Re-hiring of retired civil servants

ON January 27, while hearing the Haj corruption case (SMC No.24 of 2010), the Supreme Court made a very significant observation. It said that re-employment of retired government officers on senior positions was prima facie a violation of law. The court further noted that the re-employment was tantamount to blocking promotions of otherwise deserving officers and was not conducive to good governance. Accordingly, the bench directed the federal and provincial governments to ensure that people were not hired on contract in violation of law. In particular, the practice of re-inducting retired officers should be discouraged. Vide its earlier order dated January 20 in the same case, the apex court had observed with displeasure that in disciplinary forces like police and FIA, persons occupying senior positions were holding the charge on contract basis. In the words of the court, "in terms of the definitions of section 2(1) (b) (ii) of the Civil Servants Act 1973, a person who is employed on contract does not even fall within the definition of a civil servant, so his authority to command and maintain discipline can well be imagined from the fact that if a person himself is not a Civil Servant, he is considered only bound by the terms and conditions of his contract and not by the statutory law, because if any condition laid down in the contract is violative to statutory law, he would only be subject to action under the said contract." The court in the same order had also noted that it was in the interest of the government to promote the junior officers, who were awaiting promotion, instead of employing persons on contract, unless their services were indispensable. Appointments to the federal government are governed by the Civil Servants Act of 1973 (CSA) as amended from time to time and the rules made thereunder called Civil Servants (Appointment, Promotion and Transfer) Rules, 1973. Though the Act does not prohibit re-employment after retirement, it does discourage the practice. In this respect, Section 14 (1) states: "A retired civil servant shall not be re-employed under the Federal Government, unless such re-employment is necessary in the public interest…" The above provision circumscribes re-employment of civil servants. One, in normal circumstances, a civil servant may not be re-hired. The main purpose of such stipulation is to ensure that promotion prospects of serving officials are not blocked. Two, in case a civil servant is re-hired, the re-employment must serve public interest. This is the only valid reason for re-employment. No other reason justifies re-employment. Three, the fact that Section 14 (1) uses the word 'necessary' and not 'important,' means that re-employment to a particular post must meet the necessity test, that public interest can be served only by the appointment of a particular retired civil servant to a particular post. In other words, the qualifications, experience, credentials or skills of that person are such that no one is more suitable than him for appointment to that position — or simply that person is indispensable to that position. Four, since re-employment has to be in public interest, the principles of open merit, transparency, and equality of opportunity need to be observed leading to the selection of the most suitable candidate. If these conditions are complied with in letter and spirit, re-employment of civil servants will become an exception rather than the rule. A civil servant has legitimate expectation to be promoted to the higher grade or position provided that he fulfils the relevant criteria laid down by the law. However, that legitimate expectation is denied when another civil servant who after he has reached the age of superannuation is re-inducted against a senior post. In the second place, contract employment creates anomaly in the functioning of a ministry or department. The person occupying the top position is a contract employee, and therefore not a civil servant, while his post is permanent and the subordinate officials are also permanent employees. In the third place, the re-hiring of retired civil servants makes for political interference in the working of civil services. In most of the cases, the officials are offered re-employment on the basis of their political connections. Such officials find it difficult to resist political pressure, mainly because they owe their job entirely to the political masters. In the fourth place, contract employment brings ad-hocism to the working of civil services, which runs counter to its basic character. As opposed to the political executive or ministers, civil servants are called the permanent executive, because they hold office for a long period and are not sent home with change in government. hussainhzaidi@gmail.com