[Note: This article has been written before the announcement of CSS 2021 exam results]
An article was published on 17th February, 2021 in DAWN news titled Advisor to PM Defends Civil Service Reforms wherein Dr. Ishrat Hussain was quoted to be claiming that, “More than 60 consultative sessions [were] held in Quetta, Karachi, Lahore, Peshawar and Islamabad and 1,900 officers from all the service cadres, ex-cadre and non-cadre were consulted and their views were incorporated in the recommendations.” As part of some of the consultative sessions in Quetta and Islamabad representing the All Pakistan Provincial Civil Services Association and the Provincial Civil Service of Balochistan, the Provincial Management Service (PMS)/Provincial Civil Service (PCS) of the provinces welcomed the initiative taken by the Prime Minister of Pakistan and saw it as a ray of hope for good governance and public service delivery. In these sessions, the first and foremost, or rather the only demand of the PMS/PCS officers, collectively, was to reform civil service in accordance with the Constitution of Pakistan, 1973 which is the most important document to be consulted by a reform committee before moving forward.
A constitution is a social contract which defines the relations between the ‘rulers’ and the ‘ruled’ and without turning to it for guidance, any move made by a reform committee will bear no fruit and be a source of perennial litigation in the courts of law. In exchange for all the fundamental rights granted to the citizens of Pakistan and the institutions established to serve and and safeguard them, the one and only duty given to the citizens is to be loyal to the Constitution and the law, under Article 5 of the Constitution. It has been made an inviolable obligation upon every citizen of Pakistan and any other person present in Pakistan to be obedient to the Constitution and the law of Pakistan. Dr. Ishrat Hussain, however, appeared to have suggested that, “…agar qanoon wanoon ke chakar mai paray rahay to kuch bhi nahi hona (if we get stuck in the intricacies of the law, nothing is going to happen).” He was confronted with the argument that if one was not following the supreme law of the land, how would one safeguard the rights of the weak and the godforsaken? Every other day, new statutory regulatory orders (SROs) get promulgated in contravention of the Constitution and it seems that no heed has been paid to the demands of the PMS/PCS officers. The colonial era scheme of ‘reservation of posts’ for federal service in provincial services is still in practice and even more illegalities seem to be perpetrated to consolidate a single group of civil servants, only God knows why. Once again it has been proven that the consultative meetings have just been an eyewash while reforms continue be made behind closed doors to benefit and strengthen only a few blue-eyed civil servants.
The current reforms could best be explained through an example of a person hiring an architect to design a house. The architect discusses everything, such as the number rooms that the house should have, whether the design should be modern or inspired by historical buildings or houses, whether it should be simple or luxurious, the number of storeys it should have and other ancillary matters. The thing is that the architect designs the house, but when the time comes to execute the design, it transpires that the person claiming to be the owner does not have authority over some part of the land in question. The land has four other stakeholders, who are autonomous in building their houses according to their own circumstances and needs, but have never been consulted during the whole process. If the person claiming to be the owner tries to continue with the construction forcefully, a series of litigation ensues. At the end of the day, instead of bringing anything good, the whole process becomes a sham, leading to further social evils. The same is the case with the current reforms. The federal government has to first consult the Constitution, know its limits and areas of concern and consult other stakeholders before initiating any of the reforms it desires to bring into the civil service.
I want to take the occasion to briefly describe the history of civil service in Pakistan and its past and present legal standing in juxtaposition with the Constitution of Pakistan.
In the constitutional crisis of the early years of Pakistan, the remnants of the country’s colonial past and the advocates of a centralist/unitary government raised a service, through a mere resolution or agreement, called the Central Superior Services (CSP). It continued the imperial practice of reservation of posts in provincial services for the CSP, even though Section 10 of the Indian Independence Act, 1947 had repealed the provisions of the Government of India Act, 1935 (interim Constitution of Pakistan till 1956) related to the reservation of posts. The ‘reservation of posts’ was a scheme of sharing posts between the provinces and the center, provided by Section 263 of the Government of India Act, 1935, which was befitting a setup within a unitary form of government whereby the center would make all the decisions and formulate all laws. In a federation, however, where the subjects and responsibilities of the federation and the provinces are to be properly defined and distributed, such a scheme goes against the idea of administrative federalism and provincial autonomy. Even after the promulgation of consecutive Constitutions in 1956, 1962 and 1973, there has been no provision regarding the reservation of posts, yet the illegal practice still continues, with the District Management Group (DMG) and the Pakistan Administrative Service (PAS) acting as successors of CSP.
It is important to understand how such services are created in order to better understand the civil service of Pakistan. As per Article 240 of the Constitution, there are three services:
- Federal services;
- Provincial services; and
- Services common to the federation and the provinces, called the All Pakistan Service.
The abovementioned Article directs that ‘services’ should be established on posts related to the individual affairs of the federation and the provinces, as well as common affairs between the federation and the provinces. The affairs are the subjects. Provincial and federal subjects have been clearly enumerated by the Constitution to remove any ambiguity. Therefore, services of the provinces and the federation can only be established over their specified subjects. Since the Concurrent List has been abolished, the only subjects at the moment, which can be called subjects common to the federation and the provinces and are commonly dealt with by both, are subjects listed in the Federal Legislative List, Part II. The services established over these subjects are to consist of the posts required to establish the Secretariat of the Council of Common Interests (CCI) as provided under Article 153 and 154 of the Constitution. As per Article 240, read with other articles enabling provincial legislative, financial and executive authority, no one can encroach upon each other’s authority. Therefore, establishing PAS on posts related to the affairs of the provinces, by calling it an All-Pakistan Service, is unconstitutional and an intrusion upon the affairs of the provinces, jeopardizing provincial autonomy.
Article 240(a) and (b), specifically provide that Parliament should make laws for the posts related to the affairs of the federation, while provincial assemblies should legislate for the posts related to the affairs of the provinces, respectively. As far as the All Pakistan Service or Posts are concerned, Parliament should make laws for the posts related to the common affairs of the federation and the provinces. It will not be out of place to mention here that no such laws have been enacted by the Parliament so far. In complete contravention of the same, the posts related to the affairs of the provinces have been earmarked for the officers of PAS in the garb of the All Pakistan Service through a mere SRO without placing the same before the provincial assemblies for authentication. Such an act is not only in derogation of the Constitution, it is also an usurpation of the authority provided by the Constitution to the provincial assemblies to legislate upon their affairs. In its recently published report, the Senate Committee on Cabinet Secretariat asked the Establishment Division to draft a Bill regarding All Pakistan Service to be established on All Pakistan Posts and present the Bill before them for scrutiny. It authenticates the viewpoint held by PMS/PCS officers that an All Pakistan Service cannot be raised through mere SROs from the Establishment Division and requires thorough discussion at competent forums like the Parliament and provincial assemblies in order to point out the posts common to the affairs of both the federation and the provinces. Hence, provincial posts cannot be declared All Pakistan Posts or reserved for PAS which is a federal service.
It is further claimed that PAS is an All Pakistan Service on the basis of the ‘explanation’ of Article 240 of the Constitution. This is totally baseless because even in the earlier Constitutions of 1956 and 1962, the federal, provincial and concurrent subjects were defined in clear terms, without a specific need to raise a new service such as the All Pakistan Service. Even in that scenario, if such a service had been created, it would have been illegal and unconstitutional. Moreover, constitutional provisions cannot be read in isolation of the other articles of the Constitution, which negates the idea of an All Pakistan Service on provincial posts. This raising of a service, by amassing important positions in federal and provincial services, known as the ‘reservation of posts’ (or ‘post sharing’) has been a colonial practice to maintain hold over a united India of the time. When Pakistan came into being and adopted the Government of India Act, 1935 as its interim Constitution, it had no proper services to attend to its affairs. The totalitarian Indian Civil Service (ICS, formerly Imperial Civil Service) was adopted as the Pakistan Administrative Service by those wishing to maintain their colonial identity and superiority. Chaudry Muhammad Ali, who belonged to the Audit and Accounts Group and served as the Secretary General of the time (today’s Cabinet Secretary), maintained in his autobiography, The Emergence of Pakistan, that when the Pakistani government tried to promote and include provincial civil servants into the Civil Service of Pakistan, the ICS officers joining the Civil Service of Pakistan showed resistance and contested it tooth and nail. The same mindset is still alive today because whenever they are confronted on legal and factual grounds, they use the same imperial arrogance to snub the Provincial Management Service (PMS) on the basis of them being the only legal heirs of the British, thus the only ones qualified to acquire the reins of power. This attitude has brought nothing good to this country except for certain heirs of the colonial British consolidating their own positions both in the political arena and the civil service. Now that Pakistan is out of any such compulsions, which it may have been facing in its earlier times, it is high time that the services be established on the basis of the Constitution and the needs of the citizens.
By revising our colonial approach of sticking to past practices, we can save the exchequer a lot of funds too which are being spent on the same kind of services in parallel layers, both in federal services as well as provincial. For example, if there is a PMS service in the provinces, why is there a need to create an All Pakistan Service which does the same job as its counterpart? Furthermore, when there is a Secretariat Service and an Office Management Group (OMG) in the federal secretariat, why do we need PAS in these positions? Notwithstanding the above, the most important entity which can resolve important interprovincial and provincial-federal issues with ease, where the All Pakistan Service may be the most relevant, is the Secretariat of Council of Common Interests (CCI), but the said idea is being blocked to serve personal interests. Ministries have been raised in the federal government over CCI subjects, just to create an avenue to promote PAS officers to Grade 22. If the abovementioned points are contemplated only and only in Pakistan’s interest, a lot of hassle and funds can be saved which can be channeled towards development projects throughout Pakistan.
Notwithstanding the above, Zulfiqar Ali Bhutto’s administration disbanded the CSP in 1973 along with its very Rules, known as the CSP (Composition and Cadre) Rules 1954, by forming twelve distinct occupational groups. The other occupational groups or services had their own distinct service rules (made under the Civil Servants Act 1973) and responsibilities related to the affairs of the federation. However, without any law or legal instrument, the DMG became the successor of CSP by adopting its already repealed Rules of 1954. The DMG then became PAS under the same repealed Rules of 1954. Post the Eighteenth Amendment to the Constitution, the same repealed Rules have been amended as PAS (Composition and Cadre) Rules, 2014. Since the promulgation of the 1973 Constitution, no All Pakistan Service has ever been raised by an Act of Parliament – the claim is solely based on Article 241 of the Constitution by adopting the repealed CSP Rules of 1954, (the CSP having been disbanded and its Rules repealed in 1973). Can a repealed rule be saved by a saving clause of the Constitution? If the rules have not been repealed, they still go against the scheme of the Constitution which talks about administrative federalism, hence, they cannot be saved.
It is a settled principle of law that the service structure of a cadre first stands upon provisions of the Constitution, then the Acts and then the Rules. The the posts are established within a particular service, for the performance of responsibilities under a particular subject, federal or provincial. Article 240 of the Constitution provides for establishing the three services as provided above. Under Article 240(a) of the Constitution, the Civil Servants Act 1973 was promulgated by Parliament to regulate the appointment of persons to, and the terms and conditions of the service of persons in, the service of Pakistan. Under Article 240(b) of the Constitution, the Civil Servants Acts of the four provinces were promulgated in 1974 by the provincial assemblies to regulate the appointment of persons to, and the terms and conditions of the service of persons in, the service of each province. However, to date no Act has been promulgated by the Parliament to regulate the All Pakistan Service. Benefitting from this deficiency, the CSP/DMG/PAS is claiming to be the All Pakistan Service and intruding into the Service of Pakistan and Provincial Services by cherry-picking important positions in both services. The Rules regulating their service, i.e. the CSP Rules of 1954, rely completely on an agreement, which the Establishment Division itself has accepted on several occasions does not exist. Now that the said Rules have been amended as PAS Rules of 2014, they draw legitimacy directly from those provisions of the Constitution which have no relevance to this service. PAS claims to be the All Pakistan Service but it is unfathomable how the functions common to the federation and the provinces are performed by Grade 17 and higher ranking officers of provincial secretariats, district administration officers of the provinces and attached departments of provincial departments where around 2000 of the posts have been earmarked for only 600 officers of the PAS, the so called All Pakistan Service.
While posting these officers in the provinces, it is portrayed as if their services have been placed at the disposal of the provincial government. In practice, however, they are the ones running the provincial government through the good offices of the Chief Secretary of a province. Positions in the provinces such as the Deputy Commissioner Lahore, Rawalpindi, Peshawar, Quetta and Karachi, as well as other lucrative posts, are reserved for them and no officer from the Provincial Service can be appointed to these posts, even though there is no legal bar in doing so. International trainings are also reserved for them, although, thanks to recent developments, international organizations have themselves been selecting candidates instead of going through the federal ministries, so provincial officers have been getting some opportunities as well. However, many programs still get processed through the Economic Affairs Division and PAS officers mostly end up getting the opportunity to undertake important trainings. In compulsory service trainings, their quota is also greater than any other service of Pakistan. Most significantly, provincial posts exclusively come under the executive authority of the Provincial Cabinet and the Chief Executive of the province i.e. the Chief Minister. Ironically, PAS officers working on provincial posts do not come under the executive authority of the Provincial Cabinet or the Chief Executive of the province. If their performance is not up to the mark, the said authorities have no power to initiate disciplinary proceedings or take them to task. The Daska incident made things clear when provincial officers had been suspended the next day while the cases of federal officers lingered on, on one pretext or the other. Owing to the above perks and privileges, PAS officers can appear to be more intelligent, honest and talented than the provincial officers because they hardly go through any scrutiny or accountability.
As provided under Article 242 of the Constitution, the Federal Public Service Commission (FPSC) is to perform functions related to the affairs of the federation, which implies that the FPSC can only carry out recruitments and promotions on the posts related to the affairs of the federation or, simply put, federal posts. However, in contravention of the said Article, the Establishment Division, through its illegal requisitions or working papers and calculation of posts for PAS, has been illegally carrying out recruitments and promotions, through the FPSC, for Grade 17 and higher ranking posts related to the affairs of the provinces (i.e. provincial posts). This act is violation of the constitutional rights of the provincial civil servants provided under Article 3, 4, 14, 18, 25 and 27 of the Constitution.
In addition to the above, a constitutional offence is being perpetrated by the Establishment Division, by illegally carrying out recruitments, promotions and postings of PAS officers on Grade 17 and higher ranking posts related to the affairs of the provinces, paid through the Provincial Consolidated Fund, as per Article 119 read with Article 121 of the Constitution. The PAS officers are federal civil servants recruited, promoted and posted under federal laws. Neither have the laws governing such recruitments, promotions and postings been passed by the provincial assemblies/cabinets, nor do these forums have any authority over these officers. Under Article 119 of Constitution, the custody of the Provincial Consolidated Fund and the payment and withdrawal of money through it shall be regulated by an Act of the provincial assemblies. Since PAS officers (federal civil servants) are not regulated under an Act of the provincial assemblies, they can neither be paid salaries from the Provincial Consolidated Fund nor be made Principal Accounting Officers (PAOs) or Drawing and Disbursing Officers (DDOs) of the provincial government accounts.
Articles 1, 7, 81(b) and 121(b) of the Constitution envisage exclusive federalism in terms of political, financial and administrative affairs, while the recruitment of PAS officers on (provincial) posts related to the affairs of the provinces is illegal and unconstitutional. Would posting a PAS (federal service) officer as the Secretary Finance of a province not be in derogation of the financial authority of the province? Would posting a PAS (federal service) officer as the Chief Secretary of a province not be in derogation of the executive and financial authority of the province? Would posting a PAS (federal service) officer as the Commissioner, Deputy Commissioner and Assistant Commissioner in a province not be in derogation of the administrative authority of the province? Would it not be tantamount to handing over the reins of the local government to the federal government? Articles 81(b) and 121(b) envisage federal expenditures to be charged upon the Federal Consolidated Fund and provincial expenditures to be charged upon the respective Provincial Consolidated Funds of the provinces. Therefore, charging expenditures (made towards federal/PAS employees) upon the Provincial Consolidated Funds is unconstitutional.
Irrespective of the legal competency of the PAS cadre, if we accept their claim of being the All Pakistan Service and calculate the provincial posts in light of their own CSP Rules of 1954 amended as PAS Rules of 2014, we can see that the Schedule of the said Rules earmarks 299 specific posts for PAS in provincial services. After applying the percentage or formula in Rule 7.1 of the same Rules, only 147 posts remain. However, in complete defiance of their own Rules, PAS officers have been recruited and promoted in 2000 random/unspecified provincial posts by depriving provincial civil servants of their right to career progression. In total, 3400 posts have been earmarked for the PAS throughout Pakistan, Gilgit-Baltistan and Azad Jammu and Kashmir while their working strength is merely 800. It is due to this difference that most of the posts remain vacant and PAS officers get quick promotions by putting the careers of PCS officers at stake. The Establishment Division issued another Notification on 12th March, 2021 claiming to have surrendered 608 posts for the benefit of provincial civil servants, but in reality the number only increased from 299 to 1121. This further clarifies the picture and shows their high-handedness to grab more posts than those specified within the Schedule of their own Rules. The following Rule and chart show the scheme elaborated above:
Rule 7.1: The sanctioned posts in the respective Provincial sub-cadre of the schedule as specified below shall be reserved for the officers of the PAS as per agreed posts-sharing arrangement:
To cut a long explanation short, too much centralization has destroyed the system of governance in Pakistan. It has made the process of accountability difficult, thereby leading to resentment and lack of trust from the general public towards the civil service. It is the dire need of our time that the Constitution of Pakistan be implemented in letter and spirit, for it is the voice of the people of Pakistan and a safeguard for the rights of the weak and the godforsaken. In order to do this, the first step will be to constitutionalize the civil services. If the current setup must continue, then it is necessary to regularize the PAS service by amending the Constitution and making Pakistan a unitary state. If the issue does not get resolved, the system which has been built to serve the public is bound to fail amidst the mutual bickering of civil servants.
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.