In India there is clear dividing line. Higher bureaucracy deals with VIPs. Lower bureaucracy deal with lesser citizens.
(Photo downloaded from internet)
On April 6, 2016 Times of India reported a great discovery by a senior IAS officer: in a Facebook post Coal Secretary Anil Swarup squarely blamed ‘5Cs’ – Central Vigilance Commission, Central Information Commission, Central Bureau of Investigation, Comptroller and Auditor General and courts – for inhibiting quick and effective decision-making and impending the country’s development.
So far it is not known whether the Prime Minister has discussed with him modalities of how to rein in, if not to do away with, these spoilers. It is also not known whether according to Coal Secretary ‘5Cs’ have always been impending the country’s development or only since Narendra Modi became Prime Minister. However, it is a public knowledge that bound by the constitutional mandate and nature of the office, CAG has always been needling the government, that from time to time courts have been pulling up the governments for showing extra softness to favourites and CIC has always been lamenting lack of response from the government. But during the UPA regime in particular CBI was very cooperative and tried its level best to ensure success of the decisions taken by the government for ‘fast development’ of the country. One CBI director was so enthusiastic that he had kept doors of his residence open all the 24 hours so that no ‘development work’ suffered for want of his support and for that he was decorated with the title of ‘caged parrot’. One Chief Central Vigilance Commissioner was also known to be ‘pro-development’ but had to go unceremoniously because of unsympathetic environment. The apex court of course is trying to undo many of the decisions taken by the Manmohan Singh government.
Mercifully, Coal Secretary has not blamed many other ‘Cs’ such as Cabinet, Cabinet Secretary, Central Board of Direct Taxes, Central Secretariat and the office of the Coal Secretary himself. (The last one perhaps tried its level best to cooperate with the UPA government to improve the energy scenario in the country.) Another important ‘C’ – Central Administrative Tribunal (CAT) - is perhaps included in ‘courts’
When a senior bureaucrat like Coal Secretary writes something about the constraints on the government, he must have done so on the basis of his vast experience. I may not have as much experience as he has got but I have also worked in Government of India for 37 years: last four years as member of a national tribunal, before that for 2 years as Additional Secretary and 5 years a Joint Secretary (as chief monitor of development projects) in the Department of Programme Implementation, before that for 11 years in the Planning Commission (starting as Deputy Secretary and ending as head of the Project Appraisal Division) and the rest in the Department of income tax.
My experience is that the real culprit is another 'C' which we have developed in our country/ I would like to call it ‘common kitchen model of government’. Common kitchen, as everyone knows, is a kitchen which is not owned by any individual or family or organisation but is shared by many. Everyone who wants to cook his/her dish goes to the kitchen, uses the facilities available there and walks out with the dish. When political leadership wants to ‘cook’ a ‘dish’ (read, policy decision or scheme or project or any issue) normally it gets full cooperation of senior as well as junior bureaucracy, the other users and beneficiaries of the 'common kitchen'. Similarly, when senior bureaucracy’s interest is at stake, it ensures that the entire common kitchen is at its service. When a ‘menu’ is before the government in which neither political leadership nor senior bureaucracy is interested, lower bureaucracy has full control over the ‘common kitchen’ and prepares ‘dish’ to its full satisfaction.
I can give several examples on the basis of my experience, particularly when I was given assignments to carry out ex-ante appraisal, monitoring and concurrent/ex-post evaluation of development projects which gave me opportunity to see how ministers and senior bureaucrats function. Most of them had little understanding of the issues and much less interest in solving the problems. Because of such ministers and bureaucrats development projects and schemes often look like babies born with congenital deformities and keep on limping for years. But here I would like to share what I have been experiencing for the last 17 years due to the ‘common kitchen model of government’.
In April 1999 I was appointed member of the Appellate Tribunal for Forfeited Property (ATFP), a national appellate tribunal that hears appeals against forfeiture of properties acquired by smugglers and drug traffickers. My trouble started when I discovered that since 1989 the government had been appointing members in a scale lower than what was prescribed under the rules. The ATFP was originally set up in 1978 under the Smugglers and Foreign Exchange Manipulators Act (SAFEMA). The rules framed under the SAFEMA prescribed salary of Rs. 3000 (known as HAG), corresponding to the scale of Rs. 22400-24500 post-Fifth pay commission. In 1989, while giving additional responsibility to hear appeals against forfeiture of properties under the Narcotic Drugs and Psychtropic Substances Act (NDPSA), the rules framed under the NDPSA upgraded the member’s salary to Rs. 7600 (known as HAG+), corresponding to Rs. 24,050-26,000 post-Fifth pay commission. The government had not implemented its own rule of 1989.
The financial implication was negligible but I decided to demand implementation of the 1989 rule as a matter of principle. Four representations –first two by the ATFP chairman and next two by me – were sent to Secretary, Department of Revenue (DOR). After the first representation a new Secretary replaced the earlier one and my chairman sent a letter to him too. Normally, the first representation itself should have set off alarm bells: how come a rule i.e. a subordinate legislation framed by the government and placed on the table of each house of the Parliament had not been implemented for more than 10 years. Despite the fact that the chairman had personally discussed the issue with both the Secretaries and the second Secretary had known me personally for a long time, none had any interest in the service conditions of members of an appellate tribunal which was against the interest of the high and mighty and which was not manned by IAS officers. All the four representations were forwarded to ‘whosoever it may concern’ and in a free fall, each representation landed on the table of an assistant because the next destination was waste- paper basket or shredding machine or something like Bermuda Triangle from where nothing comes back. The result was that the problem which could and should have been solved in maximum 5-6 days has been kept pending even after 17 years.
When the government rejected my representations for implementation of the 1989 rules and illegally downgraded the pay scale prescribed under the 1989 rules to cover up the mistake, I was constrained to approach the CAT. The CAT order dated May 2 2003 accepted my claim and directed the government to give me salary as per the 1989 rules. The government challenged the order before the Delhi High Court. After six years of consideration, on July 20, 2010 the High Court set aside the CAT order on the ground that the CAT had jurisdiction only over government servants whereas I being a member of ATFP was not a government servant. Perhaps, their Lordships could not get time to go through the subordinate legislation (1989 rule) framed under the legislation enacted by the Parliament which clearly stated that a member of ATFP was a government servant. I had to file a petition in Delhi High Court. After nearly 5 years, on January 6, 2015 the High Court allowed my petition and directed the government to pay arrears with interest. After giving false impression for a few months that the order would be implemented, the government went to the Supreme Court which concurred with the High Court and rejected government's appeal. Since the government was not implementing the High Court order, I filed a contempt petition which is pending before the High Court. So far, the government has paid only a small fraction of arrears due to me.
The legal battle for implementation of the government’s own order started when I was less than 60 years of age. Now I am past 75. I have spent more than Rs. 3 lakh on litigation, besides thousands of rupees for obtaining information under the Right to Information Act (RTI Act) and thousands of hours of time on preparation of materials and collection of information under the RTI Act. During the entire legal battle the government resorted to all sorts of lies to cover up their mistake. In fact, I found only four facts in the affidavits filed by the government: (1) there is an ATFP to hear appeals against forfeiture of properties under the SAFEMA and the NDPSA; (2) Devendra Narain was appointed Member ATFP in the pay scale of Rs. 22,400-24,500; (3) there were representations for higher pay scale; and (4) subsequent to representations the pay scale of member ATFP under NDPSA was fixed as Rs. 22,400-24,500. The rest was bundle of lies and misinterpretation of rules. The government behaved as if I was demanding a higher scale of pay beyond the terms of appointment decided by the government within their administrative powers while the fact is that I had simply asked for implementation of the rules framed by the government in 1989 which were illegally changed, after my representations, to my detriment.
The internal file notings obtained under the RTI Act are quite revealing. All the decisions, from rejection of representations to contesting the contempt of court petition, were taken at the desk officer level and, wherever needed, approval of senior officers was obtained without any question being asked. The lower bureaucracy succeeded in hoodwinking even the Secretary of the Department and Minister. Before the government went to the Supreme Court, I had sent two representations to Finance Minister (in June 2015) and one representation to Revenue Secretary (in August 2015) giving the background of the case and requesting them to direct the officials to implement the High Court order. None bothered to find out why the government had been fighting an unnecessary legal battle for such a long time. None had any interest in what the lower bureaucracy had been ‘cooking’ in the common kitchen because they had no interest in the issue. The Attorney General of India himself appeared before the Supreme Court and tried his level best to mislead his Lordship who rightly snubbed him (Attorney General).
Even the contempt petition against Revenue Secretary has not stirred the higher bureaucracy. It has been taken as a routine case. The High Court has been granting time as demanded by the government. The last hearing was on March 9, 2016. The next date is on May 10, 2016.
This is how the ‘common kitchen model of government’ functions. Everyone goes to the kitchen only to 'cook' his/her favourite 'dish' Whoever is interested ‘cooks’ dishes to his/her liking. When neither the political leadership nor the higher bureaucracy has any stake or interest, the lower bureaucracy is free to ‘ cook’ whatever it desires. The lower bureaucracy ‘cooked up’ my case perhaps also because I did not offer any ‘logistics support’ to them.
If this is how simple cases are handled, imagine how complicated cases are handled when neither the political leadership nor the higher bureaucracy takes any interest and the matter is left to be decided by the lower bureaucracy. Everyone goes to the kitchen only to 'cook' his/her favourite 'dish' This is why decisions are not taken or delayed in the government.
It is high time Prime Minister Modi gets familiar with the 'common kitchen model of government' he is presiding over.
April 8, 2016
Please also read: Who really governs India? In two parts