Over six decades ago, on the morning of 14 August 1947, a government servant enjoyed three main constitutional protections:
a. a reasonable opportunity of showing cause before the imposition of a major penalty;
b. a right of appeal after the punishment; and
c. no adverse change in the terms and conditions of service.
More than a quarter century later, on 14 August 1973, these constitutional protections were taken away from him. More than a quarter of a century has again passed, and with it the concept of the constitutional protections, too, has faded into history. The term "constitutional protection to government servants" sounds so forbidding that its meaning is generally not clear to the public, the intelligentsia and even to many of the government servants whom it purported to protect.
Indeed, due to ignorance, these constitutional protections came to be regarded, in some circles, as yet another Anglo-Saxon imperial legacy or as an undeserved favour to the government servants. It is, therefore, necessary to know what these three constitutional protections were, and the best way to do that is to quote exactly the relevant constitutional provisions, starting from the Government of India Act, 1935, as adopted by Pakistan on 14 August 1947, and thereafter adapted in the relevant articles of Pakistan's constitutions of 1956 and 1962 and of the interim constitution of 1972, till these were finally abolished in the constitution of 1973 which has been suspended thrice and amended, at least, nineteen times.
I - Government of India Act 1935
Chapter II of Part X of the Government of India Act, 1935 dealt with the "Civil Services". The constitutional protections were contained in sections 240 and 241 of this chapter. Section 240 dealt with the tenure of office, and section 241 with the recruitment and conditions of service of the government servants.
The first three sub-sections of section 240 were as follows:
"240. Tenure of office of persons employed in civil capacities in Pakistan -
"1) Except as expressly provided by this Act, every person who is a member of a civil service of the Crown in Pakistan or holds any civil post under the Crown in Pakistan, holds office during His Majesty's pleasure.
2) No such person as aforesaid, who having been appointed by the Secretary of State or the Secretary of State in Council continues after the establishment of the Federation to serve under the Crown in Pakistan shall be dismissed from the service of His Majesty by any authority subordinate to the Governor General or the Governor, according as that person is serving in connection with the affairs of the Federation or a province, and no other such person as aforesaid shall be dismissed from the service of His Majesty by any authority subordinate to that by which he was appointed.
3) No such person as aforesaid shall be dismissed or reduced in rank until he has been given 'a reasonable opportunity of showing cause' against the action proposed to be taken in regard to him."
The relevant provisions as contained in sub-section 3 of section 241 are as follows:
"241. Recruitment and conditions of service
"The said rules (regarding the conditions of service) shall be so framed as to secure -
a) that, in the case of a person who, before the commencement of Part III of this Act, was serving His Majesty in a civil capacity, no order which alters or interprets to his disadvantage any rule by which his conditions of service are regulated shall be made except by an authority which would have been competent to make such an order on the eighth day of March, nineteen hundred and twenty-six, or by - the Governor General or the Governor, as the case may be;
b) that every such person as aforesaid shall have the same rights of appeal to the same authorities from any order which -
i) punishes or formally censures him; or
ii) alters or interprets to his disadvantage any rule by which his conditions of service are regulated; or
iii) terminates his appointment otherwise than upon his reaching the age fixed for superannuation,
c) that every other person serving His Majesty in a civil capacity shall have, at least, one appeal against any such order as aforesaid, not being an order of the Governor General or a Governor."
II - Constitution of 1956
The Government of India Act, 1935 remained the basic law of Pakistan for almost the first nine years of its existence, until it was substituted by Pakistan's constituent assembly with the constitution of 1956, which came into force on 29 February 1956. Articles 181 and 182 of the constitution of 1956 adapted the provisions of sections 240 and 241 of the Government of India Act, 1935.
Article 181 read as follows:
"1) No person who is a member of a civil service of the Federation or of a province or of an All Pakistan Service or holds a civil post in connection with the affairs of the Federation, or of a province shall be dismissed or removed from service or reduced in rank by an authority subordinate to that by which he was appointed.
2) No such person as aforesaid shall be dismissed or removed from service, or reduced in rank, until he has been given 'a reasonable opportunity of showing cause' against the action proposed to be taken in regard to him."
The relevant provisions of clause 3 of article 182 were as follows:
"182. Recruitment and Conditions of Service
"(3) The rules under clause (2) shall be so framed as to secure
a) that the tenure and conditions of service of any person to whom this Article applies shall not be varied to his disadvantage; and
b) that every person shall have, at least, one appeal against any order which -
i) punishes or formally censures him; or
ii) alters or interprets to his disadvantage any rule affecting his conditions of service; or
iii) terminates his employment otherwise than upon his reaching the age fixed for superannuation;
Provided that when any such order is the order of the President or the Governor, the person affected shall have no right of appeal, but may apply for review of that order.
III - Constitution of 1962
On 7 October 1958, the two-and-a-half years' old constitution of 1956 died in its infancy. The nation remained without a constitution for the next about three-and-a-half years. On 1 March 1962, the first chief martial law administrator of Pakistan enacted a new constitution whose preamble read:
"I, Field Marshal Mohammad Ayub Khan, Hilal-i-Pakistan, Hilal-i-Jura'at, President of Pakistan, in exercise of the Mandate given to me on 14th February, 1960, by the people of Pakistan, and in the desire that the people of Pakistan may prosper and attain their rightful and honoured place amongst the nations of the world and make their full contribution towards international peace and the progress and happiness of humanity, do hereby enact this Constitution".
Even this constitution (articles 177 and 178) retained the provisions of articles 181 and 182 of the abrogated constitution of 1956, with only minor drafting changes.
Clause 1 of article 177 of the constitution of 1962 read as under:
"1) Subject to this Constitution, a person who is a member of an All Pakistan Service or of a Civil Service of the Centre or of a province, or who holds a civil post in connection with the affairs of the Centre or of a province
a) shall not be dismissed or removed from service, or reduced in rank, by an authority subordinate to that by which he was appointed unless that subordinate authority has been expressly empowered to do so by an authority not so subordinate; and
b) Subject to clause (2) of this Article, shall not be dismissed or removed from service, or be reduced in rank unless he has been given 'a reasonable opportunity of showing cause' against the action proposed to be taken with respect to him."
The relevant provisions of clause 3 of article 178 are as follows:
"178. Appointments to civil posts etc.
"(3) Rules made for the purposes of clause 2 of this Article shall be so framed as to ensure -
a) that the terms and conditions of service of a person (in so far as those terms and conditions relate to remuneration or age fixed for superannuation) are not varied to his disadvantage; and
b) that where an order is made which:
i) punishes or formally censures a person;
ii) alters or interprets to the disadvantage of a person any rule affecting his terms or conditions of service; or
iii) terminates the employment of a person otherwise than upon his reaching the age fixed for superannuation,
He shall, except where the order is made by the President or a Governor, have, at least, one appeal against the order, and where the order is made by the President or the Governor, he shall have the right to apply to the President or the Governor for a review of the order."
IV - Interim Constitution of 1972
The constitution enacted on 1 March 1962 by the first chief martial law administrator was abrogated, seven years later, on 25 March 1969 by the second chief martial law administrator. The nation again remained without a constitution for the next three years. On 21 April 1972 Pakistan got an interim constitution in which articles 220 and 221(3) were almost the same as articles 177 and 178 (3) of the abrogated constitution of 1962.
Article 220 of the interim constitution of 1972 read as follows:
"1) Subject to this Constitution, a person who is a member of an All Pakistan Service or of a Civil Service of the Federation or of a province, or who holds a civil post in connection with the affairs of the Federation or of a province:-
a) shall not be dismissed or removed from service or reduced in rank by an authority subordinate to that by which he was appointed unless that subordinate authority has been expressly empowered to do so by an authority not so subordinate; and
b) subject to clause (2) shall not be dismissed or removed from service or reduced in rank unless he has been given 'a reasonable opportunity of showing cause' against the action proposed to be taken with respect to him."
The relevant provisions of clause 3 of article 221 are as follows:
"(3) Rules made for the purposes of clause (2) shall be so framed as to ensure-
a) that the terms and conditions of service of a person (in so far as those terms and conditions relate to remuneration or age fixed for superannuation) are not varied to his disadvantage, and
b) that where an order is made which:
i) punishes or formally censures a person;
ii) alters or interprets to the disadvantage of a person any rule affecting his terms or conditions of service; or
iii) terminates the employment of a person otherwise than upon his reaching the age fixed for superannuation, he shall, except where the order is made by the President or a Governor, have, at least, one appeal against the order, and where the order is made by the President or a Governor, he shall have the right to apply to the President or the Governor for a review of the order."
A careful perusal of the above sections/articles of the Government of India Act, 1935, the two constitutions of 1956 and 1962, and the interim constitution of 1972 shows that the much talked-about constitutional protections of the government servants were threefold:
The first protection was that a person who holds a civil post in connection with the affairs of the federation or of a province could not be given the three major penalties of dismissal, removal or reduction in rank unless he was first given "a reasonable opportunity of showing cause" against the proposed action. According to the Efficiency & Discipline Rules 1973, there are four major penalties which can be imposed on a government servant:
i) dismissal from service;
ii) removal from service;
iii) reduction to a lower post or time scale or to a lower stage in a time scale; and
iv) compulsory retirement.
The constitutional protection of 'show cause notice' was not available against the fourth major penalty, ie, compulsory retirement. It was also not available against the imposition of any of the four minor penalties, which can be imposed on a government servant, and are as follows:
i) censure;
ii) withholding promotion or increment;
iii) stoppage at an efficiency bar; and
iv) recovery from pay of any pecuniary loss caused to the government by negligence or breach of orders.
The constitutional protection of 'show cause notice' was not available to a government servant against suspension; it did not protect his promotion; it did not lay down or protect his tenure in any post.
It merely enunciated the basic principle of natural justice that before a person is dismissed, removed or demoted, he should be given a reasonable opportunity of showing cause.
The second protection was that the terms and conditions of service of a government servant relating to his remuneration or superannuation age could not be varied to his disadvantage.
The third, and the last, protection gave him a right of appeal where the terms and conditions of his service other than remuneration or superannuation were altered or interpreted to his disadvantage, or where he was formally censured, punished, or his services were terminated before the age of the superannuation.
What happened to it?
Show cause notice is based on the first and the basic principle of natural justice. Show cause notice before the imposition of a major penalty was the first and the major constitutional protection available to a government servant. What happened to it is revealed in a very revealing statement, given under his hand, by Vaqar Ahmed, the then all-powerful cabinet-cum-establishment secretary of the government of Pakistan:
"In the first flush of victory, general screening was ordered by the then prime minister in January, 1972. The Law Division was clearly told by him not to include any provision for show cause notice. Z. A. Bhutto rang me up in the middle of the night and told me that he had heard that I was suggesting that there should be provision for Show Cause Notice. He told me that he did not believe in the Anglo-Saxon sense of justice and his revolutionary government would not accept any such suggestion."
The Constitution of 1973, which came into force on 14 August 1973, accordingly omitted the above Anglo-Saxon legacy. Article 240 of the 1973 constitution laid down as under:
"Subject to the Constitution, the appointments to and the conditions of service of persons in the service of Pakistan shall be determined:,
a) in the case of the services of the Federation, posts in connection with the affairs of the Federation and All Pakistan Services, by or under Act of Majlis-e-Shoora (Parliament); and
b) in the case of the services of a province and posts in connection with the affairs of a province, by or under Act of the Provincial Assembly."
What a coincidence of numbers! In 1935, it was section 240 of the Government of India Act, 1935 which gave constitutional protection to the government servants; in 1973, it was article 240 of the constitution of 1973 which took away that very constitutional protection.
The Act of the Majlis-e-Shoora (Parliament), referred in article 240 of the constitution of 1973, emerged under the title of the Civil Servants Act, 1973. Clause 13 (an unlucky number!) of this new act of 1973 laid down that a person holding a grade 21 or grade 22 post shall stand retired on any date that the government directs him to retire, and all others, ie, from grade 1 to grade 20 shall retire on any date after the completion of 25 years' service, as the government directs.
No official reason, or justification, for the deletion of the constitutional provision of show cause notice from the constitution of 1973 was ever given by any government, civil or military, either then or later. The only authoritative version is the above-quoted statement of the ex-cabinet-cum-establishment secretary.
If his statement which has neither been contradicted by him nor challenged by any other person is to be believed, and one is in no position to say whether the statement of this little Machiavelli is, or is not, to be believed, the prime reason for the deletion of the constitutional provision of 'show cause notice', in 1973, was that a citizen of Pakistan who then happened to be the prime minister of Pakistan did not believe in the Anglo-Saxon sense of justice.
Let it be noted here that the constitutional protections to government servants, given by the British, in 1935, were retained and continued to remain in force when Quaid-e-Azam M. A. Jinnah, a brilliant banister, a statesman, a constitutionalist and a democrat was in full command of the affairs of the state. It is difficult to believe that the Quaid did not study, or comprehend, the various clauses of the Government of India Act, 1935, as adopted by his government on that glorious morning, on 14 August 1947.
Having fought all his life against the British bureaucracy, it is also difficult to believe that he, as the all-powerful Governor General of Pakistan and the president of its first constituent assembly, allowed this constitutional provision to remain on the statute book of the new state which he had founded, under some pressure or against his better judgement or against the interests of the state he had founded, or because he was politically vulnerable.
Similarly, when the constituent assembly of Pakistan enacted the first constitution, on 29 February 1956, it, too, deemed it in public interest to retain the constitutional protection for the government servants. That assembly had many founding fathers of Pakistan as its members.
It had legal brains like Husseyn Shaheed Suhrawardy, fire-brand populist public leaders like A. K. Fazlul Haq and consummate politicians like Mumtaz Muhammad Khan Daultana among its members. There is nothing on the record of that constituent assembly to show that any of its learned members opposed articles 181 and 182 of the constitution of 1956, which stood for the continuation of the constitutional protection to the government servants.
Even the first chief martial law administrator of Pakistan, Field Marshal Ayub Khan who had the dubious distinction of terminating the services of the highest-ever number of the government servants (3,549), without due process of law, retained the above constitutional protection to the government servants when it came to enacting his constitution, on 1 March 1962.
Last, but not the least, it is significant to note that even Z A Bhutto chose to retain these provisions in the interim constitution of 1972, which was enforced by him on 21 April 1972, - four months after he had been in power, and six weeks after he had thrown out almost 1,800 government officers under martial law regulation No: l14, on 12 March, 1972, without serving any show cause notice on any one of them.
It, therefore, goes to show that it was between 21 April 1972 and 14 August 1973 that the decision to do away with the constitutional protection for the government servants was taken.
Two decades quietly passed during which the Constitution of 1973 was mutilated and amended beyond recognition, but the constitutional protections to the government servants - containing the six magic words "a reasonable opportunity of showing cause" - did not figure in any of these amendments. No member of either the National Assembly or the Senate - from the treasury, the opposition or the independent members - ever attempted to move a bill to restore these constitutional protections to the government servants through an amendment to the Constitution of 1973. We have no reason to believe that our lawmakers, or law-givers, were unaware of either the concept or the obvious advantages of its revival.
In mid-July 1993, the national and the provincial assemblies were dissolved in Pakistan. The prime minister and his cabinet were dismissed, and a caretaker government was formed to hold general elections, within three months. On 18 October, 1993, which was the last working day of this caretaker government, headed by an ex-World Bank official Moeen Qureshi, an ordinance was promulgated, which, at long last, restored legal protections to the public servants. It may, however, be noted that it was not constitutional, but legal, protection.
The ordinance (No: XXXVIII of 1993) was published in the extraordinary Gazette of Pakistan on 19 October, 1993, ie, the very day when Benazir Bhutto took the oath of office, for the second time, as the prime minister of Pakistan.
Under Article 89 (2) of the Constitution of 1973, an ordinance stands repealed automatically, on the expiration of four months from the date of its promulgation. The above ordinance issued at the eleventh hour, and the overdue legal protection provided under it to the public servants, stood repealed, after only four months, on 17 February 1994.
The full text of this ordinance is reproduced below:
Islamabad, the 18th October 1993
ORDINANCE NO XXXVIII OF 1993
An ORDINANCE further to amend the Civil Servants Act, 1973
WHEREAS it is expedient further to amend the Civil Servants Act, 1973 (LXXI of 1973), for the purposes hereinafter appearing;
AND WHEREAS the National Assembly is not in session and the President is satisfied that circumstances exist which render it necessary to take immediate action;
NOW, THEREFORE, in exercise of the powers conferred by clause (l) of Article 89 of the Constitution of the Islamic Republic of Pakistan, the President is pleased to make and promulgate the following Ordinance:
1. Short title and Commencement. - (1) This Ordinance may be called the Civil Servants (Amendment) Ordinance, 1993.
(2) It shall come into force at once.
2. Amendment of section 3, Act LXXI OF 1973. - In the Civil Servants Act,
1973 (LXXI of 1973), hereinafter referred to as the said Act, in section 3, the existing section shall be renumbered as sub-section (1) of that section and thereafter the following new sub-section shall be added, namely:"(2) The terms and conditions of service of any person to whom this Act applies shall not be varied to his disadvantage."
3. Amendment of section 10, Act LXXI of 1973. - In the said Act, in section
10, after the words "in any," the word "equivalent" shall be inserted.
4. Substitution of section 12, Act LXXI of 1973. In the said Act, for section
12, the following shall be substituted, namely:-
"12. Revision(sic) to Lower Post. (1) A civil servant appointed to a higher post on ad hoc, temporary or officiating basis shall be liable to reversion to his lower post.
(2) No person who is a member of a civil service of the Federation or of an All Pakistan Service, or holds a civil post in connection with the affairs of the Federation shall be dismissed or removed from service or reduced in rank by an authority subordinate to that by which he was appointed.
(3) No such person as aforesaid shall be dismissed or removed from service, or reduced in rank, until he has been given a reasonable opportunity of showing cause against the action proposed to be taken against him:
Provided that this sub-section shall not apply
(i) where a person is dismissed or removed from service or reduced in rank on the ground of conduct which has led to his conviction on a criminal charge; or
(ii) where the President or any person authorised by him is satisfied, for reasons to be recorded in writing , that in the interest of the security of Pakistan or any part thereof, it is not expedient to give to that person such an opportunity."
WASIM SAJJAD
Acting President
About eighteen years have since passed. During that period, the constitution of 1973 has been subjected to the usual suspensions and mutilations. Many amendments, and even packages of amendments, have been moved and made. However, not once, any government, civil or military, or any MNA or Senator has thought of either restoring the constitutional protection which was available to the public servants till 14 August, 1973, OR of even restoring the legal protection which was briefly extended to them on 18 October, 1993. So much for good governance!
EXTRAORDINARY
PUBLISHED BY AUTHORITY ISLAMABAD, TUESDAY, OCTOBER 1993
PART I
Acts, Ordinances, President's Orders and Regulations
GOVERNMENT OF PAKISTAN MINISTRY OF LAW, JUSTICE AND PARLIAMENTARY AFFAIRS (Law and Justice Division)
Islamabad, the 18th October, 1993
No F. 2(l)/93-Pub. -The following Ordinance made by the President is hereby published for general information:
ORDINANCE NO XXXVIII OF 1993
AN ORDINANCE further to amend the Civil Servants Act 1973
WHEREAS it is expedient further to amend the Civil Servants Act, 1973 (LXXI of 1973), for the purposes hereinafter appearing,
AND WHEREAS the National Assembly is not in session and the President is satisfied that circumstances exist which render it necessary to take immediate action.
(The writer is a retired senior most Federal Additional Secretary)