Dr. Ikram Ullah Khan Vs Government of KP and others

JUDGMENT SHEET

PESHAWAR HIGH COURT, PESHAWAR

JUDICIAL DEPARTMENT

W.P. No.3170-P/2025 Dr. Ikram Ullah Khan Vs.

Government of Khyber Pakhtunkhwa and others Date of hearing 27.11.2025 For Petitioner(s): Mr. Shumail Ahmad Butt Advocate.

For Respondent(s): Mr. Muhammad Riaz Khan Paindakhel AAG along with Mr. Waqar Khan Section Officer (lit) Health Department.

JUDGMENT

WIQAR AHMAD, J. Instant writ petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, (Constitution) is filed by the petitioner with following prayers:

“That, while accepting this Writ Petition, this Hon'ble Court may graciously be pleased to Hold, declare and Direct:-

(i)That the inactions and omissions of the Respondents, particularly Respondents No. 2 and 3, in failing to comply with the clear directions issued by the Chief Minister of Khyber Pakhtunkhwa in his letter dated 26.12.2024, are unlawful and in violation of administrative principles and the law.

(ii)That, the Hon'ble Court may further be pleased to declare that the initiation and continuation of the inquiry against the petitioner regarding the alleged lack of PMDC registration is legally unsustainable, as PMDC registration is only a requirement under Section 15 of W.P. No.3170-P/202

the PMDC Ordinance, 1962, for medical practitioners, and is not applicable to non-clinical administrative posts, thereby rendering the inquiry null and void and thus liable to be closed/filed pursuant to the observations made in the letter dated 26.12.2024.

(iii)That, the Hon'ble Court may be pleased to issue an appropriate Writ by directing the Respondents to adhere to the directions issued by the Chief Minister of Khyber Pakhtunkhwa in his letter dated 26.12.2024, ensuring that the petitioner's rights to due process and fair treatment are respected.

(iv)That, the Hon'ble Court may be pleased to declare that the retrospective application of the PMDC registration requirement is unlawful, discriminatory, and in violation of the principle of legal certainty, and that such retroactive imposition is void and has no legal effect on the petitioner.

(v)That, the Hon'ble Court may issue any other relief(s) as it deems just and proper, including but not limited to costs and any appropriate actions to remedy the injustice faced by the petitioner due to the unlawful actions of the Respondents.

2.Facts of the case as per contents of the petition are that the petitioner was appointed as a Medical Officer in the Health Department, Government of Khyber Pakhtunkhwa, pursuant to Notification No. SOH(EV) 4-20/09, Peshawar, dated 24.03.2009, which prescribed MBBS (or equivalent) and completion of house job as the sole eligibility criteria and statedly, did not require PMDC registration. Having fulfilled the prescribed qualifications, the petitioner was W.P. No.3170-P/2025

appointed on ad-hoc basis in June 2012, subsequently regularized in the year 2015 vide Notification No. SOH (E-II) 3-18/2015 dated 21.10.2015, and later inducted into the Management Cadre vide Chief Minister Notification No. SOH (E-V) 4-20/2018 Peshawar dated 01.10.2018. Since induction into the Management Cadre, the petitioner has remained posted on purely administrative and managerial assignments, whereunder the applicable service rules and regulatory framework, active PMDC/PMC registration was statedly not a prerequisite, nor was the petitioner engaged in any private clinical practice.

3.In 2017, a complaint was initiated against the petitioner which was later disowned by the alleged complainants during a fact-finding inquiry conducted by the Governor Inspection Team. Notwithstanding this, the Health Department, vide letter dated 17.09.2020, suspended the petitioner, whereupon this Court, in Writ Petition No. 886-B/2020, granted interim relief on 23.09.2020. The inquiry W.P. No.3170-P/2025

nevertheless proceeded under an inquiry officer to whom the petitioner recorded his objection of biasness towards him, and culminated without addressing the petitioner’s objections regarding bias and non-applicability of PMDC registration under the Khyber Pakhtunkhwa Health Management Service Rules, 2008 (“Rules of 2008”). During appellate proceedings, the competent authority, including the office of the Chief Minister, vide letter dated 26.12.2024, expressly acknowledged that PMDC registration was not a condition for appointment under the said Rules and observed that the petitioner had not been dealt with appropriately. Despite such findings and subsequent correspondence dated 14.10.2024 and 29.10.2024, the inquiry was not withdrawn. Meanwhile, without prejudice, the petitioner obtained provisional PMDC registration on 14.10.2022 and was subsequently granted permanent registration after qualifying the requisite NLE Step-2 examinations in February 2025, yet no final relief ensued, compelling the petitioner to W.P. No.3170-P/2025

invoke the constitutional jurisdiction of this Court.

4.Learned counsel for the petitioner contends that the petitioner had not been registered with the Pakistan Medical and Dental Council (“PMDC”) before his appointment as Medical Officer; however, since he had been posted against a position in the administrative cadre of the health sector, such registration was not required in the present case. He added that, subsequently, the petitioner also obtained registration from the PMDC, and that the appellate authority, i.e., the Chief Minister, Khyber Pakhtunkhwa, had ordered that the inquiry be dropped; therefore, the Director General Health, being bound by the order of the appellate authority, ought not to have proceeded further with the inquiry against the petitioner. However, since the respondents have been up in arms against the petitioner, he was constrained to file the instant writ petition seeking a writ of mandamus for implementation of the directions of the worthy Chief Minister, Khyber Pakhtunkhwa, as conveyed through W.P. No.3170-P/2025

letter dated 26.12.2024. Learned counsel for the petitioner also relied upon a judgment of the Hon’ble Supreme Court of Pakistan, rendered in the case of Executive District Officer Schools and Literacy, District Dir Lower and others Vs Qamar Dost Khan and others reported as 2006 PLC (CS) 1173, to demonstrate that the instant writ petition is competent for the issuance of a writ of mandamus and that, in this regard, the Khyber Pakhtunkhwa Service Tribunal did not possessed jurisdiction..

5.Learned Assistant Advocate General submitted in rebuttal that the department had proceeded with the inquiry against the petitioner on the ground that he had maneuvered to secure his appointment in the erstwhile FATA now merged district without meeting the minimum eligibility requirements, and that through the instant writ petition the petitioner had obtained a stay order, whereunder the department could not conclude the inquiry. He stated that, in similar circumstances, another officer had already been removed from service, whereas the proceedings against the petitioner could not W.P. No.3170-P/2025

culminate due to the stay order in the present case. He further raised an objection that disciplinary proceedings could not be challenged before this Court and that the petitioner, in the garb of a writ of mandamus, was in fact preventing the concerned department from concluding the already commenced departmental proceedings;

therefore, the instant writ petition was not maintainable.

6.We have heard arguments of learned counsel for petitioner and learned AAG for the Government.

7.To know the factual background of the matter and the present status of disciplinary proceedings initiated against the petitioner, this Court would like to reproduce para No. 12 and 13 of para-wise comments of the respondents, which are reproduced hereinbelow:

“12. Incorrect. Due to the reasons mentioned in the preceding paras he was not eligible for the post of Medical Officer (BS-17) however, he managed to get appointment without being eligible hence his entry into service through a back door cannot be justified on subsequent change of cadre and further transfer/posting.

13.Incorrect. Previously, on the direction of the then Additional Chief Secretary (FATA) a fact-finding inquiry was conducted by the Governor inspection Team (GIT) W.P. No.3170-P/2025

which declared that the petitioner along with some other doctors had no valid documents and they are not registered with PM&DC. Thereafter, another inquiry on the direction of DHS Tribal Districts were conducted on 12-08-2018 by a committee comprising of Dr. Qasim Afridi, Chief DSRU, Ex-FATA and Dr. M Rauf Qazir, Program Manager, TBCP, Ex-FATA. The inquiry committee endorsed the inquiry conducted by GIT and recommended its implementation in letter and spirit. On the approval of the Competent Authority (Chief Minister) respondent No. 2 issued the suspension Notification dated 17-09-2020 of the petitioner under Rule 6 of the Khyber Pakhtunkhwa (Efficiency & Disciplinary) Rules, 2011, subsequently he along with one other doctor namely Dr. Muhammad Kabir were issued charge sheet along with statement of allegations and an impartial inquiry was conducted through a committee comprising of Muhammad Hayat, Additional Secretary, Chief Minister's Secretariat, Khyber Pakhtunkhwa and Dr. Ikram Ullah, Director (Public Health), Directorate General Health Services, Khyber Pakhtunkhwa. It is worth to mention that the petitioner was associated with the inquiry proceedings and was provided opportunities to defend himself; however, he badly failed to provide his registration during the above mentioned inquires including the formal inquiry. He was issued a Show Cause Notice which was duly replied by the petitioner however, due to stay order of this Hon'ble Court in WP No. 1217-P/2022 no final order has been passed by the respondents. It is worth mentioning that Dr. Muhammad Kabir also filed WP which was decided by the Hon'ble Court with the direction to treat him according to law and rules therefore, after providing him opportunity of personal hearing he was removed from service vide notification dated 29.12.2023 (Annex-D). It is worth mentioning that the petitioner annexed at annexure-G i.e. fact finding report by the GIT claiming therein that Dr. Rizwan Ullah & Mr. Khurshid disowned the complaints however it is evident from the report that the inquiry committee found the petitioner as well as Dr. Muhammad Kabir (already dismissed from service) that both of them were not eligible”.

8.From the above reproduced paras, we came to know that case of disciplinary W.P. No.3170-P/2025

proceedings against petitioner is pending at the departmental end, where an inquiry committee has been constituted. Charge has been framed against petitioner and a statement of allegations conveyed. He has also been issued a show cause notice, while final order could not be passed due to pendency of instant writ petition.

9.Firstly, through instant writ petition, petitioner is aiming at stopping or dropping the departmental proceedings initiated under E&D Rules by contriving a device of implementation of the letter of Chief Minister Secretariat dated 26.12.2024, but the fact remains that in this respect instant writ petition is not at all maintainable. The matter of disciplinary proceedings against a civil servant has squarely been fallen within the terms and conditions of a civil servant. If he cannot have recourse to the jurisdiction of the Tribunal today, he may be able to invoke it tomorrow. As and when the departmental proceedings are finalized and an adverse order is passed against petitioner, he would be able to invoke the jurisdiction of the Khyber Pakhtunkhwa Service Tribunal. At this W.P. No.3170-P/2025

premature stage, he cannot approach the Service Tribunal, but at the same time his writ petition is also not maintainable. There is no adverse order against petitioner in the field, while a writ petition lies only against a final order passed by the departmental authority.

This Court has already held, while rendering its judgment in the case of “Zakir Ullah Vs District Health Officer, Swat etc” reported as “2022 PLC (CS) 886” that unless matters are finalized at the departmental end, no writ petition would be maintainable against an interim measure or interim order unless same suffered from a jurisdictional defect. For ready reference, relevant part of the earlier judgment of this Court is reproduced:

“It is an established principle of administrative law that unless matters are finalized at departmental end and final orders are passed, the matter cannot be brought under adjudication in a constitutional Court except in those cases, where there has been an express case of want of jurisdiction, males fide or a situation where the actions of administrative authorities, if allowed to continue would perpetuate injustice. Hon'ble Sindh High Court while giving its judgment in the case of Sh. Ajaz Rasool v. Vice Chancellor, Karachi University, Karachi and 3 others reported as 1999 CLC 1942, had held petition of the respective petitioner as non-maintainable being pre-mature for the reason that same had been filed W.P. No.3170-P/2025

at a stage when the matter had not been finalized at departmental end. Relevant findings in said judgment are reproduced hereunder for ready reference;

“The second ground on which the petition merits dismissal is that the writ petition is obviously premature. As we have earlier stated, in this case only a show cause had been served upon the petitioner and a writ petition, therefore, in such a situation would not be competent. In the instant case, as we have already observed hereinabove, only a meeting of the Syndicate was called to consider the report of the three members Committee. Neither any notice was issued to the petitioner nor any action was taken against him. As such, this petition is premature and the jurisdiction of this Court under Article 199 of the Constitution, could not be invoked as the petitioner is not an aggrieved person as envisaged in the said Article.

As a result of the above discussion, this petition is accordingly dismissed in limine together with interlocutory applications."

Further reliance in this respect may be placed on judgment of this Court given in the case of Muhammad Mahmood Ali v. Pakistan through Secretary, Ministry of Finance reported as 1984 CLC 142 as well as judgment of Hon'ble Lahore High given in the case of Raja Muhammad Sadiq v. Water and Power Development Authority through its Chairman, Lahore reported as PLD 1978 Lahore 738 and judgment in the case of Syed Ali Abbas Gardezi and another v. Government of Pakistan through Secretary Establishment Division, Islamabad and 3 others reported as 2010 PLC (C.S.)

10.Said principle had been arising from administrative law jurisdiction in UK, and in this regard an opinion by famous writer De Smith, rendered in his book Judicial Review of W.P. No.3170-P/2025

Administrative Action at pages 277-278, is of worth consideration, which is also reproduced:

“It is impossible to construct a coherent body of legal principles out of these materials. It may perhaps be said that certiorari will rarely issue to quash reports or recommendations, but that the courts show a greater readiness to award prohibition against tribunals which have no power to make binding determinations provided that the report, advice or provisional decision of the tribunal forms part of a statutory scheme in which explicit provision is made for its findings to acquire finality upon the taking of consequential action by a superior authority. Readiness to award prohibition in such cases may be enhanced if judicial review is excluded by statute once the consequential action has been taken. An application for prohibition may nevertheless be somewhat speculative, and it may be preferable to seek an injunction (which is not restricted to judicial proceedings or to wait until the order is finally made or confirmed and then apply for certiorari on the ground that essential preliminaries to the order have not been observed.” (Underlining is ours)

11.The case in hand may also be quoted as a demonstration in favour of the efficacy of the principle of prior finality of orders so as to become ripe for filing of a writ petition. The petitioner has been misusing the jurisdiction of this Court; he had filed Writ Petition No.1217-P of 2022 and obtained an order from this Court on 11.08.2022. Said order was dragged, and the stay order was mis utilized until 20.05.2025, on which date learned counsel representing the W.P. No.3170-P/2025

petitioner all of a sudden turned up and stated that due to recent developments, the writ petition had become infructuous and that same should be disposed of accordingly. It was accordingly disposed of. Even this was not disclosed to the Court, that before said date i.e.

06.05.2025, petitioner had also devised a similar contrivance of further delay in the proceedings in the shape of filing the present writ petition, i.e. writ petition No. 3170-P of

12.It is also important to note that on 05.06.2025, petitioner obtained another restraining order from this Court in instant writ petition. He has been enjoying his office, thanks to obtaining of restraining orders in both these writ petitions. A similarly placed another person, namely Dr. Muhammad Kabir, had already been dismissed on 29.12.2023. Both of them were simultaneously charge-sheeted against similar allegations. Petitioner has been able to use the constitutional jurisdiction of this Court for staying his disciplinary proceedings, despite the fact that jurisdiction of this Court W.P. No.3170-P/2025

was barred in such matters under Article 212 of the Constitution of Islamic Republic of Pakistan. Moreover, there was no adverse order against petitioner and the proceedings had not been finalized. The remedy of a writ petition was not at all available to petitioner on any of the occasions. This was for avoiding misuse of writ jurisdiction of this Court, avoiding the use of such jurisdiction to create hurdles in the running of administrative machinery, and for avoiding a situation where fragmented decisions may be rendered, leading to creation of anomalous situation, that the doctrine of finality of orders at departmental end is embedded in constitutional jurisdiction as a precursor for entertaining constitutional petitions before constitutional Courts.

13.So far as the reliance of petitioner on the letter dated 26.12.2024 of the Chief Minister Secretariat is concerned, it is a letter issued by one Muhammad Adnan, Section Officer, without reference to any summary or other mode of communications, or any initiation of action or other proceedings conducted under W.P. No.3170-P/2025

the rules of business at the end of the provincial government. Instead, reference has been drawn to letter No.SOH(E-V)/4-4/2024/Dr. Ikram Ullah Safi dated 29.10.2024, and some directions of an undisclosed authority, and an opinion has just been rendered. Even if it is assumed that the directions had been rendered by the worthy Chief Minister, even then same was merely an opinion and not a binding order.

The matter was not ripe for the passing of a binding order by the appellate authority, as the proceedings were still pending at departmental end, and Writ Petition No. 1217-P of 2022 was also pending in respect thereof before this Court. For ready reference, text of said letter is reproduced herein:

“To The Secretary to Govt of Khyber Pakhtunkhwa Health Department, Peshawar.

Subject: APPEAL FOR

CANCELLATION OF INQUIRY AGAINST

Dr. IKRAM ULLAH SAFI, DEPUTY

DISTRICT HEALTH OFFICER MARDAN

OS ACCOUNT OF FAKE CREDENTIALS

Dear Sir,

1 am directed to refer to your office Letter No. SOH(E-V)/4-4/2024/Dr.

Ikram Ullah Safi dated 29-10-2024 on the subject noted above, wherein it has been mentioned that under the Recruitment Rules 2009, the

W.P. No.3170-P/2025

registration with PMDC was not a requirement for applying and selection against the posts of Medical Officers. Besides, there is no other ground mentioned therein against the appellant in the inquiries referred to, therefore, way forward on the case is self- explanatory and suggests that the appellant has not been dealt with appropriately. Further, the Health Department in its comments filed in the Peshawar High Court also underlined that PMDC registration is a requirement u/s 15 of the PMDC Ordinance 1962 for medical practitioners.

2.Against the backdrop, the Competent Authority has been pleased to desire that in order to arrive at just conclusion in the matter, it will be appropriate, if necessary, corrective measures are taken, please.

Yours Sincerely.

(Muhamma Adnan) Section Officer (Lit/Estab)

14.Since the case was not ripe for filing a departmental appeal, as department had not passed or filed a final order, same could not be treated as a departmental appeal. The appellate authority did not have any lawful jurisdiction to even render the opinion. Said opinion was not binding in nature; appellate authority could not have re-written the text of section 15 of the PMDC Ordinance, 1962, nor para 7 of the Code of Ethics of Practice for Medical and Dental Practitioners issued by PMDC. Therefore, such a letter of the Chief Minister Secretariat was not W.P. No.3170-P/2025

at all binding on the department and was rightly ignored. It would carry no effect on the already ongoing disciplinary proceedings.

15.The argument of learned counsel for petitioner that registration with PMDC was not required at the time of induction of petitioner in service are also holding no weight. Section 15 of the earlier existing PMDC Ordinance, 1962, is also reproduced herein for clarifying the situation;

“15. Power of the Council to certify certain persons to be possessed of sufficient medical qualifications.

(1)If, after an examination by a board constituted by the Council, the Council is satisfied that a person holding a qualification granted by a medical institution outside Pakistan, is possessed of sufficient knowledge and skill to be registered as a practitioner for the purpose of this Ordinance, it may recommend to the Federal Government to issue a notification in favour of such person to register him and his qualification. Upon such notification, the Council shall register the qualification possessed by the person without it being entered in any of the Schedules of this Ordinance.

(2)The Council shall register the qualification granted by a medical institution outside Pakistan, possessed by the person by maintaining a separate list in the Register”.

16.No person could be appointed as a Medical Officer, unless registered as a medical practitioner with PMDC and certified under W.P. No.3170-P/2025

section 15. Such an appointment was also militating against Regulation 7 of the Code of Ethics mentioned above. The fact that petitioner has now been posted on an administrative post cannot be blown out of proportion, so as to disregard the fact that petitioner had been appointed as a Medical Officer in BPS-17, having the requirement of eligibility of his registration with PMDC before the date of appointment. So far as the judgment relied upon by learned counsel for petitioner, i.e., rendered by the Hon’ble Apex Court in the case of “Executive District Officer Schools and Literacy, District Dir Lower and others Vs Qamar Dost Khan and others” reported as 2006 PLC (CS) 1173, is concerned, there is no doubt that in a case where jurisdiction of tribunal is not available, a writ petition may be entertained, however the writ petition was also not maintainable for lack of any final order.

Besides, a writ petition cannot be entertained in respect of such terms and conditions of a civil servant, which on culmination would be available to the jurisdiction of the Service W.P. No.3170-P/2025

Tribunal. Reliance in this respect may be placed on Ahmad Ullah v. District Education Officer (Male), Buner (2024 SCMR 2004);

Khalilullah Kakar v. Provincial Police Officer, Balochistan (2021 PLC (CS) 1030 Supreme Court); Chief Secretary, Government of Punjab, Lahore v. Ms.

Shamim Usman (2021 PLC (CS) 1595 Supreme Court); and Federation of Pakistan v. M. Y. Labib-ur-Rehman (2021 SCMR 1554).

17.In light of what has been discussed above, instant writ petition was found lacking in substance, besides being non-maintainable, and same is accordingly dismissed.

Announced

--sd--

JUDGE

--sd--

JUDGE

(DB)Hon’ble Mr. Justice Syed Arshad Ali J. Hon’ble Mr. Justice Wiqar Ahmad J. *Atif Zafar JSS*

W.P. No.3170-P/2025