Supreme Court of Pakistan deserves full credit, once again, for putting its foot down to end the arbitrary and politically motivated appointments, absorptions of under-serving claimants in the most crucial spheres of life of citizens; i.e. dispensation of justice. The land mark decision by the SCP on Petition no. 89 of 2011 has once for all, declared that ‘The Civil Servants under the mandate of the Constitution have been guaranteed the fundamental rights of being citizens. Article 4(1) provides that all citizens are entitled to enjoy equal protection of law and have inalienable right to be treated in accordance with the law.
These rights have been trampled upon by government of Sindh in last few years and also such violations took place in KP to permanently absorb government employees in the police and other departments. The modus operandi was simple. As step one, those with political connections but no relevance to law enforcement, were appointed on deputation to police departments. Step two was absorbing them in the police department. And step three, some were granted ante dated seniority or completely undeserved promotions in their new departments.
This politically-driven injustice led to change the status of the non-cadre officers to be appointed against the cadre posts, seniors were forced to accept junior position while non-professionals kept rising and roaming in the power corridors with no respect for rule of law and fair play. This marred the morale of the police force, particularly in Sindh and to some extent in KP. Since 2008 and even before this had become a norm for the interested aspirants to find someone who can render this service and get the ranks of SP or even a superior position in police department.
As almost all of the beneficiaries of these unlawful promotions were connected to political bosses in Sindh. Therefore, when the SCP took notice of such violations of rules and regulations, it was not difficult for them to move the lawmakers in the assemblies to enact laws suitable to them. First the Ordinance and then the Act of 2011, contrary to orders of the SCP, gave blanket cover to these promotions and inductions by awarding unrestraint powers to the Chief Minister to authorize such absorptions. These 179 beneficiaries at the cost of 153,745 and the rule of law were trying to hide behind the nascent democratic institution for their personal, mundane gains besides testing the nerves of the affected officers. Only hope for such police officials remained none other than judiciary. Thanks to work of media and growing trust of the people on the judiciary, many affected officers resorted to service tribunals, high court and the SCP.
Fundamentally, two issues came under discussion. First, is it the power of the court to challenge or review the authority of the provincial assembly? Secondly, are civil servants’ service related matter fall under the domain of fundamental rights in the absence of the constitutional cover provided to such services? It is important to mention that in 1973 civil servants were deprived of their constitutional guarantees to work without fear and favor of the incumbent governments. The aforesaid judgment of the SCP has resolved both the issues once for all. The three member bench of SCP comprising of Mr. Justice Tassaduq Hussain Jillani Mr. Justice Asif Saeed Khan Khosa and Mr. Justice Amir Hani Muslim declared that ‘The impugned Ordinance and Act of 2011 validating absorption by the Sindh Government are ultra vires of Articles 240 and 242 of the Constitution…The validating instruments allowed absorption of a non Civil Servant conferring on him status of a Civil Servant and likewise absorption of a Civil Servant from non cadre post to cadre post without undertaking the competitive process under the recruitment rules. We may further observe that the Provincial Assembly can promulgate law relating to service matters pursuant to the parameters defined under Articles 240 and 242 of the Constitution read with Act of 1973 but, in no way, the Provincial Assembly can introduce any validation Act in the nature of multiple or parallel legislation on the subject of service law’.
A very brief additional note by the Honorable Justice Asif Saeed Khosa used his classical brevity to establish the writ of law and answered the argument of the unlawful beneficiaries in these words: “It is true that the judicial precedent available thus far declares that mala fide cannot be attributed to the legislature but if a legislature deliberately and repeatedly embarks upon a venture to nullify considered judicial verdicts in an unlawful manner, trample the constitutional mandate and violate the law in the manner it was done in the present case then it is difficult to attribute bona fide to it either”.
On the issue of rights of the civil servants, Para 118 and 119 of the judgment are very clear. ‘Article 9 of the Constitution provides protection to every citizen of life and liberty. The term “life and liberty”, used in this Article is very significant as it covers all facets of human existence…The inhibition against its deprivation extends to all those limbs and faculties by which life is enjoyed. The term “life” includes ‘reputation’ ‘status’ and all other ancillary privileges which the law confers on the citizen. A civil servant is fully protected under Article 9 and cannot be deprived of his right of reputation and status. Under the impugned instruments a person, who without competing through the recruitment process is conferred status of a civil servant. The impugned legislation has amended service laws in a manner to deprive the civil servants from their rights to status and reputation under Article 9 of the Constitution.
The discretion of the Chief Minister to absorb any employee from any part of Pakistan to any cadre with backdated seniority directly affects the fundamental rights of all the civil servants in Sindh being violative of the Article 4 which provides equal protection of law to every citizen to be treated in accordance with law, which is an inalienable right of a citizen’.
The court declared that absorption of the officers was based upon political favoritism and against the constitutional scheme of law. The violation of article 25 of equal treatment before law was also noticed by the superior judiciary as it directed the Establishment division and the provincial government to take all necessary steps to make amends for.
This judgment has set the tone for a new era of rule of law for the civil servants. The constitutional cover is partly restored. If implemented in letter and spirit, it will help in resorting the reputation and status of the civil servants in a way which will contribute to the improvement in the policy development as well as service delivery. It is unto the police officers and the civil servants to respond positively to a landmark decision of the Supreme Court of Pakistan. They should rise to the occasion to help the judiciary by upholding the rule of law, in their day to day affairs, as the apex court has done for them. This will be best contribution by them for making Pakistan a stable democratic state.
The writer is a freelancer