# T. S. R. Subramanian & Ors. versus Union of India & Ors.

An Indian public interest writ petition filed before the Supreme Court of India and decided in October 2013, and is considered one of the landmark cases in Indian legal history.
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL ORIGINAL JURISDICTION
WRIT PETITION (CIVIL) NO.82 OF 2011
T.S.R. Subramanian & Ors.… Petitioners
Versus
Union of India & Ors.… Respondents
WITH
WRIT PETITION (CIVIL) NO.234 OF 2011
JUDGMENT
K.S. Radhakrishnan, J.
1. Article 32 of the Constitution of India has been invoked by few eminent retired civil servants highlighting the necessity of various reforms for preservation of integrity, fearlessness and independence of civil servants at the Centre and State levels in the country. Prayers made in this writ petition are based on various reports and recommendations made by several Committees appointed for improving the public administration. On the basis of 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);
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 & 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 counsels appearing for the State Governments and the Union Territories have also placed their stand on various reliefs sought for in this writ petition. Learned Standing counsel appearing for the State of Uttar Pradesh submitted that the State has already established Civil Service Boards in terms of the Government orders dated 24.12.2001 and19.5.2007, 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 (10thReport), 2008. 2nd Administrative Service Commission (15th Report), the Report of the Committee on Prevention of Corruption, Santhanam Committee Report, etc. We have gone through those reports in detail.
A. CIVIL SERVICE BOARD (CSB):
7. The Government of India on 3rd February, 2004, appointed the Hota Committee to examine the whole ​gamut of Civil Service reforms and the terms of reference of the Committee were as follows :-
9. The 2nd Administrative Reforms Commission was set up by the President reflecting the Resolution dated 31st ​August, 2005 passed by the Government of India. The Commission was set up to suggest measures to achieve a preemptive responsible, accountable, sustainable and effective administration for the country at all levels of the government. The tenure of the Committee was extended from time to time and the Committee submitted its report in the year 2008. On the question of the setting up of the independent CSB, the Committee has made the following recommendations:
10. Para 9.8.e also refers to the composition of the Committee which reads as follows :-
11. The Second Administrative Reforms Commission Fifteenth Report (April 2009) has also made various suggestions in order to provide legislative backing to these measures, the Commission has recommended ​enactment of a Civil Services Law which will cover all personnel holding civil posts under the Union. The Commission recommended for the constitution of a Central Civil Service Authority, among other things, which reads as follows:
12. We have elaborately referred to the Report of the Hota Committee, Report of the 2nd Administrative Commission, 2008-2009, which highlighted the necessity of creation of an independent CSB at the Centre as well as the State level.
B. FIXED TENURE:
13. Various Committees have also recommended and highlighted the necessity of providing fixed tenure for a civil servant so as to ensures ability and efficiency of ​administration. The Central Staffing Scheme, 1996, highlighted the necessity of a fixed tenure to provide certain degree of stability to the administration. Reference in this regard may be made to paras 17.01, 17.02, 17.03, 17.12 and 17.13 and the same are extracted herein below for easy reference:
14. The 2nd Administrative Reforms Commission (10th Report) also speaks of the same in paras 8.5.11, 8.5.12, 8.5.14, 8.7 (e)- (g), 9.8(e)-(g) and17.5(VIII) and the same are extracted herein below for easy reference :
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:-
16. The Hota Committee Report, 2004 also highlights the same as its main Recommendation No.39 which reads as follows :-
C. RECORDING OF INSTRUCTIONS AND DIRECTIONS:
17. Petitioners have highlighted the serious predicant on which the civil servants are placed when they are asked to implement governmental decisions, on oral directions, suggestions, instructions etc. Much of the deterioration of the standards of probity and accountability, according to the Petitioners, can be traced to practice of issuing and acting on verbal instructions or oral orders which are not recorded. This issue was addressed by the Santhanam Committee way back in 1962. Paragraphs 6.20 and6.21 deal with those aspects, which are given below for easy reference : ​ "6.20. We have already mentioned the existence of 'contact men' and 'touts'. Obviously these do not include genuine representatives of commercial and industrial firms. In this regard our recommendations are :-
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 :-
19. We, in this respect, point out that the response of certain States and Union Territories in the matter of creation of an independent CSB, fixed tenure of civil servants and recording of directions, are neither ​consistent nor positive. But generally, they have welcomed the suggestion for fixation of tenure subject to the rider that in certain exceptional circumstances, the State Governments should have the power to transfer a person prematurely before completion of the tenure. Few States have welcomed the suggestion that every Civil Servant should record all the instructions and directions received.
20. Union and the State Governments apprehend that creation of an independent CSB or institutional arrangement for regulating transfers and postings of officers would be an intrusion into the executive function of the Centre and State Governments headed by the political executives, who are directly responsible to the people. Further, they have also taken up a stand that the said arrangement would lead to a dual line of control, creating complexities in managing administrative functions and affecting efficiency of civil servants. With ​regard to frequent transfers of officers, they have taken up the stand that there is already a clear cut policy that except in cases of promotion, in the interest of work and administrative reasons, transfer and posting will be done only after completion of three years of tenure. Few States have issued directions, to get written directions in case of oral directions of Superior Officers inline with Rule 3(3)(ii)-(iii) of All India Services (Conduct) Rules, 1968.
21. Chapter XIV of the Constitution of India deals with services under the Union and the States. Article 309 deals with the recruitment and conditions of service of persons serving the Union or the State, which expressly made subject to the other provision of the Constitution of India, In terms of Article 309 appropriate Legislature, Parliament or the State Legislature is empowered to legislate, to regulate the recruitment and conditions of service of persons appointed to public services and post the min connection with the affairs of the Union or of any State. In terms of the proviso to Article 309, number of ​rules have been made from time to time by the Union and the State Governments and they govern and regulate the public services in India. Article 310 of the Constitution provides for all members of the civil services of the Union and All India Services to beheld in civil post at the pleasure of the President and all members of the civil services of the State at the pleasure of the Governor of the State. Article 311 provides certain safeguards regarding dismissal, removal or reduction in rank of persons employed in civil capacity. Article 312provides constitution of All India Services. Articles 318 to 333 deal with the Union Public Service Commission (UPSC) and State Public Service Commissions (PSC). Article 320 stipulates that it shall be the duty of the Union and the State PSCs to conduct the examinations for appointment to the services of the Union and services of the State, respectively.
22. UPSC or the State PSCs are to be consulted in all matters relating to the method of recruitment to civil services and on the principles to be followed in making ​appointments to civil services and posts and in making promotions and transfers from one service to another. Of late, the UPSCs and PSCs are being denuded of their powers of consultation while making promotions and transfer from one service to another. Article 323 lays down that it shall be the duty of the UPSC to present annually to the President a report of the work done by the Commission and on receipt of such report the President shall cause a copy thereof together with the memorandum, explaining as regard the cases, if any, where advice of the Commission was not accepted, the reasons for such non-acceptance, to be laid before the House of Parliament. Similar provision also exists for the State PSCs. Article 323A authorizes Parliament to set up administrative tribunals regarding disputes with regard to recruitment and conditions of service, appointed to public services. Parliament in exercise of its powers under Article 309 enacted the All India Service Act, 1951, which authorizes Union Government in consultation with the State Governments, to make rules for the regulations of ​conditions of service of persons appointed to All India Services.
23. Part V of the Constitution deals with the Union. Article 53 states that the executive power of the Union shall be vested in the President and shall be exercised by him either directly or through officers subordinate to him in accordance with this Constitution. Article 154 of Chapter VI of the Constitution states that the executive power of the State shall be vested with the Governor and shall be exercisable by him either directly or through officers subordinate to him in accordance with the Constitution. Article 73 of the Constitution states that subject to the provisions of the Constitution executive power of the Union shall extend to matters with respect to which Parliament has power to make laws and to the exercise of such rights, authority and jurisdiction, as exercisable by the Government of India by virtue of any treaty or any agreement. Article 163 of the Constitution states that there shall be a Council of Ministers, the Chief Minister as the head to aid and advice the Governor in ​exercise of his functions, except in so far as he is by or under this Constitution required to exercise his functions or any of them with his discretion.
24. The above are the constitutional provisions which generally deal with the power of the executive. The principles governing the roles and responsibilities of political executive and civil servants, are therefore, constitutionally defined and also based on the basis of various rules framed by the President and Governor for the conduct of business in the Government. Ministers are responsible to the people in a democracy because they are the elected representatives of the Parliament as well as the General State Assembly. Civil servants have to be accountable, of course to their political executive but they have to function under the Constitution, consequently they are also accountable to the people of this country.
25. Paragraph 15.1.3 of the report of the 2nd Administrative Reforms Committee (2008) reads as follows: ​ "A healthy working relationship between Ministers and civil servants is critical for good governance. While the principles governing the roles and responsibilities of Ministers and civil servants are well defined in political theory, in the actual working of this relationship this division of responsibility becomes blurred with both sides often encroaching upon the other's sphere of responsibility.In any democracy, Ministers are responsible to the people through Parliament and therefore the civil servants have to be accountable to the Minister. However, an impartial civil service is responsible not only to the government of the day but to the Constitution of the land to which they have taken an oath of loyalty. At the same time, implementing the policies of the duly elected government is a core function of civil servants. That is why the division of responsibility between the civil servants and ministers needs to be more clearly defined. A framework in which responsibility and accountability is well defined would be useful." ​26. Civil servants, as already indicated, have to function in accordance with the Constitution and the laws made by the Parliament. In the present political scenario, the role of civil servants has become very complex and onerous. Often they have to take decisions which will have far reaching consequences in the economic and technological fields. Their decisions must be transparent and must be in public interest. They should be fully accountable to the community they serve. Many of the recommendations made by the Hota Committee, various reports of the 2nd Administrative Reforms Commission, 2008 and Santhanam Committee Report have high-lighted various lacunae in the present system which calls for serious attention by the political executive as well as the law makers.
27. We find it, however, difficult to give a positive direction to constitute an independent CSB at the Centre and State Level, without executive control, which Hota Committee has recommended to be statutory in nature, that too, comprising of persons from outside ​the Government. Petitioners placed considerable reliance on the judgment of this Court in Prakash Singh and Others v. Union of India (2006) 8 SCC 1 and urged that similar directions be given to insulate, to at least some extent, the civil servants from political/executive interference. Retired persons, howsoever eminent they may be, shall not guide the transfers and postings, disciplinary action, suspension, reinstatement, etc. of civil servants, unless supported by law enacted by the Parliament or the State Legislature.
28. CSB, consisting of high ranking in service officers, who are experts in their respective fields, with the Cabinet Secretary at the Centre and Chief Secretary at the State level, could be a better alternative (till the Parliament enacts a law), to guide and advise the State Government on all service matters, especially on transfers, postings and disciplinary action, etc., though their views also could be overruled, by the political executive, but by recording reasons, which would ensure good governance, transparency and accountability in ​governmental functions. Parliament can also under Article 309 of the Constitution enact a Civil Service Act, setting up a CSB, which can guide and advice the political executive transfer and postings, disciplinary action, etc. CSB consisting of experts in various fields like administration, management, science, technology, could bring in more professionalism, expertise and efficiency in governmental functioning.
29. We, therefore, direct the Centre, State Governments and the Union Territories to constitute such Boards with high ranking serving officers, who are specialists in their respective fields, within a period of three months, if not already constituted, till the Parliament brings in a proper legislation in setting up CSB.
30. We notice, at present the civil servants are not having stability of tenure, particularly in the State Governments where transfers and postings are made frequently, at the whims and fancies of the executive head for political and other considerations and not in public interest. The necessity of minimum tenure has ​been endorsed and implemented by the Union Government. In fact, we notice, almost 13 States have accepted the necessity of a minimum tenure for civil servants. Fixed minimum tenure would not only enable the civil servants to achieve their professional targets, but also help them to function as effective instruments of public policy. Repeated shuffling/transfer of the officers is deleterious to good governance. Minimum assured service tenure ensures efficient service delivery and also increased efficiency. They can also prioritize various social and economic measures intended to implement for the poor and marginalized sections of the society.
31. We, therefore, direct the Union State Governments and Union Territories to issue appropriate directions to secure providing of minimum tenure of service to various civil servants, within a period of three months.
32. We have extensively referred to the recommendations of the Hota Committee, 2004 and Santhanam Committee Report and those reports have highlighted the necessity of recording instructions and ​directions by public servants. We notice that much of the deterioration of the standards of probity and accountability with the civil servants is due to the political influence or persons purporting to represent those who are in authority. Santhanam Committee on Prevention of Corruption, 1962 has recommended that there should be a system of keeping some sort of records in such situations. Rule 3(3)(iii) of the All India Service Rules specifically requires that all orders from superior officers shall ordinarily be in writing. Where in exceptional circumstances, action has to be taken on the basis of oral directions, it is mandatory for the officer superior to confirm the same in writing. The civil servant, in turn, who has received such information, is required to seek confirmation of the directions in writing as early as possible and it is the duty of the officer superior to confirm the direction in writing.
33. We are of the view that the civil servants cannot function on the basis of verbal or oral instructions, orders, suggestions, proposals, etc. and they must also be ​protected against wrongful and arbitrary pressure exerted by the administrative superiors, political executive, business and other vested interests. Further, civil servants shall also not have any vested interests. Resultantly, there must be some records to demonstrate how the civil servant has acted, if the decision is not his, but if he is acting on the oral directions, instructions, he should record such directions in the file. If the civil servant is acting on oral directions or dictation of anybody, he will be taking a risk, because he cannot later take up the stand, the decision was in fact not his own. Recording of instructions, directions is, therefore, necessary for fixing responsibility and ensure accountability in the functioning of civil servants and to uphold institutional integrity.
RTI Act and Civil Servants
34. Democracy requires an informed citizenry and transparency of information. Right to Information Act, 2005 (RTI Act) recognizes the right of the citizen to secure access to information under the control of public authority, in order to promote transparency and ​accountability in the working of every public authority. Section 3 of the Act confers right to information to all citizens and a corresponding obligation under Section 4on every public authority to maintain the records so that the information sought for can be provided. Oral and verbal instructions, if not recorded, could not be provided. By acting on oral directions, not recording the same, the rights guaranteed to the citizens under the Right to Information Act, could be defeated. The practice of giving oral directions/instructions by the administrative superiors, political executive etc. would defeat the object and purpose of RTI Act and would give room for favoritism and corruption.
35. We, therefore, direct all the State Governments and Union Territories to issue directions like Rule 3(3) of the All India Services (Conduct) Rules, 1968, in their respective States and Union Territories which will be carried out within three months from today.
36. The Writ Petitions are, accordingly, disposed of with the above directions.
​............................J. (K.S. Radhakrishnan)
............................J. (Pinaki Chandra Ghose)
New Delhi, October 31, 2013.
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