Chapter 40: UNION PUBLIC SERVICE COMMISSION
ONE of the matters which do not usually find place in a constilutional
document but have been included In our Constitution is the Public Services.
The wisdom of the makers of our Constitution in giving a constitutional
basis to such matters as are left to ordinary legislation under other Constitutions may be appreciated if we properly assess the
System of importance of public servants in a modem democratic government.
A notable feature of the Parliamentary system of government is that
while the policy of the administration is determined and laid down by
ministers responsible to the Legislature, the policy is carried out and the
administration of the country is actually run by a large body of officials who
have no concem with politics.
In the language of Political Science, the
officials form the 'permanent' Executives as distinguished from the Ministers
who constitute the 'political' Executive.
While the political Executive is
chosen from the party with majority In the Legislature and loses office as soon
as that party loses its majority, the permanent Executive is appointed by a
different procedure and does not necessarily belong to the party in power.
maintains the continuity of the administration and of the neutrality in politics
that characterises the civil servants who constitute the permanent Executive
and accounts for their efficiency.
While the Ministers, generally, cannot
claim any expert knowledge about the technique of administration and the
details of the administrative departments, the civil servants, as a body, are
supposed to be experts in the detailed working of government
vice in this system of carrying on the administration with the help of these
'permanent' civil servants is that they tend to be more and more tied to redtape
and routine and lack that responsiveness to fresh ideas which the
political Executive is sure to maintain owing to their responsibility to the
But with all this Inherent vice, the civil servants are indispensable
to the Parliamentary form of Government.
The reason is that in the modern age, government is not only an art
but also a science and, to that extent a business for experts.
It has, therefore,
naturally fallen into the hands of a very large army of people "who have
taken up the business of government, being in service of the Government,
itse1f,-as their professional career.
Since they cannot be dispensed with, the
problem of a modern democracy is how to prevent them trom converting
the democratic system into a 'bureaucracy' or officialdom.
The remedy lies
not in the assumption of the work of government by the Legislature, for a
direct democracy as prevailed in the ancient State is an impossibility under
Nor does remedy lie in the assumption of the actual
work of administration, as distinguished from the laying down of policies, by
the Ministers or the political heads of the Departments, for, as has been
already Stated, the task is not only technical but enormous, and the Ministers
might lose Sight of the broader and serious questions of national urgency if
they were to enter into the details of the day-to-day administration.
The proper solution of the problem, therefore is-firstly, to select the
right type of men who shall be not only efficient but also honest and wbo can be trusted with confidence
That they would not abuse their position and would be
strictly impartial, having no personal or political bias of their own and would
be ready to faithfully carry out the policy once it is formulated by the
government for the time being in power;
Secondly, to keep them under
proper discipline so that they' maintain the proper relationship with their
employer, viz., the State; and thirdly, to ensure that for breaches of the rules
of discipline, they can be brought under proper departmental action and, for
breach of law, made answerable before the Courts of law.
Once the interests
of the State are thus secured, it is equally essential that the security of tenure
of public servants who do not contravene the foregoing principles should be
For, the best available talents would never be attracted unless there
is a reasonable security against arbitrary action by superior officials who
exercise the governmental power as to removal and discipline.
All the aforesaid objects can be achieved only if there are definite rules
and proper safeguards in respect of what is broadly known as the 'conditions
of service' of public servants and our Constitution seeks to lay down some
basic principles in this behalf.
It is not that our Constitution seeks to make detailed provisions relating
to every matter concerning the Public Service.
makers of the Constitution realised that that was not
practicable and therefore left the recruitment and
conditions of service of the public servants of the
Union and of the State to be regulated by Acts of the appropriate
Pending such legislation, however, these matters were to be
regulated by Rules made by the President or by the Governor in connection
with the services under the Union and the States respectively
Once the legislature Intervenes to enact a law, the power of the executive
(the President and the Governor) Is totally displaced and the Act of the
legislature would have precedence over any rule made by the executive but no rule can be framed which affects or impairs the
However. these rules have equal force of law. Though
already some Acts have been passed, for instance. the All-India Services
Act, 1951, the larger part of the field is still covered by Rules made by the
Government, not only under the Constitution, but also those existing from
before (that is, made under the Government of India Acts), which are to
continue to be in force until superseded by the appropriate authority.
It is to
be noted however that neither a Rule nor any Act of the Legislature made
in this behalf can have any validity if its provisions are contrary to those of
As a matter of fact, our courts have already annulled a
number of Service Rules on the ground of contravention of some of the
For instance, if any rule or order enables the
Government to dismiss a Government servant without giving him an
opportunity to be heard. such rule would be struck down as unconstitutional
owing to contravention of the requirement in Art 311(2)
The two matters which are substantively dealt with by our Constitution
Tenure of office of the public servants and disciplinary action
(b) The constitution and functions of the Public Service Commissions,
which are independent bodies to advise the Government on some of the
vital matters relating to Services.
We have Inherited from the British system the maxim that all service
at the pleasure of the Crown, and our Constitution,
therefore, primarily declares that anybody who holds
a post (civil or military) under the Union or a State holds his office at the pleasure of the President or the Governor, as the
case may be [Art. 310(1)].
The power to compulsory
retire a government servant Is one of the facets of the
doctrine of pleasure incorporated in this Article.
This means that any Government employee may be dismissed at any
time and on any ground, without giving rise to any cause of action for
wrongful dismissal, except where the dismissal is in contravention of the
constitutional safeguards to be mentioned Just now.
This right of the Government to dismiss a Government servant at its
pleasure cannot be fettered by any contract
This rule is, however, subject to
one exceptlon specified in Art 31O(2) namely, that where Government is
obliged to secure the services of technical personnel or specialists, not
belonging to the regular Services, by entering into a special contract, without
which such persons would not be available for employment under the
In such cases, compensation would be payable for premature
termination of the service if the contract provides for such payment.
even in such cases, no compensation would be payable under the clause if
the service is terminated within the contractual period, on the ground of his
It will be payable only-
(a) if the post is abolished before the expiration of the contractual
(b) if the person is required to vacate his post before the expiry of the
contractual period, for reasons unconnected with misconduct.
The Constitution of
India subjects the above pleasure to certain
exceptions and limitations:
A In the case of certain high officials, the Constitution lays down
specific procedures as to how their service may be terminated.
Thus, as has
been noted in their proper places earlier, the Supreme court and high court Judges and the Chief Election Commissioner etc. shall not
be removed from their offices except in the manner
laid down in constitution.
These offices thus
constitute exceptions to the general rule of tenure 'during pleasure' of
B. Though all other Government servants hold office during the
pleasure of the President or the Governor (as the case
civil servants. may be), two procedural safeguards are provided for
the security of tenure of 'civil' servants as distinguishsd.
from military personnel, namely. that
A civil servant shall not be dismissed or removed by any authority
subordinate to that by which he was appointed. In other words, if he is to be
removed from service, he is entitled to the consideration of his appointing
authority or any other officer of corresponding rank before he is so
The object of this provision is to save a public servant
from the caprices of officers of inferior rank.
(b) The other security which is guaranteed by the Constitution is that
no dismissal, removal or reduction In rank shall be ordered against a civil
servant unless he has been given a reasonable opportunity of being heard in
respect of the charges brought against him.
Prior to 1976. this opportunity had to be given at two stages-(a) at
the stage of inquiry into the charges; and (b) to make representation against
the penalty (such as dismissal, removal, reduction in rank, censure)
proposed to be imposed after the inquiry had been concluded holding the
employee guilty of the charges.
B. But the Constitution (42nd Amendment) Act, 1976, has omitted the
right of the employee to make a representation against the penalty proposed,
retaining however, the safeguard that the penalty can be proposed only on
the basis of the evidence adduced at the Inquiry stage.
The result is that the prior to 1976, which required that the 'opportunity' under
Art. 311 (2) must be offered at two stages, have been superseded by the 42nd
Amendment, Hence, after this amendment of 1976, the expression 'reasonable
opportunity' must be Interpreted to imply that the Government or other
authority proceeding against a civil servant must give him-
(I) an opportunity to deny his guilt and establish his innocence, which
he can only do if he is told what the charges levelled against him are and the
allegations on which such charges are based;
(Ii) an opportunity to defend himself by cross-examining the witnesses
produced against him and by examining himself or any other witnesses in
support of his defence.
Hence, the authority must (i) frame specific charges with full
(ii) intimate those charges to the Government servant
(iii) give him an opportunity to answer those charges;
considering his answers, take its decision; and
(v) the rules of natural justice
should be observed in coming to the finding against the accused.
But no 'inquiry' need be held where the employee is given sufficient
opportunity to explain his conduct but he does not wilfully avail himself of
that opportunity as was done in the case of dismissal of an absconder who
failed to respond to show cause why his services be not terminated by way
not, however, apply where he fails to attend the inquiry owing to default of
the Government in allowing him subsistence allowance.
(iU) when the Inquiry officer is not the disciplinary authority the
delinquent employee has a right to receive a copy of the inquiry officers
report before e disciplinary authority arrives at its conclusions.
It is a part
of the right to defence.
The inquiry must be beld and the opportunity to be heard must be
given if two conditions are satisfied;
(i) The employee is a member of a civil service of Union or an all-India service or a civil service of
a State or holds a civil post under the Union or a State.
(Ii) Such employee is sought to be dismissed, removed or 'reduced in
While a person "dismissed" is ineligible for re-employment under the
Government, no such disqualification attaches to a person 'removed'.
two elements are common to 'dismissal' and 'removal':
(a) Both the penalties are awarded on the ground that the conduct of
the Government servant is blameworthy or deficient in some respect,
(b) Both entail penal consequences, such as the forfeiture of the right to
salary, allowances or pension already acquired for past services.
Where no such penal consequence is involved, It
would not constitute 'dismissal' or 'removal" e.g.,
where a Government servant is 'compulsorily
retired' without any further penal consequence
attached to such order.
As would appear from the decisions of the Supreme Court, the term
actually used in the order terminating the officer's services is not conclusive.
Words such as 'discharged' or 'retrenched' may constitute 'dismissal' or
'removal', if the order entails penal consequences, as referred to above.
Termination of the services of a temporary employee during the pendency
of his criminal trial. for the same assault, was held to be punitive amounting
It is also clear that in order to attract Art. 311 (2). the termination of
services must be against the will of the civil servant.
Hence. the following
orders of termination of service have been held not to constitute 'dismissal'
(a) Termination in accordance with the terms of the contract of
(b) Termination in terms of the conditions of service as embodied
in the relevant Department Rules applicable to the Government servant
provided such conditions are not inconsistent with the provisions of the
(c) Fixing an age for superannuation or compulsory retirement, and
Reduction in rank means the degradation in rank or status of the
officer, directed by way of penalty.
It thus involves two elements-(a)
reduction in the physical sense, meaning degradation; (b) such degradation
or demotion must be by way of penalty.
(a) Reduction in rank in the physical sense takes place where the
Government servant Is reduced to a lower post or to a lower pay-scale.
reduction to a lower stage in the pay-scale (ordered by way of penalty)
would involve a reduction in rank, for the officer loses his rank or seniority
in the gradation list of his substantive rank.
(b) As regards the penal nature of the reduction, the Supreme Court has
applied the test of 'right to the rank' in question, in the same manner as the
'right to the post' test has been applied in the case of dismissal or removal.
Reduction in rank takes place only when a person is reduced from his
(i) Where a Government servant has a right to a particular rank, the
very reduction from that rank will be deemed to be by way of penalty and
Art. 311 (2) will be attracted.
An officer who holds a permanent post in a substantive capacity,
cannot be transferred to a lower post, without complying with Art. 311(2).
(ii) On the other hand, where a Government servant has no title to a
particular rank, under the contract of his employment or conditions of
service,-there will ordinarily be no reduction in rank within the meaning of
Art. 311 (2),
E.g., where a person, who had been promoted to a higher post
on an Officiating basis contrary to the statutory recruitment rules, is
reverted to his substantive post as it is neither punitive nor illegal.
in this case, the order of reversion will amount to 'reduction In rank' so as to
attract Art. 311(2), if the reversion entails penal consequences, such as postponement of future chances of promotion or the order contains a stigma
which indicates that it was penal in nature; though, in the absence of such
penal features, the motive of the authority would be irrelevant.
of the employees from their confumed posts by imposing additional
qualifications and functions to their confinned post would offend Art. 311.
It is to be noted that even wbere a person bolding a civil post is
dismissed, removed or reduced in rank, no inquiry
beld and no opportunity need be given in
three classes of cases, which themselves explain the
reasons for the exceptions
(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; but
such a charge must relate to a misconduct of such magnitude as would have
deserved the penalty of dismissal, removal or reduction in rank
(b) Where an 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
(c) Where the President or 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
In cases where the mere disclosure of
the charge might affect the security of the State, the President or the
Governor might exempt the holding of an inquiry
But such satisfaction
should not be mala fide. However, the satisfaction need not be personal as
such power is exercised in compliance withconstitution but the Govt is
required to disclose the nature of activities of the employee which formed
the basis of such satisfaction so that the court or tribunal may be able to
determine whether there was any reasonable nexus between such actiVities
and the security of the State or not without which the dismissal might be
held to be ultra vires.
Subject to the power of Parliament, under Art. 33, to modify the
fundamental rights in their application to members of the Armed Forces and the Police Forces, the
fundamental rights guaranteed by the Constitution are
in favour of all 'citizens', which obviously Include
It follows, therefore, that a civil employee of the Government is
entitled to the protection of a fundamental right to the same manner as a private citizen.
two sets of rules relating to disciplinary proceedings were in
operation at the time when the inquiry was directed against a Government
servant, and the inquiry was directed under the set of Rules which was more
drastic and prejudicial to the interests of such Government servant, the
proceedings against him are liable to be struck off as infringing Art. 14
other words if against two public servants similarly circumstanced enquiries
may be directed according to procedure substantially different, at the
discretion of the Executive authority, exercise whereof is not governed by
any principles having any rational relation to the purpose to be achieved by
the inquiry the order selecting a prejudicial procedure, out of the two open
for selection is hit by Art. 14. i.e Restrictions upon the rights of the public servants under Art. 19
But while a public servant possesses the fundamental rights as a citizen,
the State also possesses, under the Proviso to Art. 309, the power to regulate
their 'conditions of service'.
Now, the interests of service under the State
require effidency, honesty. impartiality and discipline and like qualities on
the part of the public servant
The State has thus the constitutional power to
ensure that every public servant possesses these qualities and to prevent any
person who lacks these qualities from being in the public service.
therefore, that State regulation of the conditions of service of public servants
so as to restrict their fundamenral rights will be valid only to the extent that
such restriction is reasonably necessary in the interests of efficiency, integrity
impartiality, discipline, responsibility and the like which have a 'direct,
proximate and rational' relation to the conditions of public service as well as
the general grounds (e.g., public order. under Art. 19) upon which the
fundamental rights of all citizens may be restricted.
Another matter relating to the Services which is dealt with by the
Constitution is the creation of All-India Services.
The All-India Services
All-India Service should be distinguished from Central Services.
'Central Services' is an expression which refers to certain
Services under the Union, maintained on an all-India basis, for service
throughout the country
For instance, the Indian Foreign Service, the Indian
Audit and Accounts Service, the Indian Customs and Excise Service and the
The expression of All-India Service, on the other hand, is a technical
one, used by the Constitution to indicate only the Indian Administrative
Service and the Indian Police Service and such other Services which may
be included in this category in the manner provtded by Art 312 of the
That Article provides that if the Council of States declares by a
resolution, supported by not less than two-third of the members present and
voting, that it is necessary and expedient in the national interest to create an
All-India Service, common to the Union and the States, Parliament may
provide for its creation by making a law.
The practical incident of an All- India Service thus is that the recruitment to it and the conditions of service
under it can be regulated only by an Act of the Parliament
It must be noted
that it is by virtue of this power that Parliament has made the All-India
Services Act, 1951 and that the conditions of service, recruitment, conduct,
discipline and appeal of the members of the All-India Services are now
regulated by Rules made under this Act.
Since these Rules provide that the officers of the All-India Services shall be appointed and controlled by the
Union Government, these Services constitute an additional agency of control
of the Union over the State, insofar as members of these Services are posted
in key posts in the States.
The commission has a
chairman and other members as determined by the
president [usually 9 – 11].
Constitution hasn’t given any qualifications except that
1/2 of the members
should have at least 10 years of experience under
central or state government.
The chairman and
member occupy office for 6 years or till they reach 65
years. They can resign
by writing to president and also be removed by president
before their term
Grounds for removal are proved misbehaviour
or incapacity. In this
case president has to refer matter to SC and if SC
inquiry finds him guilty
then SC can advice removal. This advice is binding on
are engages in paid employment, becomes bankrupt or in
presidents opinion is
unfit to continue due to infirm body or mind.
President can suspend
the chairman or member pending investigation.
President can appoint
acting chairman from amongst the members if the office
of chairman falls vacant
or chairman can’t discharge duties.
members aren’t eligible for reappointment to same post.
Chairman is ineligible
for reappointment under any government. Member of UPSC
can only be appointed as
chairman of UPSC / SPSC.
expense of UPSC is charged on the
consolidated fund on India.
examination for appointments to all India, central
service and public service.
assists states for framing and operating schemes of
joint recruitment for any
service where candidates need special qualifications.
But two or more states
should request it.
request of governor on approval of president, UPSC can
serve all or any need of
is consulted on matters of personnel requirement like:
matters, deciding suitability of candidates, their
promotion and transfer.
of legal expense incurred by a civil servant in
defending an action performed
in course of official duty.
of employees, pension for injuries sustained on duty,
The advice of UPSC is not
binding on government. Consultation of UPSC is a
discretionary power not
mandatory and can’t be challenged in courts.
The jurisdiction of
UPSC can be extended by parliament. UPSC presents an
annual report to president
which is tabled in the house. Only the appointments
committee of the cabinet
can reject advice of ministry but it must give reasons
for non acceptance.
Individual ministries or departments can’t reject.
U.P.S.C isn’t consulted
in the following matters
for posts taking consideration to claims of backward
caste, SC and ST.
to chairmanship of tribunals, diplomatic posts and Group
C and D posts.
post where position is for less than 1 year.
President can exclude
posts, services, matters from purview of UPSC.
With respect to all India and
central services president can make regulations
specifying matters where
consultation of UPSC isn’t necessary but such
regulations have to be approved
by parliament within 14 days.
Creation of CVC has affected its role in
consultation on disciplinary matters.
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