2010 GBLR 436 (PLP)

MUHAMMAD NAWAZ ABBASI, C.J.

The cognizance was taken in this matter of public interest in exercise of the power under Northern Areas Governance Order, 1994 substituted by Gilgit-Baltistan (Empowerment and Self-Governance) Order, 2009 vide order dated 30-3-2008, on the basis of an editorial published in Daily "K-2" as under: --

2. The Secretary Health, Director Health, Northern Areas and Medical Superintendent of District Headquarters Hospital, Skardu were directed to submit their comments and in pursuance thereof, the Secretary Health and others were required to submit their suggestions for the nomination of medical students for admission against the reserved seats of Northern Areas in the medical colleges of Pakistan and the facilities to be provided to the doctors working in Northern Areas giving the detail of doctors who having executed bond to serve in Northern Areas have not joined department to fulfil the obligation of their bond. The matter remained under consideration for a considerable time and ultimately learned Advocate General Gilgit-Baltistan submitted a report I in the court on the subject and in consequence thereto the court proceeded to pass orders on 2-7-2009 and 9-7-2009 as under: "Order dated 2-7-2009 The Advocate General has submitted report showing position of Gynecologists, Medical Officers and Lady Medical Officer in Northern Areas. As per report the total strength of Gynecologists, is twelve (12) out of which eight (8) posts are vacant and only three Gynecologists are working in the field, whereas one (1) is under training. The Advocate General is not in a position to inform the Court about the place of postings of three Gynecologists and also has not been able to explain that for what reason eight posts of Gynecologists are lying vacant. The DHQ, Skardu, and Director Health Northern Areas, were called to appear in the matter but despite notice none of them is present. The Advocate General has informed us that he has also intimated the above officers about the date of hearing and the order of Court. The nonappearance of DHO, and Director Health has not only caused inconvenience to the Court but also would amount to waste the public time and money. Consequently notice is issued to Director Health and DHO, Skardu to `explain their position for noncompliance of the order of Court. Their explanation should reach to this Court within three days and case shall be re-listed on 9-7-2009 at Gilgit. The Director Education Academic while appearing in person has submitted report. He will assist the Court on the next date at Gilgit. The public representatives are also present and they may if so desires attend the Court on the next date at Gilgit. At this stage Dr. Ghulam Mehdi DHO, Skardu has appeared and stated that he being in the field could not reach in time. He will appear with his reply on 9-7-2009 at Gilgit." Order Dated 9-7-2009. "The Director Health has not appeared and also has not submitted his reply and explanation offered by Advocate General for his nonappearance is not acceptable. The Director will file his personal bond before the Registrar of this Court for appearance on the next date, failing which coercive measures will be adopted. Deputy Director Health states that there are two Health Division in Northern Areas and notice was required to be issued to Director Health, Skardu. The notice is accordingly issued to Director Health Skardu for the next date. DHO Skardu is present in Court and has also furnished his explanation. In view thereof, show cause notice issued to him is recalled. The learned Advocate General NAs having explained the position of the Gynecologist/Medical Officer/Lady Medical Officer in NAs has stated that an undertaking is obtained from the Students at the time of their nomination against special Quota seats, in the Medical Colleges of the Country in the form of Bond to serve in NAs on completion of the Medical Education, but practically such students/ doctors do not fulfil their commitment, rather by procuring duplicate certificates through concealment of factual position in respect of their commitment are settled in down country, as result of which the people of NAs are suffering due to acute shortage of doctors. The learned Advocate General has suggested that Secretary Education may be directed to verify from the concerned quarters about the position of degrees of such students, so as to make their selection against the vacant posts of posting at different places and in case a doctor is not prepared to fulfil his commitment in terms of Bond, the process for recovery of Bond amount and also for proper action under the law can be initiated. The Advocate General also suggested that Chief Secretary NAs may be directed to review the policy of nomination to solve the problem on permanent basis. After hearing the learned Advocate General and Deputy Director Health Gilgit, we find that the matter is extremely complicated as the students on the basis of special nomination after obtaining the Medical Education do not fulfil their commitment and the Education or Health Department. Simply slay the role of silent spectators. The right of education is fundamental right and right of movement and settlement anywhere in Pakistan, subject to law is also fundamental right. The Medical students in Northern Areas cannot be compelled to serve as doctors in Northern Areas, but a student who gets the concession of admission against special Quota seats on the basis of nomination by the Government and furnishes Bonds to serve in the NAs., on completion of Medical education, in case of his failure to serve in the NAs., in addition to the recovery of Bond money he should also face the penal consequences, therefore, the relevant rule should be amended accordingly. The Secretary Health and Secretary Education subject to the rules, will proceed to review the policy of nomination to meet the problem of shortage of doctors in Northern Areas, so that the Medical facility can be provided to the people as their basic right. The Chief Secretary in consultation with Secretary Education and Secretary Health will also look into the possibility of appointment of doctors from Down Country on better terms and conditions of Service. Director Education while submitting his report has suggested that the Government may establish a Medical College in NAs. to solve the problem on permanent basis. The suggestion made by the Director Education is quite reasonable, therefore, the Chief Secretary NAs. will take up the matter with Ministry of Education Government of Pakistan for establishment of Medical College and will inform the Court about the progress on the next date. The learned Advocate General has pointed out that the Provincial Government Northern Areas should enhance the amount of Bond and also take effective measures for implementation of nomination policy in letter and spirit. The Chief Secretary will consider the matter on priority in the revised policy. The progress report in the matter shall be submitted by Chief Secretary within a month and the case shall be re-listed in the second week of August, 2009. The Director Health Gilgit and Director Health Skardu as well as DHO of both circles shall remain in attendance on the next date. The Secretary Education and Secretary Health will also attend the Court."

3. In continuation of the proceedings on the previous date, the departmental representatives on 13-8-2009 explained the factual position and the Court in the light thereof proceeded to pass order as under: "Director Health Gilgit states that there is acute shortage of lady medical officer and specialist doctors and that presently 124 posts of lady medical officers are vacant whereas, 15 Specialists Doctors on the role of Health Department Northern Areas are absent from duty. These doctors were nominated for specialization by obtaining their bonds to join the department after the specialization but they have not joined the duty. The Director Health states that under the rules disciplinary action can be taken against such doctors but there is as such no system to compel them to honor their commitment. Similarly the students, who obtained admission in Medical Colleges in the Country on the basis of nomination by executing the bonds for service in Northern Areas after completion of Medical Education, do not as per their commitment serve in the Northern Areas. The Director Health states that in absence of specific rules the department is facing difficulty to implement the condition of bonds and recovery of the salaries etc. paid to the specialist doctors while on specialization course. Notwithstanding the specific rules on the subject the violation of the condition of the bonds executed by the students or by the specialist doctors for rendering services in NAs after completion of Medical Education or specialization on the basis of nomination itself is sufficient to proceed against such doctors and specialists for recovery of the amount of bonds as arrears of land revenue and can also be compelled to serve in Northern Areas as per terms of nomination, with the help and co-operation of Federal and Provincial Governments as well as private institutions in which such doctors and specialists are employed. It appears that due to the lenient policy and latitude of the Health Department NAs, the MBBS and also Specialists Doctors after getting admission in the different institutions of the Country on the basis of nomination with undertaking to serve in NAs on completion of their Medical Education and special courses do not join Health Department Northern Areas to fulfil their commitment which is not only loss to the public exchequer, but also is the main reason of shortage of doctors and specialists. Consequently the department is obliged to proceed against such doctors and specialists for an appropriate action in accordance with law for recovery of the amount of bonds and salaries etc. paid to them. The department should also initiate process against them for their return to NAs for service as per their commitment. The Secretary Health will take necessary steps for incitation of proceeding against all such doctors with the help and co-operation of Federal and Provincial Governments and also with the management of private institutions such as Agha Khan Health Service, with which these doctors are employed. The assurance may be obtained from General Manager Agha Khan Health Service at Gilgit and Karachi and from management of similar other private institutions in the Country for not engaging such doctors and specialists in their institutions without NOC of the Chief Secretary Northern Areas. The doctors from NAs who after executing the bonds by concealment are serving in Agha Khan Health Service and similar other institutions in violation of their bonds must not be retained by these institutions. The Secretary Health Northern Areas Gilgit will provide the particulars of such doctors and specialists to the concerned Government and private institution for further action at their end. The Director Health Gilgit has informed the Court that the facilities of Ambulance, Ex-Ray Plant, Dental and Dialysis Machines with all other necessary equipment's have been provided to all 10 beds Hospitals including DHQ Hospital Gilgit which are operational but due to insufficiency of Funds, the maintenance of these machines and Medical equipment is neglected and if proper care is not taken, the same will go out of service in due course of time. The Secretary Health will bring the matter to the notice of Chief Secretary for providing the necessary funds on priority, so that the maintenance and repair of this machinery is carried out as per requirement. The Director Health Skardu also pointed out that special incentives is required to be given to the doctors to attract them to serve in Northern Areas and apart from taking action against the doctors and specialists, the appointment of the doctors from other parts of the Country with better terms and conditions will certainly reduce the shortage of doctors in NAs. The Chief Secretary in consultation with Secretary Health and Director Health Gilgit and Skardu will sort out the ways and means to overcome the shortage of doctors by introducing policy of direct appointment of doctors throughout Pakistan on better terms and conditions as suggested by Director Health Gilgit and Skardu. The Deputy Secretary Health as well as Director Health Gilgit and Skardu have submitted their reports for improvement of Health Department NAs and for change of admission policy to resolve the problem of shortage of doctors. These reports contained very useful and valuable proposals to be given due consideration for formulating a comprehensive policy in respect of nomination of Medical students for admission and appointment of doctors against vacant posts with special incentives. The Chief Secretary may constitute a committee headed by Health Secretary by including Director Health Gilgit and Skardu as members for farming the policy and in the light thereof, may take necessary steps for removal of problems/ difficulties in the Health sector in NAs. The Deputy Secretary Health states that the establishment of Medical College in NAs is under consideration with the Ministry of Education Government of Pakistan and approval of College will certainly solve the problem permanently. The people of NAs have equal rights to that of the people of other parts of the Country but unfortunately NAs is neglected even in basic fundamental right, in terms of Article 9 of the Constitution and NAs Governance Order 1994. The right of life is not only confined to live rather it includes the right of basic facilities of Health, Education, right of earning, clean drinking water and such other essentials of life. It is therefore, constitutional duty of the Government to provide health facilities to the citizens as their fundamental rights by establishing basic health units at Head Quarters and Sub. Divisional level and also Medical Colleges in backward areas in the light of principle of policy envisaged in Articles 29 to 40 of the Constitution. It is expected that Ministry of Education Government of Pakistan will expedite the process for approval of Medical College in Northern Areas and will also take necessary steps for establishing male and female physiotherapy, and Nursing training institute which are essential part of Medical Education and Hospitals. The Secretary Health in pursuance of the decision to be taken by the Chief Secretary with approval of Federal Government for implementation of recommendations of the committee will submit report to the Registrar of this Court within one month and case shall be re-listed in the first week of October, 2009. The copy of this order shall be sent to the Chief Secretary Northern Areas, the Secretary Education, Secretary KA/NA and Secretary Health Government of Pakistan for appropriate action. The Director Health Gilgit and Skardu have brought to our notice that in Medico legal cases, the doctors who are called by the Courts for recording their statements are detained for more than one date, as a result of which patients badly suffer, in Government Hospitals as these Medical Officers have also to discharge their duty in Hospitals. The Criminal Courts in Northern Areas must record the statement of doctors on priority without grant of unnecessary adjournment, so that no inconvenience is caused to the patients in the Hospitals. The order shall be conveyed to the Courts by the Registrar of the Chief Court. The Director Health Skardu and DHOs need not to appear unless directed by the Court. The Agha Khan Health Service is well reputed Organization in the Country which is providing service in the health Sector throughout Pakistan including Northern Areas. This Organization has established basic Health Units at different places in Northern Areas and doctors preferred to serve in this highly paid and prestigious Organization, which is also a reason of shortage of doctors in public Health sector, therefore it would be appreciated if this Organization, subject to the feasibility also consider to set up a Medical College in Northern Areas for the welfare of people, which wilt be great service to this remote and backward areas. The Copy of this Order will be sent to General Manager Agha Khan Services Gilgit and Karachi for their consideration."

4. The case again came up for hearing before the Court on 21-10-2009 on which date the departmental representatives informed the court that matter was under serious consideration of the concerned authorities .in the department and order was passed as under : -- "Mr. Fida Hussain, Deputy Secretary Health states that 34 male and female doctors have been appointed on contract basis whereas selection of 30 doctors by Federal Public Commission is at final stage and as soon as recommendations of FPSC are received by the department the appointments will be made. He informed the court that out of 16 doctors who were absent from duty in Gilgit-Baltistan, the services of 12 doctors have been terminated whereas departmental proceeding are pending against 4 doctors who have not yet joined duty. He states that 3 Specialist and one Medical Officer have joined duty and two specialist Doctors absent from duty, as per information received from Agha Khan Health Services Organization are serving with Agha Khan Health Service on visiting terms and that a request will be made to said organization for discontinuation of their service as visiting doctors. The Deputy Secretary also pointed out that a nursing school is operational in Gilgit-Baltistan and necessary improvement required in the school will be made during the current financial year and that the establishment of Medical College at Gilgit in consequence to the pronouncement made by the Prime Minister in his public speech for establishment of Medical College at Gilgit is under process in the Ministry of Health and Education of the Government of Pakistan. The matter is actively being pursued by the Chief Secretary Gilgit-Baltistan with assistance of Education, Health and Planning and Development of Gilgit-Baltistan to start the construction of College building as early as possible and as per proposal the project will be included in annual development program for the next year. The Deputy Secretary has also informed us that in pursuance of the order of this Court Agha Khan Health Services Management was consulted for providing assistance to the Government of Gilgit-Baltistan for establishment of Medical College at Gilgit and a Consultant with Chief Executive Officer of Agha Khan Health Services Organization having held a meeting with the Health Department Gilgit-Baltistan, have given assurance for providing assistance in the establishment of the College and providing ancillary facilities for 'Medical Education. In view of the position explained above by the Deputy Secretary and the learned Advocate General, it seems that Government of Gilgit-Baltistan is making serious efforts to overcome the shortage of doctors and provide maximum medical aid to the public. In consequence to the promulgation of Gilgit-Baltistan (Empowerment and Self-Governance) Order, 2009, the Government of Gilgit-Baltistan is entirely independent in its affairs and must take affective steps for improvement of the condition of hospitals and health centers on priority. The proposal for establishment of College must be included in Annual Development Program of the current financial year with allocation of funds as special case instead of next year to avoid unnecessary delay in completion of project. The learned Advocate General at this stage pointed out that feasibility report has already been submitted by Health Department to the Planning and Development Department for the purpose of PC II and the matter is pending in the Planning and Development Department with no progress. The Departmental technicalities must not be allowed to cause delay in the establishment of College and direct that Chief Secretary must ensure for the completion of process of PC-II and PC-I for establishment of College during the current financial year. The Secretary Planning Department will submit progress report within a fortnight and also depute a responsible Officer to appear with instructions on the next date. The Deputy Secretary Health and Advocate General will bring this order to the notice of Chief Secretary through Secretary Health for necessary action. The Deputy Secretary Health will also inform the Court on the next date about the framing of policy regarding the nomination of the candidates for admission in Medical College and nomination of Doctors for specialization in different institutions. Adjourned for a date after two weeks."

5. The departmental representatives on 19-11-2009 has submitted progress report regarding partial implementation of the orders and the establishment of Medical College in Northern Areas and consequently the Court proceeded to pass the following order: "The Deputy Secretary Health states that the process for the appointment of the Doctor is still in progress and the appointment will be made on its completion without any further delay. He states that in pursuance of Order of the Court Gynecologists in Gilgit, Skardu and Chillas have been appointed and a sufficient number of Doctors have also been appointed on contract and further in consequence to the approval of the establishment of Medical College given by the Prime Minister of Pakistan, PC-II having been prepared has been sent to the Planning and Development for the purpose of preparation of PC-I and inclusion of project in Annual Development Program. The Planning Officer of the Planning Department present in court has stated that in pursuance of the order of this Court, the preparation of feasibility report is under process for preparation of PC-II, the approval of which will be given in the special meeting and the final approval of the project on submission of PC-I will not take time more than one month. The Secretary Planning Department with coordination of Secretary Health and Secretary Education will ensure that process of the preparation of PC-I and PC-II is completed on urgent basis to finalize the matter for allocation of funds as special grant in the current financial year. In view of the position explained by the concerned officers present in Court we with the above observation adjourn this matter to a date immediately on reopening of the Court after winter vacations. The Planning and Development Department as well as Health Department will submit report fortnightly on the progress of the matter to the Registrar of this Court for our perusal in chamber."

6. The Secretary Health while appearing before the Court on 16-3-2010 has explained the existing position and the progress in respect of the establishment of Medical College and the court passed the Order as under:-- "Deputy Director Health Mr. Behram Khan states that PC-II has already been approved but no progress has been shown in preparation and approval of PC-I. This is sad that despite lapse of period more than 4 months since the statement was made by Departmental representative for preparation of PC-I and allocation of funds in the current financial year, nothing has been done. Secretary Health present in Court has explained the position that with the coordination of the Planning and Education Department PC-II has already been approved but due to the environmental problems including the law and order situation- the PC-I for allocation of funds could not be prepared in terms of the statement made by the Deputy Secretary Health before this Court on 19th November, 2009. He however states that efforts are being made to complete the process for allocation of funds for the construction of the Medical College in Gilgit-Baltistan in the coming financial year (i.e. 2010-2011) He has also stated that the policy regarding nomination against the allocation of seats in the different Medical College of the Country and for specialization of the Doctors has been revised which will improve the position to solve the problem of shortage of Doctors in Gilgit-Baltistan. In addition 82 Doctors have already been inducted through direct recruitment and presently as such there is no shortage. Secretary Health has further stated that except the start of Medical College, the order of this Court in all respect has been implemented and the copy of the revised policy with instructions and rules shall be placed on record before the next date. The Secretary Education has stated that full efforts shall be made to complete the process for Maga Project of Medical College at an early date. The Secretary Planning also explaining the position stated that priority shall be given to this Maga Project in respect of the allocation of funds in next Annual Development Project as a special case. The efforts made by the Secretary Health, Secretary Education and Secretary Planning in the matter are appreciable and we expect that they with mutual cooperation and coordination by taking special interest will be able to complete the construction of College as soon as possible. The establishment of Medical College is a policy matter which relates to Education and Health Departments and the Court is not as such under any legal obligation to entertain such cases but since this is a matter of public importance in Gilgit-Baltistan therefore this Court in such matters of public importance may in exercise of power under Gilgit-Baltistan (Empowerment and Self Governance) Order 2009 issue appropriate direction in the public interest. 'Be that as it may in view of the position explained by the Secretary Health, Secretary Education and Secretary Planning we adjourn this case for a date in office to enable the concerned quarter to finalize the matter and submit report to this Court for further appropriate orders."

7. In continuation of the previous orders and proceedings, the court on 28-6-2010 and 30-6-2010 passed the orders as under: - "Order Dated: 28-6-2010. Mr. Feroze Khan Deputy Chief Planning and Development states that a scheme for construction of Medical College Gilgit-Baltistan has been reflected in draft ADP 2010-11 with sufficient allocation and no sooner the PC-2 is approved the construction work of the Medical College will be started. The Advocate General has sent a request for a short adjournment. Request allowed. Mr. Mir Ahmed Khan Director College Gilgit-Baltistan is not directly involved in process of approval of PC-1, or construction of Medical College Gilgit. Yet the department is ready to provide all Technical Assistance to the concerned departments as and when required. Dr. Muzzaffar Hussain Additional MIS on behalf of Secretary Health present and states that a sufficient amount has been allocated in the draft ADP 2010 for construction of Medical College at Gilgit. He is directed to furnish detail information on next date in consultation with the Secretary Health. The case is adjourned to 30-6-2010, on the same date the Deputy Chief Planning and Director Colleges may not appear before this Court due to their pre-occupations in connection with preparation and finalization of annual development program. Order Dated: 30-6-2010. Both jointly stated that Health Secretariat Government of Gilgit-Baltistan has provided a sum of Rs. 25 million for payment to the Consultant engaged for preparation of feasibility report of Medical College at Gilgit, who will prepare the feasibility report and PC-1 within a period of 6 months and thereafter the PC-1 will be submitted to competent forum for its approval and no sooner the PC-1 is approved the process of calling of tenders for construction of Medical College will be initiated and thereafter physical work will be commenced without any delay. The Advocate General on whose request the case was fixed for today again did not turned up without any intimation to this Court. The representatives of P & D and Education Department were heard on 28-06-2010 in person and their points of view were recorded, their attendance was dispensed with for today due to their engagement in preparation of ADP. Suo Motu Case is adjourned to a date in office for further proceedings."

8. The case has been finally heard on 5-10-2010 and in pursuance of the position explained by Mr. Feroz Khan, Deputy Secretary Planning Development and Acting Director Health Services, further proceedings having been closed and the matter has been disposed of with the order as under: - "Mr. Peroz Khan Deputy Chief Planning Govt. of Gilgit-Baltistan and acting Director Health Gilgit-Baltistan placing on record the letter dated 04-08-2010 on the subject establishment of Medical College in Gilgit-Baltistan stated that the Chief Minister has been pleased to give approval of the project of Medical College with allocation of budget during the current financial year i.e. 2010-11 for the construction of the College. Acting Director Health stated that the formalities for call of tender and grant of contract will be completed within two months and work order will be issued immediately on award of contract. The Deputy Chief Planning and Acting Director of Health Services stated that Doctors and Specialist on the role of Government of Gilgit-Baltistan who have been found absent from duty without permission, have been proceeded against for disciplinary action and in consequence thereto, one Doctor has resumed the duty whereas, the services of two Doctors have been terminated. The proceeding against the remaining Doctors including the recoveries of salaries drawn by them during the period of their absence from duty without leave or permission are in progress. The Acting Director Health Services shall submit a detail report showing the total numbers of Doctors of prolong absence from duty without permission of Government of Gilgit-Baltistan and the action taken against them including the recovery of financial loss caused to the Government in form of salaries and allowances received by them during the period of absence. The -Secretary Health will expedite the disciplinary proceedings of taking appropriate departmental action in the matter in accordance with law, will submit compliance report to the Registrar of this Court. This case is otherwise concluded and for the detail reason to be recorded separately stands disposed of."

9. In the light of foregoing orders, we feel no necessity of further adjudication of the matter and dispose of the same accordingly. H.B.T./22/Glt Order accordingly.