SYED ARSHAD ALI, J: - This consolidated judgment addresses both the current petition and the related petitions listed in Annexure 'A.' The cases involve common questions of law and fact that necessitate a unified adjudication.
Subject Matter-Wise Categorization
2. All petitions taken up in this judgment have a shared factual content i.e. petitioners being aggrieved by their removal from the Board of Governors ("BoGs") of Medical Teaching Institutions ("MTI").
3. The point of distinction that induces the Court to categorize them into three groups is character of appointing/removing authority. For convenience in adjudication and reading, these petitions are divided into the following groups: Category A: Petitioner(s) appointed by elected government and removed by care-taker setup. Category B: Petitioner(s) appointed by care-taker setup and removed by elected government. Category C: Petitioner(s) appointed to and removed from the BoGs by the elected government.
Category-Wise Facts: Category wise facts of the petitions are as follows: Category A:
4. Facts of Writ Petition bearing No. 5957-P/2023: Writ Petition bearing No. 5957-P/2023 is filed by Sahibzada Saeed, Dr. Rubina Nauman Gilani and Jehan Zeb Malik; they have, inter alia, challenged the impugned Notification dated 15th December, 2023 whereby they were removed from the position of Members of BoGs MTI Hayatabad Medical Complex, Peshawar and instead respondents No. 5 to 9 were appointed against the said positions.
5. It is averred in the petition that the petitioners were appointed as Members of the BoGs of the said MTI vide Notification dated 5th October, 2021 by the political government in accordance with the law, however, through Notification dated 11th April, 2023 all the MTIs were dissolved. The said dissolution was challenged through Writ Petition bearing No. 1411-P/2023, however, this Court vide order dated 12.04.2023 had suspended the Notification of the Caretaker Government dated 16th March, 2023 dissolving the BoGs of seven MTIs. Later, the petitioners were removed from the position of Members of the said MTI vide Notification dated 15th December, 2023 and instead respondents No. 5 to 9 were appointed against the said position.
6. Comments submitted by Respondent: In comments, it has been the case of Caretaker Government that the action was taken pursuant to the directions of Election Commission of Pakistan ("ECP") contained in Notification dated 22"
January, 2023 that all political appointments against public offices should be removed/terminated so that the election could be conducted impartially and transparently. Similarly, through Notification dated 15th December, 2023, new Members/Chairpersons were appointed for various MTIs.
7. Subsequently, the elected Government has filed parawise comments. Along with the comments, the respondent has placed on file summary relating to the removal of the petitioners, which was presented for approval of the Caretaker Chief Minister.
8. Facts of Writ Petition bearing No. 5983-P/2023: Writ Petition bearing No. 5983-P/2023 filed by Dr. Saeedullah Shah & Muhammad Saeed Khan. In the present case, it is the contention of petitioners that they were appointed as Chairperson/Member of the BoGs MTI Khabfa Gul Nawaz Bannu vide Notification dated 22.06.2022 for a period of three years in terms of section 5(3) & 5(6) of the Medical Teaching Institutions Reforms Act, 2015 ("Act, 2015"). Before they could complete their term, both the petitioners were removed from their positions by the Caretaker setup vide two different notifications of even date 15th December, 2023. It is the precise case of the petitioners that their appointments were made by the elected Government and the Caretaker Government has no mandate to prematurely remove them from their positions.
9. Comments submitted by Respondent: In comments submitted by Caretaker Government it has been stated that the action was taken pursuant to the directions of ECP contained in Notification dated 22nd January, 2023 that all political appointments against public offices should be removed/terminated so that the election could be conducted impartially and transparently. Similarly, through Notification dated 15th December, 2023, new Members/Chairpersons were appointed for various MTIs. The appointment of subsequent Members of BoGs have also been challenged through the instant petition.
It would be pertinent to note that during the pendency of the petition Dr. Saeedullah Shah has been reappointed as Chairperson of the BoGs MTI Khalifa Gul Nawaz Bannu through Notification dated 20th June, 2024, however, the said appointment is also challenged in Writ Petition bearing No. 310- B/2024 titled "Abdur Rauf Khan and others vs. Government of Khyber Pakhtunkhwa and others".
10. Facts of Writ Petition bearing No. 5984-P/2023: Writ Petition bearing No.5984-P/2023 filed by Maj Gen (R) Muhammad Salahuddin Qasim, Dr. Tufail Mehmood, Dr. Unwan-ud-Din Mian, Dr. Arshad Hussain, Professor Dr. Ashfaq Ahmad Khan and Mr. Saad-ud-din Mian, they have challenged their removal from BoGs MTI Bacha Khan Medical Complex, Swabi through Notification dated 15th December, 2023 and have also challenged the appointments of respondents No. 5 to 10 as a new incumbent/Members of the MTI Bacha Khan Medical Complex, Swabi.
11. It is averred in the said petition that the then elected Government /Chief Minister had appointed the petitioners as a Member of BoGs MTI Bacha Khan Medical Complex, Swabi for a period of three years vide Notifications dated 2nd April, 2021 and 26th August, 2022 respectively, however, they were removed from the said office by the Caretaker Government vide different Notifications of even date i.e 15th December, 2023 and instead respondents No. 5 to 10 were appointed against the position of Members of the BoGs MTI Bacha Medical Complex, Swabi, which act of respondents is illegal and without lawful authority.
12. Comments submitted by Respondent: In comments, it has been the case of Caretaker Government that the action was taken pursuant to the directions of ECP (Election Commission of Pakistan) contained in Notification dated 22nd January, 2023 that all political appointments against public offices should be removed/terminated so that the election could be conducted impartially and transparently. Similarly, through Notification dated 15th December, 2023, new Members/Chairpersons were appointed for various MTIs.
13. Subsequently, the elected Government/respondent No.2 has filed para-wise comments. Along with the comments, the respondent has placed on file summary relating to the removal of the petitioners, which was presented for approval of the Caretaker Chief Minister.
14. Facts of Writ Petition bearing No. 5956-P/2023: Writ Petition bearing No. 5956-P/2023 filed by Muhammad Arshad, Muhammad Fahim Irfan, Nadeem Anwar and Dr. Muhammad Fazl-e-Qadir, whereby they have challenged their removal from Members of the BoGs MTI Mardan Medical Complex, Mardan and challenged the impugned Notification dated 15' December, 2023, whereby they were removed from their position and instead respondents No. 5 to 10 were appointed.
15. It is alleged in the petition that the petitioners were appointed as Members of BoGs MTI Mardan Medical Complex, Mardan for a period of three years. Along with the petitioners, Mr. Attaullah Tort was appointed as a Chairman of the said MTI, however, later, they were illegally removed from the said positions vide different Notifications of even date 15th December, 2023 by the Caretaker Government, which had no mandate to remove them and instead respondents No. 5 to 10 were appointed against the said positions. In the present case, the petitioners also pleaded discrimination and contends that the Chairperson, who was appointed along with the petitioners through the same Notification, was never removed from his position.
16. Comments submitted by Respondent: In comments, it has been the case of Caretaker Government that the action was taken pursuant to the directions of ECP (Election Commission of Pakistan) contained in Notification dated 22nd January, 2023 that all political appointments against public offices should be removed/terminated so that the election could be conducted impartially. Similarly, through Notification dated 15th December, 2023, new Members/Chairperson were appointed for various MTIs.
Category-B
17. Facts of Writ Petition bearing No. 310-P/2024: Writ Petition bearing No. 310-P/2024 had been filed by Mr. Abdur Rauf Khan, Mr. Abidullah Khan, Mr. Malik Naimatulah Khan, Mr. Attaullah Khan and Mr. Dr. Muhammad Hashim, who are/were the Chairman/Members of the BoGs MTI Khalifa Gul Nawaz Bannu, which was later amended whereby the Notification dated 11th June, 2024 has been challenged removing the petitioners from the said positions.
18. It is contended in the petition that the then Caretaker Government, after fulfilling the required formalities, had appointed the petitioners as a Chairman/Members of BoGs of the said MTI vide different Notifications dated 3rd July, 2023 and 15th December, 2023. The said appointments were made after soliciting NOC from the ECP, however, the respondents, without any show cause notice to the petitioners, through the impugned Notifications of even date 1 Ph June, 2024 have removed the petitioners from their position. They have also challenged the appointment of Dr. Saeedullah Shah as a Member of BoGs MTI Khalifa Gul Nawaz Bannu through Notification dated 20th June, 2024.
19. Facts of Writ Petition bearing No. 3055-P/2024 Through Writ Petition Bearing No. 3055-P/2024 Dr. Umar Ayub Khan, who was the Chairman of BoGs MTI Khyber Teaching Hospital, Peshawar, has challenged his termination from the office.
20. It is alleged in the petition that the petitioner was appointed by the competent authority as a Chairperson of the BoGs of the said MTI vide Notification dated 15th December, 2023. The petitioner had performed his duty to the entire satisfaction of the quarter concerned, however, he was illegally removed from the office by the Government without providing any opportunity of hearing to him.
21. Comments submitted by Respondents: The respondents have filed their comments and have also placed on record the summary for removal of the petitioner as well as the appointment of fresh incumbent Members/Chairperson of BoGs of the said MTI. It is the contention of the respondents that since the petitioner was appointed by the Caretaker Government illegally, therefore, he was removed from the said position through the impugned Notification.
22. Facts of Writ Petition Bearing No. 3051-P/2024: Through Writ Petition No. 3051-P/2024, Mr. Dr Muhammad Ali Chauhan has challenged the letter dated 22.05.2024 whereby he was terminated from the position of Member of BoGs MTI Hayatabad Medical Complex, Peshawar.
23. It is averred in the petition that he was appointed as a Member of BoGs of the said MTI for a period of three years by the then Chief Minister. His appointment was made in accordance with law and an NOC was also granted by the ECP.
24. Comments submitted by Respondents: The respondents have filed their comments wherein the reason for removal of the petitioner is provided that since the petitioner was appointed by the Caretaker Government and the Caretaker Government had no mandate to make such appointment, therefore, he was terminated from the Membership of the BoGs of the said MTI.
25. Facts of Writ Petition bearing No. 3065-P/2024: Through Writ Petition bearing No. 3065-P/2024 Mr. Professor Dr. Aftab Rabbani, Mr. Ayaz Khan & Mr. Javid Ahmad Turk, who were the Members of BoGs MTI Ayub Medical College, Abbottabad; whereas Mr. Professor Dr. Musa Kalim, who was a Member of BoGs MTI Lady Reading Hospital, Peshawar, challenged the Notification dated 22nd May, 2024 and 25th March, 2024.
26. It is averred in the petition that the petitioners were appointed as Members of BoGs of the said MTIs through Notifications dated 3rd July, 2023 and 15th December, 2023 by the competent authority after getting approval from the ECP.
They have challenged the Notification whereby a Search and Nomination Council was constituted for appointments of members of various BoGs, however, it appears from the comments that through Notification dated 1 1 th June, 2024 the petitioners were removed from their positions, as stated above.
Later the petitioners have filed a C.M. bearing No. 1484-P/2024 whereby they have sought suspension of the Notification dated 11th June, 2024.
27. Facts of Writ Petition bearing No. 4443-P/2024: Through Writ Petition No. 4443-P/2024 Mr. Akhtar Naveed, who was Member of BoGs MTI Hayatabad Medical Complex, Peshawar challenged his removal from the said position vide Notification dated 11.06.2024. The petitioner claims that he was appointed as a Member of BoGs of the said MTI vide Notification dated 15.12.2023 for a period of three years by the competent authority, however, he was illegally removed by the respondents from the said position.
28. Facts of Writ Petition bearing No. 234-D/2024: Through writ petition bearing No.234-D/2024 Mr.Malik Mushtaq Ahmad Dar, Mr. Khalid Mahmood Advocate, Mr. Samiullah Khan Advocate, Mr. Dr. Muhammad Iqbal and Mr. Dr. Essa Khan, who are/were Chairman/Members of BoGs MTI Mufti Mahmood Memorial Teaching Hospital, D.I.Khan, challenged a letter dated 22nd May, 2024 and the subsequent proceedings on the basis of the said letter, however, the respondents in their comments have placed on file the record/summary of the de-notification of the petitioners, which was approved by the Chief Minister of Khyber Pakhtunkhwa on loth June, 2024.
29. It is the contention of the petitioners that they were duly appointed against the aforesaid position by the competent authority, however, their termination was not in accordance with the law as the respondents in their comments have taken the stance that since the appointments of the petitioners were made by the Caretaker Government which had no mandate to make such appointment, therefore, a proper summary was placed before the Chief Minister of Khyber Pakhtunkhwa for removal of the petitioners pursuant to the prior directions of the Chief Minister and accordingly the said summary was approved by the Chief Minister on 10th June, 2024.
30. Facts of Writ Petition bearing No. 3406-P/2024: Through writ petition bearing No. 3406-P/2024 Mr. Professor Dr. Tahir Ali and Mr. Mir Yaqoob Khan, Ex-Members of the BoGs MTI Khyber Teaching Hospital, Peshawar have jointly challenged the impugned Notification dated 1 1 th June, 2024 whereby they were removed from the said position.
31. It is contended in the petition that vide Notification dated 15th December, 2023 the petitioners were appointed by the competent authority as a Members of BoGs of the said MTI, however, they were removed from the position by the respondents vide impugned Notification dated 11th June, 2024, which is against law.
32. Facts of Writ Petition bearing No. 3054-P/2024: Through writ petition No. 3054-P/2024 Mr. Professor Dr. Habib-ur-Rehman has challenged the impugned Notification dated 11th June, 2024 whereby he was terminated/removed from the Member of BoGs MTI Qazi Hussain Ahmad Medical Complex, Nowshera.
33. It is averred in the petition that the petitioner was appointed as a Member of the said MTI vide Notification dated 3rd July, 2023 for a period of three years. The constitutional petition filed indeed challenges a letter dated 23' May, 2024 whereby a meeting of Search & Nomination Council was called, however, later, the petitioner had filed an amended petition whereby the impugned Notification dated 11th June, 2024 has been challenged removing the petitioner from the Membership of BoGs of the said MTI.34. Facts of Writ Petition bearing No. 3138-P/2024: Through writ petition No. 3138-P/2024 Mr. Professor (R) Dr. Mohammad Jahangir Khan has challenged the Notification dated 11th June, 2024 whereby he was removed from the Membership of BoGs MTI Qazi Hussain Ahmad Medical Complex, Nowshera.
35. It is alleged in the petition that through Notification dated 3rd July, 2023, the petitioner was appointed as Member of BoGs of the said MTI by the competent authority in accordance with law, therefore, his premature removal from the said position is illegal and without lawful authority.
36. Facts of Writ Petition bearing No. 3139-P/2024: Through writ petition bearing No. 3139-P/2024 Mr. Dr. Muhammad Zubair Khan, has challenged the letters dated 8th March, 2024, 25th March, 2024, 28th March, 2024 & 22nd May, 2024 through which the meeting of the Search & Nomination Council for nomination of the Members of the various BoGs were convened.
37. It is the contention of the petitioner that he was appointed by the competent authority as Member of BoGs MTI Lady Reading Hospital, Peshawar vide Notification dated 3rd July, 2023 for a period of three years, therefore, he could not be prematurely terminated from the said position.
38. The respondents have filed their comments wherein it is alleged that the petitioner was appointed by the Caretaker Government, therefore, a summary was moved to the Chief Minister for his removal/denotification on 02.05.2024 and the said summary was approved by the Chief Minister on 10.06.2024. Pursuant to the same, through Notification dated 11th June, 2024 the petitioner was removed from the said position and the said Notification was published in the official Gazette on 12.06.2024.
Category-C
39. Facts of Writ Petition bearing No. 3090-P/2024: Through writ petition bearing No. 3090-P/2024 Mr. Kashif Ali Shah, Mr. Shabnan, Bakht Baz Khan and Mr. Muhamad Ishfaq Khan, who were appointed as Members of BoGs MTI Qazi Hussain Ahmad Medical Complex, Nowshera vide Notification dated 25th May, 2022, have challenged the Notifications dated 11th June, 2024 & 12th June, 2024 whereby they were removed from the said position. They have also challenged the appointment of respondents No. 9 & 10 as Chairman/Member of BoGs of the said MTI through Notifications dated 20.06.2024 & 12.06.2024 respectively.
40. It is the contention of the petitioners that they have been appointed by the previous elected Government as Members of BoGs of the said MTI vide Notification dated 22.05.2022 for a period of three years, therefore, their appointment would come at end on 25.05.2025, however, the respondents have illegally terminated their appointments.
41. Comments submitted by Respondents: The respondents along with the comments have placed on file the summary relating to the removal of the petitioners from the Membership of BoGs of the said MTI wherein in para-4 it was suggested that the Chief Minister Khyber Pakhtunkhwa had directed for the de-notification of the petitioners from the said position and for the appointment of new members as the Government was inclined for strategic overhauling in the governance to align with the current priorities and to ensure effective management. The said summary was approved by the Worthy Chief Minister and accordingly the impugned Notification was issued.
42. Findings in Writ Petition bearing No. 3055-P/2024: Some of the petitions more particularly petition bearing No. 3055-P/2024 came up for hearing before this Court on 13.06.2024. In the said petition, initially, Notification relating to the convening of the meeting of the Search & Nomination Council was challenged as the petitioners were apprehending their removal from the Members/Chairpersons of the BoGs of the various MTIs. The worthy Advocate General on pre- submission notice appeared before the Court and had stated that so far no adverse action has been passed against the petitioners and had also contended that through Notification dated 21.08.2024 the MTI Tribunal has been established therefore, this Court lacks jurisdiction. However, pre-admission notice was issued to the respondents and as in interim relief, it was directed that the Search & Nomination Council may proceed with the short-listing of the Members for BoGs of the MTIs, however, no final order shall be passed in the matter. When the matter came up for hearing before this Court on 05.07.2024, a C.M bearing No. 1171-P/2024 was filed by the petitioner Dr. Umar Ayub Khan wherein it is alleged that despite the clear order passed by this Court on 13.06.2024, the impugned letter dated 11.06.2024 was issued by the respondents removing the petitioner from the position of Chairman BoGs MTI Khyber Teaching Hospital, Peshawar.
43. It was argued by the learned counsel for the petitioner (s) that when the matter came up for hearing before this Court on 13.06.2024 the worthy Advocate General was present in the Court and he did not disclose to the Court that on 11.06.2024 the petitioner was terminated, hence, the said order dated 11.06.2024 is back dated. Therefore, the respondents were directed to file their comments explaining the aforesaid position. On 05.07.2024, the COC bearing No. 295-P/2024 in WP No. 3055-P/2024 came up for hearing. On the said date, the worthy Advocate General, while explaining his position, had argued that on 13.06.2024 though he appeared before the Court but he was having no instructions from the Provincial Government regarding the passing of the impugned Notification dated 11.06.2024. It was his contention that he was swayed by the Notification dated 20.06.2024, which was appended with the main petition whereby one Taimur Shah was appointed as a Chairman of BoGs MTI Khyber Teaching Hospital, Peshawar. Since he had no knowledge of the Notification dated 11.06.2024, therefore, he could not inform this Court of the true facts of the case.
In this view of the matter, the following directions were issued:-
(i) The process which was initiated against the removal of Dr. Umar Ayub Khan from the position of the Chairman of the Board of Governors till the final order i.e. dated 11.06.2024 whereby he was removed from the ibid position.
(ii) The entire process including all the summaries which have been initiated for the appointment of the new Chairman of the Board of Governors. The complete report of search and nomination committee.
(iii)The summary/working papers or other documents for passing the impugned order dated 20.06.2024.
44. Pursuant to the said directions, the summary of denotification/removal from the Chairperson of the BoGs MTI Khyber Teaching Hospital, Peshawar has been placed on record, which shows that the process of denotification of the petitioner Dr. Umar Ayub Khan was initiated on 17.05.2024. Para-4 of the said summary states that: "The Chief Minister Khyber Pakhtunkhwa has verbally directed the Health Minister to undertake the removal or de-notification of current following members within the Board of Governors (BoG) of MTI-KTH, Peshawar and appoint new members under the MTI Act, 2015. This move suggests a strategic overhaul in governance to align with current priorities and ensure effective management. Such transitions are pivotal in maintaining accountability and driving progress within the healthcare sector, ultimately benefiting public health initiatives and service delivery.
1.Dr. Umar Ayub Khan Chairperson/Member 2.Prof. Dr. Tahir Ali Khan Member 3.Mir Yaqoob Khan Member
45. The summary was approved by the Chief Minister on 22.05.2022 and the notification in question was issued on 11.06.2024. It is further evident from the record provided by the respondents that the meeting of Search & Nomination Council was scheduled for 23.05.2024 and the same was intimated to the concerned through letter dated 22.05.2024. On 23.05.2024 the meeting of Search & Nomination Council for nomination of Members for BoGs MTI HMC, MTI KTH, MTI LRH, MTI PIC, MTI Qazi Hussain Ahmad Medical Complex Nowshera, MTI BKMC Swabi, MTI MMC Mardan, MTI ATHIAMC Abbottabad, MTI KGN Bannu and MTI MMM D.I.Khan were convened. The said meeting was chaired by Syed Qasim Ali Shah Minister Health Khyber Pakhtunkhwa as Chairman Search & Nomination Council and was also attended by five other members. The said minutes of the meeting would show that for various positions, various persons were recommended for appointment. Later, the said appointment was routed through a summary for approval of the Chief Minister and the Chief Minister had approved their appointment on 06.06.2024. The appointment of Members of the said new incumbent are challenged through different constitutional petitions subject matter of the judgment. The petitioners have also placed on file the gazette notification issued on 11.07.2024 whereby the names of the petitioners have been removed from various BoGs of the MTIs and the said notification was subsequently published in the official gazette on 12.07.2024. Therefore, we are not inclined to hold that the impugned notifications have been back dated, however, the worthy Advocate General was not supposed to have made irresponsible statement before the Court.
Being a Principal Law Officer of the Province, he was supposed to appear before the Court after obtaining instructions from the Government. It was such irresponsible statement of the worthy Advocate General which has confused the matter, therefore, the worthy Advocate General, shall in future, while appearing before the Court in any matter shall obtain instructions from the Provincial Government and shall not make a bald statement before the Court without any instructions from the Provincial Government. The objection of the learned counsel for the petitioners that the impugned Notification removing the petitioners from their respective positions of Members/Chairpersons of the BoGs of MTIs being back dated is, thus, overruled.
46. Arguments of Advocate General: Moving on to the merits of the case. The worthy Advocate General has filed a C.M. bearing No. 67- P/2024 seeking transfer of all these cases to the MTI Tribunal established under Section 16-A of the Act, 2015. It is the contention of the worthy Advocate General that the Chairman of the MTI Tribunal was notified/appointed vide Notification dated 21.08.2024 and two Members of the said Tribunal have already been appointed, therefore, on establishment of the said Tribunal, this Court cannot further proceed with these matters.
47. Arguments of Mr. Shumail Ahmed Butt and Mr. Barrister Babar Shahzad Imran Learned Counsels for the Petitioners On the other hand, Mr. Shumail Ahmad Butt and Barrister Babar Shahzad Imran have taken serious exception to the said objection and have argued that despite the functioning of MTI Tribunal, the present matter cannot be transferred to the said Tribunal; firstly; on the ground that the MTI Tribunal is not validly constituted. The Members of the MTI Tribunal were appointed without the consultation of the Chairman of MTI Tribunal, therefore, the said appointments are illegal; and secondly, while referring to subsection (7) of section 5 of the Act, 2015, the learned counsels have argued that removal of the Members/Chairpersons of BoGs can only be challenged before the Tribunal, which is on account of accusation and blame of misconduct and simplicitor removal is not challengable before the Tribunal. Beside, the removal of the petitioners, the petitioners have also questioned the composition of Search & Nomination Council as well as the appointment of new incumbents by the Caretaker Government, therefore, the relief claimed in these petitions cannot otherwise be granted by the Tribunal. On merit, Mr. Shumail Ahmad Butt, Advocate, next contended that the removal of the petitioners from the Board was by the incompetent authority as the Caretaker Government has no mandate to make a policy decision in view of the law laid down by the Apex Court in the case of Khawaja Muhammad Asif[1] and section 230 of the Election Act, 2017. The learned counsels have also maintained that even otherwise the Chief Minister has no absolute authority to remove a Member of the BoGs without due process of law.
48. Arguments of Learned Counsels Representing the petitioners in Category-B cases: The learned counsels representing the petitioners in Category-B cases have argued that the Caretaker Government was competent to have made the appointment as the said appointment was made pursuant to the directions of the ECP through letter dated 22.01.2023, therefore, the process of appointment and termination of the political appointees were initiated, pursuant to the directions of the ECP, under sections 4, 8 of the Election Act, 2017 and Articles 218, 219 & 220 of the Constitution of Islamic Republic of Pakistan, 1973; therefore, their appointment was legal.
49. Arguments heard and record perused.
50. FINDINGS OF THE COURT: From the respective contentions of the parties, the following questions are framed for adjudication of this Court:- i. The jurisdiction of this Court and maintainability of petitions. ii. The interpretation of section 5(3) of the Act, 2015 which envisages that Members of the Board once appointed shall hold the office at the pleasure of Chief Minister and thus can be removed without any notice. iii. The mandate of Caretaker Government to appoint or terminate the Members of the BoGs of the MTIs. i. The jurisdiction of this Court and maintainability of petitions.
51. It was the contention of the worthy Advocate General as well as some of the learned counsels representing the respondents that it is provided under section 5(7) of the Act, 2015 that any members of the Board, who has been removed prior to completion of his terms of three years, may file an appeal in the Appellate Tribunal against the decision of his removal. The jurisdiction of the Tribunal to hear cases arising out of the Act, 2015 has been provided under section 16-A of the Act, 2015. As stated above, it was the contention of Mr. Shumail Ahmad Butt, Advocate that second proviso to subsection (7) of section 5 clearly stipulates that no appeal shall lie to the Tribunal when the appointments of Members of the Board are simply dispensed with, without any accusation or blame of misconduct. He has argued that in all the cases none of the petitioners has been removed from the office on account of misconduct, therefore, it was a simple case of removal/termination from office; therefore, the appeal by the petitioners was not maintainable before the Tribunal. The learned counsel has also referred to the definition of service of Pakistan as provided under Articles 260 and 140 of the Constitution and has argued that since none of the petitioners are in service of Pakistan, therefore, the Tribunal established under section 16-A of the Act, 2015 has no mandate to hear the appeals of the petitioners and in support of his argument he has placed reliance in the case of Muhammad Mubeen-us Slam [2]. His next argument was that the Tribunal has not been validly constituted and it was his objection that the two Members of the Tribunal were appointed without the consultation of its Chairman; hence, no Tribunal is legally functioning.
52. In order to appreciate the arguments of learned counsels for the parties, we would like to reproduce the relevant provision of law germane to the present controversy.
5. Board of Governors.--(1) There shall be a Board of Governor for each Medical Teaching Institution to administer and manage its affairs and shall have overall superintendence and control over the functions and all matters of a Medical Teaching Institution.
(2) The Board of each Medical Teaching Institution shall comprise such number of members as the Chief Minister may determine but not less than three members and not exceeding seven members, all of whom shall be from the private sector.
(3) The members shall be appointed by the Chief Minister on the recommendation of the Search and Nomination Council and they shall hold office for a period of three (03) years or during the pleasure of the Chief Minister whichever is earlier and shall be eligible for re-appointment.
(4) Deleted.
(5) The members (Deleted) may include eminent technical and professional persons in their respective fields having significant aptitude and time available for improving the hospital services, such as, legal, finance and economics, management, medical profession, retired civil servants, educationist, social workers, representative of civil society, businessman, and renowned philanthropist.
(6) The Chairperson shall be selected by the Chief Minister from amongst members of the Board, who shall preside over the meetings of the Board In case of absence of the Chairperson, the meeting of the Board shall be presided over by a member nominated by the Chairperson: Provided that if the Chairperson has not nominated a member, the members present shall elect a member from amongst themself to preside over the meeting
(7) Any member of the Board, who has been removed prior to completion of his term of three (03) years, may file an appeal in the Appellate Tribunal against the decision of his removal: Provided that he shall not act as a member of the Board during the pendency of such appeal.
Provided further that no appeal shall lie in case services of any member of the Board are simply dispensed with, without any accusation or blame of misconduct.
(8) The membership of members (Deleted) shall cease and fall vacant if he resigns, or fails to attend three consecutive meetings without sufficient cause or for any other reasons which incapacitate to remain as member. Any such vacancy shall be filled in within one month.
(9) No person shall be appointed or remain as a member of the Board, if he
(a) is of unsound mind;
(b) has applied to be adjudicated as an insolvent and his application is pending;
(c) is an un-discharged insolvent;
(d) has been convicted by a Court of law for an offence involving moral turpitude;
(e) has been debarred from holding any office under any provisions of law; or 0 has conflict of interest with such position.
16-A. Appellate Tribunal.--(1) Government shall, by notification in official Gazette, establish an Appellate Tribunal to hear appeals under sub-section (7) of section 5 and subsection (8) of section 16 of this Act and other matters related to or arising from the provisions of this Act.
(2) The Appellate Tribunal shall consist of a Chairman and such other members, not exceeding four in number, as the Government may appoint, in such a manner as may be prescribed by rules.
(3) The Chairman and other members of the Appellate Tribunal shall have such qualification and experience of service as may be prescribed by rules.
(4) The Chairman and the other members of the Appellate Tribunal shall be appointed for a term of three (03) years, in such a manner and with such other terms and conditions of service as the Government may prescribe by rules.
(5) The Appellate Tribunal shall have such staff with such terms and conditions of service as the Government may determined and until such staff is appointed, the Health Department, Government of Khyber Pakhtunkhwa shall provide Secretariat support to the Appellate Tribunal.
53. The mandate of the Tribunal has been very explicitly stipulated under section 16-A of the Act, 2015 to hear appeals under subsection (7) of section 5 and subsection (8) of section 16 of the Act, 2015. The perusal of the Act, 2015 would show that the overall administration and management of the affairs of the MTI vests in BoG, which is established under section 5 of the Act, 2015. The next lower tier relating to the management of the Institution/MTI is a Management Committee comprised of Hospital Director, Medical Director, Nursing Director, Finance Director, Deans etc; the power and composition of the said Committee has been provided under section 9A of the Act, 2015; whereas the Board is cloathed with jurisdiction to appoint such persons, experts or consultants in the service of Medical Teaching Institutions. The said mechanism has been provided under section 16 of the Act, 2015. The two categories i.e. Members of the BoGs as well as the persons, who are in service of MTIs, have been explicitly mentioned to file their appeals against any order of any authority relating to their terms & conditions/removal from service before the Appellate Tribunal. The present controversy relates to the jurisdiction of Tribunal to hear the appeal against termination/removal of the Members of the BoGs.
54. The close perusal of subsection (7) of section 5 of the Act, 2015 envisages that any Member of the Board, who has been removed prior to the completion of his terms of three years, may file an appeal in the Appellate Tribunal against the decision of his removal. However, the rider clause i.e. proviso bars the Tribunal to hear any appeal of the Member of the BoGs, who has been removed before the completion of his terms; when the said termination/removal is not on account of any accusation or blame of misconduct; meaning thereby that if a Member of the BoGs is simplicitor removed from the service without accusation or blame of misconduct, he cannot file an appeal before the Tribunal. On this proposition, both set of the learned counsels for the parties have agreed, however, apple of discord was the interpretation of words `accusation or blame of misconduct' as it occurs in second proviso to subsection (7) of Section 5 of the Act, 2015. At this juncture, we note that neither misconduct has been explained or provided under the Act, 2015 nor any mechanism has been provided for removal of a Member/Chairman of the BoGs of the MTIs before the expiration of his period. It is simply provided under subsection (3) of section 5 that the Member of the Board is to be appointed by the Chief Minister on the recommendation of Search & Nomination Council and shall hold office for a period of three years or during the pleasure of the Chief Minister whichever is earlier. It is not provided under the Act, 2015 that what would be the grounds of misconduct and how the said misconduct would be examined/inquired? However, the ineligibility to hold the position of the Member of BoGs has been provided under subsection (9) of section 5 which envisages that no person shall be appointed or shall remain as a member of the Board; if he is of unsound mind, adjudged insolvent, undischarged insolvent, convicted by court of law for offence of moral turpitude, and has a conflict of interest with such position. Though it is not provided under the Act, 2015 but it appears that a Member of BoGs can be removed when he faces any disqualification under subsection (9) of section 5 of the Act, 2015. We have perused the removal orders of all the petitioners; the only assertions which contained in the summary initiated for their removal in Category-A are that they had a political background and it was the instructions of the ECP that any persons, who have been appointed as Head of the public office/Department having politically background, should be removed from the office. In Category-B, the assertions are that since the petitioners were appointed by the Caretaker Government and the Caretaker Government had no mandate to make such appointment for longer term, beside, the present Government wanted to make appointment against the said position, who are aligned with the policies of the present Government. It was the opinion of the Worthy Advocate General and some of the learned counsels that the said reasons, as stated above, amount to accusation or blame of misconduct; therefore, their termination falls within the meaning of accusation or blame of misconduct and the appropriate remedy for the petitioners was to approach the Tribunal under section 16-A ibid. We have minutely perused the Act, 2015, however, except subsection (9) of section 5 neither the mechanism nor the event of removal of any Member of the BoGs has been provided under the Act, 2015. We have also perused the definitions of accusation or blame of misconduct in various Dictionaries. The same is reproduced as under:- Black's Law Dictionary Ninth Edition.
"Accusation" means 1. A formal charge of criminal wrongdoing.
2. A statement that a person has engaged in an illegal or immoral act.
"Blame" means 1. An act of attributing fault; an expression of disapproval.
2. Responsibility for something wrong.
Misconduct" means A dereliction of duty; unlawful or improper behavior.
Concise Oxford English Dictionary.
"Accusation" means a charge or claim that someone has done something illegal or wrong.
"Blame" means assign responsibility for a fault or wrong to.
Responsibility for a fault or wrong.
"Misconduct" means 1. Unacceptable or improper behavior.
2. mismanagement.
Webster's New Explorer Encyclopedic Dictionary.
"Accusation" means 1: the act of accusing: the state or fact of being accused 2: a charge of wrongdoing "Blame" means 1. An expression of disapproval or reproach: CENSURE 2a: a state of being blameworthy: CULPABILITY b archaic: FAULT, SIN "Misconduct" means 1: mismanagement especially of governmental or military responsibilities 2: intentional wrongdoing; specifically: deliberate violation of a law or standard especially by a government official: MALFEASANCE 3: a improper behavior b: ADULTERY According to The Australian Oxford Dictionary.
"Accusation" means 1. The act or process of accusing or being accused.
2. A statement charging a person with an offence or crime.
"Blame" means 1. Responsibility for a bad result; culpability
2. the act of blaming or attributing responsibility; censure.
"Misconduct" means 1. Improper or unprofessional behavior. 2. bad management.
55. In view of the above, the phrase 'the removal on account of accusation or blame of misconduct' pre-supposes that there has been a solid and concrete accusation against any Member of the BoGs relating to his improper behaviour, bad management, warranting any inquiry or investigation for their removal. As stated above, no such allegations are mentioned in the impugned removal orders of all the petitioners. Thus, it appears that it was the simplicitor removal of the petitioners from the Chairperson/Membership of the BoGs as evident from the two summaries initiated for their removal; one before the Caretaker Government and second before the subsequent elected Government. It would be important to note that the worthy Advocate General as well as the learned counsel Mr. Muhammad Yasir Khattak, Advocate representing the HMC have argued that the said proviso would be triggered only when a Member of the BoGs is simply dispensed with from service whereas in the present cases all the petitioners were removed from service, however, we do not tend to agree with the said assertions as the word 'dispensed with and removal' in the present cases are interchangeable words. The inference from perusal of subsection (7) of section 5 is that when a Member of the BoGs is simply removed from his position then in view of the second proviso to subsection (7) of section 5, he cannot maintain appeal before the Appellate Tribunal, therefore, these petitions are maintainable.
56. During the proceedings, initially, a confusion was created regarding the relevant rules. The worthy Advocate General at the initial stage had produced the Khyber Pakhtunkhwa Medical Teaching Institutions Appellate Tribunal Rules, 2020 notified through Notification dated 4th September, 2020, rule-3 whereof envisages for composition of the Appellate Tribunal in the following manner:
3. Composition of the Appellate Tribunal.--(1) The Appellate Tribunal shall consist of the following, namely:
(a) a Chairman, who shall be a retired Judge of the High Court; and
(b) four members out of whom
(i) two shall be from amongst the in-service or retired District and Sessions Judges or advocates with fifteen years practice at the Bar: Provided that in case of appointment of in-service District and Sessions Judge as member, consultation shall be made with the Chief Justice Peshawar High Court; and
(ii) two retired professors from any disciplines of medicine or surgery with five years experience on senior managerial positions in public health administration or hospital management.
(2) The Chairman and members of the Appellate Tribunal shall be domicile holders and bona fide residents of the Khyber Pakhtunkhwa Province.
(3) The upper age limit for the Chairman and members of the Appellate Tribunal shall be sixty five years.
Whereas M/s Shumail Ahmad Butt and Aamir Javed, Advocates have produced the Khyber Pakhtunkhwa Medical Teaching Institutions Appellate Tribunal Rules, 2020 notified through Notification dated 4th September, 2020, rule-3 whereof provides the composition of the Tribunal in the following manner:
3. Composition of the Appellate Tribunal.--(1) The Appellate Tribunal shall consist of the following, namely:
(a) a Chairman, who shall be a retired Judge of the High Court, to be appointed by Government in consultation with the Chief Justice, Peshawar High Court; and;
(b) two members to be appointed in consultation with the Chairman from amongst the retired District and Sessions Judges or lawyers with at least fifteen years practice at the Bar as Advocates of the High Court, who shall have no conflict of interest with the position as members.
2) The Chairman and members of the Appellate Tribunal shall be domicile holders and bona fide residents of the Khyber Pakhtunkhwa Province.
(3) The upper age limit for the Chairman shall be sixty eight (68) years, whereas for the members, the upper age limit shall be sixty five (65) years.
57. On the last date of hearing, the worthy Additional Advocate General, present in the Court, was asked to consult the relevant department. Today, the worthy Additional Advocate General has conceded that the set of rules provided by M/s Shumail Ahmad Butt & Aamir Javed, Advocates, are indeed the true copy of the latest rules on the subject, however, inadvertently, the department had sent for publication in official Gazette the unamended set of rules and today the department has sent for publication the amended version of the rules. It was the contention of the learned counsels for the petitioners that since two members of the Tribunal were appointed prior to the appointment of the Chairman, which is contrary to the rules, therefore, the Tribunal is not legally functioning.
However, we will abstain ourselves from rendering any opinion on the said point for two reasons; firstly, that the appointment of the said Members has not been challenged before us; and secondly, we have already decided above that in view of the language of subsection (7) of section 5 of the Act, 2015 the petitioners cannot file appeal before the Tribunal; therefore, any such finding without hearing the said Members would be only an academic exercise. Similarly, we would also abstain ourselves from deciding the status of Tribunal in terms of Article 212 of the Constitution, the judgments passed by the Apex Court in the cases of Muhammad Mubeen-us-Slam [3], Dean/Chief Executive Gomal Medical College[4] and Syed Asghar Ali Shahs[5] Let these issues be deferred for adjudication in some other proceedings. ii. The interpretation of section 5(3) of the Act, 2015 which envisages that Members of the Board once appointed shall hold the office at the pleasure of Chief Minister and thus can be removed without any notice.
58. It was the main argument of worthy Advocate General that since the Members of the BoGs are appointed by the Chief Minister and they hold office during the pleasure of the Chief Minister; therefore, the Chief Minister has the absolute authority to remove any Member of the BoGs without any reasons. However, we do not tend to agree with the said assertions of the worthy Advocate General. For ease of reference, subsection (3) of section 5 is reproduced as under:
5. Board of Governors.--(1) .....................
(3) The members shall be appointed by the Chief Minister on the recommendation of the Search and Nomination Council and they shall hold office for a period of three (03) years or during the pleasure of the Chief Minister whichever is earlier and shall be eligible for re-appointment.
59. At this juncture, it is imperative to briefly expound on the 'doctrine of pleasure', which, regrettably, is still employed by many current laws. This doctrine is the vestiges, the last remnants, of colonial subjugation that still affects the citizens of ex-colonies. Justice Fazal Karim in his seminal work Judicial Review of Public Actions aptly refers to it as slavish lifting from the Government of India Act. Pakistan, despite being a democratic polity with a written constitution, has many laws in which this colonial prerogative of pleasure has still been retained, at least in words. However, constitutional courts, in view of the scope of executive authority as envisaged by the Constitution, has invested the term 'in the pleasure' with meaning in congruence with the rule of law, as contrasted with rule of men. In multiple rulings by the courts, the term has been so consistently described as exercise of lawful authority to promote public interest, as contrasted with wishful discretion of an absolute monarch, that now pleasure denotes that of the law and public interest, rather than of an individual.
60. In order to provide a better perspective on the doctrine it seems useful to trace back its evolution in the rulings of the courts. Undoubtedly, the widest berth on the matter is to be given to the case of Muhammad Yasin[6]. In this case, the process of appointment of Chairman OGRA came under contest before the apex court. The court, although conceded the executive's mandate in making the appointment, but it also spelt out the legal contours of 'pleasure doctrine' and in an elaborate examination of the subject, held that 'pleasure' as used in a democratic polity is farthest thing for its counterpart in absolute monarchies. The relevant para of the said judgment reads as under: The power to make appointments in bodies such as OGRA is, by and large, the province of the Executive. Ordinarily, courts do not go into a detailed scrutiny of such matters. They defer to the Executive's discretion in the exercise of this power, if the commands of the Legislature have been complied with. However, the Court's deference, to the Executive authority will last for only as long as the Executive makes a manifest and demonstrable effort to comply with and remain within the legal limits which circumscribe its power.'
The Apex Court, then, proceeded to examine the doctrine of pleasure by briefly relating its history, and then noting down its current import. `It is to be noted that even where appointments are to be made in the exercise of discretionary powers, it has become well settled that such powers are to be employed in a reasonable manner and the exercise of such powers can be judicially reviewed. In the Corruption of Hail Arrangements' case (Suo Moto Case No.24 of 2010) and in the case of Tariq Aziz-ud-Din (2010 SCMR 1301), it has been held that appointing authorities "cannot be allowed to exercise discretion at their whims, sweet will or in an arbitrary manner; rather, they are bound to act fairly, evenly and justly". There is an obligation thus imposed on the Executive to make appointments based on a process which is manifestly and demonstrably fair even if the law may not expressly impose such duty. In the Hajj corruption case supra, the Court has again clarified this point saying that "[b]y now, the parameters of the Court's power of judicial review of administrative or executive action or decision and the grounds on which the Court can interfere with the same are well settled.
Indisputably, if the action or decision . . . has been arrived at by the authority misdirecting itself by adopting a wrong approach or has been influenced by irrelevant or extraneous matters, the Court would be justified in interfering with the same".
31. Much before these declarations by legislatures and courts, we find exhortations to this effect in the common sense insights to be found in diverse systems and eras in history. We thus have in the classical texts of the Greek ancients, and the writings of those such as Sheikh Saadi, wherein the deleterious consequences of nepotism and cronyism in administrative appointments have been highlighted. Amongst other sources, one finds reference to this in the "Qaboos Namah", a book that Ameer Unsur Ma' ali Kaikaus wrote in the 11th century A.D. for the instruction of princes, including his son Gilan Shah, in the art of good governance. The Ameer cautioned that when "appointing officers to responsible positions, act carefully and grant positions only to those who are qualified for the duties entailed in that job; and also, beware that when an ignoramus who is not up to the assigned task gets appointed, he will never frankly concede his lack of ability to you; instead, to hide his lack of worth, he will boldly embark upon task after task, and make a mess of it all". [Kaikaus, The Book of Qaboos, page 206-7; Tehran (1963)]. And in a similar vein, warning against the hazards of turning public offices into sinecures, he advises that "if at all you wish to bestow favours upon someone, give him valuable gifts; do not, however, confer on him a high office for which he does not possess the requisite competence". [Kaikaus, The Book of Qaboos, page 207; Tehran (1963)]. We also find mention of some very pertinent principles in this regard in Nizamul Mulk Toosi's "Siyasat Namah", also written in the 11th century, which displays an uncanny cognizance of the evils of nepotism which seem eternally to haunt the corridors of high power even in this day and age. He emphasizes that "the ruler should make sure that he does not award public office to his cronies (merely on the basis of their friendship with him) . . . for such arrangements can give rise to many an evil". [Toosi, The Book of Government, p. 120; Tehran (1994)] The modern day discourse on good governance, whether in the law or in Courts, is only an expression of these universal principles.
In the present case involving the respondent's appointment as Chairman OGRA, the law has travelled a great distance from the times of an absolute monarch or the time when the people of Pakistan were subject to colonial rule. Instead, it has come closer to the ethos of responsible governance, which was envisioned in the sage and ever-lasting wisdom adverted to above. Thus, we now have the express stipulation in the Ordinance which requires, firstly, that OGRA "shall be independent in the performance of its functions" and that "the Chairman shall be an eminent professional of known integrity and competence. '
On similar line, the Apex Court in the case of Ghazanfar Ali Khan[7] made some very apt remarks on the subject. Quoting from Corruption in Hajj Arrangements' case (PLD 2011 SC 963), the Apex Court recorded the following:-- "The discretionary powers vesting in an authority are to be exercised judiciously and in reasonable manner. In the case of Tariq Aziz-ud-Din: in re (2010 SCMR 1301), it has been held that the authorities cannot be allowed to exercise discretion at their whims, sweet will or in an arbitrary manner; rather they are bound to act fairly, evenly and justly. Reference may also be made to the cases of Abid Hussain v. PIAC [2005 PLC (C.S.) 1117], Abu Bakar Siddique v. Collector of Customs (2006 SCMR 705), Walayat Ali v. PIAC (1995 SCMR 650). It is an unwritten rule of the law, constitutional and administrative, that whenever a decision-making function is entrusted to the subjective satisfaction of a statutory functionary, there is an implicit obligation to apply his mind to pertinent and proximate matters only, eschewing the irrelevant and the remote. [Smt. Shalini Soni v. Union of India [(1980) 4 SCC 544)]."
It further observed: `Thus the doctrine of pleasure cannot now be interpreted to confer a power of appointment that is exercisable by government arbitrarily or whimsically. In one sense the judgment in Muhammad Yasin's case has protected the Rules that specify carefully the criteria of transparency and merit for appointment to senior management posts in public sector companies. '
The matter was again taken up by the Islamabad High Court in the case of Babar Sattar[8]. The Court drawing wisdom from the cases of Muhammad Yasin, and Ghazanfar Ali held as follows: `Section 183 of the Companies Ordinance, 1984 provides that in the case of companies enumerated therein, the Federal Government has the power to nominate Directors on the Board of Directors. The second proviso provides that a director nominated under this section shall hold office during the pleasure of the corporation, company, Government or Commission which nominates them. The Federal Government construes these provisions as conferring absolute, unbridled and unfettered power to nominate or remove Directors in the case of the NTDCL. The exercise of discretion by organs of the State, particularly governments, is by now circumscribed by well settled principles enunciated by the superior Courts. The doctrine of pleasure has almost become redundant and the concept of absolute, unfettered or unguided exercise of discretion by public authorities is treated as alien to the essence of rule of law. '
61. Clearly, the concept of the doctrine as expounded by constitutional courts above, mandates a judicious and lawful application of the doctrine in congruence with rule of law and public interests.
It does not in any manner empower the executive to do as it pleases in appointing or removing persons to key posts in public offices.
62. In view of the above, we hold that the worthy Chief Minister has no authority to remove any Member or Chairman of the BoGs without due process of law and any such removal without a prior show cause notice and an opportunity of hearing would, thus, be nullity in the eyes of law. Reliance is placed on the cases of Habib Bank Limited vs. Ghulam Mustafa Khairati (2008 SCMR 1516), Mrs. Aneesa Rehman vs. PIAC (1994 SCMR 2232), Dr. Shoukat Pervez vs. Federation of Pakistan through Secretary Establishment Division, Islamabad and another (2011 PLC (C.S) 26, Imran Hussain vs. Water and Poer Development Authority through Chairman WAPDA and 4 others (2011 PLC (C.S) 116), Mufti Muhammad Sharif Sarki vs. Province of Sindh through Secretary, Government of Sindh, Auqaf, Religious, Minorities Affairs, Zakat and Ushr Department and 3 others (PLD 2009 Karachi 203). i. The mandate of Caretaker Government to appoint or terminate the Members of the BoGs of the MTIs.
63. In Pakistan, instead of the elected government stepping into 'caretaker modus' once its term is complete, as is the norm around the world, non-elected officials are appointed to form an interim caretaker government to oversee matters.
64. The caretaker cabinet in Pakistan has sole mandate to create a conducive environment for free and fair elections in the country. Apart from that, the caretaker government is also responsible for executing the routine functions of the government and to ensure that affairs of the Government does not come to a standstill in the time between the dissolution of parliament and a new government being sworn in. Upon completion of the term of the assembly or its dissolution earlier, a care taker set-up is established through consultation among government, opposition and the election commission.
Purpose and Functions of Care-taker Setup:
65. Article 224 and 224A of the Constitution essentially provide the process for appointment of care-taker governments; whereas its functions are defined in Chapter-XIV of the Elections Act, 2017, which reads as under:- (I). A caretaker Government shall:
(a) perform its functions to attend to day-to-day matters which are necessary to run the affairs of the Government;
(b) assist the Commission to hold elections in accordance with law;
(c) restrict itself to activities that are of routine, non-controversial and urgent, in the public interest and reversible by the future Government elected after the elections; and
(d) be impartial to every person and political party.
(2). The caretaker Government shall not:
(a) take major policy decisions except on urgent matters;
(b) take any decision or make a policy that may have effect or pre-empt the exercise of authority by the future elected Government;
(c) enter into major contract or undertaking if it is detrimental to public interest;
(d) enter into major international negotiation with any foreign country or international agency or sign or ratify anyany international binding instrument except in an exceptional case;
(e) make promotions or major appointments of public officials but may make acting or short term appointments in public interest;
(f) transfer public officials unless it is considered expedient and after approval of the Commission; and
(g) attempt to influence the elections or do or cause to be done anything which may, in any manner, influence or adversely affect the free and fair elections.
66. The cumulative effect of the law stated above is that it describes the role and functions of the caretaker setup mostly in the negative, by enlisting the functions it is not authorized to perform.
Clearly, the legislature meant a minimal role for the administration i.e. to assist elections in the conduct of elections, and, in the meanwhile, to look after routine works.
67. After investing the government with a few positive functions, the section proceeds to prohibit a range of acts i.e. shall not take major policy decisions, enter into major contract, make promotions or major appointments, transfer public officials unless it is considered expedient etc. Even by a bare reading of the section, the tentative inference is inevitable that by removing current incumbents and appointing new persons to the MTI BoGs, the care-taker government has stepped outside its domain.
Views from the Court(s):
68. Now we shall advert to the view of the courts on the function and scope of authority of care- taker setup. While surveying the jurisprudence developed by the apex court on question, it seems apt to begin with Khawaja Muhammad Asif's case (supra). This judgment probably the most comprehensive treatment of the subject. The worthy court after surveying through previous rulings of the court and foreign jurisdictions summed up its view on the scope of authority of care-taker setup as follows: `18. The crux of the above case-law and conventions/guidelines is that the Caretaker Government/Cabinet has to confine itself to the running of the day-to-day administration of the State. Indeed, it may take decisions required for ordinary orderly running of the state, but decisions having far-reaching effects should only be taken in extraordinary circumstances, like in war, earthquake, floods, etc. Although there may not be any express restriction on the powers of the caretaker government by the Constitution itself but a major policy-decision which can await the formation of regularly elected Government without causing any disruption or danger to the functioning of the State or orderly running of the country should be left to be determined by the elected government. Thus, there can be no two opinions that the caretaker government has to exercise the powers for a limited purpose as it has been highlighted hereinabove, namely, relating to the elections and not to make fresh appointments of the civil servants or make appointments of the heads of the Autonomous, Semi-Autonomous Bodies, Corporations, Regulatory Authorities, etc., appointments on contract basis or allowing deputation or promotion to the civil servants without realizing the scope of their efficacy to share higher responsibilities to run the affairs of the Government'.
The apex court was again faced with the same matter in the case of Naimatullah[9] by relying on the findings in Khawaja Muhammad Asif's case and concluded that: There is another grievance of the appellant that they were sacked by the Caretaker Government, which was having a limited mandate to organize, arrange and hold general elections. Of course they may perform day to day affairs of the Government, which are essential for the performance of duties for their institutions, however, in view of the law laid down in the case of Khawaja Muhammad Asif v. Federation of Pakistan (2013 SCMR 1205) the view was held to the effect that except in extraordinary circumstances the Caretaker Government/Cabinet had to confine itself to run day to day administration of the State and to take decisions, required for orderly running of the affairs of the State but the decisions, having far reaching effects should only be taken by the elected government, having the mandate to perform extraordinary functions of achieving the most noble object i.e. the welfare of the people, for which purpose it is being chosen. This plea of the appellants sounds highly reasonable and being based on principles cannot be ignored.
Recently, in the case of Abdul Rauf[10], the apex court once again ruled on the functions and scope of the Care taker Government, which reads as under: `7. There is no denial of the fact that the process of recruitment may have been initiated by way of publication of advertisement before the Caretaker Government was put in place. However, all material steps including processing of applications, tests (if any) interviews (if any) and recommendations by the Recruitment Committee were taken during the Caretaker Government and the elected Government was practically presented with a fait accompli. The mandate of a Caretaker Government is to hold the mantle in the interregnum when the term of the sitting Government has expired and the new Government is yet to take charge, A caretaker Government is empowered only to carry out day to day affairs of the State with the help of available machinery/resources/ manpower. It cannot take policy decisions and permanent measures including recruitments, making appointments, transfers and postings of Government Servants. It must leave such matters to the elected Government which takes charge as a result of elections. it was in this context that in a case reported. as Khawaja Muhammad Asif v. Federation of Pakistan and others (supra) held that a Caretaker Government/Cabinet has to confine itself to running day to day administration of the State and to take decisions required for orderly running the affairs of the State. However, decisions having far reaching consequences should only be taken by the elected government having the mandate to perform such functions as are required of it in exercise of powers conferred by the Constitution. The above principle was reiterated in a later judgment of this Court reported in the case Nemat Ullah and others v. Chairman Governing Body, Worker Welfare Board/ Secretary to Government of KPK, Labour Department and others (2016 SCMR 1299). '
The question engaged the attention of Lahore High Court in the case of Public Interest Law Association of Pakistan[11]. The worthy court extended an elaborate treatment to the matter and recorded as follows: The concept of 'caretaker government' connotes that it is installed for an interim or interregnum period when an elected or legitimate government is not in place to achieve two fold objectives, that is, to provide continuity to the business of the State and ensure neutrality to all political stakeholders who may contest the elections to form a future government. 'Caretaker government' is defined as a government that is in power temporarily until an election is held42. Similarly, another definition describes 'caretaker government' as a temporary government commissioned by the Governor General or a State Governor, usually for a short period, until a stable government can be formed". Therefore, it follows that a caretaker government is generally established during the time of uncertainty when either an elected or legitimate or stable government, for any reason, is not in place. By its inherent nature, it is temporary in character to be replaced with an elected or legitimate or stable government. Thus, it is generally well established that there are limitations and restrictions with respect to any caretaker government in terms of its powers, functions and duties. Normal rule is that a caretaker government limits itself to routine business of the State and in principle, must refrain from making policy decisions.
113. The concept of 'caretaker government' in Pakistan is rooted in Articles 224 and 224-A of the Constitution which entails that upon dissolution of the National Assembly or a Provincial Assembly, as the case may be, on completion of their term, or in case, they are dissolved earlier in accordance with the Constitution, the President or the Governor, as the case may be, shall appoint a caretaker Cabinet. The explicit reason of installing and providing for a caretaker Cabinet is to fill the vacuum created due to absence of an elected government during the limited or interregnum period when the National Assembly or any Provincial Assembly is dissolved due to completion of its term or is earlier dissolved in accordance with other provisions of the Constitution. Needless to state, that the Constitution does not envisage any period when an elected government is not in place in the country or in any Province except due to expiry of term or where any of them stand dissolved in accordance with the Constitution. Therefore, the `caretaker government' under Articles 224 and 224-A of the Constitution is meant only for an interregnum period of elections in accordance with the Constitution primarily as a neutral set-up to the political stakeholders taking part in the elections and to provide for continuity to the business of the State during the interregnum period.'
69. The foregone clearly settles the point that the care-taker government has very limited role and function, that is to govern during the transition between one elected government and another. It must also be borne in mind that this idea of 'care-taker' government is alien to most of developed and functioning democracies in the world. With such backdrop, it is natural that only such decisions and actions are lawfully permitted to it ensures that governance continues while new elections take place.
70. In the present case, the Caretaker Government has removed the Members/Chairpersons of BoGs and it is claimed that the said removal was made pursuant to the directions of ECP and in this regard, they have placed reliance on Notification dated 22nd January, 2023, however, at the time of such Notification, the schedule of Election was not announced and it is settled law that effective role of ECP starts when the date for commencement of Election is announced. This Court has already held in the case of Hafeez ur Rehman[12] that indeed, it is the Constitution itself that has conferred such a responsibility on the Election Commission of Pakistan, whereas the Election Act has been enacted further regulating the duties and functions of the Election Commission of Pakistan so that the mandate of the Election Commission in respect of fair election is achieved through a structured mechanism. The close perusal of the Election Act, more particularly Chapter- X empowers the Election Commission of Pakistan to take necessary penal actions as and when required in the circumstances of particular case when any officer of the Election Commission of Pakistan, Provincial Government or even a private person hampers or disturbs the smooth process of election, the said penal act can be resorted to nevertheless preventive measures can also be adopted to guard against any corrupt practices during the process of election i.e., that commences from the day when the election program is announced.[13] Supreme Court of India in the case of Ashok Kumar v. Election Commission of India (2000) 8 SCC 216[14] has explained the term election as "the term 'election' as occurring in Article 329 has been held to mean and include the entire process from the issue of the Notification under Section 14 of the Representation of the People Act, 1951 to the declaration of the result under Section 66 of the Act."
71. Having discussed and answered the legal questions framed for adjudication let us proceed to the merit of the case.
72. In Category-A's cases, mentioned above, some of the petitioners were appointed on 2nd April, 2021 and majority of the petitioners were appointed in the year, 2022. The petitioners had, thus, to complete their term of three years in April, 2024 or by August, 2025. Needless to mention, as stated above, that some of the petitioners have also been reappointed by the Provincial Government as Member of BoGs, therefore, they are no more interested to pursue these petitions. However, it is clear from the record that their removal by the Caretaker Government, as we have held above, are illegal and without lawful authority, therefore, the said orders of their removal, as mentioned in the preceding paras, are obviously without lawful authority; therefore, are not sustainable in the eyes of law. All such orders, are, accordingly, set aside. However, since a good number of petitioners have either completed their term or have been reappointed, therefore, we would like to refer the matter relating to other petitioners, who have not been reappointed and their term of appointment are to expire shortly in the next year, therefore, their cases are sent to the Chief Minister for appropriate order.
73. Moving on to the cases falling within Category-B. In this category, the petitioners were obviously appointed by the Caretaker Government. As we have held above that the Caretaker Government had no mandate either to make any policy decision or to make appointment against public offices for a longer period so as to embarrass the new elected Government, therefore, their appointments cannot be approved. We have held above, that the Chief Minister has no authority to remove any Members of BoGs under section 5 (3) of the Act, 2015 without due process of law and in the present cases, the petitioners were removed/dispensed with from their position without adopting due process of law, however, we are not inclined to interfere in the matter in view of the law laid down by the Apex Court in the case of Nawab Syed Raunaq Ali[15] wherein it was observed that: "As order in the nature of a writ of certiorari or mandamus is a discretionary order. Its object is to foster justice and right a wrong. Therefore, before a person can be permitted to invoke order sought to be set aside had occasioned some injustice to the parties. If it does not work any injustice to any party, rather it cures a manifest illegality, then the extraordinary jurisdiction ought not to be allowed to be invoked".
Therefore, the petitions falling in Category-B are hereby dismissed.
74. Moving on to Category-C cases. In this category, the petitioners, who are four in number, were appointed as a Member of BoGs MTI Qazi Hussain Ahmad Medical Complex, Nowshera vide Notification dated 25.05.2022 by the elected Government. The petitioners were removed by the elected Government through Notification dated 11.06.2024. We have perused the summary for their removal to the Chief Minister. The said summary would show that it is mentioned in para-4 of the said summary that there has been a move on behalf of the Provincial Government a strategic overhaul in governance to align with current priorities and ensure effective management. The said summary is in line with the summary whereby the appointments made by the Caretaker Government were set aside/removed, therefore, it appears that the Chief Minister, while exercising his authority allowing their removal, has not applied his independent mind to their appointments.
Therefore, the case of the petitioners is also sent to the Chief Minister for consideration afresh.
75. Thus, the cases fall in Category-A & C are disposed of in the above terms whereas the cases fall in Category-B are dismissed along with COCs and Review Petition.
Similarly, the case of petitioners Kashif Ali Shah etc has been sent to the Chief Minister for consideration afresh, therefore, their COC has become infructuous; disposed of as such; whereas the CM/TA No. 67-P/2024 filed by the State through Advocate General is dismissed.
Annexure "A"
S. No.Case Title 1 WP No. 4443-P/2024 "Akhtar Naveed vs. Govt. of KP etc".
2.. WP No. 3090-P/2024 "Kashif Ali Shah and others vs. Govt. of KP etc".
3. WP No. 3051-P/2024 "Dr. Muhammad Ali vs. Govt. of KP and others".
4 WP No. 3138-P/2024 "Prof Dr. Mohammad Jahangir Khan vs. Govt. of KP and others".
5. WP No. 3139-P/2024 "Dr. Muhammad Zubair Khan vs. Govt. of KP etc".
6. WP No. 5983-P/2023 "Dr. Saeedullah Shah and another vs. Govt. of KP and others".
7. WP No. 5984-P/2023 "Maj. Gen (Rtd) Muhammad Salahuddin Qasim etc vs. Govt. of KP and others".
8. WP No. 5956-P/2023 "Muhammad Arshad and others vs. Govt. of KP through Chief Secretary and others".
9. WP No. 3055-P/2024 "Dr. Umar Ayub Khan vs. Govt. of KP and others".
10. WP No. 3054-P/2024 "Dr. Habib ur Rehman vs. Govt. of KP and others".
11. WP No. 5957-P/2023 "Sahibzada Saeed and others vs. Govt. of KP through Chief Secretary and others ".
12. WP No. 3406-P/2024 "Prof Dr. Tahir Ali Khan and others vs. Govt. of KP and others".
13. COC No. 295-P/2024 "Dr. Umar Ayub Khan vs. Ali Amin Khan Gandapur".
14. COC No. 298-P/2024 "Prof Dr. Aftab Rabbani and others vs. Mahmood Aslam Chaudhry and others".
15. COC No. 299-P/2024 "Kashif Ali Shah and others vs. Ali Amin Gandapur".
16. WP No. 234-P/2024 "Malik Mushtaq Ahmad Dar and others vs. Govt. of KP through Chief Secretary and others".
17. COC No. 296-P/2024 "Dr. Muhammad Ali Chauhan vs. Govt. of KP and others".
18. Review Petition No. 101-P/2024 "Dr. Muhammad Ali Chauhan vs. Govt. of KPK and others".
19. WP No. 3065-P/2024 "Prof Dr. Aftab Rabbani and others vs. Govt. of KP and others".
20. COC No. 418/2024 "Abdur Rauf Khan and others vs. Adeel Shah and others".
21. WP No. 310-P/2024 "Abdur Rauf Khan and others vs. Govt. of KP through Chief Secretary and others".
22. CM/TA No. 67-P/2024 "State through Advocate General vs. Dr. Muhammad Ali and others".
1. Khawaja Muhammad Asif vs. Federation of Pakistan etc (2013 SCMR 1205)
2. Muhammad Mubeen-us-Slam and another vs. Federation of Pakistan and others (PLD 2006 SC 602)
3. Muhammad Mubeen-us-Slam and another vs. Federation of Pakistan and others (PLD 2006 SC 602).
4. Dean/Chief Executive, Gomal Medical College, Medical Teaching Institution, D.I.Khan vs. Muhammad Armaghan Khan and others (PLD 2023 Supreme court 190).
5. Syed Asghar Ali Shah and another vs. Kaleem Arshad and others (2024 SCMR 563).
6. Muhammad Yasin vs. Federation of Pakistan through Secretary, Establishment Division, Islamabad and others (PLD 2012 SC 132).
7. Ghazanfar Ali Khan and others vs. Federation of Pakistan (2014 CLD 664).
8. Babar Sattar vs. Federation of Pakistan through Secretary Ministry of Water and Power and 4 others (2016 CLD 134)
9. Naimat Ullah Vs. Chairman Governing Body (2016 SCMR 1299)
10. Government of Balochistan Vs. Abdul Rauf PLD (2021 SC 313)
11. Public Interest Law Association of Pakistan Vs. Federation of Pakistan (2023 CLC 1535).
12. Hafeez ur Rehman vs. Chief Election Commission through Secretary, Election Commission of Pakistan, Islamabad and 2 others (PLD 2024 Peshawar 1).
13. Election Commission of Pakistan v. Javaid Hashmi and others (PLD 1989 SC 396)
14. Election Commission of India through Secretary v. Ashok Kumar and others (AIR 2000 SC 2979).
15. Nawab Syed Raunaq Ali etc vs. Chief Settlement Commissioner and others (PLD 1973 Supreme Court 236)