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
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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
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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].
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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
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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
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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
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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
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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
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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.”
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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, Engineerin-
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.
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• 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
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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.
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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
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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.”
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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.
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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.
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26
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
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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
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(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
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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 :
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“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
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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
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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
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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
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34
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
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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
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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
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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
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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:
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39
“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.”
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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 highlighted
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
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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
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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
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43
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
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44
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
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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
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46
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.
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...……………………………..J.
(K.S. Radhakrishnan)
………………………………..J.
(Pinaki Chandra Ghose)
New Delhi,
October 31, 2013.
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
Page 2
2
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
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3
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].
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4
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
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5
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
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6
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
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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
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8
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
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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.”
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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
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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
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12
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
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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
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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
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15
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
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16
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
Page 17
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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
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18
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
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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, Engineerin-
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.
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• 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
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21
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.
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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
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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.”
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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.
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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.
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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
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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
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(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
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29
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 :
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30
“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
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31
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
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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
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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
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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
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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
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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
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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
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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:
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“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.”
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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 highlighted
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
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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
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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
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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
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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
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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
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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.
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...……………………………..J.
(K.S. Radhakrishnan)
………………………………..J.
(Pinaki Chandra Ghose)
New Delhi,
October 31, 2013.
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