Civil Service Laws And Constitutional Violation

CIVIL SERVICE LAWS AND CONSTITUTIONAL VIOLATION CIVIL SERVICE LAWS AND CONSTITUTIONAL VIOLATION By Syed Muhammad Kalim Ahmad Khurshid, President, Lahore High Court Bar Association 1. The powers of judicial review as envisaged under Article 199 of the Constitution of Islamic Republic of Pakistan have been controlled by Article 212 of the Constitution of Islamic Republic of Pakistan whereby Legislature has been empowered to enact the laws for the establishment of Administrative Courts and Tribunals for exercising exclusive jurisdiction ‑in respect of terms and conditions of the civil servant including the disciplinary matters. Civil Servants Act and Service Tribunals Act were enacted by the Federal Government in 1973 while Punjab Civil Servants Act and Punjab Service Tribunals Act were promulgated in 1974, Sindh Civil Servants Act and Service Tribunals Act were enacted in 1973, Balochistan Civil Servants Act and Balochistan Service Tribunals Act were enacted in 1974 and N.‑W.F.P. Civil Servants Act was promulgated in 1973 and N.‑W.F.P. Service Tribunals Act was enforced in 1974. 2. The judicial review is a basic and essential feature of the Constitution and any law passed by the Parliament in exercise of its legislative powers cannot be allowed to abrogate the right of Judicial Review. The judiciary is constituted to interpret the Constitution but the abovesaid Civil Servants Acts have been enacted whereby practically, the Fundamental Rights have become meaningless and futile. The High Court can only be deprived of the judicial review when an alternative efficacious institutional mechanism or arrangement for judicial review are provided. It is condition precedent for the said alternative institutional mechanism or authority that it should not be less effective than the, High Court. The concept of equality before the law should not be allowed to be frustrated. 3. Although Article 212 of the Constitution provides an alternative institutional mechanism for judicial review but there are inherent defects in the abovesaid enactment as such the administrative tribunals set up under the abovesaid enactments are not equally efficacious so far as the powers of judicial review over service matters are concerned. The Service Tribunals have failed to inspire confidence in the minds of the public at large, the same has rendered the said tribunals muchless effective than the High Court and the basic concept of the said tribunals was to inspire confidence in the minds of the public. The said Tribunals are said to be experts with judicial approach and objectivity but the said Tribunals have failed to achieve the said objects. 4. All the cases in regard to the service matters which come before the Service Tribunal are against the Government or any Government Officer. It is not at all conducive to judicial independence to give unfettered and unrestricted powers to the executive to appoint Chairmen end Members of the Service Tribunals because any member or Chairman who is interested in continuing with the assignment, he would have to depend upon the goodwill and favourable stance of the executive. This will affect the independence and impartiality of the Tribunals because the members of the Tribunals carry a sense of obligation to the executive for having been appointed by them, thus, appointment of the Members and Chairmen vested in the executive have prejudicial effects on the independence of the Tribunals, thus, the appointment of the Members and Chairmen of the Tribunals without consultation by the concerned Chief Justice the said persons will not be in a position to resist the pressure of the executive, as such said appointments of the Service Tribunals have seized to be effective and efficacious substitute for the High Court. 5. Even otherwise, inherent lacunas and defects in the above said legislation are also apparent. Section 3(3)(b) prescribes that such person will be appointed who possess qualifications as prescribed by the rules, as envisaged by subsection (4) of section 3, the Chairman and Member shall be appointed by the President on such terms and conditions as he may determine. The said provisions are ridiculous and in the presence of the abovesaid provisions the independence of the Tribunals cannot be expected and the Tribunals constituted on the basis of abovesaid provisions cannot be said to be a substitute for the High Court so far as the judicial review is concerned as such the abovesaid provisions may be amended and the Chairmen and Members of the Tribunals should be appointed from the judiciary and in consultation with the Chief Justice of Pakistan. Similarly, the provisions of the Provincial Service Tribunals Act can be amended in order to restore the confidence of the public in the said Tribunals. 6. As envisaged by the proviso to section 4 of the Service Tribunals Act 1973, an appeal does not lie to the Tribunal unless the aggrieved civil servant has preferred an appeal or application for review or representation to the concerned departmental authority and a period of 90 days has expired as such the appeal or representation cannot be preferred, thus, the aggrieved civil servants have been deprived of any legal remedy till the expiry of 90 days after filing appeal or representation, the same amounts to denial of justice while through the subordinate legislation aggrieved persons cannot be deprived of right of judicial review for this long period of 90 days. From this, it is apparent that the Service Tribunals are created for the denial of justice and not for advancing the cause of justice. 7. The section 4 may be suitably amended and right of appeal must be provided against every original order because the aggrieved persons cannot be deprived of judicial review as well as right of appeal for a long period of 90 days. Similar provisions in the Provincial laws tray also be amended. 8. The right of appeal is not available to an aggrieved civil servant unless a penalty is not imposed under the disciplinary rules, thus, in the departmental inquiry under the Efficiency and Discipline Rules, the civil servants have also been deprived of any remedy and they have also been deprived of judicial review hence section 4 of the Service Tribunals Act may be amended accordingly, if the above-said laws are not amended, the High Court Bar Association will challenge the validity of the abovesaid enactments, in the Constitutional Courts because the same are discriminatory and violative of the Fundamental Rights as guaranteed by the Constitution of Islamic Republic of Pakistan.