With radical steps to reform civil service, many senior executives had to resign and many more are being assessed to build strong leadership. Such bold steps must be lauded. But there can also be unintended consequences due to such drastic measures. Therefore, the aggrieved civil servants must also have the right to appeal. However, even after decades of enactment of the Civil Service Act, the Civil Service Tribunal is yet to be established.

Section 94 of the Civil Service Act (CSA) 2010 states that “An Administrative Tribunal may be established to adjudicate the civil service appeal cases.” This is an extremely important system to protect the civil servants from any form of arbitrariness or unfair proceedings against them by the Commission. Rule no. 19 of Bhutan Civil Service Rules and Regulations (BCSR) 2018 states that “Every civil servant subject to disciplinary action shall have the right to written reasons for any disciplinary action that is taken against him/her; prior and adequate notice of the nature and reasons for the intended disciplinary action; Opportunity to be heard and placed on record; and right to an appeal or review of a disciplinary decision.” Managing out is disciplinary action leading to loss of jobs or demotion – a major penalty under the civil service laws. Therefore, there must be an appeal system to ensure that such actions are taken after following all the due process of law.

This concept is based on the two important rights under natural justice. First, the right that no one should be made a judge in his own cause and rule against biased (Nemo judex in causa sua). Since the RCSC takes the decisions against its own employees, there can be intentional and unintentional administrative actions which can be wrong. Second, the right to hear the other party or no one should be condemned (Audi alteram partem) must be ensured. For example, in the recent managed out scheme, those senior executives should be given the right to defend their case as to why they should not be managed out or why their evaluations could be wrong or what led to their poor performance.  

Section 61 of CSA requires that “the Commission shall institute and oversee the implementation of a transparent, objective and fair performance evaluation system, amongst others, to reward and promote deserving civil servants.” This gives the civil servants the right to know who and how the assessments were carried out, including the criteria.  Further, if the Commission used the exact same criteria for every executive assessment, it may not have worked because of the nature of their work and authority. For example, directors or equivalent positions in completely autonomous agencies may have far more authority and responsibilities compared to a small department within a ministry. It could also be that some executives have the right qualification and technical expertise matching their department while some may have completely different expertise which makes their job more difficult in their current positions. Currently, there are no checks and balances on the decisions of the RCSC.

The Civil Service Tribunal will rule out any such discrepancies, help reduce unintentionally or misjudged or wrongly assessed executives or civil servants and hold the officials assessing the civil servants accountable.  Any intentional or unintentional mistakes on part of assessing team should not lead to managing out such senior executives after serving years of service as it will cause irreparable injustice.  

Sonam Tshering

Lawyer, Thimphu

Disclaimer: The views expressed in this article are author’s own.