PESHAWAR: A Peshawar High Court bench on Tuesday admitted to full hearing a petition against the establishment of the medical teaching institutions (MTIs) appellate tribunal last year and the relevant rules.

Justice Roohul Amin Khan and Justice Syed Arshad Ali directed the respondents, including the provincial government through the health secretary, high court registrar, and provincial law secretary to submit their written replies to the petition.

The petition is filed by senior lawyer Mian Muhibullah Kakakhel requesting the court to declare Section 16-A of the MTI Act, which provides for the establishment of the tribunal, a violation of the main law.

He also sought orders to declare the appointment of the tribunal chairman and its two members illegal.

Seeks written response of respondents

The MTI Appellate Tribunal is empowered under the MTI Act, 2015, to adjudicate on the grievances of all staff members of MTIs in the province.

The respondents in the petition are the provincial government through its chief secretary, provincial health secretary, provincial advocate general, chairman of the MTI Policy Board Nowsherwan Burki, and the tribunal chairman and members.

Mian Kakakhel contended that the tribunal was constituted illegally.

He said vast powers had been delegated to the executive by the legislature to make rules and frequent amendments were made in the rules.

The petitioner contended that those rules were against the judgements of superior courts in which it had been declared that the Act of assembly should be self-sufficient or it should give guidelines for the delegated authority.

He said the MTI Tribunal had been created by insertion of Section 16-A into the MTI Act 2015, which only mentioned of an MTI Tribunal and leaving the rest of the matters to be dealt with through rules.

Mr Kakakhel questioned whether merely by inserting Section 16-A into the MTI Act without providing for core, primary and essential legislation on the structural areas by enacting a complete act, the MTI tribunal created through subordinate rules was not contrary to the constitution and law.

He argued that under the Constitution, law and judgements of superior courts, especially the verdict whereby extension was given to the chief of army staff, the legislature was restrained from giving excessive powers to legislate to the executive and had settled the principle that primary legislation was to be done through the parliament or the provincial assembly and only the way to executive the same was to be provided in rules and regulations, whereas in case of MTI tribunal, the primary legislative function was given to the executive without any guidelines by the provincial assembly.

Mr Kakakhel claimed that through the insertion of the impugned Section, 16-A, to the law, the government wanted to create the tribunal and to appoint its chairman and members of their choice for passing engineered judgements according to the wishes of the health minister and the secretary health.

He argued that the government had hurriedly framed the rules under Section 16-A giving various criteria for appointment of chairman and members of the tribunal.

The petitioner said the chairman and members of the MTI tribunal were appointed through a notification on Feb 22, 2021.

He claimed that the appointment process was not transparent.

Mr Kakakhel said the amendment to that law and the rules framed under it had excluded the jurisdiction of the KP Service Tribunal in the matters of government servants working in MTIs.

Published in Dawn, February 9th, 2022