UPSC and SPSC | Constitutional Law - CLAT PG PDF Download

Introduction

• The Constitution of India establishes the Union Public Service Commission (UPSC) and the State Public Service Commission (SPSC) as advisory bodies. These commissions provide guidance on matters referred to them by the President of India or the Governors of the States. However, the governments have the discretion to accept or reject this advice.
• India operates under a system of responsible self-governance, where the powers and responsibilities of the council of ministers cannot be delegated to employees or other organizations. In essence, the UPSC serves as the central recruitment agency, while the SPSC functions as the state-level recruitment agency.

 Functions of the Union Public Service Commission and State Public Service Commission 

• Appointment of Candidates: 
•  Special Qualifications:  For services requiring specific qualifications, the UPSC and SPSC assist in formulating and implementing joint recruitment schemes.
•  Advice on Recruitment Methods:  The commissions advise the President and Governor on recruitment methods for civil services and posts.
•  Appointment Principles:  They establish principles for appointments, promotions, and transfers of civil servants, ensuring suitability checks for candidates.
•  Disciplinary Matters:  The UPSC and SPSC handle disciplinary issues concerning individuals serving under the Government of India or State Governments, including memorials or petitions related to such matters.

 Other Functions of UPSC and SPSC 

•  Conducting Examinations and Interviews:  Both commissions are responsible for conducting examinations for appointments to Union and State services, as well as interviews for direct recruitment of candidates.
•  Advisory Role:  They provide advice on matters referred to them by the President or Governor and on issues related to Union or State services.
•  Additional Functions:  UPSC and SPSC may exercise additional functions assigned by Acts of Parliament or State legislatures concerning services of the Union, State, or local authorities.
•  Assistance in Joint Recruitment:  UPSC may assist states in framing and operating joint recruitment schemes for state services if requested by two or more states.

 Consultation with Public Service Commissions 

• The Government of India and State legislatures must consult the Union Public Service Commission (UPSC) and State Public Service Commission (SPSC) on various matters.
• However, the President can exempt certain situations from this requirement.

 Exemptions from Consultation 

•  According to the regulations established by the President in 1958  , the President is not obliged to consult the UPSC in specific cases.
• These cases include:
•  Posts with appointment authority granted by the Constitution  : When the Constitution explicitly grants appointment authority to the President, such as for the chairman or members of a Board, Tribunal, Commission, Committee, or similar authority.
•  Posts related to the North-East Frontier Agency  : Positions related to the administration of the North-East Frontier Agency or any service or post where the commission has agreed that consultation is unnecessary.
•  Temporary and officiating appointments  : These can be made without consulting the UPSC if the incumbent is not expected to hold the position for more than a year. However, the UPSC must be informed of such appointments as soon as they are made.
•  Reservations for backward classes, Scheduled Castes, and Scheduled Tribes  : There is no need to refer to the commission for the reservation of posts in favor of these groups.

 Independence of U.P.S.C. and S.P.S.C 

•  Security of Tenure  : The chairman or a member of the U.P.S.C. or S.P.S.C. can only be removed from office by the President in the manner and on the grounds specified in the Constitution, ensuring their job security.
•  Conditions of Service  : The President determines the conditions of service for the chairman and members of U.P.S.C., while the Governor does the same for S.P.S.C. These conditions cannot be changed to their disadvantage after their appointment.
•  Financial Independence  : The salaries, allowances, and pensions of the chairman and members of U.P.S.C. and S.P.S.C. are charged on the Consolidated Fund of India and the Consolidated Fund of State, respectively. This is not subject to the vote of Parliament for U.P.S.C. or the state legislative assembly for S.P.S.C.
•  Post-Retirement Employment  : The chairman of U.P.S.C. is not eligible for further employment in the Government of India or any state after leaving office. In contrast, the chairman of S.P.S.C. can be appointed as the chairman of U.P.S.C. or any other S.P.S.C.
•  Membership Eligibility  : A member of U.P.S.C. can be appointed as its chairman or as a member of a State Public Service Commission, but not for other government positions. A member of S.P.S.C. can be appointed as chairman or member of U.P.S.C. or any S.P.S.C.
•  Reappointment Restrictions  : The chairman or a member of U.P.S.C. and S.P.S.C. is not eligible for reappointment to the same office for a second term.

Removal of Members from Public Service Commissions

According to Article 317 of the Constitution, members of the  Union Public Service Commission  (UPSC) and  State Public Service Commissions  (SPSCs) can be removed by the President or the Governor, respectively, before the expiration of their term under certain circumstances. These circumstances include:

•  Bankruptcy:  If a member becomes bankrupt or insolvent.
•  Outside Employment:  If a member engages in any paid employment outside their official duties.
•  Mental or Bodily Infirmity:  If a member becomes mentally or physically incapacitated.
•  Misbehavior:  If a member is found guilty of misbehavior.

 Misbehavior and Supreme Court Inquiry 

• In cases of misbehavior, the  Supreme Court  conducts an inquiry.
• If the member is found guilty, the President can remove them from the commission.
• The  Supreme Court's decision  in such matters is binding on the President.

 Suspension During Inquiry 

• The President can suspend members of the  Union Public Service Commission  during the  Supreme Court inquiry  .
• In the case of the  State Public Service Commission  , this power of suspension is held by the  Governor of the State  .

 Concept of Joint State Public Service Commission (J.S.P.S.C) 

The Joint State Public Service Commission (J.S.P.S.C) is a constitutional provision in India, first introduced in the Government of India Act, 1935, for conducting joint recruitment examinations for two or more states. Here are the key points regarding the J.S.P.S.C:

 Constitutional Provision 

• The Constitution of India allows for the establishment of a J.S.P.S.C. when two or more states request assistance from the Union Public Service Commission (U.P.S.C) for conducting a joint examination.

 Formation and Statutory Body 

• The J.S.P.S.C. is created by an act of Parliament at the request of the concerned state legislatures, making it a statutory body.
• For example, Haryana had a J.S.P.S.C. temporarily during its bifurcation from Punjab.

 Appointment and Tenure 

• The  Chairman  and  members  of the J.S.P.S.C. are appointed by the  President of India  .
• The tenure of the members is either six years or until they reach the age of 62 years, whichever is earlier.

 Removal and Resignation 

• Members can be removed or suspended by the  President  .
• They can also submit their resignation directly to the President.

 Terms and Conditions 

• The President determines the terms and conditions of office for J.S.P.S.C. members.
• The number of members in the Commission is also decided by the President.

 Annual Performance Report 

• The J.S.P.S.C. presents its annual performance report to the governors of the concerned states.
• The governors then place the report before their respective state legislatures.

 Service Needs of States 

• The U.P.S.C. can also serve the needs of a state upon the request of the state governors and with the approval of the President.

 Conclusion 

• The  Public Service Commissions  are essential for maintaining the quality and merit-based nature of the Indian civil services.
• Though they play a crucial role, there is room for  improvement and reform  to enhance their efficiency.
• The commissions should evolve into  think-tanks  that address broader personnel issues beyond just recruitment, adapting to the changing needs of society.
• As  constitutional and independent authorities  , Public Service Commissions are vital for the fair selection and appointment of individuals to public services.
• They must operate  independently  and  objectively  , free from external influences, to maintain their integrity and effectiveness.
• Unfortunately, some commissions in certain states have struggled to uphold these  standards  .
• The  Indian Constitution  establishes four key watchdogs—the  Supreme Court  , the  Election Commission of India  , the  Comptroller and Auditor General of India  , and the  Union Public Service Commission  —to oversee various functions of the state.
• The  Supreme Court  monitors judicial functions, the  Election Commission of India  ensures free and fair elections, the  Comptroller and Auditor General  oversees financial matters, and the  Union Public Service Commission  guarantees merit-based recruitment.
• Alongside the judiciary and the Election Commission, the  U.P.S.C.  is one of the few autonomous institutions in the country.
• Originally established by the  Government of India Act, 1935  , the Public Service Commissions were given constitutional status as  autonomous bodies  by the  Constitution of India  .
• It is important for citizens to understand and be aware of these organizations and their functions.

 Constitutional Protection to Civil Servants 

Civil servants are seen as the backbone of the administration in India. To ensure the country's progress, it is crucial to protect them from political and personal influences. The Constitution of India includes provisions to safeguard the interests of civil servants while also considering national security and public interest.

•  Part XIV  of the Constitution deals with Services under the Union and the State.
•  Article 309  empowers Parliament and State legislatures to regulate the recruitment and conditions of service for public services and posts.

 Doctrine of Pleasure 

In England, a civil servant holds office during the pleasure of the Crown, meaning their services can be terminated at any time without reason.

•  Article 310  of the Indian Constitution incorporates this doctrine, stating that members of defense services, civil services of the Union, All India services, and certain civil posts hold office during the pleasure of the President.
• Members of civil services of a State or holders of civil posts under a State hold office during the pleasure of the Governor.

 Limitations on Power 

• The power of dismissal, removal, or reduction in rank is not absolute.
•  Article 311  imposes restrictions on the President or Governor's power in these matters.

 Article 311 of the Indian Constitution 

Article 311 provides certain  protections  to members of the civil services in India regarding their dismissal, removal, or reduction in rank.

 Key Provisions of Article 311 

•  Protection Against Dismissal by Subordinate Authority:  No member of the civil service of the Union, an All India service, a civil service of a State, or a person holding a civil post under the Union or a State can be dismissed or removed by an authority subordinate to the one that appointed them.
•  Inquiry Requirement:  A civil servant cannot be dismissed, removed, or reduced in rank without an inquiry. They must be informed of the charges against them and given a reasonable opportunity to defend themselves.

 Applicability and Definitions 

• The safeguards under Article 311 apply only to civil servants  (public officers)  and not to defense personnel.
• A person holds a civil post if there is a  master-servant relationship  between the State and the individual. This relationship is established if the State has the right to select, appoint, control the work, and pay the wages of the individual.

 Dismissal vs. Removal 

• Dismissing and removing an individual are similar terms, but they have specific legal meanings in Service Rules.
•  Dismissing  means barring a person from future employment, while  removing  does not impose such a ban.
• Removal by a subordinate authority does not require the same authority that made the appointment or their direct superior to carry out the action. It is sufficient if the removing authority is of the same or a co-ordinate rank as the appointing authority.

 Reduction in Rank 

• Reduction in rank refers to moving from a higher rank or post to a lower one, not merely losing a position within the same rank or cadre.
• In the case of State of Punjab v. Kishan Das, the Supreme Court ruled that a simple reduction in salary within the same cadre does not constitute a reduction in rank.

 Provisions for Dismissal 

 Inquiry 

• According to  Article 311(2)  , an inquiry is mandatory before dismissing, removing, or reducing a civil servant's rank.
• During this inquiry, the civil servant must be informed of the charges against them and given a reasonable opportunity to respond.

 Informed of the Charges 

• Being "informed of the charges" involves serving a charge sheet that details the reasons for the charges and the allegations associated with each charge against the officer.

 Reasonable Opportunity of Being Heard 

• In the case of  Khem Chand v Union of India  , the Supreme Court defined 'reasonable opportunity' as:

•  (a)  the chance to deny guilt and prove innocence, which requires knowledge of the charges and allegations;

•  (b)  the opportunity to cross-examine witnesses and present personal testimony;

•  (c)  the chance to argue against the proposed punishment.

 Termination of Service: When Amounts to Punishment 

• Protection under  Article 311  applies only when dismissal, removal, or reduction in rank is punitive.
• In  Parshotham Lai Dhingra v Union of India  , the Supreme Court established two tests to determine punishment:

•  (1)  whether the employee's rank was altered under contract or rules, and

•  (2)  whether the employee faced negative consequences.

• If both are true, it constitutes punishment.
• Suspension of a government employee is not considered punishment. It is neither dismissal, removal, nor reduction in rank, and therefore, the employee is not entitled to a reasonable opportunity to be heard.

 Exclusion of Opportunity to be Heard 

• Article 311(2) states that the opportunity to be heard is not required in the following situations:

•  (a)  when a person is dismissed, removed, or demoted due to conduct leading to a criminal conviction;

•  (b)  when the authority is satisfied, for recorded reasons, that holding an inquiry is impractical;

•  (c)  when the President or Governor deems it expedient, for state security reasons, to avoid an inquiry.

 Conviction and Dismissal 

• When an employee is convicted on criminal charges, they do not need to be given an opportunity to be heard before dismissal from service.
• However, in the case of  Divisional Personal Officer, Southern Railway v T. R. Chellappan  , the Supreme Court ruled that dismissing, removing, or reducing in rank without an inquiry was unconstitutional and illegal. The court emphasized that objective consideration is only possible when the delinquent employee is heard.
• In  Union of India v Tulshiram Patel  , the court held that dismissing, removing, or reducing in rank of a person convicted on criminal charges is in the public interest and does not violate Article 311(2) of the Constitution. This decision overruled the earlier ruling in Chellappan's case.

 Compulsory Retirement 

• Compulsory retirement is not considered punishment. It is done in the  public interest  and does not carry a stigma for the government servant. Therefore, the employee is not entitled to an opportunity to be heard before compulsory retirement from service.
• The Supreme Court of India has provided guidelines regarding compulsory retirement. In the case of  State of Gujarat v Umedbhai M. Patel  , the court established the following principles:

•  1.  Public servants can be compulsorily retired when their service is deemed no longer useful to general administration.

•  2.  Compulsory retirement is generally not considered a punishment under Article 311 of the Constitution.

•  3.  To improve administration, it may be necessary to remove underperforming employees, but decisions should consider the entire service record.

•  4.  Any adverse entries in the confidential record should be taken into account when making such decisions.

•  5.  Even uncommunicated entries in the confidential report can be considered.

•  6.  Compulsory retirement should not be used as a shortcut to avoid departmental inquiries when such inquiries are more appropriate.

•  7.  If an officer is promoted despite adverse entries in the confidential report, it supports the officer's case.

•  8.  Compulsory retirement should not be imposed as a punitive measure.

 Further Clarifications on Compulsory Retirement 

• In  Baikunth Nath v Chief Medical Officer  , the court clarified further regarding compulsory retirement:

•  (1)  Compulsory retirement is not a punishment and carries no stigma.

•  (2)  The order must be made in public interest and reflects the government's subjective satisfaction.

•  (3)  Principles of natural justice do not apply to compulsory retirement, but courts may intervene if the order is made in bad faith, lacks evidence, or is arbitrary.

•  (4)  The government should consider the entire service record, particularly the later years' performance, before making the decision.

•  (5)  Compulsory retirement cannot be challenged simply because adverse remarks were considered.

 Temporary Employees and Probationers 

• In the case of  State of Punjab & Anr v Sukh Raj Bahadur  , the Supreme Court laid down principles regarding the applicability of Article 311 to temporary servants and probationers:

•  1.  Temporary servants or probationers can have their services terminated according to the rules of their employment, and such termination alone would not invoke Article 311 of the Constitution.

•  2.  The circumstances surrounding the termination of service need to be examined in each case, regardless of the motive behind the decision.

•  3.  If the termination order brings any negative consequences to the public servant or questions their character or integrity, it is considered punitive, irrespective of whether the individual is a probationer or a temporary servant.

•  4.  An unexceptional termination order preceded by an inquiry to determine the retention of the public servant does not trigger Article 311 of the Constitution.

 Judicial Norms and Constitutional Provisions 

• Judicial norms and constitutional provisions aim to strengthen the civil service by providing civil servants with adequate job security.
• However, there are instances where these protective measures may be misused by civil servants to exploit their official positions without fear of dismissal.
• Disciplinary actions against corrupt officials by government departments can be lengthy and complex.
• The requirement of providing a "reasonable opportunity of being heard" in departmental inquiries aligns with the Principles of Natural Justice, which encompass various fair hearing norms.
• Violations of the Principles of Natural Justice can lead to courts nullifying disciplinary proceedings due to bias or procedural irregularities.