Analytical commentary on issues for review and improvement in the proposed Civil Service Bill (fourth amendment) 2014

The first subsection of the added section prohibits civil servants from offering their services or accepting employment elsewhere

Aug. 17, 2014, 5:45 p.m. Published in Magazine Issue: Vol: 08 No. -5 August. 15- 2014 (Sharawan 30, 2071

The Ministry of General Administration has registered a bill with the parliament secretariat in order to make the fourth amendment to the Civil Service Act 1993, which was created after the political transition of 1990, with the intention of establishing the appropriate terms and conditions to better manage and mobilise civil servants. The Act was first amended in 1998, then in 2007, and last in 2013. A bill for further amendment has been registered once again with the following aims:

1) To prevent civil servants from acquiring residency in other countries, in the form of PRs, green cards, DVs, etc, in order to make civil servants more disciplined and accountable.

2) Preventing civil servants from engaging in any form of employment other than their official work.

3) To establish gazetted special class positions in some areas of the civil service as specialist positions.

Aspects for improvement in the proposed bill

The preamble in the bill attempts to justify itself by only saying that it is desirable to amend the 1993 Act immediately. But it does not explain what the proposed amendments are for, and what kind of impacts they would have on the civil service as a whole.  Therefore, in a way that it would lend itself to be included in the main Act, the main goal of the points proposed for amendment should be explained in the preamble, emphasising these ideas: professionalism, discipline, and decency.

The phrase ‘permanent residential permit’ should be reduced to ‘residential permit’ in section 2 C(1), added in the bill after 2 C from the Act. In the same section, ‘or non-residential’ should be added after the word ‘residential’ in the second and fifth lines. The residential permit mentioned in 2 C(1) should be understood as a diversity immigrant visa (D.V.), green card, or any other document of any name which allows a Nepali citizen to live in a foreign country on a permanent or temporary basis, with or without any terms and conditions.

The bill proposes to dissolve any service, group, or sub-group existing among posts higher than gazetted first class officer (joint secretary level) in the seven services included in the Civil Service Act (Nepal Economic Planning and Statistics Service, Engineering Service, Agricultural Service, Administration Service, Forestry Service, Miscellaneous Service, and Education Service) excluding the Nepal Judicial Service, Nepal Audit Service, and Nepal Foreign Service. A joint secretary of any of the abovementioned services can transfer to any other service, with or without being promoted to secretary (special class officer).

If amended according to the proposed bill, the new Act would prohibit the transfer of civil servants from any outside service to the position of secretary (or special class officer) in the Nepal Legal Service, Nepal Audit Service, and Nepal Foreign Service, and, conversely, from one of these three services to any other. The reason cited to justify the provision is that the unique nature of these services requires them to be founded on a higher degree of specialisation and professionalism. But, in applying the provision to only three of the ten services mentioned in the same Act, it is implied that other services do not require the same. The workings of all of the various services mentioned in the Civil Service Act are unique. Thus, all of them should be treated as such and developed as professional and specialised services.

If any particular service is to be specialised, it should be managed through the promulgation of a separate act. Otherwise, all the services should be retained in the same Act and each on of them specialised as appropriate to their workings. In doing so, only positions below the joint secretary level should be made flexible for transfer in between various services, thus specialising the joint secretary and secretary level positions. In other words, the gazetted first class and special class should be developed as the ministerial cadre.

Another provision proposed in the bill goes against the Supreme Court decision of 6 December, 2012, which allows for first class officers in the Nepal Legal Service to be promoted to the position of secretary, as per section 19 of the Civil Service Act 1993.

The basis of the Court’s decision seems to be hinged on the existing Act, which, with the exception of the Nepal Legal Service and Audit Service, establishes the gazetted first class as specialist positions, and special class positions and the equivalent as generalist positions.

In chapter seven containing provisions related to conduct, 48 1(C) that imposes a restriction on ‘accepting any kind of employment elsewhere’ has been removed, and introduced a 49 A: ‘No employment or services shall be accepted elsewhere.’

This new provision does not appear to be effective for implementation. The first subsection of the added section prohibits civil servants from offering their services or accepting employment elsewhere. But, in the very next subsection, it is stated that other work can be done with the approval of the appropriate authority – during leaves from public service for further studies, and for human rights or social service organisations – and affiliations maintained with professional or social institutions. It is advisable to clarify that a civil servant should under no circumstances be allowed to work as a consultant for an outside organisation for economic or other benefits, whether during or outside of working hours.

In 49 A(2)E(1), a provision has been kept to allow civil servant to engage with training or research at government training centres or facilities even during office hours as long as it does not interfere with work. On the other had, civil servants have been asked to seek prior approval from the appropriate authority before engaging their time at non-governmental institutions for the purpose of education, technical training, or research, even outside of office hours. It seems unfair to have to ask for approval for activities done outside of office hours. At the same time, a provision allowing for training, albeit at a government centre, during office hours seems absurd from the standpoint of efficiency. Furthermore, since it is impossible to evaluate whether such engagements hamper work, they should only be allowed outside of office hours or during a leave of absence.

To elaborate on the above-mentioned provision, section 49 A has been divided into subsection (2) which has further been divided into E, and finally, into the restrictive clauses 1 and 2. This makes little sense from the point of view of drafting legislation. It is not wise to devise a restrictive sub-division to a sub-section that already contains a restrictive clause. It would be appropriate to create separate sub-sections for 49 A(2)E (1) and (2). 

The provision and restrictive clause in 61 (1)F about the number of days one can be absent from one’s office is disproportionate. According to the provision, a civil servant can retain his/her job after taking a leave of up to 89 days, just as long it is approved within the 90th day. But the added restrictive clause states that a civil servant who attends an educational course, training, etc. and fails to record attendance at his/her office within thirty days of finishing the program risks losing his/her job in a way that would not hamper his/her future prospects of employment with the government. The provisions seem contradictory. It would be better to consolidate the two provisions with in 61 (1)F by simply stating that a civil servant who remains absent from his/her office for thirty days in a row without prior approval can be removed from his/her position without being declared ineligible for government work in the future.

The proposed bill makes it clear that it is not preferred that a civil servant live in a foreign country with any purpose other than furthering his/her education, attending trainings, seminars, and/or furthering the interests of the state, while he/she is tenured to the service.   

But the amended provision in the bill only mentions permanent residency in foreign countries. The legislation should be improved by (a) stating that any residency permit, permanent or temporary, or application lodged for attaining such permits shall be disclosed by all civil servants by issuing statements, and (b), within 60 days (not 30) after the commencement of said provision. Another section 61 C(3) states that no punishment shall be enforced if a civil servant cancels his/her residential status in a foreign country or proves that an application has been lodged to cancel such a status within sixty days after the commencement of 61 (2)C. These provisions have been issued in the best interest of civil servants since there have been no restrictions on obtaining residency permits in the past. For the sake of consistency, it is therefore advisable to set the deadline for submitting a statement to 60 days (not 30) after the implementation of the provision. 

In 61(2) of the Act, there is a provision to terminate the position of a civil servant – without pension, gratuity, and other facilities – in a way that he/she is ineligible for future employment as a public servant if he/she is accused and found guilty of a criminal offense that exhibits immorality, and/or proven to be involved in corruption. In the proposed amendment, attaining or applying for permanent residency in a foreign country, or lying about one’s skills, age, citizenship in order to be appointed to the civil service (or maintain one’s tenure in it) can lead to termination from the civil service with ineligibility for government jobs in the future, without pension and gratuity, but with the ability to withdraw money from the employee’s provident fund and insurance. It is not appropriate that the four above-mentioned instances of misconduct have almost identical penalties. A minor corruption case, lying about one’s age, or taking a permanent residency permit in a foreign country should not be treated in the same way as a major corruption scandal or a serious criminal offense. Finally, what kind of crime should be understood as one which exhibits immorality needs to be clarified.

Section 71 A of the Act elaborates on the unpaid leaves offered to civil servants whose spouses are employed at a Nepali embassy or mission abroad. 71 B of the proposed bill is about a provision that talks about prohibiting facilities other than insurance and employee’s provident fund. The provisions do not belong in the same section. 71 A should be added as 73 A and other subsections of 71 and 73 arranged accordingly.

Conclusion

The Civil Service Act is centred on the terms and conditions of employment and management of civil servants. Therefore, questions might be raised about how the proposed amendments can impact the lives of those outside of the civil service, namely ordinary citizens, working professionals of various sectors, consumers, etc. But it is prudent for all corners of civil society to pay attention to this legislation. The civil service is the arm of government that brings policies into implementation. The proposed changes will certainly impact the civil service, and in doing so will improve the service delivery of the state.

Whether groupings within the civil service need to be specialised or kept as a general categories in order to make the service more efficient is an important question. Regarding this, it is advisable to bring all the various services under one umbrella Act and to form specialised services according to the working procedure of each service. This will allow the civil service to be more professional. Under the umbrella Act, positions up to the under secretary level must be established as general and the secretary and joint secretary level positions as specialised.

Over the last few years, civil servants and other government workers have been known to acquire residential permits in other countries, which has negatively impacted the functioning of the civil service, ultimately rendering the service delivery of the state inefficient. In order to control this trend, civil servants and other government employees must be prohibited from acquiring permanent or temporary residential permits in other countries while holding tenure at a government office. This will allow a civil servant to freely pursue obtaining a residential permit for a foreign country after he/she submits a resignation from his/her post.

Finally, regarding what is inappropriate to prohibit in terms of outside engagements, civil servants must be given the right to freely pursue education and skill-enhancing activities outside of office hours without imposing any conditions.

This recommendation paper prepared by legal expert Dr. Bharat Raj Gautam for the Nepal Constitution Foundation has been finalised based on the inputs given by current and former CA members and various pressure groups: women’s, ethnicity-based, Dalit, Madeshi, youth, and others. The Constitutional Foundation would like to thank Kashiraj Dahal, Shiva Chandra Chaudhary, Ratna Gurung, Madhav Prasad Poudel, Sushma Chaudhary, Dilkumari Rai, Mohan Narayan Dahal, Ram Prasad Ghimire, Shyam Kumar Bishwokarma, Nabin Wagle, Elina Gurung, Sabin Rana, as well as Dr. Bipin Adhikari.

This research has been conducted with the help of The Asia Foundation. But the thoughts presented here belong to the author; they do not represent the Foundation or its point of view.

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