Civil Service in Pakistan

Reforms vs. Regulation

Kamran Adil

The incumbent government has introduced two major sets of rules in 2019 and 2020 that have far reaching potential effects for civil service in Pakistan. These rules have redefined and expanded the promotion and attrition regimes of the civil service. A look at legal and constitutional framework related to civil service law shows that civil service is a constitutional product. Article 240 of the 1973 Constitution constitutes services (federal and provincial) and provides that the ‘conditions of service’ will to be ‘determined’ by the federal and provincial legislations.

Unlike the 1956 and 1962 Constitutions, the 1973 Constitution does not provide for ‘safeguards’ or ‘constitutional protections’ with regard to ‘due process’ and insertion of ‘adverse conditions’ to extant terms and conditions. As obligated by Article 240, the federal and provincial legislatures enacted laws for federal and provincial civil services that contained their ‘terms and conditions’. For federal civil servants, the Civil Servants Act, 1973 was enacted and it was equipped with a legal provision for delegated legislation; its Section 25 empowered the President to make rules to give necessary effect to the civil service law. It is in exercise of this power to make delegated rules that the two sets of rules relating to promotions and directory retirement have been issued, which will be discussed hereunder.

The first set of rules deals with promotion. As per the architecture of the civil service law, Section 9 provides for substantive law related to promotion of civil servants. It requires that civil servants possessing ‘minimum qualification prescribed’ for promotion be promoted. The ‘prescription’ was to be done by making rules; however, the rules were not made for a long period of time and the ‘prescription’ was carried out under executive authority by issuing policies and office memoranda.

The use of executive authority to ‘prescribe’ minimum qualifications for civil servants was challenged in courts, which consistently held that such ‘prescription’ under the civil service law was a legislative function and should have been done through making rules. Consequently, in 2019, after a period of forty-six years from the enactment of civil service law, the promotion rules were made. As noted above, the issuance of rules has rectified the legality problem of the promotion regime that was noted consistently by the courts in their obiter dicta while deciding on individual promotion cases of civil servants. The content problem of the promotion regime that required fairness, objectivity and structured discretion has yet to be fully addressed. In the interest of clarity and certainty, the rules clearly lay out procedural and administrative details about promotion regime. The rules, however, do not address the issue of ‘objective material’ on the basis of which promotions may be evaluated.

Within civil service the definition of ‘objectivity’ is subject to much debate, nevertheless, the rules offer a combination of objective and subjective criteria. The objective criteria include 30 percent weightage for training and 40 percent weightage for performance evaluation reports. On the other hand, the ‘objective assessment’ with the weightage of 30 percent is to be carried out by the members of the Central Selection Board (CSB) or Departmental Promotion Committee (DPC). ‘Objective assessment’ by people who might not be knowing the assessed officer personally is a matter of concern for many a civil servant. Besides, streamlining the promotion regime, the rules contain standard legal caveats to address expediency that is to be dealt by civil servants on daily basis.

The second set of rules is the Civil Servants (Directory Retirement from Service) Rules, 2020. The concept of direct retirement is not new and was very much part of the civil service law (Section 13), but had no elaborate legal arrangement. The directory retirement rules are being seen as a venture in attrition in civil service.

Amongst the most pervasive debates in civil service is that there is no process to deal with ‘dead wood’ who thrive on omission of duty and inefficiency. Unfortunately, the elimination or attrition has not been institutionalized in civil service. One of the most explicit tools in this regard should have been the disciplinary rules, which get neutralized on procedural and legal grounds as all disciplinary action under the law is justiciable.

Likewise, another tool is the performance evaluation, which has become mechanical and an exercise in personal relations. Fair performance evaluation can ensure that inefficient, corrupt and politically aligned civil servants face the consequences of their choices; this, however, has not happened. It is generally believed that the most effective check on conduct of public servants is internal control that gets reflected through fair performance evaluation and disciplinary action. Both the tools have been politicized, socialized and judicialized. In this context, the new regime of directory retirement has been brought in.

The Rules provide for a mandatory review after completion of twenty years of service to assess the retention of an officer in service. After the mandatory review, the process can be triggered on some grounds provided in the rules (Rule 5). The grounds for triggering an optional review are not trite; the way these are formulated may increase vagueness, uncertainty and discretion. The polestar of any attrition or elimination exercise has been the material on which the executive decisions rests.

In directory retirement, the problem of evidence and material of incriminating nature subsists as without cogent reasons backed by admissible evidence, the likelihood is that the civil servants will be able to get relief from the courts and return to service after some time. A survey of the cases of returning officers in the past is telling in many ways. The returning officers have, more often than not, successfully claimed financial benefits of the period they spent out of service and have also quite deftly got their inter-se seniority restored, culminating into promotions with their peers. Earlier, Musharraf regime introduced a law called Removal from Service Ordinance, 2000, on the same premise, but in disciplinary domain. The law did not yield required results and the officers removed through it were able to return to service through litigation. In addition, there are laws like Sacked Employees (Reinstatement) Act, 2010, on the statues’ book to evince that there is little or no real will to deal with the issue.

Notwithstanding their limitations and potential to be politically utilized, the two sets of rules have added considerable meat to the already expanding body of rules of the civil service in Pakistan. The much required civil service reforms have become clichéd as the propensity is to regulate and control a civil servant rather than to reform him. Civil service reforms relating to tenure protection, decent and equitable pay, career planning, placement, dignity and professionalism have not found much favour with the powers that be. For the sake of posterity, it must be realized that there is as good a case for reforming civil service as regulating it. The constitutional machinery is essentially civilian in nature and must be given an environment, which is less insecure and uncertain.