Central University of South Bihar

School of Law and Governance

ADMINISTRATIVE LAW

Project Work on the topic – Legal And Constitutional

Safeguards For Government Servants

Under the supervision of – Dr. Pallavi Singh

Central University of South Bihar

Submitted by –
SHASHANKA
B.A LL.B (2018-2023)
E. No. – CUSB1813125093
School of Law and Governance

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 TABLE OF CONTENTS

ACKNOWLEDGEMENT-------------------------------------------------------3

RESEARCH METHODOLOGY-----------------------------------------------4

INTRODUCTION----------------------------------------------------------------5

DOCTRINE OF PLESAURE ---------------------------------------------------5

TERMINATION OF SERVICE WHEN AMOUNTS TO PUNISHMENT---7

COMPULSORY RETIREMENT---------------------------------------------------8

CONCLUSION-------------------------------------------------------------------15

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 ACKNOWLEDGEMENT

It is a genuine pleasure to express my deep sense of thanks and gratitude to my mentor and
guide Dr. Pallavi Singh .Her dedication and keen interest above all her overwhelming
attitude to help her students had been solely and mainly responsible for completing my
work. Her timely advice, meticulous scrutiny, scholarly advice and logical approach have
helped me to a very great extent to accomplish this task. I owe a deep sense of gratitude to
prof. Pawan Kumar Mishra, the dean of school of law and governance (CUSB) for making
sure that we are provided with best facilities and surroundings to fetch the best out of
ourselves . His prompt inspirations, timely suggestions with kindness, enthusiasm and
dynamism have enabled me to complete my project. It is my privilege to thank my parent
for their constant encouragement throught out my project.

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 RESEARCH METHODOLOGY

Research methodology: the project is basically based on the doctrinal method of research as
no field work is done on this topic.

Aims & objectives: To do an in depth analysis of Legal and constitutional safeguards for
government servants.

Sources of Data : the whole project is made with the use of secondary source. The following
secondary sources of data have been used in the project:

1. Books
2. Websites

Mode of Citation: The researcher has followed a uniform mode of citation throughout the
course this research paper.

Type of study: For this topic , the researcher has opted for descriptive and explanatory type
of study as in this topic, the researcher is providing the descriptions of the existing facts.

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INTRODUCTION

Government 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 government servants from political and personal influence. So provisions have
been included in the Constitution of India to protect the interest of government servants
along with the protection of national security and public interest. Part XIV of the
Constitution of India deals with Services under The Union and The State. 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.

Doctrine of Pleasure

In England a civil servant holds his office during the pleasure of the Crown. His services
can be terminated at any time by the Crown without giving any reasons. 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 311 reads as follows:

(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.

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Civil Post

The protective safe guards given under Article 311 are applicable only to civil servants, i.e.
public officers. They are not available to defence personnel. In State of U. P. v A. N.
Singh1the 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

Dismissal and removal are synonymous terms, but in law they acquired technical meanings
by long usage in Service Rules. In case of dismissal a person is debarred from future
employment, but in case of removal he is not debarred from future employment.

No Removal by Subordinate Authority

No 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.

Reduction in Rank

Reduction in Rank means reduction from a higher rank or post to a lower rank or post and
not loosing place in rank or cadre. In State of Punjab vs Kishan Das The Supreme Court
held that a mere reduction in the salary in the same cadre is not reduction in rank.

Inquiry

It is mandatory under Article 311(2) to make an inquiry before the dismissal, removal or
reduction in rank of a civil servant. In that inquiry the civil servant has to be informed of the
charges against him and given a reasonable opportunity of being heard in respect of those
charges.

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Informed of the charges

Informed of the charges, means serving of a charge sheet explaining the reasons of the
charges levelled against the concerned officer and statement of allegations against each
charge.

Reasonable Opportunity of Being Heard

In Khem Chand vs Union of India the Supreme Court held that the 'reasonable opportunity
means:-

(a) 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.

(b) An opportunity to defend himself by cross examining the witness produced against him
and by examining himself in support of his defiance.

(c) An opportunity to make his representation as to why the proposed punishment should not
be inflicted on him.

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 vs Union of India 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

Suspension

Suspension of a government employee is not a punishment. It is neither dismissal or

removal nor reduction in rank. So the employee cannot claim a reasonable opportunity to be
heard.

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Exclusion of Opportunity to be Heard

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

(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

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 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 Patel6 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.

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 vs Umedbhai

M.Patel 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.

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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.

4.Any adverse entries made in the confidential record shall be taken note of and be given
due weightage in passing such order.

5.Even uncommunicated entries in the confidential report can also be taken in to

consideration.

6.The order of compulsory retirement shall not be passed as a short cut to avoid
departmental inquiry when such course is more desirable.

7.If the officer is given promotion despite adverse entries in the C. R., that is a fact in favour
of the officer.

8.Compulsory retirement shall not be imposed as a punitive measure.

In Baikunth Nath vs Chief Medical Officer 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.

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Temporary Employees and Probationers

In State Of Punjab & Anr vs Sukh Raj Bahadur 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.

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.

The Constitution of India through Article 31, thus protects and safeguards the rights of civil
servants in Government service against arbitrary dismissal, removal and 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. 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. The mandate of ‘reasonable opportunity of being
heard’ in departmental inquiry encompasses the Principles of Natural Justice which is a

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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 defects10.

Conclusion

Thus it can be said that the Constitution makers then at that time had known about the
discrepancies like corruption to creep into the civil services, so in order not to grant
immunity from summary dismissal to dishonest or corrupt government servants so that they
continue in service for months together “at the public expense and to Public detriment”.
Also at the same time the judiciary with its limited judicial review and departmental appeal
has ensured that the power to dismiss has not been misused by the authority. 
   
With the lot many cases coming into light in relation to corruption among the government
officials and the linking of various government officials with anti-social elements the Article
310 and 311 of the Indian Constitution envisaged in the Part XIV act as a check and does
not allow the government officials to make mockery of Law

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