Provincial Officers Term Posting Of Provincial Chief Secretaries As Unconstitutional & Demand It Be Withdrawn

Provincial Officers Term Posting Of Provincial Chief Secretaries As Unconstitutional & Demand It Be Withdrawn
By Mudassir Saeed

In a major development towards demanding their constitutional and service rights, the provincial officers have written a letter to the Prime Minister Imran Khan to stop the Establishment Division from posting the provincial Chief Secretaries. The letter terms the nomination and appointment of the Chief Secretary by the Establishment Division, Federal Secretariat as ‘unconstitutional’ and, therefore, a violation of the letter and spirit of the constitution.

Titled as “Unconstitutional Posting of Chief Secretaries of Provinces by Establishment Division, Federal Secretariat, Islamabad, in violation of Articles 240 (B), 137, 139, Read with 97”, the letter is the first of its kind wherein the process of positing the Chief Secretary has been challenged.

The letter aims to draw the attention of the prime minister towards the “violation of the constitution in the posting of the Chief Secretaries of all provinces by Establishment Division”.

As the letter notes, the Ishrat Hussain-led reform initiative by the PM Imran Khan can only succeed if the constitution is followed in its letter and spirit.

The letter urges the PM Khan that he has the ‘inviolable obligation’ towards the constitution and that the PM must respect the meaning of the 'State' in terms of its constitutionally-recognised federal and provincial spheres of authorities.

The letter states that the constitution is very clear in asserting that the appointment of the Chief Secretary belongs to provincial matters.

The letter mentions Article 139 which “defines the conduct of business of provincial government and empowers the provincial governments to make rules of business”. When it comes to the conduct of the business of provincial government, the Punjab government gazette, a provincial gazette, “clearly defines that the post of Chief Secretary is exclusively a provincial post and not a federal, common, foreign, or any other type”. Also, given the reality that the Chief Secretary draws salary and perks and privileges from the provincial government and is responsible to implementing the policies of the provincial legislative and executive authorities, it further clarifies the matter in favor of the authority of a province

Furthermore, the letter cites the Article 240 (b) that implies the posting of the Chief Secretary is a prerogative of the respective provincial assembly.

This letter signed by 3800 provincial officers puts special emphasis on the two articles, 129, 137, that deal with the sphere of authority of the provincial government. The part 1 of the Article 129 expressly outlines that only the Provincial Government is the competent “executive authority of the province”. Part 2 of the Article 129 states that the constitution empowers the Chief Minister to ‘act either directly or through the Provincial Ministers” to perform the duties and roles. Moreover, Article 137 is very clear in lining the extent of “the executive authority of the Province” proportional to the extent “the Provincial Assembly has power to make laws”.

Article 137 grants the executive authority in a province only to the Chief Minister to the extent the law-making power of the Provincial Assembly extends to.

Furthermore, Article 97 protects the sphere of the provincial executive authority as well as the Provincial Assembly by limiting the federation from intervening into the provincial domain. Article 97 says that the federal government has respective authority only to the matters over which “the Parliament has power to make laws” and that the federal authority “shall not…extend in any Province to a matter with respect to which the Provincial Assembly has also power to make laws.”

Therefore, where the article 97 defines the scope of the executive authority of the federal government, it also clearly defines the limitation of the executive authority of the federal government. So, the executive authority of the federal government shall, by no means, unless the express provision exists, extend its scope of actions into the provincial matters – the matters that belong to the ambit of the Provincial Assembly.

In light of the constitutional provisions, the officers from the PMS/PCS have asked the PM that henceforth only the “respective provincial governments shall be allowed to post the Chief Secretaries belonging to Provincial Service as per scheme and spirit of the constitution”.

The provincial officers have been struggling to ensure their constitutional rights and sphere of duty for many years.

Since Imran Khan’s coming into power and his forming of the Ishrat Hussain-led institutional reform committee the demand for empowerment of provincial civil servants has only grown vocal.

After many months into the institutional reforms’ initiative, the provincial bureaucrats believe that Ishrat Hussain’s reforms proposal fails to address their demands. Instead, the reform proposal is biased and an attempt to “colonize” the bureaucratic machinery by favoring the already-privileged groups, especially the Pakistan Administrative Service.

A few days ago, on Sunday, March 1, the All Pakistan PMS/PCS Association, which includes 3800 officers, held a Convention at the local hotel in Lahore.

In the convention the provincial civil officers of the four provinces passed the joint resolution demanding the honorable Prime Minister & all worthy four Chief Ministers to reform civil service in line with law and the constitution.

It is noteworthy that the posting of the Inspector General of the provincial police is also confirmed by the Establishment Division, Islamabad. Therefore, there arises the question that if the posting of the chief secretary falls in a provincial ambit then the decision to post of the IG too rests with the provincial authority.

Senior provincial civil servants while talking to this scribe said that to make the institutional reforms initiative successful, the Prime Minister must implement the constitutional scheme and enable the provinces to nominate and appoint the Chief Secretary.

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