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Only for compelling reasons

“When an ordinary tenure for a posting has been specified in the law or rules made thereunder, such tenure must be respected”, adjudges a three-member bench of the Supreme Court of Pakistan, headed by none other than the chief justice, in a case that later came to be known as the Anita Turab case.

In a country where tenures of civil servants are not secure, and appointments as well as transfers are plagued by political interference, the SC’s judgement is being seen as a watershed. Ever since this decision was announced, a large number of officers – from federal secretaries down to the clerical staff – have challenged their transfer orders on relevant forums based on this judgement.

In some cases, the Supreme Court has itself taken suo motu notice of premature transfers and even got the orders reversed. However, blind application of the principle enunciated in the decision has many pitfalls, which need to be reviewed.

First, in all likelihood the new government would like to constitute its own team of bureaucrats to devise and implement fresh policies. This scenario would inevitably entail the removal of some, if not all, bureaucrats who might not have completed even a few months in office, let alone their full tenures. These officers may then seek a relief from superior courts on the basis of the decision mentioned above, and some may even succeed. Nonetheless, the courts need to act cautiously while treading this path.

In democratic countries, it is the prerogative of the popularly elected governments to constitute their own teams of bureaucrats, who will implement agendas that the parties in power had pronounced as their election manifestos or as polices after they have been elected. Moreover, since these governments are to be accountable before the general public at the end of their terms, this arrangement is quite logical too.

The same logic would also be applicable in the case of Nawaz Sharif’s government. Now that Sharif has been popularly elected his government will be made accountable at the end of the term. In addition, even though frequent transfers and postings should be avoided at all costs, he should have the right to constitute his team. Expecting that Nawaz Sharif will work with bureaucrats appointed by the PPP government, or by the caretakers, is unrealistic to say the least.

It is pertinent to note that in the US, acknowledgement of such prerogative of the elected government had taken the form of a spoils system. The elected president would nominate his top functionaries from among his party workers based on similar logic. Over time, the spoils system has been diluted to a great extent, yet the right of the president – open to Senate scrutiny in some cases – to appoint senior government officials is admitted on all hands.

Even otherwise, insisting on completion of tenure, without ensuring some associated measures, would turn out to be counterproductive. Unless a clear-cut career planning is carried out in respect of civil servants of various service groups, for some of them tenure completion would be a blessing and for others, a curse.

For instance, those who have the right connections will get good postings and safely complete their tenures. On the other hand, those who are not as well connected, will generally get unattractive positions in the first place, and would then have to rot there in the name of tenure completion.

There is therefore a dire need to chalk out career progression paths for individual service groups right from induction, which should have a good mix of field and secretarial postings or, depending upon the very nature of work, that of attractive and less attractive postings. In case of federal services, the career planning should also ensure that other than their native provinces, every civil servants should be required to serve in other provinces as well.

In this regard, the Establishment Division – which has over time been reduced to a post office, from where only postings or transfers orders are issued – should be reverted to its original mandate and devise, as well as implement, career planning for civil servants falling within its domain. At the same time, the division should also work out a mechanism of hearing and disposing of those cases where civil servants can complain of premature transfers. In this regard, rules need to be amended to constitute a permanent commission or committee at the division with representation from the judiciary (retired or serving), civil service, citizenry and parliament.

Provincial counterparts of the Establishment Division and controlling departments of other service groups would have to act on similar lines too in their respective jurisdictions. These measures would, on one hand, provide a level playing field to everyone in the public sector and, on the other, decrease the unnecessary workload that superior courts are currently facing because of increasing representation on the subject.

The Nawaz Sharif government will have to take important decisions in respect of transfers and postings of civil servants during its initial days. This may bring the government into conflict with the superior judiciary, which is showing considerable sensitivity in implementing the decision of the Anita Turab case. The fact that Khawaja Muhammad Asif – a veteran leader of the PML-N – challenged the postings and transfers made by the caretakers in the Supreme Court, instead of getting them annulled by executive orders at a later stage, shows that the new leadership too intends to move cautiously on the issue.

It is pertinent to note here – in the decision of the Anita Turab case – that the court has allowed that exceptions were possible ‘for compelling reasons’. However, the interpretation of ‘compelling reasons’ may vary from person to person. Instead of testing the patience of the courts, the government therefore has an option of going back to the same court, present its case there in light of the above arguments and seek further explanation or guidelines on ‘compelling reasons’.

It is further recommended that in order to show its seriousness and commitment in the matter, even before approaching the court, the government should instruct the relevant authorities to chalk out clear-cut career paths for service groups that fall within their respective domains and constitute committees. After all, the horse should come before the cart and not the other way round.

The writer is a barrister-at-law based in Islamabad.Email: ehtashams@hotmail.com

Ehtasham Anwar, "Only for compelling reasons," The News. 2013-06-01.
Keywords: Social sciences , Social rights , Society-Pakistan , Civil servants , Civil services , Supreme court , Decision making , Government-Pakistan , Civil society , Elections , Bureaucracy , Judiciary , PM Nawaz Sharif , Khawaja Muhammad Asif , Pakistan , United States , PPP , PMLN