Sindh Public Service Commission defunct, rules court

SHC finds SPSC Act 1989 ultra vires of Constitution, rules to appoint members, chairperson dubious


Z Ali June 04, 2021
Sindh High Court building. PHOTO: EXPRESS

HYDRABAD:

After carrying out recruitments of public servants for three decades, the Sindh Public Service Commission (SPSC) will now cease to exist following the Sindh High Court’s order, which has established the illegality of the commission, its act and rules.

“All tests, interviews, selection, appointments, tenders or any act doable under SPSC Act 1989 or the rules are suspended forthwith,” reads the 30-page judgment penned down by Justice Zulfiqar Ahmed Khan and Justice Muhammad Saleem Jessar of SHC Hyderabad circuit bench.

“The individuals [chairperson and secretary SPSC] suspended by our order dated April 15, 2021, shall remain so.” The bench stated that the commission has lost every shred of legitimacy and should be brought to a nullity in its present form.

The order has been given in six identical petitions challenging combined competitive exams, 2018, recruitment of 1,783 medical officers and 269 assistant sub-inspectors. The court heard the cases on May 19 and the detailed judgment, which disposed of all the petitions, was issued on Thursday.

The SHC set aside and cancelled the results and proceedings of the CCE-2018 as well as the appointments of 1,783 medical and women medical officers carried out in the light of advertisement dated July 19, 2018. The court also ordered taking off SPSC’s website from the web.

“In the meantime, all new recruitments strictly on merit be made in the same manner as those prior to the enactment of 1989, Act, as if the said act never existed.”

The court found SPSC Act, 1989, ultra vires the Constitution of Pakistan and, likewise, the rules of appointment of chairperson and members as ultra vires the Sindh government rules of business, 1986. The SPSC rules, 1990, in a similar way violated the 1989, Act. The court advised the provincial government to follow the laws and rules of Australia and New Zealand if it wanted to re-enact the commission’s law or to make new rules.

Colonial origins

The court traced the origin of the public service commission in the subcontinent to 1919, when the British regime felt the need to protect the public service from political influence. The law for setting up the commission was enacted the same year as the Government of India Act, 1919, and the commission began to exist from October 1, 1926.

The ordinances to set up the provincial public service commissions in Punjab and Khyber Pakhtunkhwa (K-P) were promulgated in 1978 but it was not until 1989 when the SPSC Act, 1989, was passed. The judgment dwelt at length over the laws and rules, which were made and revised from time to time with regard to the federal and provincial commissions.

Questionable powers

The judgment noted that except Sindh, where the chief minister made appointments of the chairperson and members of the SPSC, governors of the remaining three provinces were vested with the authority for these appointments. Likewise, the country’s president appointed the chairperson and members of the federal public service commission. The terms of offices are three years in Punjab and K-P and five years in Sindh with three years of re-employment in Sindh alone. No age restriction is applied over the chairperson and members in the SPSC.

The court referred to schedule III under rule 5(ii) to point out that the Sindh government is not competent to appoint the chairperson and members of the commission. The bench also referred to a Supreme Court judgment, which had identified that no formal mechanism for appointing chairperson and members has been framed by the provincial government. “… in utter disregard of such de facto disability and in absence of any statutory authority, notifications of such appointments have been made over the years,” the bench noted.

Dubious rules

The court further found a deliberate deviation from following the principle of merit in the SPSC Functions Rules, 1990. The 1989 Act states that the commission shall conduct tests and examinations while the 1990 rules only use the word tests.

“The difference between examination and test is that of a mountain and a rock,” the bench said, referring to separate definition of the two words as provided in the Oxford dictionaries.

The bench stated that bureaucracy used to function more efficiently under Sindh Civil Servants Act, 1973, and Sindh Civil Servants Rules, 1974 and 1975 and half a dozen other similar laws and rules. “The province had been served by honest, qualified and motivated civil servants before 1989 when this institution [SPSC] in its present form was born - according to one view to serve as one-window facility to foster whole-sale corruption.”

Petitions

According to the petitioners Amara Gohar, Asma Makhdoom, Rubina Begum and Naheed Akhtar, SPSC on July 19, 2018, invited applications against 1,783 posts of medical officers and women medical officers. They applied for WMO and sat in the written test on December 9, 2018. However, after qualifying the written test they were declared fail in the subsequent interview. Some 302 MOs and 434 WMOs out of 446 available positions were declared successful for their appointment on January 8, 2019.

The court was apprised that on January 10, 2019, the commission again advertised the same posts albeit the interested candidates were informed that the selection will be carried out only through the interviews.

The petitioners alleged that the candidates, who had previously failed to qualify the written test were selected for the jobs after the interviews, which they alleged smacked of political influence and nepotism.

Makhdoom’s counsel, advocate Sajjad Chandio, argued that the commission violated the apex court’s order by not timely displaying the result of the written test. Advocate Arshad S Pathan, Gohar’s counsel, said his client secured 557 marks in the written test but was given only 94 marks out of 300 in the viva. Whereas, some candidates, who had obtained 400 or less marks qualified for the interview.

A separate petition concerned recruitment over 269 vacancies of assistant sub-inspectors in the police department. The petitioners maintained that the posts were advertised on August 19, 2016. On February 14, 2020, the commission declared 914 candidates as having passed the physical and written tests. On October 20, 2020, 269 candidates among them were declared to have succeeded in qualifying the interviews. But the petitioners alleged that even those candidates who had failed in the physical test were selected for the job.

Another petition challenged transparency in the combined competitive examinations, 2018, conducted by the SPSC. The petitioners Imtiaz Thebo and others maintained that the commission did not provide marks sheet to the candidates who failed to qualify.

Moreover, two categories were made among the qualified candidates - allocated and non-allocated. The latter candidates were also provided their marks sheets belatedly while the former were given priority.

They further contended that some of the qualified candidates obtained almost full marks in their interviews so that after addition of their marks of the written test they may find placement among the top candidates in the merit list.

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