Q. Explain doctrine of Pleasure. Mention the constitutional protection available to civil servant under the Constitution of India.

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Answer

 

Introduction

Civil 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 civil servants from political and personal influence. So, provisions have been included in the Constitution of India to protect the interest of civil 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 in case of states, governor. 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.

Note:

i.                    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.

ii.                 Dismissal and removal are not the synonymous terms, when it comes to legal terminology. In case of dismissal a person is debarred from future employment, but in case of removal he is not debarred from future employment.

In State of U. P. v A. N. Singh, 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. 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.

 

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The Constitutional Safeguards for Civil Servants

The following are the protections available to a civil servant under Article 311 of the Constitution:

I.                    No dismissal by subordinate authority:

Under Clause 1 of Article 311, a civil servant can only be removed from his services by the authority who had appointed him or some other person who has the same authority or rank as the appointing authority, otherwise the removal will not be valid.

 

II.                 No reduction in Rank:

Reduction in Rank means reduction from a higher rank or post to a lower rank or post and not losing place in rank or cadre.

In State of Punjab V. Kishan Das: The Supreme Court held that a mere reduction in the salary in the same cadre is not reduction in rank.

 

III.               The reasonable opportunity of being heard must be given:

Under Clause 2 of Article 311, the civil servants are provided with the right of being heard. This right embodies the principle of natural justice by giving a chance to the civil servant to prove his innocence.

As per this Clause, to remove a civil servant from his post the following steps should be followed:

A.      Holding an enquiry in the allegations made against the civil servant. This enquiry is known as departmental enquiry;

B.      Providing the accused civil servant with the information about what charges have been levelled against him;

C.      Providing such a civil servant with a reasonable chance of being heard in the case.

 

Exceptions to the protection

While protection has been provided under Article 311 of the Constitution to ensure that their interests are protected, these protections are also subject to some exceptions. The following are the exceptions:

i.                     If the civil servant has been found guilty of a criminal offence, in such cases the protection under Article 311 cannot be availed for him and in such cases, he can be removed for misconduct without getting a chance of being heard.

ii.                   When a disciplinary charge is levelled against him, and holding an enquiry is not possible.

In the case of Union of India and Another V. Tulsiram Patel and Others: The Court observed that for determining the impracticability of holding the enquiry the point of view of a reasonable man has to be used. If a reasonable man who is in this situation thinks that holding such an enquiry is not practicable, then not holding such enquiry will not amount to a violation of Article 311.

iii.                 Threat to security of state.

In the case of Union of India v. Balbir Singh, it was held that the Court has the power to examine the satisfaction of the President or the Governor as the case may be. If the Court finds that the satisfaction is based on such grounds which have no relation to the security of the State then, the Court can hold such a satisfaction to be based on irrelevant and extraneous grounds and the dismissal of a civil servant can be held invalid.

 

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