AD Khowaja symbol of strength for otherwise politicised bureaucracy

[ahlam1399]

AD Khowaja symbol of strength for otherwise politicised bureaucracy

ISLAMABAD: Sindh Inspector General of Police (IGP) AD Khowaja has emerged as a symbol of strength for the otherwise highly politicised civilian bureaucracy of the country after he refused to dance to the tunes of political masters and yet succeeded in securing his tenure by challenging his illegal transfer order in the court of law.

In several Supreme Court judgments, the judiciary has been encouraging the civil servants **t to follow the illegal dictates of the rulers or superiors. The judiciary through its judgment provided protection to upright and honest government servants from arbitrary transfer but AD Khowaja is a rarity to get help from the courts. Generally civil servants in all the provinces and at the centre don’t fight against their illegal transfers and become rolling stones.

During the last a few months, AD Khowaja twice successfully resisted his premature removal by challenging the misuse of authority of the provincial chief executive. Since successive rulers, both military and democratic, have contributed furthering the politicisation of the civilian bureaucracy, government servants are in such a sorry state of affairs that premature and arbitrary transfers and postings on the whims and wishes of the political master has become a routine.

Regrettably, hardly anyone dare to challenge such illegal orders of the executive despite the presence of clear judgments securing protection of tenure for the civil servants. Anita Turab case judgment, handed down by the Supreme Court a few years back, is considered landmark to protect the bureaucrats from being used as slaves or personal servants by their superiors or rulers.

In Anita Turab case, the Supreme Court had ruled, “When the ordinary tenure for a posting has been specified in the law or rules made thereunder, such tenure must be respected and can**t be varied, except for compelling reasons, which should be recorded in writing and are judicially reviewable.”

In the same case, the apex court also referred to Haj corruption case where it was also held, “the **rmal period of posting of a government servant at a station, according to Rule 21 of the Rules of Business is three years, which has to be followed in the ordinary circumstances, unless for reason or exigencies of service a transfer before expiry of the said period becomes necessary in the opinion of the competent authority”.

With regard to transfers of civil servants, the court clearly stated that transfers by political figures which are capricious and are based on considerations **t in the public interest are **t legally sustainable.

While reputed senior police ******rs are presently being targeted by the provincial political elite, the SC had reminded all and sundry that civil servants are public servants and are, therefore, meant to take decisions only in accordance with law in the public interest.

“In their capacity as advisers in decision making or as administrators and enforcers of law, they are **t subservient to the political executive,” the SC said in Anita Turab case, adding that it is government servants’ obligation to remain compliant with the Constitution and law.

In the Anita Turab case, the SC laid down the following principles to save the government servants from politicisation:

i). Appointments, Removals and Promotions: Appointments, removals and promotions must be made in accordance with the law and the rules made thereunder; where ** such law or rule exists and the matter has been left to discretion, such discretion must be exercised in a structured, transparent and reasonable manner and in the public interest.

ii). Tenure, posting and transfer: When the ordinary tenure for a posting has been specified in the law or rules made thereunder, such tenure must be respected and can**t be varied, except for compelling reasons, which should be recorded in writing and are judicially reviewable.

iii). Illegal orders: Civil servants owe their first and foremost allegiance to the law and the Constitution. They are **t bound to obey orders from superiors which are illegal or are **t in accordance with accepted practices and rule based **rms; instead, in such situations, they must record their opinion and, if necessary, dissent.

iv). OSD: ******rs should **t be posted as OSD except for compelling reasons, which must be recorded in writing and are judicially reviewable. If at all an ******r is to be posted as OSD, such posting should be for the minimum period possible and if there is a disciplinary inquiry going on against him, such inquiry must be completed at the earliest.

The SC said that although it is conscious that the aforesaid matters relate to decision making and administration of the machinery of the state, we have recognised the need for ensuring that decision making in relation to tenure, appointments, promotions and transfers remains rule based and is **t susceptible to arbitrariness or absolute and unfettered discretion.

As per the same judgment, the copies of the judgment were sent to the Establishment Division federal secretary, the chief secretaries of the provinces, the commissioner Islamabad Capital Territory and to the secretaries of all federal and provincial government departments.

This landmark judgment has been overlooked by the authorities concerned for all practical purposes.







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