PESHAWAR: A Peshawar High Court bench on Thursday declared illegal and unconstitutional the dissolution of the Board of Governors (BoG) of the Nowshera Medical Teaching Institute (NMTI) by the provincial chief minister in his hometown and set aside a notification issued for it last year.

Acting Chief Justice Waqar Ahmad Seth and Justice Mussarat Hilali accepted a petition filed by BoG chairman Dr Zafeerullah Khan, who had challenged the dissolution of the board in Oct 2017.

The petitioner’s lawyer, Qazi Jawad Ahsanullah, said the provincial government had constituted the BoG for the NMTI comprising Qazi Hussain Ahmad Medical Complex (QHAMC) and Nowshera Medical College (NMC) in Feb 2016 under the Medical Teaching Institute Reforms Act (MTIRA), 2015, for a period of three years.

He said a notification issued by the health department on Oct 25 had stated that in exercise of the powers conferred by Section 15 read with Section 20 of Khyber Pakhtunkhwa General Clauses Act, 1956 and Section 20 (I) of MTIRA 2015, the competent authority (chief minister) was pleased to dissolve the BoG of NMC with an immediate effect.

Mr Jawad said by dissolving the board the chief minister had overstepped his powers provided under the Constitution.

Board chairman had challenged CM’s order in this respect

He said the seven-member board was constituted under section 5 of the MTI and that under the law, a member of the board had to serve for three years and he or she could only be removed by the government under specific charges.

The lawyer said under the law, the government or the chief minister had no powers to dissolve the entire board.

He said under Article 129 of the Constitution, the provincial government meant the chief minister and the ministers.

Qazi Jawad referred to the Supreme Court’s judgment in the famous Mustapha Impex case, saying the court had clearly stated that the rules of business were binding on the government and that its failure to follow them would lead to an order lacking any legal validity.

He said the Supreme Court had ruled that the federal government was the collective entity described as the cabinet constituting the prime minister and federal ministers and similarly, the provincial government meant the cabinet, including the chief minister and provincial ministers.

The lawyer said in light of that judgment neither a secretary, nor a minister and nor the chief minister were the provincial government and the exercise, or purported exercise, of a statutory power exercisable by the provincial government by any one of them was constitutionally invalid and a nullity in the eyes of the law.

He said the performance of the board was outstanding but the members had been victimised on political grounds as the BoG was not following directives of the chief minister on certain issues.

The lawyer said the BoG was adamant to follow directives of the chief minister regarding certain appointments and the chief minister had dissolved the entire board, while he had no such authority under the law and the Constitution of Pakistan.

An additional advocate general said after an amendment was made to the MTIRA, the chief minister was empowered to remove any member of the board, including its chairman.

Published in Dawn, Aprill 13th, 2018