Constitutional Framework of Civil Services in India | Constitutional Law - CLAT PG PDF Download

 Introduction

• Articles  309 to 323  of the Constitution outline provisions for Central and State services.
•  Civil servants  are crucial for governance, as they implement policies and laws framed by ministers and legislatures.
• The bureaucracy assists the  political executive  in governance.
• The Constitution aims to provide civil servants with a sense of  security and fair play  to ensure efficient functioning.
• Despite safeguards, the government retains the power to  dismiss or demote  civil servants.
• With increasing cases of corruption among civil servants and government officials, it is important to understand the  procedures for punishment  outlined in the Constitution of India.
• The  doctrine of pleasure  originates from common law, where a civil servant holds office at the pleasure of the crown in England.
• In India, members of the Defence services, civil services of the Union, and All-India services hold office at the pleasure of the  President  .
• Similarly, members of State services hold office at the pleasure of the  Governor  .
• Provisions related to services under the Union and State are contained in  Part XIV  of the Indian Constitution.

 Article 310 of the Indian Constitution: Overview 

• Article 310 of the Indian Constitution pertains to the conditions of service for members of the Defence services, civil services of the Union, All India Services, and civil posts under the Union and States.

 Key Provisions of Article 310 

•  Tenure and Appointment:  Members of Defence services, civil services of the Union, All India Services, and civil posts connected with Defence hold office at the pleasure of the President. Similarly, members of State civil services and civil posts under a State hold office at the pleasure of the Governor.
•  Special Contracts:  If a person not belonging to Defence services, All India Services, or Union or State civil services is appointed to a post under the Constitution, the President or Governor may include provisions for compensation in the contract. This applies if the post is abolished before the agreed period or the person is required to vacate the post for reasons not related to misconduct.

 Doctrine of Pleasure and Its Limitations 

• The doctrine of pleasure grants the President and Governors the authority to appoint and remove certain officials at their discretion. However, this power is not absolute and is subject to certain restrictions.
• Article 311 was introduced to impose limitations on the doctrine of pleasure, ensuring that certain officials have protection against arbitrary dismissal.
• There are specific offices and positions that fall outside the purview of Article 310, where the President and Governors do not have unrestricted power to remove individuals at will.

 Article 311 of the Indian Constitution: Overview 

• Article 311 of the Indian Constitution provides protection to certain categories of government employees against arbitrary dismissal or removal from service.

 Key Provisions of Article 311 

•  Protection Against Dismissal:  Article 311 ensures that no person holding a civil post under the Union or a State shall be dismissed or removed from service without being given an opportunity to show cause against the action proposed to be taken.
•  Exceptions:  The provisions of Article 311 do not apply to:
• Members of the armed forces,
• Members of the armed forces of the Union or State, or
• Persons employed in any office or service connected with the administration of a Union territory or a State.
•  Disciplinary Proceedings:  Article 311 also allows for the dismissal or removal of a government employee without an inquiry if the employee is convicted of a criminal offense, or if the employee is involved in corrupt practices or misconduct.

 Doctrine of Pleasure and Article 311 

• The doctrine of pleasure allows the President and Governors to appoint and remove certain officials at their discretion. However, Article 311 restricts this power by ensuring that certain employees have protection against arbitrary dismissal.
• While Article 310 grants the President and Governors the authority to remove officials at will, Article 311 safeguards specific employees by requiring due process and the opportunity to defend themselves before dismissal.

 Services Excluded from Article 310 

•  Tenure of Supreme Court Judges:  Article 124
•  Tenure of High Court Judges:  Article 148 (2)
•  Chief Election Commissioner:  Article 324
•  Chairman and Members of Public Service Commission:  Article 317

 Safeguards for Civil Servants under Article 311 

 Article 311  provides essential safeguards for civil servants in India. It ensures that no civil servant can be dismissed or removed by an authority subordinate to the one that appointed them. It also mandates that any such action must follow a proper inquiry process where the civil servant is informed of the charges and given a fair opportunity to defend themselves.

However, there are exceptions where these safeguards do not apply, such as in cases of criminal conviction or when it is impractical to hold an inquiry for specific reasons. The article aims to protect civil servants from arbitrary actions and provides legal enforceability for these provisions.

 Security of Tenure and Safeguards 

• Article 311 aims to provide  security of tenure  to government servants and protect them from arbitrary dismissal or reduction in rank.
• The provisions are  enforceable in a court of law  .
• If Article 311 is violated, disciplinary orders are considered  void  and the government servant is deemed to have continued in service or retained their previous rank.
• Article 311 acts as a  proviso  to Article 310, regulating the President's power under Article 310.

 Termination of Service and Punishment 

• Whether terminating a government servant's service constitutes punishment depends on their right to hold the post. If they have such a right, termination is punishment as it forfeits their right to the post. If they lack this right, termination or reversion to a lower post does not constitute punishment.
• For temporary government servants without a right to hold the post, dismissal or removal amounts to punishment if it leads to negative consequences for them.

 Key Provisions of Article 311 

•  Dismissal and Removal:  Civil servants cannot be dismissed or removed by an authority lower than the one that appointed them.
•  Inquiry Process:  Before dismissal, removal, or reduction in rank, an inquiry must be conducted where the civil servant is informed of the charges and given a chance to defend themselves.
•  Exceptions:  The inquiry process is not required in cases of criminal conviction, impracticality of holding an inquiry, or when it is against national security interests.
•  Finality of Decision:  The authority's decision on the feasibility of holding an inquiry is final.

 Article 311 and Article 310 

• Article 311 serves as a proviso to Article 310, regulating the President's exercise of pleasure under Article 310.
• It controls the President's power by ensuring that dismissals or removals follow the procedural safeguards outlined in Article 311.

 When is Article 311 Applicable? 

Article 311 comes into play when actions like dismissal, removal, or reduction in rank are considered punishments. The challenge lies in determining whether a termination of service or reduction in rank constitutes punishment, as seen in the case of  Parshottam Lai Dhingra Vs Union of India  . The Supreme Court established two key tests to ascertain when a termination is punitive:

•  Right to Hold the Post:  Did the servant have the right to hold the post or rank?
•  Consequences:  Were there negative consequences imposed on the servant?

If a government servant had the right to hold a position based on the terms of a service contract or service rules, then termination or reduction in rank is viewed as punishment, granting protection under Article 311. Articles 310 and 311 are applicable to government servants, regardless of whether they are permanent, temporary, officiating, or on probation.

Exceptions to Article 311(2)

Article 311(2) outlines the procedure for dismissing or removing a government servant. However, there are specific exceptions where this procedure may not be followed. These exceptions include situations such as conviction on a criminal charge, impracticability of following the procedure, and reasons of security.

 1. Conviction on a Criminal Charge 

• When a government servant is dismissed, removed, or reduced in rank due to conduct leading to a conviction on a criminal charge, a formal inquiry is not necessary. This is because a court of law has already made a decision.
• If a conviction is overturned by a higher court, the government servant is treated as if they were never convicted, and the dismissal is considered invalid.
• The government servant is entitled to claim salary for the period between the dismissal and reinstatement. This claim is subject to the limitations set by law.
• Action can be taken based on a conviction prior to the person’s appointment in government service. If the appointing authority was aware of the conviction before hiring, they may refuse to appoint the individual.
• If the conviction was unknown at the time of appointment, the person can be discharged based on the conviction without following the usual procedure.

 2. Impracticability 

• When the disciplinary authority believes it is not feasible to give a government servant the opportunity to show cause, as recorded in writing, the opportunity may be skipped.
• This decision must come from the disciplinary authority with the power to dismiss, remove, or reduce the government servant's rank.
• To prevent misuse, the reasons for bypassing the procedure must be documented.
• This exception is applicable in situations like when a person has absconded or when communication with them is impractical.

 3. Reasons of Security 

• If the President believes that keeping a person in public service is harmful to national security, their service can be terminated without following the usual procedure under Article 311(2).
• The President's satisfaction in this case is based on their judgment about the necessity of not giving the employee a chance to respond for security reasons.
• Unlike other cases, there is no requirement to document the reasons for the President's satisfaction, making this power unchallengeable.

 Is Suspension or Compulsory Retirement Considered Punishment? 

• Suspension and compulsory retirement do not constitute punishment and are therefore not covered by Article 311.
• The Supreme Court, in the case of  Bansh Singh vs. State of Punjab,  clarified that suspension is neither dismissal, removal, nor reduction in rank.
• When a government servant is suspended, they cannot invoke the constitutional protection of Article 311(2).
• In the case of  Shyam Lai vs. State of U.P.,  the Supreme Court ruled that compulsory retirement differs from dismissal and removal as it carries no penal consequences.
• A government servant who is compulsorily retired does not lose any benefits earned during their service, and thus, it does not fall under the provisions of Article 311.

 Other Safeguards to Civil Servants 

 Article 311(1) 

• A civil servant cannot be dismissed or removed by any authority subordinate to the one that appointed him.

 Article 311(2) 

• A civil servant cannot be removed, dismissed, or reduced in rank without being given a reasonable opportunity to defend himself against the proposed action.

 Supreme Court Interpretations 

• In cases like  Khem Chand vs. Union of India  and  Union of India vs. Tulsi Ram Patel  , the Supreme Court provided detailed interpretations of Articles 310 and 311, offering guidelines for administrative authorities in handling disciplinary matters.

 Articles 310 and 311 vs. Article 20(2) and Natural Justice 

• The relationship between Articles 310 and 311 and Article 20(2) of the Indian Constitution, as well as the principle of natural justice, raises questions about potential conflicts.
• In cases where a government servant is punished under both the Army Act and the Central Civil Services (Classification, Control, and Appeal) Rules, the issue of double jeopardy arises. The Supreme Court, in  Union of India vs. Sunil Kumar Sarkar  , clarified that court-martial proceedings and central rules address different aspects of misconduct—personal and disciplinary, respectively.
• While natural justice typically does not guarantee the right to legal representation in departmental inquiries, there are exceptional cases where professional assistance may be necessary to uphold fairness.

Conclusion:

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 cant 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 article 310 and 311 has been envisaged in the constitution by the makers of 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.