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No government servant should be prematurely transferred without giving reasons in writing, the apex court has directed in a landmark judgment for the bureaucracy.Such reasons are judicially reviewable, the SC said in its Monday’s judgment in the Anita Turab case.Handed down a few months before the next elections, this judgment is considered as a major initiative towards the depoliticisation of civilian bureaucracy and to protect the tenure of government servants against any particular post.
The Election Commission of Pakistan (ECP) can also benefit a lot from this SC order to ensure free, fair and independent general elections through impartial civilian bureaucracy that could now gain complete protection from external influences in their service matters.
According to legal experts, such court directions are known as judge-made-laws. On the one hand, it is now for the federal and provincial governments to restrict their transfer and posting policies in line with the apex court’s order and, on the other hand, this order could be cited before a court of law by any officer who faces political victimisation.
“Next to constitutional guarantees, this order will have an incredible impact if civil servants can now grow back their spines and reclaim their dignity and independence from political interference,” a government servant acknowledged.
The civil bureaucracy, which has been subjected to the worst form of politicisation and bureaucrats are transferred on the mere whims and wishes of politicians and rulers, on Monday got a morale-boosting judgment from the SC that ruled, “When the ordinary tenure for a posting has been specified in the law or rules made thereunder, such tenure must be respected and cannot be varied, except for compelling reasons, which should be recorded in writing and are judicially reviewable.”
The SC added that appointments, removals and promotions must be made in accordance with the law and the rules made thereunder; where no such law or rule exists and the matter has been left to discretion, such discretion must be exercised in a structured, transparent and reasonable manner and in the public interest.
It added that the 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; instead, in such situations, they must record their opinion and, if necessary, dissent.
Authored by Justice Jawwad S Khawaja, the SC order said that the court is fully conscious that the matter relates to the executive but 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 order, which has been sent to all federal and provincial authorities, contains a clear warning that the failure of a state functionary to apply a legal principle which is clearly and unambiguously attracted to a case, may expose him to proceedings also under Article 204(2)(a) of the Constitution. This article, it may be recalled, grants this court the power to punish for contempt any person who “disobeys any order of the court”.
The SC order also referred to an earlier judgment which had made it clear that responsibility for implementation of a court order has been made obligatory on other organs of the state, primarily the executive, failing which empowers the court to punish him for contempt.
“If there still remains any doubt, let us clarify that those executive functionaries who continue to ignore the Constitution and the law, do so at their own peril,” the SC warned.
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