Postings and transfers made by Caretaker Government be reversed: Supreme Court of Pakistan

Islamabad, June 12, 2013 (PPI-OT): Today, a three member bench headed by Hon’ble Chief Justice of Pakistan Mr. Justice Iftikhar Muhammad Chaudhry and comprising on other two judges, namely, Hon’ble Mr. Justice Ijaz Ahmed Chaudhry and Hon’ble Mr. Justice Gulzar Ahmed announced the reserved judgment in Const. P. NO. 30 of 2013 (Khawaja Muhammad Asif VS Federation of Pakistan) along with other CMAs regarding appointments, postings and transfers made by the Caretaker Government.

This Constitution Petition was filed under Article 184(3) of the Constitution of the Islamic Republic of Pakistan by one of the elected Parliamentarians, namely, Khawaja Muhammad Asif, wherein he sought the following reliefs: -

“Declare, in the circumstances aforesaid, the acts of the care-taker government in effecting the aforesaid transfers/postings/shuffling null and void, void ab initio and of no legal effect being in contravention of Constitution, constitutional conventions and law.

In the alternative, declare that the aforesaid acts of the care-taker government of passing and signing of the orders affecting the aforesaid transfers/postings/shuffling were never, in fact, signed and/or passed and/or communicated for further necessary action.

Direct, in the circumstances aforesaid, that all the postings/transfers/shuffling be reversed and the status quo ante be reverted to, i.e. the position when the care-taker government was sworn in.

Direct the Federation/care-taker government to refrain from effecting any further appointments/transfers/shuffling during their remaining tenure.”

The case was heard by the three member bench and the judgment was reserved on 06.06.2013 and same has been announced today in open Court. The 45 pages judgment is authored by the Hon’ble Chief Justice of Pakistan, Mr. Justice Iftikhar Muhammad Chaudhry. The crux of the judgment is as under:-

“18. The crux of the above case-law and conventions/guidelines is that the Caretaker Government/Cabinet has to confine itself to the running of the day‑to‑day administration of the State. Indeed, it may take decisions required for ordinary orderly running of the state, but decisions having far‑reaching effects should only be taken in extraordinary circumstances, like in war, earthquake, floods, etc.

Although there may not be any express restriction on the powers of the caretaker government by the Constitution itself, but a major policy-decision which can await the formation of regularly elected Government without causing any disruption or danger to the functioning of the State or orderly running of the country should be left to be determined by the elected government.

Thus, there can be no two opinions that the caretaker government has to exercise the powers for a limited purpose as it has been highlighted hereinabove, namely, relating to the elections and not to make fresh appointments of the civil servants or make appointments of the heads of the Autonomous, Semi-Autonomous Bodies, Corporations, Regulatory Authorities, etc., appointments on contract basis or allowing deputation or promotion to the civil servants without realizing the scope of their efficacy to share higher responsibilities to run the affairs of the Government.

19. In the context of instant case, besides relying upon the guidelines in the judgments noted hereinabove, one may conveniently pose a question, particularly in view of Article 48(5) of the Constitution and other constitutional provisions, as to why a caretaker cabinet/government appointed under Article 224 or as the case may under Article 224A of the Constitution, should not exercise powers available to a duly elected government? Answer to this question lies in the expression “Interim Cabinet” used in Article 48(5) of the Constitution, which enables to draw the inference that the interim Cabinet or caretaker Cabinet headed by a Prime Minister means a caretaker cabinet or a government, which has been entrusted temporary charge of government during the period when the National Assembly is dissolved because ordinarily for a period of five years under Article 58, the National Assembly exists for the purpose of running the affairs of the State and in absence of elected Parliament, continuity of the governance system in the country has to be kept intact, otherwise running the affairs of the State would not be possible at all.

In addition to it, although in our country in respect of the powers of the caretaker government no conventions have been developed and for such reasons the instant Caretaker Government indulged in taking vital policy decisions and making postings and appointments of heads of statutory bodies, postings and appointments in civil service, statutory bodies, autonomous, semi-autonomous bodies, corporations and regulatory authorities, including appointments on contract or accepting the services of various persons on deputation by allowing them to occupy one step higher positions than the one, which they were holding previously.

22. We consider it appropriate to make reference of the case titled as In re: Abdul Jabbar Memon (1996 SCMR 1349) wherein it has been observed that the Federal Government, Provincial Governments, Statutory Bodies and the Public Authorities have been making initial recruitments, both ad-hoc and regular, to posts and offices without publicly and properly advertising the vacancies and at times by converting ad-hoc appointments into regular appointments.

It was held that this practice is prima facie violative of Fundamental Right enshrined in Article 18 of the Constitution guaranteeing to every citizen freedom of profession, which must be discontinued forthwith and immediate steps should be taken to rectify the situation, so as to bring the practice in accord with the Constitutional requirement. But unfortunately it has been noticed that the guidelines/principles have neither been followed by the duly elected governments in the past nor by the caretaker governments. Inasmuch as, principle of transparency has not been adhered to in the appointments of the Members of the Federal Public Service Commission under the Ordinance of 1977 to conduct tests/examinations for recruitment of persons to all Pakistan Services, Civil Services of the Federation and civil posts in connection with the affairs of the Federation and Provinces. No transparent system is in place to ensure merit-based selection of persons for appointment as the heads of the autonomous, semi-autonomous bodies, corporations, organizations, etc. Record available in archives would indicate that except for a shorter period, despite presence and availability of renowned knowledgeable and reputable personalities, these vacancies were allowed to be occupied by persons having connections with the higher functionaries of the State, who openly indulged in favourtism and nepotism. In such a scenario, how the object of making appointments on merit could be achieved, including by the elected government.

23. It is to be noted that reportedly there are more than 100 organizations/corporations, which are causing colossal loss of trillion of rupees to the public exchequer, like Pakistan International Airline, Pakistan Railways, Pakistan Steel Mills, PEPCO, PASCO, Utility Stores Corporations, OGDCL, NEPRA, PEMRA, PTA, KESC, SSGPL, NICL, etc. It is a fundamental right of the citizens of Pakistan under Article 9 of the Constitution that the national wealth/resources must remain fully protected whether they are under the control of the banks or the autonomous and semi-autonomous bodies.

24. There are cases where favourites were appointed despite lacking merits to hold such posts/positions. Reference may be made to the case of Adnan A. Khawaja v. The State (2012 SCMR 1434) where a convict, who was acquitted of criminal charges taking benefit of NRO, was appointed as the head of OGDCL. Similarly, in the case of Mir Muhammad Idris v. Federation of Pakistan (PLD 2011 SC 213), the validity of the reappointment of Syed Ali Raza as President of the National Bank of Pakistan for fifth time for one year was challenged. The Court declared the said reappointment to be unconstitutional. Relevant para therefrom is reproduced hereinbelow: -

“11. … Since, admittedly, the amendment made in section 11(3)(d) of the Act of 1974 by the Finance Act, 2007 was unconstitutional and illegal, the appointment of respondent No.3 made under an unconstitutional and illegal legislation would not remain unaffected as the foundation on which its superstructure rested stood removed.

The argument of the learned counsel for respondent No. 3 that the appointment of respondent No.3 was made by the Federal Government in exercise of the power conferred upon it by a legislative instrument passed by the concerned legislature, therefore, the same was not liable to be interfered with being a past and closed transaction is not tenable. If the appointments of Judges were affected on account of a similar defect in legislation, how the appointment of respondent No.3, who, too, was appointed under such an unconstitutional and. illegal amendment could be protected.

13. … The reappointment of respondent No.3 Syed Ali Raza as President NBP by way of notification dated 10.4.2010 is declared to be unconstitutional and he shall cease to hold office as President NBP with immediate effect.”

In the same context, reference may also be made to the case of Chairman of NICL Ayaz Khan Niazi, who again was appointed without determining whether he is fit and proper person to hold the said post as a result whereof the government exchequer had to suffer an enormous loss, some of its portions have been recovered and still cases are pending before the Courts.

This Court in Suo Moto Case No. 18 OF 2010 (PLD 2011 SC 927) directed the Secretary Commerce to lodge complaint before FIA against the concerned persons for causing loss to the public exchequer. Similarly, the appointment of one Mr. Tauqir Sadiq as Chairman of the Oil and Gas Regulatory Authority was challenged before this Court on the ground that he did not posses the necessary credentials for holding the said office. The Court in the case reported as Muhammad Yasin v. Federation of Pakistan (PLD 2012 SC 132), after considering the importance of the OGRA and scrutinizing the appointment process of its Chairman, declared his appointment void ab initio.

There are other cases where some of the persons had succeeded in getting contract employments after their retirement in violation of section 14 of the Civil Servants Act, 1973 as well as instructions contained in ESTA Code. Reference may be made to Suo Motu Case No. 24 of 2010 (PLD 2011 SC 277) wherein it was observed that in the disciplined forces, particularly, like police and FIA where people have to work in a well defined discipline, the persons supervising the forces were permitted to hold charge of the posts on contract basis.

It may not be out of context to note that in terms of the definition of section 2(1)(6)(ii) of the Civil Servants Act, 1973, a person who is employed on contract does not fall within the definition of a civil servant, so his authority to command and maintain discipline can be well imagined from the fact that if a person himself is not a civil servant, he is considered only bound by the terms and conditions of his contract and not by the statutory law, because if any condition laid down in the contract is violative of any statutory provision, he would only be subject to action under the said contract. In this view of the matter, the officers who were reemployed after retirement, were directed to be removed.

In a recent case titled as Muhammad Ashraf Tiwana v. Pakistan (Constitution Petition No.59 of 2011), this Court found that the appointments of Chairman and Members of the Securities and Exchange Commission of Pakistan did not meet the requirement of the Securities and Exchange Commission of Pakistan Act, 1997 as such, the same too, were set aside. Last but not the least, this Court while hearing the case regarding implementation of directions issued in Suo Motu case No.16/2011 regarding law and order situation in Karachi, directed the Government of Sindh to terminate the services of 86 employees appointed in different grades from 12 to 21 on contract basis in various provincial departments.

25. During hearing of the case, it has been pointed out to petitioner Khawaja Muhammad Asif that although he being an elected Member of the Parliament had raised questions touching upon the transparency in the appointment of the heads of the autonomous, semi-autonomous bodies, corporations, regulatory authorities, etc., but in his own capacity as a public representative, he had also to ensure that all the appointments in such like bodies as well as the appointments on contract basis must be made in a transparent manner.

In some of the countries, effective steps have been taken to stop such colossal loss of the national resources by day-to-day measures to improve the professional quality and political neutrality of appointments to public bodies/regulatory authorities by ensuring that selection in such bodies is based on merit, fairness and openness.

It may not be out context to note that in UK, an independent Commissioner is available to regulate, monitor, report and advice the public appointments, the performances etc. All the government departments while making such appointments are bound to follow the code of practice which has been issued by such Commissioner. Similarly, in Canada all appointments for Chief Executives, Directors and Chairpersons of public sector corporations are subject to strict merit-based system. It may be noted that elected government has to heavily rely upon public bodies to implement their policies and the object essentially cannot be achieved if honest and competent persons are not holding such public offices. While making such appointments, following parameters are to be considered: -

(1) Integrity:

Holders of public office should not place themselves under any financial or other obligation to outside individuals or organizations that might seek to influence them in the performance of their official duties.

(2) Objectivity:

In carrying out public business, including making public appointments, awarding contracts, or recommending individuals for rewards and benefits, holders of public office should make choice solely on merit.

(3) Accountability:

Holders of public office are accountable for their decisions and actions to the public and must submit themselves to whatever scrutiny is appropriate to their office.

(4) Openness:

Holders of public office should be as open as possible about all the decisions and actions that they take. They should give reasons for their decisions and restrict information only when the wider public interest clearly demands.

(5) Honesty:

Holders of public office have a duty to declare any private interests relating to their public duties and to take steps to resolve any conflicts arising in a way that protects the public interest.

(6) Leadership:

Holders of public office should promote and support these principles by leadership and example.

26. Be that as it may, in order to ensure the enforcement of the fundamental right enshrined in Article 9 of the Constitution and considering it to be a question of public importance, a Commission headed by and comprising two other competent and independent members having impeccable integrity, may be the Federal Ombudsman or Chairman NAB or a Member of Civil Society having exceptional ability and integrity, is required to be constituted by the Federal Governmentthrough open merit based process having fixed tenure of four years to ensure appointments in statutory bodies, autonomous bodies, semi-autonomous bodies, regulatory authorities to ensure appointment of all the government controlled corporations, autonomous and semi-autonomous bodies, etc. The Commission should be mandated to ensure that all public appointments are made solely on merits. The Commission should discharge mainly the following functions: -

(i) Regulate public appointments processes within his remit;

(ii) implement a Code of Practice that sets out the principles and core processes for fair and transparent merit-based selections;

(iii) chair the selection panels for appointing heads of public/statutory bodies and chairs and members of their boards, where necessary;

(iv) appoint Public Appointments Assessors to chair the selection panels for appointing heads of public/statutory bodies and chairs and members of their boards, where appropriate;

(v) report publicly on a public/statutory body’s compliance with the Code of Practice, including examples of poor and good performance, and best practice;

(vi) investigate complaints about unfair appointment process;

(vii) Monitor compliance with the Code of Practice;

(viii) Ensure regular audit of appointments processes within his remit;

(ix) Issue an annual report giving detailed information about appointments processes, complaints handled, and highlights of the main issues which have arisen during the previous year. The annual report for the previous calendar year should be laid before the Parliament by 31st March; \

(x) Take any other measures deemed necessary for ensuring that processes for public sector appointments that fall in his remit are conducted honestly, justly, fairly and in accordance with law, and that corrupt practices are fully guarded against.

27. The Code of Practice should provide foundations for transparent merit-based public appointments. All public appointments must be governed by the overriding principle of selection based on merit, out of individuals who through abilities, experience and qualities have a proven record that they best match the need of the public body in question. No public appointment must take place without first being recommended by the Commission.

The appointments procedures should be subjected to the principle of proportionality, that is, what is appropriate for the nature of the post and the size and weight of its responsibilities. Those, selected must be committed to the principles and values of public service and perform their duties with highest level of integrity.

The information provided about the potential appointees must be made public. The Commission may from time to time conduct an inquiry into the policies and procedures followed by an appointing authority in relation to any appointment. He may also issue a statement or publish a report commenting publicly on any breach or anticipated breach of the Code. The appointment of the successful candidate must be publicized.

28. In light of discussion made hereinabove, we hold that: -

(a) The Caretaker Cabinet/Prime Minister appointed under Article 224(1)(2) or 224A, as the case may be, is empowered to carry out only day-to-day affairs of the State with the help of the available machinery/resources/ manpower and also to watch national interest against war or national calamity or disaster faced by the nation, including terrorism, etc.

(b) The civil servants who have already been appointed in accordance with the rules/regulations on the subject ought not to be posted/transferred, etc., except in extraordinary circumstances, that too, temporarily.

(c) Major policy decisions including making of appointments, transfers and postings of the Government servants should be left to be made by the incoming government in view of the provisions of Constitution that the affairs of the State are to be run by the chosen representatives of the people.

(d) As newly elected Government is mandated to perform its functions of achieving the object and purpose of welfare of the people for which it has been duly appointed,therefore, caretaker Cabinet/government/Prime Minister, having no mandate of public support, is only caretaker set up and due to this connotation should detach itself from making permanent policies having impact on future of the country.

29. As we have noted hereinabove that since the Caretaker Government after its appointment, had made more than 400 appointments, transfers and postings of Government servants/employees, including transfer on deputation with promotion to next higher grade or as the case may be, heads of autonomous, semi-autonomous bodies, regulatory authorities, heads of government controlled institution, etc., therefore, it may not be possible for this Court to discuss and deal with each and every case in these proceedings, therefore, their cases shall be subject to declaration, which is being made hereinbelow.

30. Thus, at the touchstone of the parameters laid down in theparas supra about the powers of the Caretaker Cabinet/Government, it is declared and held as under: -

(a) The orders of appointment/deputation, transfers as well as postings, etc., of civil servants and Chief Executive Officers of statutory bodies, autonomous/ semi-autonomous bodies, corporations, regulatory authorities, etc., made by the Caretaker Cabinet/Prime Minister are hereby declared to be void, illegal and of no legal effect w.e.f. date of issuance of notifications respectively, except the transfers and appointments of senior government officers including the Chief Secretaries and IGP of any of the Provinces during the election process.

(i) However, the Federal Government, in exercise of its powers would be authorized to allow continuing any of such appointments, transfers made by the Caretaker Cabinet/Government in the public interest, subject to following requisite provision of law.

(ii) As far as the issue of notifications in the cases of (i) Mumtaz Khan (CMA 3451/2013), (ii) Muhammad Nadeem, AGM Marketing (CMA 3480/2013) and (iii) General Syed Wajid Hussain, Chairman HIT Taxila are concerned, their notification of appointment shall remain frozen as process of their appointments had taken place before assumption of charge by Caretaker Cabinet/Government but their notifications were issued by the Caretaker Government. However, the Federal Government through competent authority shall decide fate of their cases within 15 days after receipt hereof and copy of decision shall be sent to Registrar for our perusal in Chambers.

(iii) Needless to say that if there are identical cases as noted in para (a)(ii), same shall be dealt with in the same manner.

(b) All the orders of removal or transfers as well as posting on deputation of civil servants and Chief Executive Officers of statutory bodies, autonomous/ semi-autonomous bodies, corporations, regulatory authorities, etc., by the Caretaker Cabinet/Prime Minister are hereby declared void, illegal and of no legal effect w.e.f. date of issuance of notifications respectively, however:

(i) the Federal Government would be empowered to continue the removal or transfers, etc., of Chief Executive Officers/heads of the departments, statutory bodies, autonomous/ semi-autonomous bodies, corporations, regulatory authorities, etc. in the public interest, subject to following requisite provision of law.

(c) As far as contract employees are concerned, whose contracts have been cancelled or those to whom fresh contracts of service have been given by the caretaker Cabinet/Government, shall stand cancelled as holders of contract employment of both these categoriesdeserve no interference in view of the judgment of this Court in the case of State Life Insurance Employees Federation of Pakistan v. Federal Government of Pakistan (1994 SCMR 1341), because no relief can be granted to them in these proceedings as no question of public importance with reference to enforcement of their any of the fundamental rights arises;

(d) As far as the cases of the transfers of the civil servants/employees before the completion of tenure made allegedly in violation of the law laid down by this Court in Anita Turab case are concerned, the concerned departments of Federal Government shall examine their individual cases on the touchstone of the principleslaid down in the said case. However, decision given on the complaint of any of the employees by this Court alleging violation of the principles enunciated in the judgment referred to hereinabove, shall be deemed to be in accordance with law.

(e) The appointments in autonomous/semi-autonomous bodies, corporations, regulatory authorities, etc., made before the appointment of Caretaker Government shall also be subjected to review by the elected Government by adopting the prescribed procedure to ensure that right persons are appointed on the right job, in view of the observations made in above paras (Para. No. 25 and 26); and

(f) The Federal Government through the concerned Secretaries shall take up the issue of postings of 100 officers on deputation from Balochistan, as it was pointed out during the hearing of this case on 22.05.2013 and accomplish the same, if required, in accordance with law.

31. The Secretary Establishment is directed to communicate this judgment to all other Divisions, Ministries, Organizations, etc. for implementation of the same.

32. The case of the Ombudsman be de-linked and it shall be heard/decided separately in view of the question of interpretation of law on the subject namely, Establishment of the office of Wafaqi Mohtasib (Ombudsman) Order, 1983.

33. In the result, Constitution Petition No.30 of 2013 partially allowed and the titled CMAs as well as CMAs No.2991 and 3015/2013 in Constitution Petition No.23/2012 are disposed of accordingly.

The full text of judgment is uploaded on official website of Supreme Court of Pakistan i.e. www.supremecourt.gov.pk.

For more information, contact:
Shahid Hussain Kamboyo
Public Relations Officer
Supreme Court of Pakistan
Tel: +9251 920 4184
Fax: +9251 920 1001
Email: pro_scp@yahoo.com

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