Liaquat Hussain etc. VS FOP etc.

JUDGMENT SHEET

IN THE ISLAMABAD HIGH COURT,

ISLAMABAD

WRIT PETITION NO. 2837 OF 2024

Liaquat Hussain and others Versus Federation of Pakistan, etc.

PRESENT: Ms. Shafaq Abid, Advocate for Petitioner. Raja Amjad Mehmmod, A.A.G.

Tariq Javaid, S.O, M/O KAG&B

Date of Hearing: 09.09.2026.

SHAHRUKH ARJUMAND, J. Through the instant constitutional petition, the petitioners sought the following prayer: - “In view of all above, it is respectfully prayed that an order, direction or appropriate write may graciously be issued allowing the writ petition A. Directing the respondent to pay to the petitioners the outstanding amount on account of health allowance due to the petitioners from 01-01-2012 within a mandatory timeframe in accordance with the above-referred judgment of the Apex Court and the judgment of this esteemed court in WP No.2253/2022.

B. Any other relief, which this Hon’ble Court may deem fit and proper, be also granted.

C. Cost of writ petition may also be awarded.”

2.Learned counsel for the petitioners submits that the petitioners are similarly placed as the petitioner before this Court in Writ Petition No.2253 of 2022 which was decided by way of Judgment dated 15.01.2024. The respondents are under a constitutional obligation, in terms of Articles 189 and 190 of the Constitution of the Islamic Republic of Pakistan, 1973, to faithfully give effect to the judgments of the Hon’ble Supreme Court and to act in aid thereof. She submitted that the entitlement of the petitioners to the health allowance had

already been conclusively determined by the Hon’ble Supreme Court, and, therefore, the respondents could not lawfully refuse to extend the benefit thereof to the petitioners or deny payment of the consequential arrears. She further submitted that the order dated 29.06.2020 passed by this Court in W.P. No.3380/2019 also obligated the respondents to pay the outstanding arrears and precluded them from taking a contrary position; that the Office Memorandum dated 01.02.2012, having conferred the benefit with effect from its date of issuance, was required to be implemented accordingly; and that denial of the benefit to the petitioners, while extending it to employees of other governmental departments and entities, amounted to arbitrary and discriminatory treatment in violation of Articles 4, 7, 9, 10-A, 14 and 25 of the Constitution.

3.Learned counsel for the respondents, while controverting the submissions advanced on behalf of the petitioners, submitted that the claim of the petitioners was misconceived and could not be allowed merely on the basis of the judgments relied upon by them. He contended that the petitioners had initially approached the Wafaqi Mohtasib, Islamabad, where the Finance Division was also heard, and their complaint was rejected vide Findings/Recommendations dated 22.04.2016; thereafter, they filed Writ Petition No.3590/2019 before this Court without impleading the Finance Division as a party. He further submitted that the petitioners were initially allowed to draw health allowance by the Secretary, Ministry of Kashmir Affairs and Gilgit-Baltistan, and the expenditure was borne by the said Ministry from its allocated budget; however, following the transfer of the Directorate of Health Services to the Government of Gilgit-Baltistan pursuant to the Federal Cabinet’s decision dated 23.12.2019, duly notified on 12.08.2020, the petitioners were no longer drawing their pay from the Federal Government but from the Government of Gilgit- Baltistan. Learned counsel further contended that the judgment of this Court in Writ Petition No.2253/2022 could not be mechanically

applied to the present petitioners, particularly as the Finance Division had been impleaded in the said proceedings and had specifically taken the position that the employees of the Directorate of Health Services (Gilgit-Baltistan) were not health personnel within the contemplation of the applicable policy, as they had no direct interface with patients or involvement in patient care. He submitted that the Hon’ble Supreme Court, in its judgment dated 04.07.2024 passed in Civil Appeals Nos.302/2024 to 315/2024, had clearly delineated the eligibility criteria for grant of health allowance and held that the allowance was admissible to persons who actually delivered health services, including those who directly received patients and managed or attended to their health-related issues. He argued that the petitioners, being ministerial/non-clinical employees and not persons directly engaged in providing health services, did not satisfy the eligibility parameters laid down by the Hon’ble Supreme Court and were consequently not entitled to health allowance or arrears thereof. It was, therefore, contended that the respondents had neither acted arbitrarily nor discriminated against the petitioners, and that the relief sought in the constitutional petition was liable to be declined.

4.I have heard the arguments advanced by learned counsel for the parties and have examined the record with due consideration. This Court would first address the contention of learned counsel for the petitioners that, notwithstanding their status as ministerial employees serving in the Ministry, they fall within the definition of “Health Personnel”. In this regard, it may be noted that, in 2012, Respondent No.1, through its Finance Division (Regulation Wing), issued Office Memorandum dated 04.02.2012, whereby health personnel who had been availing the benefit of the Career Structure for Health Personnel Scheme/Ordinance No.VI of 2011 (hereinafter referred to as the “Ordinance”) were reverted to the BPS Scheme and, in order to compensate them for the loss of benefits available under the said Scheme while preserving their status as civil servants, were granted an

ad hoc allowance equivalent to one basic pay at the initial stage of the relevant scale, with effect from 01.01.2012. The relevant portion of the said Office Memorandum is reproduced hereunder: - “b) “health personnel” means a person who holds a post in any institute or organization delivering services in a health section and included in Schedule-I, but does not:

i. A person who is on deputation to the Federal Government from any province or other authority;

ii. A person who is employed on contract or on work charged basis or who is paid from contingencies.”

5.Thereafter, Finance Division, vide letter dated 27.10.2014 addressed to the Accountant General of Pakistan (“AGPR”), sought to confine the benefit of the BPS Scheme to health personnel serving in Federal Government hospitals and clinics. The said decision was challenged before different fora and the matter ultimately came before the Hon’ble Supreme Court of Pakistan, which, vide judgment dated 17.01.2018, examined the scope of the expression “health personnel” and held that the definition encompasses persons holding posts in institutes or organizations delivering health services and that such persons are entitled to the benefits admissible to health personnel. The aforesaid pronouncement, therefore, makes it necessary to examine the precise scope and meaning of the expression “Health Personnel”, particularly in the context of the statutory definition contained in the Ordinance and the subsequent authoritative interpretation placed thereon by the Hon’ble Supreme Court.

6.At this stage, it would be appropriate to examine the expression “health personnel” in the light of the broader occupational classification developed by the World Health Organization, not as a source of statutory entitlement, but as a useful interpretative aid to understand the distinction between persons actually engaged in the delivery of health services and those merely performing

administrative, managerial, logistical or other support functions within a health system. The WHO publication titled “Classifying Health Workers: Mapping Occupations to the International Standard Classification1” (Geneva: World Health Organization, 2019) makes it evident that the concept of a health workforce encompasses a wide spectrum of occupations and, for statistical and workforce-planning purposes, extends beyond doctors, nurses and other clinical professionals. At the same time, the classification is structured fundamentally around the nature of the work performed. Health professionals are those who provide preventive, curative, rehabilitative and promotional health services; health associate professionals perform technical and practical tasks supporting diagnosis and treatment; and personal care workers provide direct personal care and assistance to patients. The classification further recognizes a distinct category of “health management and support personnel”, which includes health service managers and certain other persons engaged in directing, coordinating and supporting the provision of health services. Significantly, however, the same WHO classification separately identifies “non-health professionals”, “non- health technicians and associate professionals”, “clerical support workers” and “service and sales workers” who may nevertheless be working within health systems. It expressly includes, amongst others, accountants, health policy lawyers, software developers, health insurance claims officers, medical supplies procurement officers, general office clerks, accounts clerks, human resource assistants, payroll clerks, medical commodities stock controllers, hospital security guards and building caretakers. This classification, therefore, demonstrates that the expressions “working in a health system” and “delivering health services” are not synonymous. An employee may form part of, or render support to, the administrative machinery of a health system without performing the substantive functions which https://cdn.who.int/media/docs/default-source/health-workforce/dek/classifying-health-workers.pdf

constitute the delivery of health services. The distinction is particularly material in the present case because Section 2(b) of the [Ordinance] does not confer the benefit upon every person employed in an establishment having some connection with the health sector; rather, it refers to a person holding a post in an institute or organization “delivering services in a health section”. The statutory language, therefore, requires examination of the nature of the organization as well as the actual functions attached to the post in question. The WHO classification also emphasizes, in relation to several occupational categories, that classification is to be made on the basis of the nature of the work performed, rather than merely upon the qualification or administrative placement of the individual.

7.The distinction between a person working within a health- service establishment and a person merely employed in the administrative machinery of the health sector is of considerable significance. The World Health Organization’s classification of health workers, relied upon for contextual understanding and not as a source of statutory entitlement, demonstrates that the broader concept of the health workforce encompasses a wide range of occupations, including clinical professionals, technical workers, personal-care workers and various management and support personnel. Thus, a person may form part of the health workforce by virtue of performing his or her duties within, or in direct support of, an establishment whose institutional function is the provision of health services, even where such person is not himself or herself engaged in clinical treatment. A hospital or clinic is, by its very nature, an establishment principally engaged in the delivery of health services; consequently, the driver, sanitation worker, laboratory worker, medical-record worker, stock handler or administrative employee working within such establishment may, depending upon the applicable occupational classification, fall within the broader health-workforce framework. The position, however, cannot be extended mechanically to every employee of a Ministry or

department responsible for the administration, regulation, supervision or coordination of the health sector. A Ministry of Health is institutionally distinct from a hospital or clinic: its functions may include policy formulation, planning, regulation, budgeting, administration and supervision of health institutions, without itself being an establishment principally engaged in the direct delivery of health services. Accordingly, mere employment under the administrative umbrella of the health sector cannot, by itself, determine the status of an employee as ‘health personnel’ for purposes of a statutory allowance. The decisive consideration remains the statutory definition, the nature of the organization in which the post is held, the nature of the post itself, and the actual duties performed by the incumbent. Administrative control over an institution does not, merely by reason of such control, transform every employee exercising administrative, clerical, ministerial or logistical functions into a member of the professional or service-delivery personnel of the institution under its supervision.

8.The distinction may be illustrated by the fact that a laboratory technician working in a hospital who collects and processes specimens for diagnosis performs a function directly connected with the provision of health services, whereas an officer/official sitting in the Ministry who processes files for the approval of purchase of laboratory equipment merely performs an administrative function in support of the health system. Likewise, a medical-record clerk maintaining patients’ records in a hospital is engaged in the operational functioning of a health-service establishment, whereas a record keeper maintaining departmental service files in the Ministry is performing a general administrative function. Both categories may legitimately be described, in a broad sense, as working within or in support of the health system; however, such description cannot, without more, be treated as determinative of entitlement to a statutory benefit reserved for ‘health personnel’. Applying the same principle to

the health sector, an employee of a Ministry or Directorate cannot claim the status of ‘health personnel’ merely because the organization in which he or she serves has administrative or supervisory jurisdiction over hospitals, clinics or other health-service establishments. The determination must instead be made with reference to the statutory definition, the nature of the organization in which the post is held, the character of the post itself and, most importantly, the substantive duties actually performed by the incumbent.

9.The ordinary meaning of the expressions employed in the statutory provision also supports the above distinction. The expression “health personnel” is ordinarily associated with persons engaged in the provision of health services; the U.S. National Library of Medicine, in its Medical Subject Headings, defines “Health Personnel” as under: -

“A persons working in the provision of health services, whether as individual practitioners or employees of health institutions and program.”

10.The aforesaid distinction has been authoritatively settled and further elucidated by the Hon’ble Supreme Court in its judgment dated 04.07.2024 passed in Civil Appeals Nos.302/2024 to 315/2024, wherein, after examining the provisions of the Ordinance and the relevant record, the Hon’ble Supreme Court specifically interpreted the expression “delivering health services” and delineated the category of persons falling within the ambit of “health personnel” entitled to Health Allowance. The relevant observations of the Hon’ble Supreme Court are reproduced hereunder: - “6. We have heard the learned counsel for the parties and examined the provisions of the Ordinance, as well as, record of the case. At the outset it is clarified that the reference to Nusrat Tahir's case is misplaced as the relief was

extended to all allied specialists, pharmacists, nurses, paramedics and support services personnel rendering active health care, therefore, the aforesaid judgment has no application to the titled case. The term "delivering health services" refers to the provision of direct clinical care to the patients. This includes roles such as doctors (medical and dental), allied specialists, pharmacists, nurses, paramedics and support services personnel who directly receive the patients, manage and attend to their health issues. Schedule-I to the CSHP Ordinance restricts the Health Personnel Pay Scale to "doctors, allied nurses, paramedics and their support" all these categories are associated with providing clinical care. Therefore, anyone directly engaged in patient care not providing health care services is not included in the term of "delivering health services". In this case the respondents are holding ministerial posts in the Health Ministry and have no direct interface with the patients or patient care, therefore, they are not entitled to the "Health Allowance", which under the Ordinance is to be extended to the health personnel only.”

11.In view of the aforesaid authoritative pronouncement of the Hon’ble Supreme Court, there remains little room for an expansive interpretation of the expression “delivering health services” so as to include every employee who happens to be serving under the administrative umbrella of the Health Ministry or a health-related establishment. The Hon’ble Supreme Court has expressly clarified that the expression refers to the provision of direct clinical care to patients and has identified doctors, allied specialists, pharmacists, nurses, paramedics and support services personnel as falling within its ambit where they are directly receiving patients, managing or attending to their health issues. Equally significant is the categorical finding of the Hon’ble Supreme Court that persons holding ministerial posts in the Health Ministry, having no direct interface with patients or patient care, are not entitled to the Health Allowance under the Ordinance. The petitioners, therefore, cannot derive an entitlement

merely from the fact that their posts are administratively connected with the health sector or that the functions performed by them may, in some indirect or ancillary manner, facilitate the functioning of health institutions. The controlling consideration is whether the petitioners fall within the category of personnel actually contemplated by the Ordinance and, as authoritatively explained by the Hon’ble Supreme Court, whether they are directly engaged in the provision of health care or otherwise perform the qualifying functions identified therein. An administrative, ministerial, clerical, record-maintenance or logistical function, however important to the efficient functioning of the health system, does not by that fact alone acquire the character of direct health-care service.

12.The judgment of the Hon’ble Supreme Court dated 17.01.2018, relied upon by learned counsel for the petitioners, cannot be construed as laying down an unrestricted proposition that every employee serving in or attached to a department concerned with health matters, irrespective of the nature of his post and functions, falls within the expression “health personnel”. The said judgment has to be read in conjunction with the subsequent authoritative pronouncement of the Hon’ble Supreme Court dated 04.07.2024 in Civil Appeals Nos.302/2024 to 315/2024, whereby the scope of the expression “delivering health services” was specifically examined and clarified. The Hon’ble Supreme Court categorically held that the expression refers to the provision of direct clinical care to patients and identified doctors, allied specialists, pharmacists, nurses, paramedics and support services personnel directly receiving patients and managing or attending to their health issues as falling within the relevant class. The subsequent judgment, therefore, constitutes the controlling exposition of the eligibility criterion and leaves no room for an interpretation whereby mere association with a Ministry or department dealing with health affairs, without actual involvement in patient care or the

provision of clinical health services, would by itself confer entitlement to Health Allowance.

13.Turning to the duties actually performed by the petitioners, the material available on record does not show that they diagnose, treat or attend upon patients, provide nursing or paramedical care, conduct clinical procedures, collect or process specimens for purposes of patient diagnosis, dispense medicines directly to patients, or otherwise have any direct interface with patients or their health-care needs. On the contrary, the record, including letter No.3548/21/DHS/GB dated 04.03.2021 issued by the Directorate of Health Services, Gilgit- Baltistan, indicates that the petitioners collect medicines and vaccines from Government offices, dispatch the same to the Health Department, Gilgit-Baltistan, and maintain the relevant record. These duties may undoubtedly constitute a useful and necessary part of the administrative and logistical mechanism through which health services are ultimately facilitated; however, they do not demonstrate that the petitioners themselves are engaged in the provision of direct health care within the meaning assigned to the expression by the Hon’ble Supreme Court. The petitioners have, in substance, equated their association with the health sector with the performance of health- care functions. Such an interpretation would obliterate the distinction expressly drawn by the Hon’ble Supreme Court between persons directly engaged in patient care and persons holding ministerial posts without direct interface with patients. The fact that the petitioners deal with medicines, vaccines or records does not, without more, alter the substantive character of their posts or bring them within the category of health personnel contemplated by the Ordinance.

14.The contention of learned counsel for the petitioners that, once the health allowance had been extended to the petitioners, the respondents were precluded from withdrawing or discontinuing the same on the principle of locus poenitentiae is equally misconceived.

The principle does not create an indefeasible right in favour of a person merely because an order was once passed in his favour. The Hon’ble Supreme Court, in PLD 1992 SC 207, has categorically held that locus poenitentiae signifies the power of receding from a decision until a decisive step is taken and that it is not a principle of law that an order, once passed, becomes irrevocable or creates a past and closed transaction; rather, where an order is found to be illegal, no perpetual right can be acquired on the basis thereof. The ratio of the said judgment is directly attracted to the present controversy. In Judgment ibid, the Hon’ble Apex court held as under: -

“Locus poenitentiae is the power of receding till a decisive step is taken but it is not a principle of law that order once passed becomes irrevocable and past and closed transaction. Locus poenitentiae is the power of receding till a decisive step is taken. But it is not a principle of law that order once passed becomes irrevocable and it is past and closed transaction. If the order is illegal then perpetual rights cannot be gained on the basis of an illegal order. In the present case the appellants when came to know that on the basis of incorrect letter, the respondent was granted Grade-11, they withdrew the said letter. The principle of locus poenitentiae would not apply in this case. However, as the respondent had received the amount on the bona fide belief, the appellant is not entitled to recover the amount drawn by the respondent during this period when the letter remained in the field.”

15.The reliance placed by learned counsel for the petitioners upon the judgment dated 15.01.2024 passed by this Court in Writ Petition No.2253 of 2022 is also misplaced. The mere fact that a benefit was extended in another case does not dispense with the requirement of establishing that the present petitioners fall within the statutory class entitled to such benefit. More importantly, the proceedings in Writ Petition No.2253 of 2022 cannot be considered in isolation from the subsequent authoritative pronouncement of the Hon’ble Supreme Court dated 04.07.2024 in Civil Appeals Nos.302 of 2024 to 315 of

2024, wherein the scope of “delivering health services” and the status of ministerial employees of the Health Ministry were expressly considered and clarified. The petitioners cannot rely upon an earlier judgment by adopting an expansive interpretation of the expression “health personnel” which is inconsistent with the subsequent binding interpretation of the Hon’ble Supreme Court. The principle of parity is attracted only where the persons claiming parity are in fact similarly situated in law and on facts. Mere similarity of departmental affiliation or previous receipt of the same allowance does not establish legal or factual parity where the nature of the posts and duties performed are materially different or where the governing law has subsequently been authoritatively clarified. Nor can Articles 189 and 190 of the Constitution be invoked to enlarge the substantive entitlement of the petitioners. Article 189 requires the law declared by the Supreme Court to be binding upon other courts, while Article 190 obligates all executive and judicial authorities throughout Pakistan to act in aid of the Supreme Court. These provisions undoubtedly command faithful implementation of the judgments of the Hon’ble Supreme Court; however, they do not mean that a judgment may be applied divorced from its ratio or that an employee falling outside the class identified by the Court can claim the same benefit merely by relying upon a general reference to an earlier decision. On the contrary, fidelity to Articles 189 and 190 requires this Court to apply the authoritative interpretation of the Hon’ble Supreme Court according to its true scope and effect. Where the Apex Court has expressly held that ministerial employees of the Health Ministry having no direct interface with patients or patient care are not entitled to the Health Allowance, extension of the benefit to such employees in the absence of satisfaction of the prescribed criteria would itself be contrary to the constitutional command to give effect to the law declared by the Supreme Court.

16.For the foregoing reasons, this Court is unable to accept the principal premise upon which the instant petition rests, namely, that the petitioners acquired an indefeasible entitlement to the Health Allowance merely by virtue of their association with the health sector or their previous receipt of the benefit. Their claim for payment of arrears from 01.01.2012, therefore, has no lawful basis. Consequently, the instant constitutional petition, being devoid of merit, is liable to be DISMISSED with no order as to cost.

(SHAHRUKH ARJUMAND)

JUDGE

Approved for Reporting.

Tanveer Ahmed/*