BANARAS HINDU UNIVERSITY

FACULTY OF LAW
SERVICE PROTECTION LAW IN INDIA
ON
CONSTITUTIONAL PROVISIONS AND DOCTRINE OF
PLEASURE

SUBMITTED BY:- SUBMITTED TO:

ASHISH KUMAR SINGH DR. MAYANK PATHAK

CLASS: - B.A.LL.B VIiith SEMESTER

ROLL NO.:- 16225BLT016

ENROLLMENMT NO- REMARKS

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 ACKNOWLEDGEMENT
I would like to express my special thanks of gratitude to my teacher
ASSISTANT PROFESSOR MAYANK PATHAK SIR who gave me
the golden opportunity to do this wonderful project on the topic
“CONSTITUTIONAL PROVISIONS AND DOCTRINE OF
PLEASURE”, which also helped in doing a lot of research and I
came to know about so many new things and I am really thankful to
them.

Secondly, I would also like to thank my parents and friends who

helped me a lot in finalizing this project within the limited time frame.

---MAYANK RAJPOOT

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 INDEX

S. NO. CONTENTS PAGE

NO.
1. Introduction 4

2. HISTORICAL PERSPECTIVE 5
1. Civil Service under the Company's
Rule
2. Civil Service under the Crown's Rule:
After 1857's revolt

3. Post-Independence Civil Service 9

Development

4 Conclusion 11

5 Bibliography 12

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 INTRODUCTION
The Civil Services were introduced in India during the British rule therefore,
their laws and regulations were also applied in India as per the needs of the
country. After the independence of India, the civil services were provided
Constitutional Status.

The laws of England still have a great influence on Indian laws. The doctrine of
Pleasure is one of these concepts which has been introduced in India from the
British rule. Under this doctrine, the civil servants were regarded as servants of
the crown and these civil servants served at their pleasure.

Public servants have got a special relationship with their employer, viz. the
Government which is in some aspects different from the relationship under the
ordinary law, between the master and servant. It will, therefore, be appropriate
to describe briefly the basic provisions of the Constitution pertaining to
services. The Chief Vigilance Officers and officers handling vigilance cases
will need to bear them in mind while processing disciplinary cases against
Government servants. The member of Defence services or civil services of the
union or All-India services hold their office during the pleasure of president.
Similarly member of state services holds the office during the pleasure of
governor.

Civil Servants are considered as the back bone of the administration. In order to
ensure the progress of the country it is essential to strengthen the administration
by protecting civil servants from political and personal influence. So provisions
have been included in the Constitution of India to protect the interest of civil
servants along with the protection of national security and public interest. The
provisions related to services under Union and State is contained under part
XIV of the Indian Constitution.

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What is the meaning of Doctrine of Pleasure?
As mentioned before, this doctrine originated in England. In England, the
Crown is regarded as the Executive head and the civil services are part of the
Executive. The doctrine of Pleasure means that the Crown has the power to
terminate the services of a civil servant at any time they want without giving
any notice of termination to the servant. Thus the civil servants work at the
pleasure of the Crown which can remove them at any time. When the civil
servants are removed from their service, they do not have the right to sue the
Crown for wrongful termination and they also cannot ask for damages
undergone due to wrongful termination. This doctrine is based on the concept of
public policy and whenever the Crown feels that a civil servant should be
removed from his office because keeping him will be against public policy, the
Crown can remove such servant.,

What is the Position of Doctrine of Pleasure in India?

The doctrine of pleasure is also followed in India. Since the President of India is
the Executive Head of the Union and he enjoys the same position as the Crown
enjoys in England, the President has been vested with the power to remove a
civil servant at any time under this doctrine.

While this doctrine has been adopted in India it has not been blindly copied in
the same manner as it is followed in England and there are some modifications
which exist in India’s adoption of this doctrine from that of England. In India,
Article 310 of the Indian Constitution embodies the provision for this doctrine.

According to Article 310, except for the provisions provided by the

Constitution, a civil servant of the Union works at the pleasure of the President
and a civil servant under a State works at the pleasure of the Governor of that
State. This implies that the operation of the Doctrine of Pleasure can be limited
by constitutional provisions. Under the constitution, the following are excluded
from the operation of this doctrine:

1. Judges of the Supreme Court;

2. Judges of the High Courts;
3. Chief Election Commissioner; and
4. Comptroller and Auditor General of India.

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Thus, this doctrine is not absolute and is subject to Constitutional provisions.
The civil servants can also be excluded from the operation of this doctrine
because they have been provided with some protection under Article 311 and
thus this doctrine’s application can be limited to civil servants as well.

Constitutional Provisions
Article 309 empowers the Parliament and the State legislature regulate the
recruitment, and conditions of service of persons appointed, to public services and
posts in connection with the affairs of the Union or of any State respectively.

Article 310 of the Constitution of India incorporates the English doctrine of pleasure
by clearly stating that 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 . But this power of the Government is not absolute.

Article 311 puts certain restriction on the absolute power of the President or
Governor for dismissal, removal or reduction in rank of an officer.

Article 309
Article 309 of the Constitution reads as follows: –

“Recruitment and conditions of service of persons serving the Union or a State

Subject to the provisions of this Constitution, Acts of the appropriate Legislature
may regulate the recruitment, and conditions of service of persons appointed, to
public services and posts in connection with the affairs of the Union or of any State;”

The above Article empowers the Parliament to make laws to regulate the recruitment
and conditions of service of persons appointed to public services and posts in
connection with the affairs of the Union[viii]. It also authorities the President to make
rules for the above purposes until provision in that behalf is made by or under an Act
of Parliament.

Parliament has not so far passed any law on the subject. Recruitment and the
conditions of service of Central Government servants in general continue to be
governed by rules made by the President under Article 309. The rules made under
the Article which are relevant for the present purpose are:-

1. The C.C.S. (Conduct) Rules, 1964.

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 2. The C.C.S. (C.C.A.) Rules, 1965.
3. The Railway (D. & A.) Rules, 1968.
4. The C.C.S. (T.S.) Rules, 1965.

Relation of 309 with 246 read with VII schedule

The power to make rules conferred by Article 309 of the Constitution or by other
statutes includes the power to add, amend or alter the rules by virtue of Article 367
of the Constitution and Section 21 of the General Clauses Act, 1897. Accordingly, so
long as the Constitutional provision are not contravened, the rules governing the
conditions of service of Government servants can be altered or amend by the
Government from time to time according to the exigencies of the public service
without the consent of a Government servant concerned who will be bound by such
amendment or alteration in the rules. The Privy Council in Venkat’s case[ix] observed
that rules which are manifold in numbers and most minute in particularity are all
capable of change from time to time. The Supreme Court also in Grewal Rao’s
case[x] observed that numerous rules relating to conditions of service may have to
be changed from time to time if the exigencies of public service so require. There is
no question of consent of the Government servant concerned at least by reason of
the sheer impossibility of securing such consent from every one. It is also open to
the Government to alter service rules retrospectively which may affect even the
existing incumbents adversely. However, the existing incumbents are generally given
protection with a view to avoiding hardship to them. The rights accruing to a
Government servant under the conditions of service in force at the time of his
retirement cannot be taken away after his retirement.

Article 310
Article 310 of the Constitution comprises of the basic rules laying down the tenure of
office of persons serving the Union or a State 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.

Now if such powers are given to president of India and the governor of states then it
would be really difficult to exercise power on them so there are certain offices which
are outside the purview of Article 310 and Article 311 was put as a restriction to
doctrine of pleasure. With lot many cases coming with corruption of civil servants
and other government official, it is interesting to know what procedure has been
provided in the constitution of India to punish them.

1.      Clause (1): Office during the Pleasure of the State

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Clause (1) of Article 310 corresponds to the English rule that all service, civil, or
military, under the Crown is held at the pleasure of the Crown, so that the public
servant may be dismissed from the office at will , without any cause assigned.
[xi] [xii]

The doctrine of pleasure appointment received constitutional sanction under Article

310, but unlike in United Kingdom, in India, it is not subject to any law made by the
Parliament, but is subject to only whatever expressly provided by the Constitution.
Therefore the distinction between doctrine of pleasure appointment as it existed in
feudal setup and in a democratic setup has to be borne in mind. [xiii]

The service being terminable at the pleasure of the State, there is no limitation as to
the grounds upon which the services of a Government servant may be terminated.
Once the procedure under Article 311(2) has been complied with, the Courts are not
entitled to determine whether the ground or the charge under which Government has
proceeded under a Government servant is sufficient to warrant a dismissal.  But a
[xiv]

rule, which provides for dismissal on a ground which unreasonably restricts the
fundamental rights of a Government servant, may be challenged as unconstitutional.

The words “pleasure of the President or Governor” do not mean that the Article is
applicable only when a Government servant is dismissed by the President or the
Governor personally. Under Articles 53(I) and 154 (I), the executive power of the
Union or a state may be exercised by the President or Governor either directly or
through officers subordinate to him. Hence Article 310 is attracted whenever a
person is dismissed by an officer competent to dismiss such person serving under
the Union of a State, as the case may be.

Whether the pleasure can be fettered by legislation?

In India, the doctrine of pleasure has been embodied in the Constitution itself, in
Article 310(1). The Supreme Court has pointed out that, since the power of the State
to dismiss a public servant at its pleasure has been provided in Article 310(1),
“except as expressly provided by the Constitution”, it follows that its power cannot
be fettered by any statute.  In India, the power to dismiss a Government servant at
[xv]

pleasure is subject to only those exceptions which are specified in the Constitution
itself. It cannot be taken away or curtailed by legislation, though the mode of its
exercise may be.

Whether the pleasure of the Government can be fettered by contract?

Article 310(1) is not subject to the provisions of any contract. Hence, the pleasure of
the President or the Governor to dismiss at pleasure cannot be fettered by any
contract to the contrary. Any such contract would be bad as a ‘clog’ on the pleasure
or for contravention of Article 310(1).

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Where the pleasure of the Government is itself subject to an express provision of the
Constitution, the constitutional provision cannot be overridden by the Government by
entering into a contract. However, in the case of Satis Anand v. Union of India , The [xvi]

Supreme Court stated that the State can enter into contracts of temporary
employment and impose special terms in each case, provided they are not
inconsistent with the Constitution, and those who chose to accept those terms and
enter into the contract are bound by them, even as the State is bound.

Whether the pleasure under Article 310(1) can be delegated?

Though the contrary opinion was expressed in some cases,  it is now settled that
[xvii]

the pleasure under Article 310(1) need not be exercised by the President or the
Governor personally. Article 310 is not outside the scope of Article 154.  The result
[xviii]

is that the pleasure is to be exercised under Article 310(1) on the aid and advice of
the Council of Ministers. Further, it being an executive power of the State within the
meaning of Article 154, the exercise of pleasure may be delegated to subordinate
officers in accordance with the laws or rules made under Article 309 which may
prescribe the procedure by which and the authority by whom the pleasure may be
exercised.

In short, the pleasure of the President to terminate the services of a Government

servant can be exercised by such officers to whom the President or Governor
delegates the power in accordance with relevant laws or rules made under Article
309.

2.      Clause (2): Civil Post held during the Pleasure of President or
Governor

Clause (2) of Article 310 states that though all service under the Government is
terminable at any time, this clause provides for payment of compensation where
service is held under a special contract which provides for payment of compensation
and the service is terminated before the expiry of the contractual period.

This clause is, though, not applicable in the following cases:

 In the case of members of Defence Services.

 In the case of members of All India Services.
 In the case of members of a civil service of the Union or of a State.

The scope of this clause is very narrow and is limited to those cases where the post
does not belong to any of the regular services and the Government is obliged to
enter into a special contract for securing the services of a person having special
qualifications.  The compensation is payable only for premature termination of
[xix]

contractual service. This clause enables the President or Governor to enter into a

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contract with specially qualified persons providing for payment of compensation
where no compensation is payable under the doctrine “service at the pleasure of the
State”.

3.          Restrictions on the doctrine of pleasure –

Article 311
Article 311 states that –

“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 a 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: Provided further that this clause
shall not apply –

(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; or

(b) where the authority empowered to dismiss or remove a person or to reduce him

in rank ins satisfied that for some reason, to be recorded by that authority in writing,
it is not reasonably practicable to hold such inquiry; or

(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.

(3) If, in respect of any such person as aforesaid, a question arises whether it is

reasonably practicable to hold such inquiry as is referred to in clause ( 2 ), the
decision thereon of the authority empowered to dismiss or remove such person or to
reduce him in rank shall be final.”

The pleasure of the President or Governor is controlled by provisions of Article 311,

so the field covered by Article 311 is excluded from the operation of the doctrine of
pleasure.[xx] The pleasure must be exercised in accordance with the procedural

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safeguards provided by Article 311. Under Indian Constitution several restrictions
has been placed on Doctrine of Pleasure. They are as follows:

1. The service contract entered between the civil servant and government may
be enforced.[xxi]
2. The fundamental rights guaranteed under the constitution are restrictions on
the pleasure doctrine and therefore this doctrine cannot be resorted too freely
and unfairly, Articles 14, 15 and 16 of the Constitution imposed limitations on
free exercise of Pleasure Doctrine.[xxii]Article 14 embodies the principle of
reasonableness the principle of reasonableness is anti-thesis of arbitrariness.
In this way, Article 14 prohibits arbitrary exercise of power under pleasure
doctrine. In addition to article 14 of the constitution Article 15 also restricts
arbitrary exercise of power in matters of services. Article 15 prohibits
termination of service on grounds of religion, race, caste, sex or place of birth
or any of them. Another limitation is under Article 16(1) which obligates equal
treatment and bars arbitrary discrimination.
3. Further the doctrine of pleasure is subject to many more limitations and a
number of posts have been kept outside the scope of pleasure doctrine.
Under the constitution the tenure of the Judges of the High Courts and
Supreme court, of the comptroller and Auditor-General of India, of the Chief
Election Commissioner and the Chairman and Members of Public service
commission is not at the pleasure of the Government.[xxiii]
Thus, the general principle relating to civil services has been laid down
under Article 310 of the Constitution to the effect that government servants
hold office during the pleasure of the government and Article 311 imposes
restrictions on the privilege of dismissal at the pleasure in the form of
safeguards.

Application of Article 311

The most notable point is that Article 311 is available only when ‘dismissal, removal,
reduction in rank is by way of punishment.’ So it is difficult to determine as to when
an order of termination of service or reduction in rank amounts to punishment in
case of Parshottam Lal Dhingra v. Union of India.  The Supreme Court laid down 2
[xxiv]

tests to determine when termination is by way of punishment –

 Whether the servant had a right to hold the post or the rank?
 Whether he has been visited with evil consequences?

If a government servant had a right to hold the post or rank under the terms of any
contract of service, or under any rule, governing the service, then the termination of
his service or reduction in rank amounts to a punishment and he will be entitled to
protection under Article 311.[xxv] Articles 310 and 311 apply to Government
servants, whether permanent, temporary, officiating or on probation.

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The procedure laid down in Article 311 is intended to assure, first, a measure of
tenure to government servants, who are covered by the Article and secondly to
provide certain safeguards against arbitrary dismissal or removal of a government
servant or reduction to a lower rank. These provisions are enforceable in a court of
law. Where there is an infringement of Article 311, the orders passed by the
disciplinary authority are void ab-initio and in the eye of law “no more than a piece of
waste paper” and the government servant will be deemed to have continued in
service or in the case of reduction in rank, in his previous post throughout. Article
311 is of the nature of a proviso to Article 310. The exercise of pleasure by the
President under Article 310 is thus controlled and regulated by the provisions of
Article 311.

Civil Post

The protective safe guards given under Article 311 are applicable only to civil
servants, i.e. public officers. They can be dismissed from service without assigning
any reason.[xxvi] They are not available to defence personnel. In State of U. P.  v.  A.
N. Singh[xxvii], the Supreme Court has held that a person holds a civil post if there
exists a relationship of master and servant between the State and the person holding
the post. The relationship is established if the State has right to select and appoint
the holder of the post, right to control the manner and method of his doing the work
and the payment by it of his wages or remuneration.

Dismissal And Removal

The protection under Article 311(2) is available only where dismissal, removal or
reduction in rank is proposed to be inflicted by way of punishment and not otherwise.
‘Dismissal’ and ‘removal’ are synonymous terms but in law they acquired technical
meanings by long usage in Service Rules. There is, however, one distinction between
the ‘dismissal’ and ‘removal’, that is, while in case of ‘dismissal’ a person is debarred
from future employment, but in case of ‘removal’ he is not debarred from future
employment. [xxviii]

Temporary Employees And Probationers

In State of Punjab & Anr. v. Sukh Raj Bahadur[xxix], the Supreme Court laid down the
following principles regarding the applicability of Article 311 to temporary servants
and probationers.

1. The services of a temporary servant or a probationer can be terminated under

the rules of his employment and such termination without anything more
would not attract the operation of Art. 311 of the Constitution.

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 2. The circumstances preceding or attendant on the order of termination of
service have to be examined in each case, the motive behind it being
immaterial.
3. If the order visits the public servant with any evil consequences or casts an
aspersion against his character or integrity, it must be considered to be one
by way of punishment, no matter whether he was a mere probationer or a
temporary servant.
4. An order of termination of service in unexceptionable form preceded by an
enquiry launched by the superior authorities only to ascertain whether the
public servant should be retained in service, does not attract the operation of
Art. 311 of the Constitution.
5. If there be a full-scale departmental enquiry envisaged Art. 311 i.e. an Enquiry
Officer is appointed, a charge sheet submitted, explanation called for and
considered, any order of termination of service made thereafter will attract the
operation of the said Article.

Termination Of Service When Amounts To Punishment

The protection under Art. 311 is available only when the dismissal, removal or
reduction in rank is by way of punishment In Parshotham Lal Dhingra v. Union of
India[xxx], the Supreme Court has laid down two tests to determine whether
termination is by way of punishment-

1. whether the servant had a right to hold the post or the rank (under the terms
of contract or under any rule)
2. whether he has been visited with evil consequences. If yes, it amounts to
punishment.

Compulsory Retirement

Compulsory retirement simpliciter is not punishment. It is done in ‘public interest’

and does not caste a stigma on the Government servant. So the employee cannot
claim an opportunity to be heard before he is compulsorily retired from service. The
Supreme Court of India has issued certain guidelines regarding compulsory
retirement. In State of Gujarat v. Umedbhai M. Patel[xxxi], the Court laid down the
following principles:

1. When the Service of a public servant is no longer useful to the general

administration, the officer can be compulsorily retired in public interest.
2. Ordinarily the order of compulsory retirement is not to be treated as a
punishment under Art. 311 of the Constitution.
3. For better administration, it is necessary to chop off dead wood but the order
of compulsory retirement can be based after having due regard to the entire
service record of the officer.

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 4. Any adverse entries made in the confidential record shall be taken note of and
be given due weightage in passing such order. Even uncommunicated entries
in the confidential report can also be taken in to consideration.
5. The order of compulsory retirement shall not be passed as a short cut to
avoid departmental inquiry when such course is more desirable.
6. If the officer is given promotion despite adverse entries in the C. R., that is a
fact favour of the officer.
7. Compulsory retirement shall not be imposed as a punitive measure.

In Baikunth Nath v. Chief Medical Officer[xxxii], the Court issued further clarifications

regarding compulsory retirement.

1. An order of compulsory retirement is not a punishment. It implies no stigma.

2. The order has to be passed by the Govt. in public interest. The order is passed
on the subjective satisfaction of the Govt.
3. Principles of natural justice have no place in the context of an order of
compulsory retirement. However courts will interfere if the order is passed
mala fide or there is no evidence or it is arbitrary.
4. The Govt. shall have to consider the entire record of service before taking a
decision in the matter particularly during the later years’ record and
performance.
5. An order of compulsory retirement is not liable to be quashed by a Court
merely on showing that while passing it excommunicated adverse remarks
were taken in to consideration. The circumstances by itself cannot be a basis
for interference.

Exceptions to Article 311

No Removal By Subordinate Authority

Removal by subordinate authority does not mean that the dismissal or removal 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
[xxxiii] [xxxiv]

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.

Reasonable Opportunity Of Being Heard

In an important judgment in Managing Director, ECIL v. B. Karunakar,  the Supreme

[xxxv]

Court has held that when the enquiry officer is not disciplinary authority, the
delinquent employee has a right to receive the copy of the enquiry officer’s report so
that he could effectively defend himself before the disciplinary authority. A denial of
the enquiry officer’s report before the disciplinary authority takes its decision on the

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charges, is a denial of reasonable opportunity to the employee to prove his
innocence and is a breach of the principles of natural justice. It is difficult to say in
advance to what extent the said findings would influence the disciplinary authority
while drawing its conclusions. The Court affirmed its rulings in Union of
India v. Mohd. Ramzan , but held that it will apply only prospectively.
[xxxvi]

In Khem Chand v. Union of India[xxxvii], the Supreme Court held that the ‘reasonable
opportunity’ means:-

1. An opportunity to deny his guilt and establish his innocence, which he can do
only if he is told what the charges levelled against him are and the allegations
on which such charges as based.
2. An opportunity to defend himself by cross examining the witness produced
against him and by examining himself in support of his defiance.
3. An opportunity to make his representation as to why the proposed
punishment should not be inflicted on him.

Exclusion Of Opportunity To Be Heard

Article 311(2) provides that reasonable opportunity of being heard is not applicable
in the following cases:

1. 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; or
2. 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; or
3. 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.

An employee who is convicted on criminal charges need not be given an opportunity

to be heard, before his dismissal from service. However in Divisional Personal
Officer, Southern Railway v. T. R. Chellappan[xxxviii], the Supreme Court held that the
imposition of the penalty of dismissal, removal or reduction in rank without holding
an inquiry was unconstitutional and illegal. The objective consideration is only
possible when the delinquent employee is being heard. But in Union of
India v. Tulshiram Patel[xxxix] the Court held that the dismissal, removal or reduction
in rank of a person convicted on criminal charges is in public interest, and therefore
not violative of Art. 311(2) of the Constitution. The Court thus overruled its earlier
decision in Chellappan’s case.

Exceptions To Clause (2) Of Article 311

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The provision to Article 311 (2) provides for certain circumstances in which the
procedure envisaged in the substantive part of the clause need not be followed.

1. Conviction on a criminal charge.– One of the circumstances excepted by

clause (a) of the provision is when a person is dismissed or removed or
reduced in rank on the ground of conduct which has laid to his conviction on a
criminal charge. The rationale behind this exception is that a formal inquiry is
not necessary in a case in which a court of law has already given a verdict.
However, if a conviction is set aside or quashed by a higher court on appeal,
the Government servant will be deemed not to have been convicted at all.
Then the Government servant will be treated as if he had not been convicted
at all and as if the order of dismissal was never in existence. If the appointing
authority were aware of the conviction before he was appointed, it might well
be expected to refuse to appoint such a person but if for some reason the fact
of conviction did not become known till after his appointment, the person
concerned could be discharged from service on the basis of his conviction
under clause (a) of the proviso without following the normal procedure
envisaged in Article 311.
2. Impracticability –Clause (b) of the proviso provides that where the
appropriate disciplinary authority is satisfied, for reasons to be recorded by
that authority in writing that it does not consider it reasonably practicable to
give to the person an opportunity of showing cause, no such opportunity need
be given. The satisfaction under this clause has to be of the disciplinary
authority that has the power to dismiss, remove or reduce the Government
servant in rank. As a check against an arbitrary use of this exception, it has
been provided that the reasons for which the competent authority decides to
do away with the prescribed procedures must be recorded in writing setting
out why it would not be practicable to give the accused an opportunity. The
use of this exception could be made in case, where, for example a person
concerned has absconded or where, for other reasons, it is impracticable to
communicate with him.
3. Reasons of security – Under proviso (c) to Article 311 (2), where the President
is satisfied that the retention of a person in public service is prejudicial to the
security of the State, his services can be terminated without recourse to the
normal procedure prescribed in Article 311 (2).The satisfaction referred to in
the proviso is the subjective satisfaction of the President about the
expediency of not giving an opportunity to the employee concerned in the
interest of the security of the State. That indicates that the power given to the
President is unfettered and cannot be made a justifiable issue, as that would
amount to substituting the satisfaction of the court in place of the
satisfaction of the President.[xl]

The Constitution of India through Article 311, thus protects and safeguards the rights
of civil servants in Government service against arbitrary dismissal, removal and

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reduction in rank. Such protection enables the civil servants to discharge their
functions boldly, efficiently and effectively. The public interest and security of India is
given predominance over the rights of employees. So conviction for criminal offence,
impracticability and inexpediency in the interest of the security of the State are
recognised as exceptions. The judiciary has given necessary guidelines and
clarifications to supplement the law in Article 311.[xli] The judicial norms and
constitutional provisions are helpful to strengthen the civil service by giving civil
servants sufficient security of tenure. But there may arise instances where these
protective provisions are used as a shield by civil servants to abuse their official
powers without fear of being dismissed. Disciplinary proceedings initiated by
Government departments against corrupt officials are time consuming.

Are Articles 310 and 311 contrary to

Article 20 (2) of the Indian
Constitution or to the principles of
Natural Justice?
When a government servant is punished for the same misconduct under the Army
Act and also under Central Civil Services (Classification and Control and Appeal)
Rules 1965 then the question arises that can it be brought the ambit of double
jeopardy. The answer was given by the Honourable Supreme Court in the case
of UOI v. Sunil Kumar Sarkar,  in which it was held that the court martial proceedings
[xlii]

is different from that of central rules, the former deals with the personal aspect of
misconduct and latter deals with disciplinary aspect of misconduct.

Ordinarily, natural justice does not postulate a right to be presented or assisted by a

lawyer, in departmental inquiries but in extreme or particular situation the rules of
natural justice or fairness may require that the person should be given professional
help.

A five Judge Constitution Bench comprising the C. J.: M. N. Venkatachaliah and B. B.

Sawant, K. Ramaswamy, S. Mohan and B. P. Jeevan Reddy, JJ., held in a
case[xliii] that since the denial of the report of the enquiry officer First Schedule
reasonable opportunity to the employee to prove his innocence and a breach of
principles of natural justice, it follows that the statutory rules if any, which deny the
report to the employee, are against the principles of natural justice and, therefore,
invalid. The delinquent employee will therefore be entitled to a copy of the report
even if the statutory rules do not permit the furnishing of the report or are silent on
the subject. The reason why the enquiry officer’s report is considered an essential

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part of the reasonable opportunity at the first and also a principle of natural justice is
that the findings recorded by the enquiry officer form an important material before
the disciplinary authority which along with the evidence is taken into consideration
by it to come to its conclusions.

The mandate of ‘reasonable opportunity of being heard’ in departmental inquiry

encompasses the Principles of Natural Justice which is a wider and elastic concept
to accommodate a number of norms on fair hearing. Violation of Principles of
Natural Justice enables the courts to set aside the disciplinary proceedings on
grounds of bias and procedural defects.[xliv]

Special Provisions Relating To

Certain Categories Of Government
Servants
The Constitution also makes special provision relating to conditions of service of
certain categories of public services. The more important of these are given below.

All India Services

Under Article 312 of the Constitution, Parliament has enacted the All India Services
Act, 1951. Under Sec. 3 of that Act, the President has framed rules regulating various
aspects of conditions of services of persons appointed to the All India Services. The
three All India Services created so far are the I.A.S., the I.P.S. and the Indian Forest
Service.

Secretariat Staff Of The Parliament

Article 98 of the Constitution empowers the Parliament to regulate by law the

recruitment and conditions of service of person appointed to the secretarial staff of
either House of Parliament. However, as no such law has yet been made by the
Parliament, the recruitment to the Secretariats of the Lok Sabha and the Rajya Sabha
and the conditions of service of the staff of the two Houses are regulated by the
rules made by the President under Article 98 (2) of the Constitution in consultation
with the Speaker of the Lok Sabha and the Chairman of the Rajya Sabha respectively.

Officers Of The Supreme Court

Under Article 146 (2) of the Constitution, conditions of service of officers and
servants of the Supreme Court are regulated by rules made by the Chief Justice
subject to the approval of the President in certain matters.

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Indian Audit And Accounts Department

Under Article 148 (5) the conditions of service of persons serving in the Indian Audit
and Accounts Departments are regulated by rules made by President after
consultation with the Comptroller and Auditor General of India. No separate rules
have been made by the President under this Article. The rules framed by the
President for the other civil services and posts are made applicable to persons
serving in the Indian Audit and Accounts Department after consultation with the
Comptroller and Auditor General of India.

Defence Personnel

The conditions of service of the Defence personnel paid out of the Defence Services
Estimates and who are subject to the Army Act, 1950 (46 of 1950), the Navy Act,
1957 (62 of 1957) and the Air Force Act, 1950 (45 of 1950) are governed by their
respective Acts and the rules made there under.

Persons Engaged On Special Contract

On occasions the Government engages the services of specialists or experts or other

persons for a specified period on special contract of service. Such contract would
normally provide inter alia for the duration of appointment and for conditions
regarding termination of service. In some cases the contact may expressly provide
that in certain specified matters the conditions of service of the person appointed on
contract will be governed by spefic rules governing Government servants in these
matters. In certain other cases the rules governing the conditions of service of
Government servant may be made applicable to a person appointed on a contract by
a general reference to them.

Alterations In Conditions Of Service

Except in the case of appointments made on a specific contract, the relationship

between the Government and the Government servant is not based on a contract.
The conditions of service to which a Government servant is subject cannot be
deemed to constitute the terms of a contract.[xlv] The essential requirement of a
contract is agreement between the contracting parties in respect of the terms of the
contract. In the case of a Government servant there is no such agreement. The legal
relationship between the Government and Government servant has been defined by
the courts as something analogous to status, the duties and obligations of which are
fixed by law and are quite independent of the will of the person affected.[xlvi]

Alternations In The Conditions Of Service Of Persons Appointed On Contract

A unilateral amendment or alteration of specified conditions of service embodied in

a contract of service is not permissible.[xlvii] However, any rules relating to

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conditions of service of Government servants which are made applicable to a person
appointed on contract by a general reference to them in the contact can be changed
unilaterally.

Employees Of Departmental Public Sector Undertakings:

Certain undertakings are run and managed by Government departmentally e.g.,

ordnance factories under the Ministry of Defence, workshops of the P&T Department,
workshops under the Railways, Delhi Milk Scheme, etc. Employees of such
undertakings are appointed and paid by Government and they are Government
servants for all purposes and will be governed by the normal rules and regulations
applicable to Government servants. However, provisions of the Factories Act and of
the Labour Laws will also apply to them to the extent the employees of such
establishments are covered by such laws.

Employees Of Public Sector Undertakings

The employees of public sector undertakings, which have been constituted as

corporate bodies constitute separate legal entities under the relevant statutes or
which have been registered as companies under the Companies Act are not
Government servants.[xlviii] They are governed by rules and regulations made by the
respective undertakings under the powers vesting in them under the relevant
statutes/Articles of Memorandum. Government servants who may be employed
under such undertakings on foreign service terms continue, for purpose of
disciplinary action, to be governed by Government rules and regulations.

Tenure Of Service

A basic feature of the employer – employee relationship is the materís power to terminate the
services of the servant. The extent of this power, however, varies with different categories of
employment. For most categories of employees laws and regulations exist regulating the right
of the employer in this behalf. In respect of Government servants the Constitution itself
makes certain specific provisions.

Conclusion
 With lot many cases coming with corruption of civil servants and other government official
it is interesting to know what procedure has been provided in the constitution of India to
punish them. With recent cases like that of Pradeep Sharma, the encounter specialist of
Mumbai police who has links with underworld and other charges of corruption was dismissed
from his post which proves that civil servants can’t make mockery of law if they are guilty
then they will be punished and no matter what position they held. So, the main reason for
which Articles 310 and 311 has been envisaged in the constitution by the makers of

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constitution is still working today but it is interesting to note that the framer of the
constitution had a insight of corruption in near future that’s why such provisions were
included.

The purpose for which Articles 310 and 311 were envisaged in the Constitution is still
relevant in the light of recent instances including the case of Pradeep Sharma, the encounter
specialist from Mumbai Police who has links with underworld and faces other charges of
corruption and was dismissed from his post. It must be ensured that civil servants can’t make
mockery of law if they are guilty and it is precisely for that reason, that the continued use of
Doctrine of Pleasure is required in India.

BBB
BIBLIOGRAPHY

BOOKS
 Dr. Pandey, J.N. Constitutional Law of India, Central Law Agency, 2007
  M Laxmikanth, Indian Polity for Civil Services Examinations Mc Graw Hill
Education,2019

REPORTS
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 The Government of India Act, 1858.
 The Indian Councils Act, 1861
 The Indian Councils Act, 1871
 The Government of India Act, 1909
 The Government of India Act, 1935

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