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Services under the Union and

the States and Protection to Civil


Servants
Introduction
• Bureaucracy is essential for executing governmental policies and laws
• Discipline, integrity and efficiency are important hallmarks of civil
service
• Part XIV (Arts. 308 – 323)
• Chapter I – Services (308 – 314)
• Chapter II – PSC (315 – 323)
• Ensures
• The need to maintain discipline
• The need to ensure that the disciplinary authorities exercise their powers
properly and fairly
Constitutional Provisions
• Power to make laws/rules relating to recruitment and conditions of
service – subject to the provisions of the Constitution (Art. 309)
• Tenure of office – Doctrine of Pleasure (Art. 310)
• Protection afforded to a member of civil service in disciplinary
proceedings (Art. 311)
• Exceptions (Art. 311 (2) Proviso)
• All India Services (Art. 312)
Doctrine of Pleasure
• Article 310. Tenure of office of persons serving the Union or a
State.—(1) Except as expressly provided by this Constitution, every
person who is a member of a defence service or of a civil service of
the Union or of an all-India service or holds any post connected with
defence or any civil post under the Union holds office during the
pleasure of the President, and every person who is a member of a
civil service of a State or holds any civil post under a State holds office
during the pleasure of the Governor of the State.
Introduction
• There are two classes of penalties in service jurisprudence, namely,
minor penalties and major penalties. Amongst minor penalties are
censure, with holding of promotion and with holding of increments of
pay. Amongst major penalties are dismissal or removal from service,
compulsory retirement and reduction in rank. Minor penalties do not
affect the tenure of a government servant but the penalty of dismissal
or removal does because these two penalties bring to an end the
service of a government servant.
Doctrine of Pleasure
• Common law doctrine
• To promote public policy
• Efficiency in administration
• Where the performance is not satisfactory, power to remove
Doctrine of Pleasure
• Except as expressly provided by this Constitution
• Supreme Court Judges (Art. 124)
• Comptroller and Auditor-General of India (Art. 148)
• High Court Judges (Art. 217 & 218)
• Chairman and Members of PSC (Art. 317)
• Chief Election Commissioner and other Election Commissioners (Art. 324)
• State Election Commissioner (Art. 243K)
Doctrine of Pleasure
• The relationship between the Government and its servant is not like
an ordinary contract of service between a master and servant. The
legal relationship is something entirely different, something in the
nature of status. It is much more than a purely contractual
relationship voluntarily entered into between the parties. The duties
of status are fixed by the law and in the enforcement of these duties
society has an interest. In the language of jurisprudence, status is a
condition of membership of a group of which powers and duties are
exclusively determined by law and not by agreement between the
parties concerned.
Doctrine of Pleasure
• From the nature of things the task of efficiently and effectively
implementing these policies and enactments, however, rests with the
civil services. The public is, therefore; vitally interested in the
efficiency and integrity of such services. Government servants are
after all paid from the public exchequer to which everyone
contributes either by way of direct or indirect taxes. Those who are
paid by the public and are charged with public and administration for
public good must, therefore, in their turn bring to the discharge of
their duties a sense of responsibility. The efficiency of public
administration does not depend only upon the top echelons of these
services. It depends as much upon all the other members of such
services, even on those in the most subordinate posts.
Doctrine of Pleasure
• For a service to run efficiently there must, therefore, be a collective sense
of responsibility. But for a government servant to discharge his duties
faithfully and conscientiously, he must have a feeling of security of tenure.
Under our Constitution this is provided for by the Acts and rules made
under Article 309 as also by the safeguards in respect of the punishments
of dismissal, removal or reduction in rank provided in clauses (1) and (2)
of Article 311. It is, however, as much in public interest and for public good
that government servants who are inefficient, dishonest or corrupt or have
become a security risk should not continue in service and that the
protection afforded to them by the Acts and rules made under Article
309 and by Article 311 be not abused by them to the detriment of public
interest and public good.
Doctrine of Pleasure
• The pleasure doctrine is not merely a special prerogative of the British
Crown which has been inherited by India and transposed into our
Constitution adapted to suit the Constitutional set up of our Republic but
because public policy requires, public interest needs and public good
demands that there should be such a doctrine.
• It is thus clear that the pleasure doctrine embodied in Article 310 (1), the
protection afforded to civil servants by clauses (1) and (2) of Article
311 and the withdrawal of the protection under clause (2) of Article 311 by
the second proviso thereto are all provided in the Constitution on the
ground of public policy and in the public interest and are for public good.
• Union of India v. Tulsiram Patel (1985)
Protections
• Article 311. Dismissal, removal or reduction in rank of persons employed
in civil capacities under the Union or a State.—(1) No person who is a
member of a civil service of the Union or an all-India service or a civil
service of a State or holds a civil post under the Union or a State shall be
dismissed or removed by an authority subordinate to that by which he was
appointed.
• (2) No such person as aforesaid shall be dismissed or removed or reduced
in rank except after an inquiry in which he has been informed of the
charges against him and given a reasonable opportunity of being heard in
respect of those charges
• Provided that where it is proposed after such inquiry, to impose upon him
any such penalty, such penalty may be imposed on the basis of the
evidence adduced during such inquiry and it shall not be necessary to give
such person any opportunity of making representation on the penalty
proposed
Protections
• Exceptions
• (a) where a person is dismissed or removed or reduced in rank on the
ground of conduct which has led to his conviction on a criminal charge;
• (b) where the authority empowered to dismiss or remove a person or to
reduce him in rank is satisfied that for some reason, to be recorded by that
authority in writing, it is not reasonably practicable to hold such inquiry;
• (c) where the President or the Governor, as the case may be, is satisfied
that in the interest of the security of the State it is not expedient to hold
such inquiry. Second Proviso Art. 311 (2)
• If a question arises whether it is reasonably practicable to hold such
inquiry, the decision thereon of the authority empowered to dismiss or
remove such person or to reduce him in rank shall be final Art. 311 (3)
Protections
• It is not necessary that the inquiry must be conducted by the
appointing or higher authority
• State of M. P. v. Shardul Singh (1970)
• Principles of natural justice extend even to matters of evidence –
evidence by which charges are sought to be substantiated must be
made available to him and an opportunity to explain
• Khan Chand v. Union of India (1958)
• All the witnesses to be examined in front of the delinquent and be
given an opportunity to cross examine
• Kuldeep Singh v. Commissioner of Police (1999)
Protections
• Whether there is a right to be represented by a lawyer?
• The right of representation by lawyer may not in all cases be held to be a
part of natural justice. No general principle valid in all cases can be
enunciated…
• The Rule itself recognises that where the charges are so serious as to entail
a dismissal from service, the inquiry-authority may permit the services of
a lawyer. This rule vests a discretion. In the matter of exercise of this
discretion one of the relevant factors is whether there is likelihood of the
combat being unequal entailing a miscarriage or failure of justice and a
denial of a real and reasonable opportunity for defence by reason of the
delinquent being pitted against a presenting officer who is trained in law.
• J. K. Aggarwal v. Haryana Seeds Development Corporation (1990)
Protections
• Judicial interpretation has extended the protection to even matters
relating to quantum of punishment.
• 15th Constitutional Amendment 1963 recognised this right
• 42nd Constitutional Amendment removed this protection
• Provided that where it is proposed after such inquiry, to impose upon
him any such penalty, such penalty may be imposed on the basis of
the evidence adduced during such inquiry and it shall not be
necessary to give such person any opportunity of making
representation on the penalty proposed
Protections
• Exceptions:
• Conviction on a criminal charge
• It is not reasonably practicable to hold such inquiry
• Satisfaction of the authority
• Reasons to be recorded in writing
• In the interest of the security of the State it is not expedient to hold
inquiry
• Satisfaction of the President/Governor necessary
• No requirement of recording reasons
Protections
• There is no scope for any ambiguity in these words and there is no
reason to given them any meaning different from the plain and
ordinary meaning which they bear. The resultant effect of these
words is that when a situation envisaged in any of the three clauses of
the proviso arises and that clause becomes applicable, the safeguard
provided to a government servant by clause (2) is taken away. As
pointed out earlier, this provision is as much in public interest and for
public good and a matter of public policy as the pleasure doctrine and
the safeguards with respect to security of tenure contained in clauses
(1) and (2) of Article 311.
• The condition for the application of each of these clauses is different.
In the case of clause (a) a government servant must be guilty of
conduct deserving the penalty of dismissal, removal or reduction in
rank which conduct has led to him being convicted on a criminal
charge. In the case of clause (b) the disciplinary authority must be
satisfied that it is not reasonably practicable to hold an inquiry. In the
case of clause (c) the President or the Governor of a State, as the case
may be, must be satisfied that in the interest of the security of the
State, it is not expedient to hold an inquiry.
• The paramount thing, however, to bear in mind is that the second proviso
will apply only where the conduct of a government servant is such as he
deserves the punishment of dismissal, removal or reduction in rank. If the
conduct is such as to deserve a punishment different from those
mentioned above, the second proviso cannot come into play at
all, because Article 311 (2) is itself confined only to these three penalties.
Therefore, before denying a government servant his constitutional right to
an inquiry, the first consideration would be whether the conduct of the
concerned government servant is such as justifies the penalty of dismissal,
removal or reduction in rank. Once that conclusion is reached and the
condition specified in the relevant clause of the second proviso is satisfied,
that proviso becomes applicable and the government servant is not
entitled to an inquiry.
• What is requisite is that the holding of the inquiry is not practicable in the
opinion of a reasonable man taking a reasonable view of the prevailing
situation. It is not possible to enumerate the cases in which it would not be
reasonably practicable to hold the inquiry, but some instances by way of
illustration may, however, be given. It would not be reasonably practicable
to hold an inquiry where the government servant, particularly through or
together with his associates, so terrorizes, threatens or intimidate
witnesses who are going to given evidence against him with fear of reprisal
as to prevent them from doing so or where the government servant by
himself or together with or through other threatens, intimidates and
terrorizes the officer who is the disciplinary authority or member of his
family so that he is afraid to hold the inquiry or direct it to be held. It would
also not be reasonably practicable to hold the inquiry where an
atmosphere of violence or of general indiscipline and insubordination
prevails, and it is immaterial whether the concerned government servant is
or is not a party to bringing about such an atmosphere. (b)
• There are various ways in which security of the State can be affected.
It can be affected by State secrets or information relating to defence
production or similar matters being passed on to other countries,
whether inimical or not to our country, or by secret links with
terrorists. It is difficult to enumerate the various ways in which
security of the State can be affected. The way in which security of the
State is affected may be either open or clandestine. Amongst the
more obvious acts which affect the security of the State would be
disaffection in the Armed Forces or para-military Forces.
• The question under clause (c), however, is not whether the security of the State
has been affected or not, for the expression used in clause (c) is "in the interest of
the security of the State". The interest of the security of the State may be
affected by actual acts or even the likelihood of such acts taking place. Further,
what is required under clause (c) is not the satisfaction of the President or the
Governor, as the case may be, that the interest of the security of the State is or
will be affected but his satisfaction that in the interest of the security of the State,
it is not expedient to hold an inquiry as contemplated by Article 311(2). The
satisfaction of the President or Governor must, therefore be with respect to the
expediency or inexpediency of holding an inquiry in the interest of the security of
the State.
• The satisfaction reached by the President or Governor under clause (c) is
subjective satisfaction and, therefore, would not be a fit matter for judicial
review.
• Union of India v. Tulsiram Patel (1985)

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