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.
It 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
One inherent 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 Legislature.
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 modern conditions.
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 for regulation.
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 ensured.
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.
The 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 Legislatures.
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 vested rights.
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 the Constitution.
As a matter of fact, our courts have already annulled a number of Service Rules on the ground of contravention of some of the constitutional provisions.
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 are
(a) Tenure of office of the public servants and disciplinary action against them;
(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 Government
In such cases, compensation would be payable for premature termination of the service if the contract provides for such payment.
But 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 misconduct.
It will be payable only-
(a) if the post is abolished before the expiration of the contractual period; or,
(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 Government servants.
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) 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 removed.
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 particularity,
(ii) intimate those charges to the Government servant concerned,
(iii) give him an opportunity to answer those charges;
(Iv) after 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 of dismissal"
This would 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 rank'.
While a person "dismissed" is ineligible for re-employment under the Government, no such disqualification attaches to a person 'removed'.
But 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 to dismissal
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' or 'removal':
(a) Termination in accordance with the terms of the contract of employment
(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 Constitution.
(c) Fixing an age for superannuation or compulsory retirement, and enforcement thereof
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.
Even 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 substantive rank.
Hence, (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.
Thus, 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.
But even 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.
Reversion 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 inquiry
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 public servants.
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.
Thus If 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
In 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.
It seems, 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.
The '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 like.
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 Constitution.
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.
Term:
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
expires.
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
president.
Other grounds
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.
Independence of
Commission:
1. Commission 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.
2. All expense of UPSC is charged on the consolidated fund on India.
Functions:
1. Conducts examination for appointments to all India, central service and public service.
2. It 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.
3. With request of governor on approval of president, UPSC can serve all or any need of state.
4. It is consulted on matters of personnel requirement like:
· Disciplinary matters, deciding suitability of candidates, their promotion and transfer.
· Reimbursement of legal expense incurred by a civil servant in defending an action performed in course of official duty.
· Reappointment of employees, pension for injuries sustained on duty, miscellaneous personnel matters.
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
1. Appointment for posts taking consideration to claims of backward caste, SC and ST.
2. Selection to chairmanship of tribunals, diplomatic posts and Group C and D posts.
3. Temporary 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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