Is the FR 56J a real threat to CG employees or not view by Com P.S.Prasad working President COC Karnataka.

 

 

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 8^th 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 8^th 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.