Last Updated on September 16, 2013 by ShumailaKamal
The supreme court of Pakistan has issued orders that the junior employees are not compelled to obey the illegal orders of their seniors. If they do so then it is against the law of Pakistan. This article is delivered by Mr.M. Raza Shamsi. The detail of this decision is as under:
Many centuries before the term ‘good governance’ became a catch-phrase, we find a remarkably eloquent exposition of the principles of good governance in the Epistle of Hazrat Ali to Malik ibn Ashtar, the Governor of Egypt. The revered Khalifa, May Allah be pleased with him, is reported to have said: “….give careful consideration to the selection of … officers. Confirm them in their appointments after approval, apprenticeship and probation. Never select men for responsible Const. Ps. 23/2012 etc posts either out of any regard for personal connections or under any influence, for, that might lead to injustice and corruption.… select for higher posts men of experience, men firm in faith … Such men will not fall an easy prey to temptations and will discharge their duties with an eye on the abiding good of others”. The law and the Constitution of Pakistan, with the aim of furthering the welfare of the people of Pakistan, articulate the same principles. The truth is that principles pertaining to the setting up of a just and constitutional government are eternal, not peculiar to our times. Our law, Constitution and courts only apply these universal and time-tested principles to the prevalent situation. In this public interest case seeking elaboration of constitutional and legal safeguards relating to the working of civil servants, we reaffirm these eternal principles which have also been stressed by us in cases decided earlier.
2. The background to this matter is that Suo Moto Case No. 3 of 2012 was initiated on the basis of broadcasts on different TV channels on 25.2.2012. In these broadcasts, Syeda Wahida Shah, a candidate of the Pakistan Peoples Party for bye-election to PS-53 (Tando Muhammad Khan) was shown slapping a member of the polling staff. The Suo Moto case was concluded vide order dated 12.3.2012. Ms. Anita Turab, who is a civil servant in BS-19, presently working in the Ministry of Interior, filed an application in the aforesaid Suo Moto case. Since the case stood concluded, the application was ordered on 12.3.2012 to be registered as a petition under Article 184 (3) of the Constitution. It is this petition which is being decided through the present order.
3. The grievance of the petitioner set out in her petition can be summarized. Firstly, she seeks that the standing of the civil service be restored as service of the State and not the service of any transient government. To achieve this object, her submission is that unlawful political interference in the independent and legitimate functioning of civil servants be stopped. Secondly, the petitioner seeks corrective institutional measures to revert the civil service to rule-based management practices in accordance with the letter and spirit of applicable laws, rules and precedents of this Court.
4. On 12.3.2012, we had directed the Secretary Establishment Division, Government of Pakistan, the Chief Secretaries of the four Provinces and the Chief Commissioner, IslamabadCapitalTerritory to submit their comments. It was noted in Const. Ps. 23/2012 etc the said order that civil servants who act according to law, at times, have to face hardship in the form of immediate transfer or posting as Officers on Special Duty (OSD) even before the completion of their tenure. It was also noticed that frequent transfers, postings and disciplinary proceedings are taken in violation of the law, rules and regulations.
5. The above referred functionaries comprised as a Committee, have submitted their report which includes tentative recommendations. Amongst other things, the Committee has recommended that “postings and transfers be made on merit”, tenures for various categories of posts be fixed” and that “no civil servant should be posted as OSD for purposes of parking of officers who are unwanted, or, who are not susceptible to pressures.” The Committee further recommends that “[a] civil servant should be placed under suspension only by the competent authority after initiation of disciplinary proceedings; and….Officers taken on deputation/borrowed from other tiers of the government should carry the requisite experience and seniority for specific jobs.” According to the petitioner, many of the Committee’s recommendations are already covered by existing law, rules and regulations, particularly in matters relating to tenure, appointment, transfer and posting of civil servants. There is no dispute or contention that such recommendations must indeed be implemented with immediate effect as a necessary concomitant to good governance. Some other recommendations made by the Committee require legislation or rule making which, necessarily will need to be undertaken by the legislature and/or the competent rule making authority and not by the Court.
6. The petitioner being a civil servant herself has requested revival of the independent, impartial and professional status of the civil service as an institution and to affirm its decision-making authority in furtherance of the rule of law. The petitioner’s further grievance is that legal and constitutional safeguards meant to protect the civil service from excessive political interference are being systemically breached. With its safeguards thus withered, the service is growing inefficient and demoralized and with it, the machinery of the State, mandated to enforce good governance, rule of law and fundamental rights of the people of Pakistan, is failing. Const. Ps. 23/2012 etc
7. The petition has been held maintainable because the situation portrayed does raise a question of public importance with reference to the enforcement of fundamental rights. In our constitutional scheme of governance, the importance of such a civil service, which is law-abiding and itself legally protected, cannot be over emphasized. “Good governance”, this Court has recently observed, “is largely dependent upon [an] upright, honest and strong bureaucracy. [The] Civil service is the back bone of our administration.” per Chaudhry Ijaz Ahmad, J. in Tariq Aziz-ud-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. The enforcement of fundamental rights is primarily the responsibility of the Executive branch of the State and civil servants constitute that essential component of the Executive who operate the executive machinery. A duty is thus cast both on the civil service and on the political executive to ensure the effectiveness (in all respects) of the civil service.
8. 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 enforcers 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 advice in the best public interest and to administer the law impartially being incharge of the machinery of the State. In this regard, the address made by Quaid-i-Azam Mohammad Ali Jinnah to the members of the civil service at Peshawar on 14th April, 1948 is most relevant. Quaid-i-Azam instructed them not to be “influenced by any political pressure, by any political party or individual politician.” While urging them to loyally and faithfully serve whichever government came to power “in the ordinary constitutional course”, he also reminded them of the need for “fearlessly, maintaining [their] high reputation, prestige, honour and the integrity of [their] service.” Noting that pressurizing civil servants was, even in those early days, “a very common fault of politicians”, he warned politicians that such behaviour would lead to “nothing but corruption, bribery and nepotism which is a Const. Ps. 23/2012 etc horrible disease…” Ultimately, he urged both politicians and civil servants to “understand [their] own sphere of duty and responsibility and act with others harmoniously and in complete cooperation.” Yet, being fully aware that real life was never ideal, he forewarned the civil servants that “you may even be put to trouble not because you are doing anything wrong but because you are doing right. Sacrifices have to be made, and I appeal to you, if need be, to come forward and make the sacrifice…”. (Quaid-e-Azam Mohammad Ali Jinnah, Speeches as Governor General of Pakistan 1947-48, Sang-e-Meel Publications, Lahore : 2004).
9. These should, indeed, be the guiding principles informing the relationship between the civil service and the political executive – the two limbs of the Executive branch of government, envisaged in the Constitution. Equally so, these principles should inform the judicature’s interpretation of the articles of the Constitution and legal provisions which relate to the employment of persons in the service of Pakistan. 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. In this context, Rule 5(10) of the Rules of Business, 1973 framed by the Federal Government in accord with Articles 90 and 99 of the Constitution, may be examined: “When the Secretary submits a case to the Minister, the latter may accept the proposal or views of the Secretary or may over-rule him. The Secretary will normally defer to the decision of the Minister and implement it. In case, however, the Secretary feels that the decision of the Minister is manifestly wrong and will cause gross injustice or undue hardship, he may state his reasons and re-submit the case to the Minister. If the Minister still adheres to his earlier decision and the matter is important enough, the Secretary shall request the Minister
to refer the case to the Prime Minister and the Minister shall so refer the case for orders of the Prime Minister. If the case is not referred to the Prime Minister, the Secretary shall submit it directly to the Prime Minister with observations of the Minister-in-Charge.” In other words, implementation of policy or directives, in some cases may be required notwithstanding the considered views of a civil servant to the contrary. In such event, however, the civil servant should record his/her honest and considered opinion without fear. Decisions Const. Ps. 23/2012 etc violating the law relating to appointment and terms and conditions of service of civil servants which are manifestly wrong and are likely to cause gross injustice or undue hardship should be considered important enough for the purpose of Rule 5(10) ibid.
10. It is worth noting that the Constitutions of 1956 and 1962 contained chapters outlining certain safeguards for the civil service. In the 1973 Constitution, the framers omitted a similar chapter from the constitution and shifted the onus to ordinary legislation. The Law Minister at the time, who was steering the Constitution Bill informed the Constituent Assembly that in the past, constitutional protection for civil servants had been granted “because those who served came from outside and they needed these protections in respect of service”. However, since now “this country [was] being run by the leaders of the people” such protections were no more deemed necessary. The purpose of this change, therefore, was to “[break] away from the past colonial traditions” and to emphasize the point that civil servants were not entitled to “any superior or higher status” compared to other citizens. Another reason the Law Minister gave was that the “Constitution is the basic document providing the fundamentals and this matter was not so fundamental as to be provided in the Constitution.” (Parliamentary Debates, 31st December, 1972 and 19th February, 1973). It was therefore decided that, as stated in Articles 240, 241 and 242 of the Constitution, the matter would be dealt with through statutes. Such statutes were subsequently passed and include the Civil Servants Act, 1973. It may be emphasized that whatever else the intent behind these changes may have been, it could not have been meant to subjugate of civil servants to constantly changing political imperatives. The intent of the Constitution cannot but be a fuller realization of the goal set out in the speech of the country’s founding father quoted earlier: “fearlessly, maintaining [the] high reputation, prestige, honour and the integrity of [the civil] service.”
11. It was in this spirit, i.e. providing meaningful legal guarantees to civil servants and doing away with arbitrariness, that Parliament enacted statutes such as the Civil Servants Act, 1973. The very object of this statute is to legally “regulate the appointment
of persons to, and the terms and conditions of service of persons in, the service of Pakistan” (Preamble). The rule of law is the key idea reflected in the whole scheme of the statute. This impression is textually reinforced by the express stipulation that appointment of Const. Ps. 23/2012 etc civil servants shall be made only “in the prescribed manner” (S. 5), that the terms and conditions shall be only such as are “provided in [the] Act and the Rules” [S. 3(1)] and not be “varied to his disadvantage” [S. 3(2)] and that promotions shall only be made on the basis of objective criteria such as “merit” [S. 9(2)(a)] and “seniority-cum-fitness”.[S. 9(2)(b)].
12. This Court, in a number of precedents has, interpreted and emphasized these very principles, some of which need to be reiterated at this point. Before that, however, we may note the precept and rule of public trust which forms the basis of this area of the law. This court has repeatedly observed that “functionaries of the State are fiduciaries of the people and ultimately responsible to the people who are their pay masters.” [Syed Yousaf Raza Gillani v. Assistant Registrar, (PLD 2012 SC 466) affirming Muhammad Yasin v. Federation of Pakistan. Most recently, in the case relating to dual nationality of Parliamentarian, we have reiterated that “all state authority is in the nature of a ‘sacred trust’ and its bearers should therefore be seen as fiduciaries” (Mehmood Akhtar Naqvi v. Federation of Pakistan, Const. P. 5/2012). 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 emphasize 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.
13. 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. It is necessary once again, to hark back to the considerations Const. Ps. 23/2012 etc set out in the speech of Quaid-i-Azam and the eternal wisdom reflected in the Epistle of Hazrat Ali, may Allah be pleased with him, cited at the start of this opinion. It is also relevant to note that the principles of good governance are already envisioned in the Constitution and are also encoded in statutes such as the Civil Servants Act, 1973, the Civil Servants (Appointment, Promotion & Transfer) Rules, 1973 and other rules made under the aforesaid Act and in regulations and instructions given in the Civil Establishment Code (Estacode). It is, however, apparent from precedent and civil service matters coming up before Service Tribunals and this Court that problems/difficulties arise for civil servants when the rules of good governance so encoded are breached and the reason for such breach appears to be abuse of discretion.
We are aware that matters relating to tenure etc. cannot be put in a strait-jacket and that there is to be an element of flexibility. A balance between the competing pulls of discretion and rule based decision making is a fine one where perception of fairness and even handed treatment is of utmost importance. It is for this reason that transparency in decisions relating to tenure etc. are required to be entrenched and cemented to assure the quality, effectiveness and morale of the civil service. Since executive decisions generally are subject to judicial review, the assurance of transparency is itself likely to eliminate decision making based on considerations other than merit. We have referred to accepted principles and rules above and may now advert to certain relevant rulings earlier rendered by this Court.
A – On the Issue of Appointments and Removals
14. 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 963) 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 Const. Ps. 23/2012 etc and their exercise of power is 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 appointeenor […] 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 (Efficienty 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. B – On the Matter of Promotions
15. 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 promotion. 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 is founded. Every authority in the State is bound to obey the dictates of the law and has no personal or absolute discretion. It was therefore held that “[t]he right [to
be considered for promotion] contemplated under section 9 [of the Civil Servants Act] is neither illusionary nor a perfunctory ritual and withholding of promotion of an officer is a major penalty in accordance with the Civil Servants (Efficiency and Disciplinary) Rules, 1973, therefore, consideration of an officer for promotion is to be based not only on the relevant law and the rules but also to be based on some tangible material relating to merit and eligibility which can be lawfully taken note of.” C – On the Matter of Transfers and Tenure 16. 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 Const. Ps. 23/2012 etc 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 vs. Secretary Local Government and Rural Development Department, Lahore and 2 Others (1998 SCMR 2222). These 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 Service Tribunals.
D – On the matter of obeying illegal orders from superiors
17. In Syed Nazar Abbas Jafri vs. Secretary to the Government of the Punjab and other (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 appointment and removal of civil servants is not to be politically motivated. Province of Punjab vs. Azhar
Abbas (2002 SCMR 1). These decisions highlight 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.
18. 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 vs. 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 vs. 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 No. 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 Const. Ps. 23/2012 etc servant to the risk of disciplinary action. Zahid Akhtar vs. Government of Punjab (PLD 1995 SC 530).
E – On the matter of posting civil servant as Officers on Special Duty (OSD)
19. Ordinarily, no government employee should be posted as OSD except under compelling circumstances. In the Hajj Corruption case, (PLD 2011 SC 963) the Court held: “It is well settled that placing an officer as OSD is tantamount to penalizing him because the expression ‘OSD’ is not known to either the Civil Servants Act, 1973 or the Civil Servants Appointment Promotion and Transfer Rules, 1973.” Reference in this regard may also be made to the cases of Mir Shah Nawaz Marri vs. Government of Balochistan etc [2000 PLC (C.S) 533], Syed Ajmal Hussain Bokhari vs. Commissioner, Rawalpindi [1997 PLC (CS) 754], Sajjad Ahmad Javed Bhatti vs. Federation of Pakistan (2009 SCMR 1448) and Lt. Col. (R.) Abdul Wajid Malik vs. Government of the Punjab (2006 SCMR 1360).
20. The above referred precedents have shaped the contours of the law relating to civil servants and the civil service. In the established tradition of a common law
jurisdiction, Article 189 of the Constitution stipulates that, “[a]ny decision of the Supreme Court shall, to the extent that it decides a question of law or is based upon or enunciates a principle of law, be binding on all other courts in Pakistan.” As this Court has already held “… the interpretation of the various Articles by this Court becomes part of the Constitution”.
Al-Jehad Trust v. Federation of Pakistan (PLD 1997 SC 84). Specific to the law relating to civil servants and matters in respect of their service, we have enunciated a principle of law in the case titled Hameed Akhtar Niazi versus The Secretary Establishment Division (1996 SCMR 1185) holding that a decision given by this Court on a point of law will be binding on concerned departmental functionaries who will be obliged to apply such legal principle in other similar cases regardless of whether or not a civil servant has litigated the matter in his own case. We are conscious that in some instances the application of a legal principle enunciated in a precedent may be possible without difficulty or ambiguity, while in other cases there may be some uncertainty in determining if a legal principle is in fact applicable as precedent. It is, however, clear that in view of Articles 189 and 190 of the Constitution, a civil servant will be entitled Const. Ps. 23/2012 etc to make a departmental representation or initiate legal proceedings before a competent forum to enforce a legal principle enunciated by this Court.
21. In appropriate cases the failure of a state functionary to apply a legal principle which is clearly and unambiguously attracted to a case, may expose him to proceedings also under Article 204(2)(a) of the Constitution. This article, it may be recalled, grants this Court the power to punish for contempt any person who “disobeys any order of the Court”. In a recent judgment, the Court has clarified the significance of the law of contempt as an enforcement mechanism. It was held “…the Court, in and of itself, has to pass orders and to require the implementation of its orders; responsibility for implementation has been made obligatory on other organs of the state, primarily the Executive. However, in the unfortunate situation that a functionary of the Executive refuses to discharge his constitutional duty, the Court is empowered to punish him for contempt…Simply put, a government of laws cannot be created or continued with toothless courts and defiant or blithely non-compliant public functionaries”. Baaz Muhammad Kakar vs. Federation of Pakistan (Const. P. No.77/2012). If there still remains any doubt, let us clarify that those executive functionaries who continue to ignore the Constitution and the law, do so at their own peril.
22. The principles of law enunciated here in above can be summarized as under:-
i) 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.
ii) 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.
iii) 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 Const. Ps. 23/2012 etc based norms; instead, in such situations, they must record their opinion and, if necessary, dissent.
iv) 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.
23. We are fully conscious that the aforesaid matters relate to decision making and administration of the machinery of the State. As such the responsibility of deciding as to suitability of an appointment, posting or transfer falls primarily on the executive branch of the State which comprises of both the political executive and civil servants. Courts ordinarily will not interfere in the functioning of the executive as long as it adheres to the law and established norms and acts in furtherance of its fiduciary responsibility. However, while hearing this petition we have recognized the need for ensuring that decision making in relation to tenure, appointments, promotions and transfers remains rule based and is not susceptible to arbitrariness or absolute and unfettered discretion.
24. Copies of this judgment shall be sent to the Federal Secretary Establishment, the Chief Secretaries of the Provinces, the Commissioner Islamabad Capital Territory and to the Secretaries of all Federal and Provincial government departments.