Supreme Court of India
T.S.R. SUBRAMANIAN & ORS.versusUNION OF INDIA & ORS.
- Citation
- 2013 INSC 738
- Decided
- 31 October 2013
- Disposal
- Disposed off
- Bench
- K S RADHAKRISHNAN
Holding
The Supreme Court directed the Centre, State Governments and Union Territories to constitute Civil Services Boards with senior serving officers, to secure minimum tenure for civil servants, and to require written recording of oral instructions, pending legislative enactment of a Civil Services Act.
Summary
Retired civil servants filed writ petitions under Article 32 seeking a mandamus directing the Union, State Governments and Union Territories to create an independent Civil Services Board (CSB), to fix a minimum tenure for civil servants, and to require recording of all oral instructions in writing. The Court examined constitutional provisions, the Hota Committee and other reform reports, and the All India Services (Conduct) Rules and RTI Act. It held that, pending legislation, the executive can be directed to constitute CSBs composed of senior serving officers, to issue directions securing minimum tenure, and to enforce written recording of oral orders. The directions aim to enhance transparency, accountability and protect civil servants from arbitrary political pressure. The petitions were disposed of with these directions.
Issues considered
- The Court's jurisdiction to issue a mandamus directing the creation of an independent Civil Services Board at Centre and State levels.
- Whether the executive must ensure a minimum fixed tenure for civil servants.
- Whether civil servants must be compelled to record oral instructions in writing under the All India Services (Conduct) Rules and the Right to Information Act.
- The compatibility of such directions with constitutional provisions on executive power and Article 309.
- The appropriateness of interim judicial directions pending enactment of a Civil Services Act.
Legislation cited
Subjects
Civil Services BoardFixed tenureRecording of instructionsRight to Information ActAdministrative lawWrit of mandamusIndependence of civil servantsTransparencyAccountabilityConstitutional law
Judgment
[2013] 1"l S.C.R. 991
T.S.R. SUBRAMANIAN & ORS. A
v.
UNION OF INDIA & ORS.
{Writ Petition {Civil) No. 82 of 2011)
OCTOBER 31, 2013
B
[K.S. RADHAKRISHNAN AND
PINAKI CHANDRA GHOSE, JJ.]
Civil Service - Preservation of integrity, fearlessness and
independence of civil servants - Need of reforms for - Writ C
petition seeking writ of mandamus requiring Union, State and
Union Territories to create independent Civil Services Board,
to provide fixed tenure for posting of civil servants and
requirement for every civil servant to record instructions/orders
- Held: There are various lacunae in the present system in D
which the civil servants function, which calls for serious
attention - Directions issued to constitute Civil Services Board
(CSB) with high ranking serving officers, till the Parliament
brings in proper legislation in setting up of CSB - Direction
to appropriate directions to secure minimum tenure of service E
to the civil servants - Direction also to issue directions
requiring the civil servants to record oral orders/instructions
- Absence of recording oral instructions would defeat the
rights guaranteed under Right to Information Act and would
also give room for favouratism and corruption - Constitution F
of India, 1950 - Chapter XIV and parts V and VI - Right to
Information Act, 2005 - ss. 3 and 4 - All India Service
(Conduct) Rules, 1968 - r. 3(3)(iii).
The present writ petitions were filed by retired civil
servants highlighting the necessity of various reforms for G
preservation of integrity, fearlessness and independence
of civil servants at the Centre and the State levels in the
country. They sought for creation of an independent Civil
991 H
992 SUPREME COURT REPORTS [2013] 11 S.C.R.
A Services Board (CSB), fixed tenure of civil servants and
requirement for recording instructions/directions/orders/
suggestions received from administrative superiors,
political authorities, legislators, commercial and business
interests. The reliefs prayed for were based on the Hotta
B 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.
c Disposing of the writ petitions, the Court
HELD: 1. The constitutional provisions under
Chapter XIV and Parts V and VI of the Constitution
generally deal with the power of the executive. The
D 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
E 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,
F consequently they are also accountable to the people of
this country. [Para 24) [1023-H; 1024-A-B]
2. 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
G 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
H Administrative Reforms Commission, 2008 and
T.S.R. SUBRAMANIAN & ORS. v. UNION OF INDIA & 993
ORS.
Santhanam Committee Report have high-lighted various A
lacunae in the present system which calls for serious
attention by the political executive as well as the law
makers. [Para 26] [1024-G-H; 1025-A-B]
3.1 It is difficult to give a positive direction to
B
constitute an independent CSB at the Centre and State
Level, without executive control, which Hota Committee
has recommended to be statutory in nature, that too,
comprising of persons from outside the Government.
CSB, consisting of high ranking in service officers, who
are experts in their respective fields, with the Cabinet C
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 D
be overruled, by the political executive, but by recording
reasons, which would ensure good governance,
transparency and accountability in governmental
functions. Parliament can also under Article 309 of the
Constitution enact a Civil Service Act, setting up a CSB, E
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 F
functioning. [Paras 27 and 28] [1025-C, F-H; 1026-A]
Prakash Singh and Ors. vs. Union of India (2006) 8 SCC
1: 2006 (6) Suppl. SCR 473 - relied on.
3.2. Therefore, the Centre, State Governments and G
the Union Territories are directed 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
H
994 SUPREME COURT REPORTS [2013] 11 S.C.R.
A brings in a proper legislation in setting up CSB. [Para 29)
[1026-B]
4.1. 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
8
of the executive head for political and other considerations
and not in public interest. Fixed minimum tenure would
not only enable the civil servants to achieve their
professional targets, but also help them to function as
C 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
D the society. [Para 30) [1-026-C-F]
4.2. Therefore, the Union, State Governments and
Union Territories are directed to issue appropriate
directions to secure providing of minimum tenure of
E service to various civil servants, within a period of three
months. [Para 31) [1026-F-G]
5.1. The recommendations of the Hota Committee,
2004 and Santhanam Committee Report have highlighted
the necessity of recording instructions and directions by
F public servants. 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
G 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
H has to be taken on the basis of oral directions, it is
T.S.R. SUBRAMANIAN & ORS. v. UNION OF INDIA & 995
ORS.
mandatory for the officer superior to confirm the same in A
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.
[Para 32) [1026-G-H; 1027-A-C] B
5.2. The civil servants cannot function on the basis
of verbal or oral instructions, orders, suggestions,
proposals, etc. and they must also be protected against
wrongful and arbitrary pressure exerted by the C
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 D
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 E
fixing responsibility and ensure accountability in the
functioning of civil servants and to uphold institutional
integrity. [Para 33) [1027-D-F]
5.3. Democracy requires an informed citizenry and F
transparency of information. Right to Information Act,
2005 recognizes the right of the citizen to secure access
to information under the control of public authority, in
order to promote transparency and accountability in the
working of every public authority. Section 3 of the Act G
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
H
996 SUPREME COURT REPORTS (2013] 11 S.C.R.
A 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
B Act and would give room for favoritism and corruption.
[Para 34) [1027-G-H; 1028-A-C]
5.4. Therefore, all the State Governments and Union
Territories are directed to issue directions like Rule 3(3)
of the All India Services (Conduct) Rules, 1968, in their
C respective States and Union Territories which will be
carried out within three months from the date of the
judgment. [Para 35] [1028-C-D]
Case Law Reference:
D .
2006 (6) Suppl. SCR 473 relied on Para 27
CIVIL ORIGINAL JURISDICTION : Under Article 32 of the
Constitution of India.
E Writ Petition (Civil) No. 82 of 2011.
WITH
W.P.(C) No. 234 of 2011.
F K.K. Venugopal, Menka Guruswamy, Ankur Talwar,
Raeesa Vakil, Ashwati Balraj, Manu Chaturvedi, Nikhil Nayyar,
Dr. Ashok Dhamija, Sonia Dhamija (for Dr. Kailash Chand) for
the Petitioners.
A. Mariarputham, Paras Kuhad, J.S. Attri, S.K. Dubey,
G Manjit Singh, Jasbir Singh Malik (for Milind Kumar) Ajay Kapur,
Sapam Biswajit Meitei, Kh. Nobin Singh, Bina Madhavan, Amit
Kumar Singh (for K. Enatoli Serna), Parth Tiwari, (for Pragati
Neekhra), R. Rakesh Sharma (for B. Balaji), Ashok Panigarhi,
Surajit Bhaduri, Santosh Kumar, Asha G. Nair, Sadhana
H Sandhu, Shailendra Saini, M. Khairati, Priyanka Bharihoke (for
T.S.R. SUBRAMANIAN & ORS. v. UNION OF INDIA & 997
ORS.
D.S. Mehra), Nandini Gupta, (for Hemantika Wahi), Anil Kr. A
Jha, Priyanka Tyagi, Ravi P. Mehrotra, Vibhu Tiwari, Abhinav
Malik, Ranjan Mukherjee, Subhro Sanyal, Aruna Mathur, Yusuf,
Vishi, G.N. Reddy, B. Debojit, Bala Shivudu M., Chandan
Kumar (for Gopal Singh), Nanvit Kumar (for Corporate Law
Group), Pragyan Sharma, Heshu Kayina, V.G. Pragasam, M.R. B
Shamshad, Dinesh Kumar, Jagjit Singh Chhabra, Aniruddha P.
Mayee, Charudatta Mahindrakar, Mishra Saurabh, A.
Subhashini, Anil Katiyar, C.K. Sucharita, Naresh K. Sharma,
Tara Chandra Sharma, K.V. Mohan, B.S. Banthia, V.N.
Raghupathy, P.V. Yogeswaran, K.V. Jagdishvaran, G. Indira, c
Dharmendra Kumar Sinha, T. Harish Kumar, Balaji Srinivasan
for the Respondents.
The Judgment of the Court was delivered by
K.S. RADHAKRISHNAN, J. 1. Article 32 of the D
Constitution of India has been invoked by few eminent retired
civil servants highlighting the necessity of various reforms for
preservation of integrity, fearlessness and independence of civil
servants at the Centre and State levels in the country. Prayers
made in this writ petition are based on various reports and E
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 F
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 G
·Reforms Commission 2008 (10th Report, para
9.8); the statement adopted at the Conference of
· Chief Ministers on Effective and Responsive
Administration, 1997;
H
998 SUPREME COURT REPORTS [2013] 11 S.C.R.
A (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
B 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);
c (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
D 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
E 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].
F 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
G 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
H and State level, with a degree of independence so that it can
T.S.R. SUBRAMANIAN & ORS. v. UNION OF INDIA & 999
ORS. [K.S. RADHAKRISHNAN, J.]
make recommendations on all transfers and postings without A
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 B
transfers. Learned senior counsel also highlighted the necessity
for providing a fixed tenure for civil servants ensuring stability
which is· highly necessary for implementing various
programmes which will have social and economic impact on
the society. Learned senior counsel also highlighted the c
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 D
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 E
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 F
based on the 2nd Administrative Reforms Committee {ARC),
a draft Bill entitled "Civil Services Performance Standards and
Accountability Bill, 201 O" was provided incorporating certain
recommendations in the above-mentioned reports. Further, it
was pointed out that the draft Cabinet Note for the introduction G
·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 H
1000 SUPREME COURT REPORTS [2013) 11 S.C.R.
A 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
B were sought on the proposal of fixing minimum tenure of
posting of IAS Officers. 13 State Governments agreed with the
proposal, while some States did not agree. The matter was
further discussed in the meeting with the Chief Secretary/
Principal Secretaries of the States concerned on 31.5.2007 and
--- -cagainon 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
D 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
E 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,
F which is meant to operate with respect to IAS and Provisional
Civil Services, Indian Police Services and Provisional Police
Services and for Indian Forest Services and their feeder
services. Over and above, the State has also formulated
transfer policy dated 15.5.2008. Learned counsel appearing for
G 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
H official duties.
T.S.R. SUBRAMANIAN & ORS. v. UNION OF INDIA & 1001
ORS. [K.S. RADHAKRISHNAN, J.]
6. Reliefs prayed for in this writ petition are based on the A
Hatta Committee Report, 2004, 2nd Administrative Reforms
Commission (1 oth 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. B
A. CIVIL SERVICE BOARD CCSB):
7. The Government of India on 3rd February, 2004,
appointed the Hota Committee to examine the whole gamut of
Civil Service reforms and the terms of reference of the C
Committee were as follows :-
"(i) Making the Civil Service
• responsive and citizen-friendly;
D
• transparent;
• accountable; and
•ethical
E
in its (a) actions and (b) interface with the people,
(ii) Making the civil service a-governance friendly.
(iii) Putting a premium on intellectual growth of civil F
servants and on upgrading their domain knowledge,
(iv) Protecting the civil service against wrongful
pressure exerted by
(a) administrative superiors; G
(b) political executive;
(c) business interests; and
(d) other vested interests. H
1002 SUPREME COURT REPORTS [2013) 11 S.C.R.
A (v) Changes, if any necessary, in the various AH India
Services Rules an'd Central Civil Rules to provide
a statutory cover to the proposed civil service
reforms.
(vi) Changes in rules governing the disciplinary
B
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
C relevant to the subject of civil service reforms."
8. On establishment of Indian Civil Services Board, the
Hota Committee made the following recommendations :-
"5.09 We found that some States complied with the
D 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
E 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 I Establishment Board both in the
F 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
G 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
H Service and AIS officers serving in connection with affairs
T.S.R. SUBRAMANIAN & ORS. v. UNION OF INDIA & 1003
ORS. [K.S. RADHAKRISHNAN, J.]
of the State. If a Chief Minister does not agree with the A
recommendations of the Civil Services Board/
Establishment Board, he will have to record his reasons
in writing. An officer transferred before his normal tenure
even under orders of the Chief Minister can agitate the
matter before a three-member Ombudsman. The B
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 c
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 0
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.
E
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 F
taken in case of Group 'A' officers I 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 G
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 H
1004 SUPREME COURT REPORTS [2013) 11 S.C.R.
A completes his tenure, he will move the Civil Services Board
to be set up under the new Civil Services Act and the Civil
Services Board, with its views on report of inquiry by a
designated officer, shall submit the case to the Chief
Minister for final orders. Thus in a State Government, a
B 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
c 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
D 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
E 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
F 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
G independent charge in Government of India may be given
a time limit to accept/send back proposals for the
Establishment Board regarding posting of officers with his
observations. In any particular case, if the Establishment
Board after giving the views of the Minister in charge its
H utmost consideration does not change its original
T.S.R. SUBRAMANIAN & ORS. v. UNION OF INDIA&1005
ORS. [K.S. RADHAKRISHNAN, J.]
recommendation, the Cabinet Secretary may send A
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
ACG for a final decision ..
8
5~ 12 lnter·alia, a Civil Services Board of a State shall also
perform functions of recommending officers of; All India
Service/Group 'A 1 service of the State for transfer to
different posts under the State Government. It would be
expedient b~fore an officer is sought to be transferred in C
the public interest when he has not completed his tenure,
thatan 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 D
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 E
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 F
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 G
before his tenure is over, he may have to record in writing
reasons for such transfer. If the official is transferred before
his tenure without adequate justification, he will have the
right to approach a three member Civil Service
Ombudsman set up for the purpose. H
1006 SUPREME COURT REPORTS [2013) 11 S.C.R.
,A 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
B 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
c 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
D
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
E and get it passed in the Legislature. {para 5.03 to 5.1 O)"
9. The 2nd Administrative Reforms Commission was set
up by the President reflecting ttie Resolution dated 31st August,
2005 passed by the Government of India. The Commission was
F 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 sul:>mitted its report in the year 2008. On the
G 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
H
T.S.R. SUBRAMANIAN & ORS. v. UNION OF INDIA & 1007
ORS. [K.S. RADHAKRISHNAN, J.]
level of SAG and above, fixing tenures for various posts, A
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 B
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 c
life and professionals with acknowledged contributions to
society as Members of the Authority. This Authority, to be
named as the Central Civil Services Authority, should be
constituted under the proposed Civil Services Act. As the
constitution of the Central Civil Services Authority under a 0
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 :-
E
"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 F
have a full time Member-Secretary of the rank of Secretary
to Government of India. The Chairperson and members of
the Authority s.hould be persons of eminence in public life
and professionals with acknowledged contributions to
society. The Chairperson and members of the Authority G
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 H
1008 . SUPREME COURT REPORTS [2013) 11 S.C.R.
A 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
8
Fifteenth Report (April 2009) has also made various
suggestions in order to provide legislative backing to these
measures, the Commission has recommended enactment of
a Civil Services Law which will coverall personnel holding civil
posts under the Union. The Commission recommended for the
C constitution of a Central Civil Service Authority, among other
things, which reads as follows:
"VIII. Constitution of the Central Civil Services
Authority:
D
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.
E
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-
F 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
G 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
H
T.S.R. SUBRAMANIAN & ORS. v. UNION OF INDIA &1009
ORS. [K.S~ RADHAKRISHNAN, J.)
Lok Sabha has not been recognized as such, the Leader A
·. 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 B
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 C
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 D
assignment of domain to officers, preparing panels for
posting at the levels of Joi.nt 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 E
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 F
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 G
at para 2.14.2.5 above may be immediately adopted by
all the State Governments.
2.4.2.6 Recommendations:
(a) After enactment of the State Civil Services Law on H
1010 SUPREME COURT REPORTS [2013] 11 S.C.R.
A 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
B Secretaries, Engineer-in-Chiefs, other Agency
Heads and Principal Chief Conservator of Forests).
(b) Till the time that such an Authority is constituted, the
following mechanism may be adopted for
appointment of the Chief Secretary and Principal
c 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
D 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
E 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.
F • 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
G 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.
H
T.S.R. SUBRAMANIAN & ORS. v. UNION OF INDIA &1011
ORS. [K.S. RADHAKRISHNAN, J.]
(c) As regards the appointment and tenure of the A
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. VVe have elaborately referred to the Report of the Hota B
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:
c
13. Various Committees have also recommended and
highlighted the necessity of providing fixed tenure for a civil
servant so as to ensure stability and efficiency of administration.
The Central Staffing Scheme, 1996, highlighted the necessity
of a fixed tenure to provide certain degree of stability to the o
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 E
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 F
far, the periods of tenure at the different levels have been
prescribed as under:-
Under Secretary 3 years
ii Deputy Secretary 4 years G
iii. Director 5 years
iv. Joint Secretary 5 years
H
1012. SUPREME COURT REPORTS. [2013]11 S.C.R.
A · 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
B of 5 years and maximum of 7 years of combined tenure
as Joint Secretary.
Additional Secretary. Where an officer remains on leave
(either from the Centre or from his Cadre authority or both)
on the expiry of his tenure as Joint Secretary till his
c 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.
D 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
E
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
F 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 ·
G from a Central Staffing Scheme post before their tenure.
17 .13 No lateral shifts of officers from one Ministry/l)eptt.
to another will normally be considered. However, in the
case of Private Secretary to Ministers the policy followed
would be:-
H
T.S.R. SUBRAMANIAN & ORS. v. UNION OF INDIA&1013
ORS. [K.S. RADHAKRISHNAN, J.] .
(a) The redeployment of a Private Secretary in the same A
Ministry/Department as Deputy Secretary or Director is
discouraged.
(b) The Private Secretary (to Minister) who has been
empanelled for holding post of Joint Secretary at the 8
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, C
8.5.14, 8.7 (e)- (g), 9.8(e)-(g) and 17.5(Vlll) 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/ D
her post. In fact, the Draft Public Services Bill, 2007 has
stipulated in Clause 1.6(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." E
8,5.1 i In Clause 22, the am 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 F
transfers and postings to maintain continuity and
predictability in career advancement and
acquisition of riecessary skills· and experiences as
well as promotion of good governance. Transfers
before the specified tenure shoulcl be for valid G
reasons to be recorded in writing. Provided that the
normal tenure of all public servants shall not be ·1ess
than two years."
8.5;14 The Commission is of the view that the Central Civil H
1014 SUPREME COURT REPORTS [2013) 11 S.C.R.
A 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
B 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
c 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
D
Authorities would be examined by the Commission in its
Report on 'State Administration'.
8. 7 (e) - (g) Placement at Middle Management Level
E [ ....... ]
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
f. Officers from the organized services should not be
given 'non-field' assignments in the first 8~10 years
of their career.
g. State Governments should take steps to constitute
G
State Civil Services Authorities on the lines of the
Central Civil Services Authority.
9.8 (e) - (g) Placement at Top Management Level
H [ ...... ]
T.S.R. SUBRAMANIAN & ORS. v. UNION OF INDIA &1015
ORS. [K.S. RADHAKRISHNAN, J.]
e. A Central Civil Services Authority should be constituted A
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 B
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 c
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 D
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 E
panels for posting of officers at the level of Joint Secretary
and above, fixing tenures for senior posts, deciding on
posts which could be advertised for lateral entry and such
other matters that may be referred to it by the Government.
g. A similar procedure should be adopted for filling up F
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 G
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.
H
1016 SUPREME COURT REPORTS [2013) 11 S.C.R.
A 17.5 Recommendations
"A new Civil Services Bill may be drafted. The following
salient features may be included in the proposed Bill.
(.......]
B
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."
c 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
D measures, the Commission has recommended enactment
of a Civil Services Law which will cover all personnel
holding civil posts under the Union. As recommended at
paragraph 17.5 of this Report, the proposed law ~as the
following salient features :
E
[..... ]
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 ·
F - Central Civil Services Authority".
[..... ]
IX. Functions of the Central Civil Services Authority.
The Central Authority shall discharge the following
G
functions:
[.....]
vi. Fix the tenure for posts at the 'Senior Management
H Level' in Government of India.
T.S.R. SUBRAMANIAN & ORS. v. UNION OF INDIA &1017
ORS. [K.S. RADHAKRISHNAN, J.]
2.4.2.4 For appointments to the posts of the Chief A
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
8
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,.
c
(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 D
(a) The Minister In-charge of Forests,
(b) the leader of Opposition in the State Legislative
Assembly and
E
(c) the Chief Secretary.
(ii) There should be a fixed tenure of two years for both
these posts.
F
(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
Jimit should be eligible to be a part of the panel."
G
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 H
1018 SUPREME COURT REPORTS [2013] 11 S.C.R.
A 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
B earmarked for this purpose. This can be dispensed with
if the transfer is on promotion/deputation/foreign training.
In all other cases, the Report of Inquiry with the views of
the Civil Service Board/Establishment Board would be put
up to the Chief Minister if officer of the All India Services
Service/other civil services work in the States, or the
c 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
D administrative inquiry before an officer is sought to be
transferred except on specified grounds."
C. RECORDING OF INSTRUCTIONS AND DIRECTIONS:
E 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
F 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 :
G "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
H
T.S.R. SUBRAMANIAN & ORS. v. UNION OF INDIA & 1019
ORS. [K.S. RADHAKRISHNAN, J.]
claiming to act on behalf of a business or industrial A
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 B
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 C
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 D
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 E
sort of record of all interviews granted to accredited
representatives.
(iv) There should be a fairly senior officer designated
in each Department to which an applicant etc., may
F
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 G
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.
H
1020 SUPREME COURT REPORTS (2013] 11 S.C.R.
A 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
B · 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
c 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 :-
D
3(3) (i) No member of the Service shall, in the performance
of his official duties, or in the exercise of powers conferred
on him, act otherwise than in his own best judgment to be
true and correct except when he is acting under the
E direction of his official superior.
(ii) The direction of the official superior shall ordinarUy be
in writing. Where the issue of oral direction becomes
unavoidable, the official superior shall confirm it in writing
immediately thereafter.
F
(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
G 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
H
T.S.R. SUBRAMANIAN & ORS. v. UNION OF INDIA & 1021
ORS. [K.S. RADHAKRISHNAN, J.]
. within the meaning of the sub-rule (1); A
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 B
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 C
recording of directions, are neither consistent nor positive. But
generally, they have welcomed the suggestion for fixation of
tenure subject to the rider that in certain exceptional
·circumstances, the State Governments should have the power
to transfer a person prematurely before completion of the o
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 E
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 F
of control, creating complexities in managing administrative
functions and affecting efficiency of civil servants. With regard
to frequent transfers of officers, they have taken up the stand
that there is already a clear cut policy that except in cases of
promotion, in the interest of work and administrative reasons, G
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. H
1022 SUPREME COURT REPORTS [2013] 11 S.C.R.
A 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
8 appropriate Legislature, Parliament or the State Legislature is
empowered to legislate, to regulate the recruitment and
conditions of service of persons appointed to public services
and post them in connection with the affairs of the Union or of
any State. In terms of the proviso to Article 309, number of rules
C 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 ofthe State at the pleasure of
D 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
E Public Service Commissions (PSC). Article 320 stipulates that
it stian 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.
F ·22. UPSC or the State PSCs are to be consulted in all
matters relating to the method of recr.uitment to civil services
and on the principles to be followed in making appointments
to. civil services and posts and in making promotions and
transfers from one service to another. Of late, the UPSCs arid
G PSCs are beirig 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
H shall cause a copy thereof together with the memorandum,
T.S.R. SUBRAMANIAN & ORS. v. UNION OF INDIA & 1023
ORS. [K.S. · RADHAKRISHNAN, J.]
explaining as regard the cases, if any, where advice of the A
Commission was not accepted, .the reasons for such non-
acceptance, to be I.a.id before .the House of Parliament. Similar
provision also exists .for the State PSCs. Article 323A
authorizes Parliament to set up administrative tribunals
r~garding dispute~ with regard to recruitment anp conditions B
of service, appointed to public services. Parliament in exercise
of its powers unper Article 309 enactep the All India Service
Act,· 1951.• which authorizes Union Government in consultation
.with the State Governments, t.o make rules for the regulations
of conditio.ns of. servi.ce of ·persons appointed to All India c
Services. · · ·
23. Part V of the Constitution deals with the Union. Article
53 states that the executive pow~r 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 D
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 E
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 F
the Constitution states that there shall be a Council of Ministers,
the' Chief Minister as the head to aid and advice the Governor
in exercise of his functions, except in so far as he is by or under
this Constitution required to exercise his functions or any of
them with his discretion. G
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
H
1024 SUPREME COURT REPORTS [2013] 11 S.C.R.
A 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
B 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
C Administrative Reforms Committee (2008) reads as follows:
"A healthy working relationship between Ministers and civil
servants is critical for good governance. While the
principles governing the roles and responsibilities of
Ministers and civil servants are well defined in political
D 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
E 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
F 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."
G 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.
H consequences in the economic and technological fields. Their
T.S.R. SUBRAMANIAN & ORS. v. UNION OF INDIA & 1025
ORS. [K.S. RADHAKRISHNAN, J.]
decisions must be transparent and must be in public interest. A
They should be fully accountable to the community they serve.
Many of the recommendations made by the Hota Committee,
various reports of the 2nd Administrative Reforms Commission,
· 2008 and Santhanam Committee Report have high-lighted
various lacunae in the present system which calls for serious B
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, whi.ch Hota Committee has C
recommended to be statutory in nature, that too, comprising of
persons from outside the Government. Petitioners placed
considerable reliance on the judgment of this Court in Prakash
Singh and Others v. Union of India (2006) 8 sec 1 and urged
that similar directions be given to· insulate, to at least some
extent, the civil servants from political/executive interference. D
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. E
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 F
and advise the State Government. on all service matters,
especially on transfers, postings and disciplinary action, etc.,
though their views also could be overruled, by the political
executive, but by recording reasons, which would ensure good
governance, transparency and accountability in governmental G
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,
H
1026 SUPREME COURT REPORTS [2013] 11 S.C.R.
A technology, could bring in more professionalism, expertise and
efficiency in governmental functioning.
. .
29. We, therefore, direct the Centre, State Governments
and the U11ion Territories to constitute· such Boards with high
ran.king serving officers, who are specialists iri their respective·
8
fields, within a period of three months, ifnot already constituted,
till the Parliament brings in a proper legislation in setting· up
CSB. . ..· -
30. We notice, at presentthe civil servants are not having
C stability of tenure, particularly in the State Governmentswhere
transfers and postings are rnade frequently, atthe whims and
fancies- of the executive head for political and other
considerations and not in public interest. The necessity of
minimum tenu.re has been endorsed and implemented by the
D Union Government. Intact, 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
E 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.
- . . . ' .' .. l _. . ·,_ :"· : .
F . 31._ We, therefore, dire~ the Union State Governments and
Union Territories to issue appropriate directionsto secure
providing of minimum tenure of servi.ce _to various civil servants,
within a period of thr~e months. - · ·
G .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 ins.tructions and directions by public. servants. We
notice that much of the deterioration of the standards of probity
H and accountability with the civil servants is due to the political
T.S.R. SUBRAMANIAN & ORS. v. UNION OF INDIA &1027
ORS. [K.S. RADHAKRISHNAN, J.]
•·
influence or persons purporting to represent those who are in A
authority. Santhanam Committee on Prevention ofCorruption,
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 B
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 c
of the officer superior to confirm the direction in writing.
33. We are of the view that the civil servants cannot
function on the basis of verbal or oral instructions, orders,
suggestions, proposals, etc. and they must also be protected
against wrongful and arbitrary pressure exerted by the D
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, E
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 F
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 G
transparency of information. Right to Information Act, 2005 (RTI
Act) recognizes the right of the citizen to secure access to
information under the control of public authority, in order to
promote transparency and accountability in the working of every
public authority, Section 3 of the Act confers right to information H
1028 SUPREME COURT REPORTS [2013] 11 S.C.R.
A 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
B 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 defe~t the object and purpose of RTI Act and would
give room for f~voritism and corruption.
c 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.
D
36. The Writ Petitions are, accordingly, disposed of with
the above directions.
K.K.T. Writ Petitions disposed of.
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