Would the Civil servants be spared from arbitrary transfers?
Article 32 of the Constitution of India was invoked by a 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. The petition demanded the SC to issue order to the government:
1. to create an "independent" Civil Service Board (CSB) at the Centre and the State.
2. to have fixed tenure for civil servants ensuring stability.
3. every civil servant to formally record all such instructions/ directions/ orders/ suggestions received from administrative superiors, 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) of the All India Service Conduct Rules, 1968.
(i) No member of the Service shall, in the performance of his official duties, or in the exercise of powers conferred on him, act otherwise than in his own best judgment to be true and correct except when he is acting under the direction of his official superior.
(ii) The direction of the official superior shall ordinarily be in writing. Where the issue of oral direction becomes unavoidable, the official superior shall confirm it in writing immediately thereafter.
(iii) A member of the Service who has received oral direction from his official superior shall seek confirmation of the same in writing, as early as possible and in such case, it shall be the duty of the official superior to confirm the direction in writing.
Explanation I- A member of the Service who habitually fails to perform a task assigned to him within the time set for the purpose and with the quality of performance expected of him shall be deemed to be lacking in devotion to duty within the meaning of the sub-rule (1);
Explanation II - Nothing in clause (i) of sub-rule (3) shall be construed as empowering a Government servant to evade his responsibilities by seeking instructions from or approval of, a superior officer or authority when such instructions are not necessary under the scheme of distribution of powers and responsibilities.
Relief prayed were 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.
The Apex Court issued notice to the union/ state government / union territories and found 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.
1. Creation of an independent CSB 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.
2. The said arrangement would lead to a dual line of control, creating complexities in managing administrative functions and affecting efficiency of civil servants.
3. CSB should 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.
4. Fixation of tenure should be 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.
Observations of the bench
The bench referred to the reports of the committees, the constitutional provisions, replies of the governments etc. The Apex Court noted that the principles governing the roles and responsibilities of political executive and civil servants are 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.
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.
ORDER OF THE APEX COURT
The Apex Court order addresses the three specific issues while also referring to the RTI Act, 2005.
1. The SC found it 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.
2. The SC directed the Centre, State Governments and the Union Territories to constitute CSB consisting of Cabinet Secretary at the Centre and Chief Secretary at the State level (along with high ranking serving officers, who are specialists in their respective fields), within a period of three months. Their views also could be overruled, by the political executive, but by recording reasons.
3. These CSB would function till under Article 309 of the Constitution, the Parliament enact a Civil Service Act for setting up a CSB, which can guide and advice the political executive transfer and postings, disciplinary action, etc.
2. Fixed Tenure
1. 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.
2. The bench directed the Union State Governments and Union Territories to issue appropriate directions to secure providing of minimum tenure of service to various civil servants, within a period of three months.
3. Recording the directions received verbally
1. The SC noted that the Rule 3(3)(iii) of the All India Service Rules specifies that all orders from superior officers shall ordinarily be in writing. The bench held 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. 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. Recording of instructions is necessary for fixing responsibility and ensuring accountability in the functioning of civil servants and to uphold institutional integrity.
2. The bench ordered 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.
RTI Act and Civil Servants
The bench observed that democracy requires an informed citizenry and transparency of information. RTI 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.
There is an obligation under Section 4 on every public authority to maintain the records so that the information sought for can be provided. Oral and verbal instructions, if not recorded, could not be provided. By acting on oral directions, not recording the same, the rights guaranteed to the citizens under the Right to Information Act, could be defeated. The practice of giving oral directions /instructions by the administrative superiors, political executive etc. would defeat the object and purpose of RTI Act and would give room for favoritism and corruption.
Views and Comments
1. Apprehension is being raised that the CSB comprising of serving officers may turn out to be the rubber stamp of the political masters.
2. A fixed tenure would bring out the best performance of an officer. But, a fixed tenure for a civil servant with little accountability may create another monster.
3. While recording of verbal instructions is welcome, in any system, all the directions cannot be recorded.
The political class would never like to lose the power it has been exercising. Hence, the nation would eagerly watch how, if at all, the judgment is implemented as the devil lies in the details.