PESHAWAR: The Peshawar High Court on Friday suspended a federal government move to increase the share of the Pakistan Administrative Service officers in top provincial posts.

A bench consisting of Justice Ijaz Anwar and Justice Mohammad Naeem Anwar declared that the suspension of the Establishment Division’s March 12 notification for the purpose would continue until April 14.

It issued notice to the establishment secretary for response tothe petition of Khyber Pakhtunkhwa Provincial Management Service (PMC) officer Farhatullah Marwat against the notification allocating more provincial seats for PAS officers.

The petitioner claimed that the federal government had increased the share of the PAS officers significantly in provincial posts by amending the Schedule to the Civil Service of Pakistan (Composition and Cadre) Rules, 1954, without consulting provinces.

He had filed a petition last year challenging certain amendments to the Civil Service of Pakistan (Composition and Cadre) Rules, 1954, through an SRO, which was issued by the federal government on Oct 14.

PHC asks establishment secretary to respond to petition on matter

The petitioner had requested the court to declare the issuance of impugned SRO No 1046(1) unconstitutional and in violation of the Civil Servants Act, 1973.

He claimed that without any constitutional authority, the federal government had transgressed upon the exclusive rights of provincial civil servants to be appointed to posts in connection with the affairs of the province.

The petitioner said the SRO gave the Establishment Division, prime minister or any person authorised by him the power to make appointments to provincial posts ranging from the chief secretary of the provinces down to officers in BPS-17.

He added that the role given to the provinces was only a consultative one.

The petitioner had claimed that the SRO also impacted the terms and conditions of service of the PMS cadre officers.

He also questioned the authority of the federal government to make rules in connection with the affairs of the province under Article 240(b) of the Constitution.

During the pendency of that petition, the Establishment Division had issued the impugned notification making changes to the scheduled posts increasing the posts of PAS officers in provinces and took almost all top-tier postings.

The petitioner filed an application in the main petition requesting the court to suspend the notification until the final disposal of the main petition.

Lawyers Ali Gohar Durrani and Umer Gillani appeared for the petitioner and contended that the constitutional scheme had been robbed in the garb of an executive order without any sanctity attached to it.

The bench wondered why the petitioner being a civil servant had not moved the services tribunal.

Mr Durrani said as an officer of PMS Cadre was a provincial government civil servant, he could challenge only the legality of actions of provincial government before KP Service tribunal and thus the amendment being federal could not be called in question before the services tribunal here.

He added that as Rule 17 provided for consultation with the Provincial Government and that consultation had not taken place, therefore, the amendment in rules must be suspended.

The lawyer said another issue was the conflict of the amendment with Rule 7 of the CSP Rules 1954 as well as the KP PMS Rules 2007 Schedule III.

He added that the notification violated articles 97 and 137 of the Constitution whereby the federal government could not exercise executive authority over appointments to provincial post, a subject which fell outside federal legislative ambit.

The lawyer said Article 240 of the Constitution made it clear that the appointments and terms and conditions of service of persons who occupy posts in connection with the affairs of a province was a purely provincial subject and only provincial assembly could legislate on the subject.

Published in Dawn, March 27th, 2021