The Supreme Court on Thursday issued a series of path-breaking directions to insulate civil servants from political influence. The court stated that officers should have a minimum fixed tenure, they should not act on verbal orders from politicians, and civil service boards should be set up at central and state levels within three months to regulate postings, transfers and disciplinary actions. It also asked the government to pass a comprehensive law on the subject.
The directions were issued by a bench comprised of Justices K S Radhakrishnan and Pinaki Chandra Ghose on a batch of public interest petitions moved two years ago. The petitioners included several former civil servants led by ex-cabinet secretary TSR Subramanian, former chief election commissioner N Gopalaswami, former election commissioner T S Krishna Murthy, former IPS officer Ved Prakash Marwah, and former CBI directors Joginder Singh and D R Kaarthikeyan.
Accepting their suggestions, the court asked the central and state governments to set up civil service boards to deal with transfers and postings of officials. The judges observed in the judgment that frequent transfers should be avoided so that benefits of the implementation of government policies and programmes could reach the poor. They noted that fixed tenures would promote efficiency and good governance. The judgment said much of the deterioration in the functioning of the bureaucracy was due to political interference.
The petitioners had argued that political bosses gave oral instructions to civil servants, thus circumventing the Right to Information Act. That, they said, also encouraged corruption. Therefore, they had asked the court to issue directions to allow officials to act only on written directives.
Most retired and serving bureaucrats welcomed the judgment. However, they doubted whether Parliament would frame a strong legislation as directed.
"In September 2006, the Supreme Court had framed similar guidelines for the police. The government is yet to act," said Joginder Singh, former CBI director and a petitioner in the case.
The issue of "verbal orders" was first cited in the Santhanam committee report in 1964, which had asked civil servants to only act on written orders. That was reiterated by the Shah commission which found examples of oral orders being misused by civil servants during the Emergency in 1975.
Former cabinet secretary T S R Subramanian, one of the petitioners in the case, cited the example of the Radia tapes to illustrate the misuse of oral orders. "The tapes tell us how the direction of policy is discussed and finalised among stakeholders orally," he told Business Standard.
The Second Administrative Reforms Commission in 2008 suggested the government constitute a civil service authority to decide on appointments to senior government positions. The court has now asked the government to form a civil society board to oversee transfers and postings. This could have long-term implications for the transfers and postings industry, especially at the state level, where ministers have been known to take bribes to transfer and post bureaucrats to positions of choice.
Satyanand Mishra, former chief information commissioner, welcomed the judgment. He said it would do "a lot of good" to the administration, even as he cautioned against a fixed tenure. "There can be many reasons for transferring an incompetent officer. You cannot impose provisions of transfers and postings on any government, as those are its prerogative," he said. Retired bureaucrats also said fixing a tenure was not a silver bullet, as in many cases incompetent bureaucrats could get positions from which they might be impossible to dislodge.
At present, both the Centre and state governments have their own policies to regulate transfers and postings of officers, with a fixed tenure of three years. Most of these regulations provide for a clause under which the condition of a fixed tenure can be circumvented citing "administrative grounds". The government is yet to present to Parliament the Civil Services Standards, Performance and Accountability Bill, 2010. The Bill includes features such as civil service values, a civil service code of ethics and conduct, appointments, a performance management system, and the creation of a civil services authority, among others. It envisages giving parliamentary sanction to the civil services (conduct) rules under Article 309 of the Constitution, which governs the conduct of government in relation to civil servants. The Bill has been ready since 2010 but is yet to be tabled.