PLD 2013 SC 195
(b) Constitution of Pakistan, 1973, Articles 5 & 184(3)
r/w Civil Servants Act (LXXI of 1973) S.16
It is not in contention 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 advisors in decision making or as administrators and enforces of law, they are not subservient to the political executive. It is their obligation to remain compliant with the Constitution and law. Hence they are not obliged to be servile or unthinkingly submissive to the political executive. One of their prime duties is to give advise in the best public interest and to administer the law impartially being in-charge of the machinery of the State.
We reaffirm that while civil servants do have a duty to follow the policy guidelines and directions of the political executive yet, because of Article 5 of the Constitution, just like other citizens, their foremost duty is “obedience to the Constitution and the law”, not unthinking obedience to all directives (right or wrong) issuing from the political executive. [P. 203] B & C
(g) Constitution of Pakistan, 1973, Articles 5 & 184(3)
r/w Civil Servants Act (LXXI of 1973) S. 16
D- On the matter of obeying illegal ordrs from superiors
In Syed Nazar Abbas Jafri v. Secretary to the Government of the Punjab and another (2006 SCMR 606), this Court held that the duty of public officers is to independently discharge their functions and not be influenced by “dictatorial misuse of powers” at the hands of political figures. The Court has also emphasized that the appointments and removal of civil servants is not to be politically motivated. Province of Punjab v. Azhar Abbas (2002 SCMR 1). These decisions highlighted the concept of a civil service which enjoys certain legal protections and is thus capable of performing its envisioned role as a law-enforcing institution.
The compliance of illegal orders of superiors is not justified on the basis of having been issued from higher authority as it is the law and Constitution which must be obeyed. Here it would be relevant to cite the judgment of this Court in Samiullah Khan Marwat v. Government of Pakistan (2003 SCMR 1140) where it was stated: “…… the exercise of powers by the public functionaries in derogation to the direction of law would amount to disobey[ing] the command of law and the Constitution….” Furthermore, in the case of Iqbal Hussain v. Province of Sindh (2008 SCMR 105) the court held that “the compliance of any illegal and arbitrary order is neither binding on the subordinate forums nor valid in the eyes of law.” In case the subordinates are directed to implement an illegal order “they should put on record their dissenting note” Human Rights Cases Nos. 4668 of 2006, 1111 of 2007 and 15283-G of 2010 (PLD 2010 SC 759). Similarly, illegal orders cannot be defended on the plea that these could expose the concerned government servant to the rish of disciplinary action. Zahid Akhtar v. Government of Punjab (PLD 1995 SC 530).
Illegal orders: Civil servants owe their first and foremost allegiance to the law and the Constitution. They are not bound to obey orders from superiors which are illegal or are not in accordance with accepted practices and rule based norms; instead, in such situation, they must record their opinion and, if necessary, dissent. [pp. 208, 210] K & P
(i) Constitution of Pakistan, 1973, Articles 189, 190 & 204(2)(a)
r/w Civil Servants Act (LXXI of 1973) S. 16
Specific to the law relating to civil servants and matters in respect of their service, we have enunciated a principle of law in the case titled Hameed Akhtar Niazi v. The Secretary Establishment Division (1996 SCMR 1185) holding that a decision given by this Court on a point of law will be binding on concerned departmental functionaries who will be obliged to apply such legal principle in other similar cases regardless of whether or not a civil servant has litigated the matter in his own case. We are conscious that in some instances the application of a legal principle enunciated in a precedent may be possible without difficulty or ambiguity, while in other cases there may be some uncertainty in determining if a legal principle is in fact applicable as precedent. It is, however, clear that in view of Articles 189 and 190 of the Constitution, a civil servant will be entitled to make a departmental representation or initiate legal proceedings before a competent forum to enforce a legal principle enunciated by this Court.
In appropriate cases the failure of a State functionary to apply a legal principle which is clearly and unambiguously attracted to a case, may expose him to proceedings also under Article 204(2)(a) of the Constitution. [p. 209]M