LAHORE, Oct 11: The Pakistan Railways Board, which was reconstituted under the Transfer of Railway (Amendment) Ordinance 2000, has met only once in the last five years or more.
The 18-member board, which is expected under the law to meet at least once in a calendar year, has not been able to convene its mandatory meetings because neither the federal government has notified three private sector members on it nor the four provinces have nominated one member each on it, sources told Dawn on Tuesday.
“The names of the seven people on the board have never been notified since its constitution for the management of the railways in Pakistan in 2000,” the sources said.
Of the 10 ex-officio members of the board, the PR ministry secretary was supposed to be its chairman and the federal secretaries of communications, defence, finance, and planning & development its members besides the PR GM (operations), GM (manufacturing & services), additional GMs of infrastructure, passengers & freight.
The federal government was also to appoint one member finance, an officer having experience in public finance administration, besides three members from the private sector.
Minister of State for Railways Ishaq Khan Khakwani said no meeting of the board had ever been convened since his assumption of the office.
“Instead, a lot of irregularities are taking place in the railways in the name of PR Board executive committee,” he said.
“The National Assembly Standing Committee on Railways has also questioned the legal status of the board and its executive committee in a recent meeting,” the minister said.
Sources said two laws were simultaneously governing the railways — the Railways Act of 1890 and the Transfer of Railways (Amendment) Ordinance, 2000.
“The ordinance is in violation of the Railways Act which had been corrected up to 1996. The modifications in the act in 1969 nullified the Presidential Order No 33 of 1962. The railway authorities have been running the department by substituting a provision of a void law,” sources said while referring to article 3 of the presidential order No 33 of 1962.
“According to the PR Establishment Code 1935, which is an extension of the Railways Act, the organization revolves around one general manager. The other officers are just component part of the post of the GM,” they said, citing sections 5, 6, 7 and 8 of the Chapter I and Section 4 (1) of the Chapter II of the PR Act.
The PR Establishment Code, they said, also contained separate schedule of power for each principal officer. “At present, no principal officer of the railways has any defined schedule of power. Everyone is free to exercise any power he likes or which suits him.”
Quoting from the PR Establishment Code, sources said the railways comprised the chief engineers, chief commercial managers, chief operating superintendents, chief transport managers, chief mechanical engineers, controller of stores, chief medical officer, financial adviser and chief accounts officer, financial adviser (communications), director of railways accounts, engineers-in-chief of the lines under construction or survey and government inspector of Pakistan Railways (now federal government inspector of railways) besides a deputy director administration in the railway division of the communication ministry and PR services commission chairman.
“Successive governments have played havoc with the administrative structure of the railways,” sources said and added the post of the GM was bifurcated into two in violation of both the act and the code.
“The other posts had also been bifurcated without defining the power of schedule which ruined the whole service structure of the railways,” the sources said.
Railways legal wing officials said the Transfer of Railways (Amendment) Ordinance 2000 was still valid as it had been protected by Article 270 AA of the 17th Amendment in the constitution.
The article reads: “The Proclamation of Emergency of the 14th day of October 1999, all president’s orders, ordinances, chief executive’s orders... and all other laws made between the 12th day of October 1999, and the date on which this article comes into force, are hereby affirmed adopted and declared notwithstanding any judgment of any court, to have been validly made by competent authority and notwithstanding anything contained in the constitution shall not be called in question in any court on any ground whatsoever.”
The legal wing officials said the basic service structure of the organization had been kept intact while creating several posts.
“All railway officers derive their schedule of power from the Establishment Code I and II of 1935. For instance, the post of the GM was bifurcated into operations, and manufacturing and services. The titles of the posts clearly state what functions the holders of the offices perform,” the officials insisted.
A former official of the railways legal wing said Article 241 of the constitution protected the service structure of the railways as given in the PR Establishment Code 1935.
The act of 1890, he said, had been protected by Article 268 of the constitution according to which an ordinance can override if the enacted law, made through parliament, already exists. “An ordinance is subordinate legislation while an act is superior in nature.”
He said the ordinance was also repugnant to the Provincial Constitution Order No 1 of 1999 and the Legal Framework Order of 2002. “In fact, it is in conflict with both the statutes,” he claimed.
Article 5 (1) of the PCO of 1999 says: “Notwithstanding the abeyance of the provisions of the constitution, but subject to the orders of the chief executive, all laws other than the constitution [all ordinances, orders, rules, bye-laws, regulations, notifications and other legal instruments in force in any part of Pakistan whether made by the president or the governor of a province] shall continue in force until altered, amended or repealed by the chief executive or any authority designated by him.’
Article 5 of the Legal Framework Order 2002 is titled ‘Order to override other laws’ and it reads:‘The provisions of this order shall have effect notwithstanding anything contained in the constitution or any other order or law for the time being in force.’
Article 268 (1) of the Chapter VII of the Constitution, which is about continuance in force and adoption of certain laws, reads: “Except as provided by this act, all existing laws shall, subject to the constitution, continue in force, so far as applicable and with the necessary adoptions, until altered, repealed or amended by the appropriate legislature,” the lawyers said.