# 1"l S.C.R. 991 T.S.R. SUBRAMANIAN & ORS v. UNION OF INDIA & ORS

- **Citation:** [2013] 11 S.C.R. 991
- **Court:** Supreme Court of India
- **Decided:** 2013-10-31
- **Bench:** K.S. Radhakrishnan, Pinaki Chandra Ghose
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/1-l-s-c-r-991-t-s-r-subramanian-ors-v-union-of-india-ors-28710
- **Pages:** 38

## Headnote

A
B
Civil Service - Preservation of integrity, fearlessness and
independence of civil servants - Need of reforms for - Writ
C
petition seeking writ of mandamus requiring Union, State and
Union Territories to create independent Civil Services Board,
to provide fixed tenure for posting of civil servants and
requirement for every civil servant to record instructions/orders
- Held: There are various lacunae in the present system in
D
which the civil servants function, which calls for serious
attention - Directions issued to constitute Civil Services Board
(CSB) with high ranking serving officers, till the Parliament
brings in proper legislation in setting up of CSB - Direction
to appropriate directions to secure minimum tenure of service
E
to the civil servants - Direction also to issue directions
requiring the civil servants to record oral orders/instructions
- Absence of recording oral instructions would defeat the
rights guaranteed under Right to Information Act and would
also give room for favouratism and corruption - Constitution
F
of India, 1950 - Chapter XIV and parts V and VI - Right to
Information Act, 2005 - ss. 3 and 4 - All India Service
(Conduct) Rules, 1968 - r. 3(3)(iii).
The present writ petitions were filed by retired civil
servants highlighting the necessity of various reforms for G
preservation of integrity, fearlessness and independence
of civil servants at the Centre and the State levels in the
country. They sought for creation of an independent Civil
991
H
992
SUPREME COURT REPORTS
[2013] 11 S.C.R.
A Services Board (CSB), fixed tenure of civil servants and
requirement for recording instructions/directions/orders/
suggestions received from administrative superiors,
political authorities, legislators, commercial and business
interests. The reliefs prayed for were based on the Hotta
B 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.
c
Disposing of the writ petitions, the Court
HELD: 1. The constitutional provisions under
Chapter XIV and Parts V and VI of the Constitution
generally deal with the power of the executive. The
D 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
E 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,
F consequently they are also accountable to the people of
this country. [Para 24) [1023-H; 1024-A-B]
2. 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
G 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
H Administrative Reforms Commission, 2008 and
T.S.R. SUBRAMANIAN & ORS. v. UNION OF INDIA & 993
ORS.
Santhanam Committee Report have high-lighted various
A
lacunae in the present system which calls for serious
attention by the political executive as well as the law
makers. [Para 26] [1024-G-H; 1025-A-B]
B
3.1 It is 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.
CSB, consisting of high ranking in service officers, who
are experts in their respective

## Text

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[2013] 1"l S.C.R. 991
T.S.R. SUBRAMANIAN & ORS.
v.
UNION OF INDIA & ORS.
{Writ Petition {Civil) No. 82 of 2011)
OCTOBER 31, 2013
[K.S. RADHAKRISHNAN AND
PINAKI CHANDRA GHOSE, JJ.]
A
B
Civil Service - Preservation of integrity, fearlessness and
independence of civil servants - Need of reforms for - Writ
C
petition seeking writ of mandamus requiring Union, State and
Union Territories to create independent Civil Services Board,
to provide fixed tenure for posting of civil servants and
requirement for every civil servant to record instructions/orders
- Held: There are various lacunae in the present system in
D
which the civil servants function, which calls for serious
attention - Directions issued to constitute Civil Services Board
(CSB) with high ranking serving officers, till the Parliament
brings in proper legislation in setting up of CSB - Direction
to appropriate directions to secure minimum tenure of service
E
to the civil servants - Direction also to issue directions
requiring the civil servants to record oral orders/instructions
- Absence of recording oral instructions would defeat the
rights guaranteed under Right to Information Act and would
also give room for favouratism and corruption - Constitution
F
of India, 1950 - Chapter XIV and parts V and VI - Right to
Information Act, 2005 - ss. 3 and 4 - All India Service
(Conduct) Rules, 1968 - r. 3(3)(iii).
The present writ petitions were filed by retired civil
servants highlighting the necessity of various reforms for G
preservation of integrity, fearlessness and independence
of civil servants at the Centre and the State levels in the
country. They sought for creation of an independent Civil
991
H
992
SUPREME COURT REPORTS
[2013] 11 S.C.R.
A Services Board (CSB), fixed tenure of civil servants and
requirement for recording instructions/directions/orders/
suggestions received from administrative superiors,
political authorities, legislators, commercial and business
interests. The reliefs prayed for were based on the Hotta
B 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.
c
Disposing of the writ petitions, the Court
HELD: 1. The constitutional provisions under
Chapter XIV and Parts V and VI of the Constitution
generally deal with the power of the executive. The
D 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
E 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,
F consequently they are also accountable to the people of
this country. [Para 24) [1023-H; 1024-A-B]
2. 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
G 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
H Administrative Reforms Commission, 2008 and
T.S.R. SUBRAMANIAN & ORS. v. UNION OF INDIA & 993
ORS.
Santhanam Committee Report have high-lighted various
A
lacunae in the present system which calls for serious
attention by the political executive as well as the law
makers. [Para 26] [1024-G-H; 1025-A-B]
B
3.1 It is 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.
CSB, consisting of high ranking in service officers, who
are experts in their respective fields, with the Cabinet C
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
D
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. [Paras 27 and 28] [1025-C, F-H; 1026-A]
E
F
Prakash Singh and Ors. vs. Union of India (2006) 8 SCC
1: 2006 (6) Suppl. SCR 473 - relied on.
3.2. Therefore, the Centre, State Governments and
G
the Union Territories are directed 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
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[2013] 11 S.C.R.
A brings in a proper legislation in setting up CSB. [Para 29)
[1026-B]
4.1. The civil servants are not having stability of tenure,
particularly in the State Governments where transfers and
8 postings are made frequently, at the whims and fancies
of the executive head for political and other considerations
and not in public interest. Fixed minimum tenure would
not only enable the civil servants to achieve their
professional targets, but also help them to function as
C 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
D the society. [Para 30) [1-026-C-F]
4.2. Therefore, the Union, State Governments and
Union Territories are directed to issue appropriate
directions to secure providing of minimum tenure of
E service to various civil servants, within a period of three
months. [Para 31) [1026-F-G]
5.1. The recommendations of the Hota Committee,
2004 and Santhanam Committee Report have highlighted
the necessity of recording instructions and directions by
F public servants. 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
G 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
H has to be taken on the basis of oral directions, it is
T.S.R. SUBRAMANIAN & ORS. v. UNION OF INDIA & 995
ORS.
mandatory for the officer superior to confirm the same in
A
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.
[Para 32) [1026-G-H; 1027-A-C]
B
5.2. 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 C
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
D
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
E
fixing responsibility and ensure accountability in the
functioning of civil servants and to uphold institutional
integrity. [Para 33) [1027-D-F]
5.3. Democracy requires an informed citizenry and
transparency of information. Right to Information Act,
2005 recognizes the right of the citizen to secure access
F
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 G
confers right to information to all citizens and a
corresponding 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
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A 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
B Act and would give room for favoritism and corruption.
[Para 34) [1027-G-H; 1028-A-C]
5.4. Therefore, all the State Governments and Union
Territories are directed to issue directions like Rule 3(3)
of the All India Services (Conduct) Rules, 1968, in their
C respective States and Union Territories which will be
carried out within three months from the date of the
judgment. [Para 35] [1028-C-D]
Case Law Reference:
D .
2006 (6) Suppl. SCR 473 relied on
Para 27
CIVIL ORIGINAL JURISDICTION : Under Article 32 of the
Constitution of India.
E
Writ Petition (Civil) No. 82 of 2011.
WITH
W.P.(C) No. 234 of 2011.
F
K.K. Venugopal, Menka Guruswamy, Ankur Talwar,
Raeesa Vakil, Ashwati Balraj, Manu Chaturvedi, Nikhil Nayyar,
Dr. Ashok Dhamija, Sonia Dhamija (for Dr. Kailash Chand) for
the Petitioners.
A. Mariarputham, Paras Kuhad, J.S. Attri, S.K. Dubey,
G Manjit Singh, Jasbir Singh Malik (for Milind Kumar) Ajay Kapur,
Sapam Biswajit Meitei, Kh. Nobin Singh, Bina Madhavan, Amit
Kumar Singh (for K. Enatoli Serna), Parth Tiwari, (for Pragati
Neekhra), R. Rakesh Sharma (for B. Balaji), Ashok Panigarhi,
Surajit Bhaduri, Santosh Kumar, Asha G. Nair, Sadhana
H Sandhu, Shailendra Saini, M. Khairati, Priyanka Bharihoke (for
T.S.R. SUBRAMANIAN & ORS. v. UNION OF INDIA & 997
ORS.
D.S. Mehra), Nandini Gupta, (for Hemantika Wahi), Anil Kr.
A
Jha, Priyanka Tyagi, Ravi P. Mehrotra, Vibhu Tiwari, Abhinav
Malik, Ranjan Mukherjee, Subhro Sanyal, Aruna Mathur, Yusuf,
Vishi, G.N. Reddy, B. Debojit, Bala Shivudu M., Chandan
Kumar (for Gopal Singh), Nanvit Kumar (for Corporate Law
Group), Pragyan Sharma, Heshu Kayina, V.G. Pragasam, M.R.
B
Shamshad, Dinesh Kumar, Jagjit Singh Chhabra, Aniruddha P.
Mayee, Charudatta Mahindrakar, Mishra Saurabh, A.
Subhashini, Anil Katiyar, C.K. Sucharita, Naresh K. Sharma,
Tara Chandra Sharma, K.V. Mohan, B.S. Banthia, V.N.
Raghupathy, P.V. Yogeswaran, K.V. Jagdishvaran, G. Indira, c
Dharmendra Kumar Sinha, T. Harish Kumar, Balaji Srinivasan
for the Respondents.
The Judgment of the Court was delivered by
K.S. RADHAKRISHNAN, J. 1. Article 32 of the
D
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
E
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)
F
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
G
·Reforms Commission 2008 (10th Report, para
9.8); the statement adopted at the Conference of
· Chief Ministers on Effective and Responsive
Administration, 1997;
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(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].
F
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
G prayed for in this writ petition.
3. Shri K.K. Venugopal, learned senior counsel appearing
for the writ petitioners, referred elaborately to the abovementioned reports and highlighted the necessity of the creation
of a Civil Service Board (for short 'CSB'), both at the Centre
H and State level, with a degree of independence so that it can
T.S.R. SUBRAMANIAN & ORS. v. UNION OF INDIA & 999
ORS. [K.S. RADHAKRISHNAN, J.]
make recommendations on all transfers and postings without
A
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
B
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 c
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
D
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
E
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
F
based on the 2nd Administrative Reforms Committee {ARC),
a draft Bill entitled "Civil Services Performance Standards and
Accountability Bill, 201 O" was provided incorporating certain
recommendations in the above-mentioned reports. Further, it
was pointed out that the draft Cabinet Note for the introduction
G
·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
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A 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
B 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
--- -c againon 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
D 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
E 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,
F 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
G 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
H official duties.
T.S.R. SUBRAMANIAN & ORS. v. UNION OF INDIA & 1001
ORS. [K.S. RADHAKRISHNAN, J.]
6. Reliefs prayed for in this writ petition are based on the
A
Hatta Committee Report, 2004, 2nd Administrative Reforms
Commission (1 oth 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.
B
A. CIVIL SERVICE BOARD CCSB):
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
C
Committee were as follows :-
"(i)
Making the Civil Service
• responsive and citizen-friendly;
D
• transparent;
• accountable; and
•ethical
E
in its (a) actions and (b) interface with the people,
(ii)
Making the civil service a-governance friendly.
(iii)
Putting a premium on intellectual growth of civil
F
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.
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(v)
Changes, if any necessary, in the various AH India
Services Rules an'd 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
C
relevant to the subject of civil service reforms."
D
E
F
G
H
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 I 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
T.S.R. SUBRAMANIAN & ORS. v. UNION OF INDIA & 1003
ORS. [K.S. RADHAKRISHNAN, J.]
of the State. If a Chief Minister does not agree with the
A
recommendations of the Civil Services Board/
Establishment Board, he will have to record his reasons
in writing. An officer transferred before his normal tenure
even under orders of the Chief Minister can agitate the
matter before a three-member Ombudsman. The
Chairperson of the Ombudsman will be a retired official
of proven honesty and integrity. The other two members
can be on part-time basis from among serving officers. In
B
all such premature transfers the Ombudsman shall send a
report to the Governor of the State, who shall cause it to c
be laid in an Annual Report before the State Legislature.
The Ombudsman may also pay damages to the officer so
transferred to compensate him for dislocation and mental
agony caused due to such transfer. We are conscious that
we are recommending a statutory barrier to frequent
0
transfer of senior officials but the matter has come to such
a pass that it requires a statutory remedy. We also clarify
that the Chief Minister as the highest political executive has
the final powers to order transfer of an officer before his
tenure is over.
5.10 We are also of the opinion that postings of all Group
'B' officers must be done by the Head of the Department
E
in a State and the same tenure rule shall be given a
statutory backing. We were advised by some witnesses
that only the Chief Minister's orders for transfer should be
F
taken in case of Group 'A' officers I officers of All India
Services and no Minister of a State should have any
powers to order a transfer or approve a proposal for
.transfer of any official either of any State Service or of the
All India Service. We agree with the view, as in our opinion
G
owing to reasons of political expediency or even due to
unwholesome reasons, Ministers in States often are not
able to make proper use of the power vested in them for
transfer of their departmental officers. If a Minister has
cogent reasons to ask for transfer of an official before he
H
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B
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[2013) 11 S.C.R.
completes his tenure, he will move the Civil Services Board
to be set up under the new Civil Services Act and the Civil
Services Board, with its views on report of inquiry by a
designated officer, shall submit the case to the Chief
Minister for final orders. Thus in a State Government, a
Minister's proposal for transfer of any officer of Group 'A'/
Group 'B' will be formally decided by the Chief Minister of
the State.
5.11 In our opinion, Civil Services Boards must be set up
in all States on similar lines as at the Centre. The Central
Act should have a provision to enable the States to adopt
the law and make it applicable in the States, without going
through the long process of drafting a new law and getting
it passed in the Legislature. The Civil Services Board in
a State - chaired by the Chief Secretary and comprising
senior officers - shall perform the functions relating to
transfer, empanelment, promotion, and deputation of
officers performed by the Establishment Board of
Government of India/Special Committee of Secretaries of
Government of India, both of which are chaired by the
Cabinet Secretary. Under Article 309 of the Constitution,
Parliament may also enact a Civil Services Act setting up
a Civil Services Board for the Union Government which will
perform the functions being performed at present by the
Establishment Board presided over by the Cabinet
Secretary. The Civil Services Act may also provide for a
Special Committee of Secretaries to prepare panel of
names for appointment for posts of Additional Secretaries
and Secretaries to Government of India. Under the new
Civil Services Act, a Cabinet Minister/Minister of State with
independent charge in Government of India may be given
a time limit to accept/send back proposals for the
Establishment Board regarding posting of officers with his
observations. In any particular case, if the Establishment
Board after giving the views of the Minister in charge its
utmost consideration does not change its original
T.S.R. SUBRAMANIAN & ORS. v. UNION OF INDIA&1005
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recommendation, the Cabinet Secretary may send
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proposals of the Establishment Board with observations
of the Minister in charge through the Home. Minister, a
Member of the ACC to the Prime Minister, who heads the
ACG for a final decision ..
8
5~ 12 lnter·alia, a Civil Services Board of a State shall also
perform functions of recommending officers of; All India
Service/Group 'A 1 service of the State for transfer to
different posts under the State Government. It would be
expedient b~fore an officer is sought to be transferred in
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the public interest when he has not completed his tenure,
thatan administrative inquiry of a summary nature is held
to ascertain if the transfer is justified as a matter of public
· policy. The administrative inquiry will be conducted as
expeditiously as possible by a designated officer
nominated by the Civil Services Board, In appropriate
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cases, the Civil Services Board may also direct the officer
to proceed on leave on full pay and allowances till the
administrative inquiry is over and a decision is taken
regarding his transfer. The designated officer to conduct
the inquiry will be ordinarily the Reporting Officer of the
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officer sought to be transferred. The Civil Services Board
on receipt of the report of inquiry of the designated officer
shall advise the Chief Minister regarding justification for
transfer of the officer in the public interest before his normal
tenure is over. Ordinarily the Chief Minister is expected to
F
agree with the recommendations of the Civil Services
Board as transfer of an official is a routine administrative
matter on which a Civil Services Board must have a
decisive role. But if the Chief Minister does not agree with
the Civil Services Board and orders transfer of an official
G
before his tenure is over, he may have to record in writing
reasons for such transfer. If the official is transferred before
his tenure without adequate justification, he will have the
right to approach a three member Civil Service
Ombudsman set up for the purpose.
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Recommendation 38: In the proposed Civil Service law,
the highest political executive shall continue to be the final
authority to order transfer of any officer before his tenure
is over; but he will be expected to give due consideration
to Report of the Administrative Inquiry/views of the Civil
Service Board/Establishment Board and record reasons
on the need for premature transfer of an officer. It is
reiterated that the political executive shall have the final
authority to transfer an officer at any stage in the public
interest. An officer aggrieved by order of premature
transfer can agitate the matter before .a three-Member
Ombudsman, who may, where suitable, award monetary
compensation to the aggrieved officer. The constitution of
the Ombudsman will be the same as the Ombudsman
proposed for the Disputes Redressal Council as at para
6.19 of this Report. The President/Governor shall receive
reports from the Ombudsman and shall lay an Annual
Report on such transfers on the table of the Legislature.
There should be a suitable provision in the law to enable
States to adopt it and make it applicable in the States
without going through the long process of drafting a law
and get it passed in the Legislature. {para 5.03 to 5.1 O)"
9. The 2nd Administrative Reforms Commission was set
up by the President reflecting ttie Resolution dated 31st August,
2005 passed by the Government of India. The Commission was
F
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 sul:>mitted its report in the year 2008. On the
G question of the setting up of the independent CSB, the
Committee has made the following recommendations :
H
"9. 7 .1 The Commission suggests that an independent
'Authority' should deal with matters of assignment of
domains, preparing panels for posting of officers at the
T.S.R. SUBRAMANIAN & ORS. v. UNION OF INDIA & 1007
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level of SAG and above, fixing tenures for various posts,
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deciding on posts which could be advertised for lateral
entry etc. As this Authority would be performing the abovementioned crucial tasks, it would be necessary to ensure
its independence by giving it a statutory backing and
stipulating that it should be headed by an eminent person
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with experience of public affairs to be appointed by the
Prime Minister in consultation with the Leader of the
Opposition in the Lok Sabha. The Authority should have a
full time Member-Secretary of the rank of Secretary to
Government of India, and persons of eminence in public c
life and professionals with acknowledged contributions to
society as Members of the Authority. This Authority, to be
named as the Central Civil Services Authority, should be
constituted under the proposed Civil Services Act. As the
constitution of the Central Civil Services Authority under a
0
new law may take some time, the said Authority may be
constituted, initially, under executive orders."
10. Para 9.8.e also refers to the composition of the
Committee which reads as follows :-
E
"9.8.e. A Central Civil Services Authority should be
constituted under the proposed Civil Services Bill. The
Central Civil Services Authority shall be a five-member
body consisting of the Chairperson and four members
(including the member-secretary). The Authority should
F
have a full time Member-Secretary of the rank of Secretary
to Government of India. The Chairperson and members of
the Authority s.hould be persons of eminence in public life
and professionals with acknowledged contributions to
society. The Chairperson and members of the Authority
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shall be appointed by the President on the
recommendations of a "Committee consisting of the Prime
Minister and the Leader of the Opposition in the Lok
Sabha.
(Explanation:- Where the Leader of the Opposition in the
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Lok Sabha has not been recognized as such, the Leader
of the single largest group in the Opposition in the Lok
Sabha shall be deemed to be the Leader of the
Opposition)."
8
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 coverall personnel holding civil
posts under the Union. The Commission recommended for the
C constitution of a Central Civil Service Authority, among other
things, which reads as follows:
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"VIII. Constitution of the Central Civil Services
Authority:
i.
The Central Government shall, by notification in the
Official Gazette, constitute a body to be known as
the Central Civil Services Authority to exercise the
powers conferred on, and to perform the functions
assigned to it, under this Act.
ii.
The Central Civil Services Authority shall be a fivemember body consisting of the Chairperson and
four members (including the member-secretary).
The Authority should have a full time MemberSecretary of the rank of Secretary to Government
of India. The Chairperson and members of the
Authority should be persons of eminence in public
life and professionals with acknowledged
contributions to society. The Chairperson and
members of the Authority shall be appointed by the
President on the recommendations of a
Committee consisting of the Prime Minister and the
Leader of the Opposition in the Lok Sabha.
(Explanation:- Where the Leader of the Opposition in the
T.S.R. SUBRAMANIAN & ORS. v. UNION OF INDIA & 1009
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Lok Sabha has not been recognized as such, the Leader A
·. of the .single largest group in the. opposition in the Lok
Sabha shall be deemed to be the Leader of the.
Opposition).
2.4;2:5 Subsequently., in its Report on "Refurbishing of B
Personnel Administration" (the Tenth Report), the
Commission suggested a detailed procedure for
placement of officers at the
middle and top management levels in the Union
Government. It calls for the constitution of a Central Civil C
Service Authority by law, which will be an independent five
member body consisting of persons of eminence in public
life and professionals with acknowledged contributions to
Society. This Authority will be empowered to deal with a
large number of issues concerning civil services such as D
assignment of domain to officers, preparing panels for
posting at the levels of Joi.nt Secretary and above, fixing
tenures for senior assignments and such other matters that
· may be referred to it by the Union Government. The
Commission is of the view that there should be a similar E
Civil Services law and a State Civil Services Authority for
each State. The mandate and functions of the State Body
would largely coincide with those prescribed under the
proposed Union Civil Services Law. This Authority should
deal with issues of appointment and tenure of higher
F
officials of all ranks in the State Governments including the
Chief Secretary, Principal Secretaries, Engineer-in-Chiefs
and the Principal Chief Conservator of Forests. However,
till the time the proposed law is enacted and the State Civil
Service Authority is constituted, recommendations made G
at para 2.14.2.5 above may be immediately adopted by
all the State Governments.
2.4.2.6 Recommendations:
(a)
After enactment of the State Civil Services Law on
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the lines of the proposed Union enactment, the
proposed State Civil Service Authority should deal
with matters concerning appointment and tenure of
senior officers of all ranks in the State Governments
(including the Chief Secretary, Principal
Secretaries, Engineer-in-Chiefs, other Agency
Heads and Principal Chief Conservator of Forests).
(b)
Till the time that such an Authority is constituted, the
following mechanism may be adopted for
appointment of the Chief Secretary and Principal
Conservator of Forests in the States:-
•
•
•
There should be a collegiums to recommend
a panel of names to the Chief Minister/
Cabinet for these two posts. For the post of
Chief Secretary, this collegium may consist
of (a) a Minister nominated by the ·Chief
Minister, (b) the Leader of the Opposition in
the State Legislative Assembly and (c) the
incumbent Chief Secretary. For the selection
to the post of Principal Chief Conservator of
Forests the collegiums may consist of (a)
The Minister In-charge of Forests, (b) the
leader of Opposition in the State Legislative
Assembly and (c) the Chief Secretary.
There should be a fixed tenure of atleast two
years for both these posts.
The selection for the post of Chief Secretary
and Principal Chief Conservator of Forests
should be widened to include all officers
above a specified seniority (e.g. 30 years).
All officers with a eniority higher than a
prescribed limit should be eligible to be a part
of the panel.
T.S.R. SUBRAMANIAN & ORS. v. UNION OF INDIA &1011
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(c)
As regards the appointment and tenure of the
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Director General of Police, the recommendations
made by the Commission in its Report on "Public
Order" at para 5.2.3.7 should be implemented."
12. VVe have elaborately referred to the Report of the Hota
B
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 ensure stability and efficiency of administration.
The Central Staffing Scheme, 1996, highlighted the necessity
c
of a fixed tenure to provide certain degree of stability to the o
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 hereinbelow for easy reference :
"17 .01 The fixed tenure of deputation of posting under the
Central Government is the heart of the Central Staffing
Scheme. Rotation between the Centre and the States,
Central Ministries and parent cadres, and headquarters
and the field, provide a certain degree of pragmatism to
policy formulation and programme implementation from
the Central Ministries .. Based on the experience gained so
far, the periods of tenure at the different levels have been
prescribed as under:-
Under Secretary 3 years
ii
Deputy Secretary 4 years
iii.
Director 5 years
iv.
Joint Secretary 5 years
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· 17 .02· An officer holding the post of Joint Secretary or .
equivalent, when appointed to a post under the
Government of India at the level of Additional Secretary,
would have a tenure of 3 years from the date of
appointment as Additional Secretary subject to a minimum
of 5 years and maximum of 7 years of combined tenure
as Joint Secretary.
Additional Secretary. Where an officer remains on leave
(either from the Centre or from his Cadre authority or both)
on the expiry of his tenure as Joint Secretary till his
appointment as Additional Secretary, the leave period shall
be counted as tenure deputation.