FCC rules on bureaucrats' perks

Says rules of business do not grant lifetime benefits

ISLAMABAD:

The Federal Constitutional Court (FCC) ruled that the rules of business do not permit the Balochistan government to grant lifetime benefits to retired chief secretaries or their widows.

"In the impugned notification, the petitioners sought to grant facilities to the retired chief secretaries of Balochistan and their widows for life time. It is important to observe that the referred incumbents have remained civil servants, whose terms and conditions of service are governed under civil servant laws. The pension, being one of the post-retirement benefits, are also governed under the same and their pensionary benefits are worked out accordingly," says judgement authored by FCC Judge Justice Aamer Farooq while upholding the Balochistan High Court's decision in this matter.

"The notification(s) issued by the petitioners, granting extraordinary facilities to the retired Chief Secretaries of the Government of Balochistan, are over and above the pensionary benefits granted to them. The Rules of Business do not empower the government of Balochistan to issue such directions by way of notification, especially when, there is no backing of law," the judgement adds.

A division bench of FCC led by Justice Aamer Farooq heard the matter.

The notification pertaining to the extension of facilities to retired chief secretaries of Balochistan and their widows for life time was challenged before the Balochistan High Court.

The writ petition was allowed and the high court had formed the opinion that the entitlement to perks and privileges for a retired chiefsecretary, or any other public servant, is determined by the laws and regulations of the specific jurisdiction" and "claiming of additional perks and privileges that too without backing of law, rules, regulations, is not permissible because the specific perks and privileges granted to retired chief secretaries are always outlined in the relevant legislation, rules, or policies of the provincial government and these provisions may differ from one jurisdiction to another.

The FCC has noted that a careful review of the Balochistan Rules of Business, 2012 does not support the contention advanced by the Additional Advocate General that these perks and privileges may lawfully be extended to the chief secretary under the rules.

"On the contrary, Rule 3(4) delineates the structure and composition of the Government of Balochistan by distributing its business among various departments, as specified in Schedule-I (Section B). The rule makes it clear that each department is to exercise only those functions that are expressly assigned to it therein. In this context, Schedule-I (Section B) specifically entrusts the Finance Department with the authority to frame civil service rules relating to pension, leave, pay revision, and their interpretation for all government servants.

"This allocation indicates that any matters concerning pensionary benefits, including those of the Chief Secretary, fall within the exclusive domain of the Finance Department, rather than the Chief Secretary himself or even the Chief Minister.

"However, in the present case, the impugned perks and privileges were granted through a notification issued by the Services and General Administration Department, with the approval of the Chief Minister as the competent authority. Such authority is neither contemplated nor supported by the Rules of Business, the action appears to have been taken without proper legal basis.

"Consequently, the notification, having been issued without the requisite competence, was appropriately struck down by the learned High Court."

"We also advert to Balochistan Civil Servants Act, 1974 which provides that "on retirement from service, a civil servant shall be entitled to receive such pension, or gratuity, as may be prescribed", See section 19 of the Balochistan Civil Servants Act, 1974.

"So, this provision of the Act makes civil servants of the Balochistan government, which includes the chief secretary as well, to be subject to such pension or gratuity as may be prescribed. So, pension of civil servant is structured and is not beyond the bounds of the law.

"One is only entitled to such a sum that is permissible by the law. Now, the pension so prescribed is also governed under Balochistan Civil Servants Pension Rules, 1989 which provides for the rules relating to Civil Servants and their pension. The perks and privileges granted to the Chief Secretary find no mention in the Rules either and thus, has no basis in law."

"In the context of Pakistan, no action, whether taken by an individual or any state authority, can be justified unless it is sanctioned by law. Constitution of Pakistan, 1973 through Article 4 encapsulates this understanding of positive law.

"It guarantees that individuals are free to undertake all actions permitted by law, while simultaneously ensuring that no one is restrained from doing what the law does not prohibit, nor compelled to do what the law does not require. This clearly underscores that all actions revolve around the authority of law. Thus, the fundamental tenet of our constitutional governance remains that every exercise of power must be rooted in, and justified by, law."