structure, as they stand estopped by their own conduct. Furthermore, the petitioners had also filed an appeal under section 16(8) of the KPMTI Act, 2015, which was later- on withdrawn by them, so they have already exhausted the legal remedy available for them.

14.Moreover, the subject issue pertains to policy and it is a well-settled principle that the power of judicial review does not equate to sitting as an appellate authority over the wisdom or merits of a policy, nor does it permit the Court to assume the role of an advisor to the executive on

matters squarely within its policy-making domain.

This judicial restraint is rooted in the principle of separation of powers. However, Court is duty- bound to intervene and is empowered to do so where a policy decision or executive action suffers from a fundamental flaw, such as a failure to adhere to mandated statutory procedures, a misdirection in law, an exercise of power for a purpose not intended by the statute, or a purported exercise of a power that the decision-making authority does not, in fact, possess. Intervention may also be warranted on the ground of irrationality, where the impugned policy or decision is so manifestly and outrageously unreasonable that no reasonable authority, properly directing itself to the law and the facts, could ever have arrived at it. Thus, while the Court steadfastly refrains from adjudging the 'rightness' of a policy, it firmly retains its constitutional role as the guardian of legality and rationality, ensuring that the executive operates within the boundaries of the law. In the case titled: Gul Zarif Khan and others v. Government of Khyber Pakhtunkhwa through Chief Secretary Peshawar and others (2025 SCMR 415) it was held as follows:

“Though the power of judicial review of a governmental policy is now well-settled, in which neither the court can act or represent as an appellate authority with the aim of scrutinizing the rightness or aptness of a policy nor may it act as an advisor to the executives on matters of policy which they are entitled to formulate, but this can be sought when a decision-maker fails to observe statutory procedures, misdirects itself in law, exercises a power wrongly, improperly purports to exercise a power that it does not have, or the policy decision was so unreasonable that no reasonable authority could ever have come to it [Ref: Judgments authored by one of us in the cases of Federation of Pakistan v. Shuja Sharif (2023 SCMR 129) and Syed Azam Shah v. Federation of Pakistan (2022 SCMR 201)].”

Similarly, in the case titled: Abdul Hameed and others v. Water and Power Development Authority through Chairman Lahore and others reported as 2021 PLC (C.S) 1439, it was held as follows:

“11. The roles of each organ of the State are defined within the Constitution of the Islamic Republic of Pakistan, so also in different laws. The learned Tribunal has elaborately dealt with this issue, and, has relied on a judgment of this Court reported as Muhammad Shabbir Ahmad Nasir v. Secretary Finance Division Islamabad (1997 SCMR 1026) and Muhammad Farid Khattak v. Chief Secretary Government of

N.W.F.P. (2009 SCMR 980). A

transgression of those roles by one organ would amount to the usurpation of the power of another, which would be against the spirit of Article 7 of the Constitution of the Islamic Republic of Pakistan. It is not the role of the Courts to interfere in policy decisions, unless it is manifest that, such a policy decisions are the outcome of arbitrary exercise of power, mala fides, patently illegal or manifestly unreasonable. Reliance in this regard is placed on the case of Asaf Fasihuddin Khan v. Government of Pakistan (2014 SCMR 676) of which, the relevant part is reproduced as: - "It is to be noted that the duty of the Court is to confine itself to the question of legality. Its content should be whether a decision-making authority exceeded its powers; committed an error of law; committed a breach of the rules of natural justice; reached a decision which no reasonable tribunal would have reached; or abused its powers".

15.In view of above discussion, we do not find any illegality or constitutional infirmity in the action of the respondents. The framework under which the petitioners stand absorbed is founded upon express statutory authority, and their present conditions of service/service structure flow from that very source. The distinction they draw between themselves and the

civil servants of the Health Department is one of status and statute, not of discrimination.

Autonomy once exercised within the law cannot be undone merely because its outcome appears less favourable to some. For these reasons, the petition is devoid of merit and is accordingly dismissed.

Announced.

Tahir Court /Secretary.

SD/JUDGES

Hon’ble Justic Syed Mudasser Ameer & Hon’ble Justice Aurangzeb.