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SERVICES UNDER THE UNION AND STATES[1]

Table of Contents

QUESTION BANK.

Q.1. Discuss the constitutional safeguards available to civil servants under the Constitution of India.

Q.2. Explain the scope of “Doctrine of Pleasure” in relation to Union and State civil servants.

Q.3. Discuss the protection guaranteed to the civil servants under Art. 311, of Constitution of India.

Q.4. Discuss the protection guaranteed to the civil servants under Constitution of India against the dismissal, removal and reduction in rank.

Q.5. “Tenure of office of a civil servant is stated to be at pleasure both in England and India” Critically examine the correctness of the statement.

SHORT NOTES

1. Public Service Commission.

Doctrine of pleasure.
Union Public Service Commission.

SYNOPSIS

I. Introduction.

II. Recruitment and Regulation of conditions of service [Art. 309].

Tenure of office and the doctrine of pleasure [Art. 310]

-Restrictions on doctrine of pleasure.

Constitutional safeguards for civil servant [Art. 311].
No removal by subordinate authority.
Reasonable opportunity to defend.

-Exceptions to safeguards: –

Creation of All India Services [Art. 312].
Public Service Commission.
Appointment of members of Public Service Commission.
Tenure of office [Art. 317 and 319].
Functions of Public Service Commission [Art 320].

I. INTRODUCTION:-

The Constitution governs Civil Services in India. From Art. 309 to 323, Part XIV of the Constitution has made elaborate provisions for the Central and State services. A civil servant is indispensable to the governance of a country in the modern age. Ministers frame policies, but the task of effectively implementing them rests ultimately on the shoulders of the civil servants. Therefore, the Constitution seeks to inculcate civil servants with a sense of security and fair play so that they can work and function effectively and give their best services to the country. Nevertheless, the government never loses the right to dismiss or demote any civil servant (involved in corruption or disobeying a senior officer’s valid orders), even though safeguards have been provided for their security under this part.

II. RECRUITMENT AND REGULATION OF CONDITIONS OF SERVICE[2]: –

Art.309 empowers the Parliament and the state Legislatures to regulate the recruitment and the conditions of services of the persons appointed to the public services and the posts under the Union and states, respectively. Until the provision on that behalf is made by an appropriate legislature under Art. 309, the President and the Governors may make rules for regulating the recruitment and condition of services of persons appointed to such services and posts. The Constitution also provides for creating a Public Service Commission for the Union and the states to assist in recruiting the Public Services.

III. TENU4RE OF OFFICE AND THE DOCTRINE OF PLEASURE[3] (ART. 310):-

In England, the normal rule is that a civil servant of the Crown holds his office during the Crown’s pleasure. This means the Crown can terminate his services at any time without assigning any reason. This doctrine is based on public policy.

Art. 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 All India Services[4] hold office at the pleasure of the President. Similarly, the members of the state services hold office at the pleasure of the Governor. But, unlike under English rule, a civil servant in India could always sue the Government for salary arrears.

The services of a permanent Government Servant cannot be terminated except in accordance with the rules made under Art. 309, the procedure prescribed under Art. 311 (2) and the limitations laid down by the fundamental rights. A permanent government servant may compulsorily retire from his service if he is found inefficient, corrupt or dishonest. But by compulsory retirement, he does not lose any terminal benefits, such as salary, allowances, or proportionate pension, which he has earned through past services. It, therefore, has no penal consequences. (Recently, the B.J.P. government in Centre has retired compulsorily many officers whose service records were blemished).

Restrictions on the Doctrine of Pleasure[5]:-

The Constitution lays down the following limitations on exercising the doctrine of pleasure.

The provisions of Art control the pleasure of the President or Governor Art. 311.
The tenure of the Supreme Court Judges [Art. 124], the High Court Judges, (Art. 218), Auditor-General of India (Art. 148(2)). The Chief election commissioner (Art. 324), and the Chairman and member of the Public Service Commission (Art. 317) are not dependent on the pleasure of the President or the Governor, as the case may be. Their posts are expressly excluded from the operation of the doctrine of pleasure.
The doctrine of pleasures is subject to Fundamental Rights[6].

IV. CONSTITUTIONAL SAFEGUARDS FOR CIVIL SERVANT[7] (Art. 311):-

Art. 311 lays down the following safeguards against arbitrary service dismissal for civil servants.

1. No Removal by Subordinate authority[8]: –

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 removal and dismissal should be by the same authority that made the appointment or by his direct superior. It is enough if the removing authority is of the same or a comparable rank as the appointing authority.

In Mahesh V. State of U.P[9].

Facts:-The person appointed by the Divisional personnel officer of E.I.R was dismissed by the superintendent of EIR,

Court Held:- the dismissal was valid as both the officers were of the same rank.

2. Reasonable Opportunity[10] to defend[11]:-

Art. 311(2) states that a civil servant cannot be dismissed, removed or reduced in rank unless 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 in two stages:-

At the inquiry stage ( this is in accordance with the rule of natural justice that no man should be condemned unheard) and
At the punishment stage, i.e. when the charges levelled against him are proved as a result of inquiry.

In- Shanta Shankar Jangam V. The Zilla Parishad[12]

Facts: – Petitioner, a temporary employee, was terminated from services on the grounds of her immoral character. The petitioner was not given the right of a hearing.

Held: Order being stigmatized cannot be passed without giving her an opportunity to be heard.

The Constitution (42^nd Amendment) Act, 1976, has abolished the right of Government Servants to make representation at the second stage of the inquiry. The new proviso makes it clear that if, after inquiry, he is found guilty. It is proposed to impose upon a person any of the three punishments, i.e., dismissal, removal, or reduction in rank; they may be imposed on the basis of the evidence given during such inquiry. He shall not be entitled to make any second representation.

In Nepal Singh v. the State of U.P[13].

Facts– Nepal Singh was appointed temporarily. He was removed from the service on allegations of corruption without being given any opportunity to explain his case or defend himself.

The Supreme Court held that the removal order was against the spirit of Art. 311 and ordered the State Government to reinstate him.

Exceptions to civil servants’ safeguards[14]:-

The Protection of a Servant under Art. 311(2); is not available in the following circumstances-viz-

Where a person is dismissed or reduced in rank on the ground of misconduct, which has led to a conviction or criminal charges;
Where it is impracticable to give a civil servant an opportunity to defend himself, but the authority taking action against him shall record the reasons for such action;
Where in the interest of the security of the State, it is not expedient to give such an opportunity to the civil servant.

V. Creation of All-India Services[15] (Art. 312):-

Art. 312 empowers Parliament to create new All India Services common to the Union and the states. Parliament can create such services if the Rajya-Sabha, by a resolution supported by not less than two-thirds of the members present and voting, declares that it is necessary and expedient in the national interest to create such services.

VI. PUBLIC SERVICE COMMISSION (Art’s. 315 TO 323):-

The Constitution provides for the establishment of a service commission to recruit most civil servants. This is done to avoid favouritism, nepotism, or political pressure in recruitment. Furthermore, it guarantees equality of opportunity in matters of public employment, as provided under Art. 16 of the Constitution.

The Constitution provides for the establishment of the Union Public Service Commission (U.P.S.C) for the Union and State Service Commission (i.e., in Maharashtra state M.P.S.C.) (Art.315). Two or more states may agree to have a common public service commission. The Union Public Commission, if requested by the Governor of the State, may, with the approval of the President, agree to act for the State.

A. Appointment of Members (Art. 316):-

The Chairman and members of the Union Public Service Commission or common commission are appointed by the President and, in the case of a State, by the Governor (Art. 316(1)). But as nearly as possible, one-half of every commission shall be those who, at the date of their appointments, have held office for at least ten years under the Government of India or the Government of the State.

B. Tenure of office (Art. 317, Art. 319):-

A member of the commission shall hold office for the period of 6 years unless he attains the age of 65 in the case of the Union Commission or 62 years in the case of the State Commission, whichever is earlier.

A member may resign from his office. He may also be removed from his office by order of the President on the grounds of misbehaviour. To remove him, the President should reference the matter to the Supreme Court, and after an inquiry, the Supreme Court reports the President for his removal. The President may also remove them without any reference to the Supreme Court if any such person (1) is adjudged insolvent, (2) accepts any other paid employment during the term of office, (3) is in the opinion of the President unfit to continue in office because of the infirmity of mind or body.

The Union and State Commission members are debarred from re-appointment after their term of office expires. They are also ineligible for other employment under the Central or State governments (Art. 319). This provision is necessary to ensure impartiality.

C. FUNCTIONS Of THE PUBLIC COMMISSION (Art. 320):-

The following are the functions of the Public Service Commission:-

To conduct examinations for appointment to the services of the Union and State, respectively.
If requested by two or more states, it shall be obligatory for the U.P.S.C. to assist them in framing and operating schemes of joint recruitment for any services requiring special qualifications.
To be consulted-
in all matters relating to the methods of recruitment for civil posts.
On the principles to be followed in making appointments, promotions, transfers, and the suitability of conditions.

on disciplinary matters affecting a person in service.

on any claim by such person for the costs incurred in defending legal proceedings instituted against him regarding acts done or purporting to be done in executing his duty.
on any compensation claim for injuries sustained by a person while in service.

NOTE.

COMPULSORY RETIREMENT:-

Compulsory retirement means “premature retirement of a Government servant in the public interest”. No element of punishment is involved in it; hence, it is protected under Art. 311 is not available to the Government Servants who retired compulsorily.

The purpose and object of premature or compulsory retirement of Government servants is to weed out inefficient, corrupt, and dishonest servants from the Government service.

An order of compulsory retirement does not cause any prejudice to the Government servant. He does not lose any terminal benefits, such as salary, allowances, or proportionate pension, which he has already earned from past services. It, therefore, has no penal consequences.

In Shyarn Lal v. State of UP[16],

Facts– An officiating Superintending Engineer was compulsorily retired under Article 465(a) of the Civil Service Regulation.

The Supreme Court held that the order was not a punishment and that Article 311(2) had no application.

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[1] केंद्र-राज्य सरकारमधील नागरी सेवा

[2] भरती व सेवाषर्तीचे नियमन

[3] पदाचा कार्यकाल आणि ‘राश्ट्रपती/राज्यपाल यांची संकल्पना इच्छा/मर्जीची

[4] अखिल भारतीय सेवा

[5] मर्जीच्या संकल्पनेवर मर्यादा

[6] In Kameeshwar Prasad v. State of Bihar, (AIR 1962 SC 1166).

Facts- Rule 4 A of the Bihar Government Servant’s Conduct Rules, 1956, in so far as it prohibited any form of demonstration was struck down by the Supreme Court as being violative of the fundamental rights contained in Art. 19(a) and (b) of the Constitution.

[7] नागरी सेवकांसाठी घटनात्मक सुरक्षितता

[8] कनिष्ठ अधिकार्यामार्फत पदच्युती नाही

[9] AIR 1955 SC.70.

[10] In Khem Chand v. Union of India, (AIR 1958 Sc 300),

Supreme Court summarised the scope of ‘reasonable opportunity’

envisaged to the Government servant by the provisions of Article 311(2). This case was decided prior to the Constitution 42nd Amendment, 1976.

The scope of ‘reasonable opportunity’ under the amended Clause (2) of Article 311would be as follows:

a) The communication of charges to the delinquent servant;
b) Opportunity to deny the charges and to establish innocence;
c) Opportunity to defend himself, by cross-examining witness produced against him and examining other witnesses in his own support.

[11] बाजू मांडणेची योग्य संधी

[12] (2008 (2) All MR 614)

[13] (AIR 1985 SC 84).

[14] नागरी सेवकांच्या घटनात्मक संरक्षणाला अपवाद

[15] अखिल भारतीय सेवा आयोग निर्मिती

[16] AIR 1954 SC 369.

In D. Ramaswami v. State of Tarnil Nadu

The appellant, who started his career in 1953 as a Lower Division Clerk was promoted as an Asst. Commercial Tax Officer in 1954, next as a Deputy Commercial Tax Officer in 1957, then as a Joint Commercial Tax Officer in 1962, as a Commercial Tax Officer in 1966 later as an Asst. Commissioner of Commercial Taxes in 1972 and then as a Deputy Commissioner of Commercial Taxes on 7.5.1975, as well as member of the State Tax Appellate Tribunal. He was compulsorily retired under F.R.56(d) on Sept. 20, 1975. There was an adverse entry in his C.R. in 1969, based on which an inquiry was held and the Government dropped the charges made against him. However, it was subsequent to this inquiry that the appellant earned further promotions which reflected his good record of service. The Supreme Court Held the compulsory retirement ordered shortly after such promotion as invalid and unsustainable.