A CRITIQUE OF RECENT SUPREME COURT JUDGMENTS ABOUT DEPUTATION AND ABSORPTION

By:
NAUMAN QAISER
Advocate High Court
LLM(UK)

The Judgment of the August Supreme Court of Pakistan, i.e., 2013 SCMR 1752, was a culmination of the contempt proceedings against the chief secretary of the Province of Sindh & others, who had allegedly violated the orders of the Court regarding the deputation/absorption and out-of-turn promotions of certain employees of Sindh Government. The earlier orders of the Court were actually frustrated by the subsequent introduction of certain amendments in the Sindh Civil Service Act and rules, whereby absorption of the subject employees into cadre posts of civil servant was justified. These legislations were ultimately declared ultra vires by Supreme Court, with the ratio that the deputation and the subsequent absorption of non-civil servants to the posts of civil servants on the one hand; and that of civil servants holding non-cadre posts to cadre posts is illegal. It was also held that the non-civil servants and civil servants on non-cadre posts could not be allowed to take the place of civil servants who have been selected through a competitive process. Later on, in the review petition, the Government of Sindh changed its stance, and the deputation/absorption was unsuccessfully justified on the basis of rule 9(1) of the Civil Servant (Appointment, promotion and transfer) rules, 1974 which pertain to transfer. The review petition is cited as 2015 SMCR 456, which further buttresses and reinforces the earlier judgment.

As far as the scope of the Sindh Civil Servants Act, 1973 is concerned, when the averments in the preamble of the Act to the effect that “it regulates the appointment of persons to, and the terms and conditions of service of persons in, the service of Pakistan in connection with the affairs of the Province of Sindh” are read in juxtaposition with section 1(2)thereof, which states that “it applies to all civil servants wherever they may be”, and the basic definition of the “Civil Servants” in section 2(1)(b) of the Act, i.e., “a person who is a member of a civil service of the Province or holds a civil post in connection with the affairs of the Province”; it becomes abundantly clear that the Act determines the terms and conditions of the service of the civil servants (of the province of Sindh), wherever they may be, whether, on deputation in federal government, provincial government, local authority, a corporation or a local body. This act will follow its creation, i.e., the civil servants of the Sindh; just like the Pakistani law follows the Pakistani nationals wherever they go.

On the other hand, certain categories of employees working with the province of Sindh are excluded from the definition of the Civil Servant (of the province of Sindh), as mentioned in the sub-clause i, iii and iii of the section 2(1)(b) of the Act respectively, i.e., (i) a person who is on deputation to the Province (of Sindh) from the Federation or any other Province or authority; or (ii) a person who is employed on contract, or on work-charged basis, or who is paid from contingencies; or (iii) a person who is a “worker” or “workman” as defined in the Factories Act, 1934 (XXV of 1934), or the Workmen’s Compensation Act, 1923 (VIII of 1923).

What this means is that any outsider on deputation in the province of Sindh, i.e, from the Federation, other provinces or authorities; any contractual employee, or any workman would be excluded from the definition of the Civil Servants (of the province of Sindh), as naturally these outsiders placed at the disposal of the Province of Sindh would either be the employees of the lending government or the authority or would be governed by their respective contract and legislations. All of the above is also true in case of the Civil Servants of the Federation and other provinces, which are government by the Civil Servants Act, 1973 and the respective legislations of other provinces.

What is also clear from the afore-mentioned exclusion clause is that the civil servants of the Federation or other provinces, whether holding cadre or non-cardre posts; or employees of any authority, whether civil or non-civil servants, could be transferred on deputation to a post otherwise earmarked for a civil servant (of the province of Sindh).That is why the rule 15 of the Punjab Civil Servant (appointment and conditions of service) rules, 1974 allows such a deputation of the employees, mostly non civil servants, to the posts of civil servants.

Quite contrary to the afore-mentioned, the Paragraph 133 of the 2013 Judgment interprets the section 2(1)(b) of Sindh Civil Servants Act, 1973, especially the exclusion clause (i) thereof, in such a way that is, even on the face of it, against the letter and spirit of this Act. The Judgment actually inserts ‘to’ in between the exclusion clause (i) in the following manner:-

(i) A person who is on deputation to the Province from the Federation or (to) any other Province or, (to) authority, or…..

Firstly, this insertion rightly excludes from the ambit of the definition of the Civil Servant (of the province of Sindh)“a person who is on deputation to the Province (of Sindh) from the Federation”; however, it also excludes “a person who is on deputation to any other Province or to a authority”, meaning thereby a Sindh government’s employee who is on deputation to other provinces or authorities has been excluded from the definition of the Civil Servants (of the Province of Sindh). This, as mentioned above, is against the spirit of the Act, which applies to the Civil servants (of the Province of Sindh) wherever they may be.

In other words, the true spirit, of clause (i) is that if any employee is deputed to the province of Sindh from outside, i.e, Federation, other province or authority, he shall not be given the status of the civil servant (of the province of Sindh), only due to the fact that the post he is holding by deputation is a Sindh civil servant’s post. Therefore, the focus in the clause (i) is on “deputation to the Province (of Sindh) from” other sources. On the contrary, the afore-mentioned insertion, instead of focusing on the employees who are the civil servants of the province of Sindh and excluding those who are placed at its disposal from outside, actually strips the status of the Civil Servant (of the province of Sindh) from the Sindh government’s employees who are on deputation to other provinces or authorities.

By having recourse to this novel insertion -- which, with due respect and reverence, amounts to making the law, the Judgment goes on the conclude that the deputation and the subsequent absorption of non-civil servants to the posts of civil servants on the one hand; and that of civil servants holding non-cadre posts to cadre posts is illegal; the only exception being the absorption by having a recourse to the rule 9-A of the Sindh Civil Servant (APT) rules – for persons who have been rendered surplus on account of abolition of their posts in any office or Department of the Government or autonomous body and/or on account of permanently taking over the administration of such autonomous body wholly or partially by the Government. Apart from the discrepancies highlighted above in this interpretation, the dichotomy between the civil servants holding cadre posts on the one hand, and the non-civil servants and the non-civil servants on cadre posts also cannot be justified as per the Article 25 of the Constitution.

Lately, the afore-mentioned judgments have been making the news, especially in the government departments and statutory corporations across the Pakistan, perhaps in pursuance of the orders of the August Supreme Court in both these judgments, which directed “all Chief Secretaries to streamline the service structure of Civil Servants in line with the principles laid down in this judgment.” Supreme Court of Pakistan has also taken a suo-moto notice of the alleged illegal appointments in the National Accountability Bureau (NAB), and the proceedings also hang around these two judgments, as to whether the deputation/absorption in NAB is against the law set down in these judgments or not, apart from other legal issues.

Nevertheless, it is high time that Supreme Court of Pakistan takes notice of discrepancies in these judgments and sets the law right, either in the on-going NAB proceedings or independently. Otherwise, the respective governments would be deprived of the services of the exceptional non-civil servants or civil servants holding non-cadre posts, who have also been appointed through a competitive process involving at least the advertisements, screening process and interviews. Some of the non-civil servants and civil servants holding non-cadre posts have also been selected through the written exams, which, in any case, cannot be considered a higher or better form of selection, and do not guarantee that the outstanding and exceptional candidates would be selected.

The author is a commercial and corporate lawyer; and can be reached at naumanqaiser@gmail.com

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