2025 P L C (C.S.) 235
[Balochistan High Court]
Before Abdullah Baloch and Rozi Khan Barrech, JJ
Dr. CHAKAR RIAZ
Versus
GOVERNMENT OF BALOCHISTAN through Chief Secretary Civil Secretarait,
Quetta and 2 others
Constitutional Petition No.1652 of 2023, decided on 28th March, 2024.
(a) Pak -Oman Hospital Pasni Act (XV of 2021) ---
----Ss. 4, 9 &11--- Chief Executive Officer (CEO) of the Pak -Oman Hospital Pasni,
appointment of ---Procedure , non- observance of ---Effect ---Petitioner, who was the Chief
Executive Officer (CEO) of the Pak -Oman Hospital Pasni ('Hospital'), sought to declare his
transfer and appointment of respondent as new CEO, as illegal and void---Validity ---
According to the procedure for appointment of the CEO, as encapsulated under S.9 of Pak-Oman Hospital Pasni Act, 2021 ('the Act 2021'), the board shall appoint the CEO from a panel of three individuals recommended by the Special Selection Committee constituted under S. 11 of the Act 2021 after due selection process based on merit, while S. 4 of the Act
2021 clearly provides that appointment to the post of CEO falls within the purview of the board constituted under the Act ---Surprisingly, the petitioner himself was transferred/posted
as CEO of the hospital on the approval of the Chief Minister as a stopgap arrangement without recommendation/approval of the board while at the time of his transfer/posting the board had already been constituted--- Similarly, the respondent was also posted / transferred
as CEO of the hospital on the recommendation of the Chief Minister by the Secretary of Health without following the procedure laid down under S. 9 of the Act 2021---Therefore, the transfer/posting of both the petitioner and respondent being issued by Secretary Health on the recommendation of the Chief Minister were illegal, unlawful and had been issued without lawful authority and/or jurisdiction or contrary to the procedure as set out in the Act, 2021---Since both the transfer/posting of petitioner and respondent No.3 had been made in violation of the statutory enactment without jurisdiction, therefore, High Court directed the Board of Governors to make the appointment of a person as the CEO of the hospital under the provisions of the Pak -Oman Hospital Pasni Act, 2021--- Constitutional petition was disposed
of accordingly.
(b) Pak -Oman Hospital Pasni Act (XV of 2021) ---
----Ss. 4, 9 &11--- Chief Executive Officer (CEO) of the Pak -Oman Hospital Pasni,
appointment of ---Stopgap arrangement ---Vested right ---Petitioner, who was the Chief
Executive Officer (CEO) of the Pak -Oman Hospital Pasni ('Hospital') as stopgap
arrangement, sought to declare his transfer and appointment of respondent as new CEO, as illegal and void ---Validity ---Pertinently, at the time of transfer/posting, if the person
possessing requisite antecedents to qualify for a particular post may not be available in the
department and, while the selection for appointment is under process or is delayed due to some plausible reason for the time being, the competent authority, in view of exigency, may assign acting charge and current charge as a stopgap arrangement ---Expression 'stopgap'
means a temporary way of dealing with a problem or satisfying a need and/or something that can be used until something better or more permanent can be obtained--- Ad-hoc appointment
is made, or look -after/acting or additional charge is gi ven, under exceptional situations as a
stopgap arrangement for a limited period with the sole aim and intention to continue such appointment till the regular appointment on the post ---Person appointed as a stopgap
arrangement does not hold such a post in a substantive capacity; this arrangement characterizes a class which is distinct and dissimilar from those who are appointed to posts in service compliant with the relevant rules of recruitment ---Look -after or additional charge as
a stopgap arrangement does not entitle the incumbent to claim any benefit on account of such
arrangement, which can be revoked or withdrawn by the competent authority at any time
without assigning any reason--- Since both the transfer/posting of petitioner and respondent
had been made in violation of the statutory enactment without jurisdiction, therefore, High
Court directed the Board of Governors to make the appointment of a person as the CEO of the hospital under the provisions of the Pak- Oman Hospital Pasni Act, 2021---Constitutional
petition was disposed of accordingly.
(c) Pak -Oman Hospital Pasni Act (XV of 2021) ---
----Ss. 4, 9 & 11--- Constitution of Pakistan, Art. 199--- Appointment of Chief Executive
Officer (CEO) of the Pak -Oman Hospital Pasni ---Writ of quo warranto, issuance of ---Scope --
-Petitioner, who was the Chief Executive Officer (CEO) of the Pak -Oman Hospital Pasni
('Hospital'), sought to declare his transfer and appointment of respondent as new CEO, as
illegal and void ---Validity ---Procedure of quo warranto gives the judiciary a weapon to
control the Executive from making appointments to public office against the law and to protect a citizen from being deprived of public office to which he has a right ---These
proceedings also tend to protect the public from usurpers of public office, who may be allowed to continue either with the connivance of the Executive or by reason of its apathy---It will, thus, be seen that before a person can effectively claim a writ of quo warranto, he has to satisfy the Court that the office in question is a public office and is held by a usurper without legal authority and that inevitably would lead to the enquiry as to whether the appointment of the alleged usurper has been made in accordance with law or not ---
Transfer/postings of both the petitioner and respondent on the recommendation of the Chief Minister by the Secretary Health Department, who were not members of the board constituted under S. 9 of the Act 2021, were illegal and without jurisdiction---It is a popular principle of law that when a statute/law describes or requires a thing to be done in a
particular manner, it should be done in that manner or not at all ---Both the petitioner and
respondent were not appointed as CEO of the hospital according to law and neither could claim their right as a matter of right ---Such right can only be claimed when a decision is
taken in accordance with the law ---A wrong concession in favour of one person does not
entitle any other person to claim the benefit of a wrong decision---Since both the transfer/posting of petitioner and respondent had been made in violation of the statutory enactment without jurisdiction, therefore, High Court directed the Board of Governors to make the appointment of a person as the CEO of the hospital under the provisions of the Pak-Oman Hospital Pasni Act, 2021 ---Constitutional petition was disposed of accordingly.
Najamuddin Mengal, Hafeezullah and Salman Kakar for Petitioner.
Abdul Latif Kakar for Respondent No.3.
Nusrat Baloch, A.A.G. along with Abdul Nasir Kasi Law Officer Health Department
for the Respondents/State.
Date of hearing: 18th March, 2024.
JUDGMENT
ROZI KHAN BARRECH, J. ---The instant constitutional petition filed under Article
199 of the constitution of Islamic Republic of Pakistan, 1973 ("Constitution") carries the following prayer:
"i. Declare that impugned Notification No.SO -IV(H)4 -6/2022/3883- 89/, issued by
respondent No.2 (incompetent authority), as illegal and void and same has been passed without lawful authority.
ii. Allow the petition and to set aside the impugned order.
iii. Restrain the respondents from passing such type of orders in future.
iv. Grant any other relief to which may be deemed just and appropriate in the circumstances of the case."
2. Essential facts, as jotted down in the memo of the petition, are that vide Notification
No. PC(H)/Pak -Oman/2021/11804/16 dated 15.12.2021, the petitioner was transferred and
posted as Chief Executive Officer (CEO), Pak -Oman 50 bedded Hospital, Pasni (in short the
"hospital"). He was performing his duties as a stopgap/temporary arrangement till the posting
of a regular appointment. On 25th September 2023, the petitioner was transferred from the post of CEO of the hospital and was directed to report to the Health Department (OSD), and respondent No.3 was posted against the aforesaid post.
3. The petitioner, being aggrieved and dissatisfied with the impugned transfer order
dated 25th September 2023, has filed the instant petition with the assertion that the impugned transfer order passed by the Secretary Health Department Government of Balochistan is illegal, unlawful, and has been issued without lawful authority and jurisdiction or contrary to the procedure as set out under the Pak- Oman Pasni Hospital, Act, 2021 (hereinafter the "Act,
2021"),
4. Notices were issued to the respondents, who filed their separate para -wise comments
and denied the claim of the petitioner.
5. We have heard the learned counsel for the parties on the subject issue and perused the
material available on record.
6. The hospital was established pursuant to the provision of the Pak- Oman Pasni
Hospital Act, 2021, for providing modern health care facilities to the people of the area at their doorstep at the level of secondary health services.
7. The procedure for appointment of the CEO, as encapsulated under section 9 of the
Act, 2021, according to which the board shall appoint the CEO from a penal of three individuals recommended by the Special Selection Committee constituted under Section 11
of the Act 2021 after due selection process based on merit. Surprisingly, the petitioner was transferred/posted as CEO of the hospital on the approval of the Chief Minister vide Notification No. PC(H)/Pak -Oman/2021/11804/16 dated 15.12.2021 as a stopgap
arrangement without recommendation/approval of the board constituted under Section 9 of the Act, 2021. At the time of transfer/posting the board had already been constituted vide Notification dated 15th August 2021. It is worthwhile to mention here that at the time of transfer/posting, if the person possessing requisite antecedents to qualify for a particular post may not be available in the department and, while the selection for appointment is under process or is delayed due to some plausible reason for the time being, the competent authority, in view of exigency, may assign acting charge and current charge as a stopgap arrangement. The expression 'stopgap' means a temporary way of dealing with a problem or satisfying a need and/or something that can be used until something better or more permanent can be obtained. Ad -hoc appointment is made, or look- after/acting or additional
charge is given, under exceptional situations as a stopgap arrangement for a limited period with the sole aim and intention to continue such appointment till the regular appointment on the post. A person appointed as a stopgap arrangement does not hold such a post in a substantive capacity; this arrangement characterizes a class which is distinct and dissimilar from those who are appointed to posts in Service compliant with the relevant rules of recruitment. Look- after or additional charge as a stopgap arrangement shall not entitle the
incumbent to claim any benefit on account of such arrangement, which can be revoked or withdrawn by the competent authority at any time without assigning any reason.
8. Similarly, respondent No.3 was posted and transferred as CEO of the hospital vide
notification dated 25th September 2023 on the recommendation of the Chief Minister by the Secretary of Health. Respondent No.3 was also not appointed in view of the procedure laid down under section 9 of the Act, 2021, and he was not recommended by the board and selection committee as required under section 11 of the Act, 2021. Section 4 of the Act, 2021 clearly provides that appointment to the post of CEO falls within the purview of the board constituted under the Act. Similarly, section 11 of the Act, 2021 provides that a penal of three individuals recommended by the Selection Committee constituted under section 11 of the Act, 2021. Therefore, the transfer/posting of the petitioner vide notification dated 15.12.2021 and transfer/posting of respondent No.3 vide notification dated 25th September
2023 issued by Secretary Health on the recommendation of the Chief Minister are illegal,
unlawful and have been issued without lawful authority and/or jurisdiction; or contrary to the procedure as set out in the Act, 2021.
9. The procedure of quo warranto gives the judiciary a weapon to control the Executive
from making appointments to public office against the law and to protect a citizen from
being deprived of public office to which he has a right. These proceedings also tend to protect the public from usurpers of public office, who might be allowed to continue either with the connivance of the Executive or by reason of its apathy. It will, thus, be seen that before a person can effectively claim a writ of quo warranto, he has to satisfy the Court that
the office in question is a public office and is held by a usurper without legal authority and
that inevitably would lead to the enquiry as to whether the appointment of the alleged
usurper has been made in accordance with law or not.
10. It is stated earlier that the transfer/postings of both the petitioner and respondent No.3
on the recommendation of the Chief Minister by the Secretary Health Department, who were not members of the board constituted under section 9 of the Act, 2021, were illegal without jurisdiction. It is a popular principle of law that when a statute/ law describes or requires a thing to be done in a particular manner, it should be done in that manner or not at all. Both the petitioner and respondent No.3 were not appointed as CEO of the hospital according to law and neither can claim their right as a matter of right. Such right can only be claimed when a decision is taken in accordance with the law. A wrong concession in favour of one person does not entitle any other person to claim the benefit of a wrong decision.
11. Before parting with the judgment, we observe that the concept of power under the
Constitution of Pakistan is distinct from other constitutions of common law countries. Under the Constitution of Islamic Republic of Pakistan, 1973, the sovereignty vests in Allah Almighty, and it is to be exercised by "the people within the limits prescribed by Him" as a sacred trust. The authorities in Pakistan, while exercising powers, must keep in mind that it is not their prerogative, but a trust reposed in them by Allah and the constitution.
In view of the aforesaid discussion, since both the transfer/posting of petitioner and
respondent No.3 have been made in violation of the statutory enactment without jurisdiction,
therefore, the Board of Governors is directed to make the appointment of a person as the
CEO of the hospital possessing such qualification on such terms and conditions,
notwithstanding anything contained in any other law, as it may determine, from a penal of three individuals recommended by Special Selection Committee constituted under section 11 of the Pak -Oman Hospital Pasni Act, 2021. The petition is disposed of with the above
direction.
MQ/36/Bal. Order accordingly.This judgment is reproduced from a publicly available source for informational purposes and does not constitute legal advice. If you believe this listing contains an error,
let us know.