Devolution to Provinces

2017 PLD 640 LAHORE-HIGH-COURT-LAHORE Judicial Precedent

Arts. 270AA, 254, 90, 91 & 199Constitution (Eighteenth Amendment) Act (X of 2010), Preamble, Ss. 96 & 101Federal Cabinet Office Memorandum/Notification No. 4-3/2012-Min.I dated 14.02.2012Devolution to ProvincesScope, nature and effect of the omission of the Concurrent List by the Constitution (Eighteenth Amendment) Act, 2010Effect of the cut-off date for devolution provided in Art.270AA(8) of the ConstitutionDeclaration and continuance of laws post Constitutional (Eighteenth Amendment) Act, 2000

Devolution of an autonomous hospital/research institution under the administrative control of the Federal Government, via the Cabinet Division

Protection under Art. 254 of the Constitution with regards to failure to comply with requirement as to time provided in Art. 270AA(8) of the Constitution

Scope

Petitioners impugned the transfer of the administrative control of "Shaikh Zayed Postgraduate Medical Institution" ("SZPMI") from the Federal Government to the Provincial Government vide Cabinet Office Memorandum/Notification No.4-3/2012-Min.I dated 14.02.2012 on orders of the Prime Minister

Contention of the petitioners inter alia was that the said transfer was illegal and unconstitutional as the devolution of "SZPMI" did not have legal sanction

Contention of the respondents, inter alia, was that the "SZPMI" having been established by a Trust Deed was an autonomous Department of the Federal Government and had been competently devolved to the administrative control of the Province

Validity

Perusal of the alleged Trust Deed clearly reflected that none of its objects specifically provided that any research institution was to be established in Lahore or anywhere else and the Federation of Pakistan had failed to show nexus of the Trust Deed with the "SZPMI" or failed to show that the purported Trust was instrumental in any activity involved in the creation of the "SZMPI" or purchase land for the same

Said devolution of the "SZPMI" took place on 14.02.2012 much after the cut-off date provided in Art.270AA(8) of the Constitution which could not be regarded as a mere irregularity curable under Art.254 of the Constitution

Keeping in view the role of the Implementation Committee constituted for the purpose of devolution, it was clear that the process for devolution of the "SZPMI" could only be legally and validly completed in terms of Arts.270AA(8) & 270AA(9) of the Constitution

Impugned Office Memorandum/Notification was issued by the Prime Minister to the exclusion of the Cabinet, and per Art.90 of the Constitution, the Prime Minister alone was not the Federal Government, therefore, the same did not carry legal sanction behind it and as such was liable to be struck down on the Constitutional plane

High Court held that "SZPMI" was an institution established by the Federal Government and not by the purported Trust Deed and therefore all notifications regarding the Trust and Board of Trustees were held to be ultra vires of the Constitution and of no legal effect; and that the impugned Notification/Office Memorandum was unconstitutional and coram non judice and all acts made pursuant to the transfer shall cease to have any legal effect

High Court further held that the "SZPMI" stood restored to the Federal Government in the position before the issuance of the Notification/Office Memorandum and was returned to the administrative control of the Federation, and all the appointments made by the Provincial Government were held to be void ab inito

High Court directed that the Federal and Provincial Governments shall cooperate and provide full assistance in so far as the transfer was concerned

Constitutional petitions were allowed, accordingly.