KARACHI: The Supreme Court suspended on Monday a Sindh High Court judgement declaring the devolution of three prestigious healthcare institutions — the Jinnah Postgraduate Medical Centre (JPMC), National Institute of Cardiovascular Diseases (NICVD) and National Institute of Child Health (NICH) — to the province as unconstitutional.

Admitting an appeal of the provincial government challenging the SHC ruling, a three-member SC bench headed by Justice Gulzar Ahmed suspended the operation of the impugned order.

The bench also issued notices to the employees of the three health facilities who approached the high court to file their comments on the next date.

The Sindh government, through the provincial health secretary, approached the SC for leave to appeal against the SHC judgement that had nullified devolution of the JPMC, NICVD and NICH as well as the National Museum to the province under the 18th amendment.

A three-judge SHC bench handed down the judgement on July 4 on a set of petitions filed in 2011 by employees of the JPMC challenging the devolution of the federal government-run hospitals to the province.

Sindh Advocate General Barrister Zamir Ghumro had submitted that various departments, offices, organisations and projects of federal ministries that included health, sports, minorities affairs, environment, labour and manpower, food and agriculture and women development were devolved to provinces in 2011 in pursuance of the 18th amendment to the Constitution.

He submitted that the subject of health had never been part of any federal legislative list or concurrent list. The hospitals in questions were devolved to the provincial health department by the then health ministry through a notification issued on June 30, 2011 and subsequently the employees of these institutes were transferred to the Sindh health department under Rule 10-A of the Civil Servants Act, 1973.

Referring to a case pertaining to employees of the Lady Health Workers Programme before the Supreme Court, the provincial law officer had argued that it was decided that since health was a provincial issue, the provinces regularise the employees of the LHWP.

Keeping these facts in mind, the Sindh Assembly had passed the Sindh Civil Servants Amendment Act, 2014 for the protection of rights of the employees of devolved institutes, he added.

The AG alleged that some employees had crippled and blocked normal and smooth functioning of the hospital and claimed that the health facilities in question were disrupted and an adverse situation could be occurred any time at the cost of patients’ lives.

He said that many of the staff members were either retired or leaving the service. “Affairs of the JPMC are only being dealt as a private institute run by the executive director/joint executive director,” he added.

AG Ghumro claimed that since 1935 till now health had been a provincial subject. Thus, under Article 142-C, a provincial assembly has exclusive power to make laws regarding matters which were not mentioned in the federal legislative list, he argued.

He was of the view that the authors of the 18th amendment being fully conscious of this constitutional mandate transferred the management and control of these institutions to the province.

He submitted that there was no entry available in the federal legislative list relating to the subject of health, hospitals, which provides treatment to the public, as such 18th amendment was to be seen as a whole, particularly Article 270-AA (6)(8) and (9).

He argued that the conclusion of the SHC bench was not sustainable in law.

The SHC had no jurisdiction to decide the matter which could be a dispute only between the federation and the provinces under Article 184 of the Constitution, wherein the jurisdiction of every other court including the high court was barred under the Constitution and the matter rested in the exclusive domain of the Supreme Court.

He maintained that the SHC also failed to appreciate that the employees of any institution, including the JPMC, NICVD and NICH, could not invoke the jurisdiction of a high court where a matter could be disputed only between the federation and the provinces and their terms of conditions of service stand protected under the law as the same was barred under Article 212.

“The high court failed to appreciate that the devolution of the institutions under 18th Amendment Act, 2010 is protected under Article 239(5) of the Constitution and cannot be called in question by the full court of the High Court of Sindh,” he concluded.

Published in Dawn, July 26th, 2016