CHAPTER 30
Services under the Union and the States
(Articles 308-323)
In this Part, unless the context otherwise requires, the expression "State" does not include the State of Jammu and Kashmir.
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 service and posts in connection with the affairs of the Union or of any State:
Provided that it shall be competent for the President or such person as he may direct in the case of services and posts in connection with the affairs of the Union, and for the Governor of a State or such person as he may direct in the case of services and posts in connection with the affairs of the State, to make rules regulating the recruitment and the conditions of service of persons appointed, to such services and posts until provision in that behalf is made by or under an Act of the appropriate Legislature under this article, and any rules so made shall have effect subject to the provisions of any such Act.
The law made by Parliament or legislature of a State under this article in subject to restrictions in other provisions of the Constitution e.g., fundamental rights or restrictions in article 311 and the rules made by the President and Governor have been expressly made subject to Act of Parliament and State Legislature respectively. Thus, if there is no law made by Parliament and rules are made by the President or person authorised by him and later on Parliament passes an Act the provisions of which are inconsistent with such rules, the rules will cease to be effective.
(1) 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.
(2) Notwithstanding that a person holding a civil post under the Union or a State holds office during the pleasure of the President or, as the case may be, of the Governor of the State, any contract under which a person, not being a member of a defence service or of an all-India service or of a civil service of the Union or a State, is appointed under this Constitution to hold such a post may, if the President or the Governor as the case may be, deems it necessary in order to secure the services of a person having special qualifications, provide for the payment to him of compensation, if before the expiration of an agreed period that post is abolished or he is, for reasons not connected with any misconduct on his part, required to vacate that post.
Doctrine of Pleasure.-
In England, the common law rule is that a civil servant holds his office during the pleasure of the crown. This connotes that there is no contract that gives the employee a remedy for its breach. His service can be terminated at any time without assigning any reason. For the same reason, a civil servant cannot claim arrears of salary due or damages for wrongful dismissal, nor can he enforce by action any of the conditions of service. The doctrine of pleasure is based upon public policy that a public servant whose continuance in office is not or is against the public interest must be relived of it. On the same policy consideration of the doctrine of pleasure has been introduced in article 310(1) of the Constitution with the notable qualification that it is subject to the express provisions of the Constitution.
Restrictions on the Doctrine of Pleasure.-
The Doctrine of Pleasure embodies in article 310, though not subject to legislative power is not, however, unlimited. On its exercise, the Constiution imposes the following several qualifications-
(1) The 'pleasure' under article 310 cannot be exercised in a discriminatory manner and is controlled by the fundamental rights, especially articles 14, 15 and 16.
Article 14 can be invoked when a person's services are terminated in a discriminatory manner. Article 15(1) comes into play if a person's services are terminated on account of religious, bigotry, social prejudice, casteism, provincialism or gender. Article 16(1) imposes equable treatment and bars arbitrary discrimination.
(b) Under article 320(3)(c), the Union or the State Public Service Commission is to be consulted on all disciplinary matters affecting a person serving in a civil capacity under the Central or a State Government.
(c) When a person is appointed to a civil post or contract for a fixed term, the contract may be extended if it is necessary in order to secure the services of a person having special qualification provided for the payment of compensation to him.
State of Uttar Pradesh v. Babu Ram Upadhya, MANU/SC/0312/1960 : AIR 1961 SC 751: (1961) 1 SCA 593: (1961) 1 Cr LJ 773: (1961) 2 SCR 679: ILR (1961) 1 All 509. The Supreme Court observed that the power of the Governor to dismiss at pleasure, subject to the provisions of article 311, is not an executive power under article 154, but a constitutional power and is not capable of being delegated to officers subordinate to him.
(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 an 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 is 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.
Constitutional Protection to Civil Servants.-
The preceding article enacts the general principle that a government servant holds office during the pleasure of the Government. This article, which has been called "unique in world constitutionalism", places two restrictions on the prerogative of dismissal at pleasure, these are-
(i) that persons employed in civil capacities under the Union or States shall not be dismissed or removed by an authority subordinate to that by which they were appointed, and
(ii) no such person shall be dismissed or removed or reduced in rank except after an inquiry as provided in clause (2).
These restrictions are the constitutional safeguard for civil servants.
Persons who may claim protection of article 311.-
The two safeguards provided apply only to persons who are members of civil service of the Union or of an all-India service or of a civil service of a State or to persons who hold a civil post under the Union or a State. These safeguards are not applicable to members of defence forces or to any post connected with defence. Thus, the protection under article 311 is not available to military personnel who are governed by the Army Act. Their employment can be terminated without assigning any reasons.
Purshotam Lal Dhingra v. Union of India, MANU/SC/0126/1957 : AIR 1958 SC 36: 1958 MPC 165: 1958 SCA 37: 1958 SCJ 217: 1958 BLJR 285: 1958 All LJ 372: MANU/SC/0126/1957 : 1958 SCR 828. The appellant was appointed to officiate on a higher post. After two years' service the appellant was reverted to his original post on the ground of unsatisfactory work. It was said that the order of his reversion would not stand in the way of his being considered again for promotion if in the future his work and conduct justified.
The Supreme Court held that the appellant had no right to the post as he was merely officiating in the post and the implied term of such appointment was that it was terminable at any time on reasonable notice by the Government. The appellant was not reduced in rank by way of punishment and therefore, he cannot claim the protection of article 311(2).
Civil Post.-
Article 311 is applicable only to one class of public officers i.e., those who hold a civil post under the union or the States. The term 'civil post' means an appointment to an office or employment on the civil side of the administration as distinguished from the military side. There must exist a relationship of master and servant between the states and the person said to be holding a post under it.
State of Uttar Pradesh v. Audh Narain Singh, MANU/SC/0274/1964 : AIR 1965 SC 360: (1964) 1 SCWR 506: 1964 All LJ 777: 1964 (2) SCJ 590: (1964) 7 SCR 89. 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.
No Removal by Subordinate Authority.-
The first safeguard is that no member of a civil service or holding a civil post can be dismissed or removed by any authority subordinate to the authority by which he was appointed.
Mahesh Prasad v. State of Uttar Pradesh, MANU/SC/0045/1954 : AIR 1955 SC 70: 1955 Cr LJ 249: 1955 BLJR 98: 1955 All LJ 87: 1955 SCA 65: 1955 SCJ 153: MANU/SC/0045/1954 : 1955 SCR 965. The person appointed by the Divisional Personnel Officer, E.I.R. was dismissed by the Superintendent, Power EIR. The court held the dismissal valid as both the officers were of the same rank.
Reasonable opportunity to defend.-
Article 311(2) lays down that a civil servent cannot be dismissed or removed or reduced in rank unless he has been given a reasonable opportunity to show cause against the action proposed to be taken against him.
Managing Director, ECIL, Hyderabad v. B. Karunakar, MANU/SC/0237/1994 : (1993) 4 SCC 727: 1994 AIR SCW 1050: JT 1993 (6) SC 1: 1994 SCC (LandS) 1009: 1994 (1) SCT 319: 1993 (3) Serv LJ SC 193. The Supreme 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 that disciplinary authority takes its decision on the charges, is a denial of the reasonable opportunity to the employee to prove his innocence and is a breach of the principle of natural justice.
In Parshotam Lal Dhingra v. Union of India, MANU/SC/0126/1957 : AIR 1958 SC 36, the Supreme Court has laid down two tests to determine whether the termination is by way of punishment-
(1) Whether the servant had a right to hold the post or the rank?
(2) Whether he has been visited with evil consequences?
The Supreme Court also held that the constitutional guarantee of reasonable opportunity is available to both permanent and temporary servants.
Khem Chand v. Union of India, MANU/SC/0120/1957 : AIR 1958 SC 300: 1958 SCA 222: 1958 SCJ 497: (1958) 1 Mad LJ (SC) 169: 1958 (I) LLJ 167: 1958 SCR 1080. The Supreme Court of India has said that reasonable opportunity envisaged to the Government servant by the provision contained in article 311(2) includes-
(a) an opportunity to deny his guilt and establish innocence which he can only do if he is informed about the charges levelled against him and the allegations on which such charges are based;
(b) an opportunity to defend himself by cross-examining the witnesses produced against him and by examining any other witness in support of his defence.
(1) Notwithstanding anything in Chapter VI of Part VI or Part XI, if the Council of States has declared by resolution supported by not less than two-thirds of the members present and voting that it is necessary or expedient in the national interest so to do, Parliament may by law provide for the creation of one or more all-India services (including an all-India judicial service) common to the Union and the States, and, subject to the other provisions of this Chapter, regulate the recruitment, and the conditions of service of persons appointed, to any such service.
(2) The services known at the commencement of this Constitution as the Indian Administrative Service and the Indian Police Service shall be deemed to be services created by Parliament under this article.
(3) The all-India judicial service referred to in clause (1) shall not include any post inferior to that of a district judge as defined in article 236.
(4) The law providing for the creation of the all-India judicial service aforesaid may contain such provisions for the amendment of Chapter VI of Part VI as may be necessary for giving effect to the provisions of that law and no such law shall be deemed to be an amendment of this Constitution for the purposes of article 368.
This article empowers Parliament to create new all-India services common to the Union and the States. But before Parliament can setup an all-India service, it is necessary that a resolution in the Council of States supported by not less than two-thirds of the members present and voting should have been passed declaring that it is necessary or expedient in the national interest to do so.
The 42nd Amendment has amended to article 312 of the Constitution which provides for the creation of an All-India Judicial Service by Parliament. The new clause (3) says that such All India Judicial Service shall not include any post inferior to that of a District Judge as defined in article 236. The new Clause. (4) makes it clear that a law providing for the creation of the All-India Judicial Service shall not be deemed to be an amendment of this Constitution for the purpose of article 368.
The object of the creation of All-India Judicial Service is to ensure greater inter-State Co-ordination and implementation of the policies of the Central Government through these officers. This also enables the Central Government to exercise a control over States in matters of execution of Union laws. It is hoped that the these services should be left under the complete control of the Judiciary and not under the Government. This would, indeed, be essential for maintaining independence and impartiality of the Judiciary.
(1) Subject to the provisions of this article, there shall be a Public Service Commission for the Union and a Public Service Commission for each State.
(2) Two or more States may agree that there shall be one Public Service Commission for that group of States, and if a resolution to that effect is passed by the House or, where there are two Houses, by each House of the Legislature of each of those States, Parliament may by law provide for the appointment of a Joint State Public Service Commission (referred to in this Chapter as Joint Commission) to serve the needs of those States.
(3) Any such law as aforesaid may contain such incidental and consequential provisions as may be necessary or desirable for giving effect to the purposes of the law.
(4) The Public Service Commission for the Union, if requested so to do by the Governor of a State, may, with the approval of the President, agree to serve all or any of the needs of the State.
(5) References in this Constitution to the Union Public Service Commission or a State Public Service Commission shall, unless the context otherwise requires, be construed as references to the Commission serving the needs of the Union or, as the case may be, the State as respects the particular matter in question.
The Constitution establishes a Public Services Commission in each State. It is possible for two or more States to have a Joint Public Service Commission. The basic policy of the Constitution is that each state should have its own Public Service Commission, but if for administrative or financial reasons it is not possible for each State to have Commission of its own, two or more States may have a joint Public Service Commission. The members of the Union are to be appointed by the President or of the State Commission are appointed by the Governor. But one-half of the members of every Public Service Commission shall be persons who, up to the dates of their respective appointments, have held office for at least ten years under the Government. Normally, a member hold a office for a term of six-years. But if a member of the Union Commission attains the age of sixty-five years and of a State Commission sixty-two, he shall have to retire though he may not completed the term of six years.
(1) The Chairman and other members of a Public Service Commission shall be appointed, in the case of the Union Commission or a Joint Commission, by the President, and in the case of a State Commission, by the Governor of the State.
State of Mysore v. R.V. Bidap, MANU/SC/0397/1973 : AIR 1973 SC 2555: (1973) 2 SCWR 373: 1973 SCC (Lab) 538: MANU/SC/0397/1973 : 1973 II LLJ 418, A question about the expiration of the constitutionally guaranteed tenure of office of a members of the Public Service Commission arose, who in the middle of his term, is appointed as its Chairman and claims a fresh, six years spell, or in other words, does he continue as Chairman only for the remaining period of his initial six years spell. The Supreme Court held that a member, when appointed as Chairman in the middle of his term, starts a new six years term subject to other provisions of the constitution.
The tenure of his office starts under article 316(2) from the date on which he enters upon his office, which in the case of Chairman, appointed as such or originally as member and later elevated as chairman, begins when he starts functioning as Chairman.
(1) Subject to the provisions of clause (3), the Chairman or any other member of a Public Service Commission shall only be removed from his office by order of the President on the ground of misbehaviour after the Supreme Court, on reference being made to it by the President, has, on inquiry held in accordance with the procedure prescribed in that behalf under article 145, reported that the Chairman or such other member, as the case may be, ought on any such ground to be removed.
(2) The President, in the case of the Union Commission or a Joint Commission, and the Governor in the case of a State Commission, may suspend from office the Chairman or any other member of the Commission in respect of whom a reference has been made to the Supreme Court under clause (1) until the President has passed orders on receipt of the report of the Supreme Court on such reference.
(3) Notwithstanding anything in clause (1), the President may by order remove from office the Chairman or any other member of a Public Service Commission if the Chairman or such other member, as the case may be,-
(a) is adjudged an insolvent; or
(b) engages during his term of office in any paid employment outside the duties of his office; or
(c) is, in the opinion of the President, unfit to continue in office by reason of infirmity of mind or body.
(4) If the Chairman or any other member of a Public Service Commission is or becomes in any way concerned or interested in any contract or agreement made by or on behalf of the Government of India or the Government of a State or participates in any way in the profit thereof or in any benefit or emolument arising therefrom otherwise than as a member and in common with the other members of an incorporated company, he shall, for the purposes of clause (1), be deemed to be guilty of misbehaviour.
In Re: Smt. Sayalee Sanjeev Joshi, MANU/SC/1293/2005 : AIR 2005 SC 4419: 2005 AIR SCW 5334: JT 2005 (10) SC 206: MANU/SC/1293/2005 : (2005) 8 SCC 501: 2005 (7) SCJ 578: (2005) 8 SCALE 452. The Court has propounded the approach to its exercise of jurisdiction on a reference. Its task is to find out as a fact whether materials disclosed conduct on the part of a member which, would constitute 'misbehaviour' within article 317(1) of the Constitution. It has to consider admissibility and relevance of evidence advanced and cannot proceed on the basis of suspicion instead of proof.
In the case of the Union Commission or a Joint Commission, the President and, in the case of a State Commission, the Governor of the State may by regulations-
(a) determine the number of members of the Commission and their conditions of service; and
(b) make provision with respect to the number of members of the staff of the Commission and their conditions of service:
Provided that the conditions of service of a member of a Public Service Commission shall not be varied to his disadvantage after his appointment.
On ceasing to hold office-
(a) the Chairman of the Union Public Service Commission shall be ineligible for further employment either under the Government of India or under the Government of a State;
(b) the Chairman of a State Public Service Commission shall be eligible for appointment as the Chairman or any other member of the Union Public Service Commission or as the Chairman of any other State Public Service Commission, but not for any other employment either under the Government of India or under the Government of a State;
(c) a member other than the Chairman of the Union Public Service Commission shall be eligible for appointment as the Chairman of the Union Public Service Commission or as the Chairman of a State Public Service Commission, but not for any other employment either under the Government of India or under the Government of a State;
(d) a member other than the Chairman of a State Public Service Commission shall be eligible for appointment as the Chairman or any other member of the Union Public Service Commission or as the Chairman of that or any other State Public Service Commission, but not for any other employment either under the Government of India or under the Government of a State.
According to article 319, the members of the Union and the State Public Service Commission are debarred from reappointment after the expiry of their term of office. They are also ineligible for any other employment under the Central or State Governments. This provision is necessary in order to ensure impartiality.
(1) It shall be the duty of the Union and the State Public Service Commissions to conduct examinations for appointments to the services of the Union and the services of the State respectively.
(2) It shall also be the duty of the Union Public Service Commission, if requested by any two or more States so to do, to assist those States in framing and operating schemes of joint recruitment for any services for which candidates possessing special qualifications are required.
(3) The Union Public Service Commission or the State Public Service Commission, as the case may be, shall be consulted-
(a) on all matters relating to methods of recruitment to civil services and for civil posts;
(b) on the principles to be followed in making appointments to civil services and posts and in making promotions and transfers from one service to another and on the suitability of candidates for such appointments, promotions or transfers;
(c) on all disciplinary matters affecting a person serving under the Government of India or the Government of a State in a civil capacity, including memorials or petitions relating to such matters;
(d) on any claim by or in respect of a person who is serving or has served under the Government of India or the Government of a State or under the Crown in India or under the Government of an Indian State, in a civil capacity, that any costs incurred by him in defending legal proceedings instituted against him in respect of acts done or purporting to be done in the execution of his duty should be paid out of the Consolidated Fund of India, or, as the case may be, out of the Consolidated Fund of the State;
(e) on any claim for the award of a pension in respect of injuries sustained by a person while serving under the Government of India or the Government of a State or under the Crown in India or under the Government of an Indian State, in a civil capacity, and any question as to the amount of any such award, and it shall be the duty of a Public Service Commission to advise on any matter so referred to them and on any other matter which the President, or, as the case may be, the Governor of the State, may refer to them:
Provided that the President as respects the all-India services and also as respects other services and posts in connection with the affairs of the Union, and the Governor as respects other services and posts in connection with the affairs of a State, may make regulations specifying the matters in which either generally, or in any particular class of case or in any particular circumstances, it shall not be necessary for a Public Service Commission to be consulted.
(4) Nothing in clause (3) shall require a Public Service Commission to be consulted as respects the manner in which any provision referred to in clause (4) of article 16 may be made or as respects the manner in which effect may be given to the provisions of article 335.
(5) All regulations made under the proviso to clause (3) by the President or the Governor of a State shall be laid for not less than fourteen days before each House of Parliament or the House or each House of the Legislature of the State, as the case may be, as soon as possible after they are made, and shall be subject to such modifications, whether by way of repeal or amendment, as both Houses of Parliament or the House or both Houses of the Legislature of the State may make during the session in which they are so laid.
Keshava v. State of Mysore, AIR 1956 Mys 20: ILR (1955) Mys 597. It is the duty of the UPSC to conduct examinations for appointment to the service of the Union. This does not mean that the examination should always be competitive and not selective. The object of holding the examination is to test the capacity of the candidates and just to have an idea whether a particular candidate is fit for the proposed appointment or not. In addition to the results of the examination, other considerations may also be kept in view making appointment e.g., the viva-voce test.
Inder Prakash Gupta v. State of Jammu and Kashmir, AIR 2004 SC 2523: 2004 AIR SCW 2737: 2004 (2) SCT 680: 2004 (6) SRJ 186: (2004) 5 SCALE 90: 2004 (3) Serv LJ 159 SC: 2004 (3) Supreme 593. Public Service Commissions must scrupulously follow the statutory rules during recruitment and in making appointment.
Additional functions may be assigned to the Union and State Public Service Commission by an Act of Parliament and State Legislature (article 321). The expenses of the Union or a State Public Service Commission, and the salaries and allowances of its members are charged on the Consolidated Fund of India or State, as the case may be (Article 322).
The commission shall submit an annual report on the work done by them to the President or Governor, as the case may be. The reports are to be laid before the Parliament and the State Legislatures, respectively together with a memorandum as regards the cases where the advice of the commission was not accepted and the reasons for such non-acceptance (Article 323).
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