Академический Документы
Профессиональный Документы
Культура Документы
In England, the normal rule is that a civil servant of the Crown holds his office
during the pleasure of the Crown. This means that his services can be terminated
at any time by the Crown, without assigning any reason. Even if there is a
contract of employment between the Crown, the Crown is not bound by it. In
other words, if a civil servant is dismissed from service he cannot claim arrears of
salary or damages for premature termination of his service. The doctrine of
pleasure is based on the public policy.
Article 310 of the Indian Constitution incorporates the Common law doctrine of
pleasure. It expressly provides that all persons who are members of the Defence
Services or the Civil Services of the Union or of All-India Services hold office
during the pleasure of the President. Similarly, members of the State Services
hold office during the pleasure of the Governor. But this rule of English law has
not been fully adopted in this Article. A civil servant in India could always sue the
Crown for arrears of salary.The rule is qualified by the words except or
expressly provided by the Constitution.Thus Article 310 itself places restrictions
and limitations on the exercise of the pleasure under Article 310 are limited by
Article 311 (2). The services of permanent Government servant cannot be
terminated except in accordance with rules made under Article 309, subject to
the procedure in Article 311 (2) of the Constitution and the fundamental rights
Constitutional safeguards to Civil Servants:Restrictions on the doctrine of pleasure: - Article 311 provides the following
safeguards to civil servants against any arbitrary dismissal from their posts:
1. No removal by subordinate authority: - Article 311 (1) says that a civil
servant cannot be dismissed or removed by any authority subordinate to the
authority by which he was appointed. This does not mean that the removed or
dismissed must be by the same authority who made the appointment or by his
direct superior. It is enough if the removing authority is of the same or co-ordinate
rank as the appointing authority. In Mahesh v. State of U P., the person appointed
by the Divisional Personnel Officer, E.I.R., was dismissed by the Superintendent,
Power, E.I.R. The Court held the dismissal valid as both the officers were of the
same rank.
2. Reasonable opportunity to defend: - Article 311 (2) lays down that a civil
servant cannot be dismissed or removed or reduced in rank unless he has been
given a reasonable opportunity to show cause against the action proposed to be
taken against him. Originally, the opportunity to defend was given to a civil
servant at two stages: (1) at the enquiry stage and this is an accord with the rule
of natural justice that no man should be condemned without hearing; and
(2) at the punishment stage, when as a result of enquiry the charges have been
proved and any of the three punishments, i.e. dismissal, removal or reduction in
rank were proposed to be taken against him.
ADMINISTRATIVE TRIBUNAL
With the acceptance of Welfare ideology, there was a mushroom growth of public
services and public servants. The courts, particularly the High Courts were
inundated with cases concerning service matters. The Swaran Singh Committee
therefore, inter-alia recommended the establishment of Administrative Tribunals
as a part of Constitutional adjudicative system. Resultantly the Constitution (42nd
Amendment) Act, 1976 inserted Part XIV-A to the Constitution of India consisting
of Articles 323A and 323B.
Article 323A provides for the establishment of Administrative Tribunals for
adjudication or trial of disputes and complaints with respect to recruitment,
conditions of service of persons appointed to public services and other allied
matters.
Article 323B makes provision for the creation of Tribunals for adjudication or trial
of disputes, complaints or offences connected with tax, foreign exchange,
industrial and labour disputes, land reforms, ceiling on urban property, election to
Parliament and State Legislatures, etc. Parliament has power to enact any law
under Article 323A while both Parliament and State Legislatures can make laws
on matters of Article 323B, subject to their legislative competence.
Composition of Tribunals
1. Chairman , Vice-Chairmen & Members
2. Members Administrative and Judicial
3. Qualifications: Chairman- sitting/former judge of H.C. or experience as V.C. for
2 years
4. Vice Chairman :is/was/qualified to be H.C. Judge or 2 yrs exp . as Secretary to
Govt or 5 yrs exp . as Addl. Secretary or 3yrs exp. as jud / adm. Member of adm.
tribunal
5. Judicial member - is/has been/qualified to be a High Court judge or member of
Indian Legal Service holding post in Grade-I for minimum 3 years
6. Adm.Member 2yrs experience as Additional Secretary or 3 yrs experience as
Joint secretary having adequate administrative experience
7. All-appointed by the President in consultation with concerned Governor
Ad-hoc appointment:Ad-hoc employee is the one who is not regularly appointed and who is not even
on probation. Sometimes even the approval of appointing authority is not there.
He earns no pension or seniority for this period. Basically a backdoor entry
wihtou following the procedure. Now Supreme Court guidelines are very strict on
regularisation of such employees.
Both are equally entitled to leave benefit inclduing maternity leave, overtime,
TA/DA, medical cover etc.
However if some ad-hoc employee does a misconduct and joins another
department on a regular post, still he can be chargehseeted by new department,
if reported by old department as CCS(Conduct) Rules are applicable even on
adh-hioc employment.
Compulsory retirement:The concept of compulsory retirement came into force to remove a public
servant whose services are no longer useful to the general administration or in
public interest; if it is felt that for better administration, for augmenting efficiency it
is necessary to chop off the deadwood. The order of compulsory retirement has
to be made having regard to the entire service record of the officer. Even uncommunicated entries in the confidential record can be taken into consideration.
The order of compulsory retirement is not to be treated as a punishment and
carries no stigma. However, it has been held that the order of compulsory
retirement shall not be passed as a shortcut to avoid departmental enquiry when
such course is more desirable. The rule of compulsory retirement has been
held to hold the balance between the rights of the individual Government
servant and the interest of the public. The rule is intended to enable the
Government to energise its machinery and to make it efficient by
compulsorily retiring those who, in its opinion, should not be there in
public interest. Fundamental Rule 56(j) has been held to confer absolute right to
retire any Government servant on his attaining the age of 55 years if the authority
is of the opinion that it is in the public interest to do so. The Supreme Court
in Bishwanath Prasad Singh Vs. State of Bihar held that the object of such
compulsory retirement is to weed out the worthless who have lost their utility by
their insensitive, unintelligent or dubious conduct impeding the flow and
promoting stagnation.It was held that the country needs speed, sensitivity,
probity, non-irritative public relation and enthusiastic creativity which can
be achieved by eliminating the deadwood, the paper-logged and callous.
Meaning of Suspension
Suspension of an employee, during the course of his service simply means that
no work is to be taken from him during the period of suspension. The employee
does not work on a post in this period. If he is actually discharging the duty of a
certain office prior to suspension, the order of suspension would mean that he
would cease to work on and discharge the duties of that post.
Guiding Principles in Placing a Public Servant under Suspension
Public Interest should be the guiding principle in placing a government servant
under suspension, and the disciplinary authority should have the discretion to
decide this taking all factors into account. However the following circumstances
are indicated in which a disciplinary authority may consider it appropriate to place
a Government Servant under suspension. These are only intended for guidance
and should not be taken as mandatory:i.
Cases where continuance in office of the Government servant will
prejudice the investigation, trial or inquiry (e.g. apprehended tampering
with witnesses or documents);
ii.
Where the continuance in office of the Government Servant likely to
seriously subvert discipline in the office in which the public servant is
working;
iii.
Where the continuance in office of the Government Servant will be
against the wider public interest other than those covered by (i) and (ii)
such as there is a public scandal and it is necessary to place the
Government servant under suspension to demonstrate the policy of the
Government to deal strictly with officers involved in such scandals,
particularly corruption;
iv.
Where the allegations have been made against the Government servant
and the preliminary inquiry has revealed that a prima facie case is made
out which would justify his prosecution or his being proceeded against in
departmental proceedings, and where the proceedings are likely to end
in his conviction and/or dismissal, removal, or compulsory retirement
from service.
NOTE
a. In the first three circumstances the disciplinary authority may exercise his
discretion to place a Government servant under suspension even when
the case is under investigation and before a prima facie case is made
out.
b. Certain types of misdemeanours where suspension may be desirable in
the four circumstances mentioned above are indicated below:i.
any offence or conduct involving moral turpitude;
ii.
corruption, embezzlement or misappropriation of Government
money, possession of disproportionate assets, misuse of official
power for personal gain
iii.
serious negligence and dereliction of duty resulting in
considerable loss to the Government;
iv.
desertion of duty**
v.
refusal or deliberate failure to carry out written orders of superior
officers
Deemed suspension:Deemed suspension is the provision in the Statute to give effect to suspension
automatically when certain contingencies take place. It is a programmed
response to the emerging situation on the part of the management, while normal
suspension is a preparatory step for eventual termination of employment on the
apprehended committal of serious misconduct by the employee. In both cases it
hurts the management financially, but the device is intended that the employee
does not continue in service and uses his position to tamper material records or
influence witnesses. It is also intended to diffuse the situation, when certain acts
of the employee involving serious misdemeanors result in public scandal, and
brings adverse publicity to the organization. It is a device for a quick counter
action to restore public confidence, with the firm message that management will
not tolerate misconduct by employees. Suspension is not otherwise a
punishment. And it can be ordered by the management without going through
elaborate formalities that are involved in charge sheeting and punishing an
employee. But suspension should be followed by either a prosecution (if not
already taken place) of the employee or charge sheeting of the employee for
major penalty.
MINOR PENALTIES
(i) Censure;
(ii) Withholding of his promotion;
(iii) Recovery from his pay of the whole or part of any pecuniary loss caused the
Government by negligence or breach of orders;
(iii a) Reduction to a lower stage in the time-scale of pay by one stage for a
period not exceeding three years, without cumulative effect and not adversely
affecting his pension.
(iv) Withholding of increments of pay;
MAJOR PENALTIES
(v) Save as provided for in clause (iii) (a), reduction to a lower stage in the timescale of pay for a specified period, with further directions as to whether or not the
Government servant will earn increments of pay during the period of such
reduction and whether on the expiry of such period, the reduction will or will not
have the effect of postponing the future increments of his pay
(vi) reduction to lower time-scale of pay, grade, post or Service for a period to be
specified in the order of penalty, which shall be a bar to the promotion of the
Government servant during such specified period to the time-scale of pay, grade,
post or Service from which he was reduced, with direction as to whether or not,
on promotion on the expiry of the said specified period
(a) the period of reduction to time-scale of pay, grade, post or service shall
operate to postpone future increments of his pay, and if so, to what extent;
and
(b) the Government servant shall regain his original seniority in the higher time
scale of pay , grade, post or service;
(vii) Compulsory retirement;
(viii) Removal from service which shall not be a disqualification for future
employment under the Government;
(ix) Dismissal from service which shall ordinarily be a disqualification for future
employment under the Government.
Provided that, in every case in which the charge of possession of assets
disproportionate to known-source of income or the charge of acceptance from
any person of any gratification, other than legal remuneration, as a motive or
reward for doing or forbearing to do any official act is established, the penalty
mentioned in clause (viii) or clause (ix) shall be imposed:
Provided further that in any exceptional case and for special reasons recorded in
writing, any other penalty may be imposed.
Seniority:These principles for determining seniority generally provide that: 1. These principles shall apply to the determination of seniority in all the civil
posts except such services and posts for which separate principles have already
been issued or may be issued hereafter by Government.
2. Subject to the provision of the para 3 below, persons appointed in a
substantive or officiating capacity to a grade prior to the issue of these general
principles shall retain the relative seniority already assigned to them or such
seniority as may hereafter b assigned to them under the existing orders
applicable to their cases and shall enable be senior to all others in that grade.
For the purpose of these principles (a) persons who are the confirmed
retrospectively with effect from a date earlier than the issue of these general
principles; and (b) persons appointed on probation to a permanent post
substantively vacant in a grade prior to the issue of these general principles, shall
be considered to be permanent officers of the grade.
3. Permanent officers of each grade shall be ranked senior to persons who are
officiating in that grade.
4. Notwithstanding the provisions of para 3 above, the relative seniority of all
direct recruit shall be determined by the order of merit in which they are selected
for such appointment on the recommendations of the Selection Committee,
persons appointed as a result of an earlier selection being senior to those
appointed as a result of a subsequent selection provided that where persons
recruited initially on a temporary basis are confirmed subsequently in an order
different from the order of merit indicated at the time of their appointment,
seniority shall follow the order of confirmation and not the original order of merit.
5. The relative seniority of persons promoted to the various grades shall be
determined in the order of their selection for such promotion - provided that
where persons promoted initially on a temporary basis are confirmed
subsequently in an order different from the order of merit indicated at the time of
their appointment, seniority shall follow the order of confirmation and not the
original order of merit.
Where promotion are made on the basis of selection by a D.P.C., the seniority of
such promotes shall be in the order in which they are recommended for such
promotion by the Committee. Where promotions are made on the basis of
seniority subject to the rejections of the unfit, the seniority of persons considered
fit the relative seniority in the lower grade from which they are promoted. Where,
however, a person is considered as unfit for promotion and is superseded by a
junior, such person shall not, if he is subsequently found suitable and promoted,
take a seniority in the higher grade over the junior person who had superseded
him.
Where promotions to a grade are made from more than one grade, the eligible
persons shall be arranged in separate lists in the order of their relative seniority
in their respective grades. Thereafter, the D.P.C shall select persons for
promotion from each list upto the prescribed quota and arrange all the
candidates selected from different lists in a consolidated order of merit which will
determine the seniority of the persons on promotion to the higher grade.
6. The relative seniority of direct recruits and of promotes shall be determined
according to the rotation of vacancies between direct recruits and promotes
which shall be based on the quotas of vacancies reserved for direct recruitment
and promotion respectively in the Recruitment Rules.
Deputation:
Any employee may be permitted to serve on deputation or on foreign service
under the control of the Central Government or a State Government, any local
authority, statutory undertaking or a Government company as defined in the
Companies Act, 1956 (1 to 1956) or institutions are receiving grants from
Government on such terms as may be agreed upon by the Board.
Subsistence allowance:Subsistence allowance is meant for the subsistence of a suspended Government
servant and his family during the period he is not allowed to perform any duty
and thereby earn a salary. The authorities concerned should take prompt steps to
ensure that after a Government servant is placed under suspension, he receives
subsistence allowance without delay. The competent authority should pass an
order regarding the subsistence and other allowances to be paid to the
Government servant during the period of suspension simultaneously with the
orders of suspension or as early as possible after the issue of the order of
suspension to avoid hardship to the Government servant.