ISLAMABAD, Nov 12: The Supreme Court ruled on Monday that civil servants were not bound to obey illegal orders of their superiors because they owed their first allegiance to the law and the Constitution.
“Civil servants owe their first and foremost allegiance to the law and the Constitution. They are not bound to obey orders from superiors which are illegal or are not in accordance with accepted practices and rule-based norms,” said a judgment authored by Justice Jawwad S. Khwaja.
A three-judge bench headed by Chief Justice Iftikhar Muhammad Chaudhry and comprising Justice Khwaja and Justice Khilji Arif Hussain had taken up an application submitted by DMG officer Anita Turab on the incident of PPP candidate Waheeda Shah slapping a polling officer during a by-election in Tando Mohammad Khan on Feb 25 this year.
Waheeda Shah has been disqualified for two years by the Election Commission.
In her application, Anita Turab also drew the attention of the court to the lack of job security for civil servants and requested it to issue an order asking the authorities to find a lasting solution to the difficulties being faced by them.
On March 12, the court had sought paragraph-wise comments and suggestions from the secretary of establishment division as well as chief secretaries of the four provinces and the chief commissioner of Islamabad Capital Territory on ways of protecting fundamental rights of civil servants as enshrined under Article 9 (security of person) and Article 18 (freedom of trade, business or profession) of the Constitution.
Monday’s detailed judgment held that if civil servants were asked to obey unlawful orders they should dissent, if necessary, or must record their opinion in such situations.
“Appointments, removal and promotions must be made in accordance with the law and the rules. And where no law or rule exists and the matter has been left to the discretion, such discretion must be exercised in a structured, transparent and reasonable manner and in the public interest,” it said.
Referring to the tenure, posting and transfer of civil servants, the verdict said when the ordinary tenure for a posting was specified in the law or rules, such tenure must be respected and could not be varied, except for compelling reasons. These reasons should also be recorded in writing and are judicially reviewable.
The judgment said: “If at all an officer is to be posted as OSD (officer on special duty), such posting should be for the minimum period possible and if there is a disciplinary inquiry going on against him, such inquiry must be completed at the earliest. “We are fully conscious that these matters relate to decision making and administration of the machinery of the state and as such the responsibility of deciding as to suitability of an appointment, posting or transfer falls primarily on the executive branch of the state which comprises both political executive and civil servants.
“Courts ordinarily will not interfere in the functioning of the executive as long as it adheres to the law and established norms and acts in furtherance of its fiduciary responsibility.
“However, while hearing this petition the court has recognised the need for ensuring that decision making in relation to tenure, appointments, promotions and transfers remains rule based and is not susceptible to arbitrariness or absolute and unfettered discretion.”
The court ordered that copies of the judgment be sent to the establishment secretary, chief secretaries of the four provinces, the commissioner of Islamabad capital territory and secretaries of all federal and provincial government departments.