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Says they are not bound to obey illegal orders of superiors; officials should not be posted as OSDs except for compelling reasons; courts won’t interfere in executive’s work if it adheres to law
 
 
Sohail Khan
Tuesday, November 13, 2012
From Print Edition
 
 

 

ISLAMABAD: The Supreme Court on Monday said that civil servants should not work as paid workers of a transient government rather they should adhere their allegiances to the State and Constitution.

 

A three-member bench of the apex court, comprising Chief Justice Iftikhar Muhammad Chaudhry, Justice Jawad S Khawaja and Justice Khilji Arif Hussain, announced the judgment in a petition, seeking clogging of unlawful political interference in the independent and legitimate functioning of civil servants.

 

The 13-page judgment, written by Justice Jawad S Khawaja, ruled that civil servants owe their first and foremost allegiance to the law and the Constitution, and they are not bound to obey orders from superiors that are illegal or are not in accordance with accepted practices and rule-based norms.

 

Anita Turab, a civil servant, had prayed to the court to include her petition in the suo moto case, initiated on the basis of broadcasts on different TV channels on February 25, 2012, wherein Syeda Wahida Shah, a candidate of the Pakistan People’s Party for bye-election to PS-53 (Tando Muhammad Khan), was shown slapping a member of the polling staff.

 

Anita Turab in her petition had submitted that the standing of the civil service be restored as service of the State and not the service of any transient government. She had sought 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 the apex court.

 

The petitioner, being a civil servant herself, had requested revival of the independent, mpartial and professional status of the civil service as an institution and to affirm its decision-making authority in furtherance of the rule of law.

 

She had contended that legal and constitutional safeguards meant to protect the civil service from excessive political interference are being systemically breached.

 

The court ruled that civil servants 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 situations, they must record their opinion and, if necessary, dissent.

 

The court further ruled that 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,” the court ruled.

 

The judgment further ruled that 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, the court observed that while hearing the instant petition, it has recognised 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.

 

Referring to appointments, removals and promotions, the court ruled that these 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.

 

Similarly, the court ruled that 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.

 

The court further ruled that the instant 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 emphasised,” says the judgement, adding that “good governance is largely dependent upon [an] upright, honest and strong bureaucracy. [The] Civil service is the backbone of our administration.” per Chaudhry Ijaz Ahmad, J. in Tariq Aziz-ud-din’s case (2010 SCMR 1301).

 

The court observed that 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,” the court ruled.

 

The court ruled that 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.

 

“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,” the judgement ruled, adding that in their capacity as advisers in decision-making or as administrators and enforcers of law, they are not subservient to the political executive.

 

The judgment cited an address made by Quaid-i-Azam Mohammad Ali Jinnah to the members of the civil service at Peshawar on 14th April, 1948, wherein he had instructed them not to be “influenced by any political pressure, by any political party or individual politician”. Meanwhile, the court ordered that copies of the judgement 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.