Colonel (Retd) Dr. Gulzar Ahmad and another Vs Medical Teaching Institution Mardan etc.

PESHAWAR HIGH COURT, PESHAWAR

(JUDICIAL DEPARTMENT)

Writ Petition No. 8365-P/2025

Colonel (Retd) Dr. Gulzar Ahmad Khan and another ......Petitioners.

Versus

Medical Teaching Institution Mardan etc.

.......Respondents.

For the Petitioners: Barrister Amir Khan Chamkani.

For Respondents:- M/s Waqar Orakzai, AAG, Ali Gohar Durrani and Sheraz Butt, Advocates.

Date of Hearing: 25.11.2025

JUDGMENT

WIQAR AHMAD, J.- Facts, according to contents of instant writ petition, are that petitioner No.1 is a seasoned medical professional and a decorated retired army officer, a recipient of Sitara-e-Imtiaz with an unblemished career, while Petitioner No.2 is also a senior medical practitioner at MTI Mardan Medical Complex with an impeccable professional record.

When vacancies arose for the posts of Hospital Director and Medical Director at MTI MMC, the Petitioners, being fully qualified, applied and were duly appointed on 24.08.2024 by approval of the Board of Governors. After their

appointment, they worked diligently for the improvement of MTI MMC, made appointments strictly under law, and conducted high-level inquiries. Their transparent functioning, however, displeased certain later-inducted members of the Board of Governors as well as some local politicians seeking undue favours. Unexpectedly, on 03.01.2025, the Petitioners were relieved from their positions without any lawful justification, and in complete disregard of the procedure mandated under Section 10(3) read with Section 2(m) of the MTI Act. They were later informed that this action was taken on the insistence of newly elected Board members under the pretext of an interim order of the Peshawar High Court dated 15.08.2024 although neither MTI MMC was originally a party to that litigation nor were any Board members restored through the said order. It was averred that despite the principle of locus poenitentiae, the Petitioners were removed without show-cause notice or inquiry, amounting to discrimination and malafide exercise of power. Respondent No.3 had restrained all MTIs except MTI MMC and Swabi MTI from fresh appointments, as neither of these had their Board members restored, yet Respondent No.2 proceeded unlawfully against the Petitioners.

Aggrieved, the Petitioners approached the then-functional MTI Appellate Tribunal, which restrained the Respondent MTI from making permanent appointments against the Petitioners’ posts.

The Respondents filed their comments and the Petitioners WP No. 8365-P/2025

submitted additional documents, but before the matter could be decided on merits, the Tribunal became dysfunctional. It was further averred that having no alternative remedy and being aggrieved by their illegal relieving, the Petitioners have approached this Court seeking declaration of the relieving/termination order dated 03.01.2025 as void ab initio, reinstatement with all back benefits, setting aside of all consequential actions, and issuance of appropriate orders directing the Respondents to treat the Petitioners strictly in accordance with law, along with any other relief deemed just and proper.

2.Arguments heard and record perused.

3.Perusal of record reveal that sole reason that prevailed with the respondents in de-seating the petitioners was that appointment of petitioners had been made during a period where this court had banned the process of appointment in MTI Mardan. For ready reference presentation made to and decision taken by the Board of Governors are reproduced herein below;

Presentation Director HR gave a PowerPoint After a thorough on the recent presentation to Board on thediscussion the Board appointments recent appointments of unanimously of executives executives, i.e. HD, MD, ND,decided to relieve. and Director HR. Hospital Director (Col. Dr. Gulzar During discussion the newly Ahmad) and MD appointed 04 Board members (Dr. Muhammad raised questions over the Said) from their

WP No. 8365-P/2025

appointments of Hospital positions as they are Director and Medical Director, still on extended as these recruitment were made probation period. during a period when the Court And advertise the had already imposed ban above positions appointments and procurements immediately. As a at MTIs. stopgap arrangement, Prof.

The order sheet of Honourable Muhammad Fazil High Court AWP No. 3051- will be appointed as P/2024 with CM No. 1172/2024, Hospital Director on dated As 15.08.2024, states; officiating Prof. basis, while “Despite direction of this Court, Rehman-ud-Din will the necessary comments have not be given the yet been submitted by the responsibilities of respondents, on the last date of officiating Medical hearing, Secretary Director.

Establishment, Secretary Health Department, CSO to Chief Secretary Khyber Pakhtunkhwa, Deputy Secretary Health (Legal) and Focal Person of Health Department, were present in the court. Such conduct of the respondents shows that they are not interested in the earlier disposal of this and the connected petitions. Repeatedly, we have shown restraint in the post to suspend the Notification dated 11.06:2024, whereby the petitioners were removed from various offices in BoD of MTIS, however, the matter being lingered on only because of non- filling of comments by the respondents, as such, this Court is left with no other option but to suspend the operation of Notification dated (11.06.2024 in this and in the connected petitions, if not already suspended. It is, however, clarified that the officers restored their positions shall not make any appointment (s) or procurement till the next date of hearing. Adjourned to

On the legal analysis provided by the members and considering that the Peshawar's High Court Ban appears to remain in effect, the Health Department's Ban for MTI Mardan is deemed

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ineffective in light of the High Courts Order. The recruitment process of HD and MD was started on 13th July 2024 and completed on 24 2024 (appointments orders were issued). The process was continued when there was a ban from Honourable High Court, which is a potential contempt of court.

All the Board members unanimously agreed with the above discussion.”

4.Learned counsel for the petitioners mainly contended that the restraining order passed by this Court on 15.08.2024 in Writ Petition No. 3051-P/2024, whereby respondents were barred from making fresh appointments, has no bearing on the appointments of the present petitioners, as they were not members of the BoG of MTI Mardan in the said case. This fact could not be denied at the bar. Learned counsel representing respondents No. 1 and 2 expressly admitted said fact. Same have also been admitted position in the comments of respondents. Relevant part of which is reproduced herein for ready reference;

“The Honorable High Court, in its order, categorically restrained reinstated members from undertaking any recruitment or procurement activities adjudication of the matter. It is noteworthy that no member was reinstated to the pending final BoG of MIT Mardan pursuant to the said court order. Accordingly, the restriction imposed by the Honorable Court was not applicable to MIT Mardan. Subsequently the Health Department, Government of Khyber Pakhtunkhwa, through Notification No SO(MTT)/HD/1-1/2024 dated 16th August 2024, expressly directed all MTIs-except MTI Mardan and BKMC Swabi to observe a ban on appointments and procurement. The BoG, while acting in consonance with Sections 46), 7(2), and 7(2A) of the MIT Act, presumed WP No. 8365-P/2025

that the said notification was issued by the Health Department after undertaking due legal diligence in the context of the court's order dated 15th August 2024. Nevertheless, during its 60th meeting, the Board held extensive deliberations conceming the recruitment of the Hospital Director (HD) and Medical Director (MD). After examining the observations and concerns raised, the BoG unanimously determined that although the recruitment process had been undertaken in good faith and in the best interest of the institution, the absence of a confirmed legal opinion at the material time presented a potential risk of inadvertent non- compliance with the Honorable Court's directive In order to rectify any possible procedural or legal irregularities and to preclude any misinterpretation of the Court's order, the incumbents serving as HD and MD were relieved of their duties. This decision was made purely as a precautionary measure to ensure full compliance with the Honorable Court's order and to uphold institutional integrity. The Board of Governors reaffirms its unwavering commitment to act strictly in accordance with law and to address any issues arising from this matter in a transparent and judicious manner.”

There thus remains no doubt that the ground for removing service of the petitioners was not an appropriate consideration and the impugned decision of the BoG was therefore not justified on the basis of material present before the BOG. The bar of making appointment was not applicable to the MTI as explained in the reproduced part of the comments also.

Removal of the petitioners under order of this court was a result of misconception entertained by the BoG. It was an unreasonable, irrational decision which cannot be upheld. This court while giving its judgment on 02.02.2021 in case bearing Writ Petition No. 752-M/2018 (Dr. Faridoon Khan Vs Federation of Pakistan etc.) has held that if impugned decision of an authority was irrational in the same sense that no prudent person would have reached such a decision on the basis of the WP No. 8365-P/2025

material was to be present before an authority then such an un reasonableness and irrational decision would furnish ground for reviving the decision of the departmental authority. Relevant excerpts from said judgment is also reproduced herein for ready reference;

In the formative phases of development of administrative law in England, when the authorities were found to have taken irrelevant considerations and passed orders for impertinent motives, such actions were declared unlawful and resultantly set aside. In the case of “Roberts v. Hopwood” [(1925) AC 578] a borough council overpaying its staff was found motived by irrelevant philanthropic concerns and was also found making the gifts, in effect, rather than paying wages. The House of Lords in England also held that the authority had failed to consider relevant matters as the costs of living and comparable wages paid by other authorities. It was in the case of “Associated Provincial Picture Houses Ltd. v. Wednesbury Corporation” [(1948) 1 KB 223] that beside illegality the test of unreasonableness was also adopted for checking vires of an order of local authority, by Courts in English jurisdiction. It was held by Lord Green M.R in the case of Wednesbury Corporation that if a decision maker had not ostensibly breached the irrelevancy principle but it had come to such an unreasonable conclusion that no reasonable authority could ever have come to it, in such a case the Court might interfere. Relevant part of his observations given in said judgment is reproduced hereunder for ready reference; “It may still be possible to say that, although the local authority have kept within the four corners of the matters which they ought to consider, they have nevertheless come to a conclusion so unreasonable that no reasonable authority could have ever come to it. In such a case, again, I think the Court can interfere.”

In the subsequent case of G.C.H.Q [(1985) A/C 375] Lord Diplock had held irrationality as a ground for nullifying administrative actions, by observing that by said connotation he meant such a decision which was so outrageous in its defiance of logic or accepted moral standards that no sensible person would have arrived at it, after application of mind. He had also observed that whether a decision falls within said category was a question which judges by their training and experience should be well equipped to answer or else there would be something badly wrong with their judicial system. The test of complete unreasonableness or absolute irrationality was further developed in modern times, in English jurisdiction. In the case of “Wheeler v. Leicester City Council” [(1985) A/C 1054], Leicester Rugby Football Club had been banned WP No. 8365-P/2025

from its property for not putting pressure upon three of its players not to participate in a tour of South Africa. The impugned council resolution imposing such a ban, was held as irrational in the Wednesbury sense. In the case of “R. v. Hillingdon London Borough Council, ex parte Royco Homes Ltd.”, [(1974) QB 720] the Hillingdon London Borough Council had granted a planning permission with a condition that properties constructed by Royco-make Homes Limited would be available for occupation by those on the councils Housing Waiting List and further that for ten years the house would be occupied by persons subject to scrutiny of tenure under the Rent Act. The decision of the council was found unreasonable and reversed resultantly. In the case of Lonrho plc v. Secretary of State for Trade and Industry (1989 1 WLR 525), the decision of Secretary of State to withhold publication of a report by inspectors appointed by him to investigate alleged fraud in connection with a take-over bid and not referring a merger to the Monopolies and Mergers Commission was found unreasonable and reversed.

Further ahead in said judgment reliance have also been placed on the case law reported as PLD 1957 (W.P) Lahore 914 in the following manner;

“It should be remembered that no discretion vested in an executive officer is an absolute and arbitrary discretion. The discretion is vested in him for a public purpose and must be exercised for the attainment of that purpose. Even though there be no express words in the relevant legal provision to that effect, the discretion is always circumscribed by the scope and object of the law that creates it and has at the same time to be exercised justly, fairly, and reasonably. Every officer who passes an order in a matter of discretion should ask himself the question: What is the order I should pass if I were acting justly, fairly and reasonably? If the order that he passes is not in accordance with the answer which lie would himself give to this question, he exceeds his jurisdiction and abuses his powers. The answer to the question must be his own for the discretion is his and not that of the Court but his action must correspond to his own answer to the question. Were we of the opinion that the Sugar and Sugar Products Control Order does grant an absolute and arbitrary discretion to the officer empowered to grant or withhold sugar as he pleases we would pronounce it void on account of its inconsistency with Article 11 of the Constitution of Pakistan, which confers on all citizens the right to acquire property and to dispose of property subject only to reason able restrictions in the public interest. An arbitrary discre- tion to withhold quota is not a reasonable restriction. But there is no reason why we should thus interpret this provision.”

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Besides, with the issuance of appointment order and taking of charge and vested right of being treated in accordance with law had also got acquired to the petitioners. Such a fact was having the effect of depriving the official Respondents- BoG in the case in hand from exercising their locus poenitentiae under section 21 of the General Clauses Act. Even while doing so no right of hearing been afforded to the petitioners and the impugned action was also therefore failing the test of compliance with rules of natural justice particularly the principle enshrined in audi alteram partem. It is important to be noted that petitioner had been appointed for a term of 05 years, under the relevant statutory provisions. In this regard Section 12 of the Khyber Pakhtunkhwa Medical Teaching Institution Reforms, Act 2015 ( hereinafter referred as the MTI, Act) may be referred whereunder a terms of five years has been provided for Medical Director as well as Hospital Director. The mode and manner adopted was also such which could not be deemed justified in the given circumstances of the case. Hon'ble Supreme Court of Pakistan while rendering its judgment in case of Inspector General of Police, Quetta and another .vs Fida Muhammad and others reported 2022 SCMR 1583 in a somewhat situation had treated the controversy in the following manner;

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“11. The doctrine of vested right upholds and preserves that once a right is coined in one locale, its existence should be recognized everywhere and claims based on vested rights are enforceable under the law for its protection. A vested right by and large is a right that is unqualifiedly secured and does not rest on any particular event or set of circumstances. In fact, it is a right independent of any contingency or eventuality which may arise from a contract, statute or by operation of law. The doctrine of locus poenitentiae sheds light on the power of receding till a decisive step is taken but it is not a principle of law that an order once passed becomes irrevocable and a past and closed transaction. If the order is illegal then perpetual rights cannot be gained on the basis of such an illegal order but in this case, nothing was articulated to allege that the respondents by hook and crook managed their appointments or committed any misrepresentation or fraud or their appointments were made on political consideration or motivation or they were not eligible or not local residents of the district advertised for inviting applications for job. On the contrary, their cases were properly considered and after burdensome exercise, their names were recommended by the Departmental Selection Committee, hence the appointment orders could not be withdrawn or rescinded once it had taken legal effect and created certain rights in favour of the respondents.

12.The learned Additional Advocate General failed to convince us that if the appointments were made on the recommendations of Departmental Selection Committee then how the respondents can be held responsible or accountable. Neither any action was shown to have been taken against any member of the Departmental Selection Committee, nor against the person who signed and issued the appointment letters on approval of the competent authority. As a matter of fact, some strenuous action should have been taken against such persons first who allegedly violated the rules rather than accusing or blaming the low paid poor employees of downtrodden areas who were appointed after due process in BPS-1 for their livelihood and to support their families. It is really a sorry state of affairs and plight that no action was taken against the top brass who was engaged in the recruitment process but the poor respondents were made the scapegoats. We have already held that the respondents were appointed after fulfilling codal formalities which created vested rights in their favour that could not have been withdrawn or cancelled in a perfunctory manner on mere presupposition and or conjecture which is clearly hit by the doctrine of locus WP No. 8365-P/2025

poenitentiae that is well acknowledged and embedded in our judicial system.”

Further reliance in this respect may also be placed on judgment of the apex court delivered in case of Shams Ur Rehman.vs. Military Accountant General, Rawalpindi and another reported as 2020 SCMR 188 as well as earlier judgment of this court rendered in case of Asmat Ullah Khan vs. Government of Khyber Pakhtunkhwa through Secretary Elementary and Secondary Education Khyber

Pakhtunkhwa at Peshawar and 2 others reported as 2023

PLC(CS) 743.

5.In light of what has been discussed above, instant writ petition is allowed to the effect that petitioners shall be reinstated in service alongwith all back benefits.

Announced on;

25th of November, 2025 *Zarshad* --sd--

JUDGE

--sd--

JUDGE

(DB)Hon’ble Mr. Justice Syed Arshad Ali and Hon’ble Mr. Justice Wiqar Ahmad WP No. 8365-P/2025