Pleasure of the crown or pleasure of the President---service laws need reformation

PLEASURE OF THE CROWN OR PLEASURE OF THE PLEASURE OF THE CROWN OR PLEASURE OF THE PRESIDENT‑‑‑SERVICE LAWS NEED REFORMATION By Mehboob Pervez Awan, Joint Secretary, Pakistan Law Commission Soon after independence, the services 'of Pakistan were governed by the Government of India Act, 1935 and remained as such under the Independence Act, 1947; virtually we inherited a colonial service structure where, an employee of the Government was on the pleasure of the Crown or the Governor‑General where consideration of labour was not a right but a bounty of the Crown. This concept is an altogether different from the Injunctions of Islam, which ordain "pay the worker before drying his sweat". The colonial service structure we adopted with all its merits, demerits and deep‑rooted evils. Unfortunately, so may years after independence, no steps were taken to reform the service structure, to bring it in accordance with the Injunctions of Islam. The pleasure of either the Crown or the President was still in vogue, the exploitation of servants is still present in one form or the other where servants of the State are treated indifferently, giving benefit to one and refusing to other is still in practice and the worst of all is the insecurity of service. It is said that a civil servant is more insecure than a workman who having ninety days' continuous service in a factory or establishment, gains a permanent status, whereas a Government servant some time retires in temporary capacity in thirst of confirmation. In past some service reformation were carried in the year 1973 by merging all services and cadres into a single unified graded structure; abolishing all classes among Government servants and replacing them in a single unified graded structure to provide for entitlement to promotions to the higher posts throughout the range of public service; for horizontal movement from one cadre to another including the movement of technical personal to the cadre of general management carrying posts of an executive nature; and by this arrangement and merger of all classes and services into a single Unified Graded Structure, the various functional and professional services became branches of a single service. The object behind this arrangement was to take talented officers from the private sector such as banking, insurance, industry and trade as well as from other professions for jobs at the appropriate level in the Central and Provincial Secretariat and departments as well as Government‑sponsored corporations, autonomous and semi‑autonomous bodies, yet the need to reform law is a continuous process for making it effective, useful and update. "' Before proceeding further to discuss legislative as well as administrative reforms, it may be relevant to mention the existing service structure, statutory laws, provisions of laws and general complaints and grievances either in structure or in laws. At present the services in existence are; the Federal Government, Provincial Governments, Armed Forces/Para Military Forces, Autonomous Corporations, Statutory Bodies and the Co -operative Societies. Some of the basic statutory laws or provision of laws governing these services are (i) Articles 212, 240 and 241 of‑ the Constitution of Pakistan, 1973; (ii) The Civil Servants Act, 1973, (iii) The Punjab Civil Servants Act. 1974; (iv) The Sindh Civil Servants Act, 1973; (v) The N.‑W.F.P. Civil Servants Act, 1973; (vi) The Balochistan Civil Servants .Act, 1974; (vii) Armed Forces Act/Ordinances; (viii) Statutory Laws dealing with bodies other than Federal, Provincial and Armed Forces; (ix) Civil Service of Pakistan/Composition Cadre Rules, 1954; (x) Civil Servants (Appointment, Promotion and Transfer) Rules, 1954; (xi) Government Servants (Application for Posts and Service) Rules, 1966; (xii) Government Servants (Conduct) Rules, 1964) (xiii) Government Servants (Efficiency and Discipline) Rules, 1973; (xiv) Government Servants (Appeal) Rules, 1980; and (xv) Rules and Regulations of respective statutory and corporative authorities etc. Similarly, general complaints of employees are insecurity of service, nepotism and personal influence from inside and outside the service personnel including political influence, discrimination in service benefits; abuse or misuse of ACRs against employees as weapon of duress, delay in confirmation of employees; delay in promotion; defective procedure of move‑over coupled with technicalities therein indefinite ad‑hoc appointments and consequences thereof, unfavourable working atmosphere; frequent transfer from place to place on personal grounds; long working hours, conveyance and residential problems and indifferent attitude of institutions towards their employees etc. The services of Pakistan are regulated under Article 240 of the Constitution of Pakistan, 1973, which says: "Subject to the Constitution, the appointment to and the conditions of service of person 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 the Act; and ; (b) in the case of service of a Province and posts in connection with the affairs of a Province by or under the Act of Provincial Assembly. Prior to this the services were regulated under Article 240(1) of the Government of India Act, 1935, Article 180 of the Constitution of Pakistan, 1956 and under Article 176 of the Constitution of 1962 which respectively read as under: The Government of India Act, 1935: 240(1). Except as expressly provided by this Act, every person who is a member of a civil service of the Crown in Pakistan, holds office during His Majesty's pleasure. The Constitution of Pakistan, 1956: 180. Except as expressly provided by the Constitution‑ (a) every person who is a member of a defence service, or of a civil service of the Federation, or of an All Pakistan Service, or holds any post connected with defence, or a civil post in connection with the affairs of the Federation, shall hold office during the pleasure of the President. The Constitution of Pakistan, 1962: 176. Subject to the Constitution‑‑ (a) a person who is a member of All Pakistan Service, or any of the Defence Service of Pakistan or of a civil service of the Centre, or who holds a post connected with defence or a civil post in connection with the affairs of the Centre, shall hold office during the pleasure of the President. The Constitution of Pakistan, 1973 is unique in this respect, that it has not retained the prerogatives of pleasure, yet this pleasure is still available in the Civil Servants Act, 1973 in the following words: "Every civil servant shall hold office during the pleasure of the President and in the Provincial Legislation of the Governor, which is violative of Article 8(1) of the Constitution", which reads as under: "Any law, or any custom or usage having the force of law, in so far as it is inconsistent with the rights conferred by the Chapter, shall, to the extent of such inconsistency, be void. Similarly, this pleasure is also available to the Governors and other such‑like provincial statute." Definitely, the legislation abridges the right of a servant to serve freely according to law of the land with sense of security; dignity. and honour which is inalienable fundamental right guaranteed in the Constitution. In order to bring the Civil Servants Act, 1973 and other similar provincial legislation m accord with the Constitution of Pakistan, 1973. The provision of pleasure may be deleted as a first step towards reformation of service law . As stated earlier, sense of security is sine qua non for improving efficiency, dedication to job and honour to self. and section 7 of the Civil Servants Act, 1973 is a major hurdle in the way of security in service matters which reads as under: A person appointed on probation, shall, on satisfactory completion of his probation, be eligible for confirmation in a service or, as the case may be, a post as may be prescribed. As a practice prevalent in service matters after satisfactory completion of probation, a civil servant is allowed to continue until further order and despite eligibility for confirmation retires in the hope of confirmation. The fact needs no proof after reading subsection (1) with subsection (4) of section 7, which reads: "A civil servant who, during the period of his service, was eligible to be confirmed in any service or against any post retires from service before being confirmed, shall not merely by reason of such retirement, be refused confirmation in such service or post or any benefit accruing therefrom." A well‑recognized principle of drafting is that 'law should be clear and not clever'. This piece of clever legislation may suit the colonial bosses but ought not imply in democratic system. In matters like promotion, minimum length of service is prescribed for promotion from one grade to another. Similarly, a definite period i.e. five years of satisfactory service may be prescribed for confirmation and thereafter this procedure should be automatic. It is generally and correctly said that service of a workman is more secure than a civil servant, because a workman gets status of a permanent worker after rendering ninety days' service whereas a civil servant remains in doldrums throughout his service and may not get his status till his retirement. Adhocism is again one of the serious issues not only in every sphere of life specially in service field. Ad hoc appointments are made under this law or many other laws for the time being in force, the persons so appointed continue to serve for years, some are retained others are refused leaving them on the will of God. I have in personal knowledge dilemma of some ad hoc lecturers working more than ten years, almost every year they are informed that their services are going to be terminated forcing them to rush to the Courts for grant of stay. This practice needs to be reviewed by suitably amending the law or the practice 'be abolished altogether because under Rule 19 of the Civil Servants (Appointment, Promotion and. Transfer) Rules, 1973, 'ad hoc appointment may not exceed six months'; therefore, either the process of filling a post under Rules 18 and 19 of the said Rules may be completed within six months, failing which the ad hoc appointment exceeding two years be deemed an appointment under section 5 of the Civil Servants Act, 1973, if he otherwise fulfils the conditions. However, ad hoc appointments made under section 12 of the Act may be treated separately but not to the detriment of his accrued right if hit by principle of locus poenitentiae. Writing of annual confidential reports is also another discretionary pleasure of which we inherited with this system where general feelings‑and grievances of employees are that ACRs are used as a weapon of duress to suppress the subordinates; these do not depict the foolproof performance of workers' liking and disliking in the last month of a year play vital role. As the ACRs playa major role in deriving and evaluating the performance of an official in promotion cases, therefore, some changes in procedure may be beneficial i.e. (1) an average .report may also be communicated so that the person may improve his performance because an average person is always in the impression that at least good report be given to him. An average report may not give benefit but is injurious to harm him every sort of ACR whether good, bad or excellent, may be communicated to the person concerned so that if he is average or bad, he may improve himself, if he is good or excellent, he may retain his performance and lastly every ACR must be endorsed on solemn affirmation that‑‑ I,___________________, hereby solemnly affirm and declare as under: That while evaluating the, overall performance of the official/officer nothing except his true working during the year remained under my consideration. Deponent This affirmation may be added in the prescribed pro forma of ACRs. Retirement from service is an inevitable, pathetic and horrible end, yet every Government servant has to undergo this process willingly or unwillingly. Unfortunately, after retirement the experience and skill spreading over the years is destroyed. Their experience and expertise may be utilized in some other beneficial manner. They should not be forgotten altogether but be treated and named as 'senior citizens'. After retirement they deserve more respect, honour and dignity. if he is a teacher, his services may be utilized in future educational planning, if a judicial officer for legal research, writing books on legal subject, if an army officer for assistance in formulating strategic policies. I was shocked to meet a retired Headmaster of a Government School as a petty Karyana merchant and a retired officer of Grade‑19 running a stationery shop of insignificant finance. I have seen senior citizens keeping in hand their bulky pension books to prove their identity. Is it not better that at the time of retirement a handy graceful identity card be issued from the department so that he may easily get admissible benefits i.e. exemption from property income‑tax, medical facility from Government Hospitals, concession in travelling fares etc. They should not be debarred from State function i.e. celebrations of 14th August, 23rd March and other prestigious functions. MR. JUSTICE SAIYED SAEED ASHHAD, CHIEF JUSTICE, HIGH COURT OF SINDH Born on 8‑10‑1943 at Lucknow, India; completed education in 1963 obtaining LL.B. degree from S.M. Law College, Karachi and joined the Bar as a Pleader in September, 1963; enrolled as an Advocate of the High Court in November, 1966; practised at the Bar till January, 1975. During this period, conducted cases on behalf of Habib Bank Limited, Standard Bank Limited, United Bank Limited, Pakistan Atomic Energy Commission, National Shipping, Corporation and Pan-Islamic Steamship Company Limited besides conducting cases on behalf of the State and the Government as Assistant Public Prosecutor and Assistant Government Pleader; was appointed as Additional District and Sessions Judge in January, 1975 and at Khairpur; promoted as District and Sessions Judge in February, 1981. As District and Sessions Judge held various assignments, such as, Presiding Officer, Labour Court; Joint Secretary/Draftsman, Law Department, Government of Sindh; Special Judge Customs, Taxation and Anti‑Smuggling; Chairman, Insurance Appellate Tribunal, Chairman, Drugs Court; Judicial Member, Income Tax Appellate Tribunal besides working as District and Sessions Judge, Shikarpur, Sukkur and Karachi; elevated to the Bench of Sindh High Court on 11‑1‑1997; appointed as Chief Justice and took oath of office on 28‑4‑2000.