Tariq Mahmood Awan
In Pakistan’s parliamentary system, the executive is supposed to act only through the authority of the legislature, since it is elected by Parliament and not directly by the people. Unlike the United States, where the president holds vast powers through direct election, Pakistan’s executive often behaves as if it enjoys the same kind of independent mandate. This distortion weakens parliamentary authority, blurs constitutional lines, and leaves the system caught between parliamentary and presidential models without fully honoring either.
The Constitution of Pakistan is explicit about where the authority to create services and posts of a province resides. Article 240(b) provides that appointments to, and conditions of service in connection with, provincial posts & services must be determined “by or under an Act of the Provincial Assembly.” This clause is not merely technical language; it affirms the Assembly’s supreme legislative role in defining the very structure of provincial governance. The implications are clear: services and posts of Punjab cannot be established by executive notifications, Rules of Business, or administrative orders. They require legislative backing through an Act, or at minimum, rules framed directly under such an Act.
The Punjab Civil Servants Act, 1974 is often cited as the legislative foundation of provincial services. Yet its scope is limited. The Act primarily regulates the terms and conditions of services such as appointment, training, transfer, promotion, and retirement etc of the provincial civil servants. It does not create new services, nor does it authorize the creation of posts in any imagination. Thus, while it governs service conditions, it does not grant Punjab government a legislative framework to establish entirely new services or to define a system for creating posts. Without such an Act, the constitutional mandate of Article 240(b) remains only partially fulfilled.
This gap has allowed the executive—through the Services & General Administration Department (S&GAD), Finance Department, and other departments—to occupy a space that rightly belongs to the Punjab Assembly. Today, new posts are often created through notifications approved by the Finance Department, with concurrence from S&GAD. These may later be endorsed by the Cabinet and even passed through budget or supplemantry budget in the Punjab assembly. But none of these steps are substitutes for organic legislation. Cabinet approval itself cannot legitimize the creation of services or posts, since the Cabinet is not a legislature. Its authority flows from the Assembly, not over the Assembly.
The misuse of the Rules of Business, 2011 further deepens this constitutional crisis. Article 139 of the Constitution authorizes Rules of Business only to allocate departmental responsibilities and regulate the transaction of business. They are administrative instruments, not legislative enactments. In the Mustafa Impex case, the Supreme Court held that Rules of Business do not constitute law and cannot override legislative authority. Therefore, any attempt to create or abolish posts, upgrade or downgrade services, or reserve positions for federal or provincial cadres under these rules is constitutionally defective.
Even the annual budget bill does not create posts. It only provides fiscal space by allocating funds to departments and existing posts. Salaries and expenses flow from these allocations, but budgetary votes cannot establish new cadres of services or posts. To confuse fiscal appropriation with legislative authority is to undermine the Assembly’s role. The Constitution recognizes a strict division: finance authorizes spending, while legislation creates posts and services. Any overlap is unconstitutional.
The argument often made in defense of executive discretion is one of practical necessity. Administrations must respond quickly to emerging challenges—new departments, technological changes, and crises all demand flexibility. But constitutional governance requires that even executive flexibility be authorized by law. The answer lies in legislation that delegates specific powers. For example, the Punjab Assembly could pass a “Creation of Posts Act” authorizing S&GAD and Finance Department to make rules for day-to-day adjustments, within defined legislative boundaries. In this way, both legislative supremacy and executive efficiency can coexist.
A comprehensive approach could also involve enacting a Punjab Civil Services (Structure and Creation) Act. This law would provide a generalized mechanism for creating services and posts across departments, while specifying how delegated legislation would function. Departments and organizations could then make their own service rules under this Act, subject to Assembly oversight. Such a framework would end the current practice of arbitrary notifications and establish constitutional clarity.
The distinction between executive power and legislative authority must remain sharp. Executive power is designed to implement, not to create. When the executive begins to create services or posts without legislative sanction, it blurs this distinction and weakens parliamentary sovereignty. In a parliamentary democracy, the Assembly is the source of authority. Its role cannot be substituted by administrative convenience.
Moreover, continued reliance on executive notifications sustains a colonial legacy. Under British rule, services were created centrally, and provinces were reduced to administrative appendages. Pakistan’s 1973 Constitution sought to dismantle this legacy by empowering provincial assemblies. Article 240(b) embodies that devolutionary spirit. Yet, decades later, Punjab continues to follow colonial practices by letting unelected bureaucrats and executive departments dictate service structures. This undermines both democracy and provincial autonomy.
The Supreme Court’s jurisprudence, particularly in Mustafa Impex, reinforces this interpretation. The Court ruled that Rules of Business cannot assume legislative character. Applying that logic, S&GAD, Finance Department, or even the Cabinet cannot exercise powers that belong exclusively to the Assembly. Any posts or services created through such instruments lack constitutional legitimacy unless supported by an enabling statute.
Concludingly, the creation of provincial services and posts is a matter of legislative supremacy, not administrative expediency. Article 240(b) makes it abundantly clear that services and posts must be created “by or under” an Act of the Punjab Assembly. The current practice of relying on rules, notifications, or cabinet approvals is constitutionally fragile and democratically unsound. Punjab’s Assembly must reclaim its authority by legislating comprehensive frameworks for the creation of services and posts, while delegating limited rule-making powers to the executive for operational flexibility. Only then can Punjab honor the constitutional command, protect provincial autonomy, and ensure that governance rests on the firm foundation of parliamentary democracy.
