ISLAMABAD-The Islamabad High Court (IHC) Wednesday turned down a petition of civil servants belonging to Provincial Management Service (PMS) challenging the competence of the federal government to nominate and appoint officers against the post of chief secretary in the respective provinces.
A single bench of IHC comprising Chief Justice of IHC Justice Athar Minallah conducted hearing of the petition and dismissed the petition filed by Tariq Mahmood Awan and other officers of PMS of different provinces through their counsel Umer Ijaz Gillani Advocate. The petitioners stated that they are civil servants and they belong to the Provincial Management Services of the respective provinces. They invoked the jurisdiction of this court under Article 199 of the Constitution of the Islamic Republic of Pakistan challenging the competence of the Federal Government to nominate and appoint officers against the post of “Chief Secretary” in the respective provinces. They contended that the post of “Chief Secretary” was created under the respective Provincial Rules of Business and, therefore, the Federal Government is not competent to appoint and pursuant thereto notify officers of All Pakistan Unified Group against the said post. During the hearing, the court asked from the counsel that whether the provincial governments have raised this matter with the Federal Government as a grievance. The counsel stated that the petitioners have repeatedly filed representations but the provincial governments have not responded thereto.
However, he stressed that the petitioners have challenged the actions of the Federal Government in their personal capacity because vested rights are being infringed.
The court noted in its verdict, that the learned counsel has been heard and the record perused with his able assistance and the petitioners belong to the “Provincial Management Services” of the respective provinces.
It added that admittedly, they had raised their grievances before the respective provincial governments but the latter do not appear to be aggrieved because none of them have approached the competent forums established under the Constitution for resolving disputes between a provincial government and the Federal Government. “In essence, the grievance of the petitioners is in the nature of a dispute between the provincial governments and the Federal Government. There are various forums provided under the Constitution, such as the Council of Common Interest, which affords an opportunity to the provincial governments to raise their grievances. There are informal means for settling disputes among the Governments. Sub Article (1) of Article 184 explicitly provides that “the Supreme Court shall, to the exclusion of every other Court, have original jurisdiction in any dispute between any two or more Governments.” It is obvious that the framers of the Constitution have prescribed a constitutional mechanism for settling disputes between two or more governments,” observed Justice Athar. The IHC Chief Justice said, “If disputes cannot be resolved through formal or informal forums, then the forum for adjudication is the apex Court. This jurisdiction is exclusive and thus a High Court is not competent to entertain a matter having the characteristics of a dispute between two or more governments. As a corollary, only a government would be eligible to be treated as an aggrieved person for raising a dispute of such nature.”
He maintained that it is settled law that what cannot be done directly can also not be done indirectly. The bench added, “In view of the above discussion, the petitioners are not competent Wto indirectly raise a grievance which has the characteristics of a dispute between two or more governments. Moreover, such a grievance can only be raised by one of the provincial governments and that too by invoking the exclusive jurisdiction of the august Supreme Court under Article 184(1) of the Constitution.  Therefore, the IHC bench dismissed the petition because the prayers sought therein are not justiciable before this Court. Moreover, posting/transfer of an officer as “Chief Secretary” of a province is an executive function warranting exercise of restraint.