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Thursday March 28, 2024

Caretakers can't take policy decisions

By Tariq Butt
March 19, 2018

ISLAMABAD: The caretaker government is barred from taking policy decisions of national importance or massively reshuffling bureaucrats and is only authorised to carry out day-to-day affairs of the State, says a previous Supreme Court judgement that set the domain and parameters for an interim setup to operate in the transitional interlude. The ruling was given by a three-member bench, headed by the then Chief Justice, Iftikhar Muhammad Chaudhry, in June 2013 on a petition filed by Khawaja M Asif. It remains in the field as it has neither been challenged nor overturned. The verdict becomes relevant as there are widespread apprehensions that the next caretaker government is going to take several decisions of far-reaching consequences, laying out a kind of agenda for the democratically elected dispensation as is usually done by such interim setup. As newly elected government is mandated to perform its functions of achieving the object and purpose of welfare of the people for which it has been duly appointed; therefore, the caretaker cabinet/government/prime minister, having no mandate of public support, is only an interim setup and due to this connotation should detach itself from making permanent policies having impact on future of Pakistan, read the verdict. It said the caretaker cabinet/prime minister appointed is empowered to carry out only day-to-day affairs of the State with the help of the available machinery/resources/manpower and also to watch national interest against war or national calamity or disaster faced by the nation, including terrorism. “The civil servants who have already been appointed in accordance with the rules/regulations on the subject ought not to be posted/transferred, except in extraordinary circumstances, that too, temporarily. Major policy decisions, including making of appointments, transfers and postings of the government servants should be left to be made by the incoming government in view of the provisions of Constitution that the affairs of the State are to be run by the chosen representatives of the people.” The judgement said since the caretaker government, after its appointment, had made more than 400 appointments, transfers and postings of civil servants/employees, including transfer on deputation with promotion to next higher grade or as the case may be, heads of autonomous, semi-autonomous bodies, regulatory authorities and heads of government controlled institution; therefore, it may not be possible for this court to discuss and deal with each and every case in these proceedings; therefore, their cases shall be subject to declaration, which is being made in this ruling.

Thus, at the touchstone of the parameters laid down in this verdict, it is declared and held that the orders of appointment/deputation, transfers as well as postings of civil servants and chief executive officers of statutory bodies, autonomous/semi-autonomous bodies, corporations, regulatory authorities made by the caretaker cabinet/prime minister are hereby declared to be void, illegal and of no legal effect with effective from the date of issuance of notifications respectively, except the transfers and appointments of senior government officers, including the chief secretaries and IGP of any of the provinces during the election process.

However, the federal government, in exercise of its powers would be authorised to allow continuing any of such appointments, transfers made by the caretaker cabinet/government in the public interest subject to requisite provision of law.

All the orders of removal or transfers as well as posting on deputation of civil servants and chief executive officers of statutory bodies, autonomous/ semi-autonomous bodies, corporations and regulatory authorities by the caretaker cabinet/prime mminister are declared void, illegal and of no legal effect w e f the date of issuance of notifications respectively. However, the federal government would be empowered to continue the removal or transfers of chief executive officers/heads of the departments, statutory bodies, autonomous/ semi-autonomous bodies, corporations and regulatory authorities in the public interest, subject to following requisite provision of law.

As far as contract employees are concerned, whose contracts have been cancelled or those to whom fresh contracts of service have been given by the caretaker cabinet/government, shall stand cancelled as holders of contract employment of both these categories deserve no interference because no relief can be granted to them in these proceedings as no question of public importance with reference to enforcement of any of their fundamental rights arises.

According to the judgement, as far as the cases of the transfers of the civil servants/employees before the completion of tenure made allegedly in violation of the law laid down by this Court in Anita Turab case are concerned, the relevant government departments shall examine their individual cases on the touchstone of the principles laid down in this case. However, decision given on the complaint of any of the employees by this court alleging violation of the principles enunciated in the judgement referred to hereinabove shall be deemed to be in accordance with law.

The appointments in autonomous/semi-autonomous bodies, corporations, regulatory authorities, etc., made before the appointment of caretaker government shall also be subjected to review by the elected government by adopting the prescribed procedure to ensure that right persons are appointed on the right job.

Khawaja Asif had requested the apex court to declare the acts of the caretaker government in effecting these transfers/postings/shuffling null and void, void ab initio and of no legal effect being in contravention of constitution, constitutional conventions and law.