Author: Sparsh Bhondekar.
AIR 2014 SC 263.
NAMES OF PARTIES
Petitioners: T.S.R. Subramanian and others.
Respondents: Union of India and others.
Justice K. S. Radhakrishnan; and
Justice Pinaki Chandra Ghose.
A Public Interest Litigation (PIL) was filed by 83 retired bureaucrats, including former Cabinet Secretary T.S.R. Subramanian, to the Apex Court for shielding the bureaucracy from the political influence.
In the case of T.S.R. Subramanian & Ors. v. Union of India & Ors., the landmark decision was made by the Honorable Supreme Court of India, that issued directions to unshackle the civil servants from the political control and consequences of it. It ordered the government to make a proper statute on this subject.
The move by the Supreme Court is with the intention of improving the quality of the governance at both Union and State level.
T.S.R. Subramanian and 82 other retired civil servants invoked the Article 32 of The Constitution of India and made a writ petition for the need of certain reforms, as directions by Honorable Supreme Court, for safeguarding the integrity, fearlessness and independence of the civil servants from the political intrusion, at both the Centre and the State level in the country.
The petition’s prayers are backed up by a number of reports and suggestions from committees established to improve public administration.
The relief sought in the writ petition are:
- Creation of Independent Civil Service Board.
- Fix tenure for civil servants.
- Mandating civil servants to record all formal communication received, not only from the seniors but also from the other parties, such as political authorities, enterprises, legislators and others having interest.
- How can the issue of the influence of authorities higher to civil servant, politicians and businesses on the civil servant for the selfish motive be dealt? How can frequent transfer of the civil servants be avoided and their minimum tenure be assured?
- How the oral/verbal and informal orders given by the higher authority to the civil servant to be handled, in order to protect the integrity of the position of civil servant and also fulfilling the objective of The Right to Information Act (2005)?
While considering the public interest writ petition, the Supreme Court accepted the suggestions provided by numerous reports that the petitioners sought and issued a number of directives to the respondents.
As per Article 309 of the Constitution, the Bench asked the Parliament to create a Civil Services Act that would establish a CSB (Civil Service Body) and provide direction and advice to the political administration about transfers and postings, disciplinary actions, etc.
The Bench directed the Centre, States, and Union Territories to provide the necessary directives to ensure that all civil servants receive the minimum duration of employment within three months.
The Bench issued directives to the Centre, State governments, and Union Territories to establish such Boards within three months, if not already established, until the Parliament brings proper Legislation to establish CSB, performance comparable to Rule 3(3)(iii) of the All India Services (Conduct) Rules, 1968.
The Supreme Court also ruled that civil servants must only abide by written orders/instructions from superiors.
On the ground level, in many instances it was found that the civil servants are not free from political influence and have been involved. by will or coercion, in the malpractices, by following the informal orders of the seniors or of any influential person. When such orders or demands are not fulfilled by a civil servant, due to any reasons such as, being against their ethics or any other reason, then such civil servants may get an early transfer from their tenure and the civil servant that may ease by adhering to the influential party’s demand can be brought to that position.
Senior Haryana-cadre IAS officer Ashok Khemka was transferred 47th time in nearly 25 years of service as of 2016.1 IAS officer Pradeep Kasni transferred for 68th time in 33 years as of 2017 with 13 transfers in just two and a half year.2
It was stated that frequent transfers of officers go against good governance and that they should have a set tenure to help them become competent and successful at carrying out public policies. Recurrent officer turnover or transfers are detrimental to effective administration. Minimum assured service tenure ensures efficient service delivery and also increased efficiency. It also gives priority to a range of social and economic projects that aim to benefit the underprivileged and disadvantaged groups in society.3
The Bench noted that there is now a lack of tenure security for civil servants, notably in State governments where frequent transfers and postings are done for selfish reasons and unethical motives other than those in the public interest.
Therefore, the Bench was right to direct the Union, State Governments, and Union Territories to provide the necessary instructions to ensure that all civil servants get the minimal tenure of service within a three-month period.
Before this case, with a set term of three years, the centre and state governments each have their own regulations that govern officer transfers and postings. The majority of these rules have a clause that permits “administrative grounds” to be used to avoid the need of a fixed tenure. Therefore, misuse of this clause should be fixed with the new directions given in the case that the Union, State Governments, and Union Territories have to follow.
The establishment of a civil service body to make appointments to top government positions was recommended by the Second Administrative Reforms Commission in 2008.
The Bench directed that board should be established within three months to decide on transfers, postings, and disciplinary actions for civil servants until Parliament introduces suitable legislation to establish the Civil Services Board.4
The court decided that CSBs would serve as the final authority, insulating the bureaucrats from political influence. Importantly, the government must provide the same justifications when choosing to dissent from the CSB’s recommendation. According to the directive, the CSB is made up of high-ranking service members who are professionals in their domains, with the cabinet secretary at the national level and the chief secretary at the state level, who serve as the state government’s guide and advisor.
The CSB is expected to play the better role than the previous system in which the political side had the authority in this matter, even now they shall be having authority, but for their actions, for example – transfer, they have to state the reasons. Also, having the people from the same domain in the CSB authority makes it better, as they would understand and handle the set-up well as compared to previous set-up.
The Hota Committee’s (2004) recommendations and the Santhanam Committee report were referenced by the bench of justices K.S. Radhakrishnan and Pinaki Chandra Ghose, who emphasised the importance of documenting instructions and orders by civil servants.
In an effort to promote transparency, the Supreme Court of India stated that civil servants must be shielded from improper and arbitrary pressure from their administrative superiors, the political executive, business, and other vested interests. Civil servants cannot work properly on the basis of verbal or oral instructions, orders, suggestions, proposals, etc. If the decision was not made by the public servant, there must be documents to show how he performed; but, if he is acting in accordance with oral instructions, he should document those instructions in the record.
The Supreme court held that civil servants cannot follow verbal or oral instructions from their higher authority and political executive because doing so encourages favouritism and corruption and violates the rights that citizens are guaranteed by the Right to Information Act (2005). Oral and verbal instructions, if not recorded, could not be provided and hence it would defeat the purpose of RTI Act. It mandates the preservation of records of all oral instructions given to civil servants.5
The right direction is given by the Supreme Court for having the formal record for every order/instruction received by the civil servant. This shall help in protecting the integrity of the position of civil servant and in case of bad consequence, such as conviction, for the action verbally/orally instructed by the higher authority, the civil servant would have the defence that they were merely following the told instructions and couldn’t be held liable. Having a record of everything would help in making the situation clear and serving justice, also the order with absurdity and bad intentions could also be caught in this.6
The Supreme Court provided the right directions to the centre, state government and union territories.
In order to manage postings, transfers, and disciplinary proceedings, the court ordered that officials have a minimum fixed tenure, that they not have to follow verbal commands from politicians, and that civil service boards be established at the national and state levels within three months. It also asked that a complete legislative act be passed by the government. These changes would increase accountability and transparency in how civil servants operate, who frequently have to make choices with broad repercussions.
Their decisions must be transparent and must be in the public interest. They should be fully accountable to the community they serve. Of course, civil servants must be accountable to their political executive, but they also must carry out their duties in accordance with the Constitution, as they are also responsible to the citizens of this nation.
- “Haryana moves IAS officer Khemka again: 47th transfer in 25 years”. Hindustan Times. Indo-Asian News Service. ISSN 0972-0243. OCLC 231696742. Last visited: 22 October 2022.[↩]
- Sehgal, Manjeet (12 April 2017). “Chandigarh: Haryana IAS officer Pradeep Kasni transferred for 68th time in 33 years”. India Today. Chandigarh: Aroon Purie. ISSN 0254-8399. Last visited: 22 October 2022.[↩]
- Venkatesan, J. (31 October 2018). “In major reform, SC orders fixed tenure for bureaucrats”. The Hindu. New Delhi. ISSN 0971-751X. OCLC 13119119. Last visited: 22 October 2022.[↩]
- “Civil services board to oversee officers’ postings”. The Hindu. Special Correspondent. Thiruvananthapuram: N. Ram. 1 May 2014. ISSN 0971-751X. OCLC 13119119. Last visited: 22 October 2022.[↩]
- Venkatesan, J. (1 November 2013). “Oral instructions undermine accountability: Supreme Court”. The Hindu. New Delhi: N. Ram. ISSN 0971-751X. OCLC 13119119. Last visited: 22 October 2022.[↩]
- Banik, Dan (1 June 2001). “The transfer raj: Indian civil servants on the move”. The European Journal of Development Research. 13 (1): 106–134. doi:10.1080/09578810108426783. ISSN 0957-8811. OCLC 55042966. Last visited: 22 October 2022.[↩]
Leave a Reply