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Official Citation: 2024 SCMR 563
Court / Jurisdiction: Peshawar High Court
Year of Decision: 2023
Decision Date: 2023-12-31
Parties: Sahibzada Saeed and others vs Govt. of Khyber Pakhtunkhwa Through JUDGMENT
Ruling Summary: This decision was rendered by the Peshawar High Court on 2023-12-31, officially reported as 2024 SCMR 563. In this matter between Sahibzada Saeed and others and Govt. of Khyber Pakhtunkhwa Through JUDGMENT, the court adjudicated key questions of statutory construction, procedural regularity, and legal precedent under Pakistani law.
Core Holding: The honorable bench evaluated governing statutory provisions and judicial authorities to establish the rights of the parties, delivering the binding reasoning set out below.
Case cited as 2024 SCMR 563
Court Name: Peshawar High Court Judge(s): Ijaz Anwar, Syed Arshad Ali Title:Sahibzada Saeed and others vs Govt. of Khyber Pakhtunkhwa Through
JUDGMENT
Reported As: 2024 PHC 334 Result: Petition Disposed of Judgment
JUDGMENT 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:
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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
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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
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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
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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.
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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
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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…
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