Shield for bureaucrats: SC fixes tenure, bans oral orders from politicians

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NEW DELHI: The Supreme Court on Thursday gave honest bureaucrats a Diwali gift they will treasure. The court ruled that officials must enjoy security of fixed tenures and also record any oral orders issued by political bosses on file so that culpability for executive action is clearly established.

The court said written directions are of utmost importance if oral orders are subjected to the rigorous test of the Right to Information (RTI) Act as verbal directions defeat the object of the transparency law and give rise to favouritism and corruption.

While making file notings of oral orders would deter ministers and other political bosses from issuing illegal or flawed decisions, the ruling on a 'minimum assured tenure' in postings can go a long way in removing the Damocles' sword of transfers that hangs over bureaucrats, making them vulnerable to pulls and pressures.

These two important directions -- banning oral instructions and setting out fixed tenure - must be implemented by all governments, central and states, within three months, ordered a bench of Justices K S Radhakrishan and Pinaki Chandra Ghosh.

These recommendations were also contained in the prescriptions of several government appointed committees and successive Administrative Reforms Committee but were consistently ignored by the governments. Frustrated by government inaction, former cabinet secretary T S R Subramanian and other eminent persons had moved the Supreme Court by means of public interest litigation (PIL).

The bench understood the pent up frustration among bureaucrats for having to constantly watch the mood of political and administrative superiors, who in India are wont to give oral instructions and share no responsibility for the action taken on the basis of these instructions. "In the present political scenario, the role of the civil servants has become very complex and onerous," it said.

The bench said: "Civil servants cannot function on the basis of verbal or oral instructions, orders, suggestions, proposals etc. and they must be protected against wrongful and arbitrary pressure exerted by administrative superiors, political executive, business and other vested interests."

If the instructions did not come in writing from superiors, the concerned bureaucrat who acts on such orders must put it down in writing on the files to show that the decision was not his. This would save him from the risk of getting hounded later for it, the bench said.

"Recording of instructions, directions is, therefore, necessary for fixing responsibility and ensure accountability in the functioning of civil servants and to uphold institutional integrity," said Justice Radhakrishnan, who authored the 47-page judgment and accepted most of the suggestions put forth by petitioners through advocate Menaka Guruswamy.

The court was alive to exigencies where bureaucrats might have to take oral instructions from superiors, like in controlling law and order situations or meeting challenges posed by grave natural calamities.

It said: "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."

The court also saw merit in recording oral instructions from the angle of the Right to Information Act. "By acting on oral directions, not recording the same, the right guaranteed to the citizens under the RTI Act, could be defeated. The practice of giving oral directions/instructions by administrative superiors, political executives etc would defeat the object and purpose of RTI Act and would give room for favouritism and corruption," it said.

The court, however, said it could not issue a positive direction to the Centre and the states to constitute an independent Civil Services Board (CSB) comprising persons from outside the government.

"CSB, consisting of high ranking in-service officers who are experts in their respective fields, the Cabinet Secretary at the Centre and the Chief Secretary at the State level, could be a better alternative (till Parliament enacts a law), to guide and advise the state government on all service matters, especially on transfers, postings and disciplinary action etc," it said.

The bench said the political executive could overrule the CSB's views and suggestions but only after recording reasons in writing, which it said would ensure good governance, transparency and accountability in governmental functions.

"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 Parliament brings in a proper legislation in setting up CSB," it said.

http://timesofindia.indiatimes.com/indi ... 014621.cms