PESHAWAR: Peshawar High Court has declared as illegal the removal of members of board of governors (BoGs) of several medical teaching institutions (MTIs) and appointment of new ones by caretaker provincial government in December last year.

A bench consisting of Justice Ijaz Anwar and Justice Syed Arshad Ali also ruled that chief minister had no authority to remove any member or chairman of BoGs of MTIs 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.

The bench rejected petitions of several members of BoGs of different MTIs, who were appointed by the caretaker government and were removed by the present government on June 11.

The bench ruled that caretaker government had no mandate either to take any policy decision or make appointment against public offices for a longer period so as to embarrass the new elected government, therefore, their appointments could not be approved.

Bench rejects plea of members removed by present govt

Referring to the relevant provision of Elections Act, 2017, the bench ruled: “Even by a bare reading of the section, the tentative inference is inevitable that by removing current incumbents and appointing new persons to MTI BoGs, the caretaker government has stepped outside its domain.”

The bench had divided the petitioners into three categories. The first category was of those, who were appointed by previous provincial government and were removed by the caretaker government. The second category was of those, who were appointed by caretaker government and removed by the present elected government. Those appointed by the previous elected government and now removed by present government were placed in third category.

In its 41-page detailed judgement authored by Justice Syed Arshad Ali, the bench disposed of the category ‘A’ cases and ruled their removal by the caretaker government as illegal and without lawful authority and set aside the notifications regarding their removal.

However, the bench observed that in that category some of the petitioners had to complete their three-year term in April 2024 or by August 2025. It was observed that some of those petitioners had already been reappointed by the present government as member of BoGs.

The bench referred the matter related to those petitioners, who have not been re-appointed, to the chief minister for appropriate order.

The petitioners in category ‘A’ included Sahibzada Saeed and Dr Rubiuna Gillani etc of Hayatabad Medical Complex (HMC), Dr Saeedullah Shah etc of Khalifa Gul Nawaz Bannu MTI, Mohammad Salahuddin Qasim and others of Bacha Khan Medical Complex Swabi and Mohammad Arshad and other members of Mardan Medical Complex.

Similarly, a petition related to category ‘C’ filed by Kashif Ali and other members of MTI Qazi Hussain Ahmad Medical Complex Nowshera was also disposed of. These petitioners were appointed by the previous elected government and removed by the present government on June 11, 2024.

In their case, the bench ruled that it appeared that the chief minister, while exercising his authority to allow their removal, had not applied his independent mind to their appointments, therefore, their cases were also sent to chief minister for consideration afresh.

The bench also overruled objection made by the provincial advocate general, Shah Faisal Uthmankhel, that those petitions were not maintainable.

The AG and lawyers representing the respondents had contended that section 5(7) of KP MTI Reforms Act, 2015, provided that any member of the board, who had been removed prior to completion of his term of three years, may file an appeal in MTI Appellate Tribunal against the decision of his removal. They added that the said tribunal had the exclusive jurisdiction to hear cases of removal of members.

Senior lawyer Shumail Ahmad Butt, representing Sahibzada Saeed and other petitioners in category ‘A’, opposed that contention of the AG and argued that second proviso to section 5(7) of the Act clearly stipulated that no appeal should lie to the tribunal when the appointments of members of the board were simply dispensed with, without any accusation or blame of misconduct.

He said that in those cases, none of the petitioners had been removed from the office on account of misconduct, therefore, it was simple case of removal from office, so the appeal by petitioners before the tribunal was not maintainable and the high court had the jurisdiction to hear those cases.

The bench also disagreed with the assertions of the AG that since the members of BoGs were appointed by the chief minister and they held office during his pleasure, therefore he had the absolute authority to remove any member without any reason.

The bench discussed in detail several judgements of superior courts regarding the role of a caretaker government and ruled: “The foregone clearly settles the point that caretaker government has very limited role and function that is to govern during the transition between one elected government and another.”

“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 January, 22, 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,” the bench ruled.

Published in Dawn, October 14th, 2024