Retired Civil Servants Threatened With Pension Withdrawal Ask Union Government To Withdraw Gag Order

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CCG OPEN STATEMENT
AMENDMENT TO ALL INDIA SERVICE RULES

25 July 2023

The Constitutional Conduct Group, a collective of former civil servants, has noted with concern the recent amendments by the Ministry of Personnel, Public Grievances and Pensioners, Govt. of India, to the All India Services (Death cum Retirement Benefits) Rules 1958 (hereinafter referred to as the Rules). Through a notification dated 6.7.2023, these amendments have, inter alia, sought to impose a complete ban on the right of retired civil servants to comment on public matters, by threatening them with the withdrawal of their pensions. This would be violative of Article 51A of the Constitution which enjoins upon all citizens to “cherish and follow the noble ideals that inspired the national struggle for freedom.” The right to criticise the government in power is part of these ideals and cannot be termed as “misconduct” .
The original Rules of 1958 (as amended from time to time) did contain a provision in Rule 3 that “future good conduct shall be an implied condition of every grant of pension and its continuation” and that the pension could be withheld or withdrawn, in part or in full, if the pensioner is convicted of a serious crime or is held to be guilty of grave misconduct. However, such action could only be taken by the union government on a reference from the state government (the cadre to which the officer belonged). But now, Rule 3 has been amended to provide that such punitive action can be taken by the union government “either on a reference from the state government concerned or otherwise.” This, we feel, violates the principles of federalism and confers draconian powers of oversight and overrule on the union government which is not in conformity with the duality of control envisaged in the All India Services structure. It will further expose officers in opposition ruled states to intimidation by the party in power at the centre.

We note with apprehension that nowhere in the Rules has the term “good conduct” or “grave misconduct” been defined, other than in sub-rule 8 of Rule 3 which merely “includes” disclosure of any information covered by the Official Secrets Act as a grave misconduct. Other than this, however, the Rules are completely silent on this issue, and everything is left to the decision or interpretation of the central government. Considering the severe penalties prescribed for misconduct, it is legally incumbent on the union government to have provided an exhaustive definition of the term. By leaving this deliberately vague, ambiguous and amorphous, the union government has armed itself with unlimited powers to harass and persecute any pensioner whose action is not to its liking, whether it be an article, an interview, participation in a protest march or seminar, or any form of criticism. In effect, this will totally muzzle and silence anyone who draws a pension from the state, which appears to be the intention behind these amendments.

The withdrawal/withholding of pension for any criminal conviction is equally pernicious and untenable in law as it amounts to double jeopardy, punishing a person twice for the same offence. The pension is something (s)he has already earned by dint of long service. If (s)he commits a crime, (s)he will suffer the consequences of that by the operation of that criminal law: (s)he cannot be penalised a second time for the same offence by withdrawing her/his pension. Furthermore, the law punishes the perpetrator of a crime, not her/his next of kin; by withdrawing/withholding her/his pension the government would be inflicting unjustified tribulations and misery on her/his family too.
Finally, both the original and the amended provision of Rule 3 (except the newly introduced sub-rule 6 about divulging secret and security related information) violate multiple rulings of the Supreme Court and various High Courts which have, over the last 65 years, constantly held that pension is an employee’s right and a kind of deferred payment for service already rendered. It is not largesse or charity bestowed by the government and does not depend upon the discretion of the government (State of Punjab and Another vs Iqbal Singh). In DS Nakara vs Union of India (1983), the Supreme Court held that a law cannot discriminate between the same class of people, and that all statutes or laws must have some rational nexus with the object of the law. Rule 3, both the original and the amended versions, do not conform to these legal requirements. Pensioners are no longer government servants: they are free citizens of the country like any other citizen, with the same freedom of expression. By curbing this right under the specious guise of “good conduct” the government is discriminating against them and, therefore, also violating Article 14 of the Constitution. Furthermore, what is the “object” of this rule, if not to silence any form of criticism of the government? This cannot be held to be rational, reasonable or based on some valid principle, as is required in another judgment (Ramana Dayaram Shetty vs The Airport Authority of India and Others). Rule 3 has become obsolete: it is a legal anachronism which also militates against the right to freedom of speech and dissent. It makes pensioners bonded labourers for life, a separate-and inferior-class of citizens who do not enjoy the freedom of expression. It further seeks to impose the Conduct Rules (which apply only to those in service of the government) on pensioners through the back door, which is abhorrent in law, as the latter are no longer in service. They are free citizens and there exists no employer-employee relationship between them and the government.

Rules governing conditions of service need to be dynamic and in sync with the changes in interpretation of laws, the evolution of jurisprudence on rights and freedoms, the development of the concepts of democracy and an open society. Rule 3 fails to do so, is stuck in a time warp and needs to go.

The Constitutional Conduct Group urges the governments in the states and the union government to review this rule with a view to abolishing it, and not to further build upon it. In the interim we further request the union government to hold in abeyance these amendments in the interests of federalism, fair play, equality of citizens, freedom of expression and a vibrant democracy.

SATYAMEVA JAYATE
Constitutional Conduct Group (94 signatories, as at pages 3-5 below)

 

1. Anita Agnihotri IAS (Retd.) Former Secretary, Department of Social Justice Empowerment, GoI
2. Anand Arni RAS (Retd.) Former Special Secretary, Cabinet Secretariat, GoI
3. G. Balachandhran IAS (Retd.) Former Additional Chief Secretary, Govt. of West Bengal
4. Vappala Balachandran IPS (Retd.) Former Special Secretary, Cabinet Secretariat, GoI
5. Chandrashekar Balakrishnan IAS (Retd.) Former Secretary, Coal, GoI
6. Sushant Baliga Engineering Services (Retd.) Former Additional Director General, Central PWD, GoI
7. Rana Banerji RAS (Retd.) Former Special Secretary, Cabinet Secretariat, GoI
8. Sharad Behar IAS (Retd.) Former Chief Secretary, Govt. of Madhya Pradesh
9. Aurobindo Behera IAS (Retd.) Former Member, Board of Revenue, Govt. of Odisha
10. Madhu Bhaduri IFS (Retd.) Former Ambassador to Portugal
11. Pradip Bhattacharya IAS (Retd.) Former Additional Chief Secretary, Development & Planning and Administrative Training Institute, Govt. of West Bengal
12. Meeran C Borwankar IPS (Retd.) Former DGP, Bureau of Police Research and Development, GoI
13. Ravi Budhiraja IAS (Retd.) Former Chairman, Jawaharlal Nehru Port Trust, GoI
14. Sundar Burra IAS (Retd.) Former Secretary, Govt. of Maharashtra
15. Maneshwar Singh Chahal IAS (Retd.) Former Principal Secretary, Home, Govt. of Punjab
16. R. Chandramohan IAS (Retd.) Former Principal Secretary, Transport and Urban Development, Govt. of NCT of Delhi
17. Rachel Chatterjee IAS (Retd.) Former Special Chief Secretary, Agriculture, Govt. of Andhra Pradesh
18. Kalyani Chaudhuri IAS (Retd.) Former Additional Chief Secretary, Govt. of West Bengal
19. Gurjit Singh Cheema IAS (Retd.) Former Financial Commissioner (Revenue), Govt. of Punjab
20. F.T.R. Colaso IPS (Retd.) Former Director General of Police, Govt. of Karnataka & former Director General of Police, Govt. of Jammu & Kashmir
21. Anna Dani IAS (Retd.) Former Additional Chief Secretary, Govt. of Maharashtra
22. Vibha Puri Das IAS (Retd.) Former Secretary, Ministry of Tribal Affairs, GoI
23. P.R. Dasgupta IAS (Retd.) Former Chairman, Food Corporation of India, GoI
24. Pradeep K. Deb IAS (Retd.) Former Secretary, Deptt. Of Sports, GoI
25. Nitin Desai Former Chief Economic Adviser, Ministry of Finance, GoI
26. M.G. Devasahayam IAS (Retd.) Former Secretary, Govt. of Haryana
27. Sushil Dubey IFS (Retd.) Former Ambassador to Sweden
28. A.S. Dulat IPS (Retd.) Former OSD on Kashmir, Prime Minister’s Office, GoI
29. K.P. Fabian IFS (Retd.) Former Ambassador to Italy
30. Suresh K. Goel IFS (Retd.) Former Director General, Indian Council of Cultural Relations, GoI
31. H.S. Gujral IFoS (Retd.) Former Principal Chief Conservator of Forests, Govt. of Punjab
32. Meena Gupta IAS (Retd.) Former Secretary, Ministry of Environment & Forests, GoI
33. Vivek Harinarain IAS (Retd.) Govt. of Tamil Nadu
34. Siraj Hussain IAS (Retd.) Former Secretary, Department of Agriculture, GoI
35. Najeeb Jung IAS (Retd.) Former Lieutenant Governor, Delhi
36. Vinod C. Khanna IFS (Retd.) Former Additional Secretary, MEA, GoI
37. Ish Kumar IPS (Retd.) Former DGP (Vigilance & Enforcement), Govt. of Telangana and former Special Rapporteur, National Human Rights Commission
38. Sudhir Kumar IAS (Retd.) Former Member, Central Administrative Tribunal
39. Subodh Lal IPoS (Resigned) Former Deputy Director General, Ministry of Communications, GoI
40. P.M.S. Malik IFS (Retd.) Former Ambassador to Myanmar & Special Secretary, MEA, GoI
41. Harsh Mander IAS (Retd.) Govt. of Madhya Pradesh
42. Amitabh Mathur IPS (Retd.) Former Special Secretary, Cabinet Secretariat, GoI
43. Aditi Mehta IAS (Retd.) Former Additional Chief Secretary, Govt. of Rajasthan
44. Shivshankar Menon IFS (Retd.) Former Foreign Secretary and Former National Security Adviser
45. Sonalini Mirchandani IFS (Resigned) GoI
46. Sunil Mitra IAS (Retd.) Former Secretary, Ministry of Finance, GoI
47. Avinash Mohananey IPS (Retd.) Former Director General of Police, Govt. of Sikkim
48. Satya Narayan Mohanty IAS (Retd.) Former Secretary General, National Human Rights Commission
49. Deb Mukharji IFS (Retd.) Former High Commissioner to Bangladesh and former Ambassador to Nepal
50. Jayashree Mukherjee IAS (Retd.) Former Additional Chief Secretary, Govt. of Maharashtra
51. Shiv Shankar Mukherjee IFS (Retd.) Former High Commissioner to the United Kingdom
52. Gautam Mukhopadhaya IFS (Retd.) Former Ambassador to Myanmar
53. Nagalsamy IA&AS (Retd.) Former Principal Accountant General, Tamil Nadu & Kerala
54. Ramesh Narayanaswami IAS (Retd.) Former Chief Secretary, Govt. of NCT of Delhi
55. Surendra Nath IAS (Retd.) Former Member, Finance Commission, Govt. of Madhya Pradesh
56. P. Joy Oommen IAS (Retd.) Former Chief Secretary, Govt. of Chhattisgarh
57. Amitabha Pande IAS (Retd.) Former Secretary, Inter-State Council, GoI
58. Maxwell Pereira IPS (Retd.) Former Joint Commissioner of Police, Delhi
59. Alok Perti IAS (Retd.) Former Secretary, Ministry of Coal, GoI
60. G.K. Pillai IAS (Retd.) Former Home Secretary, GoI
61. R. Poornalingam IAS (Retd.) Former Secretary, Ministry of Textiles, GoI
62. Rajesh Prasad IFS (Retd.) Former Ambassador to the Netherlands
63. R.M. Premkumar IAS (Retd.) Former Chief Secretary, Govt. of Maharashtra
64. T.R. Raghunandan IAS (Retd.) Former Joint Secretary, Ministry of Panchayati Raj, GoI
65. N.K. Raghupathy IAS (Retd.) Former Chairman, Staff Selection Commission, GoI
66. V.P. Raja IAS (Retd.) Former Chairman, Maharashtra Electricity Regulatory Commission
67. P.V. Ramesh IAS (Retd.) Former Addl. Chief Secretary to the Chief Minister of Andhra Pradesh
68. M. Rameshkumar IAS (Retd.) Former Member, Maharashtra Administrative Tribunal
69. K. Sujatha Rao IAS (Retd.) Former Health Secretary, GoI
70. Satwant Reddy IAS (Retd.) Former Secretary, Chemicals and Petrochemicals, GoI
71. Vijaya Latha Reddy IFS (Retd.) Former Deputy National Security Adviser, GoI
72. Julio Ribeiro IPS (Retd.) Former Adviser to Governor of Punjab & former Ambassador to Romania
73. Aruna Roy IAS (Resigned)
74. A.K. Samanta IPS (Retd.) Former Director General of Police (Intelligence), Govt. of West Bengal
75. Deepak Sanan IAS (Retd.) Former Principal Adviser (AR) to Chief Minister, Govt. of Himachal Pradesh
76. G.V. Venugopala Sarma IAS (Retd.) Former Member, Board of Revenue, Govt. of Odisha
77. N.C. Saxena IAS (Retd.) Former Secretary, Planning Commission, GoI
78. A. Selvaraj IRS (Retd.) Former Chief Commissioner, Income Tax, Chennai, GoI
79. Ardhendu Sen IAS (Retd.) Former Chief Secretary, Govt. of West Bengal
80. Abhijit Sengupta IAS (Retd.) Former Secretary, Ministry of Culture, GoI
81. Aftab Seth IFS (Retd.) Former Ambassador to Japan
82. Ashok Kumar Sharma IFoS (Retd.) Former MD, State Forest Development Corporation, Govt. of Gujarat
83. Ashok Kumar Sharma IFS (Retd.) Former Ambassador to Finland and Estonia
84. Navrekha Sharma IFS (Retd.) Former Ambassador to Indonesia
85. Avay Shukla IAS (Retd.) Former Additional Chief Secretary (Forests & Technical Education), Govt. of Himachal Pradesh
86. Sujatha Singh IFS (Retd.) Former Foreign Secretary, GoI
87. Tara Ajai Singh IAS (Retd.) Former Additional Chief Secretary, Govt. of Karnataka
88. Tirlochan Singh IAS (Retd.) Former Secretary, National Commission for Minorities, GoI
89. A.K. Srivastava IAS (Retd.) Former Administrative Member, Madhya Pradesh Administrative Tribunal
90. Anup Thakur IAS (Retd.) Former Member, National Consumer Disputes Redressal Commission
91. P.S.S. Thomas IAS (Retd.) Former Secretary General, National Human Rights Commission
92. Geetha Thoopal IRAS (Retd.) Former General Manager, Metro Railway, Kolkata
93. Ramani Venkatesan IAS (Retd.) Former Director General, YASHADA, Govt. of Maharashtra
94. Rudi Warjri IFS (Retd.) Former Ambassador to Colombia, Ecuador and Costa Rica

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