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September 10, 2020

Violation of SC parameters to depoliticise civil service becomes a routine

National

September 10, 2020

ISLAMABAD: Most, if not all, of the pre-mature transfers and postings both at the federal level and in the provinces are made in sheer violation of the Supreme Court’s decision in Anita Turab case and the latest removal of IG Punjab is no exception.

Bureaucratic sources told The News that none of the governments is adhering to the parameters set by the Supreme Court for posting and transfers of the civil servants and to protect their tenure and save the bureaucracy from politicisation.

Situation in Punjab is worse where even five chief secretaries and five Inspector General’s Police have been changed in two years' time whereas provincial departments’ see secretaries changed in every three to four months.

Establishment Division sources confirm that hardly in any case, the reasons for premature transfer are written. The SC in its direction had protected the tenure of government servants and ordered that tenure of a government servant cannot be varied, except for compelling reasons, which should be recorded in writing. Such reasons, as per the SC order, are judicially reviewable.

Although generally the governments insist that it is their discretion to change any officer from any post any time, in the Anita Turab case the SC had said that 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.

Frequent transfers and postings of officers at different levels badly hurt the performance and efficiency of the civil servants and as a consequence governance deteriorates with every passing day.

There is hardly any department in Punjab where repeated changes at the top level have not been made. The recent FIA report on wheat crisis had referred to repeated changes made in the Food Department as one of the major reasons for the crisis.

In the Anita Turab case, the SC had laid down the following principles to save the government servants from politicisation:

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. 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.

The SC had said that although it is conscious that the aforesaid matters relate to decision making and administration of the machinery of the state, we have recognised the need for ensuring that decision making in relation to tenures, appointments, promotions and transfers remains rule based and is not susceptible to arbitrariness or absolute and unfettered discretion.

Under the apex court’s direction, the copies of the judgment were 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. However, this landmark judgment has been generally overlooked by the authorities concerned.