A nine-page judgement authored by Justice Ijazul Ahsan held that all acts done or orders, directions, notifications and directives issued or made pursuant to the purported transfer / devolution or to give effect to the same in any manner whatsoever, which are inconsistent with or in derogation of the tenor of this order to the extent of inconsistency, are declared to be without lawful authority and of no legal effect.
A five-member bench, headed by Chief Justice Mian Saqib Nisar on July 7 after hearing the arguments of the counsels had reserved the judgment. The Sindh government and the health institutions had filed appeals against the Sindh High Court decision that the hospitals fell within the scope of entry 16 of the Federal Legislative List and therefore are within the exclusive federal domain.
The court said that within 90 days of this judgement, the federal and provincial governments and all related departments shall take all necessary steps relating to return of the institutions from the provinces to the federation.
The position of these institutions shall as far as possible be restored to the position as on the date when they were transferred to the provinces. The judgement clarified that the restoration and return shall include resumption of the employees by the federation in relation to the institutions and all serving or retired officers, employees or servants thereof.
In case, the exercise cannot be completed within 90 days and an extension is required, any of the governments can move appropriate application before this court seeking extension for reasons spelt out in the application. Till such time this exercise is completed, all matters relating to the institutions shall continue on the same basis as on the date of this judgement including but not limited to financial and budgetary matters, disbursement, outlays and expenditures including disbursement relating to payment of salaries, pensions and related matters.
The judgement said that all ongoing projects/contracts in which partial payments have been made shall be taken over by the federation and balance payments shall be made by it. However, all contracts completed within the past one year and equipment supplied in the same period which had actually arrived at the institutions or in the process of being supplied or has already been installed shall be paid for/reimbursed to the provinces by the federation.
In case, the federation and any of the provinces are unable to resolve any matter, with regard to compensation or payments to be made, the same shall be deemed to be a dispute between the provinces and the federation. In that case, the aggrieved party shall be entitled to seek its remedy in accordance with the Constitution and the law.
The judgement said that all statutory instruments including Acts and Ordinances passed or issued related these institutions shall stand suspended. Nothing in the provincial laws shall in any manner hinder, restrict or impede or otherwise affect the return of any of the institutions to the federation.
The court said that a committee shall immediately be constituted for working out the modalities for smooth, trouble-free and seamless transition and transfer of these institutions from the provinces to the federation and to deal with and make recommendations regarding all aspects of such transfer including terms and conditions of employment, seniority, assimilation, etc, in the service of the federation and all other matters directly, indirectly or incidentally relating to the same. In case a need arises, the federal government shall initiate such legislation as may be necessary for the effective completion and operation of these institutions.
The judgement said that the federal government shall also allocate and disburse such funds as may be necessary to maintain the level of services being provided in these institutions presently and to progressively improve the environment and running of all institutions in a more efficient, effective and patient friendly manner.