RIGHT TO INFORMATION ACT - In order to promote transparency and accountability in the working of every public authority Stop giving Oral instructions or directions by the administrative superiors, political executive etc. & directions to the Union State Governments and Union Territories to issue appropriate directions to secure providing of minimum tenure of service to various civil servants, within a period of three months. =
We notice, at present the civil servants are not having stability of
tenure, particularly in the State Governments where transfers and postings
are made frequently, at the whims and fancies of the executive head for
political and other considerations and not in public interest. The
necessity of minimum tenure has been endorsed and implemented by the Union
Government. In fact, we notice, almost 13 States have accepted the
necessity of a minimum tenure for civil servants. Fixed minimum tenure
would not only enable the civil servants to achieve their professional
targets, but also help them to function as effective instruments of public
policy. Repeated shuffling/transfer of the officers is deleterious to good
governance. Minimum assured service tenure ensures efficient service
delivery and also increased efficiency. They can also prioritize various
social and economic measures intended to implement for the poor and
marginalized sections of the society.
31. We, therefore, direct the Union State Governments and Union
Territories to issue appropriate directions to secure providing of minimum
tenure of service to various civil servants, within a period of three
months.
................................................................................................................... Democracy requires an informed citizenry and transparency of
information.
Right to Information Act, 2005 (RTI Act) recognizes the right
of the citizen to secure access to information under the control of public
authority, in order to promote transparency and accountability in the
working of every public authority.
Section 3 of the Act confers right to
information to all citizens and a corresponding obligation under Section 4
on every public authority to maintain the records so that the information
sought for can be provided.
Oral and verbal instructions, if not recorded, could not be provided.
By acting on oral directions, not recording the
same, the rights guaranteed to the citizens under the Right to Information
Act, could be defeated.
The practice of giving oral directions/instructions
by the administrative superiors, political executive etc. would defeat the
object and purpose of RTI Act and would give room for favoritism and
corruption.
35. We, therefore, direct all the State Governments and Union Territories
to issue directions like Rule 3(3) of the All India Services (Conduct)
Rules, 1968, in their respective States and Union Territories which will be
carried out within three months from today.
36. The Writ Petitions are, accordingly, disposed of with the above
directions.
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL ORIGINAL JURISDICTION
WRIT PETITION (CIVIL) NO.82 OF 2011
T.S.R. Subramanian & Ors. … Petitioners
Versus
Union of India & Ors. … Respondents
WITH
WRIT PETITION (CIVIL) NO.234 OF 2011
J U D G M E N T
K.S. Radhakrishnan, J.
1. Article 32 of the Constitution of India has been invoked by few
eminent retired civil servants highlighting the necessity of various
reforms for preservation of integrity, fearlessness and independence of
civil servants at the Centre and State levels in the country.
Prayers
made in this writ petition are based on various reports and recommendations
made by several Committees appointed for improving the public
administration.
On the basis of various reports, following reliefs are
sought in the writ petition :-
(i) Issue a writ in the nature of mandamus or any other appropriate writ,
order or direction requiring the Respondents to create an
“independent” Civil Service Board or Commission both at the Centre and
the State based on recommendations by the Hota Committee, 2004 (para
5.09, para 5.11, Main Recommendations No.38); the 2nd Administrative
Reforms Commission 2008 (10th Report, para 9.8); the statement adopted
at the Conference of Chief Ministers on Effective and Responsive
Administration, 1997;
(ii) Issue a writ in the nature of mandamus or any other appropriate writ,
order or direction requiring the respondents to fixed tenure for civil
servants ensuring stability based on recommendations by Jha Commission
1986 (para 7.2); Central Staffing Scheme, 1996 (para 17.01, para
17.02, para 17.03, para 17.12), the 2nd Administrative Reforms
Commission (10th Report, para 8.7, para 9.8, para 17.5), Hota
Committee Report, 2004 (Main Recommendations No.39);
(iii) Issue a writ in the nature of mandamus or any other appropriate writ,
order or direction requiring the respondents to mandate that every
civil servant formally record all such instructions/directions/
orders/suggestions which he/she receives, not only from his/her
administrative superiors but also from political authorities,
legislators, commercial and business interests and other
persons/quarters having interest, wielding influence or purporting to
represent those in authority based on the principles recognized by
Rule 3(3)(ii)(iii) of the All India Service Conduct Rules, 1968 and as
implicitly recognized by the Santhanam Committee Report, 1962 (Section
6, sub-para 33[iii].
2. This Court, considering the importance of the matter, issued notice
to various State Governments and the Union Territories so as to ascertain
their views on the various issues raised in this case. Most of the States
have filed detailed counter affidavits explaining their stand with regard
to the reliefs prayed for in this writ petition.
3. Shri K.K. Venugopal, learned senior counsel appearing for the writ
petitioners, referred elaborately to the above-mentioned reports and
highlighted the necessity of the creation of a Civil Service Board (for
short ‘CSB’), both at the Centre and State level, with a degree of
independence so that it can make recommendations on all transfers and
postings without sacrificing the executive freedom of the Government.
Learned senior counsel pointed out that such CSB shall function in a bare
advisory capacity and its recommendations will not impose any constraint on
the independence of the political authority to effect postings and
transfers, including premature transfers. Learned senior counsel also
highlighted the necessity for providing a fixed tenure for civil servants
ensuring stability which is highly necessary for implementing various
programmes which will have social and economic impact on the society.
Learned senior counsel also highlighted the reasons for recoding of
instructions, directions and orders by the civil servants so that they can
function independently and the possibility of arbitrary and illegal
decisions could be avoided.
4. Mr. Paras Kuhad, learned ASG appearing for the Union of India,
opposed in principle prayer for setting up of independent CSB at the Centre
and the State levels, which, according to the learned ASG, would be
interfering with the governmental functions. Learned ASG also submitted
that any mechanism within the governmental structure could be thought of,
but involvement of any person, howsoever high he may be, who is not part of
the Centre or the State Government, would not be advisable, especially in
the absence of any such provision in the Constitution or the laws made by
Centre and the State Governments. Learned ASG also submitted that based
on the 2nd Administrative Reforms Committee (ARC), a draft Bill entitled
“Civil Services Performance Standards and Accountability Bill, 2010” was
provided incorporating certain recommendations in the above-mentioned
reports. Further, it was pointed out that the draft Cabinet Note for the
introduction of the said Bill in the Parliament is under consideration of
the Central Government. Further, it was also submitted that for fixing the
minimum tenures of cadre post in the Indian Administrative Service was
initiated in November, 2006 by the Department of Personnel & Training.
Cadre controlling authorities of the Indian Police Service and Indian
Foreign Service were also requested to take necessary follow-up action for
fixing the minimum tenures in the cadre post for the Indian Police Service
and Indian Foreign Service. During the process of consultation, it was
pointed out that comments of the State Governments were sought on the
proposal of fixing minimum tenure of posting of IAS Officers. 13 State
Governments agreed with the proposal, while some States did not agree. The
matter was further discussed in the meeting with the Chief
Secretary/Principal Secretaries of the States concerned on 31.5.2007 and
again on 4.7.2008 in Delhi. Notification providing for two years minimum
tenure for IAS posting having been issued for 13 States/Joint Cadres.
Reference was also made to study report of “Centre for Good Governance”,
Hyderabad and it was stated that the same is under consideration with the
Central Government. With regard to the prayer for recording of
instructions/directions, etc., it was pointed out that the requirements are
provided under the All India Service Conduct Rules.
5. Learned counsels appearing for the State Governments and the Union
Territories have also placed their stand on various reliefs sought for in
this writ petition. Learned Standing counsel appearing for the State of
Uttar Pradesh submitted that the State has already established Civil
Service Boards in terms of the Government orders dated 24.12.2001 and
19.5.2007, which is meant to operate with respect to IAS and Provisional
Civil Services, Indian Police Services and Provisional Police Services and
for Indian Forest Services and their feeder services. Over and above, the
State has also formulated transfer policy dated 15.5.2008. Learned
counsel appearing for the State of Maharashtra also made reference to the
Maharashtra Government Servants Regulations of Transfers and Prevention of
Delay in Discharge of Official Duties Act, 2005 and submitted that the Act
provided for transfer of Government servants and prevention of delay in
discharge of official duties.
6. Reliefs prayed for in this writ petition are based on the Hotta
Committee Report, 2004, 2nd Administrative Reforms Commission (10th
Report), 2008. 2nd Administrative Service Commission (15th Report), the
Report of the Committee on Prevention of Corruption, Santhanam Committee
Report, etc. We have gone through those reports in detail.
A. CIVIL SERVICE BOARD (CSB):
7. The Government of India on 3rd February, 2004, appointed the Hota
Committee to examine the whole gamut of Civil Service reforms and the terms
of reference of the Committee were as follows :-
“(i) Making the Civil Service
• responsive and citizen-friendly;
• transparent;
• accountable; and
• ethical
in its (a) actions and (b) interface with the
people,
(ii) Making the civil service e-governance friendly.
(iii) Putting a premium on intellectual growth of civil servants and
on upgrading their domain knowledge,
(iv) Protecting the civil service against wrongful pressure
exerted by
(a) administrative superiors;
(b) political executive;
(c) business interests; and
(d) other vested interests.
(v) Changes, if any necessary, in the various All India Services
Rules and Central Civil Rules to provide a statutory
cover to the proposed civil service reforms.
(vi) Changes in rules governing the disciplinary proceedings
against civil servants to decentralize the process as
far as practicable, and to make the disposal of such proceedings
time-bound.
(vii) Any other matter that the Committee may consider relevant
to the subject of civil service reforms.”
8. On establishment of Indian Civil Services Board, the Hota Committee
made the following recommendations :-
“5.09 We found that some States complied with the recommendations of
the Conference of Chief Ministers and set up Civil Services
Boards/Establishment Boards with Chief Secretary of the State as the
Chairman and other senior officials of the State as Members. But the
Boards set up by executive order in different States have failed to
inspire confidence as more often than not, they have merely formalized
the wishes of their Chief Ministers in matters of transfer of
officials. We are firmly of the view that a Civil Services Act has to
be enacted to make the Civil Services Board / Establishment Board both
in the States and in the Government of India statutory in character.
In the proposed set up in the Government of India, the Appointments
Committee of the Cabinet will be the final authority for transfer of
officers under the Central Staffing Scheme. The same principle of
fixed tenure should apply to senior officers, who are not under the
Central Staffing Scheme, but are working under the Government of India
for which the Departmental Minister in charge is the final authority
for transfer. The Chief Minister will be the final authority for
transfer of all Group 'A' officers of State Service and AIS officers
serving in connection with affairs of the State. If a Chief Minister
does not agree with the recommendations of the Civil Services Board/
Establishment Board, he will have to record his reasons in writing. An
officer transferred before his normal tenure even under orders of the
Chief Minister can agitate the matter before a three-member Ombudsman.
The Chairperson of the Ombudsman will be a retired official of proven
honesty and integrity. The other two members can be on part-time basis
from among serving officers. In all such premature transfers the
Ombudsman shall send a report to the Governor of the State, who shall
cause it to be laid in an Annual Report before the State Legislature.
The Ombudsman may also pay damages to the officer so transferred to
compensate him for dislocation and mental agony caused due to such
transfer. We are conscious that we are recommending a statutory
barrier to frequent transfer of senior officials but the matter has
come to such a pass that it requires a statutory remedy. We also
clarify that the Chief Minister as the highest political executive has
the final powers to order transfer of an officer before his tenure is
over.
5.10 We are also of the opinion that postings of all Group 'B'
officers must be done by the Head of the Department in a State and the
same tenure rule shall be given a statutory backing. We were advised
by some witnesses that only the Chief Minister's orders for transfer
should be taken in case of Group 'A' officers / officers of All India
Services and no Minister of a State should have any powers to order a
transfer or approve a proposal for transfer of any official either of
any State Service or of the All India Service. We agree with the view,
as in our opinion owing to reasons of political expediency or even due
to unwholesome reasons, Ministers in States often are not able to make
proper use of the power vested in them for transfer of their
departmental officers. If a Minister has cogent reasons to ask for
transfer of an official before he completes his tenure, he will move
the Civil Services Board to be set up under the new Civil Services Act
and the Civil Services Board, with its views on report of inquiry by a
designated officer, shall submit the case to the Chief Minister for
final orders. Thus in a State Government, a Minister's proposal for
transfer of any officer of Group 'A'/Group 'B' will be formally
decided by the Chief Minister of the State.
5.11 In our opinion, Civil Services Boards must be set up in all
States on similar lines as at the Centre. The Central Act should have
a provision to enable the States to adopt the law and make it
applicable in the States, without going through the long process of
drafting a new law and getting it passed in the Legislature. The Civil
Services Board in a State - chaired by the Chief Secretary and
comprising senior officers - shall perform the functions relating to
transfer, empanelment, promotion, and deputation of officers performed
by the Establishment Board of Government of India/Special Committee of
Secretaries of Government of India, both of which are chaired by the
Cabinet Secretary. Under Article 309 of the Constitution, Parliament
may also enact a Civil Services Act setting up a Civil Services Board
for the Union Government which will perform the functions being
performed at present by the Establishment Board presided over by the
Cabinet Secretary. The Civil Services Act may also provide for a
Special Committee of Secretaries to prepare panel of names for
appointment for posts of Additional Secretaries and Secretaries to
Government of India. Under the new Civil Services Act, a Cabinet
Minister/Minister of State with independent charge in Government of
India may be given a time limit to accept/send back proposals for the
Establishment Board regarding posting of officers with his
observations. In any particular case, if the Establishment Board after
giving the views of the Minister in charge its utmost consideration
does not change its original recommendation, the Cabinet Secretary may
send proposals of the Establishment Board with observations of the
Minister in charge through the Home Minister, a Member of the ACC to
the Prime Minister, who heads the ACC for a final decision.
5.12 Inter alia, a Civil Services Board of a State shall also perform
functions of recommending officers of All India Service/Group 'A1
service of the State for transfer to different posts under the State
Government. It would be expedient before an officer is sought to be
transferred in the public interest when he has not completed his
tenure, that an administrative inquiry of a summary nature is held to
ascertain if the transfer is justified as a matter of public policy.
The administrative inquiry will be conducted as expeditiously as
possible by a designated officer nominated by the Civil Services
Board. In appropriate cases, the Civil Services Board may also direct
the officer to proceed on leave on full pay and allowances till the
administrative inquiry is over and a decision is taken regarding his
transfer. The designated officer to conduct the inquiry will be
ordinarily the Reporting Officer of the officer sought to be
transferred. The Civil Services Board on receipt of the report of
inquiry of the designated officer shall advise the Chief Minister
regarding justification for transfer of the officer in the public
interest before his normal tenure is over. Ordinarily the Chief
Minister is expected to agree with the recommendations of the Civil
Services Board as transfer of an official is a routine administrative
matter on which a Civil Services Board must have a decisive role. But
if the Chief Minister does not agree with the Civil Services Board and
orders transfer of an official before his tenure is over, he may have
to record in writing reasons for such transfer. If the official is
transferred before his tenure without adequate justification, he will
have the right to approach a three member Civil Service Ombudsman set
up for the purpose.
Recommendation 38: In the proposed Civil Service law, the highest
political executive shall continue to be the final authority to order
transfer of any officer before his tenure is over; but he will be
expected to give due consideration to Report of the Administrative
Inquiry/views of the Civil Service Board/Establishment Board and
record reasons on the need for premature transfer of an officer. It is
reiterated that the political executive shall have the final authority
to transfer an officer at any stage in the public interest. An officer
aggrieved by order of premature transfer can agitate the matter before
a three-Member Ombudsman, who may, where suitable, award monetary
compensation to the aggrieved officer. The constitution of the
Ombudsman will be the same as the Ombudsman proposed for the Disputes
Redressal Council as at para 6.19 of this Report. The
President/Governor shall receive reports from the Ombudsman and shall
lay an Annual Report on such transfers on the table of the
Legislature. There should be a suitable provision in the law to enable
States to adopt it and make it applicable in the States without going
through the long process of drafting a law and get it passed in the
Legislature. {para 5.03 to 5.10)”
9. The 2nd Administrative Reforms Commission was set up by the President
reflecting the Resolution dated 31st August, 2005 passed by the Government
of India. The Commission was set up to suggest measures to achieve a
preemptive responsible, accountable, sustainable and effective
administration for the country at all levels of the government. The tenure
of the Committee was extended from time to time and the Committee submitted
its report in the year 2008. On the question of the setting up of the
independent CSB, the Committee has made the following recommendations :
“9.7.1 The Commission suggests that an independent ‘Authority’ should
deal with matters of assignment of domains, preparing panels for
posting of officers at the level of SAG and above, fixing tenures for
various posts, deciding on posts which could be advertised for lateral
entry etc. As this Authority would be performing the above-mentioned
crucial tasks, it would be necessary to ensure its independence by
giving it a statutory backing and stipulating that it should be headed
by an eminent person with experience of public affairs to be appointed
by the Prime Minister in consultation with the Leader of the
Opposition in the Lok Sabha. The Authority should have a full time
Member-Secretary of the rank of Secretary to Government of India, and
persons of eminence in public life and professionals with acknowledged
contributions to society as Members of the Authority. This Authority,
to be named as the Central Civil Services Authority, should be
constituted under the proposed Civil Services Act. As the constitution
of the Central Civil Services Authority under a new law may take some
time, the said Authority may be constituted, initially, under
executive orders.”
10. Para 9.8.e also refers to the composition of the Committee which
reads as follows :-
“9.8.e. A Central Civil Services Authority should be constituted under
the proposed Civil Services Bill. The Central Civil Services Authority
shall be a five-member body consisting of the Chairperson and four
members (including the member-secretary). The Authority should have a
full time Member-Secretary of the rank of Secretary to Government of
India. The Chairperson and members of the Authority should be persons
of eminence in public life and professionals with acknowledged
contributions to society. The Chairperson and members of the Authority
shall be appointed by the President on the recommendations of a
Committee consisting of the Prime Minister and the Leader of the
Opposition in the Lok Sabha.
(Explanation:- Where the Leader of the Opposition in the Lok Sabha has
not been recognized as such, the Leader of the single largest group in
the Opposition in the Lok Sabha shall be deemed to be the Leader of
the Opposition).”
11. The Second Administrative Reforms Commission Fifteenth Report (April
2009) has also made various suggestions in order to provide legislative
backing to these measures, the Commission has recommended enactment of a
Civil Services Law which will cover all personnel holding civil posts under
the Union. The Commission recommended for the constitution of a Central
Civil Service Authority, among other things, which reads as follows:
“VIII. Constitution of the Central Civil Services Authority:
i. The Central Government shall, by notification in the Official
Gazette, constitute a body to be known as the Central Civil
Services Authority to exercise the powers conferred on, and to
perform the functions assigned to it, under this Act.
ii. The Central Civil Services Authority shall be a five-member body
consisting of the Chairperson and four members (including the
member-secretary). The Authority should have a full time Member-
Secretary of the rank of Secretary to Government of India. The
Chairperson and members of the Authority should be persons of
eminence in public life and professionals with acknowledged
contributions to society. The Chairperson and members of the
Authority shall be appointed by the President on the
recommendations of a Committee consisting of the Prime Minister
and the Leader of the Opposition in the Lok Sabha.
(Explanation:- Where the Leader of the Opposition in the Lok Sabha has
not been recognized as such, the Leader of the single largest group in
the opposition in the Lok Sabha shall be deemed to be the Leader of
the Opposition).
2.4.2.5 Subsequently, in its Report on “Refurbishing of Personnel
Administration” (the Tenth Report), the Commission suggested a
detailed procedure for placement of officers at the
middle and top management levels in the Union Government. It calls for
the constitution of a Central Civil Service Authority by law, which
will be an independent five member body consisting of persons of
eminence in public life and professionals with acknowledged
contributions to Society. This Authority will be empowered to deal
with a large number of issues concerning civil services such as
assignment of domain to officers, preparing panels for posting at the
levels of Joint Secretary and above, fixing tenures for senior
assignments and such other matters that may be referred to it by the
Union Government. The Commission is of the view that there should be a
similar Civil Services law and a State Civil Services Authority for
each State. The mandate and functions of the State Body would largely
coincide with those prescribed under the proposed Union Civil Services
Law. This Authority should deal with issues of appointment and tenure
of higher officials of all ranks in the State Governments including
the Chief Secretary, Principal Secretaries, Engineer-in-Chiefs and the
Principal Chief Conservator of Forests. However, till the time the
proposed law is enacted and the State Civil Service Authority is
constituted, recommendations made at para 2.14.2.5 above may be
immediately adopted by all the State Governments.
2.4.2.6 Recommendations:
a) After enactment of the State Civil Services Law on the lines of
the proposed Union enactment, the proposed State Civil Service
Authority should deal with matters concerning appointment and
tenure of senior officers of all ranks in the State Governments
(including the Chief Secretary, Principal Secretaries, Engineer-
in-Chiefs, other Agency Heads and Principal Chief Conservator of
Forests).
b) Till the time that such an Authority is constituted, the
following mechanism may be adopted for appointment of the Chief
Secretary and Principal Conservator of Forests in the States:-
• There should be a collegiums to recommend a panel of names to
the Chief Minister/Cabinet for these two posts. For the
post of Chief Secretary, this collegium may consist of (a)
a Minister nominated by the Chief Minister, (b) the Leader
of the Opposition in the State Legislative Assembly and (c)
the incumbent Chief Secretary. For the selection to the
post of Principal Chief Conservator of Forests the
collegiums may consist of (a) The Minister In-charge of
Forests, (b) the leader of Opposition in the State
Legislative Assembly and (c) the Chief Secretary.
• There should be a fixed tenure of atleast two years for
both these posts.
• The selection for the post of Chief Secretary and
Principal Chief Conservator of Forests should be widened to
include all officers above a specified seniority (e.g. 30
years). All officers with a eniority higher than a
prescribed limit should be eligible to be a part of the
panel.
c) As regards the appointment and tenure of the Director General of
Police, the recommendations made by the Commission in its Report
on “Public Order” at para 5.2.3.7 should be implemented.”
12. We have elaborately referred to the Report of the Hota Committee,
Report of the 2nd Administrative Commission, 2008-2009, which highlighted
the necessity of creation of an independent CSB at the Centre as well as
the State level.
B. FIXED TENURE:
13. Various Committees have also recommended and highlighted the
necessity of providing fixed tenure for a civil servant so as to ensure
stability and efficiency of administration. The Central Staffing Scheme,
1996, highlighted the necessity of a fixed tenure to provide certain degree
of stability to the administration. Reference in this regard may be made to
paras 17.01, 17.02, 17.03, 17.12 and 17.13 and the same are extracted
hereinbelow for easy reference :
“17.01 The fixed tenure of deputation of posting under the Central
Government is the heart of the Central Staffing Scheme. Rotation
between the Centre and the States, Central Ministries and parent
cadres, and headquarters and the field, provide a certain degree of
pragmatism to policy formulation and programme implementation from the
Central Ministries. Based on the experience gained so far, the periods
of tenure at the different levels have been prescribed as under:-
i Under Secretary 3 years
ii Deputy Secretary 4 years
iii. Director 5 years
iv. Joint Secretary 5 years
17.02 An officer holding the post of Joint Secretary or equivalent,
when appointed to a post under the Government of India at the level of
Additional Secretary, would have a tenure of 3 years from the date of
appointment as Additional Secretary subject to a minimum of 5 years
and maximum of 7 years of combined tenure as Joint Secretary.
Additional Secretary. Where an officer remains on leave (either from
the Centre or from his Cadre authority or both) on the expiry of his
tenure as Joint Secretary till his appointment as Additional
Secretary, the leave period shall be counted as tenure deputation.
Additional Secretary 4 years, except for cases covered under the
previous heading.
Secretary No fixed tenure.
17.03 Every officer shall revert at the end of his tenure as indicated
above on the exact date of his completing his tenure. He will,
however, have a choice to revert to his cadre on the 31st May previous
to the date of the end of his tenure in case personal grounds such as
children's education etc., necessitate such reversion. No extension
after completion of the full tenure would be allowed.
17.12 (a) Officers of the Indian Foreign Service appointed to posts
under the Central Staffing Scheme would have a tenure of three years.
(b) They shall not normally be relieved, except with the approval of
the appointments Committee of the Cabinet from a Central Staffing
Scheme post before their tenure.
17.13 No lateral shifts of officers from one Ministry/I)eptt. to
another will normally be considered. However, in the case of Private
Secretary to Ministers the policy followed would be :-
(a) The redeployment of a Private Secretary in the same
Ministry/Department as Deputy Secretary or Director is discouraged.
(b) The Private Secretary (to Minister) who has been empanelled for
holding post of Joint Secretary at the Centre should also not be
considered for relocation in the same Ministry/Deptt. and the officer
should be posted to some other Ministry/Deptt.”
14. The 2nd Administrative Reforms Commission (10th Report) also speaks
of the same in paras 8.5.11, 8.5.12, 8.5.14, 8.7 (e)- (g), 9.8(e)-(g) and
17.5(VIII) and the same are extracted hereinbelow for easy reference :
“8.5.11. There appears to be unanimity on the point that it is
necessary to give a fixed tenure to a civil servant in his/her post.
In fact, the Draft Public Services Bill, 2007 has stipulated in
Clause 16(e) that
“The Central Government shall fix a minimum tenure for cadre
posts, which may be filled on the basis of merit, suitability
and experience.”
8.5.12 In Clause 22, the Bill enjoins the Cadre Controlling
Authorities to
“notify within a period of six months from the coming into force
of this Act, norms and guidelines for transfers and postings to
maintain continuity and predictability in career advancement and
acquisition of necessary skills and experiences as well as
promotion of good governance. Transfers before the specified
tenure should be for valid reasons to be recorded in writing.
Provided that the normal tenure of all public servants shall not
be less than two years.”
8.5.14 The Commission is of the view that the Central Civil Services
Authority (discussed in detail in Chapter 9) should be charged with
the responsibility of fixing the tenure for all civil service posts
under the Union Government. At present, the functions of the Authority
are envisaged as advisory under the provisions of the Draft Public
Services Bill, 2007. This needs to be changed, and so far as the
fixation of tenure is concerned, it is suggested that the decision of
the Authority should be binding on the Government. The Authority
should also be given the responsibility to monitor postings and place
before Parliament a periodic evaluation of the actual average tenure
for each post and for the Central Government as a whole. Establishment
of State Civil Service Authorities for the States with similar
responsibilities needs to be urgently taken up by the State
Governments where tenures are much less stable. The details of the
State Civil Services Authorities would be examined by the Commission
in its Report on ‘State Administration’.
8.7 (e) – (g) Placement at Middle Management Level
[…….]
e. The Central Civil Services Authority should be charged with the
responsibility of fixing tenure for all civil service positions
and this decision of the Authority should be binding on
Government.
f. Officers from the organized services should not be given ‘non-
field’ assignments in the first 8-10 years of their career.
g. State Governments should take steps to constitute State Civil
Services Authorities on the lines of the Central Civil Services
Authority.
9.8 (e) – (g) Placement at Top Management Level
[……]
e. A Central Civil Services Authority should be constituted under the
proposed Civil Services Bill. The Central Civil Services Authority
shall be a five-member body consisting of the Chairperson and four
members (including the member-secretary). The Authority should have a
full time Member-Secretary of the rank of Secretary to Government of
India. The Chairperson and members of the Authority should be persons
of eminence in public life and professionals with acknowledged
contributions to society. The Chairperson and members of the Authority
shall be appointed by the President on the recommendations of a
Committee consisting of the Prime Minister and the Leader of the
Opposition in the Lok Sabha.
(Explanation:- Where the Leader of the Opposition in the Lok Sabha has
not been recognized as such, the Leader of the single largest group in
the Opposition in the Lok Sabha shall be deemed to be the Leader of
the Opposition).
f. The Central Civil Services Authority should deal with matters of
assignment of domains to officers, preparing panels for posting of
officers at the level of Joint Secretary and above, fixing tenures for
senior posts, deciding on posts which could be advertised for lateral
entry and such other matters that may be referred to it by the
Government.
g. A similar procedure should be adopted for filling up vacancies at
SAG level and higher in the central police agencies. For example, in
the Central Para-Military Forces the senior positions should be opened
to competition from officers of the CPMFs, IPS and the Armed Forces
(including those completing their Short Service Commissions).
Similarly for the intelligence agencies officers from the armed forces
as well as the CPOs with experience in the field of intelligence
should be considered for postings at higher levels in the intelligence
agencies.
17.5 Recommendations
“A new Civil Services Bill may be drafted. The following salient
features may be included in the proposed Bill.
[…….]
VIII. Fixation of Tenures : All senior posts should have a specified
tenure. The task of fixing tenures for various posts may also be
assigned to this independent agency – Central Civil Services
Authority.”
15. The 2nd Administrative Reforms Commission (15th Report), 2009 also
speaks of the same in paras 2.4.1.2 and 2.4.2.4 and the same is extracted
below for ready reference:-
“2.4.1.2 In order to provide legislative backing to these measures,
the Commission has recommended enactment of a Civil Services Law which
will cover all personnel holding civil posts under the Union. As
recommended at paragraph 17.5 of this Report, the proposed law has the
following salient features :
[…..]
V. Fixation of Tenure. All senior psots should have a specified
tenure. The task of fixing tenures for various posts may also be
assigned to this independent agency – Central Civil Services
Authority”.
[…..]
IX. Functions of the Central Civil Services Authority. The Central
Authority shall discharge the following functions :
[…..]
vi. Fix the tenure for posts at the ‘Senior Management Level’ in
Government of India.
2.4.2.4 For appointments to the posts of the Chief Secretary and the
Principal Conservator of Forest, the Commission communicated the
following interim suggestions to the Government in December 2007:-
i) There should be a collegium to recommend a panel of names to the
Chief Minister/ Cabinet for these two posts. For the post of Chief
Secretary, this collegiums may consist of
a) a Minister nominated by the Chief Minister,
b) the Leader of the Opposition in the State Legislative Assembly and
(c) the incumbent Chief Secretary. For the selection to the
post of Principal Chief Conservator of Forests the collegiums
may consist of
a) The Minister In-charge of Forests,
(b) the leader of Opposition in the State Legislative
Assembly and
(c) the Chief Secretary.
ii) There should be a fixed tenure of two years for both these
posts.
iii) The selection for the post of Chief Secretary and Principal
Chief Conservator of Forests should be widened to include all officers
above a specified seniority (e.g. 30 years). All officers with
seniority higher than a prescribed limit should be eligible to be a
part of the panel.”
16. The Hota Committee Report, 2004 also highlights the same as its main
Recommendation No.39 which reads as follows :-
“(39). The proposed comprehensive law on the Civil Services
shall incorporate, inter alia, a Code of Ethics and a statutory
minimum tenure in a post to an officer. Under the proposed law, if an
officer is sought to be transferred before his tenure, there would be
an expeditious administrative inquiry by a designated senior officer
to be earmarked for this purpose. This can be dispensed with if the
transfer is on promotion/deputation/foreign training. In all other
cases, the Report of Inquiry with the views of the Civil Service
Board/Establishment Board would be put up to the Chief Minister if
officer of the All India Services Service/other civil services work in
the States, or the Appointments Committee of the Cabinet if the
officers work under the Central Staffing Scheme. For the officers of
the other Central Services working in Ministries/Departments but not
under the Central Staffing Scheme, the new law will prescribe tenure
with a provision for administrative inquiry before an officer is
sought to be transferred except on specified grounds.”
C. RECORDING OF INSTRUCTIONS AND DIRECTIONS:
17. Petitioners have highlighted the serious predicant on which the civil
servants are placed when they are asked to implement governmental
decisions, on oral directions, suggestions, instructions etc. Much of the
deterioration of the standards of probity and accountability, according to
the Petitioners, can be traced to practice of issuing and acting on verbal
instructions or oral orders which are not recorded. This issue was
addressed by the Santhanam Committee way back in 1962. Paragraphs 6.20 and
6.21 deal with those aspects, which are given below for easy reference :
“6.20. We have already mentioned the existence of ‘contactmen’ and
‘touts’. Obviously these do not include genuine representatives of
commercial and industrial firms. In this regard our recommendations
are :-
i) No official should have any dealings with a person claiming to
act on behalf of a business or industrial house or an
individual, unless he is properly accredited, and is approved by
the Department, etc. concerned. Such a procedure will keep out
persons with unsavoury antecedents or reputation. There should,
of course, be no restriction on the proprietor or manager etc.
of the firm or the applicant himself approaching the
authorities.
ii) Even the accredited representatives should not be allowed to see
officers below a specified level – the level being specified in
each organization after taking into consideration the functions
of the organizations, the volume and nature of the work to be
attended to, and the structure of the organization. However,
care should be taken to limit permissible contacts to levels at
which the chances of corruption are considered to be small. This
would often mean that no contact would be permitted at the level
of subordinate officers.
iii) There should be some system of keeping some sort of record of
all interviews granted to accredited representatives.
iv) There should be a fairly senior officer designated in each
Department to which an applicant etc., may go if his case is
being unreasonably delayed.
It is necessary that a proper procedure should be devised in
consultation with the Central Vigilance Commission for accrediting and
approval by the department. Before granting approval the antecedents
of the person proposed to be accredited should, if possible, be
verified. In any case no person who is not definitely employed by an
established undertaking who will be responsible for his contact and
actions should be approved.
6.21. It is also desirable that officers belonging to prescribed
categories who have to deal with these representatives should maintain
a regular diary of all interviews and discussions with the registered
representatives whether it takes place in the office or at home. The
general practice should be that such interviews should be in the
office and if it takes place at home, reasons should be recorded. Any
business or discussion which is not so recorded should be deemed to be
irregular conduct, of which serious notice should be taken by the
superiors.
18. Further, we also notice the All India Services (Conduct) Rules, 1968,
which also states that the directions of the officials superior shall
ordinarily be in writing. Rule 3(3) of the above-mentioned Rules reads as
follows :-
3(3) (i) No member of the Service shall, in the performance of his
official duties, or in the exercise of powers conferred on him, act
otherwise
than in his own best judgment to be true and correct except when he is
acting under the direction of his official superior.
(ii) The direction of the official superior shall ordinarily be in
writing. Where the issue of oral direction becomes unavoidable, the
official superior shall confirm it in writing immediately thereafter.
(iii) A member of the Service who has received oral direction from his
official superior shall seek confirmation of the same in writing, as
early as possible and in such case, it shall be the duty of the
official superior to confirm the direction in writing.
Explanation I– A member of the Service who habitually fails to perform
a task assigned to him within the time set for the purpose and with
the quality of performance expected of him shall be deemed to be
lacking in devotion to duty within the meaning of the sub-rule (1);
Explanation II – Nothing in clause (i) of sub-rule (3) shall be
construed as empowering a Government servant to evade his
responsibilities by seeking instructions from or approval of, a
superior officer or authority when such instructions are not necessary
under the scheme of distribution of powers and responsibilities.”
19. We, in this respect, point out that the response of certain States
and Union Territories in the matter of creation of an independent CSB,
fixed tenure of civil servants and recording of directions, are neither
consistent nor positive. But generally, they have welcomed the suggestion
for fixation of tenure subject to the rider that in certain exceptional
circumstances, the State Governments should have the power to transfer a
person prematurely before completion of the tenure. Few States have
welcomed the suggestion that every Civil Servant should record all the
instructions and directions received.
20. Union and the State Governments apprehend that creation of an
independent CSB or institutional arrangement for regulating transfers and
postings of officers would be an intrusion into the executive function of
the Centre and State Governments headed by the political executives, who
are directly responsible to the people. Further, they have also taken up a
stand that the said arrangement would lead to a dual line of control,
creating complexities in managing administrative functions and affecting
efficiency of civil servants. With regard to frequent transfers of
officers, they have taken up the stand that there is already a clear cut
policy that except in cases of promotion, in the interest of work and
administrative reasons, transfer and posting will be done only after
completion of three years of tenure. Few States have issued directions, to
get written directions in case of oral directions of Superior Officers in
line with Rule 3(3)(ii)-(iii) of All India Services (Conduct) Rules, 1968.
21. Chapter XIV of the Constitution of India deals with services under
the Union and the States. Article 309 deals with the recruitment and
conditions of service of persons serving the Union or the State, which
expressly made subject to the other provision of the Constitution of India,
In terms of Article 309 appropriate Legislature, Parliament or the State
Legislature is empowered to legislate, to regulate the recruitment and
conditions of service of persons appointed to public services and post them
in connection with the affairs of the Union or of any State. In terms of
the proviso to Article 309, number of rules have been made from time to
time by the Union and the State Governments and they govern and regulate
the public services in India. Article 310 of the Constitution provides for
all members of the civil services of the Union and All India Services to be
held in civil post at the pleasure of the President and all members of the
civil services of the State at the pleasure of the Governor of the State.
Article 311 provides certain safeguards regarding dismissal, removal or
reduction in rank of persons employed in civil capacity. Article 312
provides constitution of All India Services. Articles 318 to 333 deal with
the Union Public Service Commission (UPSC) and State Public Service
Commissions (PSC). Article 320 stipulates that it shall be the duty of the
Union and the State PSCs to conduct the examinations for appointment to the
services of the Union and services of the State, respectively.
22. UPSC or the State PSCs are to be consulted in all matters relating to
the method of recruitment to civil services and on the principles to be
followed in making appointments to civil services and posts and in making
promotions and transfers from one service to another. Of late, the UPSCs
and PSCs are being denuded of their powers of consultation while making
promotions and transfer from one service to another. Article 323 lays down
that it shall be the duty of the UPSC to present annually to the President
a report of the work done by the Commission and on receipt of such report
the President shall cause a copy thereof together with the memorandum,
explaining as regard the cases, if any, where advice of the Commission was
not accepted, the reasons for such non-acceptance, to be laid before the
House of Parliament. Similar provision also exists for the State PSCs.
Article 323A authorizes Parliament to set up administrative tribunals
regarding disputes with regard to recruitment and conditions of service,
appointed to public services. Parliament in exercise of its powers under
Article 309 enacted the All India Service Act, 1951, which authorizes Union
Government in consultation with the State Governments, to make rules for
the regulations of conditions of service of persons appointed to All India
Services.
23. Part V of the Constitution deals with the Union. Article 53 states
that the executive power of the Union shall be vested in the President and
shall be exercised by him either directly or through officers subordinate
to him in accordance with this Constitution. Article 154 of Chapter VI of
the Constitution states that the executive power of the State shall be
vested with the Governor and shall be exercisable by him either directly or
through officers subordinate to him in accordance with the Constitution.
Article 73 of the Constitution states that subject to the provisions of the
Constitution executive power of the Union shall extend to matters with
respect to which Parliament has power to make laws and to the exercise of
such rights, authority and jurisdiction, as exercisable by the Government
of India by virtue of any treaty or any agreement. Article 163 of the
Constitution states that there shall be a Council of Ministers, the Chief
Minister as the head to aid and advice the Governor in exercise of his
functions, except in so far as he is by or under this Constitution required
to exercise his functions or any of them with his discretion.
24. The above are the constitutional provisions which generally deal with
the power of the executive. The principles governing the roles and
responsibilities of political executive and civil servants, are therefore,
constitutionally defined and also based on the basis of various rules
framed by the President and Governor for the conduct of business in the
Government. Ministers are responsible to the people in a democracy because
they are the elected representatives of the Parliament as well as the
General State Assembly. Civil servants have to be accountable, of course
to their political executive but they have to function under the
Constitution, consequently they are also accountable to the people of this
country.
25. Paragraph 15.1.3 of the report of the 2nd Administrative Reforms
Committee (2008) reads as follows:
“A healthy working relationship between Ministers and civil
servants is critical for good governance. While the principles
governing the roles and responsibilities of Ministers and civil
servants are well defined in political theory, in the actual
working of this relationship this division of responsibility
becomes blurred with both sides often encroaching upon the other’s
sphere of responsibility. In any democracy, Ministers are
responsible to the people through Parliament and therefore the
civil servants have to be accountable to the Minister. However, an
impartial civil service is responsible not only to the government
of the day but to the Constitution of the land to which they have
taken an oath of loyalty. At the same time, implementing the
policies of the duly elected government is a core function of civil
servants. That is why the division of responsibility between the
civil servants and ministers needs to be more clearly defined. A
framework in which responsibility and accountability is well
defined would be useful.”
26. Civil servants, as already indicated, have to function in accordance
with the Constitution and the laws made by the Parliament. In the present
political scenario, the role of civil servants has become very complex and
onerous. Often they have to take decisions which will have far reaching
consequences in the economic and technological fields. Their decisions
must be transparent and must be in public interest. They should be fully
accountable to the community they serve. Many of the recommendations made
by the Hota Committee, various reports of the 2nd Administrative Reforms
Commission, 2008 and Santhanam Committee Report have high-lighted various
lacunae in the present system which calls for serious attention by the
political executive as well as the law makers.
27. We find it, however, difficult to give a positive direction to
constitute an independent CSB at the Centre and State Level, without
executive control, which Hota Committee has recommended to be statutory in
nature, that too, comprising of persons from outside the Government.
Petitioners placed considerable reliance on the judgment of this Court in
Prakash Singh and Others v. Union of India (2006) 8 SCC 1 and urged that
similar directions be given to insulate, to at least some extent, the civil
servants from political/executive interference. Retired persons,
howsoever eminent they may be, shall not guide the transfers and postings,
disciplinary action, suspension, reinstatement, etc. of civil servants,
unless supported by law enacted by the Parliament or the State Legislature.
28. CSB, consisting of high ranking in service officers, who are experts
in their respective fields, with the Cabinet Secretary at the Centre and
Chief Secretary at the State level, could be a better alternative (till the
Parliament enacts a law), to guide and advise the State Government on all
service matters, especially on transfers, postings and disciplinary action,
etc., though their views also could be overruled, by the political
executive, but by recording reasons, which would ensure good governance,
transparency and accountability in governmental functions. Parliament can
also under Article 309 of the Constitution enact a Civil Service Act,
setting up a CSB, which can guide and advice the political executive
transfer and postings, disciplinary action, etc. CSB consisting of experts
in various fields like administration, management, science, technology,
could bring in more professionalism, expertise and efficiency in
governmental functioning.
29. We, therefore, direct the Centre, State Governments and the Union
Territories to constitute such Boards with high ranking serving officers,
who are specialists in their respective fields, within a period of three
months, if not already constituted, till the Parliament brings in a proper
legislation in setting up CSB.
30. We notice, at present the civil servants are not having stability of
tenure, particularly in the State Governments where transfers and postings
are made frequently, at the whims and fancies of the executive head for
political and other considerations and not in public interest. The
necessity of minimum tenure has been endorsed and implemented by the Union
Government. In fact, we notice, almost 13 States have accepted the
necessity of a minimum tenure for civil servants. Fixed minimum tenure
would not only enable the civil servants to achieve their professional
targets, but also help them to function as effective instruments of public
policy. Repeated shuffling/transfer of the officers is deleterious to good
governance. Minimum assured service tenure ensures efficient service
delivery and also increased efficiency. They can also prioritize various
social and economic measures intended to implement for the poor and
marginalized sections of the society.
31. We, therefore, direct the Union State Governments and Union
Territories to issue appropriate directions to secure providing of minimum
tenure of service to various civil servants, within a period of three
months.
32. We have extensively referred to the recommendations of the Hota
Committee, 2004 and Santhanam Committee Report and those reports have
highlighted the necessity of recording instructions and directions by
public servants. We notice that much of the deterioration of the standards
of probity and accountability with the civil servants is due to the
political influence or persons purporting to represent those who are in
authority. Santhanam Committee on Prevention of Corruption, 1962 has
recommended that there should be a system of keeping some sort of records
in such situations. Rule 3(3)(iii) of the All India Service Rules
specifically requires that all orders from superior officers shall
ordinarily be in writing. Where in exceptional circumstances, action has
to be taken on the basis of oral directions, it is mandatory for the
officer superior to confirm the same in writing. The civil servant, in
turn, who has received such information, is required to seek confirmation
of the directions in writing as early as possible and it is the duty of the
officer superior to confirm the direction in writing.
33. We are of the view that the civil servants cannot function on the
basis of verbal or oral instructions, orders, suggestions, proposals, etc.
and they must also be protected against wrongful and arbitrary pressure
exerted by the administrative superiors, political executive, business and
other vested interests. Further, civil servants shall also not have any
vested interests. Resultantly, there must be some records to demonstrate
how the civil servant has acted, if the decision is not his, but if he is
acting on the oral directions, instructions, he should record such
directions in the file. If the civil servant is acting on oral directions
or dictation of anybody, he will be taking a risk, because he cannot later
take up the stand, the decision was in fact not his own. Recording of
instructions, directions is, therefore, necessary for fixing
responsibility and ensure accountability in the functioning of civil
servants and to uphold institutional integrity.
RTI Act and Civil Servants
34. Democracy requires an informed citizenry and transparency of
information.
Right to Information Act, 2005 (RTI Act) recognizes the right
of the citizen to secure access to information under the control of public
authority, in order to promote transparency and accountability in the
working of every public authority.
Section 3 of the Act confers right to
information to all citizens and a corresponding obligation under Section 4
on every public authority to maintain the records so that the information
sought for can be provided.
Oral and verbal instructions, if not recorded, could not be provided.
By acting on oral directions, not recording the
same, the rights guaranteed to the citizens under the Right to Information
Act, could be defeated.
The practice of giving oral directions/instructions
by the administrative superiors, political executive etc. would defeat the
object and purpose of RTI Act and would give room for favoritism and
corruption.
35. We, therefore, direct all the State Governments and Union Territories
to issue directions like Rule 3(3) of the All India Services (Conduct)
Rules, 1968, in their respective States and Union Territories which will be
carried out within three months from today.
36. The Writ Petitions are, accordingly, disposed of with the above
directions.
...……………………………..J.
(K.S. Radhakrishnan)
………………………………..J.
(Pinaki Chandra Ghose)
New Delhi,
October 31, 2013.
We notice, at present the civil servants are not having stability of
tenure, particularly in the State Governments where transfers and postings
are made frequently, at the whims and fancies of the executive head for
political and other considerations and not in public interest. The
necessity of minimum tenure has been endorsed and implemented by the Union
Government. In fact, we notice, almost 13 States have accepted the
necessity of a minimum tenure for civil servants. Fixed minimum tenure
would not only enable the civil servants to achieve their professional
targets, but also help them to function as effective instruments of public
policy. Repeated shuffling/transfer of the officers is deleterious to good
governance. Minimum assured service tenure ensures efficient service
delivery and also increased efficiency. They can also prioritize various
social and economic measures intended to implement for the poor and
marginalized sections of the society.
31. We, therefore, direct the Union State Governments and Union
Territories to issue appropriate directions to secure providing of minimum
tenure of service to various civil servants, within a period of three
months.
................................................................................................................... Democracy requires an informed citizenry and transparency of
information.
Right to Information Act, 2005 (RTI Act) recognizes the right
of the citizen to secure access to information under the control of public
authority, in order to promote transparency and accountability in the
working of every public authority.
Section 3 of the Act confers right to
information to all citizens and a corresponding obligation under Section 4
on every public authority to maintain the records so that the information
sought for can be provided.
Oral and verbal instructions, if not recorded, could not be provided.
By acting on oral directions, not recording the
same, the rights guaranteed to the citizens under the Right to Information
Act, could be defeated.
The practice of giving oral directions/instructions
by the administrative superiors, political executive etc. would defeat the
object and purpose of RTI Act and would give room for favoritism and
corruption.
35. We, therefore, direct all the State Governments and Union Territories
to issue directions like Rule 3(3) of the All India Services (Conduct)
Rules, 1968, in their respective States and Union Territories which will be
carried out within three months from today.
36. The Writ Petitions are, accordingly, disposed of with the above
directions.
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL ORIGINAL JURISDICTION
WRIT PETITION (CIVIL) NO.82 OF 2011
T.S.R. Subramanian & Ors. … Petitioners
Versus
Union of India & Ors. … Respondents
WITH
WRIT PETITION (CIVIL) NO.234 OF 2011
J U D G M E N T
K.S. Radhakrishnan, J.
1. Article 32 of the Constitution of India has been invoked by few
eminent retired civil servants highlighting the necessity of various
reforms for preservation of integrity, fearlessness and independence of
civil servants at the Centre and State levels in the country.
Prayers
made in this writ petition are based on various reports and recommendations
made by several Committees appointed for improving the public
administration.
On the basis of various reports, following reliefs are
sought in the writ petition :-
(i) Issue a writ in the nature of mandamus or any other appropriate writ,
order or direction requiring the Respondents to create an
“independent” Civil Service Board or Commission both at the Centre and
the State based on recommendations by the Hota Committee, 2004 (para
5.09, para 5.11, Main Recommendations No.38); the 2nd Administrative
Reforms Commission 2008 (10th Report, para 9.8); the statement adopted
at the Conference of Chief Ministers on Effective and Responsive
Administration, 1997;
(ii) Issue a writ in the nature of mandamus or any other appropriate writ,
order or direction requiring the respondents to fixed tenure for civil
servants ensuring stability based on recommendations by Jha Commission
1986 (para 7.2); Central Staffing Scheme, 1996 (para 17.01, para
17.02, para 17.03, para 17.12), the 2nd Administrative Reforms
Commission (10th Report, para 8.7, para 9.8, para 17.5), Hota
Committee Report, 2004 (Main Recommendations No.39);
(iii) Issue a writ in the nature of mandamus or any other appropriate writ,
order or direction requiring the respondents to mandate that every
civil servant formally record all such instructions/directions/
orders/suggestions which he/she receives, not only from his/her
administrative superiors but also from political authorities,
legislators, commercial and business interests and other
persons/quarters having interest, wielding influence or purporting to
represent those in authority based on the principles recognized by
Rule 3(3)(ii)(iii) of the All India Service Conduct Rules, 1968 and as
implicitly recognized by the Santhanam Committee Report, 1962 (Section
6, sub-para 33[iii].
2. This Court, considering the importance of the matter, issued notice
to various State Governments and the Union Territories so as to ascertain
their views on the various issues raised in this case. Most of the States
have filed detailed counter affidavits explaining their stand with regard
to the reliefs prayed for in this writ petition.
3. Shri K.K. Venugopal, learned senior counsel appearing for the writ
petitioners, referred elaborately to the above-mentioned reports and
highlighted the necessity of the creation of a Civil Service Board (for
short ‘CSB’), both at the Centre and State level, with a degree of
independence so that it can make recommendations on all transfers and
postings without sacrificing the executive freedom of the Government.
Learned senior counsel pointed out that such CSB shall function in a bare
advisory capacity and its recommendations will not impose any constraint on
the independence of the political authority to effect postings and
transfers, including premature transfers. Learned senior counsel also
highlighted the necessity for providing a fixed tenure for civil servants
ensuring stability which is highly necessary for implementing various
programmes which will have social and economic impact on the society.
Learned senior counsel also highlighted the reasons for recoding of
instructions, directions and orders by the civil servants so that they can
function independently and the possibility of arbitrary and illegal
decisions could be avoided.
4. Mr. Paras Kuhad, learned ASG appearing for the Union of India,
opposed in principle prayer for setting up of independent CSB at the Centre
and the State levels, which, according to the learned ASG, would be
interfering with the governmental functions. Learned ASG also submitted
that any mechanism within the governmental structure could be thought of,
but involvement of any person, howsoever high he may be, who is not part of
the Centre or the State Government, would not be advisable, especially in
the absence of any such provision in the Constitution or the laws made by
Centre and the State Governments. Learned ASG also submitted that based
on the 2nd Administrative Reforms Committee (ARC), a draft Bill entitled
“Civil Services Performance Standards and Accountability Bill, 2010” was
provided incorporating certain recommendations in the above-mentioned
reports. Further, it was pointed out that the draft Cabinet Note for the
introduction of the said Bill in the Parliament is under consideration of
the Central Government. Further, it was also submitted that for fixing the
minimum tenures of cadre post in the Indian Administrative Service was
initiated in November, 2006 by the Department of Personnel & Training.
Cadre controlling authorities of the Indian Police Service and Indian
Foreign Service were also requested to take necessary follow-up action for
fixing the minimum tenures in the cadre post for the Indian Police Service
and Indian Foreign Service. During the process of consultation, it was
pointed out that comments of the State Governments were sought on the
proposal of fixing minimum tenure of posting of IAS Officers. 13 State
Governments agreed with the proposal, while some States did not agree. The
matter was further discussed in the meeting with the Chief
Secretary/Principal Secretaries of the States concerned on 31.5.2007 and
again on 4.7.2008 in Delhi. Notification providing for two years minimum
tenure for IAS posting having been issued for 13 States/Joint Cadres.
Reference was also made to study report of “Centre for Good Governance”,
Hyderabad and it was stated that the same is under consideration with the
Central Government. With regard to the prayer for recording of
instructions/directions, etc., it was pointed out that the requirements are
provided under the All India Service Conduct Rules.
5. Learned counsels appearing for the State Governments and the Union
Territories have also placed their stand on various reliefs sought for in
this writ petition. Learned Standing counsel appearing for the State of
Uttar Pradesh submitted that the State has already established Civil
Service Boards in terms of the Government orders dated 24.12.2001 and
19.5.2007, which is meant to operate with respect to IAS and Provisional
Civil Services, Indian Police Services and Provisional Police Services and
for Indian Forest Services and their feeder services. Over and above, the
State has also formulated transfer policy dated 15.5.2008. Learned
counsel appearing for the State of Maharashtra also made reference to the
Maharashtra Government Servants Regulations of Transfers and Prevention of
Delay in Discharge of Official Duties Act, 2005 and submitted that the Act
provided for transfer of Government servants and prevention of delay in
discharge of official duties.
6. Reliefs prayed for in this writ petition are based on the Hotta
Committee Report, 2004, 2nd Administrative Reforms Commission (10th
Report), 2008. 2nd Administrative Service Commission (15th Report), the
Report of the Committee on Prevention of Corruption, Santhanam Committee
Report, etc. We have gone through those reports in detail.
A. CIVIL SERVICE BOARD (CSB):
7. The Government of India on 3rd February, 2004, appointed the Hota
Committee to examine the whole gamut of Civil Service reforms and the terms
of reference of the Committee were as follows :-
“(i) Making the Civil Service
• responsive and citizen-friendly;
• transparent;
• accountable; and
• ethical
in its (a) actions and (b) interface with the
people,
(ii) Making the civil service e-governance friendly.
(iii) Putting a premium on intellectual growth of civil servants and
on upgrading their domain knowledge,
(iv) Protecting the civil service against wrongful pressure
exerted by
(a) administrative superiors;
(b) political executive;
(c) business interests; and
(d) other vested interests.
(v) Changes, if any necessary, in the various All India Services
Rules and Central Civil Rules to provide a statutory
cover to the proposed civil service reforms.
(vi) Changes in rules governing the disciplinary proceedings
against civil servants to decentralize the process as
far as practicable, and to make the disposal of such proceedings
time-bound.
(vii) Any other matter that the Committee may consider relevant
to the subject of civil service reforms.”
8. On establishment of Indian Civil Services Board, the Hota Committee
made the following recommendations :-
“5.09 We found that some States complied with the recommendations of
the Conference of Chief Ministers and set up Civil Services
Boards/Establishment Boards with Chief Secretary of the State as the
Chairman and other senior officials of the State as Members. But the
Boards set up by executive order in different States have failed to
inspire confidence as more often than not, they have merely formalized
the wishes of their Chief Ministers in matters of transfer of
officials. We are firmly of the view that a Civil Services Act has to
be enacted to make the Civil Services Board / Establishment Board both
in the States and in the Government of India statutory in character.
In the proposed set up in the Government of India, the Appointments
Committee of the Cabinet will be the final authority for transfer of
officers under the Central Staffing Scheme. The same principle of
fixed tenure should apply to senior officers, who are not under the
Central Staffing Scheme, but are working under the Government of India
for which the Departmental Minister in charge is the final authority
for transfer. The Chief Minister will be the final authority for
transfer of all Group 'A' officers of State Service and AIS officers
serving in connection with affairs of the State. If a Chief Minister
does not agree with the recommendations of the Civil Services Board/
Establishment Board, he will have to record his reasons in writing. An
officer transferred before his normal tenure even under orders of the
Chief Minister can agitate the matter before a three-member Ombudsman.
The Chairperson of the Ombudsman will be a retired official of proven
honesty and integrity. The other two members can be on part-time basis
from among serving officers. In all such premature transfers the
Ombudsman shall send a report to the Governor of the State, who shall
cause it to be laid in an Annual Report before the State Legislature.
The Ombudsman may also pay damages to the officer so transferred to
compensate him for dislocation and mental agony caused due to such
transfer. We are conscious that we are recommending a statutory
barrier to frequent transfer of senior officials but the matter has
come to such a pass that it requires a statutory remedy. We also
clarify that the Chief Minister as the highest political executive has
the final powers to order transfer of an officer before his tenure is
over.
5.10 We are also of the opinion that postings of all Group 'B'
officers must be done by the Head of the Department in a State and the
same tenure rule shall be given a statutory backing. We were advised
by some witnesses that only the Chief Minister's orders for transfer
should be taken in case of Group 'A' officers / officers of All India
Services and no Minister of a State should have any powers to order a
transfer or approve a proposal for transfer of any official either of
any State Service or of the All India Service. We agree with the view,
as in our opinion owing to reasons of political expediency or even due
to unwholesome reasons, Ministers in States often are not able to make
proper use of the power vested in them for transfer of their
departmental officers. If a Minister has cogent reasons to ask for
transfer of an official before he completes his tenure, he will move
the Civil Services Board to be set up under the new Civil Services Act
and the Civil Services Board, with its views on report of inquiry by a
designated officer, shall submit the case to the Chief Minister for
final orders. Thus in a State Government, a Minister's proposal for
transfer of any officer of Group 'A'/Group 'B' will be formally
decided by the Chief Minister of the State.
5.11 In our opinion, Civil Services Boards must be set up in all
States on similar lines as at the Centre. The Central Act should have
a provision to enable the States to adopt the law and make it
applicable in the States, without going through the long process of
drafting a new law and getting it passed in the Legislature. The Civil
Services Board in a State - chaired by the Chief Secretary and
comprising senior officers - shall perform the functions relating to
transfer, empanelment, promotion, and deputation of officers performed
by the Establishment Board of Government of India/Special Committee of
Secretaries of Government of India, both of which are chaired by the
Cabinet Secretary. Under Article 309 of the Constitution, Parliament
may also enact a Civil Services Act setting up a Civil Services Board
for the Union Government which will perform the functions being
performed at present by the Establishment Board presided over by the
Cabinet Secretary. The Civil Services Act may also provide for a
Special Committee of Secretaries to prepare panel of names for
appointment for posts of Additional Secretaries and Secretaries to
Government of India. Under the new Civil Services Act, a Cabinet
Minister/Minister of State with independent charge in Government of
India may be given a time limit to accept/send back proposals for the
Establishment Board regarding posting of officers with his
observations. In any particular case, if the Establishment Board after
giving the views of the Minister in charge its utmost consideration
does not change its original recommendation, the Cabinet Secretary may
send proposals of the Establishment Board with observations of the
Minister in charge through the Home Minister, a Member of the ACC to
the Prime Minister, who heads the ACC for a final decision.
5.12 Inter alia, a Civil Services Board of a State shall also perform
functions of recommending officers of All India Service/Group 'A1
service of the State for transfer to different posts under the State
Government. It would be expedient before an officer is sought to be
transferred in the public interest when he has not completed his
tenure, that an administrative inquiry of a summary nature is held to
ascertain if the transfer is justified as a matter of public policy.
The administrative inquiry will be conducted as expeditiously as
possible by a designated officer nominated by the Civil Services
Board. In appropriate cases, the Civil Services Board may also direct
the officer to proceed on leave on full pay and allowances till the
administrative inquiry is over and a decision is taken regarding his
transfer. The designated officer to conduct the inquiry will be
ordinarily the Reporting Officer of the officer sought to be
transferred. The Civil Services Board on receipt of the report of
inquiry of the designated officer shall advise the Chief Minister
regarding justification for transfer of the officer in the public
interest before his normal tenure is over. Ordinarily the Chief
Minister is expected to agree with the recommendations of the Civil
Services Board as transfer of an official is a routine administrative
matter on which a Civil Services Board must have a decisive role. But
if the Chief Minister does not agree with the Civil Services Board and
orders transfer of an official before his tenure is over, he may have
to record in writing reasons for such transfer. If the official is
transferred before his tenure without adequate justification, he will
have the right to approach a three member Civil Service Ombudsman set
up for the purpose.
Recommendation 38: In the proposed Civil Service law, the highest
political executive shall continue to be the final authority to order
transfer of any officer before his tenure is over; but he will be
expected to give due consideration to Report of the Administrative
Inquiry/views of the Civil Service Board/Establishment Board and
record reasons on the need for premature transfer of an officer. It is
reiterated that the political executive shall have the final authority
to transfer an officer at any stage in the public interest. An officer
aggrieved by order of premature transfer can agitate the matter before
a three-Member Ombudsman, who may, where suitable, award monetary
compensation to the aggrieved officer. The constitution of the
Ombudsman will be the same as the Ombudsman proposed for the Disputes
Redressal Council as at para 6.19 of this Report. The
President/Governor shall receive reports from the Ombudsman and shall
lay an Annual Report on such transfers on the table of the
Legislature. There should be a suitable provision in the law to enable
States to adopt it and make it applicable in the States without going
through the long process of drafting a law and get it passed in the
Legislature. {para 5.03 to 5.10)”
9. The 2nd Administrative Reforms Commission was set up by the President
reflecting the Resolution dated 31st August, 2005 passed by the Government
of India. The Commission was set up to suggest measures to achieve a
preemptive responsible, accountable, sustainable and effective
administration for the country at all levels of the government. The tenure
of the Committee was extended from time to time and the Committee submitted
its report in the year 2008. On the question of the setting up of the
independent CSB, the Committee has made the following recommendations :
“9.7.1 The Commission suggests that an independent ‘Authority’ should
deal with matters of assignment of domains, preparing panels for
posting of officers at the level of SAG and above, fixing tenures for
various posts, deciding on posts which could be advertised for lateral
entry etc. As this Authority would be performing the above-mentioned
crucial tasks, it would be necessary to ensure its independence by
giving it a statutory backing and stipulating that it should be headed
by an eminent person with experience of public affairs to be appointed
by the Prime Minister in consultation with the Leader of the
Opposition in the Lok Sabha. The Authority should have a full time
Member-Secretary of the rank of Secretary to Government of India, and
persons of eminence in public life and professionals with acknowledged
contributions to society as Members of the Authority. This Authority,
to be named as the Central Civil Services Authority, should be
constituted under the proposed Civil Services Act. As the constitution
of the Central Civil Services Authority under a new law may take some
time, the said Authority may be constituted, initially, under
executive orders.”
10. Para 9.8.e also refers to the composition of the Committee which
reads as follows :-
“9.8.e. A Central Civil Services Authority should be constituted under
the proposed Civil Services Bill. The Central Civil Services Authority
shall be a five-member body consisting of the Chairperson and four
members (including the member-secretary). The Authority should have a
full time Member-Secretary of the rank of Secretary to Government of
India. The Chairperson and members of the Authority should be persons
of eminence in public life and professionals with acknowledged
contributions to society. The Chairperson and members of the Authority
shall be appointed by the President on the recommendations of a
Committee consisting of the Prime Minister and the Leader of the
Opposition in the Lok Sabha.
(Explanation:- Where the Leader of the Opposition in the Lok Sabha has
not been recognized as such, the Leader of the single largest group in
the Opposition in the Lok Sabha shall be deemed to be the Leader of
the Opposition).”
11. The Second Administrative Reforms Commission Fifteenth Report (April
2009) has also made various suggestions in order to provide legislative
backing to these measures, the Commission has recommended enactment of a
Civil Services Law which will cover all personnel holding civil posts under
the Union. The Commission recommended for the constitution of a Central
Civil Service Authority, among other things, which reads as follows:
“VIII. Constitution of the Central Civil Services Authority:
i. The Central Government shall, by notification in the Official
Gazette, constitute a body to be known as the Central Civil
Services Authority to exercise the powers conferred on, and to
perform the functions assigned to it, under this Act.
ii. The Central Civil Services Authority shall be a five-member body
consisting of the Chairperson and four members (including the
member-secretary). The Authority should have a full time Member-
Secretary of the rank of Secretary to Government of India. The
Chairperson and members of the Authority should be persons of
eminence in public life and professionals with acknowledged
contributions to society. The Chairperson and members of the
Authority shall be appointed by the President on the
recommendations of a Committee consisting of the Prime Minister
and the Leader of the Opposition in the Lok Sabha.
(Explanation:- Where the Leader of the Opposition in the Lok Sabha has
not been recognized as such, the Leader of the single largest group in
the opposition in the Lok Sabha shall be deemed to be the Leader of
the Opposition).
2.4.2.5 Subsequently, in its Report on “Refurbishing of Personnel
Administration” (the Tenth Report), the Commission suggested a
detailed procedure for placement of officers at the
middle and top management levels in the Union Government. It calls for
the constitution of a Central Civil Service Authority by law, which
will be an independent five member body consisting of persons of
eminence in public life and professionals with acknowledged
contributions to Society. This Authority will be empowered to deal
with a large number of issues concerning civil services such as
assignment of domain to officers, preparing panels for posting at the
levels of Joint Secretary and above, fixing tenures for senior
assignments and such other matters that may be referred to it by the
Union Government. The Commission is of the view that there should be a
similar Civil Services law and a State Civil Services Authority for
each State. The mandate and functions of the State Body would largely
coincide with those prescribed under the proposed Union Civil Services
Law. This Authority should deal with issues of appointment and tenure
of higher officials of all ranks in the State Governments including
the Chief Secretary, Principal Secretaries, Engineer-in-Chiefs and the
Principal Chief Conservator of Forests. However, till the time the
proposed law is enacted and the State Civil Service Authority is
constituted, recommendations made at para 2.14.2.5 above may be
immediately adopted by all the State Governments.
2.4.2.6 Recommendations:
a) After enactment of the State Civil Services Law on the lines of
the proposed Union enactment, the proposed State Civil Service
Authority should deal with matters concerning appointment and
tenure of senior officers of all ranks in the State Governments
(including the Chief Secretary, Principal Secretaries, Engineer-
in-Chiefs, other Agency Heads and Principal Chief Conservator of
Forests).
b) Till the time that such an Authority is constituted, the
following mechanism may be adopted for appointment of the Chief
Secretary and Principal Conservator of Forests in the States:-
• There should be a collegiums to recommend a panel of names to
the Chief Minister/Cabinet for these two posts. For the
post of Chief Secretary, this collegium may consist of (a)
a Minister nominated by the Chief Minister, (b) the Leader
of the Opposition in the State Legislative Assembly and (c)
the incumbent Chief Secretary. For the selection to the
post of Principal Chief Conservator of Forests the
collegiums may consist of (a) The Minister In-charge of
Forests, (b) the leader of Opposition in the State
Legislative Assembly and (c) the Chief Secretary.
• There should be a fixed tenure of atleast two years for
both these posts.
• The selection for the post of Chief Secretary and
Principal Chief Conservator of Forests should be widened to
include all officers above a specified seniority (e.g. 30
years). All officers with a eniority higher than a
prescribed limit should be eligible to be a part of the
panel.
c) As regards the appointment and tenure of the Director General of
Police, the recommendations made by the Commission in its Report
on “Public Order” at para 5.2.3.7 should be implemented.”
12. We have elaborately referred to the Report of the Hota Committee,
Report of the 2nd Administrative Commission, 2008-2009, which highlighted
the necessity of creation of an independent CSB at the Centre as well as
the State level.
B. FIXED TENURE:
13. Various Committees have also recommended and highlighted the
necessity of providing fixed tenure for a civil servant so as to ensure
stability and efficiency of administration. The Central Staffing Scheme,
1996, highlighted the necessity of a fixed tenure to provide certain degree
of stability to the administration. Reference in this regard may be made to
paras 17.01, 17.02, 17.03, 17.12 and 17.13 and the same are extracted
hereinbelow for easy reference :
“17.01 The fixed tenure of deputation of posting under the Central
Government is the heart of the Central Staffing Scheme. Rotation
between the Centre and the States, Central Ministries and parent
cadres, and headquarters and the field, provide a certain degree of
pragmatism to policy formulation and programme implementation from the
Central Ministries. Based on the experience gained so far, the periods
of tenure at the different levels have been prescribed as under:-
i Under Secretary 3 years
ii Deputy Secretary 4 years
iii. Director 5 years
iv. Joint Secretary 5 years
17.02 An officer holding the post of Joint Secretary or equivalent,
when appointed to a post under the Government of India at the level of
Additional Secretary, would have a tenure of 3 years from the date of
appointment as Additional Secretary subject to a minimum of 5 years
and maximum of 7 years of combined tenure as Joint Secretary.
Additional Secretary. Where an officer remains on leave (either from
the Centre or from his Cadre authority or both) on the expiry of his
tenure as Joint Secretary till his appointment as Additional
Secretary, the leave period shall be counted as tenure deputation.
Additional Secretary 4 years, except for cases covered under the
previous heading.
Secretary No fixed tenure.
17.03 Every officer shall revert at the end of his tenure as indicated
above on the exact date of his completing his tenure. He will,
however, have a choice to revert to his cadre on the 31st May previous
to the date of the end of his tenure in case personal grounds such as
children's education etc., necessitate such reversion. No extension
after completion of the full tenure would be allowed.
17.12 (a) Officers of the Indian Foreign Service appointed to posts
under the Central Staffing Scheme would have a tenure of three years.
(b) They shall not normally be relieved, except with the approval of
the appointments Committee of the Cabinet from a Central Staffing
Scheme post before their tenure.
17.13 No lateral shifts of officers from one Ministry/I)eptt. to
another will normally be considered. However, in the case of Private
Secretary to Ministers the policy followed would be :-
(a) The redeployment of a Private Secretary in the same
Ministry/Department as Deputy Secretary or Director is discouraged.
(b) The Private Secretary (to Minister) who has been empanelled for
holding post of Joint Secretary at the Centre should also not be
considered for relocation in the same Ministry/Deptt. and the officer
should be posted to some other Ministry/Deptt.”
14. The 2nd Administrative Reforms Commission (10th Report) also speaks
of the same in paras 8.5.11, 8.5.12, 8.5.14, 8.7 (e)- (g), 9.8(e)-(g) and
17.5(VIII) and the same are extracted hereinbelow for easy reference :
“8.5.11. There appears to be unanimity on the point that it is
necessary to give a fixed tenure to a civil servant in his/her post.
In fact, the Draft Public Services Bill, 2007 has stipulated in
Clause 16(e) that
“The Central Government shall fix a minimum tenure for cadre
posts, which may be filled on the basis of merit, suitability
and experience.”
8.5.12 In Clause 22, the Bill enjoins the Cadre Controlling
Authorities to
“notify within a period of six months from the coming into force
of this Act, norms and guidelines for transfers and postings to
maintain continuity and predictability in career advancement and
acquisition of necessary skills and experiences as well as
promotion of good governance. Transfers before the specified
tenure should be for valid reasons to be recorded in writing.
Provided that the normal tenure of all public servants shall not
be less than two years.”
8.5.14 The Commission is of the view that the Central Civil Services
Authority (discussed in detail in Chapter 9) should be charged with
the responsibility of fixing the tenure for all civil service posts
under the Union Government. At present, the functions of the Authority
are envisaged as advisory under the provisions of the Draft Public
Services Bill, 2007. This needs to be changed, and so far as the
fixation of tenure is concerned, it is suggested that the decision of
the Authority should be binding on the Government. The Authority
should also be given the responsibility to monitor postings and place
before Parliament a periodic evaluation of the actual average tenure
for each post and for the Central Government as a whole. Establishment
of State Civil Service Authorities for the States with similar
responsibilities needs to be urgently taken up by the State
Governments where tenures are much less stable. The details of the
State Civil Services Authorities would be examined by the Commission
in its Report on ‘State Administration’.
8.7 (e) – (g) Placement at Middle Management Level
[…….]
e. The Central Civil Services Authority should be charged with the
responsibility of fixing tenure for all civil service positions
and this decision of the Authority should be binding on
Government.
f. Officers from the organized services should not be given ‘non-
field’ assignments in the first 8-10 years of their career.
g. State Governments should take steps to constitute State Civil
Services Authorities on the lines of the Central Civil Services
Authority.
9.8 (e) – (g) Placement at Top Management Level
[……]
e. A Central Civil Services Authority should be constituted under the
proposed Civil Services Bill. The Central Civil Services Authority
shall be a five-member body consisting of the Chairperson and four
members (including the member-secretary). The Authority should have a
full time Member-Secretary of the rank of Secretary to Government of
India. The Chairperson and members of the Authority should be persons
of eminence in public life and professionals with acknowledged
contributions to society. The Chairperson and members of the Authority
shall be appointed by the President on the recommendations of a
Committee consisting of the Prime Minister and the Leader of the
Opposition in the Lok Sabha.
(Explanation:- Where the Leader of the Opposition in the Lok Sabha has
not been recognized as such, the Leader of the single largest group in
the Opposition in the Lok Sabha shall be deemed to be the Leader of
the Opposition).
f. The Central Civil Services Authority should deal with matters of
assignment of domains to officers, preparing panels for posting of
officers at the level of Joint Secretary and above, fixing tenures for
senior posts, deciding on posts which could be advertised for lateral
entry and such other matters that may be referred to it by the
Government.
g. A similar procedure should be adopted for filling up vacancies at
SAG level and higher in the central police agencies. For example, in
the Central Para-Military Forces the senior positions should be opened
to competition from officers of the CPMFs, IPS and the Armed Forces
(including those completing their Short Service Commissions).
Similarly for the intelligence agencies officers from the armed forces
as well as the CPOs with experience in the field of intelligence
should be considered for postings at higher levels in the intelligence
agencies.
17.5 Recommendations
“A new Civil Services Bill may be drafted. The following salient
features may be included in the proposed Bill.
[…….]
VIII. Fixation of Tenures : All senior posts should have a specified
tenure. The task of fixing tenures for various posts may also be
assigned to this independent agency – Central Civil Services
Authority.”
15. The 2nd Administrative Reforms Commission (15th Report), 2009 also
speaks of the same in paras 2.4.1.2 and 2.4.2.4 and the same is extracted
below for ready reference:-
“2.4.1.2 In order to provide legislative backing to these measures,
the Commission has recommended enactment of a Civil Services Law which
will cover all personnel holding civil posts under the Union. As
recommended at paragraph 17.5 of this Report, the proposed law has the
following salient features :
[…..]
V. Fixation of Tenure. All senior psots should have a specified
tenure. The task of fixing tenures for various posts may also be
assigned to this independent agency – Central Civil Services
Authority”.
[…..]
IX. Functions of the Central Civil Services Authority. The Central
Authority shall discharge the following functions :
[…..]
vi. Fix the tenure for posts at the ‘Senior Management Level’ in
Government of India.
2.4.2.4 For appointments to the posts of the Chief Secretary and the
Principal Conservator of Forest, the Commission communicated the
following interim suggestions to the Government in December 2007:-
i) There should be a collegium to recommend a panel of names to the
Chief Minister/ Cabinet for these two posts. For the post of Chief
Secretary, this collegiums may consist of
a) a Minister nominated by the Chief Minister,
b) the Leader of the Opposition in the State Legislative Assembly and
(c) the incumbent Chief Secretary. For the selection to the
post of Principal Chief Conservator of Forests the collegiums
may consist of
a) The Minister In-charge of Forests,
(b) the leader of Opposition in the State Legislative
Assembly and
(c) the Chief Secretary.
ii) There should be a fixed tenure of two years for both these
posts.
iii) The selection for the post of Chief Secretary and Principal
Chief Conservator of Forests should be widened to include all officers
above a specified seniority (e.g. 30 years). All officers with
seniority higher than a prescribed limit should be eligible to be a
part of the panel.”
16. The Hota Committee Report, 2004 also highlights the same as its main
Recommendation No.39 which reads as follows :-
“(39). The proposed comprehensive law on the Civil Services
shall incorporate, inter alia, a Code of Ethics and a statutory
minimum tenure in a post to an officer. Under the proposed law, if an
officer is sought to be transferred before his tenure, there would be
an expeditious administrative inquiry by a designated senior officer
to be earmarked for this purpose. This can be dispensed with if the
transfer is on promotion/deputation/foreign training. In all other
cases, the Report of Inquiry with the views of the Civil Service
Board/Establishment Board would be put up to the Chief Minister if
officer of the All India Services Service/other civil services work in
the States, or the Appointments Committee of the Cabinet if the
officers work under the Central Staffing Scheme. For the officers of
the other Central Services working in Ministries/Departments but not
under the Central Staffing Scheme, the new law will prescribe tenure
with a provision for administrative inquiry before an officer is
sought to be transferred except on specified grounds.”
C. RECORDING OF INSTRUCTIONS AND DIRECTIONS:
17. Petitioners have highlighted the serious predicant on which the civil
servants are placed when they are asked to implement governmental
decisions, on oral directions, suggestions, instructions etc. Much of the
deterioration of the standards of probity and accountability, according to
the Petitioners, can be traced to practice of issuing and acting on verbal
instructions or oral orders which are not recorded. This issue was
addressed by the Santhanam Committee way back in 1962. Paragraphs 6.20 and
6.21 deal with those aspects, which are given below for easy reference :
“6.20. We have already mentioned the existence of ‘contactmen’ and
‘touts’. Obviously these do not include genuine representatives of
commercial and industrial firms. In this regard our recommendations
are :-
i) No official should have any dealings with a person claiming to
act on behalf of a business or industrial house or an
individual, unless he is properly accredited, and is approved by
the Department, etc. concerned. Such a procedure will keep out
persons with unsavoury antecedents or reputation. There should,
of course, be no restriction on the proprietor or manager etc.
of the firm or the applicant himself approaching the
authorities.
ii) Even the accredited representatives should not be allowed to see
officers below a specified level – the level being specified in
each organization after taking into consideration the functions
of the organizations, the volume and nature of the work to be
attended to, and the structure of the organization. However,
care should be taken to limit permissible contacts to levels at
which the chances of corruption are considered to be small. This
would often mean that no contact would be permitted at the level
of subordinate officers.
iii) There should be some system of keeping some sort of record of
all interviews granted to accredited representatives.
iv) There should be a fairly senior officer designated in each
Department to which an applicant etc., may go if his case is
being unreasonably delayed.
It is necessary that a proper procedure should be devised in
consultation with the Central Vigilance Commission for accrediting and
approval by the department. Before granting approval the antecedents
of the person proposed to be accredited should, if possible, be
verified. In any case no person who is not definitely employed by an
established undertaking who will be responsible for his contact and
actions should be approved.
6.21. It is also desirable that officers belonging to prescribed
categories who have to deal with these representatives should maintain
a regular diary of all interviews and discussions with the registered
representatives whether it takes place in the office or at home. The
general practice should be that such interviews should be in the
office and if it takes place at home, reasons should be recorded. Any
business or discussion which is not so recorded should be deemed to be
irregular conduct, of which serious notice should be taken by the
superiors.
18. Further, we also notice the All India Services (Conduct) Rules, 1968,
which also states that the directions of the officials superior shall
ordinarily be in writing. Rule 3(3) of the above-mentioned Rules reads as
follows :-
3(3) (i) No member of the Service shall, in the performance of his
official duties, or in the exercise of powers conferred on him, act
otherwise
than in his own best judgment to be true and correct except when he is
acting under the direction of his official superior.
(ii) The direction of the official superior shall ordinarily be in
writing. Where the issue of oral direction becomes unavoidable, the
official superior shall confirm it in writing immediately thereafter.
(iii) A member of the Service who has received oral direction from his
official superior shall seek confirmation of the same in writing, as
early as possible and in such case, it shall be the duty of the
official superior to confirm the direction in writing.
Explanation I– A member of the Service who habitually fails to perform
a task assigned to him within the time set for the purpose and with
the quality of performance expected of him shall be deemed to be
lacking in devotion to duty within the meaning of the sub-rule (1);
Explanation II – Nothing in clause (i) of sub-rule (3) shall be
construed as empowering a Government servant to evade his
responsibilities by seeking instructions from or approval of, a
superior officer or authority when such instructions are not necessary
under the scheme of distribution of powers and responsibilities.”
19. We, in this respect, point out that the response of certain States
and Union Territories in the matter of creation of an independent CSB,
fixed tenure of civil servants and recording of directions, are neither
consistent nor positive. But generally, they have welcomed the suggestion
for fixation of tenure subject to the rider that in certain exceptional
circumstances, the State Governments should have the power to transfer a
person prematurely before completion of the tenure. Few States have
welcomed the suggestion that every Civil Servant should record all the
instructions and directions received.
20. Union and the State Governments apprehend that creation of an
independent CSB or institutional arrangement for regulating transfers and
postings of officers would be an intrusion into the executive function of
the Centre and State Governments headed by the political executives, who
are directly responsible to the people. Further, they have also taken up a
stand that the said arrangement would lead to a dual line of control,
creating complexities in managing administrative functions and affecting
efficiency of civil servants. With regard to frequent transfers of
officers, they have taken up the stand that there is already a clear cut
policy that except in cases of promotion, in the interest of work and
administrative reasons, transfer and posting will be done only after
completion of three years of tenure. Few States have issued directions, to
get written directions in case of oral directions of Superior Officers in
line with Rule 3(3)(ii)-(iii) of All India Services (Conduct) Rules, 1968.
21. Chapter XIV of the Constitution of India deals with services under
the Union and the States. Article 309 deals with the recruitment and
conditions of service of persons serving the Union or the State, which
expressly made subject to the other provision of the Constitution of India,
In terms of Article 309 appropriate Legislature, Parliament or the State
Legislature is empowered to legislate, to regulate the recruitment and
conditions of service of persons appointed to public services and post them
in connection with the affairs of the Union or of any State. In terms of
the proviso to Article 309, number of rules have been made from time to
time by the Union and the State Governments and they govern and regulate
the public services in India. Article 310 of the Constitution provides for
all members of the civil services of the Union and All India Services to be
held in civil post at the pleasure of the President and all members of the
civil services of the State at the pleasure of the Governor of the State.
Article 311 provides certain safeguards regarding dismissal, removal or
reduction in rank of persons employed in civil capacity. Article 312
provides constitution of All India Services. Articles 318 to 333 deal with
the Union Public Service Commission (UPSC) and State Public Service
Commissions (PSC). Article 320 stipulates that it shall be the duty of the
Union and the State PSCs to conduct the examinations for appointment to the
services of the Union and services of the State, respectively.
22. UPSC or the State PSCs are to be consulted in all matters relating to
the method of recruitment to civil services and on the principles to be
followed in making appointments to civil services and posts and in making
promotions and transfers from one service to another. Of late, the UPSCs
and PSCs are being denuded of their powers of consultation while making
promotions and transfer from one service to another. Article 323 lays down
that it shall be the duty of the UPSC to present annually to the President
a report of the work done by the Commission and on receipt of such report
the President shall cause a copy thereof together with the memorandum,
explaining as regard the cases, if any, where advice of the Commission was
not accepted, the reasons for such non-acceptance, to be laid before the
House of Parliament. Similar provision also exists for the State PSCs.
Article 323A authorizes Parliament to set up administrative tribunals
regarding disputes with regard to recruitment and conditions of service,
appointed to public services. Parliament in exercise of its powers under
Article 309 enacted the All India Service Act, 1951, which authorizes Union
Government in consultation with the State Governments, to make rules for
the regulations of conditions of service of persons appointed to All India
Services.
23. Part V of the Constitution deals with the Union. Article 53 states
that the executive power of the Union shall be vested in the President and
shall be exercised by him either directly or through officers subordinate
to him in accordance with this Constitution. Article 154 of Chapter VI of
the Constitution states that the executive power of the State shall be
vested with the Governor and shall be exercisable by him either directly or
through officers subordinate to him in accordance with the Constitution.
Article 73 of the Constitution states that subject to the provisions of the
Constitution executive power of the Union shall extend to matters with
respect to which Parliament has power to make laws and to the exercise of
such rights, authority and jurisdiction, as exercisable by the Government
of India by virtue of any treaty or any agreement. Article 163 of the
Constitution states that there shall be a Council of Ministers, the Chief
Minister as the head to aid and advice the Governor in exercise of his
functions, except in so far as he is by or under this Constitution required
to exercise his functions or any of them with his discretion.
24. The above are the constitutional provisions which generally deal with
the power of the executive. The principles governing the roles and
responsibilities of political executive and civil servants, are therefore,
constitutionally defined and also based on the basis of various rules
framed by the President and Governor for the conduct of business in the
Government. Ministers are responsible to the people in a democracy because
they are the elected representatives of the Parliament as well as the
General State Assembly. Civil servants have to be accountable, of course
to their political executive but they have to function under the
Constitution, consequently they are also accountable to the people of this
country.
25. Paragraph 15.1.3 of the report of the 2nd Administrative Reforms
Committee (2008) reads as follows:
“A healthy working relationship between Ministers and civil
servants is critical for good governance. While the principles
governing the roles and responsibilities of Ministers and civil
servants are well defined in political theory, in the actual
working of this relationship this division of responsibility
becomes blurred with both sides often encroaching upon the other’s
sphere of responsibility. In any democracy, Ministers are
responsible to the people through Parliament and therefore the
civil servants have to be accountable to the Minister. However, an
impartial civil service is responsible not only to the government
of the day but to the Constitution of the land to which they have
taken an oath of loyalty. At the same time, implementing the
policies of the duly elected government is a core function of civil
servants. That is why the division of responsibility between the
civil servants and ministers needs to be more clearly defined. A
framework in which responsibility and accountability is well
defined would be useful.”
26. Civil servants, as already indicated, have to function in accordance
with the Constitution and the laws made by the Parliament. In the present
political scenario, the role of civil servants has become very complex and
onerous. Often they have to take decisions which will have far reaching
consequences in the economic and technological fields. Their decisions
must be transparent and must be in public interest. They should be fully
accountable to the community they serve. Many of the recommendations made
by the Hota Committee, various reports of the 2nd Administrative Reforms
Commission, 2008 and Santhanam Committee Report have high-lighted various
lacunae in the present system which calls for serious attention by the
political executive as well as the law makers.
27. We find it, however, difficult to give a positive direction to
constitute an independent CSB at the Centre and State Level, without
executive control, which Hota Committee has recommended to be statutory in
nature, that too, comprising of persons from outside the Government.
Petitioners placed considerable reliance on the judgment of this Court in
Prakash Singh and Others v. Union of India (2006) 8 SCC 1 and urged that
similar directions be given to insulate, to at least some extent, the civil
servants from political/executive interference. Retired persons,
howsoever eminent they may be, shall not guide the transfers and postings,
disciplinary action, suspension, reinstatement, etc. of civil servants,
unless supported by law enacted by the Parliament or the State Legislature.
28. CSB, consisting of high ranking in service officers, who are experts
in their respective fields, with the Cabinet Secretary at the Centre and
Chief Secretary at the State level, could be a better alternative (till the
Parliament enacts a law), to guide and advise the State Government on all
service matters, especially on transfers, postings and disciplinary action,
etc., though their views also could be overruled, by the political
executive, but by recording reasons, which would ensure good governance,
transparency and accountability in governmental functions. Parliament can
also under Article 309 of the Constitution enact a Civil Service Act,
setting up a CSB, which can guide and advice the political executive
transfer and postings, disciplinary action, etc. CSB consisting of experts
in various fields like administration, management, science, technology,
could bring in more professionalism, expertise and efficiency in
governmental functioning.
29. We, therefore, direct the Centre, State Governments and the Union
Territories to constitute such Boards with high ranking serving officers,
who are specialists in their respective fields, within a period of three
months, if not already constituted, till the Parliament brings in a proper
legislation in setting up CSB.
30. We notice, at present the civil servants are not having stability of
tenure, particularly in the State Governments where transfers and postings
are made frequently, at the whims and fancies of the executive head for
political and other considerations and not in public interest. The
necessity of minimum tenure has been endorsed and implemented by the Union
Government. In fact, we notice, almost 13 States have accepted the
necessity of a minimum tenure for civil servants. Fixed minimum tenure
would not only enable the civil servants to achieve their professional
targets, but also help them to function as effective instruments of public
policy. Repeated shuffling/transfer of the officers is deleterious to good
governance. Minimum assured service tenure ensures efficient service
delivery and also increased efficiency. They can also prioritize various
social and economic measures intended to implement for the poor and
marginalized sections of the society.
31. We, therefore, direct the Union State Governments and Union
Territories to issue appropriate directions to secure providing of minimum
tenure of service to various civil servants, within a period of three
months.
32. We have extensively referred to the recommendations of the Hota
Committee, 2004 and Santhanam Committee Report and those reports have
highlighted the necessity of recording instructions and directions by
public servants. We notice that much of the deterioration of the standards
of probity and accountability with the civil servants is due to the
political influence or persons purporting to represent those who are in
authority. Santhanam Committee on Prevention of Corruption, 1962 has
recommended that there should be a system of keeping some sort of records
in such situations. Rule 3(3)(iii) of the All India Service Rules
specifically requires that all orders from superior officers shall
ordinarily be in writing. Where in exceptional circumstances, action has
to be taken on the basis of oral directions, it is mandatory for the
officer superior to confirm the same in writing. The civil servant, in
turn, who has received such information, is required to seek confirmation
of the directions in writing as early as possible and it is the duty of the
officer superior to confirm the direction in writing.
33. We are of the view that the civil servants cannot function on the
basis of verbal or oral instructions, orders, suggestions, proposals, etc.
and they must also be protected against wrongful and arbitrary pressure
exerted by the administrative superiors, political executive, business and
other vested interests. Further, civil servants shall also not have any
vested interests. Resultantly, there must be some records to demonstrate
how the civil servant has acted, if the decision is not his, but if he is
acting on the oral directions, instructions, he should record such
directions in the file. If the civil servant is acting on oral directions
or dictation of anybody, he will be taking a risk, because he cannot later
take up the stand, the decision was in fact not his own. Recording of
instructions, directions is, therefore, necessary for fixing
responsibility and ensure accountability in the functioning of civil
servants and to uphold institutional integrity.
RTI Act and Civil Servants
34. Democracy requires an informed citizenry and transparency of
information.
Right to Information Act, 2005 (RTI Act) recognizes the right
of the citizen to secure access to information under the control of public
authority, in order to promote transparency and accountability in the
working of every public authority.
Section 3 of the Act confers right to
information to all citizens and a corresponding obligation under Section 4
on every public authority to maintain the records so that the information
sought for can be provided.
Oral and verbal instructions, if not recorded, could not be provided.
By acting on oral directions, not recording the
same, the rights guaranteed to the citizens under the Right to Information
Act, could be defeated.
The practice of giving oral directions/instructions
by the administrative superiors, political executive etc. would defeat the
object and purpose of RTI Act and would give room for favoritism and
corruption.
35. We, therefore, direct all the State Governments and Union Territories
to issue directions like Rule 3(3) of the All India Services (Conduct)
Rules, 1968, in their respective States and Union Territories which will be
carried out within three months from today.
36. The Writ Petitions are, accordingly, disposed of with the above
directions.
...……………………………..J.
(K.S. Radhakrishnan)
………………………………..J.
(Pinaki Chandra Ghose)
New Delhi,
October 31, 2013.
