In furtherance of good governance

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Civil servant independence in the country is at best nominal. Nonconformity even to spurn whimsical and arbitrary directives received from above is widely recognised as a very risky proposition

The right to judicial remedies … is a constitutional right of the subjects … Employees of the State cannot become members of a different class to whom such right is not available. — Justice J. Chelameswar and Justice A.K. Sikri of the Supreme Court of India (September 22, 2014) in Vijay Shankar Pandey vs Union of India and Another.

Amid the din raised over the case involving the All India Anna Dravida Munnetra Kazhagam (AIADMK) leader J. Jayalalithaa, an important and recent ruling by the Supreme Court of India in an entirely different domain has gone virtually unnoticed. This judgment was in the cause of good public administration, a sector vital to economic development. The message that the top court possibly wanted to send through its order was that an honest civil servant can bank on the Court if blatant injustice has been done to him or her by an unfair executive.

Black money case
The judgment possibly took cognisance of the fact that over the years, the Indian bureaucracy has become a spineless structure that cannot stand up to unethical pressures by the Executive or the moneyed in society, thereby belying the worthy dream of Sardar Vallabhbhai Patel, free India’s first Home Minister. It was the doughty Sardar’s vision and resoluteness that ensured that efforts in some quarters in post-Independence India to abolish the centrally recruited and overseen All India Services did not succeed. The nation has greatly benefited from the continuance of the Indian Administrative Service (IAS) and the Indian Police Service (IPS) in particular. Certain events since 1975, viz., the period post-Emergency, have however been the cause for dismay among those who have been looking for a professional, honest and independent civil service that would bolster an equally dedicated political class. It is against this backdrop that one should analyse the recent Supreme Court decision.

It all began in 2010 when V.S. Pandey, a senior IAS officer, Uttar Pradesh cadre, joined hands with Julio Ribeiro, the former police chief, and a few others, under the auspices of a non-governmental organisation-styled India Rejuvenation Initiative (IRI), to file a writ petition on the need to ferret out black money owned by Indians and stashed abroad. The petition culminated in the Supreme Court decision (2011) known as Ram Jethmalani and Others vs the Union of India. Reacting to this, Pandey was served a charge sheet by the U.P. government on five counts for alleged violation of four clauses of the All India Services (Conduct) Rules, 1968.

Charges, exoneration
The gravamen of the charge against Pandey was that, in being a co-signatory to the said writ petition by Ribeiro and others, he had endorsed an affidavit by one Jasbeer Singh that was critical of some senior officers of the Government of India (mainly from the Enforcement Directorate). The charge sheet added that in not having obtained the government’s permission before joining the said NGO and deposing in an inquiry where the Central and State governments were likely to be criticised, he had violated the conduct rules.

An enquiry officer appointed to look into the charges against Pandey exonerated him of all the charges on August 30, 2012. Strangely, a copy of this report of exoneration was not served on Pandey. On September 9, 2012, a selection committee that was considering cases of IAS officers in U.P. for promotion to the super timescale ignored Pandey’s case, although he had been exonerated and was eligible for promotion. The committee’s decision was in a sealed cover, a usual practice in respect of officers against whom disciplinary action was pending.

Worse was to follow. The enquiry officer’s finding was rejected by the U.P. government on September 26, 2012, on the ground that his report was cursory and that he had failed to properly investigate all relevant facts. The State government went on to invoke the Public Servants (Inquiries) Act, 1850 and appoint a two-member committee to look once more into the charges against Pandey. Significantly, the State government’s action came on the same day as the Central Administrative Tribunal (CAT) dismissing Pandey’s appeal seeking his promotion. Following this, Pandey went to the Supreme Court on a writ that was recently disposed of by a bench comprising Justices Chelameswar and Sikri in favour of Pandey. In doing so, the judges made some comments on what was palpably an act of rancour and vindictiveness by the government. What was striking about this remarkable judicial order was the thoroughness with which the bench demolished each averment against Pandey.

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Upholding an individual’s right
First, the Court held that since Pandey never disputed the charges made against him, there were no facts to be investigated by the enquiry officer. Second, relying on the decision (1971) of the Supreme Court in K.R. Deb vs Collector of Central Excise, Shillong, the bench held that a second inquiry against Pandey was untenable. There could at best be a further inquiry, but not a second one on the same facts. And, in the Pandey case, the facts were such that a further inquiry was hardly warranted. As regards violation of a stipulation of the All India Services (Conduct) Rules that an officer could not depose before an individual, or committee or any other authority without the sanction of the government, the bench held that joining in averments made in a writ petition before a court was equivalent to taking part in a judicial process for which no citizen needed to get the government’s nod. An individual’s fundamental right did not get diminished just because he was a member of the civil service.

The two judges were categorical that this was a clear case of harassment of a hapless civil servant. (“The purpose behind the proceedings appears calculated to harass the appellant since he dared to point out certain aspects of mal administration … The whole attempt appears to be to suppress any probe into the question of black money. A part of the strategy to intimidate not only the appellant but also to send a signal to others who might dare in future to expose any mal administration.”) They did not also fail to notice that while the government chose to proceed against Pandey, it ignored the action of another official, Jasbeer Singh, who had filed an additional affidavit that was critical of the government. The bench allowed Pandey’s petition and went beyond, to award him the costs involved. In doing so it said, “The requirement of (a) democratic republic is that every action of the State is to be informed with reason. State is not a hierarchy of regressively genuflecting coterie of bureaucracy.”

The need for support
This landmark judicial order comes at a time when, in my view, an intimidated civil service needs support. In many States, public servant morale is at its nadir and it requires the oxygen of an unequivocal imprimatur from the highest court of the land that would help to halt the hands of a meddling political class. Nothing else would bring about at least a marginal improvement to what is an undeniably appalling situation. Wide publicity to its salient features would go a long way in reinstilling courage into large sections of the bureaucracy which is baulking in fear of reprisal for its legitimate actions and has been coerced into condemnable passivity.

Civil servant independence in the country is at best nominal. Nonconformity even to spurn whimsical and arbitrary directives received from above is widely recognised as a very risky proposition. Signs of defiance are fraught with such serious consequences that even the most courageous civil servant thinks many times over before turning down even a palpably unethical and illegal direction. The few mavericks who display a semblance of remonstrance are heavily penalised so as to deter potential dissenters. It is this sordid state of affairs that convinces me that Justices Chelameshwar and Sikri will have to be hailed for coming squarely to the rescue of a hapless senior official of the U.P. government for his alleged intransigence.

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I view the judgment as bold and imaginative. It sends out a strong signal that the honest and upright civil servant can depend on the higher judiciary for unequivocal support. Wide publicity to the facts of the case and details of the judgment is a must.

I am not pleading here for a total licence to honest civil servants to do whatever they want or indulge in intemperate criticism of a constitutionally installed government. What is required is a freedom to speak their minds in furtherance of good governance. I am happy that Prime Minister Narendra Modi in his first meeting with the Secretaries to the Union Government exhorted exactly this and made himself available to hear them, especially when they were at loggerheads with their Ministers. There cannot be a better way to get the best out of each government official whatever be his status in the hierarchy. The Prime Minister’s Office has again to be complimented for issuing a directive to the bureaucracy that it should not act on oral instructions. I am confident that this stand would greatly promote transparency and honesty in governance.

(R.K. Raghavan is a former CBI Director.)

Copied from Hindu, liked the article. Hindu:25th Oct, 2014.

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