PHC admits petition against appointment of KP’s caretaker CM

PESHAWAR: The Peshawar High Court (PHC) on Wednesday admitted a writ petition against the appointment of retired Justice Dost Mohammad Khan as the province's caretaker chief minister for a regular hearing.

A two-member bench comprising Justice Waqar Ahmad Seth and Justice Nasir Mehfooz admitted the writ petition for regular hearing, directing the advocate general Khyber Pakhtunkhwa to submit a written reply in the writ petition within three days. The court fixed June 27 for hearing of the case.

A Nowshera-based lawyer, Syed Azizuddin Kakakhel filed the petition requesting the court to declare the caretaker chief minister's appointment illegal and ask the respondents, including the country's president and chief election commissioner, to fill out the position in line with Articles 62 and 63 of the Constitution. He requested the court for an interim relief by stopping the chief minister from functioning until a final disposal of the petition.

During arguments, Advocate General Abdul Latif Yousafzai submitted that Article 63 of the Constitution cannot apply to the appointment of a caretaker chief minister. He argued that a judge of the Supreme Court cannot be appointed to the post of service of Pakistan. However, he pointed out that the post of the caretaker chief minister could not come in the service of Pakistan and thus the writ petition was not maintainable and liable to be dismissed.

Justice Waqar Ahmad Seth observed that it is the post of caretaker chief minister, not a full-time chief minister. However, he asked the advocate general to submit a reply within three days to the questions raised in the petition.

The petitioner said retired Justice Dost Mohammad Khan was appointed an additional judge of the PHC on September 10, 2002, and thereafter elevated as permanent judge of the court on September 10, 2003. He said Dost Mohammad was appointed the PHC chief justice on November 17, 2011, and remained on that position until January 31, 2014.

He added that the caretaker chief minister was later appointed the Supreme Court judge on November 17, 2014, and retired from that position on March 20, 2018. The petitioner said retired Justice Dost Mohammad was appointed the caretaker chief minister, who assumed the office on June 6, 2018.

The petitioner claimed that the office of caretaker chief minister was a political office and whenever a person was appointed on that post, he or she took oath under the Constitution. He added the caretaker chief minister was bound by the Constitution to fulfil the requirement given in articles 62 and 63 of the Constitution.

The petitioner said a person should be disqualified from being elected or being chosen as a parliamentarian if he or she had been in the service of Pakistan or of any other statutory body unless a period of two years had elapsed since he ceased to be in service.

He said that under the National Judicial Policy, 2009, no retired judge of the Supreme Court should accept an appointment, which was lower to his status or dignity.

The respondents in the petition are the caretaker chief minister, chief election commissioner of Pakistan, KP provincial election commissioner, KP government through its chief secretary, KP governor through his secretary, and president of Pakistan through his secretary.