Services under the Union and The States:
- Part XIV, containing Articles 308 to 323, provides for the following:
- Regulation of recruitment and conditions of service of persons serving the Union and the States Tenure of office of members of these services (Doctrine of Pleasure)
- Constitutional safeguards for civil servants of the Union and the States
- Creation of All-India Services common to the Union and the States
- Establishment of Public Service Commission for the Union and for each State
Regulation of recruitment and conditions of service of persons serving the Union and the States:
- Article 309 (1) provides that “Acts of the appropriate Legislature may 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 body.
- Article 309 (1), however, does not make it mandatory for the Parliament or the State Legislature, as the case may be, to make laws for the said purpose.
- Until the appropriate Legislature makes such laws, the Article authorises the President or such person as he may direct and the Governor of the State or such person as he may direct, to make rules for the aforesaid purpose in relation to the services under the Union or the State, respectively. The rules so made by the President or the Governor or any person authorised him, shall have effect subject to the provisions of any Act enacted by the appropriate legislature.
Article 313 states that, until other provision is made in this behalf under this Constitution, all the laws in force immediately before the commencement of this Constitution and applicable to any public service or any post which continues to exist after the commencement of service or post under the Union or a State shall continue in force so far as consistent with the provisions of this Constitution.
The legislative power or the rule making power under Article 309 is subjected to the provisions of the Constitution.
- The Acts or Rules must not contravene the fundamental rights especially those secured by Articles 14, 15 and 16.
- The Rules should also comply with the Directive relating to “equal pay for equal work for both men and women” similarly, any direction issued, or any practice followed by Executive in women matters, would be invalidated, if found to be arbitrary or unreasonable.
- Again, the power conferred by Article 309, is subjected to Article 310 (1) which incorporates the “doctrine of pleasure”.
- Article 311 which contains procedural safeguards for civil servants, imposes a limitation on the power conferred by Article 309.
- Clause (3) of Article 320, though not mandatory in nature, requires consultation with the appropriate Public Service Commission in all matters relating to the recruitment to civil services and for civil post in-making promotions and transfers and on all disciplinary matters affecting civil services.
Doctrine of Pleasure (Article 310)
It is borrowed in India under Government of India Act 1858.
- In UOI vs Tulsiram Patel 1985, SC held that for a government servant to discharge his duties faithfully, he must have a feeling of security of tenure. At the same time, it would be in interest of Public that inefficient, dishonest should not continue in service.
Implications under “Doctrine of Pleasure” under Art 310 (1):
- The Government has right to regulate or determine the tenure of its employees at Pleasure. Provided that- mandatory Provision of article 311 have been observed.
- The government has the Power to Punish any of its servants for misconduct committed not only in the course of official duties but even for that committed in private life.
- The Pleasure Confined by article 310 (1) Can be exercised by President or Governor either with the aid and advice of Council of ministers.
Limitation on Doctrine of Pleasure: (Article 311)
Article 311 Provides for “Procedural safeguards” in relation to Tenure of office”. There are.
- No removal or dismissal by authority subordinate to appointing authority Article 311(1).
- No removal, dismissal or reduction in Bank except after an enquiry and given a reasonable opportunity of being heard. Article 311(2)
Safeguards are available to:
- All India Service
- Civil service of Union and State.
- Members holding Civil Post
Not enjoyed by:
- An employee of Statutory Corporation
- An employee of companies registered under companies act or of registered society.
The scope of “Reasonable opportunity is defined in Khem Chand vs UOI case as:
- The Communication of Charges.
- Opportunity to deny Charges OR to establish innocence.
- Opportunity to defend himself by cross examining witnesses.
Exceptions to Article 311(2):
- 2 (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
- 2 (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. (The Mumbai Police Commissioner Helps in bold decision issued an order terminating Sachin Waze from police services under Article 311 (2) (b))
- 2 (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.
Merits of Article 311:
- Protection against arbitrary removal/Dismissal: Article 309 provides for doctrine of pleasure, so it becomes necessary to provide certain safeguards.
- Protecting honest civil servant: Ex Durga shakti Nagpal was protected in false allegation in mining case.
- Helps in bold decision making.
- Protection against bonafide mistake during call of duty.
- Shielding from frivolous case: Such cases hamper the productivity of the civil servants. Ex: Honest and young IAS officer in Bihar lodged in a jail on frivolous bribery case filed by mafias.
Demerits of Article 311:
- Against Article 14: Everyone is same in eyes of law.
- Instrument to delay the investigation and Prosecution by Corrupt Civil servant.
- Not Practiced in other Countries where the agent of the government has the power to invoke constitutional safeguards against the government.
2nd ARC on Article 311:
- Arguments range from its retention to even strengthen it and its total deletion.
- Safeguard of opportunity of being heard has been held as fundamental Principle of natural justice. Thus, it Can’t be dispensed, even if Art 311 is removed.
- Also, the article is not an obstacle in dealing with delinquent public servants, as the SC ruling directs:
- The role of higher Court is restricted to ascertain whether the inquiry, was fairly conducted or not. Once that is proved, the court will not interfere with the ultimation finding (Kuldeep vs Commissions of Police).
All India service (Article 312):
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.
Objective of creating AIS:
- It attracts the best Talent.
- It emphasizes the unity of India and encourages the development of national integration.
- Helps in securing greater inter-state Coordination for efficient implementation of All India Policies
- Provides for adoption of minimum & Uniform standard in the administration. It thus Provides for cohesion to federal structure in the Country.
- During President rule in the states, there officers act as representative of Union government and smoothen the transition.
- Influenced by these Considerations, CM Conference in 1961 recommended for Creation of AIS in the field of engineering, medicine & Public health, and Forestry.
- Sarkaria Commission Three new more services like Health, Education and Engineering be created.