Writ Petition (Civil) No. 82 of 2011 and Writ Petition (Civil) No. 234 of 2011. Case: T.S.R. Subramanian and Ors. Vs Union of India (UOI) and Ors.. Supreme Court (India)

Case NumberWrit Petition (Civil) No. 82 of 2011 and Writ Petition (Civil) No. 234 of 2011
JudgesK.S. Panicker Radhakrishnan and Pinaki Chandra Ghose, JJ.
IssueMaharashtra Government Servants Regulations of Transfers and Prevention of Delay in Discharge of Official Duties Act, 2005; Civil Services Act; All India Service Act, 1951; Right to Information Act, 2005 - Sections 3, 4, 6; All India Service Conduct Rules, 1968 - Rule 3(3); All India Service Conduct Rules ; Constitution of India - Articles 32, ...
Judgement DateOctober 31, 2013
CourtSupreme Court (India)

Judgment:

K.S. Panicker Radhakrishnan

  1. Article 32 of the Constitution of India has been invoked by few eminent retired civil servants highlighting the necessity of various reforms for preservation of integrity, fearlessness and independence of civil servants at the Centre and State levels in the country. Prayers made in this writ petition are based on various reports and recommendations made by several Committees appointed for improving the public administration. On the basis of various reports, following reliefs are sought in the writ petition:

    (i) Issue a writ in the nature of mandamus or any other appropriate writ, order or direction requiring the Respondents to create an "independent" Civil Service Board or Commission both at the Centre and the State based on recommendations by the Hota Committee, 2004 (para 5.09, para 5.11, Main Recommendations No. 38); the 2nd Administrative Reforms Commission 2008 (10th Report, para 9.8); the statement adopted at the Conference of Chief Ministers on Effective and Responsive Administration, 1997;

    (ii) Issue a writ in the nature of mandamus or any other appropriate writ, order or direction requiring the Respondents to fixed tenure for civil servants ensuring stability based on recommendations by Jha Commission 1986 (para 7.2); Central Staffing Scheme, 1996 (para 17.01, para 17.02, para 17.03, para 17.12), the 2nd Administrative Reforms Commission (10th Report, para 8.7, para 9.8, para 17.5), Hota Committee Report, 2004 (Main Recommendations No. 39);

    (iii) Issue a writ in the nature of mandamus or any other appropriate writ, order or direction requiring the Respondents to mandate that every civil servant formally record all such instructions/directions/orders/suggestions which he/she receives, not only from his/her administrative superiors but also from political authorities, legislators, commercial and business interests and other persons/quarters having interest, wielding influence or purporting to represent those in authority based on the principles recognized by Rule 3(3)(ii)(iii) of the All India Service Conduct Rules, 1968 and as implicitly recognized by the Santhanam Committee Report, 1962 (Section 6, Sub-para 33[iii].

  2. This Court, considering the importance of the matter, issued notice to various State Governments and the Union Territories so as to ascertain their views on the various issues raised in this case. Most of the States have filed detailed counter affidavits explaining their stand with regard to the reliefs prayed for in this writ petition.

  3. Shri K.K. Venugopal, learned senior Counsel appearing for the writ Petitioners, referred elaborately to the above-mentioned reports and highlighted the necessity of the creation of a Civil Service Board (for short 'CSB'), both at the Centre and State level, with a degree of independence so that it can make recommendations on all transfers and postings without sacrificing the executive freedom of the Government. Learned senior Counsel pointed out that such CSB shall function in a bare advisory capacity and its recommendations will not impose any constraint on the independence of the political authority to effect postings and transfers, including premature transfers. Learned senior Counsel also highlighted the necessity for providing a fixed tenure for civil servants ensuring stability which is highly necessary for implementing various programmes which will have social and economic impact on the society. Learned senior Counsel also highlighted the reasons for recoding of instructions, directions and orders by the civil servants so that they can function independently and the possibility of arbitrary and illegal decisions could be avoided.

  4. Mr. Paras Kuhad, learned ASG appearing for the Union of India, opposed in principle prayer for setting up of independent CSB at the Centre and the State levels, which, according to the learned ASG, would be interfering with the governmental functions. Learned ASG also submitted that any mechanism within the governmental structure could be thought of, but involvement of any person, howsoever high he may be, who is not part of the Centre or the State Government, would not be advisable, especially in the absence of any such provision in the Constitution or the laws made by Centre and the State Governments. Learned ASG also submitted that based on the 2nd Administrative Reforms Committee (ARC), a draft Bill entitled "Civil Services Performance Standards and Accountability Bill, 2010" was provided incorporating certain recommendations in the above-mentioned reports. Further, it was pointed out that the draft Cabinet Note for the introduction of the said Bill in the Parliament is under consideration of the Central Government. Further, it was also submitted that for fixing the minimum tenures of cadre post in the Indian Administrative Service was initiated in November, 2006 by the Department of Personnel and Training. Cadre controlling authorities of the Indian Police Service and Indian Foreign Service were also requested to take necessary follow-up action for fixing the minimum tenures in the cadre post for the Indian Police Service and Indian Foreign Service. During the process of consultation, it was pointed out that comments of the State Governments were sought on the proposal of fixing minimum tenure of posting of IAS Officers. 13 State Governments agreed with the proposal, while some States did not agree. The matter was further discussed in the meeting with the Chief Secretary/Principal Secretaries of the States concerned on 31.5.2007 and again on 4.7.2008 in Delhi. Notification providing for two years minimum tenure for IAS posting having been issued for 13 States/Joint Cadres. Reference was also made to study report of "Centre for Good Governance", Hyderabad and it was stated that the same is under consideration with the Central Government. With regard to the prayer for recording of instructions/directions, etc., it was pointed out that the requirements are provided under the All India Service Conduct Rules.

  5. Learned Counsel appearing for the State Governments and the Union Territories have also placed their stand on various reliefs sought for in this writ petition. Learned Standing Counsel appearing for the State of Uttar Pradesh submitted that the State has already established Civil Service Boards in terms of the Government orders dated 24.12.2001 and 19.5.2007, which is meant to operate with respect to IAS and Provisional Civil Services, Indian Police Services and Provisional Police Services and for Indian Forest Services and their feeder services. Over and above, the State has also formulated transfer policy dated 15.5.2008. Learned Counsel appearing for the State of Maharashtra also made reference to the Maharashtra Government Servants Regulations of Transfers and Prevention of Delay in Discharge of Official Duties Act, 2005 and submitted that the Act provided for transfer of Government servants and prevention of delay in discharge of official duties.

  6. Reliefs prayed for in this writ petition are based on the Hotta Committee Report, 2004, 2nd Administrative Reforms Commission (10th Report), 2008. 2nd Administrative Service Commission (15th Report), the Report of the Committee on Prevention of Corruption, Santhanam Committee Report, etc. We have gone through those reports in detail.

    1. CIVIL SERVICE BOARD (CSB):

  7. The Government of India on 3rd February, 2004, appointed the Hota Committee to examine the whole gamut of Civil Service reforms and the terms of reference of the Committee were as follows:

    (i) Making the Civil Service

    • responsive and citizen-friendly;

    • transparent;

    • accountable; and

    • ethical

    in its (a) actions and (b) interface with the people,

    (ii) Making the civil service e-governance friendly.

    (iii) Putting a premium on intellectual growth of civil servants and on upgrading their domain knowledge,

    (iv) Protecting the civil service against wrongful pressure exerted by

    (a) administrative superiors;

    (b) political executive;

    (c) business interests; and

    (d) other vested interests.

    (v) Changes, if any necessary, in the various All India Services Rules and Central Civil Rules to provide a statutory cover to the proposed civil service reforms.

    (vi) Changes in rules governing the disciplinary proceedings against civil servants to decentralize the process as far as practicable, and to make the disposal of such proceedings time-bound.

    (vii) Any other matter that the Committee may consider relevant to the subject of civil service reforms.

  8. On establishment of Indian Civil Services Board, the Hota Committee made the following recommendations:

    5.09 We found that some States complied with the recommendations of the Conference of Chief Ministers and set up Civil Services Boards/Establishment Boards with Chief Secretary of the State as the Chairman and other senior officials of the State as Members. But the Boards set up by executive order in different States have failed to inspire confidence as more often than not, they have merely formalized the wishes of their Chief Ministers in matters of transfer of officials. We are firmly of the view that a Civil Services Act has to be enacted to make the Civil Services Board/Establishment Board both in the States and in the Government of India statutory in character. In the proposed set up in the Government of India, the Appointments Committee of the Cabinet will be the final authority for transfer of officers under the Central Staffing Scheme. The same principle of fixed tenure should apply to senior officers, who are not under the Central Staffing Scheme, but are working under the Government of India for which the Departmental Minister in charge is the final authority for transfer. The Chief Minister will be the final authority for transfer of all Group 'A' officers of State Service and AIS officers serving in connection with affairs of the State. If a Chief Minister does not agree with the recommendations...

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