Inducement of administrative reforms Through judiciary in pakistan

INDUCEMENT OF ADMINISTRATIVE REFORMS INDUCEMENT OF ADMINISTRATIVE REFORMS THROUGH JUDICIARY IN PAKISTAN By Dr. S. M. HAIDER, Ph. D. (Administrative Law) Max Weber's theory of bureaucracy, though declining in importance in western countries, is applicable to Pakistan with the force that its proponent had in mind. The peculiar aspects of Pakistan's bureaucratic administration drew their inspiration from the British model which was imposed on them during the colonial rule. In due course of time, it became part of the values held in high esteem by the people. Soon after independence, the country embarked on an extensive programme of economic and social development. Gradually it, was felt that there was an inherent conflict between the bureaucratic traditions of the country and the demands of a developing society. Though civilized Governments are founded on the principle that the powers exercising the functions should be in balance, the desired balance was conspicuous by its absence in the sub‑continent. The Martial Law Regime saw the appointment of several Commissions to introduce administrative reforms in Pakistan. These efforts of the Executive became well known and received due publicity. There is another tier of Government that has played an equally important role in the inducement of administrative reforms. It is the judiciary. An examination of case‑law revealed that public servants, in their enthusiasm to refer every matter to the Court, consulted the lawyers and challenged the decisions if they were not palatable. In order to put a stop to such practices, the High Court of West Pakistan, in Zafrul Ahsan v. The Republic of Pakistan(P L D 1959 Lah. 879) declared that if an administrative order was justified on merits the remedy could be sought from administrative authorities by way of administrative appeal or representation and not from a Court of law even if jurisdiction of the Court in the matter had not been taken away. The administrative arbitrariness found expression in several cases where the bureaucrats, as a measure of severe punishment, issued orders for the suspension of subordinates for an indefinite period. The decision‑making authorities resorte to extremes. When cases of indolence or insubordination were brought to their notice, they either over‑looked it altogether or inflicted punishment out of proportion to the mistake committed. This aspect did not go unnoticed and the High Court pronounced that there was nothing in the terms and conditions of Government servants which could authorize the Government to issue a suspension order for an indefinite period. Carrying the argument further, in the case of Alaudin v. The Chief Commissioner of Karachi(P L D 1959 Kar. 282.) the Court suggested that all actions taken against Government servants must be based on the principles of natural justice. See also Syed Muhammad v. The Government of West Pakistan(P L R 1957 Lah. 487) wherein the same principle was upheld. No uniform practice was followed by the Pakistan administration in respect of officiating appointments. The judiciary regulated the conduct of bureaucracy by providing standards which could be applied to officiating appointments. For instance in Syed Hikmat Hussain v. Pakistan(P L D 1958 Kar. 1) the Karachi Bench of West Pakistan High Court laid down that in case of officiating appointments in higher permanent vacancy, show‑cause notice is necessary even if reversion was not by way of penalty or punishment. An officiating appointment gave no vested interest, the Supreme Court held in State of Pakistan v. Mehrajuddin(P L D 1958 Lah. 185.). If the Government thought fit to appoint an officer who had been given an officiating appointment to another post not lower than the one he was holding before his officiating appointment, he could have no grievance. Government could at any time revert him to his original position and such an action involved no question of reduction in rank. Chief Justice Kayani challenged, in A. R. Azar v. The Federation of Pakistan(P L D 1958 Lah. 185.) the old doctrine that members of the public services held office during the pleasure of the President or the Governor. He considered it a vicious phrase and a vestige of royal prerogative. He felt that there was no one so superior in a democracy that his pleasure could cause such havoc. The same Justice, who was a defender of liberties of people in Pakistan, remarked in Ataur Rehman Khan v. The Province of West Pakistan (P L D 1958 Lah. 180.) that conditions of service could be altered only by a rule. The judiciary, however, felt that the Government retains an absolute right to retire any officer after he has completed 25 years' qualifying service without giving reasons. See Pakistan v. Liaquat Ali Khans(PLD1959SC37). The observance of the principle Audi alteram partem was essential in all such cases. The Supreme Court held that no man shall be condemned unheard, and directed both judicial and administrative bodies to observe it. See Chief Commissioner Karachi v. Mrs. Dina Sohrab Katrak.( PLD1959SC45.) If there are no rules of seniority governing a department, guidance has to be sought from the rule of practice, the rule of continuous officiating service and the rule of confirmation. See Nazir Ahmad Qureshi v. Pakistan.( P L D 1959 Kar. 92) The judicial Courts touched also other aspects of public service with a view to suggest legal guide‑lines. If a public servant, for example, gives an impression to a person that he is capable of rendering him some service, the offence is complete when he accepts illegal gratification, even though he had no power to render service. See S. A. H. Bukhari v. Government of Pakistan (P L D 1959 Lah. 814.) Ordinarily, when a question arises in a Court which class of public servants a person in Government employment belongs to, it would be for the Court to determine it, but when an authority competent to do so has determined it, the Court's jurisdiction to give a decision would not exist. See Ghaniur Rehman v. The State (P L D 1959 Pesh. 166.) Previous conditions of service are inapplicable on transfer to another department. See Mohsin Abbas v. The Islamic Republic of Pakistan.( P L D 1958 Kar. 263.) The establishment of a satisfactory character and satisfactory antecedents‑ was a sine‑qua‑non to the completion of the contract of employment. A provision for security of tenure of a post cannot be claimed until all conditions precedent to the holding of the post are first satisfied. There is no duty upon the employer to give such an employee, whose employment is merely tentative until the contract is completed by satisfaction of all the necessary conditions, an opportunity to clear his character while continuing in such tentative employment. The Federation of Pakistan v. Raja Muhammad Afzal Khan.( P L D 1958 S C 258.) Services of Government employees can, not be terminated before attaining the age of superannuation except by way of penalty to be imposed for good and sufficient reason. See Federation of Pakistan v. Fayyaz Ahmad.( P L D 1958 Lah. 500.) The Courts were helpful in delimiting the areas in which the service of notice on public servants was considered essential or otherwise. It was held in C. Samuels v. West Pakistan (P L D 1958 Pesh. 145.) that where a show‑cause notice is served on an accused officer he should also be informed of the grounds in a case when a bare show‑cause notice is issued and is not accompanied by the report of an Inquiry Officer. The Court held in Nisar Ali's case that if the services of a public servant were terminated without notice, the order of termination would be contrary to the principles of natural justice. See Nisar Ali v. Pakistan(P L D 1958 Kar. 360.) ; see also Muhammad Sajjad Ali v. East Pakistan.( P L D 1960 Dacca 854.) The Supreme Court found it impossible to accept the dictum that the fixing of seniority was solely a matter for the administrative authorities to decide. Pakistan v. Sheikh Abdul Hamid.( P L D 1961 S C 105.) The Civil Courts however, did not find themselves competent to restore any officer to his post if he was replaced or removed from that post. Pakistan v. Muhammad Abdul Kuddus P L D 1961 Dacca 616. For more information on the regulation of public services by the judiciary see Manzur Ahmed v. West Pakistan P L D 1961 S C 166 ; Federation. Of Pakistan v. Mazari P L D 1958 Lab. 472 and Khawaja Ghulam Sarwar v. Railway Administration P L D 1962 S C 142. The cases cited in the preceding pages are enough to show that the judiciary has taken initiative to induce administrative reforms in Pakistan and its efforts are far more successful in keeping the decision‑makers under restraint. The judiciary was motivated, says Braibanti, by a strong sense of compassion and humaneness and did not appear to be extending its authority into the bureaucracy for the sake of power alone. The judiciary was also motivated by its historical role of preserving liberty and a just society. Ralph Braibanti : Public Bureaucracy and Judiciary in Pakistan, in J. L. Palombara, ed. Bureaucracy and Political Development, 1963 Princeton, p. 436. Syed Akhlaque Husain, an Ex‑Judge of West Pakistan High Court, dwelt on the relationship of judiciary and the bureaucracy and categorically mentioned that so far as ministerial acts whether of Government departments or of public or private corporations are concerned, the Court will compel their performance in accordance with law. As regards the discretionary acts, the Court will not lightly interfere with the exercise of the discretion, nor would it substitute its judgment for the judgment of the person who was authorized to make it. Akhlaque Husain, I therefore, advised the person who comes to Court to complain against a Government department to make out a clear case. He asserted that the Courts will interfere in Pakistan where there is an exercise or refusal to exercise discretion in a manner which has caused injury to another on account of caprice, arbitrariness or mala fides ("Writ Jurisdiction of Superior Courts in Pakistan" by Sayed Akhlaque Husain, P L D 1958 Journal 1.)