ISLAMABAD: The Islamabad High Court (IHC) has been urged to declare the post of chief secretary, a "post in connection with the affairs of a province", and can only be held by a person whose appointment and terms of service have been determined through an act of the Provincial Assembly of the relevant province.
Members of the Provincial Management Services (PMS) of all the four provinces, who are also office bearers of the PMS associations, have challenged the notifications regarding appointments of chief secretaries in the Punjab, Sindh, the Khyber-Pakhtunkhwa (KP), and Balochistan in the IHC on Tuesday.
Tariq Mehmood Awan and others have filed a petition under Article 199 of the Constitution through Umer Gilani, and requested the High Court to declare the impugned notifications being ultra vires to various provisions of the Constitution and being against the federal scheme of the 1973 Constitution.
The petitioners made the federation through secretary Cabinet Division, secretary Establishment Division, Ministry of Law, and members of Pakistan Administrative Service (PAS), holding post of chief secretaries, as respondents.
Mumtaz Ali Shah, BS-22 PAS officer was appointed chief secretary (CS) Sindh vide notification PF(514)/E-4 dated 22-09-18), Capt Fazeel Asghar (retd), BS-21 PAS officer appointed CS Balochistan through notification PF(495)/E-5 dated 28-08-2019, Dr Kasim Niaz BS-21 PAS officer appointed CS KP through notification PF(694)/E-5 dated 23-10-2019, and Jawwad Rafique Malik (R-7 BS-22 PAS officer appointed CS Punjab vide notification PF (544)/E-5 dated 23-04-20).
It is the stance of the petitioners that the appointments of the chief secretaries by the federal government in all the provinces, militate against the entire scheme of Constitution, which is based on the principle of provincial autonomy. They stated the impugned notification violates, Articles 1(1), 97, 127, 129, 137, 139 and 240.
They raised 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 contended that the practice made sense in a colonial, viceregal system, cannot be squared with the letter and spirit of our federalist constitution. Under the 1973 Constitution, the federal government does not enjoy "viceregal mandate" over the provinces.
It enjoys only such powers as are expressly conferred upon it by the Constitution. The Constitution does not confer upon the federal government any power to make appointments to the post of the chief secretary, a post, which has been created by the Provincial Rules of Business, is remunerated through provincial budgets and is, by all standards, a "post in connection with the affairs of a province".
The petitioners submitted that previously, the scope of All-Pakistan Services extended to items falling in the Concurrent Legislative List, such as health and education, as all-Pakistan posts. However, after the 18th Amendment, the scope of all-Pakistan posts has been narrowed down.
"Be that as it may, the post of chief secretary is by no stretch of imagination is federal post, arising from either Part I or Part II of the Federal Legislative List," they said. Umer Gilani contended that when the framers of the Constitution stated that Pakistan shall be a "Federal Republic", they envisaged a "paradigm shift" from the centralised state structure laid down by the colonial masters of the sub-continent.
The unfortunate facts presented in this petition show that despite 73 years of independence, the same old viceregal practices continue. The paradigm shift envisaged in the Constitution has not yet happened. The state structure laid down by the colonial masters was extremely centralised.
This centralisation was brought about and perpetuated through the infamous Indian Civil Service, a class of centrally recruited and controlled government officials who infiltrated key positions in every local government, provincial government and state government, he stated.
Copyright Business Recorder, 2020
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