Centre’s power to post top bureaucrat in provinces challenged

Updated 29 Jul 2020

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Civil servants urge IHC to declare related notifications unlawful. — Creative Commons/File
Civil servants urge IHC to declare related notifications unlawful. — Creative Commons/File

ISLAMABAD: The All-Pakistan Pro­vincial Management Service (PMS) Association comprising office-bearers of PMS associations of all four provinces on Tuesday challenged be­fore the Islamabad High Court (IHC) the federal government’s powers to appoint chief secretaries of the provinces.

The petitioners contended that they were aggrieved of the impugned notifications, whereby the federal government, without lawful authority, made appointments to the post of the top bureaucrat in every province. In particular, the impugned notifications violate the 7th recital of the Preamble which guarantees provincial autonomy, Article 1(1) which declares Pakistan a “Federal Republic” and Articles 97, 127, 129, 137, 139 and 240 which give effect to administrative federalism, the petition argued.

The petition has been filed through Barrister Umer Gillani by All-Pakistan Provincial Civil Services Association Coordinator and Punjab PMS Association President Tariq Mehmood Awan, Khyber Pakhtunkhwa PMS Officers’ Association Coordinator Fahad Ikram Qazi, Balochistan Provincial Civil Service Officers’ Association Coordinator Mohammad Taqi Ramzan and Sindh PMS Officers’ Association President Dr Shahnawaz Merani filed the petition through their counsel.

Civil servants urge IHC to declare related notifications unlawful

The petitioners argued that the appointment of the top bureaucrat of every province by the federal government militated against the entire scheme of the Constitution, which is based on the principle of administrative federalism. In their petition, they raised the questions: “How can there be “provincial autonomy” in a country where the most important provincial post is held by federal government appointees? How is it possible in a federal system that the respective provincial cabinets can neither appoint nor hold accountable the most important civil servant of the province?”

The petition pointed out that the practice of reserving provincial posts for central government appointees dated back to S. 98 of the Government of India Act, 1915. This law came in the context of the system of “dyarchy” introduced by the British colonial government. The very purpose of this law was to neutralise growing trend of federalism in India while still maintaining a facade of home rule in the provinces. While this practice made sense in a colonial, viceregal system, it cannot be squared with the letter and spirit of our federalist constitution that does not contain any provision similar to S. 98, GoI Act, 1915.

Citing the federal government, Establishment Division and chief secretaries as respondents, the petition requested the court to declare that the impugned notifications, being ultra vires various provisions of the Constitution and being against the federal scheme of the Constitution, had been issued without lawful authority and were of no legal effect.

It further requested the court to declare that the chief secretary post was a “post in connection with the affairs of a province” and could only be held by a person whose appointment and terms of service had been determined through an act of the provincial assembly of the relevant province.

Published in Dawn, July 29th, 2020