PESHAWAR: The civil servants of Khyber Pakhtunkhwa on Tuesday moved the Peshawar High Court against the share of the federal government’s bureaucrats in the provincial posts, insisting that the relevant decades old rules violate the Constitution and federal and provincial laws.

The Provincial Management Services Association (PMSA), Khyber Pakhtunkhwa, filed the petition through its coordinator, Fahad Ikram Qazi, requesting the court to declare the impugned Civil Service of Pakistan (Composition and Cadre) Rules, 1954, a violation of the Constitution and Federal Civil Servants Act 1973, Khyber Pakhtunkhwa Civil Servants Act, 1973, and Civil Servants (Appointment, Promotion and Transfer) Rules, 1973.

The court was also requested to declare unconstitutional all relevant SROs and notifications amending the impugned rules.

PMSA requests PHC to declare relevant rules unconstitutional

The petitioner said the governor general, in consultation with the governors, exercised powers under Article 241 of the Government of India Act, 1935, and issued the Civil Service of Pakistan (Composition and Cadre) Rules, 1954, to reserve certain posts in connection with the affairs of the provinces for the federal civil servants (now the cadre of the Pakistan Administrative Service).

It said the rules remained effective even after the passage of the 1956 and 1962 Constitutions due to the protection given to the Civil Service of Pakistan, but after the inception of the 1973 Constitution and the administrative reforms of 1973, the civil service structure was changed altogether. However, the impugned rules remained there unconstitutionally.

The petitioner said the concept of reserving posts by the federal government in connection with the affairs of the provincial governments was abolished in light of articles 240-242 of the 1973 Constitution, which restricted the federation from encroaching upon or interfering in the affairs of the provincial civil services and posts in connection with the affairs of the provinces.

It added the establishment division had also issued a notification on Mar 12, 2021, unilaterally changing the PAS strength at the expense of the seats and strength of PMS officers of the provinces.

The petitioner sought interim relief from the court in the shape of suspension of the March 12 notification until the final disposal of the petition.

It also prayed the court to declare that the KP Civil Servants Act (KPCSA), 1973, did not recognise nor did it provide for any mode for reserving a post for a federal civil servant.

The petition is filed through a panel of lawyers comprising AliGoharDurrani, Zarak arif Shah and Babar Khan Durrani.

The petitioner contended that the concept of reserving posts was done away with after the enforcement of the 1973 Constitution and the laws created under Article 240 by the Parliament and the KP Assembly regulating the terms and conditions of the Civil Servants.

It added that in 1993, the then caretaker government, whose mandate was to conduct elections, convened a high powered meeting comprising of the interim prime minister and the chief ministers of all Provinces further tried to legitimise and introduced a posts-sharing formula for the federation and provinces, wherein it concluded reservation of sharing of posts for the PAS officers for all major posts of the province.

The petitioner said the impugned rules of 1954 made on the basis of an alleged mutual understanding between the federation and the provinces continued to remain in force despite having no sanctity under the law.

It said the federation and the provinces with mutual understanding had continued the illegal practice of reserving certain posts in connection with the affairs of the province for the federal civil servants despite being unconstitutional and in grave contempt of Supreme Court judgments.

Published in Dawn, September 15th, 2021