The Khyber Pakhtunkhwa government in its ongoing ‘health reforms’ process continued experimentation with the relevant law. Recently, the government tabled The Khyber Pakhtunkhwa Medical Teaching Institutions Reforms (Amendment) Bill, 2018, proposing drastic changes to the parent law, KP Medical Teaching Institutions Reforms Act, 2015.

While proposing these changes the framers of the amendments have overlooked an important judgment delivered by a larger bench of the Peshawar High Court in 2015 for giving protection to the rights of employees recruited under the previous law, KP Medical and Health Institution and Regulation of Health Care Services Ordinance, 2002.

A bench headed by then Chief Justice Mazhar Alam Miankhel had delivered a 79-page judgment on Dec 23, 2015, through which several writ petitions related to the KP Medical Teaching Institutions Reforms Act (MTIRA) were decided.

Some of the petitioners had challenged MTIRA, which was enacted in Jan 2015, and had requested the court to declare several of its provisions unconstitutional. Some of the petitioners had challenged certain provisions related to rights of employees under the new law.

While the court had declared the law in accordance with the Constitution it had ordered to omit certain words in the law so as to ensure the rights of the employees whether they had absorbed their services in the respective MTI or were civil servants.

However, contrary to that judgment in the recently-tabled Bill, the government has now proposed an amendment to the same section, which would result in nullifying the court’s judgment.

While hearing those cases the bench had formulated six main points. The fifth point states: “Fifthly, that the right accrued to the petitioners, whether employees of the institution or civil servants, in view of the previous legislation cannot be taken away through the impugned Act.” The said point was related to Section 16 of MTIRA. Section 16(2) of the Act states: “Before commencement of this Act, all administrative and teaching staff recruited by the Management Council in the prescribed manner under the Khyber Pakhtunkhwa Medical and Health Institution and regulation of Health Care Services Ordinance, 2002, shall be considered as employees of the concerned Medical Teaching Institution on the same terms and conditions as applicable to them immediately before the issuance of the notification under sub-section (3) of section 1, till further orders.”

Although, the government had given assurance to the court that it did not intend to change the terms and conditions of service applicable to the employees, counsels appearing for the petitioners had apprehended that the words “till further order” would be hanging like Damocles sword over their head and in future at any time the government might change its mind.

Keeping in view those arguments the bench had ordered: “The phrase ‘till further order’ tagged in Section 16 (2) of the Act 2015 is hereby struck down.”

Despite clear orders of the court so far the provincial government has not amended the said section and has now instead come up with some other amendments so as to frustrate that order of the court.

The high court’s judgment was challenged before the Supreme Court by a petitioner as well as provincial government. However, so far the apex court has not issued any stay order in favour of the government.

Now in the tabled Bill, the government has proposed to substitute section 16(2) so as to introduce terms and conditions of service through regulations. The proposed section states: “Before the commencement of this Act, all administrative and teaching staff recruited by the Management Council in the prescribed manner under the Khyber Pakhtunkhwa Medical and Health Institution and regulation of Health Care Services Ordinance, 2002, regardless of status of terms and condition of service, shall be considered employees of the concerned Medical Teaching Institution on such terms and conditions as may be prescribed by regulations.”

The proposed section further provides that such terms and conditions shall not be less favourable in financial terms than the terms and conditions admissible to them immediately before the commencement of this Act.

A counsel who had appeared for the petitioners in those cases said that in fact the government had been committing contempt of the high court by not following the directives given by the court. He said that when the high court had spoken its mind on this point and ordered deleting the said words so as to secure the terms and conditions of service of employees, how could the government now amend the law for changing the terms and conditions of their service.

Another important issue in the tabled Bill relates to replacing the word “cabinet” with that of “chief minister” in several sections of decision making. After the passage of this bill, instead of the collective wisdom of the cabinet only the chief minister would be empowered to make important decisions.

Similarly, under section 7(2) of the Act each of the MTIs is accountable to the government for its performance, but the government has now proposed to include the words “minister for health.” Moreover, it is proposed to include a new sub-section 2A for empowering the health minister to issue such policy and directives to all the MTIs, which should be binding on them.

The Bill also provides for setting up of Board of Arbitration for MTIs consisting of minimum 10 arbitrators nominated by the government for five years from among retired judges of the superior courts or advocates of the Supreme Court having at least 25 years’ experience as advocate.

It is added that with the setting up of the board all employment disputes pending before any of the court of law shall be transferred immediately for adjudication to the board. Any party to arbitration, may within 15 days of the rendering of the award by the Board, could challenge an award through a petition before the high court, which should be heard by a two-member bench.

The previous Pakistan Tehreek-i-Insaf government in the province decided to do away with the Ordinance of 2002 and instead introduced two laws, the MTIRA and KP Health Care Commission Act 2015.

The MTIRA provides for setting up of a seven-member board of governors for each of the MTIs. All the seven members should be from private sector.

Legal experts believe that instead of passing the Bill in haphazard manner it should be thoroughly discussed as in its present shape it would be open to legal challenge before the high court.

Published in Dawn, December 17th, 2018