Chance to say ‘No, minister’ - SC tries to protect bureaucrats

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By R. BALAJI
  • Published 1.11.13
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New Delhi, Oct. 31: The Supreme Court today said civil servants should follow only written instructions from superiors, suggesting this could go some way in insulating them against “wrongful and arbitrary” pressure from senior bureaucrats and political bosses.

It issued two other directives to the central and state governments with the same objective:

All civil servants be given a minimum fixed tenure at a particular posting before they are transferred, so they can work effectively.

A civil services board, made up by senior bureaucrats, be formed at the Centre and in each state and Union territory to advise the government on matters such as postings, transfers and disciplinary action.

The bench of Justices K.S. Radhakrishnan and Pinaki Chandra Ghose gave the Centre, states and Union territories three months to implement the directives, clarifying that these would be in force only till Parliament enacted a law to deal with the issues raised.

It said these reforms would bring in more transparency and accountability in the functioning of civil servants, who often “have to take decisions that have far-reaching consequences”.

“Their decisions must be transparent and must be in the public interest. They should be fully accountable to the community they serve,” the court said.

“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.”

Written orders

The court said the government-constituted Hota Committee (2004) and Santhanam Committee (1962) on administrative reforms had highlighted the necessity of recording instructions by public servants.

“We notice that much of the deterioration of the standards of probity and accountability with civil servants is due to political influence or persons purporting to represent those who are in authority,” the bench said.

Civil servants must 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.”

The court said that if a civil servant was acting on oral directions, he should record such directions in the file. Else, “he will be taking a risk, because he cannot later take up the stand (that) the decision was in fact not his own”.

Recording of instructions is, therefore, necessary to fix responsibility and ensure accountability, the bench said.

Rule 3(3)(iii) of the All India Service Rules says superiors’ orders should ordinarily be in writing. In exceptional circumstances, it says, action can be taken on the basis of oral directions but the superior officer must later confirm the order in writing.

The court said the practice of acting on oral directions would further defeat the objective of the Right to Information Act — because information cannot be provided in the absence of written records — and would leave scope for favouritism and corruption.

Fixed tenures

The court said there were now no fixed tenures for civil servants and they were subjected to frequent transfers, “particularly in the state governments… at the whims and fancies of the executive head for political and other considerations”.

It said this should end. “The necessity of minimum tenure has been endorsed and implemented by the Union government…. Almost 13 states have accepted the necessity of a minimum tenure,” the court said.

“Repeated shuffling/transfer… is deleterious to good governance. A minimum assured service tenure ensures efficient service delivery and also increased efficiency. They can also prioritise various social and economic measures intended… for the poor.”

The directions came on a public interest litigation moved by a group of retired civil servants, seeking reforms to ensure the “integrity, fearlessness and independence of civil servants”.

Service boards

Although the petition had sought members from outside the executive to man the civil services boards, the apex court rejected the plea and agreed with the government that only in-house officials should man the boards.

Additional solicitor-general Paras Kuhad had argued that independent civil services boards would lead to interference in the government’s functioning.

The court said “high-ranking, in-service officers, who are experts in their respective fields” should make up the boards, “with the cabinet secretary at the Centre and chief secretary at the state level”.

What the Supreme Court ruled

All civil servants must have a minimum fixed tenure at each posting

Bureaucrats shall carry out only written instructions. Even if an official acts on an oral
directive, the order must be recorded in the file

A civil services board, made up by high-ranking officers, must be formed at the central and state levels to advise the government on transfers, postings, disciplinary action and other service matters