By way of this single order, I intend to decide the above captioned two (02) writ petitions having common question of law and facts against impugned notifications dated 03.11.2023, 08.11.2023 and 13.12.2023, issued by the Ministry of National Health Services, Regulations and Coordination ("Ministry of NHSR&C"), whereby Jawad Amin Khan/petitioner was de-notified as the President and Shahid Hussain/petitioner was de-notified as Vice President of the Pakistan Nursing and Midwifery Council ("PN&MC"), respectively.
02. Both the writ petitions filed under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, with the following prayers; W.P. No. 2509/2024: "In the above mentioned circumstances, it is therefore respectfully prayed as following; a. That the Powers exercised by Respondent No. 4 being a Caretaker Prime Minister to de-notify the Petitioner as "President", Pakistan Nursing & Mid-Wife Council vide impugned notification dated 03.11.2023 is based on mala fide and in violation of fundamental rights of the petitoner enshrined in article 3, 4, 10-A, 25 & 27 of Constitution of Islamic Republic of Pakistan and also in violation of Section 3 (B) of the Pakistan Nursing Council (Amended) Act, 2023 and without any lawful authority, reasons, Justification and beyond the scope of Powers, therefore, the same may kindly be declared as illegal, unlawful, unjust, null & void, without lawful authority having no legal effect upon the rights of the Petitioner and beyond the mandate, scope and Authority of the Constitution of Pakistan, 1973 and Legislation make thereunder. b. It is further prayed that the entire proceedings including appointment of the Respondent No. 5 initiated by the respondents subsequent to the impugned notification dated 03.11.2023 of the Petitioner, the impugned notification of Respondent No. 5 dated 13.12.2023 appointing her as president may also be declared null and void having no legal effect upon the rights of the Petitioner being coram non judice and all the acts performed by her during this time may be declared as void ab initio having no legal effect. c. The impugned notification dated 03.11.2023 may kindly be recalled/set aside, so that the fundamental rights of the petitioner as guaranteed by the Constitution of Islamic Republic of Pakistan and reiterated in the Judgment reported as PLD 2013 SC 195 be restored in true letter and spirit. d. The Respondents may be directed to notify the Petitioner as "President" of Pakistan Nursing & Mid-Wife Council and be restrained to interfere in the working of the Petitioner as President till the statuary tenure of the post. e. Any other relief which this Honourable Court may deem fit under the facts and circumstances of the case may also be awarded.
W.P. No. 3684 of 2023.
"In the above mentioned circumstances, it is therefore respectfully prayed as following; a. That the Powers exercised by respondent No. 1 being a Caretaker Prime Minister to de-notify the Petitioner as "Vice President", Pakistan Nursing & Mid-Wife Council vide impugned notification dated 08.11.2023 is based on mala fide and in violation of fundamental rights of the petitioner enshrined in article 3, 4, 10-A, 25 & 27 of Constitution of Islamic Republic of Pakistan and also in violation of Section 3 (B) of the Pakistan Nursing Council (Amended) Act, 2023 and without any lawful authority, reasons, Justification and beyond the scope of Powers.
Therefore, the same may kindly be declared as illegal, unlawful, unjust, null & void, without lawful authority having no legal effect upon the rights of the Petitioner and beyond the mandate, scope and Authority of the Constitution of Pakistan, 1973 and Legislation. b. The respondents may be directed to notify the Petitioner as "Vice President" of Pakistan Nursing & Mid-Wife Council and be restrained to interfere in the working of the Petitioner as Vice President till the statuary tenure of the post. c. The impugned notification dated 08.11.2023 may kindly be recalled/set aside, so that the fundamental rights of the petitioner as guaranteed by the Constitution of Islamic Republic of Pakistan and reiterated in the Judgment reported as PLD 2013 SC 195 be restored in true letter and spirit. d. It is further prayed that the entire proceedings including appointments initiated by the respondents subsequent to the impugned notification dated 08.11.2023 may also be declared null and void having no legal effect upon the rights of the Petitioner. e. Any other relief which this Honourable Court may deem fit under the facts and circumstances of the case may also be awarded.
03. Learned counsel for the petitioners, inter-alia, contends that respondent No. 1 has no authority under section 3(1)C of the Amended Act, 2023 to remove the president and vice president of the Council as the powers of the respondent No. 1 provided in the section 3(B) of the amended Act, 1973 are only to the extent of member; the impugned notifications dated 03.11.2023 & 08.11.2023 are illegal, unlawful, without authority and beyond the mandate provided in the legislation; vide notifications dated 24.07.2022, the petitioners were appointed as the President and Vice president of PN&MC for a fixed tenure of three years in terms of Section 4(1) of the Pakistan Nursing Council Act, 1973, as amended by the Pakistan Nursing Council (Amendment) Act, 2023; that by virtue of amendment in section 8 of the 1973 Act, the power to appoint the President and Vice President of PN&MC is with the Prime Minister on the recommendations of the concerned Divisions; the said Act does not provide the procedure for the removal of President and Vice President of PN&MC; the impugned notifications could not have been issued by the caretaker Prime Minister so as to cut short the fixed tenure for which the petitioners were appointed as President and Vice President of PN&MC; the impugned notifications dated 03.11.2023, 08.11.2023 and 13.12.2023 are arbitrary, perverse and transgression over the fundamental rights of fair trial and due process of the petitioners; the opportunity / right of hearing was not provided to the petitioners and the impugned notifications were issued without recommendations from the concerned division, hence liable to be declared as void, ab initio; the impugned notifications dated 03.11.2023 & 08.11.2023 lack the reasoning/justification for reaching the decision of de-notification of the petitioners as President and Vice President which is violation of section 24-A of General Clauses Act, 1895; respondents opted discriminatory policy towards the petitioners and violated the fundamental rights of the petitioners as protected and guaranteed under Articles 3, 4, 25 & 27 of the Constitution; if the impugned notifications are not set-aside, the petitioners' valuable fundamental rights guaranteed under the Constitution shall be jeopardized and they shall suffer an irreparable loss.
04. Learned Assistant Attorney General assisted by learned counsel for Pakistan Nursing and Midwifery Council (PN&MC) has controverted the arguments advanced by learned counsel for the petitioners and has stated that services of the petitioners were de-notified in accordance with law after fulfilling all the legal and codal formalities; under section 4(3)(c) of the Pakistan Nursing Council Act, 1973 nominated Member shall be deemed to have vacated his seat if he is declared by the Council to have been absent without sufficient cause from three consecutive meetings of the Council; the Prime Minister was competent to de-notify the petitioners; all the proceedings have been carried out strictly in accordance with law, hence both the petitions are liable to be dismissed.
5. Arguments advanced by learned counsel for the parties have been heard and record has been perused with their able assistance.
6. The President and Vice President of Pakistan Nursing and Midwifery Council (PN&MC) are appointed under Section 8 of the Pakistan Nursing Council Act, 1973, which is reproduced as under for ready reference; [(8). President and Vice-President.--
(1) The President and the Vice President shall be appointed by the Prime Minister on the recommendation of the concerned Division from amongst the Members specified in clauses (c) and (d) of subsection (1) of section 3
(2) The President and the Vice President shall hold office for a period of three years.] (Emphasis added)
07. Both the petitioners were initially appointed as Members of PN&MC for a period of three years in terms of section 4(1) of the Pakistan Nursing Council Act, 1973, with the approval of Prime Minister under section 3(1)d and Federal Cabinet under section 3(1) of the Act ibid on the recommendation of the Search and Nomination Committee and subsequently both the petitioners being Members of the Pakistan Nursing and Midwifery Council (PN&MC) were appointed as President and Vice President, respectively, vide notification dated 24.07.2022, with the approval of Federal Government i.e. Cabinet in terms of Section 3 of Pakistan Nursing Council Act, 1973 substituted vide Section 4 of the Pakistan Nursing Council (Amendment) Act, 2023, and with the approval of the Prime Minister under Section 8 of PNC Act, 1973 substituted vide Section 9 of the amendment Act, 2023, for a period of three years in terms of Section 4(1) of the act ibid.
8. Subsequently without issuing any show cause notice, the petitioner namely Jawad Amin Khan was de-notified as President of PN&MC vide notification dated 03.11.2023, and the petitioner namely Shahid Hussain was de-notified as Vice President of PN&MC vide notification dated 08.11.2023, whereas vide notification dated 13.12.2023, respondent No. 5/Farzana Zulfiqar Ali was notified as President of PN&MC with immediate effect.
9. It is admitted that both the petitioners were appointed for a period of three years after the approval of Federal Government i.e. Cabinet and Prime Minister, so they can only be removed by the recommendations of Cabinet and Prime Minister.
10. Both the petitioners were de-notified during the period of care taker government. In this regard law is very much clear. The functions, powers and scope of care taker government are defined by the Hon'ble Supreme Court of Pakistan in a case titled as Khawaja Muhammad Asif Vs. Federation of Pakistan and others (2013 SCMR 1205) which are reproduced as under;
28. In light of discussion made hereinabove, we hold that:--
(a) The Caretaker Cabinet/Prime Minister appointed under Article 224(1)(2) or 224A, as the case may be, is empowered to carry out only day-to-day affairs of the State with the help of the available machinery/resources/ manpower and also to watch national interest against war or national calamity or disaster faced by the nation, including terrorism, etc.
(b) The civil servants who have already been appointed in accordance with the rules/regulations on the subject ought not to be posted/transferred, etc., except in extraordinary circumstances, that too, temporarily.
(c) Major policy decisions including making of appointments, transfers and postings of the Government servants should be left to be made by the incoming government in view of the provisions of Constitution that the affairs of the State are to be run by the chosen representatives of the people.
(d) As newly elected Government is mandated to perform its functions of achieving the object and purpose of welfare of the people for which it has been duly appointed, therefore, caretaker Cabinet/government/Prime Minister, having no mandate of public support, is only caretaker set up and due to this connotation should detach itself from making permanent policies having impact on future of the country.
(Emphasis added)
11. The functions of the caretaker government are also defined/provided in Section 230 of the Elections Act, 2017, which is as under;
230. Functions of caretaker Government.---(1) 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;
(2) The caretaker Government shall not---
(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.
12. It is well established that the caretaker government even cannot transfer the public officials unless it is considered expedient and that too after approval of the commission and also cannot make major appointments of public officials but can make acting or short term appointments in public interest.
13. As the petitioners were appointed by the approval of the Prime Minister/Federal Cabinet, so the act of de-notifying them without the approval of Federal Cabinet is in violation of law laid down by the Hon'ble Supreme Court of Pakistan in a case titled Messrs Mustafa Impex, Karachi and others Vs. The Government of Pakistan through Secretary Finance, Islamabad and others (PLD 2016 SC 808).
14. On 20.12.2023, this Court passed an order which is reproduced for ready reference; "The learned Deputy Attorney-General has brought on record the decision taken by the Prime Minister on the summary dated 06.11.2023 submitted by the Ministry of National Health Services, Regulations and Coordination proposing that the petitioner be de-notified from the position of Vice President, Pakistan Nursing and Midwifery Council ("PN&MC"). Perusal of the said summary shows that the basis of the said proposal was the view of the said Ministry that the petitioner's performance had "remained un-satisfied." The respondents are directed to bring on record prior to the next date of haring all the documentation on the basis of which the said view was formed by the said Ministry regarding the petitioner. In the event of failure on the part of the respondents to bring such documents on the record, would cause this Court to assume that no such documentation exists.
On Court's call, the learned Additional Attorney-General tendered appearance. He is requested to ensure that the aforementioned direction is complied with.
Respondent No. 4/PN&MC is directed to file written comments supported by all the necessary documentation prior to the next date of hearing failing which its right to file written comments shall be closed.
Re-list soon after winter vacations."
15. The respondent did not bring on record any document on the basis of which petitioners were de-notified as it was categorically mentioned in the order dated 20.12.2023, passed by this Court that; "In the event of failure on the part of the respondents to bring such documents on the record, would cause this Court to assume that no such documentation exists."
16. As far as the argument of learned counsel for PN&MC that the nominated Member shall be deemed to have vacated his seat if he is declared by the Council to have been absent without sufficient cause from three consecutive meetings of the Council is concerned, the Council has not placed on record any document which shows that the petitioners remained absent from three consecutive meetings of the Council but admitted that neither any show cause notice nor any inquiry has been conducted against the petitioners prior to issuance of the notifications of their de-notification.
17. It has been laid down by the Supreme Court of Pakistan in a case titled as "Government of Balochistan through Forest and Wildlife Department, Quetta and another Vs. Ghulam Rasool and others" (2024 SCMR 1155) that: "6. The record articulates that the drastic action of withdrawing appointments letters and terminating service was carried out without issuing any show cause notice and without affording any opportunity of hearing to the terminated employees. The philosophy of natural justice is meant for affording a right of audience before any detrimental action is taken by any quasi-judicial authority, statutory body, or any departmental authority regulated under some law. The right to a fair trial is a fundamental right, while the vested right, by and large, is a right that is unqualifiedly secured and does not rest on any particular event or set of circumstances.
The doctrine of locus poenitentiae sheds light on the power of receding till a decisive step is taken, but it is not a principle of law that an order once passed becomes irrevocable and a past and closed transaction. Indubitably, if the order is found illegal, no perpetual right can be claimed on the basis of such an illegal order, but in this case, nothing was articulated to allege that the respondents by hook and crook managed their appointments or committed any misrepresentation or fraud or they were not eligible for the posts on which their appointment was recommended by the Departmental Recruitment Committee of five members where each case was considered diligently, and after a burdensome exercise, the names were recommended by the Departmental Recruitment Committee. Therefore, it cannot be construed that the respondents were appointed without fulfilling the codal formalities. Rather, on their appointments with due process, some vested rights have been created in their favour which could not have been withdrawn in a perfunctory manner."
18. It has been held by the Supreme Court of Pakistan in a case titled as "Pakistan International Airlines Corporation, through MD, Karachi Vs. Nadeem Murtaza Khan" (2007 PLC(CS) 334) that: "4. Notwithstanding the political consideration for the appointment of respondent as stated by the learned counsel, the real question before the Tribunal for determination would be the legal sanction behind the order of termination of his service and the learned counsel has not been able to satisfy us that the procedure provided under the rules for termination of service of an employee of Corporation, was followed before passing the order in question. This is a well-settled law that no one should be condemned unheard and if an order adverse to the interest of, a person is passed behind his back and without providing him an opportunity of hearing, the order is illegal.
There can be no departure to the rule of law that in absence of specific rules governing the service of a person in an Organization, an incumbent of a post in the said Organization before an action is taken in respect of his terms and conditions of service, is entitled to the right of hearing in the light of principle of natural justice, therefore, the proper course for the respondent would be to issue show-cause notice to the respondent and conduct an inquiry to ascertain the question of his fitness to retain' in service instead of straightaway termination of his service. The order of termination of service passed in departure to the rules of service, of the Organization and in violation to the principle of natural justice, would definitely render it illegal and no exception can be taken to the judgment of Tribunal by virtue of which the order of termination of service of respondent was set aside and he was reinstated in service. The contention of learned counsel that appeal before the Service Tribunal was time barred, has also no substance as the objection of the petitioner in this behalf was not considered valid by the Tribunal and we find no justification to interfere in the discretion exercised by the Tribunal."
Reliance is also placed on the cases reported as 1971 SCMR 681, PLD 1965 SC 90 and PLD 1959 SC (Pak.) 45.
19. The issuance of impugned notifications dated 03.11.2023 & 08.11.2023 had the effect of prematurely cutting short the petitioners' tenure for which they were appointed under Section 8 of PNC Act, 1973, substituted vide under Section 9 of the Amended Act, 2023. The tenure could not have been curtailed by the caretaker Prime Minister by de-notifying the petitioners.
20. In this regard reliance is placed upon the following case laws;
(i) In the case of Homeopathic Dr, Jamil Akhtar Ghauri Vs, Federation of Pakistan and others (2017 CLC 575), the Division Bench of this Court held as follows:- "21. Therefore, going by the above dictum, if the appointment is to a tenure post, such a person will go out of the office on completion of his tenure. Rule 15 of the UAHSM Rules make the post of a member of NCH a tenure post and as such the question prematurely retiring the incumbent of the said post, without following the process envisaged by Section 13 of the UAHP Act, does not arise at all. In our view, the appointment to the post of Director is a term appointment and such term can be curtailed or tinkered with only for justifiable reasons that too in accordance with the Section 13 of the UAHP Act, and after observing the principles of natural justice."
(ii) In the case of Babar Sattar Vs. Federation of Pakistan (2015 CLD 134), this Court held that the Public Sector Companies (Corporate Governance) Rules, 2013, framed in exercise of powers conferred by Section 506 of the Companies Ordinance, 1984, read with Section 43 of the S.E.C.P.
Act, 1997 were mandatory and strict compliance therewith was an obligation of every stakeholder in all Public Sector Companies and the Federal Government. Rule 5 of the Corporate Governance Rules, 2013 inter alia provides that a Director appointed or elected shall hold office for a period of three years unless he resigns or is removed in accordance with the provisions of the Companies Ordinance, 1984. Although the Corporate Governance Rules are said to apply to public sector companies and not to statutory bodies like the N.C.H., the tenure for which the members of the board or a governing body are appointed, whether under a special statute or under the Corporate Governance Rules, must be respected. Such tenure cannot be prematurely curtailed by resort to Section 21 of the General Clauses Act, 1897.
(iii) In the case of Mrs. Jamshed Naqvi Vs. Azad Jammu and Kashmir Government (2013 PLC (C.S.)
1037), it has been held as follows:- "In view of above, it can safely be concluded that the petitioner has been appointed for fixed period of 3 years under the Azad Jammu and Kashmir Teachers Foundation Act, 1997, therefore, she can only be removed in case of inefficiency, unsuitability and misconduct under subsection
(3) of section 7 of the Azad Jammu and Kashmir Teachers Foundation Act, 1997 not otherwise before completion of her tenure."
(iv) In the case of Dr. Aftab Ahmad Malik Vs. University of Engineering and Technology (2005 PLC (C.S.) 80), the petitioner was appointed as Chairman of Computer Sciences and Information Technology Department in the University of Engineering and Technology, Lahore for a period of three years under the Statute appended with the University of Engineering and Technology Act, 1974. Before the completion of his tenure, the Syndicate of the said University decided to relieve the petitioner from his duties as Chairman of the said department. The petitioner invoked the jurisdiction of the Hon'ble Lahore High Court against his premature removal from the said post.
The Hon'ble High Court accepted his writ petition and declared the order relieving the petitioner from his duties as without lawful authority and of no legal effect. Furthermore, it was held as follows:- "Cumulative reading of both would leave no doubt that it was a statutory appointment with fixed term of tenure. One thing which is conspicuously noticeable is that neither the Statute nor the appointment order makes mention of any eventuality or situation in which the appointment could be cancelled or the term could be reduced or curtailed, therefore, the general principle governing such fixed term statutory appointments are to be kept in view."
(v) In the case of Allauddin Akhtar v. Government of Punjab (1982 CLC 515), the petitioner was appointed to the statutory post of Chairman Board of Intermediate and Secondary Education, Lahore for a period of four years under Section 14 of the West Pakistan (Board of Intermediate and Secondary Education, Lahore) Ordinance, 1961. One of the terms of the appointment of the petitioner was that the term of his office was to be for a period of four years subject to the condition that the controlling authority or the government could terminate the deputation earlier in the public interest. Fearing his removal from the said post, prior to the expiry of his tenure, he filed a petition under Article 199 of the Constitution before the Hon'ble Lahore High Court.
Subsequently, the petitioner was removed by the controlling authority. The Hon'ble High Court allowed the writ petition and declared the petitioner to be the holder of a post having a statutory tenure of four years and that his tenure could not be reduced by reference to such terms and conditions of his appointment as were found to be inconsistent or mere surplusage.
(vi) In the case of Moazzam Husain Khan Vs. Government of Pakistan and others (PLD 1958 (W.P.)
Karachi 35), it has been held at page 40 of the report as follows:- "In the present case, keeping in view the definition of "tenure post" as given in the Fundamental Rules, the Government of Pakistan declared the post of Director of Intelligence Bureau as a tenure post and limited its period to five years. It goes without saying that the petitioner was entitled to hold the post for the whole term of five years."
(vii) The case of P. Venugopal Vs. Union of India (2008) 5 SCC 1) was also in respect of termination of appointment to the post of Director of All India Institute of Medical Sciences. Therein, the incumbent was appointed for a period of five years but had to suffer a premature termination and consequent removal by curtailing the term. The Supreme Court of India, in paragraph 32 of the report, held as follows:- "From the above quotation, as made in para 16 of the said decision of this Court, it is evident that this Court has laid down that the term of 5 years for a Director of AIIMS is a permanent term.
Service conditions make the post of Director a tenure post and as such the question of superannuation or prematurely retiring the incumbent of the said post does not arise at all. Even an outsider (not an existing employee of AIIMS) can be selected and appointed to the post of Director. The appointment is for a tenure to which principle of superannuation does not apply.
"Tenure" means a term during which the office is held. It is a condition of holding the office. Once a person is appointed to a tenure post, his appointment to the said post begins when he joins and it comes to an end on the completion of tenure unless curtailed on justifiable grounds. Such a person does not superannuate, he only goes out of the office on completion of his tenure."
(viii) In the case of L.P. Agarwal Vs. Union of India (AIR 1992 SC 1892), it has been held as follows:- "16. Tenure means a term during which an office is held. It is a condition of holding the office. Once a person is appointed to a tenure post, his appointment to the said office begins when he joins and it comes to an end on the completion of the tenure unless curtailed on justifiable grounds.
Such a person does not superannuate, he only goes out of the office on completion of his tenure.
The question of prematurely retiring him does not arise. The appointment order gave a clear tenure to the appellant. The High Court fell into error in reading "the concept of superannuation" in the said order. Concept of superannuation which is well understood in the service jurisprudence is alien to tenure appointments which have a fixed life span. The appellant could not therefore have been prematurely retired and that too without being put on any notice whatsoever."
(ix) In the case of P.L. DhinQra Vs. Union of India (AIR 1958 SC 36), it has been held as follows:- "12 An appointment to a temporary post for a certain specified period also gives the servant so appointed a right to hold the post for the entire period of his tenure and his tenure cannot be put an end to during that period unless he is, by way of punishment, dismissed or removed from service."
(x) In the case of Syed Mahmood Akhtar Naqvi Vs. Federation of Pakistan (PLD 2013 SC 195), popularly known as Anita Turab's case, the Hon'ble Supreme Court held that when the ordinary tenure for a posting had been specified in the law or rules made thereunder, such tenure must be respected and could not be vaired, except for compelling reasons, which should be recorded in writing and were judicially reviewalbe.
21. In view of what has been discussed above, both the petitions are allowed. The impugned notification dated 03.11.2023, whereby the petitioner namely Jawad Amin Khan was de-notified as President, PN&MC, notification dated 08.11.2023, whereby petitioner Shahid Hussain was de-notified as Vice President and notification dated 13.12.2023, whereby respondent No. 5/Farzana Zulfiqar Ali was notified as President of PN&MC are declared without any lawful consequence and are therefore set-aside. The respondents are directed to notify the petitioner Jawad Amin Khan as President and Shahid Hussain as Vice President of Pakistan Nursing and Midwifery Council (PN&MC) within period of one week. Compliance report be submitted before Additional Registrar (Judicial) for perusal of this Court.