WITH
WRIT PETITION (CIVIL) NO.234 OF 2011
JUDGMENT
K.S. Radhakrishnan, J.
1. Article 32 of the 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 recommendations made by several Committees appointed for improving the public administration. On the basis of various reports and 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 :-
(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]. 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 prayed for in this writ petition.
3. Shri K.K. Venugopal, learned senior counsel appearing for the writ petitioners, referred elaborately to the above-mentioned reports and highlighted the necessity of the creation of a Civil Service Board (for short 'CSB'), both at the Centre and State level, with a degree of independence so that it can make recommendations on all transfers and postings without 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 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 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 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 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 based