A
writ petition in public interest under Article 32 of the Constitution of India
praying for issuance of writ of mandamus or any other writ, order or direction
to the Union of India regarding extension in service to senior officers after
superannuation was rejected by a bench presided by the chief justice of India
Friday.
The
petition raised by IPS doyen Prakash Singh and argued by legal eagle Harish
Salve contended that “the issue of a serious perception of a compromise in the
independence of the civil service, at its highest levels, caused by practice in
vogue of appointing, at high positions, officers from the civil service having
a short tenure of service remaining, to a post that carries a fixed tenure well
beyond the retirement age, or by appointed such senior officers, immediately
after retirement from a post-retiral assignment.”
This, as per the petition which was reviewed by this columnist, “creates a serious apprehension as to the independence of such officers from the political executive – which independence is one of the basic features of our Constitution.”
Singh is a retired officer of the Indian Police Service who served the country with distinction including in Punjab, Jammu & Kashmir, UP, Assam and Nagaland, and held top positions in the police hierarchy like director general of police, UP, director general of police, Assam and director general of the Boarder Security Force (BSF), and that he was awarded Padma Shri in 1991 for his contribution to national security.
Being a public spirited citizen, Singh had, in the past, occasion to approach the SC, through a public interest litigation, to reform and reorganise the police forces of India with a view to insulting them from external influences and giving meaning to the citizens’ rights under Article 21 of the Constitution.
The resulting landmark judgment of the Apex Court in Prakash Singh & Ors. Vs. Union of India & Ors. [Writ Petition (Civil) No. 310 of 1996] has potential to transform the Indian police into an instrument of service to the people as it lays down the guidelines necessary for achievement of the Constitutional guarantees under Part III.
This time Singh had contended that the existing provisions regarding grant of specified tenure to those holding the positions of cabinet secretary, defence secretary, home secretary, director of the Intelligence Bureau, secretary, Research & Analysis Wing and director, Central Bureau of Investigation – in the government of India, as postulated in Ministry of Personnel, Public Grievances and Pensions (Department of Personnel and Training) Notification dated May 29, 2006, “are being grossly abused in a manner contrary to the object and purpose underlying the grant of such fixed tenure to senior officers”.
“Officers with only a few months of service are being selected for top assignments and officers holding these top positions with fixed tenures are then given assignments by the Government soon after their retirement (in some cases even a couple of months before retirement. The general rule, as to appointment of officers to posts having fixed tenures, is to select those who have sufficient period of service remaining prior to their retirement, with the exception being made where a deserving officer falls short of the fixed tenure, and the appointment of such officer is in public interest. Where officers are regularly appointed in a manner so as to result in extension of their service, it creates, it is submitted, an apprehension of compromise of independence of such officers in the discharge of their duties.
“Senior officers holding the highest positions in the bureaucracy and central police organizations, who are not in jobs with fixed tenures, are also being given post-retirement jobs soon after their retirement. This post-retirement assignment, given immediately after demitting a sensitive office in government, clearly creates a potential conflict and a reasonable apprehension of compromise of independence of such officer.”
“It is now commonplace to see senior officers join the private sector in sectors with which they have had official dealings while occupying the highest positions in the civil services. It is necessary, it is submitted, in the interest of fairness and integrity, that no civil servant, who has dealt with a private organization in his official capacity in a given period prior to his retirement, should, for a defined period, be permitted to take up any assignment of profit with such private establishment.”
Accordingly, Singh had submitted that “such practices are subverting the objectivity and integrity of the civil service as also the police service insofar as it is widely believed, and for good reason, that some officers, while holding the top positions, start looking for post-retirement berths and, in the process, take decisions as per the wishes of the political class irrespective of whether those decisions are in public/national interest or not. In any event, where an office is so favored by either the government or a private organisation, there arises a reasonable and serious apprehension of bias and of conflict of interest in the discharge of his duties”.
He pleaded that in the Vineet Narain & Others Vs. Union of India, the apex court directed that the Director, CBI shall have a minimum tenure of two years regardless of the date of his superannuation.
Subsequently, the SC, in its judgment in Writ Petition (Civil) No. 310 of 1996, Prakash Singh & Others Vs. Union of India & Others, among other things, laid down the procedure for the selection of director general of police, and stated that once he had been selected for the job he would have a minimum tenure of two years irrespective of his superannuation.
The government of India, in their office memo No. 26012/6/2002-Estt. (A) dated December 9, 2002 issued instructions regarding grant of extension/re-employment to central government servants beyond the age of superannuation.
It was stated therein that “in the absence of specific orders to the contrary by the competent authority, a Government servant must retire on the due date”.
The Ministry of Personnel, Public Grievances and Pensions’ by Notification dated May 29, 2006 substituted the fourth proviso to clause (d) in Rule 56 of the Fundamental Rules by the following:
“Provided also that notwithstanding anything contained in any rule, the Central Government may, if considered necessary in public interest so to do, give extension in service to a Cabinet Secretary in the Central Government for such period or period as it may deem proper subject to the condition that his total term as such Cabinet Secretary does not exceed three years:
Provided also that the Central Government may, if considered necessary in public interest so to do, give extension in service to the Defence Secretary, Home Secretary, Director of the intelligence Bureau, Secretary, Research and Analysis Wing and Director, Central Bureau of Investigation, in the Central Government for such period or periods as it may deem proper, on a case to case basis, subject to the condition that the total term of such Secretaries or Directors, as the case may be, who are given such extension in service under this rule does not exceed two years.”
In terms of the above notifications, the Central Government took upon itself, when it considered necessary in public interest, grant an extension of term to certain senior officers holding positions vital to protecting and preserving India’s security interests, namely the defence secretary, home secretary, DIB, Secretary RAW and Director CBI.
Singh submitted Friday that “it cannot be gainsaid that these officers discharge duties of great sensitivity. They are also bound to serve the country in a manner that is not subservient to the political executive, where they are required by the political executive to do [or omit from doing] something that is either contrary to the Constitution or the laws, or to act in a manner that is unfair or biased”.
“Some of the recent reports of the CAG, and the judgments of this Hon'ble Court demonstrate that the alleged wrongdoings were, in the least, on account of failure of the civil service to assert its independence.”
The instances in recent times, he contended, are telecom scandal, commonly known as the 2G Scam; the allegations contained the CAG report relating to the misadventures in the allocation of coal; and the allegations relating to aberrations in the defence procurement process, including allegations relating to the acquisition of helicopters.
“The functions to be carried out by the said individuals required that they take any and all necessary action deemed necessary for the protection of India’s security interests against domestic and foreign threats, uninfluenced by extraneous factors such as political expediency, and [dealing with allegations of commission of criminal offences] ensure the highest levels of investigation in all cases.
“It cannot be gainsaid that the political executive enjoys an enormous amount of discretion in exercise of their executive powers. However, the role of the civil service is also clearly delineated, in that while framing policy is the domain of the political executive, acting in a manner that is consistent with the Rules of Business, and in accordance with established procedures, the laws, and the Constitution, is the duty of the civil service. In this manner, the Constitution has created checks and safeguards on the exercise of what is otherwise a discretionary power of wide amplitude. In order to ensure that this safeguard operates effectively, securing the independence of the Civil service is a constitutional fundamental.
“In order to secure the independence of those affording security of tenure to such individuals would act as a safeguard against officers being induced to toe the line of the political executive.
“In an analogous context, i.e., of senior public servants holding positions vital to the country’s internal security interests, this Hon’ble Court has in the past given directions ensuring security of tenure to the Director CBI and Directors General of State Police so that they discharge their duties without undue political interference or consideration of extraneous factors. The objective behind the directions of this Hon’ble Court in the Vineet Narain and Others Vs. Union of India and Prakash Singh and Others Vs. Union of India was essentially two-fold:
…to give the incumbents security of tenure so that they could, within that period, function effectively with a reasonably long term perspective; and to enable the incumbents to function fearlessly in public interest without being bothered about being removed or shifted prematurely for extraneous considerations.”
Singh reminded the apex court that it has placed its directions in the above-mentioned cases on the touchstone of Article 21 of the Constitution. Also, that “it is a well-established position of law that Part III of the Constitution of India affords to every citizen a guarantee of probity in public administration and an assurance of optimal state action aimed at ensuring the personal safety of citizens. Ensuring independent action by state functionaries tasked with the protection of India’s security interests is thus a Constitutional imperative. The directions issued by this Hon’ble Court have been with a view to ensuring that state action is consistent with this Constitutional guarantee”.
“Thus the notification dated 29.5.2006 issued by the Ministry of Personnel providing for grant of extensions on a ‘case to case basis’ confers unfettered discretion on the Central Government to ‘favour’ or ‘penalize’ individuals holding the above-named positions by extending or restricting their tenure. Beyond stipulating that the decision be in public interest (as all state action must doubtless be) it fails to articulate the basis on which and the material to be considered in deciding whether individuals holding these positions are to be granted an extension of tenure. There would be a temptation under these circumstances on the part of these senior officers, namely the Cabinet Secretary, Defence Secretary, Home Secretary, DIB, Secretary RAW and Director CBI to please the establishment so as to get the extension. There is a reasonable apprehension that the objectivity and independence would stand compromised in such a situation,” Singh had argued.
“The notification will provide a basis for arbitrary action by the Central Government, which would be exercised in favor of officers who are pliable and are inclined to toe the government line. It is a well-established position of law that any provision conferring such arbitrary and unfettered discretion is violative of Articles 14 and 21 of the Constitution. It is further submitted that heightened judicial scrutiny of the vires of the present provision is warranted in the present case, keeping in view the fundamental importance of the functions discharged by the said individuals for the peace and security of the State.”
Singh therefore submitted that “a further practice that has proven gravely detrimental to probity in public administration and thus violative of the constitutional guarantee under Part III is that of offering appointments to various governmental and quasi judicial bodies to freshly superannuated government servants in the IAS and IPS cadres. Offering such post-retirement appointments to senior government servants along with the salary and perquisites attendant thereto raises a serious apprehension that such posts are being held out as inducements by the political executive to obtain the unquestioning compliance of these senior officials even when the same is inconsistent with the larger public interest.”
He submitted that “this practice is irreconcilable with independent decision-making by government servants and raises an apprehension that senior officials tasked with undertaking crucial functions may be lured by the post-retirement largesse held out by the political executive and therefore be more pliant to the detriment of discharge of their duties. While it is desirable that the expertise of senior government officials can be utilized in the national interest in certain positions, such appointments have become the rule rather than the exception and are demonstrably used to reward officials who have toed the government line unquestioningly. Aside from the fact that most governmental and quasi-judicial bodies as well as PSUs are now inundated with retired (and often aged) former IAS and IPS officers, matters have come to a point where denying such post-retirement opportunities to a senior government official is viewed almost as a punitive measure. The apprehension of abuse of such post-retirement opportunities has proven to be borne out in practice as well; in fact, in some cases posts hitherto unknown have been created solely to accommodate a newly superannuated IAS/IPS officer.”
Singh cited several instances for this:
IAS OFFICERS
Information elicited under the RTI Act and published in The Indian Express on July 09, 2012 shows “How Retd Babus never Retire,” which reads as follows:
“Information accessed by The Indian Express, including through the RTI Act, shows a disproportionately large number of retired IAS and IPS officers, and to a smaller extent those retired from services such as revenue, foreign, postal and audits and accounts, appointed to government and quasi-government bodies. Details of nearly 90 such appointments made in recent years show these civil servants being parked as governors, information commissioners, and as heads or members of a slew of bodies such as the Union Public Service Commission (UPSC), the National Commission for Minorities (NCM), Central Information Commission, National Consumer Disputes Redressal Commission and the Central Administrative Tribunal (CAT). Most of these posts enjoy the rank of secretary to the government of India or above. In case of some officers, new positions have been created to accommodate them”.
b) Secretary (Personnel) in Government of India is assured of post-retirement bonanza. In this context, a news-item published in the Indian Express of July 11, 2012 was cited showing how ten out of the eleven Secretaries (Personnel) since 1998 were all accommodated just ahead of or immediately after superannuation.
c) IAS officers have also cornered most of the independent Directors’ position in the PSUs. In this context, as per the news-item published in The Indian Express of July 10, 2012.
d) Retired bureaucrats have also grabbed the post of Secretary General in the Rajya Sabha and the Lok Sabha. The news item published in The Indian Express of July 12, 2012 was cited.
The petitioner contended that one home secretary (VK Duggal, though not named in the petition), ever since his retirement, has been hopping from one job to another. Soon after his retirement in 2007, he was appointed member of the Commission on Centre-State Relations where he served for three years. After the Commission submitted its report, he was appointed member of the Committee for Consultations on the Situation in Andhra Pradesh to look into the demand of statehood for Telengana. Once the Commission finished its work, he was made member, Task Force on National Security in the National Security Council Secretariat. After the Task Force submitted its report, he is now member, National Disaster Management Authority (NDMA).
POLICE OFFICERS
Some specific instances cited by the petitioner were:
“One Director of CBI, in less than three months after his retirement, was posted as Member, National Human Rights Commission, where he served for two tenures (more than 8 years).
“Another Director CBI, who conducted himself unprofessionally, especially in the 1984 riots case which continues to cause heartburn among the Sikh community, has recently been appointed Governor of a State.
“One Secretary of Research and Analysis Wing was appointed to that post when he had only a few months of service left.
“One Director, Intelligence Bureau was appointed Governor of a State within a month of his retirement.
“The Director General of the National Investigating Agency was posted as Member, National Human Rights Commission nearly six months before his retirement.
Singh pleaded that the instances enumerated above are not with a view to impugn the said appointments or meant as any criticism of either the incumbent or the government in relation to a specific appointment, “but with a view to demonstrate that a larger institutional malaise exists which is eroding public confidence in government administration and is inimical to the high standards of probity in public administration that Part III of our Constitution demands”.
He reiterated that the present petition “seeks directions aimed at systemic reform rather than seeking relief against specific appointments or individuals. Some of the appointees are officers of outstanding calibre and perhaps it was in the fitness of things that the Government utilized their services after retirement. The point at issue is the misuse of the provision regarding fixed tenure by the Centre in a manner which vitiates the spirit behind the laying down of such a provision, and the message these appointments give to the senior officers at the top level.”
“The perception is undeniable that the government has been ‘dangling’ the proverbial carrot of post-retirement benefit to the senior-most officers, and this perception inevitably would affect the objectivity and even the integrity of the civil service. They take crucial decisions affecting the department they are heading – the reasonable apprehension is that this is done in keeping with the wishes of the political executive, and these decisions may or may not be in public interest.”
“It is submitted that this Hon’ble Court may be pleased to issue appropriate directions to remedy the egregious and ongoing violation of one of the fundamental facets of the rule of law, viz the independence of the civil service, and thereby a violation of Art. 14 of the Constitution. The Petitioner submits in this context that a period of secure tenure of two years or any provision whereby extension is given to a senior officer should be subject to the following conditions:
…that the incumbent should have substantial and specified term remaining, the extension of his term post the normal retiral age being minimal;
that after the incumbent superannuates at the end of the prescribed/fixed tenure given to him, he should be debarred from holding any assignment under the government for a specified period of at least two years;
that officers should not be allowed to join private sectors with which they had official dealings in their highest positions for a period of at least two years after their retirement.
The petitioner pleaded that the SC issue a writ in the nature of mandamus or any other appropriate writ, direction or declaration, directing that no civil servant who has less than at least 12 months [or any other period considered appropriate] of service ahead of him be ordinarily appointed to a post which has a prescribed minimum tenure of two years;
…issue a writ in the nature of mandamus or any other appropriate Writ, direction or declaration directing that no Civil Servant who has held the rank of a Secretary or Additional Secretary of any Government (Central or State) or above, be given any further extension of period of service [beyond a few months or such period considered appropriate by this Hon'ble Court] nor should such Government Officer be considered for any post under the Central or State Government or in any public sector undertaking in which the Central or the State Government have a financial interest for a period of two years after superannuation or such period considered appropriate by this Hon'ble Court; and
…issue a writ in the nature of mandamus or any other appropriate Writ, direction or declaration, declaring that that the Circular dated May 29, 2006 issued by the Ministry of Personnel, Public Grievances and Pensions Notification, to the extent it does not conform to the principles necessary to secure the independence of the Civil Service set out hereinbefore is illegal, null and void;
issue a writ in the nature of mandamus or any other appropriate Writ, direction or declaration directing that no senior Civil Servant (of the rank of Joint Secretary and above) be permitted to take employment in a private sector undertaking dealing with matters with which the officer had official dealings while in service, for a period of two years after his retirement.
While this public-spirited petition was thrown out, there are obvious implications whether the judiciary has betrayed nervousness about dozens of post-retiral jobs that routinely fall in their lap across states and the Union.
This, as per the petition which was reviewed by this columnist, “creates a serious apprehension as to the independence of such officers from the political executive – which independence is one of the basic features of our Constitution.”
Singh is a retired officer of the Indian Police Service who served the country with distinction including in Punjab, Jammu & Kashmir, UP, Assam and Nagaland, and held top positions in the police hierarchy like director general of police, UP, director general of police, Assam and director general of the Boarder Security Force (BSF), and that he was awarded Padma Shri in 1991 for his contribution to national security.
Being a public spirited citizen, Singh had, in the past, occasion to approach the SC, through a public interest litigation, to reform and reorganise the police forces of India with a view to insulting them from external influences and giving meaning to the citizens’ rights under Article 21 of the Constitution.
The resulting landmark judgment of the Apex Court in Prakash Singh & Ors. Vs. Union of India & Ors. [Writ Petition (Civil) No. 310 of 1996] has potential to transform the Indian police into an instrument of service to the people as it lays down the guidelines necessary for achievement of the Constitutional guarantees under Part III.
This time Singh had contended that the existing provisions regarding grant of specified tenure to those holding the positions of cabinet secretary, defence secretary, home secretary, director of the Intelligence Bureau, secretary, Research & Analysis Wing and director, Central Bureau of Investigation – in the government of India, as postulated in Ministry of Personnel, Public Grievances and Pensions (Department of Personnel and Training) Notification dated May 29, 2006, “are being grossly abused in a manner contrary to the object and purpose underlying the grant of such fixed tenure to senior officers”.
“Officers with only a few months of service are being selected for top assignments and officers holding these top positions with fixed tenures are then given assignments by the Government soon after their retirement (in some cases even a couple of months before retirement. The general rule, as to appointment of officers to posts having fixed tenures, is to select those who have sufficient period of service remaining prior to their retirement, with the exception being made where a deserving officer falls short of the fixed tenure, and the appointment of such officer is in public interest. Where officers are regularly appointed in a manner so as to result in extension of their service, it creates, it is submitted, an apprehension of compromise of independence of such officers in the discharge of their duties.
“Senior officers holding the highest positions in the bureaucracy and central police organizations, who are not in jobs with fixed tenures, are also being given post-retirement jobs soon after their retirement. This post-retirement assignment, given immediately after demitting a sensitive office in government, clearly creates a potential conflict and a reasonable apprehension of compromise of independence of such officer.”
“It is now commonplace to see senior officers join the private sector in sectors with which they have had official dealings while occupying the highest positions in the civil services. It is necessary, it is submitted, in the interest of fairness and integrity, that no civil servant, who has dealt with a private organization in his official capacity in a given period prior to his retirement, should, for a defined period, be permitted to take up any assignment of profit with such private establishment.”
Accordingly, Singh had submitted that “such practices are subverting the objectivity and integrity of the civil service as also the police service insofar as it is widely believed, and for good reason, that some officers, while holding the top positions, start looking for post-retirement berths and, in the process, take decisions as per the wishes of the political class irrespective of whether those decisions are in public/national interest or not. In any event, where an office is so favored by either the government or a private organisation, there arises a reasonable and serious apprehension of bias and of conflict of interest in the discharge of his duties”.
He pleaded that in the Vineet Narain & Others Vs. Union of India, the apex court directed that the Director, CBI shall have a minimum tenure of two years regardless of the date of his superannuation.
Subsequently, the SC, in its judgment in Writ Petition (Civil) No. 310 of 1996, Prakash Singh & Others Vs. Union of India & Others, among other things, laid down the procedure for the selection of director general of police, and stated that once he had been selected for the job he would have a minimum tenure of two years irrespective of his superannuation.
The government of India, in their office memo No. 26012/6/2002-Estt. (A) dated December 9, 2002 issued instructions regarding grant of extension/re-employment to central government servants beyond the age of superannuation.
It was stated therein that “in the absence of specific orders to the contrary by the competent authority, a Government servant must retire on the due date”.
The Ministry of Personnel, Public Grievances and Pensions’ by Notification dated May 29, 2006 substituted the fourth proviso to clause (d) in Rule 56 of the Fundamental Rules by the following:
“Provided also that notwithstanding anything contained in any rule, the Central Government may, if considered necessary in public interest so to do, give extension in service to a Cabinet Secretary in the Central Government for such period or period as it may deem proper subject to the condition that his total term as such Cabinet Secretary does not exceed three years:
Provided also that the Central Government may, if considered necessary in public interest so to do, give extension in service to the Defence Secretary, Home Secretary, Director of the intelligence Bureau, Secretary, Research and Analysis Wing and Director, Central Bureau of Investigation, in the Central Government for such period or periods as it may deem proper, on a case to case basis, subject to the condition that the total term of such Secretaries or Directors, as the case may be, who are given such extension in service under this rule does not exceed two years.”
In terms of the above notifications, the Central Government took upon itself, when it considered necessary in public interest, grant an extension of term to certain senior officers holding positions vital to protecting and preserving India’s security interests, namely the defence secretary, home secretary, DIB, Secretary RAW and Director CBI.
Singh submitted Friday that “it cannot be gainsaid that these officers discharge duties of great sensitivity. They are also bound to serve the country in a manner that is not subservient to the political executive, where they are required by the political executive to do [or omit from doing] something that is either contrary to the Constitution or the laws, or to act in a manner that is unfair or biased”.
“Some of the recent reports of the CAG, and the judgments of this Hon'ble Court demonstrate that the alleged wrongdoings were, in the least, on account of failure of the civil service to assert its independence.”
The instances in recent times, he contended, are telecom scandal, commonly known as the 2G Scam; the allegations contained the CAG report relating to the misadventures in the allocation of coal; and the allegations relating to aberrations in the defence procurement process, including allegations relating to the acquisition of helicopters.
“The functions to be carried out by the said individuals required that they take any and all necessary action deemed necessary for the protection of India’s security interests against domestic and foreign threats, uninfluenced by extraneous factors such as political expediency, and [dealing with allegations of commission of criminal offences] ensure the highest levels of investigation in all cases.
“It cannot be gainsaid that the political executive enjoys an enormous amount of discretion in exercise of their executive powers. However, the role of the civil service is also clearly delineated, in that while framing policy is the domain of the political executive, acting in a manner that is consistent with the Rules of Business, and in accordance with established procedures, the laws, and the Constitution, is the duty of the civil service. In this manner, the Constitution has created checks and safeguards on the exercise of what is otherwise a discretionary power of wide amplitude. In order to ensure that this safeguard operates effectively, securing the independence of the Civil service is a constitutional fundamental.
“In order to secure the independence of those affording security of tenure to such individuals would act as a safeguard against officers being induced to toe the line of the political executive.
“In an analogous context, i.e., of senior public servants holding positions vital to the country’s internal security interests, this Hon’ble Court has in the past given directions ensuring security of tenure to the Director CBI and Directors General of State Police so that they discharge their duties without undue political interference or consideration of extraneous factors. The objective behind the directions of this Hon’ble Court in the Vineet Narain and Others Vs. Union of India and Prakash Singh and Others Vs. Union of India was essentially two-fold:
…to give the incumbents security of tenure so that they could, within that period, function effectively with a reasonably long term perspective; and to enable the incumbents to function fearlessly in public interest without being bothered about being removed or shifted prematurely for extraneous considerations.”
Singh reminded the apex court that it has placed its directions in the above-mentioned cases on the touchstone of Article 21 of the Constitution. Also, that “it is a well-established position of law that Part III of the Constitution of India affords to every citizen a guarantee of probity in public administration and an assurance of optimal state action aimed at ensuring the personal safety of citizens. Ensuring independent action by state functionaries tasked with the protection of India’s security interests is thus a Constitutional imperative. The directions issued by this Hon’ble Court have been with a view to ensuring that state action is consistent with this Constitutional guarantee”.
“Thus the notification dated 29.5.2006 issued by the Ministry of Personnel providing for grant of extensions on a ‘case to case basis’ confers unfettered discretion on the Central Government to ‘favour’ or ‘penalize’ individuals holding the above-named positions by extending or restricting their tenure. Beyond stipulating that the decision be in public interest (as all state action must doubtless be) it fails to articulate the basis on which and the material to be considered in deciding whether individuals holding these positions are to be granted an extension of tenure. There would be a temptation under these circumstances on the part of these senior officers, namely the Cabinet Secretary, Defence Secretary, Home Secretary, DIB, Secretary RAW and Director CBI to please the establishment so as to get the extension. There is a reasonable apprehension that the objectivity and independence would stand compromised in such a situation,” Singh had argued.
“The notification will provide a basis for arbitrary action by the Central Government, which would be exercised in favor of officers who are pliable and are inclined to toe the government line. It is a well-established position of law that any provision conferring such arbitrary and unfettered discretion is violative of Articles 14 and 21 of the Constitution. It is further submitted that heightened judicial scrutiny of the vires of the present provision is warranted in the present case, keeping in view the fundamental importance of the functions discharged by the said individuals for the peace and security of the State.”
Singh therefore submitted that “a further practice that has proven gravely detrimental to probity in public administration and thus violative of the constitutional guarantee under Part III is that of offering appointments to various governmental and quasi judicial bodies to freshly superannuated government servants in the IAS and IPS cadres. Offering such post-retirement appointments to senior government servants along with the salary and perquisites attendant thereto raises a serious apprehension that such posts are being held out as inducements by the political executive to obtain the unquestioning compliance of these senior officials even when the same is inconsistent with the larger public interest.”
He submitted that “this practice is irreconcilable with independent decision-making by government servants and raises an apprehension that senior officials tasked with undertaking crucial functions may be lured by the post-retirement largesse held out by the political executive and therefore be more pliant to the detriment of discharge of their duties. While it is desirable that the expertise of senior government officials can be utilized in the national interest in certain positions, such appointments have become the rule rather than the exception and are demonstrably used to reward officials who have toed the government line unquestioningly. Aside from the fact that most governmental and quasi-judicial bodies as well as PSUs are now inundated with retired (and often aged) former IAS and IPS officers, matters have come to a point where denying such post-retirement opportunities to a senior government official is viewed almost as a punitive measure. The apprehension of abuse of such post-retirement opportunities has proven to be borne out in practice as well; in fact, in some cases posts hitherto unknown have been created solely to accommodate a newly superannuated IAS/IPS officer.”
Singh cited several instances for this:
IAS OFFICERS
Information elicited under the RTI Act and published in The Indian Express on July 09, 2012 shows “How Retd Babus never Retire,” which reads as follows:
“Information accessed by The Indian Express, including through the RTI Act, shows a disproportionately large number of retired IAS and IPS officers, and to a smaller extent those retired from services such as revenue, foreign, postal and audits and accounts, appointed to government and quasi-government bodies. Details of nearly 90 such appointments made in recent years show these civil servants being parked as governors, information commissioners, and as heads or members of a slew of bodies such as the Union Public Service Commission (UPSC), the National Commission for Minorities (NCM), Central Information Commission, National Consumer Disputes Redressal Commission and the Central Administrative Tribunal (CAT). Most of these posts enjoy the rank of secretary to the government of India or above. In case of some officers, new positions have been created to accommodate them”.
b) Secretary (Personnel) in Government of India is assured of post-retirement bonanza. In this context, a news-item published in the Indian Express of July 11, 2012 was cited showing how ten out of the eleven Secretaries (Personnel) since 1998 were all accommodated just ahead of or immediately after superannuation.
c) IAS officers have also cornered most of the independent Directors’ position in the PSUs. In this context, as per the news-item published in The Indian Express of July 10, 2012.
d) Retired bureaucrats have also grabbed the post of Secretary General in the Rajya Sabha and the Lok Sabha. The news item published in The Indian Express of July 12, 2012 was cited.
The petitioner contended that one home secretary (VK Duggal, though not named in the petition), ever since his retirement, has been hopping from one job to another. Soon after his retirement in 2007, he was appointed member of the Commission on Centre-State Relations where he served for three years. After the Commission submitted its report, he was appointed member of the Committee for Consultations on the Situation in Andhra Pradesh to look into the demand of statehood for Telengana. Once the Commission finished its work, he was made member, Task Force on National Security in the National Security Council Secretariat. After the Task Force submitted its report, he is now member, National Disaster Management Authority (NDMA).
POLICE OFFICERS
Some specific instances cited by the petitioner were:
“One Director of CBI, in less than three months after his retirement, was posted as Member, National Human Rights Commission, where he served for two tenures (more than 8 years).
“Another Director CBI, who conducted himself unprofessionally, especially in the 1984 riots case which continues to cause heartburn among the Sikh community, has recently been appointed Governor of a State.
“One Secretary of Research and Analysis Wing was appointed to that post when he had only a few months of service left.
“One Director, Intelligence Bureau was appointed Governor of a State within a month of his retirement.
“The Director General of the National Investigating Agency was posted as Member, National Human Rights Commission nearly six months before his retirement.
Singh pleaded that the instances enumerated above are not with a view to impugn the said appointments or meant as any criticism of either the incumbent or the government in relation to a specific appointment, “but with a view to demonstrate that a larger institutional malaise exists which is eroding public confidence in government administration and is inimical to the high standards of probity in public administration that Part III of our Constitution demands”.
He reiterated that the present petition “seeks directions aimed at systemic reform rather than seeking relief against specific appointments or individuals. Some of the appointees are officers of outstanding calibre and perhaps it was in the fitness of things that the Government utilized their services after retirement. The point at issue is the misuse of the provision regarding fixed tenure by the Centre in a manner which vitiates the spirit behind the laying down of such a provision, and the message these appointments give to the senior officers at the top level.”
“The perception is undeniable that the government has been ‘dangling’ the proverbial carrot of post-retirement benefit to the senior-most officers, and this perception inevitably would affect the objectivity and even the integrity of the civil service. They take crucial decisions affecting the department they are heading – the reasonable apprehension is that this is done in keeping with the wishes of the political executive, and these decisions may or may not be in public interest.”
“It is submitted that this Hon’ble Court may be pleased to issue appropriate directions to remedy the egregious and ongoing violation of one of the fundamental facets of the rule of law, viz the independence of the civil service, and thereby a violation of Art. 14 of the Constitution. The Petitioner submits in this context that a period of secure tenure of two years or any provision whereby extension is given to a senior officer should be subject to the following conditions:
…that the incumbent should have substantial and specified term remaining, the extension of his term post the normal retiral age being minimal;
that after the incumbent superannuates at the end of the prescribed/fixed tenure given to him, he should be debarred from holding any assignment under the government for a specified period of at least two years;
that officers should not be allowed to join private sectors with which they had official dealings in their highest positions for a period of at least two years after their retirement.
The petitioner pleaded that the SC issue a writ in the nature of mandamus or any other appropriate writ, direction or declaration, directing that no civil servant who has less than at least 12 months [or any other period considered appropriate] of service ahead of him be ordinarily appointed to a post which has a prescribed minimum tenure of two years;
…issue a writ in the nature of mandamus or any other appropriate Writ, direction or declaration directing that no Civil Servant who has held the rank of a Secretary or Additional Secretary of any Government (Central or State) or above, be given any further extension of period of service [beyond a few months or such period considered appropriate by this Hon'ble Court] nor should such Government Officer be considered for any post under the Central or State Government or in any public sector undertaking in which the Central or the State Government have a financial interest for a period of two years after superannuation or such period considered appropriate by this Hon'ble Court; and
…issue a writ in the nature of mandamus or any other appropriate Writ, direction or declaration, declaring that that the Circular dated May 29, 2006 issued by the Ministry of Personnel, Public Grievances and Pensions Notification, to the extent it does not conform to the principles necessary to secure the independence of the Civil Service set out hereinbefore is illegal, null and void;
issue a writ in the nature of mandamus or any other appropriate Writ, direction or declaration directing that no senior Civil Servant (of the rank of Joint Secretary and above) be permitted to take employment in a private sector undertaking dealing with matters with which the officer had official dealings while in service, for a period of two years after his retirement.
While this public-spirited petition was thrown out, there are obvious implications whether the judiciary has betrayed nervousness about dozens of post-retiral jobs that routinely fall in their lap across states and the Union.
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