Whether Deputation/ Absorption Into NAB Is Legal

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Whether Deputation/ Absorption Into NAB Is Legal

The august Supreme Court of Pakistan has recently taken suo moto notice on an anonymous letter pertaining to the alleged illegal appointments in the National Accountability Bureau (NAB). The scope of these proceedings hovers around two recent judgments of the Supreme Court of Pakistan, i.e. 2013 SCMR 1752 and its review in 2015 SCMR 456, with a specific focus to ascertain whether the deputation and absorption of employees of other institutions, especially the army, into NAB soon after its establishment, is within the ambit of the law laid down in these judgments. These judgments ultimately held that the deputation and subsequent absorption of non-civil servants to the posts of civil servants on one hand, and that of civil servants holding non-cadre posts to cadre posts on the other, was illegal.

However, it is important to highlight that irrespective of the health of these judgments, their focus is on deputation/absorption to the posts of civil servants and not on non-civil servant posts to statutory bodies like NAB, which can, if their rules of service so allow, depute any civil or non-civil servant to its employment and then subsequently absorb them in their service as per their service rules. The recent judgment of the Supreme Court pertaining to illegal appointments in the Islamabad High Court (CP 03-2014, dated 26-09-16) allows such deputation and subsequent absorption in Islamabad High Court, as the related service rules permit so – the only condition being that for deputation, the required codal formalities under the rules have to be followed, and for the absorption against a permanent post or promotion post, due regard to the eligibility criteria required for initial appointment should be given. Therefore, there are five basic questions that need answers vis-à-vis the matter relating to alleged illegal appointments in NAB:

  1. Whether NAB employees come within the definition of “service of Pakistan” – if yes, are they “civil servants”?
  2. Whether the Federal Public Service Commission Ordinance 1977 applies to appointments in NAB, especially for posts of BS-16 and above?
  3. Whether deputation in NAB is allowed – if yes, then whether the prevailing codal formalities/procedures were adopted for deputation into NAB?
  4. Whether the absorption of the employees, who were on deputation in NAB, is permitted – if yes, whether the absorbees at the time of their absorption fulfilled the requisite criteria required to fill that post on initial appointment, i.e. qualifications and experience, etc.
  5. In case deputation and absorption into NAB is permissible, the date from which seniority of the absorbees is to be determined, i.e. either from the date of their initial appointments in their parent departments, at the time of their deputation into NAB, or at the time of their absorption into NAB.

‘Service of Pakistan’ is a term used in Article 260 of the Constitution of Islamic Republic of Pakistan 1973 to, inter alia, mean “any service, post or office in connection with the affairs of the Federation or of a Province”, with the exclusion of certain high offices, like President, Prime Minister and parliamentarians, etc. In this regard, the famous Mobeen-us-Salam judgment (PLD 2006 SC 602), by providing recourse to the two separate disqualifications of a Member of Parliament in clauses (d) and (e) of Article 63(1) of the Constitution, i.e. “service of Pakistan” and “the service of statutory bodies”, establishes that the latter would be excluded from the ambit of “service of Pakistan”. However whilst holding so, it has, with due respect, lost sight of the established law in Pakistan that the statutory bodies themselves are ‘persons’ “performing functions in connection with the affairs of either the federation or the provinces” within the meaning of Article 199 of the Constitution. Therefore, it is quite strange that if these bodies are indeed performing functions in connection with the affairs of the federation/provinces, how could one exclude their service, posts or offices from the ambit of the phrase “in connection with the affairs of the federation or of a province”, as mentioned in the Article 260 thereof.

Further, when other provisions of the Constitution are also brought into context, these statutory bodies would indeed come within the purview of the “service of Pakistan”. It cannot be assumed that the exclusion in Article 17(2) (which states that “Every citizen, not being in the service of Pakistan, shall have the right to form or be a member of a political party…”) is only with regards to the “service of Pakistan” and thus an employee of a statutory body would be allowed to form or be a member of a political party. Similarly, Article 168 (4) and 206(2) respectively provide that the Auditor General of Pakistan and a judge of superior courts shall not be eligible for further appointment in the service of Pakistan before the expiration of two years after they have ceased to hold their office. In the same vein, vide Article 207(1) and 216(1), the judges of superior courts and the Election Commissioner respectively shall not hold any other office of profit in the service of Pakistan. These provisions would only make sense if the services of statutory bodies like NAB are included in the ambit of the “service of Pakistan”.

Nevertheless, as per the law settled by the Mubeen-us-Salam case, the employees of a statutory body like NAB do not come within the definition of service of Pakistan. Therefore, they are not civil servants either, which is a sub-category of “service of Pakistan”. Even otherwise, since the employees of NAB are governed by virtue of section 28 of the Ordinance and the Rules of service made thereunder, i.e. NAB Employees Terms and Conditions of Services 2002 (TCS), and not by virtue of the civil servant laws, they cannot be civil servants. Further, subsection (d) of section 28 expressly excludes the applicability of the laws for civil servants. However, as per clause (e) thereof, the “civil servants” who are employed by NAB, either by transfer or deputation, would continue to be governed by the Civil Servants Act and Rules made thereunder.

As far as the second question is concerned, the FPSC Ordinance 1977 owes its origin to Article 242 of the Constitution, which confers on the appropriate legislature the option of “establishment and constitution of a Public Service Commission” in relation to the affairs of the federation and that of the provinces respectively. In the same vein, the Section 7 of the Ordinance of 1977, without using the term “service of Pakistan” or “civil servants”, mentions the function of the FPSC to, inter alia, conduct tests and examinations for recruitment of persons to all Pakistan services, the civil services of the federation and civil posts in connection with the affairs of the federation in basic pay scales 16 and above or equivalent. By virtue of the FPSC (Functions) Rules 1978, the contractual employment of less than two years has been excluded from the purview of the FPSC (read 2015 SCMR 581).

That is why, the Acts/Ordinances of certain statutory bodies, which indeed have civil posts in connection with the affairs of either the federation or the province, contain the overriding provisions vis-à-vis the Public Service Commission laws, in order to exclude themselves from the purview of the service commissions. Section 28(g) of the NAB Ordinance contains a similar non-obstante clause in order to override the provisions of the FPSC law. Such overriding effect is permitted, even to exclude the jurisdiction of the lower judiciary, which originates from Article 175 of the Constitution and ultimately established under the Punjab Civil Court Ordinance 1962, just as the respective public service commissions originate from Article 242 thereof and formed under their respective laws (read PLD 1992 SC 594 for self-executing provisions of the Constitution).

As far as the third and fourth questions are concerned, the Supreme Court’s judgment related to illegal appointments in the Islamabad High Court is clear on the matter that firstly the deputation (without observing the required codal formalities under the respective rules of service), and secondly absorption thereafter (in complete disregard of the eligibility or qualifications required for initial appointment to that post), is illegal. Therefore, it needs to be seen whether the impugned deputation of other government departments in NAB was undertaken as per respective rules. However, the fact that no service rules of NAB existed in 1999 at the time of these ‘deputanists’ would mean that the general principles of deputation would have applied, i.e deputation to the same basic scale with a semblance of matching qualifications/experience. This, prima facie, seems to have been done in NAB.

As far as the induction/absorption of these ‘deputationists’ is concerned, clause 14.03 of the NAB Employees Terms and Conditions of Service Rules 2002 (TCS) is crystal clear that one-time absorption/induction of these ‘deputationists’ is permitted. To the question on whether or not these ‘deputationists’ possessed the qualifications/experience specified in the TCS for initial appointments to these posts, it is suffice to state these employees would be saved by the phrase in tables containing the qualification – “or any other qualifications approved by the competent authority” – in the original version of the “Methods of appointment and qualifications” (MAQ) made in pursuance of sub-para 2 of clause 3.04 of the TCS.  The reason is that at the time of their absorption as per clause 14.03 of TCS, the respective committees/boards scrutinized all the ‘deputationists’ and their qualifications/experience which, inter alia, included requisitioning the respective documents from their parent departments. Later, the competent authority approved these inductions/absorptions which, in case of any employees who did not possess the express qualifications mentioned in the MAQ, would mean that the competent authority impliedly altered the qualification in case of these employees. The word “approve” in this regard would mean express approval, as in the form of a notification; or implied approval, as has been done in the case of employees who did not possess the qualifications expressly mentioned in the MAQ.

The final question goes to the root of the alleged illegal appointments in NAB. In this respect, clause 14.05 of TCS, which has a non-obstante clause and thus overrides the rest of the TCS, clearly establishes, despite the poor drafting, that the seniority of the absorbees under clause 14.03 would be determined from the date of their appointments in the parent departments, which means that they would bring their length of service in their parent departments into the NAB. Now if the vires of this clause is challenged, it needs to be seen whether it would stand the test of constitutionality.

All in all, it can be safely concluded that that the 2013 and 2015 judgments do not apply to the deputation and absorption in NAB, which had followed all the prevailing laws in order to firstly have on deputation certain employees of other departments at the time of its establishment in 1999, and then subsequently absorbed/inducted them into NAB by duly following it service laws. Most importantly, the FPSC’s purview has been excluded by the NAB Ordinance, which allows the competent authority to conduct the appointment to NAB through its own service rules.

 

The views expressed in this article are those of the author and do not necessarily represent the views of CourtingTheLaw.com or any other organization with which he might be associated.

Nauman Qaiser

The writer is an Advocate of the High Court. He tweets @naumanqaiser and can be be reached at naumanqaiser@gmail.com



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