Legal layers

How have various rulers changed laws for civil servant tenures over time?

Since independence, our legal framework regulating the civil service has developed in response to the competing ideals of granting security of tenure to insulate bureaucracy from partisan politics on one hand, and the need to retain a degree of control to maintain an efficient, disciplined and honest civil service on the other hand. However, we have never managed to comprehensively address this tension which remains an enduring legacy of our colonial past.

At independence, Pakistan was governed by the Government of India Act, 1935, which gave civil servants constitutional protection from arbitrary dismissal or reduction in rank under Article 240. In Khawaja Gulam Sarwar vs Pakistan (PLD 1962 SC 142), the Supreme Court held that the state could not contract out of the constitutional protections given to civil servants. When the country drafted its first constitution in 1956, similar protections were introduced in Articles 181 and 182 to give the civil service some security of tenure. And when six years later Ayub Khan passed a new constitution, these protections were retained in Articles 177 and 178 of the 1962 Constitution.

While the constitutional text proclaimed to afford a degree of protection for civil servants and give them some security of tenure, the demands of day to day politics exerted pressure in the opposing direction. Throughout this period, several attempts were made to undermine this structure by reining in the services. Often these attempts coincided with a change in the regime. A year after he took over, Ayub Khan promulgated the Public Officers (Disqualification) Order, 1959, under which he took disciplinary action against 3,000 government servants by way of dismissal, compulsory retirement, and reduction in grade.

Similarly, when Yahya Khan took over he enacted the Removal from Service (Special Provisions) Regulations, 1969, and removed more than 300 Class-I Officers from the civil service. Bhutto, to whom we turn later, was no different. He enacted the Removal from Service (Special Provisions) Regulations, 1972, and removed 1,300 bureaucrats. Next, Zia ul Haq took over and began purging the bureaucracy. Under his rule, quotas for military officials were introduced in the civil services and executive control over appointments increased dramatically. Musharraf also exhibited the tendencies that had been apparent in previous regimes. Within a few months of the coup, he issued the Removal from Service (Special Powers) Ordinance, 2000, to remove and punish dishonest, inefficient and corrupt officers within the country’s bureaucracy.

Perhaps the most far-reaching changes in the legal and administrative framework of the civil service were introduced by Zulfikar Ali Bhutto. For the first time in Pakistan’s history, the constitutional protections given to the civil service were taken away. He also revamped the entire civil structure. All classes among the CSP cadres were abolished and merged into a single unified graded structure. A system of basic pay scales replaced the colonial-era rank hierarchy that divided civil servants into four classes ranging from officer-level Class-I to menial positions in Class IV.

The present framework governing the civil service is based on the changes that Bhutto introduced. Since there is no constitutional protection, the conditions of service for civil servants are now governed and regulated by ordinary statutes as per the mandate of Article 240 of the Constitution.

The primary legislation at the federal level is the Civil Servants Act, 1973, which outlines the terms and conditions of service and delineates the government’s power to appoint, promote, transfer, remove or dismiss any member of the civil service. The provisions of this Act are further elaborated under the Civil Servants (Appointment, Promotion and Transfer) Rules, 1973. Viewed from a historical perspective, both instruments represent an effort to expand the government’s control over the bureaucracy. For instance, under Section 10 of the Act, the government may decide to transfer a civil servant to any place that is outside his service or cadre.

Interestingly, a civil servant may be transferred to a post under a provincial government or local authority also. It is under this power that provincial chief secretaries are appointed by the Establishment Division in Islamabad. Some including Umer Gillani have recently begun to argue that this is not permissible because the idea of provincial autonomy as enshrined in the 18th Amendment includes the idea of “administrative federalism” where appointments to important provincial posts such as those of the chief secretary should be made by the province from amongst the provincial civil service as opposed to the federal or central civil service. This point is pending adjudication before the Islamabad High Court.

Clearly then any movement to reform the civil service now faces an added layer of complexity. Not only does the state need to balance the competing interests of giving the bureaucracy autonomy from the vicissitudes of politics while retaining some degree of control for maintaining efficiency but it must now also confront the emerging conflict between the central and provincial services in view of the debate surrounding administrative federalism.

Bakhtawar Bilal Soofi is a practicing lawyer who tweets @bbsoofi Muhammad Yar Lak is a practicing lawyer

Legal layers