Latest Supreme Court Judgment on Administrative Reforms- Part I

Recently, the Supreme Court of India decided a Public Interest Litigation for bringing reforms in the bureaucratic structure of the country (T.S.R. Subramanian & Ors. Versus Union of India & Ors.). Following is the summary of the case. I will post my opinion and outlook about the judgment in a later post. The whole case can be accessed here.

Facts

This case involves Article 32 of the Constitution of India that was invoked by some 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. Following reliefs were sought in the petition

(i) Create an “independent” Civil Service Board or Commission both at the Centre and the State based on recommendations by various committees and commissions.

(ii) Fixed tenure for civil servants ensuring stability based on recommendations by various committees and commissions.

(iii) 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.

Arguments on behalf of the Respondents (Union of India and Others)

1. Setting up of CSB was opposed in principle on the ground that it would interfere with the governmental functions. This is not advisable especially in the absence of any such provision in the constitution or any statute.

2. Based on the 2nd ARC, a draft bill titled, “Civil Services Performance Standards and Accountability Bill, 2010”, is under the consideration of the government.

3. Consultation with the state governments regarding fixed tenure of civil servants is going on.

4. Some of the state representatives contended that they have already set up CSB and have a sound transfer policy.

Various Reports and their relevant excerpts cited in the Judgment

1.       The Hotta Committee Report, 2004

2.      2nd Administrative Reforms Commission (10th Report), 2008

3.      2nd Administrative Service Commission (15th Report)

4.      The Report of the Committee on Prevention of Corruption

5.      Santhanam Committee Report

On Indian Civil Services Board

Hota Committee Recommendations

1. 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. 

2. If a Chief Minister does not agree with the recommendations of the Civil Services Board/ Establishment Board, he will have to record his reasons in writing. An officer transferred before his normal tenure even under orders of the Chief Minister can agitate the matter before a three-member Ombudsman. 

3. 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.

2^nd Administrative Reforms Commission, 15^th Report, 2009

1. The Commission has recommended enactment of a Civil Services Law which will cover all personnel holding civil posts under the Union.

2. There should be a fixed tenure of at least two years for the posts of Chief Secretary and the Chief Conservator of Forests.

3. 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).

4. All officers with a seniority higher than a prescribed limit should be eligible to be a part of the panel.

On Fixed Tenure

Central Staffing Scheme, 1996

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

                 V.            Secretary- No Fixed Tenure

Other Provisions in the Scheme

1. Officers of the Indian Foreign Services would have a tenure of three years.

2. No Extension after the completion of full tenure would be allowed.

3. 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.

4. 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.

5. Officers from the organized services should not be given ‘non-field’ assignments in the first 8-10 years of their career.

6. 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.

Recording of Instructions and Directions

Petitioners highlighted the serious predicament on which the civil servants are placed when they are asked to implement governmental decisions, on oral directions, suggestions, instructions etc. They also said that much of the deterioration of the standards of probity and accountability 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.

The committee said that “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.”

Rule 3(3) of the All India Services (Conduct) Rules, 1968

 (i) No member of the Service shall, in the performance of his official duties, or in the exercise of powers conferred on him, act otherwise than in his own best judgment to be true and correct except when he is acting under the direction of his official superior.

(ii) The direction of the official superior shall ordinarily be in writing. Where the issue of oral direction becomes unavoidable, the official superior shall confirm it in writing immediately thereafter.

(iii) A member of the Service who has received oral direction from his official superior shall seek confirmation of the same in writing, as early as possible and in such case, it shall be the duty of the official superior to confirm the direction in writing.

Explanation I– A member of the Service who habitually fails to perform a task assigned to him within the time set for the purpose and with the quality of performance expected of him shall be deemed to be lacking in devotion to duty within the meaning of the sub-rule (1);

Explanation II – Nothing in clause (i) of sub-rule (3) shall be construed as empowering a Government servant to evade his responsibilities by seeking instructions from or approval of, a superior officer or authority when such instructions are not necessary under the scheme of distribution of powers and responsibilities.”

Reasoning of the Court

After taking into consideration, all the reports of the various committees and commissions, the court mentioned the Chapter XIV of the Constitution of India which deals with services under the Union and the States. Basically, it is Article 309 that empowers the parliament and the legislatures 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. Article 311 provides certain safeguards regarding dismissal, removal or reduction in rank of persons employed in civil capacity.

Article 323 is also important in this regard. 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.

Next, the Court explained the scheme of Part V of the Constitution which deals with the constitutional provisions relating to the power of the executive.

In this regard, the court said that:

“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.”

Thus, the court directed 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.

The court further said that:

“The necessity of minimum tenure has been endorsed and implemented by the Union Government. In fact, we notice, almost 13 States have accepted the necessity of a minimum tenure for civil servants. Fixed minimum tenure would not only enable the civil servants to achieve their professional targets, but also help them to function as effective instruments of public policy. Repeated shuffling/transfer of the officers is deleterious to good governance. Minimum assured service tenure ensures efficient service delivery and also increased efficiency. They can also prioritize various social and economic measures intended to implement for the poor and marginalized sections of the society.”

Hence, the court directed 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.

On the point of issuing instructions and directions, the court said that

“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. Recording of instructions, directions is, therefore, necessary for fixing responsibility and ensure accountability in the functioning of civil servants and to uphold institutional integrity.”

The court also mentioned the RTI Act in this regard. It said that

“The Section 3 of the Right to Information 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 favouritism and corruption.”

Thus, the court again directed 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.

The analysis of this judgment can be found here.