Constitutional provisions regarding Civil Servants in India | Law Optional Notes for UPSC PDF Download

Introduction

• The Civil Services play a critical role in a country's progress. The effectiveness, democratic values, and overall development of a nation are often determined by its administrative team and civil machinery.
• In our Constitution and various laws, we learn about the importance of an independent judiciary and the doctrine of the separation of powers. These principles aim to minimize or eliminate political influence over the executive branch to ensure peace, efficiency, and justice in the country. This concept, as observed in the USA, includes judicial review and the system of checks and balances to assess the constitutionality of legislative actions and administrative decisions.
• However, when we examine the state of affairs in the field of law, it becomes apparent that the executive machinery is currently tainted by political interference, which is negatively impacting the nation's growth and development. We frequently witness in newspapers and on television that the transfers and appointments of administrative officers are heavily influenced by the political agendas of the ruling party. This often disregards the qualifications and capabilities of individuals, leading to appointments of inefficient and unqualified individuals to key positions. Meanwhile, competent and morally upright officials are left in the shadows due to the manipulations of political leaders. Ultimately, it is the efficient and innocent individuals who suffer the most from this situation.
• To protect administrative officials and civil servants from such unfair treatment and unreasonable actions by political leaders, our Constitution provides legal safeguards. These protections can be found in Articles 309, 310, and 311 of the Indian Constitution, which pertain to the appointment, dismissal, and removal of civil servants. These articles effectively grant legal immunity to civil servants, safeguarding their positions against any misuse of the law and procedures aimed at harming them.

Recruitment and Regulations in the Terms of Service for Civil Servants

• Article 309 of the Indian Constitution grants authority to the Parliament of India and respective State Legislatures to establish rules and laws governing the appointment and management of civil servants in the country, whether they are appointed under the Union or State Governments.
• This provision explicitly states that if the Parliament or any State Legislature has not enacted provisions or laws regarding civil service appointments and regulations, the President or the Governor of the State may, under certain circumstances, have the authority to enact temporary laws for overseeing these appointments. This measure is aimed at preventing administrative failures and maladministration.
• The wording of Article 309, specifically the phrase "Subject to the Provisions of the Constitution," makes it abundantly clear that any rules and acts established for the appointment and placement of civil servants, as well as the rule-making powers of executive bodies and administrative officials, must not violate any provisions of the Indian Constitution. This includes upholding the fundamental rights of individuals.
• One fundamental question that often arises is related to the constitutional validity of the right to strike for civil servants. It is well understood that, despite the existence of registered trade unions among government officials and specific professional groups, the right to strike is neither a fundamental nor a constitutional right in India, as per our laws and Constitution.
• This issue was addressed by the Hon'ble Supreme Court of India in the landmark case of T.R. Rangarajan v. Govt. Of India[1]. In this case, a two-judge bench of the Supreme Court ruled that government servants have no right to strike under any circumstances, whether morally or legally. If government employees feel aggrieved by any actions of the government or legislative bodies, they must seek redress through the appropriate tribunal or court.
• In 2002, the State Government of Tamil Nadu took the surprising step of suspending 200,000 government employees who had gone on strike to demand their rights, using the statutory provisions of the Tamil Nadu Essential Services Maintenance Act, 2002, and the Tamil Nadu Ordinance, 2003. The petitioners challenged the constitutional validity of these acts.
• The Court upheld the government's position, emphasizing that government servants do not have the right to strike. Strikes have historically led to mismanagement, chaos, and disruption in states and the country as a whole. Instead, government employees should seek legal remedies to address their grievances.
• The Court acknowledged the State Government's argument that more than 90% of government revenue, derived from direct taxes, was used to support the salaries of 1.2 million government employees. Given the government's resources and capacity, this was deemed a reasonable course of action.
• However, the Court made it clear that registered trade unions, operating under statutory laws, have the right to collectively bargain and negotiate on behalf of their members. Nevertheless, they do not possess the right to strike under any circumstances. Furthermore, no political party or organization has the right to disrupt the economy and functioning of a state or region, as this would ultimately cause harm and inconvenience to the citizens of the country.
• Therefore, as of now, the right to strike is not recognized as a fundamental, legal, or constitutional right in India.

Doctrine Of Pleasure

• The Doctrine of Pleasure has a significant impact on the stability and administrative life of a civil servant. In England, civil servants appointed by the Crown can be dismissed from their positions without any specific reason, even if their employment contract does not bind the Crown in any way. This is known as Absolute Pleasure, where the fate of the civil servant depends solely on the Crown's discretion. However, in practice, considerations of public policy and justice are taken into account before taking action against a civil servant in England. Dismissal may only occur if it is deemed necessary and in the interest of justice.
• In India, Article 310 of the Indian Constitution describes the authority exercised by the President of India in appointing and dismissing civil servants. The article states that individuals who are members of the Defence Services of India, the Union Public Service Commission of India, the State Public Service Commission of India, and the All India Services of India hold their offices at the pleasure of the President of India or the Governor of the State, as applicable. However, it is important to note that this pleasure mentioned in the Constitution is not an Absolute Pleasure, as seen in England. It is subject to certain restrictions.
• For instance, in the case of State of Bihar v. Abdul Majid, it was established that a civil servant can sue the State for their entitled salary, which is considered their legal and fundamental right, and cannot be deprived of it.
• Article 310 explicitly mentions that action against a civil servant must be in accordance with the Constitution and the statutes enacted in this regard. Additionally, Article 311 of the Constitution imposes restrictions on the arbitrary removal of civil servants by requiring a specific procedure to be followed.
• It should be noted that, under the Fundamental Rules 56 (b) and Rule 48 of the Central Civil Services Pension Rules 1972, the government has the authority to grant compulsory retirement to civil servants, not as a punitive measure, but as a constitutionally enabled provision, subject to considerations of integrity and public policy. Furthermore, under Fundamental Rules 56 (c), civil servants have the essential right to voluntarily retire from their positions, provided they give a three months' notice to the government.
• Article 310 of the Indian Constitution also grants the government the power to abolish a post in the Centre or the State, as applicable. However, such abolition or action is subject to judicial review, ensuring oversight of the process.

Exceptions of Doctrine of Pleasure

There are exceptions to the Doctrine of Pleasure in India, which means that the President, Governor, or Government of India or the respective State cannot exercise absolute pleasure when it comes to civil servants.
These exceptions are outlined in the Indian Constitution:

• Article 311: This article places the foremost restriction on the removal or dismissal of any civil servant. It provides concrete immunity to civil servants and allows them to sue the State or Union government against arbitrary removal or dismissal. It also ensures that proper procedures are followed, including inquiries and investigations, before taking action against a civil servant.
• Posts Excluded from Doctrine of Pleasure: Certain posts are excluded from the exercise of the Doctrine of Pleasure by the President of India or Governors of the States. These posts include:
  • Judges of the Supreme Court of India (Article 124)
  • Judges of High Courts of the States (Article 218)
  • Auditor-General of India (Article 148(2))
  • The Chief Election Commissioner of India (Article 324)
  • Chairman or Members of Public Service Commission (Article 317)

Constitutional Remedies and Protection for Civil Servants in India

• To understand the constitutional safeguards provided to civil servants in India, it's essential to define who qualifies as civil servants. Article 311 is applicable only to civil servants and is not available as a remedy to other government employees or individuals associated with the Union, State, or any corporation.
• The term "Civil Post" is not explicitly defined in Article 310, 311, or any specific act. Its meaning is inferred and interpreted through judicial pronouncements in India. One important distinction is that it does not cover Defense Personnel. In the case of V.K. Nambudri v. Union of India, the High Court of Kerala clarified that the safeguards in Article 311 do not apply to defense personnel as they are governed by the Army Act, 1951. Courts cannot interfere with their dismissal based on national security and interest.
• The landmark case that defined the meaning of Civil Post and the individuals covered by it was State of U.P. v A.N. Singh. The Supreme Court of India established three tests to determine whether a person is a civil servant:
  • Existence of Master-Servant Relationship: If there is a Master-Servant relationship between the State and the individual, considering other circumstances, the person may be regarded as a civil servant.
  • State as the Selecting and Appointing Authority: The State must have the authority to select and appoint the individual freely. If this power is not freely exercised by the State Government, the person cannot be considered a civil servant.
  • Payment from State Treasury: Payment, salary, or wages should originate from the State Fund or Treasury, establishing a direct link between the person's post and the authority of the State.
• If a person meets these criteria, they are considered a civil servant and are entitled to the constitutional protections provided under the Indian Constitution.

Now the Constitutional Remedies available to such above aforesaid Civil Servants under the Statutory Provisions of Article 311 are as follows:

The Constitutional Remedies available to civil servants under the statutory provisions of Article 311 are as follows:

1. Reasonable Opportunity of being Heard
   Civil servants are entitled to a reasonable opportunity to be heard and to clarify why a particular punishment should not be imposed on them when charged with a crime or irregularity. Article 311(2) of the Indian Constitution explicitly states that a civil servant cannot be dismissed or reduced in rank without a fair and unbiased inquiry. They must be given a reasonable opportunity to defend themselves before the Disciplinary Authority or a Competent Court of Law.
   The term "Reasonable Opportunity" is broad and context-dependent. In the landmark case of Khem Chand v. Union of India, the Supreme Court clarified that a copy of the Enquiry Officer's Report must be provided to the civil servant facing charges. Failure to do so would violate Article 311. Even after the findings of the Enquiry Officer, the dismissal of a government servant was invalidated due to this violation. A similar contention was adopted in the case of Managing Director, ECIL v. B. Karunakar, where the Supreme Court held that if the Enquiry Officer is not the Disciplinary Authority, providing a copy of the Report to the alleged civil servant is mandatory, even if it contradicts any law, as non-compliance violates the Principles of Natural Justice and renders the law unconstitutional to that extent.
2. Termination or Reduction in Rank must lead to Punishment
   Article 311 remedies are available only when a civil servant is reduced in rank or dismissed as a form of punishment. If the action is taken in the normal course of administrative procedure, in public interest, or due to inefficiency or misconduct on the part of the civil servant, these remedies cannot be availed. In the case of Parshottam Lal Dhingra v. Union of India, the appellant was appointed to officiate a higher post but was later reverted to his previous position due to inefficiency and dissatisfaction with his performance. However, this action did not affect his salary, previous rank, or future promotion prospects.
   The Supreme Court ruled that to avail the remedy under Article 311, termination or reduction in rank must result in punishment. In this case, the appellant was only officiating in the post, and he did not have a legal or constitutional right to hold it permanently. Additionally, his situation implied that the post was terminable with reasonable notice by the government. Since he was neither reduced in rank nor dismissed as punishment, the Article 311 remedy was not available to him.
   Similarly, various Supreme Court judgments have clarified that suspension does not amount to punishment. Suspension is a discretionary provision under the law, and suspended civil servants are not entitled to a reasonable opportunity during suspension. However, they are entitled to receive a minimum subsistence allowance as per the law. Appeals can be made based on irregularities or dissatisfaction with the inquiry procedure, but only after receiving a final order from the Enquiry Commission or another Competent Authority.

Compulsory Retirement Must Result in Punishment

• To avail the remedy under Article 311, even in cases of compulsory retirement, it must result in punishment. Premature retirement of a civil servant, either due to completing a certain number of years in government service or reaching a particular age as per state service rules, does not trigger the provisions of Article 311. The authority to compulsorily retire a government servant is derived from the Doctrine of Pleasure embedded in Article 310 of the Indian Constitution.
• The primary aim of implementing compulsory retirement is to remove older employees and make way for new and fresh talent to maintain efficiency and innovative skills in the administration of law, order, and justice.
• Service rules typically outline the conditions for compulsory retirement based on age or years in government service. However, while doing so, a civil servant's Confidential Report is closely examined to investigate any misconduct or inefficiency on their part, which is a common deciding factor for compulsory retirement.
• In contrast, a civil servant may pursue other remedies as prescribed in their respective service rules, but they are not entitled to the remedy provided under Article 311. The key guidelines for compulsory retirement of a civil servant, as laid down by the Supreme Court in the landmark case of State of Gujarat v. Umedbhai M. Patel, are as follows:
  • If a public servant is no longer efficient and useful to the administration, they may be compulsorily retired.
  • Compulsory retirement may be necessary in the public interest or for genuine reasons.
  • The decision to retire must not be haphazard and should adhere to procedural requirements, such as conducting a departmental inquiry or obtaining recommendations from a review committee if deemed necessary.
  • Compulsory retirement under these circumstances will not amount to punishment and will not trigger the provisions of Article 311. Instead, the civil servant can seek remedies under the relevant service rules.
  • Any adverse entries in the Confidential Report or pending corruption charges or misconduct inquiries will be considered while making such retirement decisions.
  • If an officer receives promotions or prominent roles in the administration despite pending investigations or adverse entries in their Confidential Report, it may be viewed as undue favoritism.
  • Private complaints or uncommunicated entries not included in the Confidential Report may also be considered during the review of compulsory retirement.
  • Compulsory retirement should not, under any circumstances, result in the forfeiture of a civil servant's rights, such as pension, gratuity, and other benefits, nor should it impose any monetary punishment or penalty.
  • It is widely understood that based on the above guidelines, civil servants may be compulsorily retired if the authorities or the government at the time deem it appropriate, as long as they operate within the framework of guidelines, procedures, service rules, and discretionary powers vested in the government. This must lead to punishment; otherwise, it would trigger the provisions of Article 311.

Exceptions to Article 311 of the Indian Constitution

Article 311(2) offers protection and safeguards to civil servants against unfair and excessive punishment. However, there are certain exceptions attached to this article where the remedies provided in Article 311 are not available to the civil servant, and they cannot seek such remedies.
These exceptions include:

1. Conviction on a Criminal Charge: If a civil servant is dismissed, reduced in rank, or terminated due to a criminal conviction, they cannot seek the remedy of reasonable opportunity as outlined in Article 311. This is based on the principle that individuals seeking legal remedies must come with clean hands. If the civil servant is found guilty of wrongdoing or moral turpitude, they cannot use this provision to challenge their dismissal.
   In the case of K. Venkateshwarlu v. State of A.P., it was established that if a civil servant is convicted in court, it is expected that disciplinary proceedings will follow. Even if the civil servant is acquitted, but not honorably, a departmental inquiry can still be conducted.
2. Where Holding an Inquiry is Impractical: If the relevant authority believes that it is necessary to dismiss or remove a civil servant from their post for reasons of national security or public interest, they can do so without conducting an inquiry. The authority must document this decision in writing.
   In the case of Jaswant Singh v. State of Punjab, it was ruled that baseless claims that an appellant would harm witnesses or disrupt a departmental inquiry, without concrete evidence, are not acceptable. Such a dismissal order would be set aside, and the civil servant would be reinstated with backdated allowances and salaries.
3. Exceptions to Principles of Natural Justice: Article 311 expressly provides exceptions where the principles of natural justice, including the right to be heard, do not apply. This occurs when the President or Governor is satisfied that it is feasible to remove a civil servant due to public interest, public good, or public policy. In such cases, the remedy provided in Article 311 is not available.
   Despite these exceptions, civil servants have two additional remedies:
   a. They can appeal within their department to a superior or the Principal Secretary of the Department, who has statutory powers to grant relief to the aggrieved civil servant.
   b. They can seek recourse through the judiciary under Article 32 or Article 226, in the form of a judicial review. The court will determine if the punishment imposed was arbitrary or excessive or if the procedure followed was justifiable based on facts and evidence.
4. Proceedings Beyond Reasonable Doubt: In disciplinary proceedings against a civil servant, the standard of proof beyond a reasonable doubt does not apply. Instead, a sense of reasonableness must prevail, and the evidence should not be too remote or hypothetical. The actions of a prudent person in reasonable circumstances should be considered before reaching a conclusion. Active evidence against the civil servant is required for a valid and justified investigation.
5. Reasonable and Acceptable Quantum of Punishment: While the authority responsible for disciplinary proceedings has discretion in determining the punishment, it must not be excessive or unreasonable compared to the severity of the offense committed. Excessive punishment can be challenged in a court of law as unwarranted.

In summary, Article 311 provides remedies to civil servants, with the condition that their dismissal or reduction in rank must be a form of punishment. However, there are exceptions outlined above where these remedies are not available.