The Constitution of Pakistan, 1973 Developed by Zain Sheikh

Per, Iftikhar Muhammad Chaudhry, CJ and Jawwad S. Khawaja and Khilji Arif Hussain, JJ

(a) Constitution of Pakistan, 1973, Articles 9, 14, 18 & 184(3)
r/w Civil Servants Act (LXXI of 1973) Ss. 4,5,9 & 10

“per Chaudhry Ijaz Ahmad, J. in Tariq Aziz-du-Din’s case (2010 SCMR 1301). Additionally, the fundamental rights of civil servants, inter alia, under Articles, 9, 14 and 18 of the Constitution are also aspects arising in this Constitution Petition.

One of the implications of this concept, highlighted in the case-law considered below, is that the matter of tenure, appointment, posting, transfer and promotion of civil servants cannot be dealt with in an arbitrary manner; it can only be sustained when it is in accordance with the law. Moreover, the use of the words ‘in the public interest’ in such matters are not fatuous or pointless, but emphasise the fiduciary nature of orders relating to tenure, posting etc. Thus a proposed decision which deviates from the accepted or rule-based norm without proper justification, can be tested on the touchstone of a manifest public interest. [pp. 202,205] A & F

(b) Constitution of Pakistan, 1973, Articles 5 & 184(3)
r/w Civil Servants Act (LXXI of 1973) S.16

It is not in contention that civil servants are public servants and are, therefore, meant to take decisions only in accordance with law in the public interest. In their capacity as advisors in decision making or as administrators and enforces of law, they are not subservient to the political executive. It is their obligation to remain compliant with the Constitution and law. Hence they are not obliged to be servile or unthinkingly submissive to the political executive. One of their prime duties is to give advise in the best public interest and to administer the law impartially being in-charge of the machinery of the State.

We reaffirm that while civil servants do have a duty to follow the policy guidelines and directions of the political executive yet, because of Article 5 of the Constitution, just like other citizens, their foremost duty is “obedience to the Constitution and the law”, not unthinking obedience to all directives (right or wrong) issuing from the political executive. [P. 203] B & C

(c) Constitution of Pakistan, 1973, Article 184(3)
r/w Civil Servants Act (LXXI of 1973) Ss. 4,5,9 & 10

Tenure, appointment, promotion and posting/transfer are of utmost importance in the civil service. If these are made on merit in accordance with definite rules, instructions etc., the same will rightly be considered and treated as part of the terms and conditions of service of a civil servant. If, however, rules and instructions are deviated from and as a result merit is discouraged on account of favoritism, sifarish or considerations other than merit, it should be evident the civil service will not remain independent or efficient. [P. 205] G

(d) Constitution of Pakistan, 1973, Article 184(3)
r/w Civil Servants Act (LXXI of 1973) Ss. 5 & 11

In a number of judgments, the courts have clarified that whenever there are statutory provisions or rules or regulations which govern the matter of appointments, the same must be followed, honestly and scrupulously. In the Corruption of Hajj Arrangements’ case (PLD 2011 SC 693) and Tariq Aziz-ud-Din’s case ibid, it has been clarified that even where there are no explicit rules governing the appointment process, and appointments are to be made in the exercise of discretionary powers, such discretion must be employed in a structured and reasonable manner and in the public interest. Appointing authorities cannot be allowed to exercise discretion at their whims, or in an arbitrary manner; rather they are bound to act fairly, evenly and justly and their exercise of power in judicially reviewable. And in Muhammad Yasin v. Federation of Pakistan (PLD 2012 SC 132), we have clarified that, when called upon to do so, the Courts are “duty bound to examine the integrity of the selection process”, although they “will not engage in any exhaustive or full-fledged assessment of the merits of the appointee nor […] seek to substitute [their] own opinion for that of the Executive.” It may also be noted that just like the appointment of civil servants, their removal and dismissal from service has not been left to anyone’s whims and caprice. It is governed by rules and regulations, amongst them the Civil Servants (Efficiency and Discipline Rules), 1973. Indeed, the anachronistic concept where government servants held office during the pleasure of the Crown has no place in a dispensation created and paid for by the people.

Appointments, Removals and Promotions: Appointments, removals and promotions must be made in accordance with the law and the rules made thereunder; where no such law or rule exists and the matter has been left to discretion, such discretion must be exercised in a structured, transparent and reasonable manner and in the public interest. [PP. 206,210]H & N

(e) Constitution of Pakistan, 1973, Article 184(3)
r/w Civil Servants Act (LXXI of 1973) S. 9

In Tariq Aziz-ud-Din’s case, we have dealt with some important facets of the civil service including the exercise of discretion in matters of promotions. Such discretion must be exercised fairly and in a transparent manner. Discretion has to be understood within the four corners of the concept of rule of law upon which our system of governance in founded. Every authority in the State is bound to obey the dictates of the law and has no personal or absolute discretion. [P. 207] I

(f) Constitution of Pakistan, 1973, Article 184(3)
r/w Civil Servants Act (LXXI of 1973) Ss. 4 & 10

In the Hajj Corruption Case, the Court reiterated its earlier ruling in Zahid Akhtar v. Government of Punjab (PLD 1995 SC 530), where it had been held that “the normal period of posting of a Government servant at a station, according to Rule 21 of the Rules of Business is three years, which has to be followed in the ordinary circumstances, unless for reasons or exigencies of service a transfer before expiry of the said period becomes necessary in the opinion of the competent authority.” Furthermore, with regard to transfers of civil servants, this Court has stated that transfers by political figures which are capricious and are based on considerations not in the public interest are not legally sustainable. Farrukh Gulzar v. Secretary Local Government and Rural Development, Lahore and 2 others (1998 SCMR 2222). There are principles of law enunciated by this Court and are to be followed in terms of Article 189 of the Constitution. We, however, repeatedly come across violations of such principles. This unnecessarily leads to litigation which, in turn, clogs Courts and Services Tribunals.

Tenure, posting and transfer: When the ordinary tenure for a posting has been specified in the law or rules made thereunder, such tenure must be respected and cannot be varied, except for compelling reasons, which should be recorded in writing and are judicially reviewable. [PP. 207, 210] J & O
(g) Constitution of Pakistan, 1973, Articles 5 & 184(3)
r/w Civil Servants Act (LXXI of 1973) S. 16

D- On the matter of obeying illegal ordrs from superiors

In Syed Nazar Abbas Jafri v. Secretary to the Government of the Punjab and another (2006 SCMR 606), this Court held that the duty of public officers is to independently discharge their functions and not be influenced by “dictatorial misuse of powers” at the hands of political figures. The Court has also emphasized that the appointments and removal of civil servants is not to be politically motivated. Province of Punjab v. Azhar Abbas (2002 SCMR 1). These decisions highlighted the concept of a civil service which enjoys certain legal protections and is thus capable of performing its envisioned role as a law-enforcing institution.

The compliance of illegal orders of superiors is not justified on the basis of having been issued from higher authority as it is the law and Constitution which must be obeyed. Here it would be relevant to cite the judgment of this Court in Samiullah Khan Marwat v. Government of Pakistan (2003 SCMR 1140) where it was stated: “…… the exercise of powers by the public functionaries in derogation to the direction of law would amount to disobey[ing] the command of law and the Constitution….” Furthermore, in the case of Iqbal Hussain v. Province of Sindh (2008 SCMR 105) the court held that “the compliance of any illegal and arbitrary order is neither binding on the subordinate forums nor valid in the eyes of law.” In case the subordinates are directed to implement an illegal order “they should put on record their dissenting note” Human Rights Cases Nos. 4668 of 2006, 1111 of 2007 and 15283-G of 2010 (PLD 2010 SC 759). Similarly, illegal orders cannot be defended on the plea that these could expose the concerned government servant to the rish of disciplinary action. Zahid Akhtar v. Government of Punjab (PLD 1995 SC 530).

Illegal orders: Civil servants owe their first and foremost allegiance to the law and the Constitution. They are not bound to obey orders from superiors which are illegal or are not in accordance with accepted practices and rule based norms; instead, in such situation, they must record their opinion and, if necessary, dissent. [pp. 208, 210] K & P

(h) Constitution of Pakistan, 1973, Article 184(3)
r/w Civil Servants Act (LXXI of 1973) S. 10

E- On the matter of posting civil servant as Officers on Special Duty (OSD)

Ordinarily, no government employee should be posted as OSD except under compelling circumstances. In the Hajj Corruption case, (PLD 2011 SC 693) the Court held: “it is well settled that placing an ‘OSD’ is not known to either the Civil Servants Act, 1973.” Reference in this regard may also be made to the cases of Mir Shah Nawaz Marri v. Government of Balochistan and others (2000 PLC (C.S) 533), Syed Ajmal Hussain Bokhari v. Commissioner, Rawalpindi (1997 PLC (C.S.) 754), Sajjad Ahmad Javed Bhatti v. Federation of Pakistan (2009 SCMR 1448) and Lt. Col. (R.) Abdul Wajid Malik v. Government of the Punjab(2006 SCMR 1360).

OSD: Officers should not be posted as OSD except for compelling reasons, which must be recorded in writing and are judicially reviewable. If at all an officer is to be posted as OSD, such posting should be for the minimum period possible and if there is a disciplinary inquiry going on against him, such inquiry must be completed at the earliest. [pp. 208, 210] L & Q