Appointment of chief secretary: Issue should be raised before other constitutional forums: IHC

ISLAMABAD: The Islamabad High Court (IHC) on Wednesday held that the appointment of chief secretary by the federal government in the provinces was a dispute between the provincial governments and the federation; therefore, it should be raised before other constitutional forums.

A single bench of the IHC Chief Justice Athar Minallah dismissed the constitutional petition of the members of the Provincial Management Services (PMS) of the Punjab, Sindh, the Khyber-Pakhtunkhwa (KP), and Balochistan.

The petitioners invoked the jurisdiction of the IHC under Article 199 of the Constitution challenging the competence of the federal government to nominate and appoint officers against the post of "chief secretary" in the respective provinces.

It was their case that the post of "chief secretary" had been created under the respective Provincial Rules of Business, and, therefore, the federal government is not competent to appoint and pursuant thereto notify officers of All Pakistan Unified Group against the said post.

They prayed 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. They also prayed to 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 IHC CJ ruled that there are various forums provided under the Constitution, such as the Council of Common Interest, which affords an opportunity to the provincial governments to raise their grievances.

There are informal means for settling disputes among the governments.

Sub Article (1) of Article 184 explicitly provides that "the Supreme Court shall, to the exclusion of every other court, have original jurisdiction in any dispute between any two or more governments."

The judgment said that the framers of the Constitution had prescribed a constitutional mechanism for settling disputes between two or more governments.

If disputes cannot be resolved through formal or informal forums, then the forum for adjudication is the apex court.

This jurisdiction is exclusive and thus, a High Court is not competent to entertain a matter having the characteristics of a dispute between two or more governments.

As a corollary, only a government would be eligible to be treated as an aggrieved person for raising a dispute of such nature.

It is settled law that what cannot be done directly can either not be done indirectly. Reliance is placed on the case titled "Muhammad Anwar, etc. v. Mst. Ilyas Begum, etc." [PLD 2013 S.C. 255].

The petitioners are not competent to indirectly raise a grievance, which has the characteristics of a dispute between two or more governments.

Moreover, such a grievance can only be raised by one of the provincial governments and that too by invoking the exclusive jurisdiction of the august Supreme Court under Article 184(1) of the Constitution.

During the proceeding, Umer Gilani, counsel for the petitioners, contended that clients have repeatedly filed representations before the provincial governments but they have not responded thereto.

He has stressed that the petitioners have challenged the actions of the federal government in their personal capacity because vested rights are being infringed.

The court noted that the petitioners belong to the "Provincial Management Services" of the respective provinces.

Admittedly, they had raised their grievances before the respective provincial governments but the latter did not appear to be aggrieved because none of them had approached the competent forums established under the Constitution for resolving disputes between a provincial government and the federal government.

The court in the order said that the petition was, therefore, not competent and accordingly dismissed because the prayers sought therein were not justiciable before the ourt. Moreover, posting/transfer of an officer as "chief secretary" of a province was an executive function warranting exercise of restraint.

Copyright Business Recorder, 2020