Services under the Union and States: protection of civil servants - Constitutional Law II

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1. Part XIV: Articles 308 to 323
2. The doctrine of pleasure (Article 310)
3. The safeguards of Article 311
4. When is it dismissal or removal ? Dhingra
5. The exceptions: proviso to Article 311(2)
6. Tulsiram Patel (1985)
7. Public Service Commissions (Articles 315 to 323)
How this is examined

Cases checked to exist. Read the judgment before quoting a holding.

Every case cited here has been checked to exist — the citation resolves and names the right parties. The propositions attributed to each case have not been verified line by line against the judgment. Case names link through to the full judgment: read it before quoting a holding in an examination answer, and never carry a proposition from notes into court on trust.

The structure of every answer. Article 310 states a rule (civil servants hold office at pleasure); Article 311 qualifies it (but cannot be dismissed without these safeguards); and the proviso to Article 311(2) qualifies the qualification. Write it in that order and the answer organises itself.

1. Part XIV: Articles 308 to 323

Article 309. Parliament and State legislatures may regulate recruitment and conditions of service. Until they do, the President or Governor may make rules (for instance the Central Civil Services (Classification, Control and Appeal) Rules, 1965).
Article 310. The doctrine of pleasure.
Article 311. Safeguards against dismissal, removal and reduction in rank.
Article 312. All-India Services, created by Parliament after a Rajya Sabha resolution supported by two-thirds of members present and voting (IAS, IPS, IFoS).
Articles 315 to 323. Public Service Commissions.

2. The doctrine of pleasure (Article 310)

Members of the defence services, the civil services of the Union and the All-India Services hold office during the pleasure of the President; members of State services during the pleasure of the Governor. The doctrine comes from English law, where a servant of the Crown could be dismissed at will and without cause.

In India the doctrine is not absolute. Article 310 itself opens with “except as expressly provided by this Constitution”, so it is subject to Article 311, to the fundamental rights, and to the special tenure provisions for judges, the Comptroller and Auditor-General, the Chief Election Commissioner and members of Public Service Commissions. Rules under Article 309 also bind it. The pleasure is exercised by the President or Governor on ministerial advice, not personally. Clause (2) allows a contract providing compensation for a person appointed on special qualifications whose post is abolished or who is required to vacate it without misconduct.

3. The safeguards of Article 311

311(1). No person shall be dismissed or removed by an authority subordinate to the one that appointed him.
311(2). No person shall be dismissed, 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.
Since the Forty-second Amendment, 1976, no second opportunity to make a representation on the proposed penalty is required. The penalty may be imposed on the evidence adduced in the inquiry. (A copy of the inquiry report must still be supplied before the disciplinary authority decides, as a matter of natural justice.)

Article 311 protects only civil servants: members of a civil service of the Union or an All-India Service, or persons holding a civil post. It does not protect members of the defence forces.

4. When is it “dismissal” or “removal”? Dhingra

In Parshotam Lal Dhingra v. Union of India, 1957 INSC 96, AIR 1958 SC 36, a Constitution Bench held that Article 311(2) applies only where the termination or reduction is by way of punishment. Termination of a probationer or temporary servant according to the terms of appointment, or compulsory retirement under the rules, is not punishment. Two tests decide whether an order is punitive:

Did the servant have a right to the post or rank? If so, terminating or reducing it is punishment.
Does the order visit evil consequences on him, such as forfeiture of pay, allowances or seniority, or loss of future chances? If so, it is punishment whatever its form.

The Court also explained the difference between dismissal and removal: both end service, but dismissal ordinarily disqualifies from future employment under the Government, and removal does not.

5. The exceptions: proviso to Article 311(2)

No inquiry is required:

(a) where the person is dismissed, removed or reduced on the ground of conduct which has led to his conviction on a criminal charge;
(b) where the authority is satisfied, for reasons recorded in writing, that it is not reasonably practicable to hold an inquiry; and
(c) where the President or Governor is satisfied that in the interest of the security of the State it is not expedient to hold an inquiry.

Under Article 311(3), the authority's decision that an inquiry is not reasonably practicable is final.

6. Tulsiram Patel (1985)

In Union of India v. Tulsiram Patel, 1985 INSC 155, (1985) 3 SCC 398, a Constitution Bench (by majority) dealt with dismissals without inquiry, including those of members of the Central Industrial Security Force after violent agitations. It held:

Where a clause of the proviso applies, Article 311(2) is excluded entirely, and with it the principles of natural justice. The rule of audi alteram partem cannot be brought back in by another route, because the Constitution has excluded it expressly.
For clause (a), the authority must still consider the conduct leading to conviction and decide what penalty is appropriate; it is not automatic.
For clause (b), the impracticability must be real: witnesses terrorised, an atmosphere of violence, or the servant himself threatening those who would conduct the inquiry. Mere inconvenience is not enough. Reasons must be recorded, and courts will examine whether they are relevant.
The servant still has the departmental appeal, in which he can be heard.

Problem. A police constable takes part in a violent agitation and is dismissed without inquiry under clause (b), the order reciting that witnesses are afraid to depose. Valid? Yes, if the reasons are recorded and relate to the facts, following Tulsiram Patel. If the order merely repeats the words of the clause with no material behind it, the satisfaction is open to judicial review and the dismissal can be set aside.

7. Public Service Commissions (Articles 315 to 323)

Composition and term. The Union Public Service Commission and State Commissions (with joint Commissions possible for two or more States) are appointed by the President or Governor. Members hold office for six years, or until sixty-five (UPSC) or sixty-two (State), whichever is earlier (Article 316).
Removal (Article 317). Only by the President, on the ground of misbehaviour after an inquiry by the Supreme Court on a reference; or for insolvency, paid outside employment, or infirmity of mind or body.
Independence. Conditions of service may not be varied to a member's disadvantage (Article 318); limits on further government employment (Article 319); expenses charged on the Consolidated Fund (Article 322).
Functions (Article 320). Conducting examinations, and being consulted on methods of recruitment, principles of promotion and transfer, disciplinary matters, and claims for costs and pensions.

Consultation under Article 320(3) is not mandatory. In State of U.P. v. Manbodhan Lal Srivastava, 1957 INSC 75, AIR 1957 SC 912, the Court held that failure to consult the Commission does not invalidate a disciplinary order, and the advice, when taken, does not bind the Government.

How this is examined

“Protection of civil servants” is a regular KSLU question, usually as an essay: “Discuss the constitutional safeguards available to civil servants” or “Explain the doctrine of pleasure and its limitations.” A short note on Public Service Commissions also appears.

The essay should run: Article 310 and its English origin; the limits on it; Article 311(1) and (2); Dhingra's tests for punishment; the three exceptions; and Tulsiram Patel on what the exceptions mean. Close with Article 323A, since service disputes now go first to the Administrative Tribunals.