A Quest for Civil Service Agreement: A Moral Crises of Pakistan Administrative Service

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By Tariq Mahmood Awan – A Quest for Civil Service Agreement; A Moral Crises of Pakistan Administrative Service

A few years ago, on a delightful morning of acceding spring, I attended the court proceedings appertained a case on civil service. During the proceedings, it was revealed by the legal representative of the Establishment Division, Islamabad, that the civil service of Pakistan, famously known as CSP, was not established by an enactment or law but rather by an agreement supposedly reached between the Federation & the provinces. The sudden revelation shocked me; how could a civil service be raised without a law? Hence, the revelation raised numerous legal and moral queries for me as a law student. Why was there a need to raise CSP on an agreement? What was the agreement? How was it contracted? Was the agreement in line with the Constitution? How can this agreement still be enforceable after promulgating three constitutions and the 18th Amendment?

Then, even an ordinary law student realizes the law regime of an organic law. The Constitution is the supreme law followed by the legislation if that corresponds to the Constitution. Delegated or executive legislation is not law. Nevertheless, administrative legislation is competent if it fits the legislation deriving it. Besides, the alignment among these tiers is essential for the legitimacy of the legal instruments. Hence, an executive law must correspond to legislation and legislation to the Constitution. If there is any anomaly in the series, the law scheme shall be illegal and unconstitutional. The idea of civil service being without an organic law and constitutional provision was indigestible for me as a law student; therefore, I decided to dig out the existence of the agreement to comprehend its contents. It was essential because, according to articles 240, 241, 242, read with 142, 137 and 97, the Federation can not appoint federal officers of CSP/DMG/PAS to provincial posts from chief secretary to assistant commissioner. Constitutionally, the Federal services should be raised on federal posts under Federal Legislative List part I, and the All Pakistan services on All Pakistan or Common posts under Federal Legislative List part II. Finally, the Provincial services shall be raised on provincial posts under provincial subjects. Hence, raising a federal or an All Pakistan service on provincial posts is unconstitutional as the Federal CSP/DMG/PAS is.

Out of extreme curiosity, I filed a representation to Establishment Division, Islam Abad ED, to provide me with a certified copy of the agreement of CSP, supposedly reached in 1949 between federal and provincial governments. Accordingly, ED replied that all the information regarding the agreement was available in the federal Estacode.

Reply of Establishment Division:

Impatiently, I searched every page of the Estacode but failed to find the agreement. So, with more novelty, I decided to exercise my fundamental right under Article 19A regarding the right to information and filed an appeal before the office of the information commissioner, Islamabad. Article 19A provides that every citizen shall have the right to access information in all matters of public importance subject to regulation and reasonable restrictions imposed by law. Consequently, proceedings were initiated on my application and the establishment division was asked to provide a certified copy of the agreement. At my wit’s end, the Establishment Division replied that the impugned agreement was made classified by the then Prime Minister, Imran Khan, who also happened to be the Minister in charge of the Establishment Division.

Reply of Establishment Division to Information Commissioner Islamabad

This reply shocked me as earlier, ED had told me that it was in the Esta Code and after a few days, they replied to Information Commissioner that it was classified. The reply developed a criminal suspicion in me. Commonly, Prime Ministers often become the ministers in charge of the establishment division; this is where federal bureaucracy influences most of the prime Ministers. Henceforth, this was even more surprising to know how Prime Minister Imran Khan could have classified the civil service agreement. It further forced me to think that there was something wrong with the agreement. Politicians depend upon the bureaucracy, and the latter always deceives politicians due to its interests. Hence, politicians do not comprehend it.

Information Act 2013 categorically provides a citizen with a fundamental right to access information of public interest. Is the provision of an agreement contracting the civil service of Pakistan CSP not information of public interest? Is this agreement a national secret? How can an agreement be classified as forming a civil service? Ironically, the agreement was classified, but all the rules were available. The denial to access to the agreement creates more apprehensions. Even sensitive documents are declassified after a lapse of a specific period, according to RTI Act 2013. But, this is different from the enigmatic agreement that is still classified even lapsed by 65 years. It is pertinent to mention that there is no constitutional law available where a service be raised on an agreement; hence, the CSP/DMG/PAS is an unconstitutional civil service.

Consistently, I pursued the case before the information commissioner in Islamabad. Meanwhile, I approached the honourable Islamabad high court to direct the parties to declassify the agreement under law & also hand me over the desired certified copy of the agreement. So, the Information commissioner allowed my appeal and ordered the Secretary of Establishment Division Islamabad to declassify the agreement and subsequently hand me over the agreement.

Order of Information Commissioner

Yet, even after a lapse of a year, the certified copy of the agreement still needs to be provided. Meanwhile, I have written many times to the Prime Minister of Pakistan, Mr Shahbaz Sharif, to provide me with a certified copy of the agreement. However, I am still waiting for a reply.

Civil service in colonial India was established on the scheme called reservation of posts for central services. The impugned scheme was inserted in the Indian Constitution of 1935 through specific Articles of 246 and 261. Article 246 provided constitutional support to reserve posts, and Article 261 provided support to contract an agreement for raising a service between the Federation and provinces. However, this colonial scheme was expunged through section 10 of the Indian Independence Act of 1947 due to the intervention by the revered Muhammad Ali Jinnah, the founder of Pakistan. How could this scheme remain enforceable when Muhammad Ali Jinnah lobbied it to be deleted through the Indian Independence Act of 1947? This scheme makes a federation a unitary state, and Pakistan, being a federation, never incorporated it in any of the constitutions.
Nevertheless, the centralists and powerful bureaucracy in the 1950s re-launched the same scheme by an agreement. More importantly, neither Bengal nor Sindh endorsed the scheme as being opposite to the canons of Objectives Resolution. Critics attribute that Bengal resisted the scheme; therefore, it could not be endorsed by the constituent assembly and the federal government issued CSP rules in 1954 without law or legislation through an executive order. It shall be shocking for the readers that the civil service rules are the only rules in the world which are not derived from legislation but an agreement and that agreement never happened. Hence, a fraudulent foundation of the service is still imposed after the lapse of 59 years.

Coming back to the availability of the impugned agreement, I wrote to the honourable Prime Ministers of Pakistan to direct Establishment Division to provide the certified copy of the original agreement, but so far, I am not provided with the agreement. As a citizen of Pakistan, now, I am disappointed that the foundation of the elite civil service is based on fraudulent agreements. What to talk of the unconstitutionality of the service, it is shockingly raised on a fraud agreement. My suspicion of this crime by the Establishment Division shall only be removed if Establishment Division provides the agreement.

An agreement is a public document and must be provided to the general public of Pakistan. Civil service is a permanent part of the executive and holds a vital position among the organs of the state. Constitutional and moral organization of the civil service is critical to the morality of civil service. How can a service trumpet morality when it is raised on fraud? Can Pakistan afford it? It also shows the kind of administrative immorality the civil service or bureaucracy has in Pakistan.
Against all odds, my quest to find out the original agreement of CSP is unflinching, and I hope the Establishment Division shall provide the certified copy of the agreement to shun all suspicion hovering around the legal and moral foundation of the so-called mighty civil service of Pakistan. I also request all of you to help me out in acquiring the agreement. It shall be a great service for the moral values of civil services in Pakistan.

The writer is a civil servant and heads a research society on administrative federalism. He tweets at @PMScivilservant and can be reached at association.admn.fed@gmail.com