Fundamental Rules 56(j), 56(l) and Rule 48 of
Central Civil Services (Pension) Rules 1972 is it a real threat to Central
Government employees or not a view by Com P.S.Prasad working President COC
Karnataka.
Periodic Review of Central Government Employees for strengthening of
administration under Fundamental Rule (FR) 560)1(l) and Rule 48 of CCS
(Pension) Rules, 1972 the latest orders issued on 8th August 2020
issued by DoPT has raised the many questions, doubts and fear
amongst the Central Government employees especially amongst the trade union
activist .
About
the rule:
As
per FR 56 (j) Group A and B officers who entered service before the age of 35
years can be prematurely retired in the public interest, on attaining the age
of 50 years or more. If the officer has entered service after 35 years of age,
he can be prematurely retired from service in the public interest on attaining
the age of 55 years or more.
As
per FR 56(l) an employee belonging to Group-C service or post who is not
governed by any pension Rules, can be prematurely retired from service in the
public interest after he has completed 30 years of service.
Rule
48(i)(b) of CCS (Pension) Rules 1972 empowers the appropriate authority to
prematurely retire in the public interest, at any time after a Government
servant has completed 30 years qualifying service. Before compulsorily retiring
an official under these rules, three months show cause notice is to be served.
If the authority wants the employee to be retired immediately, three months
salary is to be paid in lieu of three month’s show cause notice.
Now let us discuss about
the process of premature retirement :
a)
The list of persons
who have completed 50/55 years of age or 30 years’ service of service is
collected by the lower level office and sent to head office along with
following documents and kept in a register . Along with the Annual Performance and
Appraisal Report (APAR) of last five years will be taken into
consideration which includes Integrity report,
leave records for the last 5 years, EOL , Medical leave etc.
Which are the important
factors which the Central Government employees should be careful:
1) The most important
aspect is that Annual Performance and
Appraisal Report (APAR)
report, The importance of APAR is in the interest of
service and also of the officer. His work, conduct, character and capabilities
can be accurately judged from the recorded opinion, A two tier system of
reporting has been provided to minimise the operation of subjective human
element and conscious/unconscious bias in reporting ie Reporting officer and Reviewing Officer. Adverse remarks are to
be communicated within a period of one month from the date they are recorded,
which should be done within one month of the expiry of the report period.
2) There is no
specified bench marks mentioned, generally good or 5 or higher grading is required.
The non-performance employee will be shortlisted by the committee.
3) The integrity part
is also important a general good behaviour at work spot is sufficient, which is
reflected in the Annual Performance and
Appraisal Report (APAR), general written as
integrity beyond doubt.
4) The leave records
of the employee which includes EOL, medical leave, the habitual employee who
have been on continuous leave will be shortlisted by the committee.
If
the above Annual Performance and Appraisal Report (APAR)
is
good along with leave records then nothing to worry. If employee APAR grading is not good and
habitual habit of taking leave then that case will be referred to the committee
for consideration.
Participating
in trade union activities:
The participating in trade union activities
doesn’t attract any adverse effect on the employee as the associations are
recognised by the Government of India, right of expression is the fundamental
right.
Two fundamental rights of
the citizen of India are as follows.
1) Right to Protest: In India, fundamental rights are considered a
very essential component of the basic structure of the constitution which
cannot be violated in any case. These fundamental rights protect the rights of
the citizens and provide remedies in case of its infringement.
2) Freedom of speech is a principle that
supports the freedom of an individual or a community to articulate
their opinions and ideas without fear of retaliation, censorship, or legal
sanction.
Constitution Rights:
Article 10 protects your right to hold your own opinions and to express
them freely without government interference. This includes the right to express
your views aloud (for example through public protest and demonstrations) or
through: published articles, books or leaflets television or radio broadcasting
The right to protest peacefully is enshrined in the Indian
Constitution—Article 19(1)(a) guarantees the freedom of speech and expression;
Article 19(1)(b) assures citizens the right to assemble peaceably and without
arms.
The latest orders issued
on 8th August 2020 issued by DoPT
states all cases shall be examined by the committee as per the Broad Criteria to be followed by the Review
Committee:
Composition of Review and Representation Committee:
The
concerned Secretary of the Cadre Controlling Authority (CCA) will constitute
Review Committees of two members at appropriate level as under :-
(i)
In case of
officers holding Group A posts :- Review Committee shall be headed by the
Secretary of the concerned CCA. Where there are Boards viz CBDT, CBEC, Railway
Board, 3 Postal Board, Telecom Commission etc, the Review Committee shall be
headed by the Chairman of such Board.
(ii)
In case of Group B (Gazetted) officers :-
Additional Secretary/Joint Secretary level officer shall head the Review
Committee.
(iii)
In the case of
Non-Gazetted employees :- (a) An officer of the level of Joint Secretary will
head the Committee. However, 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.
Broad Criteria to be followed by the Review Committee :-
The broad criteria to be followed by the
Review Committee while making the recommendations are as follows:-
(i)
Government
servants whose integrity is doubtful, shall be retired.
(ii)
Government servants found to be ineffective
shall also be retired. The basic consideration in identifying such Government
servants should be their fitness/competence to continue in the post held.
(iii)
No Government servant should ordinarily be
retired on ground of ineffectiveness, if, in any event, he would be retiring on
superannuation within a period of one year from the date of consideration of
his case. However, in a case where there is a sudden and steep fall in the
competence, efficiency or effectiveness of a Government servant, it would be
open to review such a case also for premature retirement. The said instruction
of not retiring the Government servant within one year on the ground of
ineffectiveness except in case of sudden and steep fall in his performance is
relevant only when he is proposed to be retired on the ground of
ineffectiveness, but not on the ground of doubtful integrity.
(iv)
No Government servant should ordinarily be
retired on ground of ineffectiveness, if, his service during the preceding 5
years or where he has been promoted to a higher post during that 5 year period,
his service in the highest post, has been found satisfactory. There is no such
stipulation, however, where the Government servant is to be retired on grounds
of doubtful integrity. In case of those Government servants who have been
promoted during the last 5 years, the previous entries in the ACRs may be taken
into account if he was promoted on the basis of seniority cum fitness, and not
on the basis of merit.
(v)
The entire service
record of a Government servant should be considered at the time of review. The
expression 'service record' refers to all relevant records and therefore, the
review should not be confined to the consideration of the ACR/APAR dossier. The
personal file of the Government servant may contain valuable material.
Similarly, his work and service.
Before
deciding to retire an official prematurely, the recommendations of the “review
committee” constituted under these rules, should be obtained by the Appointing
authority. An employee who receive three months show cause notice or immediate
retirement orders, can file a representation requesting to review the orders
before the “Representation Committee” duly constituted by each department,
within three weeks from the date of service of notice or order. The basic
consideration in identifying such employee should be the fitness/competence of
the employee to continue in the post which he/she is holding.
Representation against Premature
Retirement :-
After
issue of the orders of premature retirement, the concerned Government servant
may put up representation for orders otherwise, within three weeks from the
date of service of such notice / order and the matter may be placed before
Representation Committee along with
fresh input, if any. The examination of the representation should be completed
by the Cadre Authorities within two weeks from the date of receipt of
representation. The Representation Committee considering the representation
shall make its recommendations within two weeks from the date of receipt of the
reference from the Cadre Authorities concerned and the Appropriate/Appointing
Authority should pass its orders within two weeks from the date of receipt of
the recommendations of Representation Committee.
Supreme Court
Judgements:
There
are various Supreme Court Judgements in this regards.
In
case of K. Kandaswamy vs Union Of India & Anr, 1996 AIR 277, 1995 SCC (6)
162 is relevant here. In this case, the apex court upheld the decision of the
Government and held that:- "The rights - constitutional or statutory -
carry with them corollary duty to maintain efficiency, integrity and dedication
to public sen/ice. Unfortunately, the latter is being overlooked and neglected
and the former unduly gets emphasised. The appropriate Government or the
authority would, therefore, need to consider the totality of the facts and
circumstances appropriate in each case and would form the opinion whether
compulsory retirement of a Government employee would be in the public interest.
The opinion must
be based on the material on record; otherwise it would amount to arbitrary or
colourable exercise of power."
In
the judgement in the case of UOI & Col. J.N.Sinha [1571 SCR (1) 791], the
Hon'ble Supreme Court had not only upheld the validity of FR 56(j), but also
held that no show-cause notice needs to be issued to any Government servant
before a notice of retirement is issued to him under the aforesaid provisions.
The Apex Court held that — "Now coming to the express words of Fundamental
Rule 560), it says that the appropriate authority has the absolute right to
retire a government servant if it is of the opinion that it is in the public
interest to do so. The right conferred on the appropriate authority is an absolute
one. That power can be exercised subject to the conditions mentioned in the
rule.' one of which is that the concerned authority must be of the opinion that
it is in public interest to do so. If that authority
bona fide forms that opinion, the correctness of that opinion cannot be
challenged before courts. It is open to an aggrieved party to contend that the requisite
opinion has not been formed or the decision is based on collateral grounds or
that it is an arbitrary decision."
As
far as integrity is concerned, the following observations of the Hon'ble
Supreme Court in the case of S Ramchandra Raju vs State of Orissa {(1 994) 3
SCC 424}, while upholding compulsory retirement in the case, may be kept in
view: "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 sen/ice would be a menace to public service and
injurious to public interest. The entire service record
or character rolls or confidential reports maintained would furnish the
backdrop material for consideration by the Government or the Review Committee
or the appropriate authority. On consideration of the totality of the
facts and circumstances alone; the Government should form the opinion that the
Government officer needs to be compulsorily retired from service. Therefore, the entire record more particularly, the latest,
would form the foundation for the opinion and furnish the base to exercise the
power under the relevant rule to compulsorily retire a Government
officer."
Conclusions :
1)
The committee will consider the entire service records of
the concerned employee before arriving at a decision to premature retirement.
2)
The employee has to perform his assigned duties allocated
to him for which he is employed.
3)
The Government (committee) cannot take unilateral action
on premature retirement without proper records. As it can be challenged at a
later date.
4)
If an employee is performing his assigned duties, then
they need not fear of premature retirement.
5)
Participating in
trade union activities doesn’t attract any provisions of premature
retirement.
