The purview of the term “Service of Pakistan”, and its applicability to the Public Service Commissions

Abstract

The Article goes through various constitutional provisions to firstly define the term “Service of Pakistan”, and then to establish whether or not the “Service of statutory bodies”, like NAB, NHA and PIA etc come within the ambit of “Service of Pakistan”, whilst critically appraising the celebrated judgment by the nine-member bench of the August Supreme Court of Pakistan, i.e, Mobeen-us-Salaam case (PLD 2006 SC 602). The second part of the article defines the Civil Service as part of the “Service of Pakistan” barring the services in the Armed forces; and finally the article elaborates whether or not the Public Service Commissions have jurisdiction over the statutory bodies.

Introduction: “Service of Pakistan”

The ‘Service of Pakistan’ is a term used in the Article 260 of the Constitution of Islamic Republic of Pakistan, 1973 (‘Constitution’) to mean “any service, post or office in connection with the affairs of the Federation or of a Province, and includes an All-Pakistan Service, service in the Armed Forces and any other service declared to be a service of Pakistan by or under Act of Majlis-e-Shoora (Parliament) or of a Provincial Assembly, but does not include service as Speaker, Deputy Speaker, Chairman, Deputy Chairman, Prime Minister….” It basically describes all the services, posts or offices in connection with the affairs of the Federation or of a Province, whether civilian or related to defence, with an exception of certain public offices like that of President of Pakistan, Prime Minister, Governors of Provinces, Chief Ministers, Ministers etc.

It is worthwhile to note that the definition of “Service of Pakistan” does not take notice of the manner in which a post in connection with the affairs of the Federation or a Province may be filled:[1] whether the person employed in these services, posts or offices is on deputation from federation, province or any other authority; on a contractual or work-charge basis, is paid from contingencies; is a ‘worker’ or ‘workman’ as defined by various legislations[2]. In other words, all public services, posts and offices, with some exceptions, have been referred to as the ‘Service of Pakistan’ in the Constitution.

This Article would critically analyze, in the light of the Supreme Court Judgments and other constitutional and statutory provisions, whether or not the “service of statutory bodies” comes within the confines of the terms “Service of Pakistan”, and whether the Public Service Commissions have jurisdiction over the statutory bodies; in the process also briefly elaborating upon the concept of the “Civil Servants”.

Service of Statutory bodies/corporations: “Service of Pakistan” or not

The Mobeen-us-slaam – a judgment by a nine-member bench of August Supreme Court of Pakistan—states, in para 82, that “In a number of Judgments, this Court, in respect of statutory Corporations and Bodies owned or controlled by Government, has held that such Corporations or Bodies are distinct and different from the Government and their employees are not ipso facto in the service of Pakistan.” In this context, the Mobeen-us-salam case further goes on to allude, in the paragraph 85, to two distinct modes of disqualification of a member of Parliament, namely, if “he holds an office of profit in the service of Pakistan…..”,[3] or “he is in service of any statutory body or anybody which is owned or controlled by the Government or in which the Government has a controlling share or interest.”[4] The Judgments goes on to state that despite the apparent redundancy in two clauses/phrases, “redundancy cannot be attributed to a Constitutional provision………This distinction is presumed to be in the knowledge of the Constitution framers in view of the earlier judgment of this court in the case of Chairman East Pakistan Industrial Development Corporation (ibid), wherein it has been held that ‘employees of statutory Corporations are not the Government Servants’….It is important to note that intention of the framer of the Constitution had never been to provide a forum of the Service Tribunal to the employees of the Government controlled Corporations, in terms of section 2-A of the STA, 1973. Had it been so, it could have incorporated the same in Article 212(1)(a) of the Constitution as provided under Article 323A of the Constitution of India.” It is also noteworthy that the clauses i), j) and k) of the Article 63(1) also refer to these two phrases, i.e., “Service of Pakistan” and “Service of a statutory body” distinctly. Therefore, this judgment, on account of the separate reference of these phrases in different clauses of the Article 63(1), goes on to exclude the service of statutory bodies from the ambit of the “Service of Pakistan”, as defined in Article 260 ibid – had the phrase “service of statutory body” not been mentioned separately in these clauses, “Service of Pakistan” would have covered the service of statutory bodies as well.

The Judgment of Mobeen-us-salam actually pertained to ascertaining the vires of the Section 2-A of the Federal Service Tribunal Act, inserted in the year 1997, which section stated that “Service under any authority, corporation, body or organization established by or under a Federal Law or which is owned or controlled by the Federal Government or in which the Federal Government has a controlling share or interest is hereby declared to be service of Pakistan and every person holding a post under such authority, corporation, body or organization shall be deemed to be a Civil servant for the purpose of this Act.” [emphasis provided] A close reading of section 2-A would bring home the point that it almost uses the wordings of the clause e of the Article 63(1)[5]. Apparently, the legislature, whilst incorporating this section, also seemed to be cognizant of the distinction between the phrase “Service of Pakistan” used in the clause d and “any statutory body” in the clause e of the Article 63(1) of the Constitution; and it was to overcome this exclusion of statutory bodies from the ambit of the “Service of Pakistan” that this section was inserted in order to declare the service of these statutory corporations to be “Service of Pakistan”; and later to give the employees of these corporations a remedy in the Service Tribunals.

However, the Supreme Court declared this section partially ultra vires of the Article 240 and 260 of the Constitution, by stating that only the service of those corporations could be declared as “Service of Pakistan, which had statutory rules of service. By implication, if the services of statutory bodies were included within the definition of the “Service of Pakistan”, they could not have non-statutory rules, as per the Article 240. However, on the contrary, such statutory bodies continue to have non-statutory rules, which is only possible, if their service is excluded from the purview of the “Service of Pakistan”.

However, and with due respect to the Judgment rendered in the Mobeen-us-Salam case, it is an axiomatic law settled by the August Supreme Court of Pakistan itself that the statutory bodies themselves are “performing functions in connection with the affair of either the Federation or the provinces”; and thus come within the definition of ‘person’ within the meaning of Article 199 of the Constitution. Therefore, the presumption would be that if these bodies are indeed performing functions in connection with the affairs of Federation/provinces, then their service, posts or offices would also be “service, post or office in connection with the affairs of the Federation or of a Province” – the principle phrase in the definition of the “service of Pakistan” in Article 260 thereof. It would be quite strange to state that these bodies themselves are indeed performing functions in connection with the affairs of the Federation/provinces, but their posts are not related to the affairs of the Federation/provinces.

Further, the Mubeen-us-salam case has solely referred to certain clauses of Article 63 to distinguish between “Service of Pakistan” and “Service of a statutory body”. On the other hand, if the definition of “Service of Pakistan” in Article 260, 240 and 212 is read in context with other Articles of the Constitution including Article 63, a different picture emerges which includes all the statutory bodies within the ambit of “Service of Pakistan”. In this respect, Article 17(2) states: “Every citizen, not being in the service of Pakistan, shall have the right to form or be a member of a political party……” Here the exclusion is only with regards to the “Service of Pakistan”; what if a person is an employee of a statutory body? – it cannot be assumed that he would be allowed to form or be a member of a political party. Similarly, Article 27, whilst providing safeguards against discrimination in services, only refers to ‘service of Pakistan”, which ought to include the service of statutory bodies, in order for the said provisions to apply to them. Article 36, in the same vein, only refers to due representation of minorities “in the Federal and provincial services.” Similarly, Article 37(f) prescribes as one of the duties of the government to make the citizens participate fully in all forms of national activities, “including employment in the service of Pakistan.” Article 38, while alluding to removing disparity, only mentions about “service of Pakistan.” The sub-article g) in this regard goes to the extent of stating that the State shall “ensure that the shares of the Provinces in all Federal services, including autonomous bodies and corporations established by, or under the control of, the Federal Government, shall be secured.” Here, the service of the autonomous bodies etc have specifically been included in the Federal services. Going in the same vein, Article 43(1), Article 103 (1), 168(4), 203-C (9), 206(2), 207(1) & (2), 216(1) & (2), 237, 253 (1) (b), proviso to 271(1)(b) and 273(1)(b) and 275(1), would paint the same picture. Most importantly, Article 168 (4) and 206(2) respectively provide that the Auditor General of Pakistan and a Judge of superior courts shall not be eligible for further appointment in the Service of Pakistan before the expiration of two years after they have ceased to hold their office.  Similarly, vide Article 207(1) and 216(1), the Judges of the superior courts and the Election Commissioner respectively shall not hold any other office of profit in the service of Pakistan. The proviso to Article 203-C (9), whilst referring to Federal Shariat Court, states that where a judge is already drawing a pension of any other post in service of Pakistan, the amount of such pension shall be deducted from the pension admissible under this clause.

On the other hand, there are certain provision of the Constitution in which the “Service of Pakistan” and Federal/Provincial Government on the one hand, and “service of a statutory body” or any other authority on the other hand, have been mentioned separately just like in the Article 63 above. Firstly, Article 27(2) stipulates that “Nothing in clause 1 shall prevent any Provincial Government, or any local or other authority in a Province, from prescribing, in relation to any post or class of service under that Government or authority, conditions as to residence in the Province, for a period not exceeding three years, prior to appointment under that Government or authority.” Secondly, Article, 253(1)(b) prescribes that the Parliament, by law – “declare that any trade, business, industry or service specified in such law shall be carried on or owned……..by the Federal Government, or by a corporation controlled by such Government.” Similarly, as has been mentioned above, Article 63 in it’s the clause d), e), i), j) and k) of sub-article 1 mentions the distinction between “service of Pakistan” and “service of a statutory body”. Suffice is to state, in the light of discussion in the previous paragraph, that Article 27(2), 63 and 253(1)(b) distinguishes between the two phrases as an abundant caution, in order to make sure that the statutory bodies or authorities are not excluded from the ambit of these article, especially from the purview of “Service of Pakistan”; otherwise, statutory bodies indeed are included within the ambit of “Service of Pakistan”.

However, this interpretation of the term “Service of Pakistan” would have its consequences. First of all, Article 240 states that the appointments to and conditions of service of people in service of Pakistan would be determined by or under the Act of the appropriate legislature. If the afore-mentioned interpretation about “Service of Pakistan” is true, then no statutory body ought to be allowed to have non-statutory rules of service.[6] However, on the other hand, there are a plenty of such statutory bodies that have non-statutory rules of service, like Pakistan International Airline Corporation (PIAC)[7]. Similarly, if the afore-mentioned interpretation is true, then there should not have been any necessity to include Section 2-A in the Federal Service Tribunal Act in order to specifically declare that service of statutory bodies would be “Service of Pakistan”.[8]

A similar declaration has been done by virtue of the Section 13(3) of the NHA Act, 1991, whereby the service under the Authority has been declared to be “Service of Pakistan”, and every person holding a post under the Authority shall be deemed to be a “Civil Servant” for the purposes of Service Tribunal Act, 1973. Here, the service under NHA, being a statutory body, was not within the definition of the “Service of Pakistan” as per the prevailing interpretation of this term. However, by virtue of this declaration, it has been declared to be the “Service of Pakistan”, since the service is in connection with the affairs of the Federation, and has statutory rules. Therefore, the Service tribunals should hear the matters pertaining to the terms and conditions of the service of the employees of NHA, whilst referring to the Act, rules and regulations of NHA.

Similarly, the employees of NAB, which is a statutory body[9], established under section 6 of the NAB Ordinance, 1999, do not come within the definition of Service of Pakistan as per the existing definition thereof, unless declared to be so by or under the Act of the Federal Legislature – which has not been done; further, the employees of NAB are not “Civil Servants” either and are governed by virtue of section 28 of the Ordinance and the rules of service made thereunder, i.e., NAB Employees terms and conditions of services, 2002. However, the “Civil Servants” who are employed by the NAB, either by transfer or deputation, would continue to be governed by the Civil Servant Act and rules made thereunder.

Nevertheless, on the basis of above discussion, there is a need to have a larger bench then the one constituted in the Mobeen-us-salam case, which, as per the above discussion, has been rendered in oblivion of the various provisions of the Constitution and thus ought to be declared per incuriam. This would bring the service of statutory bodies within the ambit of “Service of Pakistan”. There would be no need to have service tribunals – whether existing or new – to adjudicate upon the grievances of the employees of these statutory, as Article 212 is non-mandatory in nature in this regard.

Civil Servants

The term ‘civil servants’ is defined by the Civil Servants Act, 1973 and other related provincial legislations; and, therefore, does not owe its origin to any constitutional provision. However, since the preamble of the Act refers to regulation of the terms and conditions of service of persons in the “service of Pakistan”[10], the term “Civil Servant” ought to be related to or a sub-category of the term “Service of Pakistan employed in the Article 260 of the Constitution. A perusal of the Section 2(1)(b)[11], which gives the definition of the “Civil Servants”, would establish that it is a sub-category of the term “Service of Pakistan”, excluding the service of Armed forces, contractual employees, deputationists, and workman; thus leading to the term “Civil” Service of Pakistan, and the holder of this service would then, by implication, be called the “Civil Servant”.

Therefore, where the appointments to and the conditions of service of persons in the service of Pakistan are determined by or under the Civil Servants Act, the employees would be called “Civil Servants”. However, where these terms and conditions are defined by other statutory instruments, i.e., TEVTA Act, 2010, NAB ordinance, 1999; or the rules made thereunder, the employees, apart from not being in the “Service of Pakistan”, could be called ‘non-Civil Servants’.

Applicability of the Public Service Commission on the Statutory bodies

The statute related to the Federal and Provincial service commissions owe their origin to Article 242 of the Constitution, which confers on the appropriate legislature the option of “establishment and constitution of a Public Service Commission” in relation to the affairs of the Federation and that of the provinces respectively. To start with, there is no reference to “service of Pakistan” in these statutes. Therefore, irrespective of the ambit of the definition of “service of Pakistan”, the public service commission may be established under this article in relation to the affairs of the Federation.

In pursuance thereof, the Section 7 of the Ordinance of 1977[12], instead of using the term “service of Pakistan” or “civil servants, mentions the function of the FPSC to, inter alia, conduct tests and examinations for recruitment of persons to All Pakistan Services, the civil services of the Federation and civil posts in connection with the affairs of the Federation in basic pay scales 16 and above or equivalent.[13] It is also worthwhile to note that section 7 supra employs the same language as used in the section 2(1)(b) of the Civil Servant Act, while defining the term “Civil Servants”; as well as the one employed in section 5 of the Act, while referring to the method of appointment. Almost similar wordings are used in the definition of the “Service of Pakistan” used in the Article 260, and article 240 – however, with the exclusion of the word ‘civil’.

Therefore, a plain reading of this section would bring home the point that the provision of the FPSC law ought to apply, if the conditions mentioned in section 7 supra are fulfilled, irrespective of whether the service of the concerned employer comes within the definition of “Service of Pakistan” or not. The actual question that begs for an answer is not whether the service of any statutory body comes within the definition of “service of Pakistan” or not; but it asks whether the posts of any statutory body come within the ambit of ‘civil’ posts mentioned in the section 7 of the FPSC ordinance or not. As for as these bodies themselves are concerned, they indeed are “performing functions in connection with the affairs of the Federation or provinces”, as they come within the definition of the word ‘person’ in the Article 199 of the Constitution; so the only question that requires answer is that whether or not these bodies hold ‘civil’ posts in this regard or not.

This question ought to be answered in the positive in the light of the ratio in 2011 PLC(CS) 103 Supreme Court – a judgment by a five-member bench of the August Supreme Court. This judgment has set up parameters to determine the definition of a “civil post”, i.e, the government has either the power to appoint or it grants funds for that post; and that method to determine the terms and conditions of appointment to that post are statutory. All of these conditions are fulfilled by the posts of all statutory bodies; so their posts ought to be ‘civil posts’ within the meaning of section 7 of the ordinance.

That is why, the acts/ordinances of certain statutory bodies have included the over-riding effects, specifically vis-à-vis the FPSC law, in order to exclude the purview of the federal or provincial public service commissions. An example in this regard is that of the NAB ordinance, which highlights the over-riding effect of the provisions of the NAB ordinance by virtue of the section 3 thereof, including a similar non-obstante clause in the Section 28(g)[14], which excludes the applicability of FPSC, i.e., “notwithstanding anything to contrary contained herein, or in any law for the time being in force”.[15] Such over-riding effect is permitted, even to exclude the jurisdiction of the lower judiciary, which originates from the Article 175 of the Article; just like the respective public service commission originate from Article 242. The inclusion of Section 28(g) would also point to the fact that without it, FPSC law would have been applicable on NAB.

Quite interestingly, the section 7 of the Punjab Public Service Commission Act 1978, read with rule 3 of the PPSC (Functions) Rules, 1978 gives a discretion to the respective statutory bodies to refer any appointments to PPSC. Therefore, the statutory bodies of Punjab need not compulsorily refer their appointments to PPSC.

Conclusion

When the definition of the term “Service of Pakistan” in Article 260 of the Constitution of Islamic Republic of Pakistan, 1973, which covers in its fold all public services, posts and offices, whether civilian or related to defence, is read in juxtaposition with other Articles of the Constitution, it becomes abundantly clear that the reference to the terms “Service of Pakistan” and “Service of statutory bodies” separately in some Articles including Article 63(1) has been made out of abundant caution. Therefore, the famous judgment of Mobeen-us-salaam case, which declared that these two terms are separate and distinct from each other, has been given per incuriam, thus necessitating a ‘review’ by a larger bench of the August Court.

[1] Muhammad Mubeen-Us-Salam v. Federation of Pakistan (PLD 2006 Supreme Court 602).

[2] The Factories ^Act, 1934 or the Workmen’s Compensation Act, 1923.

[3] Clause d of the Article 63(1) of the Constitution of Islamic Republic of Pakistan, 1973.

[4] Clause e of the Article 63(1) ibid.

[5]“…he is in service of any statutory body or anybody which is owned or controlled by the Government or in which the Government has a controlling share or interest.”

[6] The permission to have non-statutory rules of service for statutory bodies would have been there due to the prevailing interpretation of “Service of Pakistan”, which excluded the service of statutory bodies.

[7] Muhammad Mubeen-Us-Salam v. Federation of Pakistan (PLD 2006 Supreme Court 602).

[8] The insertion of Section 2-A would have been done on the basis of the prevailing interpretation of “Service of Pakistan”, which excluded from its ambit the service of statutory bodies.

[9]. The definition of “Person” in the General Clauses Act states that it “shall include any company or association or body of individuals, whether incorporated or not.” Similarly, the meaning of ‘body’, which is a similar term to “person”, would mean that it could include incorporated or un-incorporated bodies. Therefore, a statutory body could be incorporated or not incorporated. NAB has not been incorporated. In this regard, 2016 SCMR 1220 states that for an entity to be described as a ‘statutory body ‘, its birth itself should have been caused by a special statute.

[10]An Act to regulate the appointment of persons to, and the terms and conditions of Service of persons in, the service of Pakistan…..WHEREAS it is expedient to regulate by law, the appointment of persons to, and the terms and conditions of service of persons, in the service of Pakistan, and to provide for matters connected therewith or ancillary thereto.

[11]Section 2(1)(b): “civil servant” means a person who is a member of an All-Pakistan Service or of a civil service of the Federation, or who holds a civil post in connection with the affairs of the Federation, including any such post connected with defence, but does include- (i) a person who is on deputation to the Federation from any Province or other authority; (ii) a person who is employed on contract, or on work-charged basis or who is paid from contingencies; or (iii) a person who is “worker” or “workman” as defined in the Factories Act, (XXV of 1934), or the Workman’s Compensation Act, 1923 (VIII of 1923).

[12] Amended in the year 2005.

[13] The FPSC (Functions) rules, 1978 excludes contracutual employment less than 2 years from its purview.

[14] Included in the year 2002.