The recent promulgation of the Civil Servants (Directory Retirement from Service) Rules 2020 (the rules) has the potential to weaken bureaucracy as it hits the age-old principle of ‘security of tenure’ of civil servants. The intention of the government to ensure efficiency in civil service notwithstanding, the operation of these rules would be problematic considering the politicisation of civil service in Pakistan.
The rules authorise the government to retire civil servants anytime. Section 2(1-C) defines ‘conduct unbecoming’ of a civil servant broadly: “conduct unbecoming” means the conduct on the part of a civil servant that is contrary to public interests, or which harms his standing or the standing of the civil service in the eyes of the public, or which is contrary to any prescribed law, rules, procedures, instructions and includes inefficiency on his part necessitating his directory retirement under these rules,” without defining public interest.
Section 5 stipulates grounds for the retirement of a civil servant. It provides that a civil servant shall be recommended for ‘directory retirement’ under the rules, who (a) has earned average performance evaluation reports (PERs) or adverse remarks have been recorded in three or more PERs from three different officers, for a period not less than six months and have attained-finality after appeal there against, if any, (b) has been twice recommended for supersession by the Central Selection Board (CSB), Departmental Selection Board (DSB) or Departmental Promotion Committee (DPC), as the case may be, or twice not recommended for promotion by the High Powered Selection Board and such recommendations have been approved by the appointing authority and the matter has attained finality, (c) has been found guilty of corruption or has entered into plea bargain or voluntary return with National Accountability Bureau or any other investigating agency, (d) has been on more than one occasion placed in category ‘C’ by the CSB, DSB or, as the case may be, DPC under the Civil Servants Promotion (BPS-18 to BPS-21) Rules, 2019; or (e) has conduct unbecoming. I will explain how these grounds are sweeping and subjective.
Based on these grounds, a retirement board constituted under Section 3 is empowered to recommend early retirement of a civil servant in BPS-20 and above. Likewise, a retirement committee formed under Section 4 is mandated to propose premature retirement of a civil servant in BPS 19 and below.
The government claims that these rules would enhance the performance of the civil servants. However, critical analysis of the rules shows otherwise. The terms like ‘public interest’, ‘harms standing of the civil service’, ‘inefficiency’, and ‘average performance’ are vague and interpretable. In an environment when NAB is allegedly making false cases for political victimisation, the excessive use of imprecise terms in the rules can be exploited, misused or misinterpreted to victimise those officers who refuse to fall in the line. Hence, these rules are inherently flawed and fatal for the independence of civil servants.
The civil service in Pakistan lacks expected neutrality and independence. S. M. Zafar, a senior lawyer, in his recently published book History of Pakistan Reinterpreted states: “Unfortunately, by the political interference and later due to bureaucracy abdicating its neutrality…the image of bureaucracy in the public mind is unfavourable. They are looked upon as…servants of the rulers. The image of the office as the servant of the people is not yet well-developed.”
Quoting from another book Ultimate Crime, he states, “Once the work ethics of neutrality of police…is undermined…it soon turned into a tool of oppression and tyranny.”
Given the compromised position and politicisation of our civil service, the rules would further dilute the institution of civil service. It would make the bureaucracy vulnerable to political exploitation and revenge. The ‘security of the tenure’ is the only shield that protects civil servants from political onslaught and interference. It enables them to say no to those who want to use civil service as machinery for victimisation. The security of tenure allows them to uphold the rule of law. The removal of the security of the tenure would, thus, make the survival of the civil servants’ dependent on the pleasure of politicians. It would shake the entire edifice of governance in Pakistan.
The performance of civil servants can be effectively regulated under the existing rules such as the Government Servants (Efficiency and Discipline) Rules, 1973. The lacuna in the civil service laws could have been removed by amending those laws through a proper procedure involving consultation in the parliament. In any case, the performance of civil servants can be improved within the existing legal framework provided it is enforced without subjective considerations. Making new rules, without promoting merit and neutrality in the civil service and objective application of the existing rules, creates a sense of insecurity amongst the civil servants and weakens the civil service.
In short, the promulgation of indefinite and arbitrary rules in a politically-charged environment provide unfettered power to rulers or their cronies, resulting in the damaging of the civil institutions. The subject rules provide an unbridled power to the government and offend the due process of the law envisaged under Article 10-A of the constitution. How can it be ensured that these rules shall not be misused and the due process of law not avoided to punish ‘selected’ civil servants? More specifically, how can it be made sure that a ground of ‘plea bargaining’ under section 5 (c) of the rules shall not be created to retire non-compliant civil servants?
Any effort to enhance the efficiency of civil servants should be appreciated; however, an attempt to control civil servants must be resisted. The rules appear to tame the civil servants in the guise of regulation and improvement of civil service. Thus, these rules need to be revised to save the institution of civil service and promote good governance in Pakistan.
The writer is an advocate in the Supreme Court of Pakistan
The rules authorise the government to retire civil servants anytime. Section 2(1-C) defines ‘conduct unbecoming’ of a civil servant broadly: “conduct unbecoming” means the conduct on the part of a civil servant that is contrary to public interests, or which harms his standing or the standing of the civil service in the eyes of the public, or which is contrary to any prescribed law, rules, procedures, instructions and includes inefficiency on his part necessitating his directory retirement under these rules,” without defining public interest.
Section 5 stipulates grounds for the retirement of a civil servant. It provides that a civil servant shall be recommended for ‘directory retirement’ under the rules, who (a) has earned average performance evaluation reports (PERs) or adverse remarks have been recorded in three or more PERs from three different officers, for a period not less than six months and have attained-finality after appeal there against, if any, (b) has been twice recommended for supersession by the Central Selection Board (CSB), Departmental Selection Board (DSB) or Departmental Promotion Committee (DPC), as the case may be, or twice not recommended for promotion by the High Powered Selection Board and such recommendations have been approved by the appointing authority and the matter has attained finality, (c) has been found guilty of corruption or has entered into plea bargain or voluntary return with National Accountability Bureau or any other investigating agency, (d) has been on more than one occasion placed in category ‘C’ by the CSB, DSB or, as the case may be, DPC under the Civil Servants Promotion (BPS-18 to BPS-21) Rules, 2019; or (e) has conduct unbecoming. I will explain how these grounds are sweeping and subjective.
Based on these grounds, a retirement board constituted under Section 3 is empowered to recommend early retirement of a civil servant in BPS-20 and above. Likewise, a retirement committee formed under Section 4 is mandated to propose premature retirement of a civil servant in BPS 19 and below.
The government claims that these rules would enhance the performance of the civil servants. However, critical analysis of the rules shows otherwise. The terms like ‘public interest’, ‘harms standing of the civil service’, ‘inefficiency’, and ‘average performance’ are vague and interpretable. In an environment when NAB is allegedly making false cases for political victimisation, the excessive use of imprecise terms in the rules can be exploited, misused or misinterpreted to victimise those officers who refuse to fall in the line. Hence, these rules are inherently flawed and fatal for the independence of civil servants.
The civil service in Pakistan lacks expected neutrality and independence. S. M. Zafar, a senior lawyer, in his recently published book History of Pakistan Reinterpreted states: “Unfortunately, by the political interference and later due to bureaucracy abdicating its neutrality…the image of bureaucracy in the public mind is unfavourable. They are looked upon as…servants of the rulers. The image of the office as the servant of the people is not yet well-developed.”
Quoting from another book Ultimate Crime, he states, “Once the work ethics of neutrality of police…is undermined…it soon turned into a tool of oppression and tyranny.”
Given the compromised position and politicisation of our civil service, the rules would further dilute the institution of civil service. It would make the bureaucracy vulnerable to political exploitation and revenge. The ‘security of the tenure’ is the only shield that protects civil servants from political onslaught and interference. It enables them to say no to those who want to use civil service as machinery for victimisation. The security of tenure allows them to uphold the rule of law. The removal of the security of the tenure would, thus, make the survival of the civil servants’ dependent on the pleasure of politicians. It would shake the entire edifice of governance in Pakistan.
The performance of civil servants can be effectively regulated under the existing rules such as the Government Servants (Efficiency and Discipline) Rules, 1973. The lacuna in the civil service laws could have been removed by amending those laws through a proper procedure involving consultation in the parliament. In any case, the performance of civil servants can be improved within the existing legal framework provided it is enforced without subjective considerations. Making new rules, without promoting merit and neutrality in the civil service and objective application of the existing rules, creates a sense of insecurity amongst the civil servants and weakens the civil service.
In short, the promulgation of indefinite and arbitrary rules in a politically-charged environment provide unfettered power to rulers or their cronies, resulting in the damaging of the civil institutions. The subject rules provide an unbridled power to the government and offend the due process of the law envisaged under Article 10-A of the constitution. How can it be ensured that these rules shall not be misused and the due process of law not avoided to punish ‘selected’ civil servants? More specifically, how can it be made sure that a ground of ‘plea bargaining’ under section 5 (c) of the rules shall not be created to retire non-compliant civil servants?
Any effort to enhance the efficiency of civil servants should be appreciated; however, an attempt to control civil servants must be resisted. The rules appear to tame the civil servants in the guise of regulation and improvement of civil service. Thus, these rules need to be revised to save the institution of civil service and promote good governance in Pakistan.
The writer is an advocate in the Supreme Court of Pakistan