PESHAWAR: A Peshawar High Court bench on Wednesday suspended the decision of the caretaker provincial cabinet to dissolve the boards of governors (BoGs) of medical teaching institutions (MTIs) in the province.

Justice Abdul Shakoor and Justice Syed Arshad Ali also directed the respondents, including the provincial chief secretary and Election Commission of Pakistan secretary, to respond to several petitions requesting the court to declare the March 16, 2023, impugned cabinet decision “illegal and without lawful authority” and set it aside.

The bench pronounced a short order for the grant of an interim relief to the petitioners – the members of MTI BoGs – who had requested it to suspend action on that cabinet decision until final decision in the case.

The petitioners prayed to the court to declare that the role of the current caretaker setup was confined to the running of the day-to-day affairs of the province with the help of the available machinery and that the caretakers couldn’t take policy decisions and “permanent measures” like recruitment, appointments, transfers and postings, and removal of government officials.

Seeks govt, ECP response to plea against cabinet’s decision on BoGs

Till the filing of these petitions, the government hadn’t issued notifications for implementing the cabinet’s decision on MTI BoG dissolution.

However, advocate general Aamir Javed informed the bench that on April 11, the government notified the dissolution of seven of the 10 BoGs.

He said the petitions had become infructuous as the government issued notifications but the petitioners challenged the March 16 cabinet decision only. Mr Javed requested the bench to turn down the petitions.

Ali Gohar Durrani and Shumail Ahmad Butt, lawyers for the petitioners, said that a Supreme Court judgement about the powers of the caretaker government should be implemented in line with the spirit of Part VIII of Constitution and Section 230 of the Elections Act, 2017.

They said that the provincial government had enacted the Medical Teaching Institutions Reforms Act in 2015 to run major teaching hospitals in the province through BoGs.

The counsel said that BoGs of MTIs had several achievements to their credit and it was only natural that the boards would be allowed to complete their tenure.

They, however, said that to their utmost surprise, a summary was moved by the health secretary to remove BoG members.

The lawyers added that the summary for it was placed before the caretaker cabinet, which approved it on March 16.

They contended that the minutes of that cabinet meeting clearly showed that the provincial chief secretary and health secretary recorded their dissent by declaring unequivocally that the caretaker government lacked the authority to dissolve BoGs as per Section 230 of the Elections Act.

The counsel said that Section 230 of the Elections Act prohibited the caretaker government from making any policy decision in the province and thus its decision was illegal and without lawful authority.

Ali Gohar Durrani contended that the cabinet, in an illegal manner, had delegated its powers to a sub-committee to decide which BoGs to dissolve.

He wondered how a sub-committee could exercise the powers of the cabinet.

The lawyer contended that as soon as the caretaker government was formed, its mandate under the Constitution was to hold free and fair elections in aid of the ECP and that no caretaker cabinet could take policy decisions even in relation to the appointment and posting of civil servants.

He added that the principle was settled by the Supreme Court in a case after the approval of the proposed Constitution (Eighteenth Amendment) Act, 2010, by parliament.

Mr Durrani said that the Supreme Court had ruled that a caretaker government was empowered to carry out just “day-to-day affairs of the state with the help of available machinery, resources and manpower and it could not take any policy decision and permanent measures, including recruitment, making appointments, transfers and postings of government servants and that it must leave such matters to the elected government, which takes charge as a result of elections.”

Published in Dawn, April 13th, 2023