CIVIL SERVICES OF PAKISTAN - REFORM & PROTECTION

Paper by Islamabad Capital Territory Administration

CONTENTS

Executive Summary Introduction Bureaucracy - Theoretical Construct Legal Framework: Constitutional Provisions Laws Enacted Historical Perspective On Pakistan Civil Services: Civil Services Before Independence Civil Services in Pakistan After Independence Civil Service During Bhutto Regime (70s) Civil Service During Zia-Ul-Haq Regime Civil Service Under Civilian Rule (80s & 90s) Civil Service Under Musharraf Regime

Occupational Groups Under The Civil Service Key Findings Recommendations

EXECUTIVE SUMMARY Civil Services are the backbone of governance system of any country. The Civil Services have to manage affairs of the state to render services from cradle to grave, including law and order, finance, education, health, agriculture, foreign affairs, social welfare and taxation etc. may it be in policy formulation, making of laws or as the wheels and machinery to implement the approved decisions at all levels, according to law. Presently the public perceptions of civil services are rather adverse, and they are considered to be incompetent, corrupt, unfriendly, archaic, exploitative and subservient to the political masters rather than the state and its masses. This observed decay has demoralized the bureaucracy but it is not a recent phenomenon, but a result of decades of continuous political manipulation, poor salaries, insecure tenure, lack of accountability, lack of safety and merit, raw and motivated experimentation and non-existent career planning, inadequate capacity building. Recruitments, postings and promotions on the basis of personal contacts and political affiliation, instead of merit have become the order of the day. The issue of non-observance of statutory tenures is one of the aspects of mismanagement of services which has been raised by some public servants. A comprehensive review of a host of instruments is required to identify the root cause of observed maladies. An overview of the legal framework and observed practices inconsistent with law will be instructive. Central Superior Services of Pakistan is established under Article 240 of the 1973 Constitution. The Constitution lays down separate services for federation and Provinces. This paper aims to review the metamorphosis of the Civil Services of Pakistan throughout its history, emphasizing on the key frameworks affecting its performance and the gradual degradation in its rights and protection, and consequent effects on service delivery to the detriment of the public. The paper also offers a set of recommendations for protection and preservation of the rights of civil servants for consideration by the competent authorities. RECOMMENDATIONS: A Commission should be formed to review the existing legal framework for civil service and recommending measures to ensuring its revival and protection of legitimate rights of civil servants. Guaranteeing Security of Tenure for a minimum of 2 years in a post, unless for valid reason given in writing, Form an Independent Civil Servants Protection Tribunal to review civil servants complaints about arbitrary transfers, and providing them legal protection against postings and transfers that do not conform to due process. Civil service should offer market based salary, career growth, conducive working conditions, better housing, transport allowance and health insurance, and opportunities of public service that can attract and retain highest quality talent at the entry level 2

Increasing salaries and pensions of the Civil Servants. This may be done in two phases due to tight fiscal situation. In Phase I, for CSS officers numbering less than 10000, the Salaries for CSS officers must be de-linked from other government salaries (BPS scales) and Market Salary (MP scales) or Double Salary must be provided. (FBR, Police already have it.) Institute effective accountability over the civil bureaucracy and take strict disciplinary actions against those found guilty. Any attempt of a physical attack on a government servant must be taken very seriously, and case under Anti-Terrorism Act must be registered. Promote fairness and elimination of manipulation by expanding the role of the Federal Public Service Commission (FPSC) to one that professionally oversees all aspects of the bureaucracys functioning. Merit should be the only determinant of career growth. A completely autonomous Federal Public Service Commission must determine merit at all stages. There should be attrition at all levels based on professional competence and suitability for future postings. Govt. should get rid of dead wood. Conducting regular training, including refresher courses, at all levels of the bureaucracy, to inculcate professional skills, integrity and professional commitment. The deputation to International NGOs, multinationals and private sector organisations be facilitated to promote diversity of experience, rather than going through a board of four federal Secretaries. Modifying Performance Evaluation Reports (PER)(ACRs) to include tangible, performance indicators. Supervisory officers should be penalized points in their own PER if they fail to write and submit the same by end January. Enhance effectiveness by decentralization of functions. Revising and simplifying existing rules. Establishing call centers in offices and districts to report bribes etc. Civil service systems should be modernized through information technology and compulsory training for all government employees be carried out. Appropriate amendments may be made in the laws governing civil services; Civil Servants Act, FST Act, FPSC Act etc.

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1.

INTRODUCTION:

Civil Services are the backbone of governance system of any country. The Civil Services have to manage affairs of the state to render services from cradle to grave, including law and order, finance, education, health, agriculture, foreign affairs, social welfare and taxation etc. may it be in policy formulation, making of laws or as the wheels and machinery to implement the approved decisions at all levels, according to law. The respect, honour, prestige and job satisfaction attached to the civil services, attracted quality human resource to these services. Civil Service is the back-bone of the State. Government are formed. Governments are defeated, Prime Ministers come and go, Ministers come and go, but you stay on, and therefore, there is a very great responsibility placed on your shoulders. (Quaid-e-Azam's Address to civil officers, Peshawar, April 14, 1948) Central Superior Services of Pakistan are established under Article 240 of the 1973 Constitution. The Constitution lays down separate service for federation and Provinces. Federal and Provincial Governments are required to regulate their civil services through Act of parliament in case of federation, and by Act of Provincial Assembly for subjects in Legislative List of provinces. The civil service has provided continuity, stability and effective management during Pakistans turbulent history of political upheaval and instability. However, presently the public perceptions of civil services are rather adverse, and they are considered to be incompetent, corrupt, unfriendly, archaic, exploitative and subservient to the political masters rather than the state and its masses. This observed decay has demoralized the bureaucracy but it is not a recent phenomenon, but a result of decades of continuous political manipulation, poor salaries, insecure tenure, lack of accountability, lack of safety and merit, raw and motivated experimentation and non-existent career planning, inadequate capacity building. Recruitments, postings and promotions on the basis of personal contacts and political affiliation, instead of merit have become the order of the day. Somehow, in the strange world of governance in Pakistan, a change of employer transforms an entire generation of Pakistani civil servants from being poorly motivated, unskilled, technically inept to becoming motivated, skilled and technically able. How is this possible? It is possible because the incentives-structure in place for civil servants working for the government is designed to create total dysfunction. Being a civil servant means you have poor pay, a poor image, poor job security, and that you are subject to deeply embedded and symbiotic rent-seeking with politicians. Simply put, the incentives-structure is designed to stimulate young officers wanting to leave government. (Mosharraf Zaidi - The News - The Technocrats' Domain)

The issue of non-observance of statutory tenures is one of the aspects of mismanagement of services which has been raised by some public servants. A comprehensive review of a host of instruments is required to identify the root cause of observed maladies. An overview of the legal framework and observed practices inconsistent with law will be instructive. This paper aims to review the metamorphosis of the Civil Services of Pakistan throughout its history, emphasizing on the key frameworks affecting its performance and the gradual degradation in its rights and protection, and consequent effects on service delivery to the detriment of the public. The paper also offers a set of recommendations for protection and preservation of the rights of civil servants for consideration by the competent authorities.

2.

Bureaucracy - Theoretical Construct:

Max Weber's analysis of bureaucracy concerns: the historical and administrative reasons for the process of bureaucratization (especially in the Western civilization) the impact of the rule of law upon the functioning of bureaucratic organisations the typical personal orientation and occupational position of a bureaucratic officials as a status group the most important attributes and consequences of bureaucracy in the modern world. A bureaucratic organization is governed by the following seven principles: 1. official business is conducted on a continuous basis 2. official business is conducted with strict accordance to the following rules: a) the duty of each official to do certain types of work is delimited in terms of impersonal criteria b) the official is given the authority necessary to carry out his assigned functions c) the means of coercion at his disposal are strictly limited and conditions of their use strictly defined 3. every official's responsibilities and authority are part of a vertical hierarchy of authority, with respective rights of supervision and appeal 4. officials do not own the resources necessary for the performance of their assigned functions but are accountable for their use of these resources 5. official and private business and income are strictly separated 6. offices cannot be appropriated by their incumbents (inherited, sold, etc.) 7. official business is conducted on the basis of written documents

3.

LEGAL FRAMEWORK

The substantive legal frame work under which the Civil Services functions are required to be regulated, is contained in the following constitutional and statutory provisions and the rules framed thereunder from time to time:5

3.1.

CONSTITUTIONAL PROVISIONS REGARDING CIVIL SERVICE: 1973 CONSTITUTION a) Article 260 defines the expression service of Pakistan with a departure in following terms: Article 260. Definitions: Service of Pakistan means any service, post or office in connection with the affairs of the Federation or of a Province, and includes an All-Pakistan Service, service in the Armed Forces and any other service declared to be a service of Pakistan by or under Act of Majlis-e-Shoora (Parliament) or of a Provincial Assembly, but does not include service as Speaker, Deputy Speaker, Chairman, Deputy Chairman, Prime Minister, Federal Minister, Minister of State, Chief Minister, Provincial Minister, Attorney-General, Advocate-General, Parliamentary Secretary or Chairman or member of a Law Commission, Chairman or member of the Council of Islamic Ideology, Special Assistant to the Prime Minister, Adviser to the Prime Minister, Special Assistant to a Chief Minister, Adviser to a Chief Minister or member of a House or a Provincial Assembly.

For the first time, the offices of the elected President and the nominated Governor were not excluded from the purview of offices excluded from this expression. However, the definition of Civil Servant ignored the parameters of most exclusion.

b) To regulate the terms and conditions of the persons in the service of Pakistan according to law, Chapter 1 under the head Services, in its Part XII, the Constitution articulated the following parameters: Article 240:- Subject to the Constitution, the appointments to and the conditions of service of persons in the service of Pakistan shall be determined (a) in the case of the services of the Federation, posts in connection with the affairs of the Federation and All Pakistan Service, by or under Act of [Majlis-e-Shoora (Parliament)]; and (b) in the case of the services of a Province and posts in connection with the affairs of a Province, by or under Act of the Provincial Assembly. Explanation.In this Article, All-Pakistan Service means a service common to the Federation and the Provinces, which was in existence immediately before the commencing day or which may be created by Act of Majlis-e-Shoora (Parliament). This article contemplated five branches in which the services and posts were classified, on the basis of the Division of Powers under the Fourth Schedule of the Constitution. Parliament was mandated to enact laws for determination of the terms and conditions of persons in three categories of service of Pakistan; such laws do not authorize restructuring of any service continued under October 1972 Constitutional Accord.

That is further clarified by the above Explanation, for the additional reason that functioning of the All-Pakistan Services constituted an extension into the provincial autonomy domain; but their management was assigned to the Federal Government as a trust, on the basis of relevant InterProvincial Agreements of 1949. The two All-Pakistan Services that existed on 14 August 1973 were the CSP and PSP. Any additional All-Pakistan could only be created by an Act of Parliament and not under it. However, no additional All-Pakistan service has been created by an Act of Parliament during last 38+ years.

c) To sanctify pre-existing rules and orders regulating the structure, management and terms and condition of the persons in the service of Pakistan until modified by laws to be made by the appropriate legislature, the following principle and provisions were incorporated in the constitution:Article 241 Until the appropriate Legislature makes a law under Article 240, all rules & orders in force immediately before the commencing day shall, so far as consistent with the provisions of the Constitution, continue in force and may be amended from time to time by the Federal Government or, as the case may be, the Provincial Government. This Article, to be read in conjunction with the imperatives of article 268 and 275, is significant, amongst others, for the reasons that unlike Article 240, this article covers both the structural composition of the services as well as the Terms and Conditions (TOCs) of the employees. It sanctified pre-existing rules and orders regulating the structure, management and terms and condition of the persons in the service of Pakistan until modified by a law to be made by the appropriate legislature.

d) To ensure apolitical inductions into public services through an autonomous Commission composed of able men/women of integrity, following provision was adopted:Article 242. Public Service Commission: (1) Majlis-e-Shoora (Parliament) in relation to the affairs of the Federation, and the Provincial Assembly of a Province in relation to the affairs of the Province may, by law, provide for the establishment and constitution of a Public Service Commission. (1A) The Chairman of the Public Service Commission constituted in relation to the affairs of the Federation shall be appointed by the President in his discretion. (2) A Public Service Commission shall perform such functions as may be prescribed by law. This is an unencumbered provision; its significance lies in the fact that the Commissions are much more than recruitment agencies. The laws enacted in pursuance of this article, read with pre-existing rule framework, mandated the President/ Governor to consult the respective Commissions in all matters relating to Qualifications for as well as the Methods of appointment to any service or post, whether the 7

commission is responsible for their selection or otherwise? To evolve the structure of the service institutions, executive branch was mandated to engage in prior consultation with the respective Commission for their specialized inputs.

e) For redressal of grievances, the concept of a statutory forum was instituted as a departure from pre-existing system where under only Writ jurisdiction was available for relief in service matters without exception:Article 212. Administrative Courts and Tribunals (1) Notwithstanding anything hereinbefore contained, the appropriate Legislature may by Act provide for the establishment of one or more Administrative Courts or Tribunals to exercise exclusive jurisdiction in respect of (a) matters relating to the terms and conditions of persons who are or have been in the service of Pakistan, including disciplinary matters; (b) matters relating to claims arising from tortuous acts of Government, or any person in the service of Pakistan, or of any local or other authority empowered by law to levy any tax or cess and any servant of such authority acting the discharge of his duties as such servant; or (c) matters relating to the acquisition, administration and disposal of any property which is deemed to be enemy property under any law. (2) Notwithstanding anything hereinbefore contained, where any Administrative Court or Tribunal is established under clause (1), no other court shall grant an injunction, make any order or entertain any proceedings in respect of any matter to which the jurisdiction of such Administrative Court or Tribunal extends [and all proceedings in respect of any such matter which may be pending before such other court immediately before the establishment of the Administrative Court or Tribunal; other than an appeal pending before the Supreme Court, shall abate on such establishment: Provided that the provisions of this clause shall not apply to an Administrative Court or Tribunal established under an Act of a Provincial Assembly unless, at the request of that Assembly made in the form of a resolution, Majlis-e-Shoora (Parliament) by law extends the provisions to such a Court or Tribunal. (3) An appeal to the Supreme Court from a Judgment, decree, order or sentence of an Administrative Court or Tribunal shall lie only if the Supreme Court, being satisfied that the case involves a substantial question of law of public importance, grants leave to appeal. Federal Service Tribunal was constituted accordingly as a departure from the previous constitutional dispensations, under which Writ jurisdiction was the mode for relief for in-service matters without exception, though discretionary. In addition to above framework relevant for all persons in the service of Pakistan, without derogation to other provisions including articles 4, 9, 17(1), 25 and 27, following are pertinent in the context of management and functioning of AllPakistan service institutions;

f) For creation and functioning of the All-Pakistan service institutions under federal management, following two articles were enacted into the Constitution:Article 146. Power of Federation to confer powers, etc., on Provinces, in certain cases (1) Notwithstanding anything contained, in the Constitution, the Federal Government may, with the consent of the Government of a Province, entrust either conditionally or unconditionally to that Government, or to its officers, functions in relation to any matter to which the executive authority of the Federation extends. (2) An Act of Majlis-e-Shoora (Parliament) may, notwithstanding that it relates to a matter with respect to which a Provincial Assembly has no power to make laws, confer powers and impose duties upon a Province or officers and authorities thereof. (3) Where by virtue of this Article powers and duties have been conferred or imposed upon a Province or officers or authorities thereof, there shall be paid by the Federation to the Province such sum as may be agreed or, in default of agreement, as may be determined by an arbitrator appointed by the Chief Justice of Pakistan, in respect of any extra costs of administration incurred by the Province in connection with the exercise of those powers or the discharge of those duties. Article 147. Power of the Provinces to entrust functions to the Federation Notwithstanding anything contained in the Constitution, the Government of a Province may, with the consent of the Federal Government, entrust, either conditionally or unconditionally, to the Federal Government, or to its officers, functions in relation to any matter to which the executive authority of the Province extends. These articles were lifted from previous constitutions enforced since 1935. The FPSC was/is the designated neutral umpire to assist and advise in most management matters; rest of the covenants including postings and transfers, determination of number and designations of the services are required to be determined through consultative process between and amongst the federating units; these partially override article 240 legislative infrastructure in view of the non-substanta clause : Notwithstanding anything contained in the constitution.

g) With respect to appointments in judicial positions, including elevation as High Court Judges from amongst the designated service membership of requisite qualifications and service as one of three sources of composition, the Constitution specified the following criteria:Article 193. Appointment of High Court Judges: (1) A Judge of a High Court shall be appointed by the President after consultation (a) with the Chief Justice of Pakistan; (b) with the Governor concerned; and (c) except where the appointment is that of Chief Justice, with the Chief Justice of the High Court. 9

(2) A person shall not be appointed a Judge of a High Court unless he is a citizen of Pakistan, is not less than forty-five years of age, and (a) he has for a period of, or for periods aggregating, not less than ten years been an advocate of a High Court (including a High Court which existed in Pakistan at any time before the commencing day); or (b) he is, and has for a period of not less than ten years been, a member of a civil service prescribed by law for the purposes of this paragraph, and has, for a period of not less than three years, served as or exercised the functions of a District Judge in Pakistan; or (c) he has, for a period of not less than ten years, held a judicial office in Pakistan. Explanation.In computing the period during which a person has been an advocate of a High Court or held judicial office, there shall be included any period during which he has held judicial office after he became an advocate or, as the case may be, the period during which he has been an advocate after having held judicial office. (3) In this Article, District Judge means Judge of a principal civil court of original jurisdiction. This constitution lays the basis for assignment of judicial functions with an unambiguous clarity to officers of the specified service without derogation of article 175(3) principle.

h) To maintain continuity and validity of pre-existing laws and institutions after realignment with the federal-parliamentary dispensation, the constitution provided the following obligations for all branches of the constitution:Article 268. Continuance in force, and adaptation of, certain laws (1) Except as provided by this Article, all existing laws shall, subject to the Constitution, continue in force, so far as applicable and with the necessary adaptations, until altered, repealed or amended by the appropriate Legislature. (2) The laws specified in the Sixth Schedule shall not be altered, repealed or amended expressly or impliedly without the previous sanction of the President accorded after consultation with the Prime Minister: [ it was repealed by 18th amendment] (3) For the purpose of bringing the provisions of any existing law into accord with the provisions of the Constitution (other than Part II of the Constitution), the President may by Order, within a period of two years from the commencing day, make such adaptations, whether by way of modification, addition or omission, as he may deem to be necessary or expedient, and any such Order may be made so as to have effect from such day, not being a day earlier than the commencing day, as may be specified in the Order. (4) The President may authorise the Governor of a Province to exercise, in relation to the Province, the powers conferred on the President by clause (3) in respect of laws relating to matters with respect to which the Provincial Assembly has power to make laws. (5) The powers exercisable under clause (3) and (4) shall be subject to the provisions of an Act of the appropriate Legislature. 10

(6) Any court, tribunal or authority required or empowered to enforce an existing law shall, notwithstanding that no adaptations have been made in such law by an Order made under clause (3) or clause (4), construe the law with all such adaptations as are necessary to bring it into accord with the provisions of the Constitution. (7) In this Article, existing laws means all laws (including Ordinances, Orders-inCouncil, Orders, rules, bye-laws, regulations and Letters Patent constituting a High Court, and any notifications and other legal instruments having the force of law) in force in Pakistan or any part thereof, or having extra-territorial validity, immediately before the commencing day. Explanation.In this Article, in force, in relation to any law, means having effect as law whether or not the law has been brought into operation. In the context of services, Article 268 further reinforces the scope of continuity allowed to the pre-existing legal framework earlier sanctified by Article 241, by including every notification and bye-laws, whether enforced or not enforced, by declaring it as an Existing law to upgrade these at par with statutory laws. Additionally, this article directed the President / Governor to adapt by Order all pre-existing laws, to bring them in conformity with the constitution, without going through the legislative process of the parliament or provincial assemblies, as the case may be. Two years time frame was specified for the exercise of this power by the executive branch. However, a further provision has been made to direct and authorize all courts, tribunals and authorities to do likewise without ant time-limit, if the President or the Governor omits to act as mandated. The above has not only implications; it created obligations for the Judicature also to read the relevant instruments with requisite adaptations.

i) For continuation in services/posts, vested rights of persons in service on commencing day of the constitution, following article was incorporated:Article 275. Continuance in office of persons in service of Pakistan, etc. (1) Subject to the Constitution and until law is made under Article 240 any person who, immediately before the commencing day, was in the service of Pakistan shall, as from that day, continue in the service of Pakistan on the same terms and conditions as were applicable to him under the Interim Constitution of the Islamic Republic of Pakistan immediately before that day. This Article not only validated all pre-existing appointments in the service of Pakistan as well as their TOCs, it guaranteed that these shall not be varied to their disadvantage, except by law.

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3.2.

LAWS ENACTED:

The above constitutional framework provides the bedrock for enacting enabling legislation by the appropriate legislature, that needs to be kept in view while examining the structure of the statutes enacted by the parliament after the enactment of the constitution. Accordingly following statutes were enacted beginning 15 August, 1973:- Civil Servants Act, 1973 - Provincial Civil Servants Acts. - Federal Public Service Commission Act. - Provincial Public Service Commissions Acts - Federal Services Tribunals Act. - Provincial Services Tribunals Acts. It appears that while enacting the above laws, the constitutional philosophy may not have been fully reflected by the parliament. Many exceptions have been created within the statutes which in the course of their implementation were further distorted. Some of these are: a) Under Civil Servants Act, 1973, the Rules were not framed to specify guidelines for regulating the tenures, as well as ex-cadre appointments under Section 10; the concept of reservation of posts incorporated in Section 9 was ignored and defied in more than one ways i.e. posts were not earmarked for initial recruitments, promotions or transfers. In fact such provisions in the pre-existing rules were abolished; seniority lists were not formulated, nor rules for confirmation or seniority laid down, e.g. the validation of Rules ordinance, 2001 is one such example, where malpractices in management of key terms and conditions during the era of constitutional, were validated during extra constitutional era. While the act specified that it deals with the terms and conditions of civil servants, in practice rule making power under section 25 was used to create and tamper with the structure of the service. This power was also used to amend and destroy the inter provincial agreements, from which constitutional sanction was derived from another source. The above laws categorically stipulated that no appointment shall be deemed to be regular, unless made in prescribed manner. The term prescribed is defined by the Act as Rules framed under the Act or deemed to have been framed under the Act. The terms and conditions are specified in the Act. b) With respect to Public Service Commission, in 1973 the services of federation were excluded from its purview, and state enterprises and corporations were added to its charter till the repeal in 1977, by the present ordinance. In practice the Commission continued to do what it was doing before 1973, simultaneously as the federal government made large scale inductions through lateral entries. FPSC was not consulted with respect to methods and qualifications for appointment of all-Pakistan services, not did it blow the whistle. There is a lot of confusion. c) The FST Act, excluded substantive terms and conditions, such as promotions and tenure, from the purview of the tribunal compelling the aggrieved to approach the 12

Superior Courts as a last resort. So what the Constitution had contemplated under Article 212 to be in exclusive jurisdiction of the administrative courts continued to be agitated before the superior courts. d) While three Services under federal management are treated as /Services, rest are classified as Occupational groups, a concept not rooted in law. 3.3. Civil Servants Act, 1973 (Act No. LXXI of 1973) Section 2: Definitions.(1) In this act, unless there is anything repugnant in the subject or context,(b) civil servant means a person who is a member of an All-Pakistan Service or of a civil service of the Federation, or who holds a civil post in connection with the affairs of the Federation, including any such post connected with defence, but does not include(i) a person who is on deputation to the Federation from any Province or other authority; (ii) a person who is employed on contract, or on work-charged basis or who is paid from contingencies; or (iii) a person who is worker or workman as defined in the Factories Act, (XXV of 1934), or the Workmans Compensation Act, 1923 (VIII of 1923): (d) pay means the amount drawn monthly by a civil servant as pay and includes technical pay, special pay, personal pay and any other emoluments declared by the prescribed authority to be pay; (f) prescribed means prescribed by rules; (g) rules means rules made or deemed to have been made under this Act; (h) selection authority means the Federal Public Service Commission, a departmental selection board, departmental selection committee or other authority or body on the recommendation of or in consultation with which any appointment or promotion, as may be prescribed, is made; and (2) For the purposes of this Act, an appointment, whether by promotion or otherwise, shall be deemed to have been made on regular basis if it is made in the prescribed manner. Section 3. Terms and conditions.(1) The terms and conditions of service of a civil servant shall be as provided in this Act and the rules. (2) The terms and conditions of service of any person to whom this Act applies shall not be varied to his disadvantage. Section 4. Tenure of office of civil Servants.13

Every civil servant shall hold office during the pleasure of the President. Section 10. Posting and transfer. Every civil servant shall be liable to serve anywhere within or outside Pakistan, in any [equivalent or higher] post under the Federal Government, or any Provincial Government or local authority, or a corporation or body set up or established by any such Government: Provided that nothing contained in this section shall apply to a civil servant recruited specifically to serve in a particular area or region: Provided further that, where a civil servant is required to serve in a post outside his service or cadre, his terms and conditions of service as to his pay shall not be less favourable than those to which he would have been entitled if he had not been so required to serve.

There are scores of instruments including agreements, rules, bye laws which have been framed or deemed to have been framed under the above laws, or the constitution. However, in many cases, it seems that the executive, by acts or omissions, did not discharge its mandated functions as intended by the framers of the constitution or parliament. Instead of resort to parliamentary legislation, OM based culture replaced. The issue of non-observance of statutory tenures is one such aspect which has been raised by some petitioners. The management of the services is a classical case of misfeance, malfeance, non-feance. Being a complex subject, while it is a historical opportunity for the apex court to set the course for reversion to constitutional and legal rails. It may be appropriate if a commission is constituted to go into the details after affording the opportunity to various stakeholders to present their point of view, for a set of determinative findings to help advance good governance according to laws. 3.4. ESTACODE 2010 - CHAPTER III - TRANSFERS, POSTINGS AND DEPUTATIONS Sl. No. 3 [Authority.- Estt. Division O.M. No.10/10/94-R.2, dated 22-3-1994]. The competent authority has laid down the following criteria for posting/transfer of the officers working in Ministries/ Divisions and the Attached Departments/Subordinate Offices, Autonomous and Semi-Autonomous Organizations, under their administrative control: i) The normal tenure of an officer on the same post should be three years. Posting of an officer on the same post beyond the normal tenure will require concurrence of the competent authority, in each case.

ESTACODE is an Establishment Code issued by Federal Government. It contained all valid laws, rules and instructions applicable to civil service of federation.

3.5.

OTHER LEGAL INSTRUMENTS & RULES 14

The other relevant following legal instruments are as follows: 1) Act of India 1935 adopted as the first Provisional Constitution on 12 August 1947, and relevant chapters on civil services in other constitutional Acts since repealed in 1935, and those enforced in 1956, 1962, 1972 and 1973. 2) Cabinet Resolution notified on 08 November 1950. 3) The Inter-Provincial Agreement notified on 21 June 1954 as amended in 1966, and later in August 1973. 4) Civil service of Pakistan ( Probation, Training & Seniority) Rules 1954, initially repealed in 1990 without approval of the designated Authority but later validated retroactively by an Ordinance in 2001. 5) High Court Judges Qualification Act ( XXI of 1965) as amended by Act I of 1988. 6) Civil Service ( listed Post Holders) Act (XVI of 1967) that was repealed in 1981 under an omnibus ordinance issued for spring cleaning. 7) Civil Services( allocation of Service) Rules 1966. 8) The official proceedings of the Governors Conference of February 1959 wherein the continuation of the Judicial branch of the Service was agreed to. 9) Establishment Divisions SRO no 1238( 1)/ARC dated 21 August 1973. 10) Establishment Divisions SRO of 15 September 1973 whereby the Service title was abrogated. 11) Establishment Divisions OMs of October 1973 on TAG, February 1974 on DMG since amended in December 1976 retroactively. 12) Establishment Divisions OMs of February 1975 and April 1976 on the creation of Secretariat Groups II and III generations after renaming the Secretariat Group I as OMG in January 1975. 13) The provincial post sharing Agreement affected in the inter-provincial conference of 19 September 1993 chaired by caretaker Prime Minister. 14) 1994 Chatha Committee report of 04 November 1996 on federal secretariat restructuring and staffing. Following the foundations laid in the Constitution, the federal government promulgated The Civil Servants Act, 1973 and each province enacted its own Civil Servants Acts. The law allow civil service of federation, and of provinces, to be regulated as per rules notified under these enactments. Consequently, both sets of governments have notified Civil Servants (Appointment, Transfer and Promotion) Rules, 1974. The qualification and method (the way) of filling of all posts is regulated by these rules. The posts at initial officer level i.e. BS-17, are classified to be filled by way of promotion or transfer and by direct recruitment under share fixed for each category. The recommendation for appointment in BS-17, under direct recruitment share, is done by FPSC, which is established under its own law as a requirement of the Constitution. 4. HISTORICAL PERSPECTIVE ON PAKISTAN CIVIL SERVICES

4.1.

CIVIL SERVICES BEFORE INDEPENDENCE: 15

Pakistans civil service has its origins in the Indian Civil Service (ICS), described as the steel frame that enabled the British to rule their massive empire. ICS carried the reputation of being incorruptible, efficient, well educated and well trained. In time, the British recruited indigenous people, who were among India's best and brightest, into the Indian Civil Service ranks. By 1935, only the members of two services, the ICS and the Indian Police Service (IPS), known as AllIndia Services, could be deputed anywhere in the country. 4.2. CIVIL SERVICES IN PAKISTAN AFTER INDEPENDENCE:

The Civil Services of Pakistan played a key role in Pakistan 's survival in the difficult years following independence, as the steel frame of the state. The Civil Service of Pakistan (CSP) was established in November 1950, as All-Pakistan Service, in pursuance of an inter-provincial agreement in 1949. It was the successor to the ICS and the short lived Pakistan Administrative Service (PAS). CSP officers were recruited by the central government primarily for provincial assignments but also served at the centre. The government designated the CSP and the PSP as the only All-Pakistan Services. The foreign service, audit and accounts, customs and excise, and taxation were all central services whose officers were assigned exclusively to federal positions. At partition, out of more than 1,100 Indian Civil Service officers, scarcely 100 were Muslims, and eighty-three of them opted to go to Pakistan. Because none of them held a senior rank equivalent to that of a secretary, this initial group was augmented by quick promotions in the Civil Service of Pakistan (CSP) through ad hoc appointments from other services and through retention, for a time, of some British officers. All these elements had been integrated into one unified cadre in 1947. The Government of India Act, 1935, with certain adaptations, was adopted on 12 August 1947, as the Provisional Constitution of the newly born state of Pakistan. Under this Constitution enforced at the time, the Cabinet through Resolution (No. F.25/4/50-Ests(SE1)) on 8th November 1950, enforced the 1949 Inter-Provincial Agreement. Thereafter, after extensive inter-provincial consultations between the federating units, a formal framework was developed and epitomized as constitutional Rules, notified by the Establishment Division in the Cabinet Secretariat, vide No. F.25/12/51-SE1 on 21 June 1954, in terms of the enabling provisions of Section 241 of the 1935 Act. The agreement could be modified with the consent of the federating units, but was not open to challenge by or before any forum, except a signatory competent to invoke the advisory jurisdiction of the Federal, later Supreme Court of Pakistan. In 1965, Act XXI was enacted on the initiative of the Supreme Court and High Court, duly endorsed by the legislative branches at the federal and Provincial levels to operationalize the constitutional command with respect to selection and appointment of High Court Judges. The CSP was notified as the Service qualifying for such appointments from one of the three sources described by Article 78 of the 1962 Constitution. In 1967, Act XVI was promulgated, to empower the President to determine the principles for apportionment of Provincial posts amongst the members of the Service and Provincial Executive & Judicial Civil Services. 16

The concept design of the DMG is thus rooted in the CSP, one of the two subsisting All-Pakistan Services, composed and created as fiction of the Constitution in pursuance of two interprovincial agreements arrived at the Premiers Conference held on 26 December 1949, later ratified by the federal and provincial Cabinets. It needs to be noted that the Objectives Resolution was also approved at the same conference. A major in-road into provincial autonomy incorporated in the 1935 Act had thus been agreed to, and willingly sanctified by the successive constitutions, including the unanimously approved 1973 constitution (Explanation to Article 240). PART XII - MISCELLANEOUS - CHAPTER 1 - Services Article 240. Appointments to service of Pakistan and conditions of service Subject to the Constitution, the appointments to and the conditions of service of persons in the service of Pakistan shall be determined (a) in the case of the services of the Federation, posts in connection with the affairs of the Federation and All-Pakistan Services, by or under Act of Majlis-e-Shoora (Parliament); and (b) in the case of the services of a Province and posts in connection with the affairs of a Province, by or under Act of the Provincial Assembly. Explanation.In this Article, All-Pakistan Service means a service common to the Federation and the Provinces, which was in existence immediately before the commencing day or which may be created by Act of Majlis-e-Shoora (Parliament). Article 241. Existing rules, etc., to continue Until the appropriate Legislature makes a law under Article 240, all rules and orders in force immediately before the commencing day shall, so far as consistent with the provisions of the Constitution, continue in force and may be amended from time to time by the Federal Government or, as the case may be, the Provincial Government. Until August 1973, all matters relating to structures of service institutions as well the terms and conditions of its membership were regulated by the principles laid down by constitution itself; no statute had been enacted for that purpose. The CSP Resolution/Agreement also covered both the structure of the Service as well as basic terms & conditions of service; unlike the ICS, it was contemplated as centralized service. 4.3. CIVIL SERVICE DURING BHUTTO REGIME (70s):

In 1973, massive reforms made major changes to the bureaucracys structure. The CSP cadre was abolished; and all civil service cadres were converted to occupational groups through Office Memoranda. 1,300 civil servants were dismissed on the grounds of corruption and incompetence. More significantly, the constitutionally guaranteed protections of employment were removed, that shielded the bureaucracy from outside interference. The rank hierarchy that divided civil servants into four classes ranging from officer-level Class I to Class IV was replaced by a system of 22 national pay grades known as Basic Pay Scales (BPS). A new Secretariat Group was created whose membership was open to all officers of the federal services, 17

after they attained a level of seniority. With a declared aim to draw fresh blood into government, a Lateral Entry scheme was introduced through which 5,000 personnel from diverse backgrounds were directly recruited into the civil bureaucracy, bypassing the Federal Public Service Commission (FPSC)s selection process. With the Civil Services Reforms of 1973 a new system of Common Training Program or CTP was introduced and all of these occupational groups (12 at that time) were required to go through a mandatory combined training at Civil Services Academy (CSA), Lahore. The All-Pakistan services, which previously comprised only the CSP and PSP cadres, now comprised the DMG, TAG, and the Police Group. The All-Pakistan services were renamed the All-Pakistan Unified Group (APUG). It is pertinent to mention that an All-Pakistan service could only be created by an Act of Parliament, and the concept of Occupational Groups is not in accordance with the Constitution and the validly made service laws that recognize Federal, Provincial and All-Pakistan Services institutions and posts created in connection with the affairs of a province or federation. While other service entities may be created or abolished by executive actions, in public interest. However, in 1973, despite constitutional & statutory recognition of the service institution, the Establishment Division modified the fundamental Covenants, without adopting the correct procedure of inter-provincial agreement and meaningful consultation with the FPSC, without regard to attendant implication for future of the federation. Executive actions (Office Memoranda) were used to create new All Pakistan Service entities, rather than the Constitution mandated process of legislation by an Act of Parliament, and it was also inconsistent with the 1949 inter-provincial agreement. The existing civil service agreement was amended through subservient rule making powers derived from the Civil Servants Ordinance, introduced on 15 August 1973, without proper consideration for service structures. DMG was constituted in February 1974 through an Office Memorandum (OM) of the Establishment Division, and it drew its primary membership from the Civil Service of Pakistan (CSP) (O.M. 2/2/74/ARC dated 17 February 1974). Presently, one of the two All-Pakistan Services is classified as a service (police), while the other (DMG) is treated as a Group. 4.4. CIVIL SERVICE DURING ZIA-UL-HAQ REGIME

Gen. Zia-ul-Haq did not make any major changes to the Civil Services structure. He established a commission on civil service reforms, which proposed a number of radical departures from previous regime such as abolishing all occupational groups; creating several technical services in fields such as education and medicine; and revamping district administration. Zia institutionalized military induction into the civil service and reserved 10 per cent of vacancies in the federal bureaucracy at BPS-17 and 18 for retired or released military officers. Former military officers would also be employed on three to five year contracts. In 1981, Act XVI of 1967 was repealed which generated an unending confusion with respect to sharing of provincial posts between the DMG and provincial services. However, Act XXI of 1965 that regulates appointments of service officers as High Court Judges remains on the statute book. 18

4.5.

CIVIL SERVICE UNDER CIVILIAN RULE (80s & 90s)

The period from 1988 to 1999 saw democracy in the country, with Benazir Bhuttos PPP and Nawaz Sharifs PML-N both forming governments twice. No major changes to the civil service system were made during this period. 4.6. CIVIL SERVICE UNDER MUSHARRAF REGIME

Gen. Musharraf made drastic and adverse changes to the Civil Service. He enforced the Removal from Service, Ordinance to keep the civil servants under control. He introduced the so-called devolution plan by which Federal Government encroached on the authority of Provincial Government despite their opposition, and demolishing the time tested public offices of the Deputy Commissioner, Commissioner and Executive Magistrate, which were promptly reinstated by the successor elected governments. The recruitment to Office Management Group (OMG) was stopped. Furthermore, through Establishment Division O.M. No. 6/2/2009-C.P.II dated 12.09.2009, the Income Tax Group was declared as defunct, and on 15.11.2010, all officers of the defunct Income Tax Group and Customs Group were appointed to the newly created Inland Revenue Service (IRS). Officers

5.

OCCUPATIONAL GROUPS EXISTING UNDER THE CIVIL SERVICE:

Currently, the following Occupational Groups constitute under the Civil Services of Pakistan: Commerce & Trade Group (CTG) District Management Group (DMG) Economists and Planners Group (EPG)* Foreign Service of Pakistan (FSP) Inland Revenue Service (IRS) Information Group (IG) Military Lands & Cantonments Group (MLCG) Office Management Group (OMG)** Pakistan Audit and Accounts Service (PAAS) Pakistan Customs Service (PCS) Police Service of Pakistan (PSP) Postal Group (PG) Railways (Commercial & Transportation) Group (RCTG)

6.

KEY FINDINGS: The Civil Servants presently have no protection against arbitrary actions or transfers, for taking principled stand on issues of public interest. Civil Servants are poorly paid, insufficient to earn a respectable living and pay bills. 19

Government is short on funds, so any salary increases has been in phases, where the revenue earning and security environment related government departments have been given a raise on priority. The salary differential at senior management positions between Government and private sector is much higher compared to lower positions. There is a need for transparency and accountability of government servants. Merit is not the sole criteria adopted in offices. There is a need for transparency and simplification of rules in offices. The use of modern information technology is negligible in offices.

7.

RECOMMENDATIONS: A Commission should be formed to review the existing legal framework for civil service and recommending measures to ensuring its revival and protection of legitimate rights of civil servants. Guaranteeing Security of Tenure for a minimum of 2 years in a post, unless for valid reason given in writing, Form an Independent Civil Servants Protection Tribunal to review civil servants complaints about arbitrary transfers, and providing them legal protection against postings and transfers that do not conform to due process. Civil service should offer market based salary, career growth, conducive working conditions, better housing, transport allowance and health insurance, and opportunities of public service that can attract and retain highest quality talent at the entry level Increasing salaries and pensions of the Civil Servants. This may be done in two phases due to tight fiscal situation. In Phase I, for CSS officers numbering less than 10000, the Salaries for CSS officers must be de-linked from other government salaries (BPS scales) and Market Salary (MP scales) or Double Salary must be provided. (FBR, Police already have it.) Institute effective accountability over the civil bureaucracy and take strict disciplinary actions against those found guilty. Any attempt of a physical attack on a government servant must be taken very seriously, and case under Anti-Terrorism Act must be registered. Promote fairness and elimination of manipulation by expanding the role of the Federal Public Service Commission (FPSC) to one that professionally oversees all aspects of the bureaucracys functioning. Merit should be the only determinant of career growth. A completely autonomous Federal Public Service Commission must determine merit at all stages. There should be attrition at all levels based on professional competence and suitability for future postings. Govt. should get rid of dead wood. Conducting regular training, including refresher courses, at all levels of the bureaucracy, to inculcate professional skills, integrity and professional commitment.

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The deputation to International NGOs, multinationals and private sector organisations be facilitated to promote diversity of experience, rather than going through a board of four federal Secretaries. Modifying Performance Evaluation Reports (PER)(ACRs) to include tangible, performance indicators. Supervisory officers should be penalized points in their own PER if they fail to write and submit the same by end January. Enhance effectiveness by decentralization of functions. Revising and simplifying existing rules. Establishing call centers in offices and districts to report bribes etc. Civil service systems should be modernized through information technology and compulsory training for all government employees be carried out. Appropriate amendments may be made in the laws governing civil services; Civil Servants Act, FST Act, FPSC Act etc.

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