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SERVICES UNDER THE UNION AND STATE

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. What is the nature of Civil Services in India in post independence?

Q.5 Critical examine procedural safeguards provided under constitution to civil servants and limitations on doctrine of pleasure in India.

SHORT NOTES

1. Public Service Commission

Doctrine of pleasure.

SYNOPSIS

I. Introduction

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)
INTRODUCTION:-

The Constitution of India has made comprehensive provisions for Civil Services in India. Part XIV of the Constitution from Arts. 309 to 323 have made elaborate provisions for the Central and State services. The civil servant is indispensable to the governance of a country in the modern age. Legislators make laws, and Ministers frame policies, but the task of effectively implementing them rests ultimately on the shoulders of civil servants. Therefore, the Constitution seeks to inculcate civil servants with a sense of security and fair play so they may 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 seniors’ valid orders), even though safeguards have been provided for their security under this part.

RECRUITMENT AND REGULATION OF CONDITIONS OF SERVICE[1]:

Art. 309 empowers Parliament and the State Legislature to regulate the recruitment and the conditions of service of the persons appointed to public services and posts under the Union and States, respectively. Until an appropriate legislature makes the provision on that behalf under Art.309, the President and Governors may make rules for regulating the recruitment and conditions of services of persons appointed to such services and posts. The Constitution also provides for creating the Public Service Commission for the Union and the States to assist in the recruitment of Public Services.

III. TENURE OF OFFICE AND THE DOCTRINE OF PLEASURE[2] (ART. 310)

In England, the general rule is that a civil servant of the Crown holds his office at the pleasure of the Crown. It 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 Service of the Union or All India Services hold office at the pleasure of the President. Similarly, the members of the State services hold office at the pleasure of the Governor. However, unlike under English rule, civil servants in India could always sue the Government for salary arrears.[3].

The services of a permanent Government Servant cannot be terminated except by following rules made under Art. 309, the procedure prescribed under Art. 311 (2) and limitations laid down by fundamental rights. A permanent Government Servant may compulsorily be retired from his service if he is found inefficient, corrupt or dishonest.[4]However, compulsory retirement does not result in the loss of any terminal benefits, such as salary, allowances, or proportionate pension, that he has earned through past services. Therefore, it has no penal consequences.

Restrictions on the Doctrine of Pleasure[5]:-

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

Provisions of Art control the pleasure of the President or the Governor. 311.
The tenure of Supreme Court Judges (Art. 124), High Court Judges (Art. 218), and 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. These posts are expressly excluded from the operation of the doctrine of pleasure.
The doctrine of pleasures is subject to fundamental rights.
CONSTITUTIONAL SAFEGUARDS FOR CIVIL SERVANT[6] (Art. 311).

Art. 311 provides the following safeguards to civil servants against any arbitrary dismissal from the posts.

No Removal by Subordinate authority[7]: –

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 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 coordinated rank as the appointing authority.

In Mahesh V/s. The State of U.P[8].

The superintendent of EIR dismissed the person appointed by the Divisional personnel officer of E.I.R.

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

Reasonable Opportunity to defend[9]:-

Art. 311(2) lays town that a civil servant cannot be dismissed, 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 in two stages:-

at the inquiry stage, and this is in accord with the rule of natural justice that no man should be condemned without hearing; and,
at the punishment stage, the charges have been proved to be taken against him as a result of the inquiry.

The Constitution (42^nd Amendment) Act 1976 has abolished the right of the Government Servant to make representation at the second stage of the inquiry. The new proviso makes it clear that if he is found guilty after inquiry. 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.

The exception to civil servants safeguards[10]:-

The protection of servants under Art.311 (2); is not available in the following circumstances.

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[11] to allow the civil servant 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.
Creation of All-India Services[12] (Art. 312):-

Art.312 empowers Parliament to create a new All India Services Commission for 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.

PUBLIC SERVICE COMMISSION[13]:- (Arts. 315 TO 323):-

The Constitution provides for the establishment of a service Commission recruiting most civil servants. The Service Commission was established to avoid favouritism, nepotism or political pressure in recruiting civil servants. In addition, 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.[14] (i.e. in Maharashtra State M.P.S.C.) (Art. 315). Two or more States may agree to have a common Public Service Commission[15]The Union Public Commission may, with the president’s approval, agree to act for the State if the governor requests it.

Appointment of Members[16] (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 the State Commission, by the Governor (Art. 316(1)). However, as nearly as possible, one-half of every Commission should be from the persons 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.

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

A member of the Commission shall hold office for a period of 6 years unless he attains the age of 65 in the case of the Union Commission or 60 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 must refer the matter to the Supreme Court, and after the inquiry, the Supreme Court reports to the President for his removal. 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.[17] 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[18].

FUNCTIONS OF PUBLIC COMMISSION[19] (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-
On all matters relating to methods of recruitment to civil posts.
The principles to be followed in making appointments, promotions, and transfers and the suitability of conditions.

On disciplinary matters affecting a person in service.

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

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[1] भरती आणि सेवाषर्तीचे नियमन [भर्ती और सेवा की शर्तों का विनियमन]

[2] नोकरीचा कार्यकाल आणि मर्जीची संकल्पना [रोजगार की अवधि और मर्जी की अवधारणा ]

[3] पगाराची शिल्लक येणे [भुगतान शेष ]

[4] अकार्यक्षम, भ्रश्ट, अप्रामाणिक [निकम्मा, भ्रष्ट, बेईमान ]

[5] मर्जीच्या संकल्पनेवर मर्यादा [विवेक/मर्जी की अवधारणा पर सीमाएं ]

[6] नागरी सेवकांना घटनात्मक संरक्षण [सिविल सेवकों को संवैधानिक संरक्षण]

[7] कनिश्ठ अधिका-यांमार्फत पदच्युती नाही [कनिष्ठ अधिकारियों द्वारा कोई निष्कासन नहीं]

[8] AIR 1955 SC.70

[9] बाजू मांडण्याची पुरेषी संधी [पक्ष रखने का पर्याप्त अवसर]

[10] नागरी संवकांना संरक्षणाला अपवाद किंवा सरकारी सेवकांना संरक्षण कधी मिळणार नाही [ सिविल सेवकों की सुरक्षा या सरकारी सेवकों की सुरक्षा के लिए कोई अपवाद नहीं होगा]

[11] अव्यवहार्य

[12] अखिल भारतीय सेवा निर्मिती

[13] लोकसेवा आयोग

[14] केंद्रीय लोकसेवा आयोग आणि राज्य लोकसेवा आयोग

[15] संयुक्त लोकसेवा आयोग

[16] सदस्यांची नियुक्ती [सदस्यों की नियुक्ति]

[17] विकलांगता

[18] निष्पक्षपातीपणा [ निष्पक्षता]

[19] लोकसेवा आयोगाची कार्ये [ लोक सेवा आयोग के कार्य ]