Corridor's 9/11 Office Memorandum: 10 things about firing of bureaucrats

CALL it the corridor's 9/11 office memorandum (OM). If the Central government has its way, the OM dated September 11, 2015 could form the basis of firing bureaucrats when they attain the age of 50 years, or complete 30 years of service. The government has resorted to various rulings of none other the Supreme Court of India in formulating the strategies to weed out the "dead woods". But there is an apprehension that the newly-crafted review mechanism may checkmate good officers not willing to toe the government line. Here are 10 things you may like to know about compulsory retirement of government employees -- from a peon to secretary:

1. Can a bureaucrat be asked to go while in service? Yes, there are existing rules regarding this. But now the government in a recent office memorandum (dated September 11, 2015) talks about strengthening of the periodical review of compulsory retirement for government servants under FR 56(j) and Rule 48 of CCS (Pension) Rules, 1972.
2. Forget the nomenclature of these rules. What it means is as follows: The government will now strictly review the performance of the bureaucrats who attain the age of 50 years or complete 30 years in service, whichever early. And in case, they are found to be “dead wood”, they would be asked to leave the service by giving a three-month notice period.
3. An office memorandum dated March 21, 2014 (UPA time) also talked about periodical review of officers and firing the non-performers, but the reality is there is no such live example as yet. The job security continues to be a premium for government service.
4. The government is resorting to the following observations of the Supreme Court made in 2001 in the case called State of Gujarat Vs. Umedbhai M Patel:
a) Whenever the services of a public servant are no longer useful to the general administration, the officer can be compulsorily retired for the sake of public interest.
b) Ordinarily, the order of compulsory retirement is not to be treated as a punishment coming under Article 311 of the Constitution.
c) “For better administration, it is necessary to chop off dead wood, but the order of compulsory retirement can be passed after having due regard to the entire service record of the officer."
d) Any adverse entries made in the confidential record shall be taken note of and be given due weightage in passing such order.
e) Even un-communicated entries in the confidential record can also be taken into consideration.
f) The order of compulsory retirement shall not be passed as a short cut to avoid departmental enquiry when such course is more desirable.
g) If the officer was given a promotion despite adverse entries made in the confidential record, that is a fact in favour of the officer.
h) Compulsory retirement shall not be imposed as a punitive measure.
5. The government while issuing the office memorandum also talked about another Supreme Court judgement named S Ramachandra Raju vs. State of Orissa. The OM said: “As far as integrity is considered, the following observations of the Hon'ble Supreme Court may, while upholding compulsory retirement in a case, may be kept in view”. The SC in that case said: “The officer would live by reputation built around him. In an appropriate case, there may not be sufficient evidence to take punitive disciplinary action of removal from service. But his conduct and reputation is such that his continuance in service would be a menace to public service and injurious to public interest.” This is a 21-year-old verdict (1994).
6. The OM further said that there may be cases where actions taken by the employee “do not appear to be above board” and “complaints are received against him”, or there may be “suspicious property transactions”, but there are no sufficient evidences to initiate departmental proceedings. But such cases may find fit for compulsory retirement. The OM here refers to the judgement of the Apex Court in the case of K Kandaswamy (1966 batch Tamil Nadu cadre IPS) (K Kandaswamy vs Union Of India, 1996). “There were persistent reports of Shri Kandaswamy acquiring large assets and of his getting money from his subordinates. He also indulged in property transactions which gave rise to suspicion about his bonafides. The Hon'ble Supreme Court upheld his compulsory retirement under provisions of the relevant Rules”, said the OM.
7. The government also says that reports of conduct of unbecoming of a government servant may also form basis for compulsory retirement. This is here the OM refers to another Supreme Court ruling (State of UP and Others vs Vijay Kumar Jain, 2002). It said: “If conduct of a government employee becomes unbecoming to the public interest or obstructs the efficiency in public services, the government has an absolute right to compulsorily retire such an employee in public interest”.
8. So, the bigger question that comes is who will decide whether a public servant becomes “unbecoming of public interests”. The government has now decided to reconstitute review panels which will be different in case of different ranks.
a) In case of officers holding Group A posts: Review committee may be headed by the secretary of the ministry/department concerned as cadre controlling authority.
b) In case of non-ACC appointees: where there are boards viz CBDT, CBEC, Railway Board, Postal Board, Telecom Commission, etc. the review committee may be headed by the chairman of such board.
c) Where no such boards/commissions exist, the review committee may be headed by secretary of the ministry or the department.
d) In case of Group B (Gazetted) officers: additional secretary or joint secretary level officer will head the review committee.
e) In the case of non-gazetted employees: An officer of the level of joint secretary will head the committee.
f) In case the appointing authority is lower in rank than a joint secretary, then an officer of the level of director/deputy secretary will be the head the review panel.
g) In the case of non-gazetted employees in other than centralized cadres, head of department/head of the organization shall decide the composition of the review committee.
9. CVO in the case of gazetted officers, or his representative in the case of non-gazetted officers, will be associated in case of record reflecting adversely on the integrity of any employee, the OM said. The secretary of the ministry/department is also empowered to constitute internal committees to assist the review committees in reviewing the cases. According to the OM, these committees will ensure that the service record of the employees being reviewed, along with a summary bringing out all relevant information, is submitted to the cadre authorities at least three months before the due date of review.
10. The bigger concern that remains unattended however is the safeguard against political vendetta. Many of the above-mentioned provisions are so subjective (where perception may matter more than evidence) there is a concern that this could be misused for firing good officers not willing to toe the government line.