By: Muhammad Akhtar daofsd@yahoo.com

The writer is a public finance expert and author of many books.

There are three broad categories of services and posts in the Service of Pakistan which are as follows:

1. Services of the Federation and posts in connection with affairs of the Federation;
2. Services of a Province and posts in connection with affairs of a Province; and
3. Services common to the Federation and the Provinces and posts common to the Federation and the Provinces (All Pakistan Services).

          There is no confusion regarding the Services of the Federation and posts in connection with affairs of the Federation and services of a Province and posts in connection with affairs of a Province. However, the concept of posts/services common to the federation and of the provinces needs elaboration.

In a Federation, certain institutions perform functions that can be termed neither purely federal nor entirely provincial. Examples of such institutions, in the context of the Constitution of the Islamic Republic of Pakistan, 1973, may include (i) the National Finance Commission (constituted under Article 160 of the Constitution); (ii) the National Economic Council (constituted under Article 156 of the Constitution); (iii) Judicial Commission of Pakistan (constituted under Article 175A of the Constitution); (iv) Council of Common Interests (established under Article 153 of the Constitution). The functions of these institutions are functions common to the Federation and the Provinces. Services and posts of these institutions are services and posts common to the Federation and the Provinces. Moreover, two or more Provinces may join hands to constitute joint services and create posts in connection with the affairs of more than one province. Legislative jurisdiction of a Province does not extend to such services or posts or beyond the territorial limits of the Province. In such an eventuality, the Federal Legislature was allowed to legislate on behalf of the Provincial Legislature which also included an extension in the jurisdiction of a Public Service Commission to serve the joint services and posts. Section 103 of the Government of India Act, 1935, provided that if it appears to the Legislatures of two or more Provinces to be desirable that any of the matters enumerated in the Provincial Legislative List should be regulated in those Provinces by Act of the Federal Legislature, and if resolutions to that effect are passed by all the Chambers of those Provincial Legislatures, it shall be lawful for the Federal Legislature to pass an Act for regulating that matter accordingly, but any Act so passed may, as respects any Province to which it applies, be amended or repealed by an Act of the Legislature of that Province. A similar provision in the Constitution of the Islamic Republic of Pakistan, 1973 is Article 144. 

In the above context, posts common to the Federation and the Provinces are the posts in the Service of Pakistan which are left behind after subtracting therefrom posts in connection with affairs of the Federation and of the Provinces. Posts in connection with affairs of the Federation or of the Provinces cannot be termed posts common to the Federation and the Provinces. The idea of posts common to the Federation and the Provinces cannot be employed to support the concept of reservation of specified posts in connection with affairs of a Province for a Service of the Federation or an All Pakistan Service which never lawfully existed in Pakistan with effect from the appointed day and was not in existence on the Constitution Day. It is not legally possible to hold that the Civil Service of Pakistan (Composition and Cadre) Rules, 1954 do not encroach upon the exclusive provincial domain to the extent these deal with posts in connection with affairs of a Province and the posts mentioned in the Schedule to the aforesaid rules are posted common to the Federation and the Provinces. Moreover, two or more Provinces may agree to establish institutions for the transaction of their businesses through these joint institutions. The pooling of resources may result in the economy in expenditure. Examples may be:

1. Textbook Development Body
2. Agriculture Research Institute
3. Police and Civil Service Training Colleges
4. Joint Public Service Commission

Manpower requirements of the joint ventures of more than one Province can be met through the constitution of services common to the Provinces. Posts in connection with the affairs of these joint institutions will not be posts in connection with the affairs of a Province. The Federation may also join such common institutions. The legislative competence of a Province does not extend to such matters. In this case, the Provinces may request the Parliament to legislate for them as allowed under Article 144 of the Constitution. In no case, posts in connection with affairs of the Federation or of a Province can be termed posts common to the Federation and of the Provinces except the posts in connection with affairs of the common constitutional institutions or common entities created through federal statutes on the request of the Provinces.

At present, there are no services or posts common to the Federation and the Provinces as envisaged in Article 240 of the Constitution.

All services and posts of the Federation are services and posts in connection with affairs of the Federation. Similar is the case of a Province. As is evident from the definition of the expression ‘Service of Pakistan’ given in Article 260 of the Constitution, posts not included in the definition (posts held by elected persons or nominees of elected persons) are also in connection with affairs of the Federation or, as the case may be, of a Province. Performance of functions assigned by or under the Constitution to the Federation or a Province does constitute business or affairs of the Federation or, as the case may be, of the Provinces. Services of individuals are hired as employees by the Federation or a Province for disposal of their businesses except in cases where offices are held by elected persons or their nominees and affairs of the Federation or of a Province are entrusted to them.

It is, therefore, necessary to have a clear understanding regarding the distinct nature of the concept of reservation of posts for a service neither under the control of the Federation nor a Province and the concept of the posts common to the Federation and the Provinces.