Civil Services in India: Nature, Organisation, Powers and Functions

Article 312 provides that if the Council of States declares 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, Parliament may by law provide for the creation of one or more All India Services common to the Union and the States. That is the constitutional route by which a new All India Service is created, and the requirement of a Council of States resolution reflects that the States are affected.

Articles 315 to 323 establish a Union Public Service Commission and a Public Service Commission for each State, provide for the appointment and removal of their members, and set out their functions, which include conducting examinations for appointments and being consulted on recruitment, promotions, transfers and disciplinary matters. Their independence is secured by the manner of removal and by charging their expenses on the Consolidated Fund.

The doctrine of pleasure and its limits

This is the legal heart of the topic and where the marks are.

Article 310: the doctrine of pleasure

Except as expressly provided by the 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 a civil post under a State holds office during the pleasure of the Governor.

The doctrine is inherited from the English rule that a Crown servant holds office at pleasure. Its rationale is that the State must be able to remove an official whose continuance is against the public interest, without being tied by a contract.

Article 311: the cut down

Article 311 restricts the pleasure doctrine in two ways, and both must be given.

Article 311(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.

Article 311(2): no such person 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.

A proviso to clause (2) provides that where it is proposed after such an inquiry to impose a penalty, the penalty may be imposed on the basis of the evidence adduced during the inquiry and it is not necessary to give the person any opportunity of making a representation on the penalty proposed.

Article 311(2) is natural justice written into the Constitution. It is the clearest example of the overlap described in [Administrative Law and Constitutional Law]: a provision which is simultaneously constitutional law and the law of administrative procedure.

The three exceptions to Article 311(2)

The second proviso excludes the inquiry requirement in three cases, and these are examined more often than anything else in this chapter.

1. 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.
2. Where the authority empowered to dismiss, remove or reduce 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.
3. Where the President or the Governor is satisfied that in the interest of the security of the State it is not expedient to hold such inquiry.

Two safeguards remain even in the exceptions. In the second case the reasons must be recorded in writing, and the satisfaction that an inquiry is not reasonably practicable is itself examinable by a court for relevance and good faith. In the third, the satisfaction is that of the President or the Governor personally.

These are the constitutional exclusions of natural justice referred to in [Exceptions to the Principles of Natural Justice].

What Article 311 does not cover

• It protects against dismissal, removal and reduction in rank, and not against every adverse action. A transfer, a compulsory retirement on the terms of the service rules, or the termination of a probationer or a temporary servant in accordance with the terms of appointment is not within it, unless it is by way of punishment in substance.
• It does not apply to a person who is not a member of a civil service of the Union or a State or an all-India service and does not hold a civil post: employees of a statutory corporation are outside it, which is the point made in [Corporations and Public Undertakings: Definition and Characteristics], though Article 14 still protects them if the corporation is the State.
• Article 310 with Article 311 operates subject to Article 309, under which the conditions of service are regulated.

The substance test is what the litigation is about: the form of the order is not decisive, and a court will ask whether the termination was in substance a punishment, in which case Article 311 applies whatever the order is called. This is the same reasoning as in [Grounds of Judicial Review: Abuse of Discretion] on colourable exercise of power.

Article 309: recruitment and conditions of service

Article 309 provides that, subject to the Constitution, 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 a State, and that until provision is made, it is competent for the President or the Governor, or a person directed by them, to make rules regulating those matters, which have effect subject to any Act.

Two points follow. Service rules made under the proviso to Article 309 are delegated legislation, and are subject to the controls in Module II. And they must satisfy Article 14 and Article 16, which guarantees equality of opportunity in matters of public employment.

Powers and functions of the civil service

The syllabus asks for these separately.

1. Advising on policy. Officials supply the minister with facts, options and the consequences of each.
2. Executing policy. Turning a decision into a scheme, a rule, a form and a delivery mechanism.
3. Making delegated legislation. Drafting the rules and regulations discussed in [Delegated Legislation and Why It Grew].
4. Adjudicating. Deciding claims, appeals and licences, which is the quasi-judicial function in [Classification of Administrative Functions].
5. Regulating. Licensing, inspecting and enforcing.
6. Delivering services. Health, education, water, food distribution and welfare payments.
7. Managing public money and property, subject to audit and to the financial committees discussed in [Congressional and Parliamentary Committees].
8. Maintaining continuity across changes of government.

A worked example

Deepak Rao, a Deputy Superintendent in a State police service appointed by the Director General, is dismissed by an order of the Superintendent of Police, without any inquiry, on the ground that he was absent and insubordinate.

1. Article 311(1). The Superintendent is subordinate to the Director General who appointed him. The dismissal is void on that ground alone.
2. Article 311(2). No inquiry was held, he was not informed of the charges and he was not given a reasonable opportunity of being heard. Void again.
3. Do the exceptions apply? He has not been convicted on a criminal charge. If the authority says an inquiry was not reasonably practicable, it must have recorded that reason in writing, and the court will examine whether the satisfaction was reached on relevant material and in good faith. Security of the State does not arise.
4. Where does he go? A State Administrative Tribunal if one is constituted, after exhausting departmental remedies under section 20 of the Administrative Tribunals Act 1985, and from there to a Division Bench of the High Court: L. Chandra Kumar v. Union of India, AIR 1997 SC 1125.
5. Vary it: he is transferred to a remote district. A transfer is not dismissal, removal or reduction in rank, so Article 311 does not apply; but if the transfer is in substance a punishment, or is mala fide, the ordinary grounds of review are available.
6. Vary it again: he is an employee of a State transport corporation. Article 311 does not apply at all, because he does not hold a civil post under the State. If the corporation is the State within Article 12 on the reasoning of Ajay Hasia v. Khalid Mujib Sehravardi, AIR 1981 SC 487, Article 14 protects him against arbitrary dismissal and a writ lies.

What it does NOT mean

It does not mean a civil servant cannot be dismissed. He can, after an inquiry satisfying Article 311(2), or in one of the three excepted cases.

It does not mean every adverse order attracts Article 311. Only dismissal, removal and reduction in rank, and orders that are in substance punishment.

It does not mean corporation employees have Article 311 protection. They do not, though Article 14 may protect them.

It does not mean the doctrine of pleasure has been abolished. Article 310 stands, cut down by Article 311 and by the rules made under Article 309.

Quick revision

1. Characteristics: permanence, professionalism, political neutrality, anonymity and rule bound hierarchy. Anonymity is strained by the Right to Information Act 2005.
2. Organisation: All India Services, Central Services and State Services. Article 312: Parliament may create a new All India Service if the Council of States so resolves by not less than two-thirds of members present and voting, in the national interest.
3. Articles 315 to 323: Union and State Public Service Commissions, their appointment, removal and functions.
4. Article 309: the appropriate legislature may regulate recruitment and conditions of service, and until it does the President or Governor may make rules, which are delegated legislation and must satisfy Articles 14 and 16.
5. Article 310: the doctrine of pleasure, service during the pleasure of the President or the Governor.
6. Article 311(1): no dismissal or removal by an authority subordinate to the appointing authority. Article 311(2): no dismissal, removal or reduction in rank except after an inquiry in which the person has been informed of the charges and given a reasonable opportunity of being heard; by the proviso, no separate opportunity on the penalty is required.
7. Three exceptions in the second proviso: conviction on a criminal charge; the authority's satisfaction, for reasons recorded in writing, that an inquiry is not reasonably practicable; and the President's or Governor's satisfaction that in the interest of the security of the State an inquiry is not expedient.
8. Article 311 covers dismissal, removal and reduction in rank, and orders which are in substance punishment; it does not cover corporation employees.

Test yourself

1. Explain the doctrine of pleasure and the protection given by Article 311. Article 310 provides that, except as expressly provided by the Constitution, a member of a defence service, of a civil service of the Union or of an all-India service, or the holder of a civil post under the Union, holds office during the pleasure of the President, and a member of a State civil service or holder of a civil post under a State during the pleasure of the Governor. The doctrine is inherited from the English rule that a Crown servant holds at pleasure, and its rationale is that the State must be able to dispense with an official whose continuance is against the public interest. Article 311 cuts it down. Clause (1) forbids dismissal or removal by an authority subordinate to that which appointed the person. Clause (2) forbids dismissal, removal or reduction in rank except after an inquiry in which he has been informed of the charges and given a reasonable opportunity of being heard, though by the proviso the penalty may be imposed on the evidence in that inquiry without a separate opportunity on the penalty.

2. State the exceptions to the requirement of an inquiry under Article 311(2). The second proviso to Article 311(2) excludes the requirement in three cases. First, where a person is dismissed, removed or reduced in rank on the ground of conduct which has led to his conviction on a criminal charge. Second, where the authority empowered to dismiss, remove or reduce in rank is satisfied that, for some reason to be recorded by that authority in writing, it is not reasonably practicable to hold the inquiry. Third, where the President or the Governor is satisfied that in the interest of the security of the State it is not expedient to hold the inquiry. Safeguards remain in the second and third: the reasons must be recorded in writing and the satisfaction that an inquiry was not reasonably practicable can be examined by a court for relevance and good faith, and the satisfaction on the ground of the security of the State is that of the President or Governor.

3. How are the civil services in India organised? Into three categories. The All India Services are common to the Union and the States, their members being recruited centrally and serving in State cadres, and Article 312 provides that Parliament may create a new All India Service if the Council of States declares 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. The Central Services serve the Union in fields such as revenue, audit and accounts, foreign affairs and posts. The State Services serve a State. Recruitment and conditions of service are regulated under Article 309, and Articles 315 to 323 establish the Union and State Public Service Commissions, which conduct examinations and are consulted on recruitment, promotion, transfer and disciplinary matters, their independence being secured by the manner of removal of members and by charging their expenses on the Consolidated Fund.

4. Does Article 311 apply to the employees of a public corporation? No. Article 311 protects a member of a civil service of the Union or of a State or of an all-India service, and a person who holds a civil post under the Union or a State. A public corporation has a legal personality separate from the Government and its employees are employed by the corporation under its own regulations, so they do not hold a civil post and Article 311 does not apply. They are not without protection: if the corporation is the State within Article 12, on the approach in Ajay Hasia v. Khalid Mujib Sehravardi, AIR 1981 SC 487, the fundamental rights bind it, so a dismissal that is arbitrary offends Article 14 and a writ lies under Article 226, and the requirements of natural justice apply to a decision affecting the employee.

5. Does every adverse order against a civil servant attract Article 311? No. The Article is directed at dismissal, removal and reduction in rank. A transfer, a compulsory retirement in accordance with the service rules, or the termination of a probationer or a temporary servant on the terms of his appointment does not by itself attract it. But the form of the order is not decisive: the court applies a substance test, and if the termination or reversion is in substance by way of punishment, Article 311 applies whatever the order is called. That reasoning is the same as the rule against a colourable exercise of power, under which an authority may not do indirectly what it may not do directly.