TOPIC : SHOULD THERE BE A COOLING-OFF PERIOD FOR GOVERNMENT OFFICIALS?

THE CONTEXT: The appointment of Mr. Justice S. Abdul Nazeer, former judge of the Supreme Court, as the Governor of Andhra Pradesh and the reshuffling of governors in some states seemed to raise the question of cooling off period for government officials once again. In this regard, this article will discuss various provisions related to the cooling off period of government officials, its need and issues related and measures that need to be taken to ensure the transparency and independence of the government institutions.

WHY IS THE APPOINTMENT OF JUSTICE S. ABDUL NAZEER OBJECTIONABLE?

Appointment of former Supreme Court judge S Abdul Nazeer as the governor of Andhra Pradesh, within 40 days of his retirement from the top court drew mixed reactions.
Justice Nazeer was involved in several cases that were of importance to the current Union government, including the Ayodhya title suit and he also headed the bench that upheld the Centre’s demonetisation policy of November 2016 and was also part of a constitution bench that held no further restriction can be added to the right to free speech under Article 19(1)(a) of the Constitution.
Although, there is no provision in law restricting a retired top court judge from holding the post of a governor and it is not the first time that a former Judge of the Supreme Court has been appointed as the Governor of a state but this is the first time that a former Judge of the Supreme Court has been appointed so soon after his or her retirement.
A longer cooling-off period can help to avoid criticism and help rebuild the trust.

VARIOUS PROVISIONS RELATED TO THE COOLING-OFF PERIOD OF GOVERNMENT OFFICIALS

WHAT IS THE COOLING-OFF PERIOD?

Cooling off period refers to a period during which an employee is prohibited from securing commercial employment before completion of one year from the date of retirement without the approval of the central government.
Post-retirement commercial employment for the three All India Services (IAS, Indian Police Service, and Indian Forest Service) is covered under the AIS Death-cum-Benefits Rules, and for the Central Civil Services under the CCS (Pension) Rules.
Rule 9 of the CCS (Pension) Rules states that “if a pensioner who, immediately before his retirement, was a member of Central Service Group ‘A’ wishes to accept any commercial employment before the expiry of one year from the date of his retirement, he shall obtain the previous sanction of the government to such acceptance”.
Rule 26 of the AIS Death-cum-Benefits Rules similarly restricts a pensioner from commercial employment for one year after retirement, except with government sanction.
Non-compliance with these rules can lead to the government declaring that the employee “shall not be entitled to the whole or such part of the pension and for such period as may be specified.

WHAT DOES “POST-RETIREMENT COMMERCIAL EMPLOYMENT” INCLUDE?

Employment in any capacity including that of an agent, under a company, co-operative society, firm or individual engaged in trading or business (this does not include “employment under a body corporate, wholly or substantially owned or controlled by the Central Government or a State Government)”.
Setting up practice, either independently or as a partner of a firm, as adviser or consultant in certain matters specified under the rules, including matters that are relatable to the pensioner’s official knowledge or experience.

WHEN DOES A GOVERNMENT ALLOW OR TURN DOWN SUCH REQUESTS FROM PENSIONERS?

The CCS (Pension) Rules specify several factors for the government to consider while granting or refusing permission; these include:

Whether a “no-objection” for the proposed employment has been obtained from the cadre controlling authority and from the office where the officer retired
Whether the officer has been privy to sensitive or strategic information in the last three years of service that is directly related to the work of the organization he proposes to join.
Whether there is conflict of interest between the policies of the office he has held in the last three years and the interests/work of this organization;
Whether this organization has been in conflict with or prejudicial to India’s foreign relations, national security and domestic harmony
Whether the organization he proposes to join is undertaking any activity for intelligence gathering.
According to these rules, “conflict of interest” does not include normal economic competition with the government or its undertakings”.

WHAT ABOUT GOVERNMENT SERVANTS JOINING POLITICS AFTER RETIREMENT?

While in service, the Conduct Rules bar government servants from being associated with any political party or organization, and from taking part in or assisting any political activity. An amendment on November 27, 2014, added a few clauses to Rule 3(1), one of which read: “Every government employee shall at all times maintain political neutrality and commit himself to and uphold the supremacy of the Constitution and democratic values”.
There is no rule, however, to stop government servants from joining politics after retirement. In 2013, the Election Commission had written to the Department of Personnel and Training (DoPT) and Ministry of Law, suggesting a cooling-off period for bureaucrats joining politics after retirement, but it was rejected. The Legislative Department of the Ministry of Law advised that any such restriction may not stand the test of valid classification under Article 14 of the Constitution, and the DoPT told the EC that its suggestions might not be appropriate and feasible.

IS A RETIRED GOVERNMENT SERVANT RESTRICTED FROM TAKING UP EMPLOYMENT?

Rule 26, Death-cum-Retirement Benefits Rules, restricts a pensioner from any commercial employment for one year after retirement, except with the previous sanction of the central government. Non-compliance can lead the central government to declare that the employee “shall not be entitled to the whole or such part of the pension and for such period as may be specified”.
This cooling-off period was two years until 2007 when an amendment reduced it to one year.

WHY IS THERE A NEED OF A COOLING-OFF PERIOD FOR GOVERNMENT OFFICIALS

TO ELIMINATE THE CHANCE OF GRAVE MISCONDUCT

As post-retirement acceptance of job offers by ex-government officials without observing the cooling-off period can lead to grave misconduct on their part, there is a need of cooling-off period.

BUILDING PUBLIC PERCEPTION

To preserve the integrity of retired officer in eyes of public, there is need of cooling off period as by cooling off period, government officials can prove their impartiality which builds public perception.

ETHICAL CONSIDERATION

There is a need to consider the ethical consideration of government officials towards the government institution and the cooling off period ensures the same.

MAINTAINING THE INDEPENDENCE OF THE INSTITUTION

Government officials need a cooling off period to maintain the independence of institutions and separation of powers.

PREVENT THE MISUSE OF CONFIDENTIAL INFORMATION

If there is no cooling-off period there is a high chance of misuse of confidential information during commercial employment and a long cooling off period may render confidential information outdated.

MINIMIZATION OF CONFLICT OF INTEREST

Cooling off period ensures the minimization of conflict of interest between government officials and institutions.

ISSUES RELATED TO THE COOLING-OFF PERIOD

Less incentive: Generally, government official get less pay and incentives that somehow encourages them to take up commercial employment post-retirement.
Opportunist tendencies: Bureaucrats do not plan for an active retirement and fear the prospect of unstructured time and rather than welcome it as an opportunity to develop new hobbies and interests, they get lured by commercial benefits.
Absence of a uniform and defined procedure: As there is the absence of uniform and defined procedure for cooling off period and the cumbersome process asfor obtaining vigilance clearance before engaging of retired government officials by government organizations sometimes led to hiring of officials with tainted past and pending cases, vigilance body said such a situation not only triggered unnecessary allegations of favouritism, but was also against the tenets of fairness and probity.
Carrot and Stick policy: Bulk of post-retirement appointments appears to be furtherance of carrot and stick policy by executive as used by executive to lure the government officials for their own benefits.
Neutrality and integrity: There is concern related to the neutrality and integrity of government officials if there is no proper cooling off period that hampers the institutions’ functioning.

THE WAY FORWARD

Need of high-calibre professionalism: Government officials need to show high calibre professionalism by properly following guidelines of cooling off period.
Need to formulate uniform guidelines: All government organizations need to formulate uniform rules or guidelines to make the cooling-off period mandatory for all retired officers besides requiring them to seek prior nod for accepting private employment during such cooling off period.
Penalty in case of violation: It is directed that government need to tweak the applicable service and conduct rules so that appropriate action can be initiated in case of violation of this cooling-off period.
Need of Transparency: There is a need for a transparent procedure for engaging retired government officers to provide them with equal opportunity to all those willing to offer their services such as the post to be filled up on contractual/consultancy basis should at advertised on the website of the organization and put it on public domain.
Raising the retirement age: Fifth Central Pay Commission (1997) recommended raising the retirement age, citing increased life expectancy, alignment with worldwide trends and to enable those who join the government late, particularly from disadvantaged sections of society, to complete the qualifying service needed to reach the maximum pension limit. It also observed that the impact on employment status would be marginal and that the government would save a considerable sum due to the postponement of retirement benefits for two years.

WHAT ARE THE RECOMMENDATIONS OF VARIOUS COMMITTEES/COMMISSIONS

LAW COMMISSION RECOMMENDATIONS

Law Commissions have consistently maintained that government officials accepting commercial employment was undesirable. It had felt that this could affect independence.

SC VIEW IN NIXON M JOSEPH V. UNION OF INDIA, 1998

SC itself has accepted that post-retirement appointment of judges in tribunals is a “scar” on the independence of the judiciary.

RM LODHA PANEL RECOMMENDATIONS

Before a judge retires, the government should ask him whether he wanted to be a pensioner or continue to draw his existing salary.
Once he opts for pension, he should not have any engagement or post under the government.
Once a judge opted for full salary, that name should be put in a panel.
When a vacancy arises, appoint the man in consultation with the CJI, with the government’s consultation.

THE CONCLUSION: Government officials need mandatory cooling-off period before taking up any commercial employment as it should remain in force as the benefits of keeping confidential information safe and minimizing conflict of interest is much larger than the potential career autonomy of these government officials. However, some policy changes can be introduced to reduce cost of the cooling off period but there is a need of laying down of proper rules to to ensure its effectiveness.

MAINS QUESTIONS
1. To maintain the accountability and independence of the government officials, there is a need for a mandatory cooling off period. Justify.
2. Discuss various provisions related to the cooling off period related to government officials and issues related and suggest measures to ensure the same.