‘Executive’ and Protection to Civil Servants​

(1) Learning Objective

This module is divided into two parts. First part deals with the Union Executive and State Executive.
In this part you will learn about the President, Governor, their powers, Vice-President, Council of
Ministers etc. Part two deals with regulation of recruitment and conditions of service of persons serving
the Union and the States. You will also learn about the provisions relating to the tenure of offices of
members of these services (doctrine of pleasure), creation of All-India Services common to the Union and
the States and establishment of Public Service Commissions for the Union and for each State to assist in
the recruitment of the public services.

(2) Executive

The machinery of any modern State runs with the co-ordination of three organs- the Legislature, the
Executive and the Judiciary. While the function of Legislature is to make law, the Executive implements
that law and the Judiciary interprets the law while deciding disputes between the parties and administers
justice between them. Since ours is a federal form of government, therefore, these organs are functioning
at dual level – one at the Union and the other at the State level.

(2.1) Union Executive

Since ours is a Parliamentary form of government (as distinguished from Presidential form of
government in America), therefore, the Union Executive comprises of the President, the Prime Minister
and his Council of Ministers. The President of India is the constitutional head or nominal head while the
Prime Minister is the actual or real head. According to Article 74 of the Constitution, President can
exercise all powers vested in him only on the advice of the Prime Minister and Council of Ministers. He is
bound by the aid and advice of Prime Minister and the Council of Ministers.

(2.1.1) PRESIDENT

President is the first citizen of the country and is also the head of the state and the Union Executive.
The President is not elected directly. As per Article 54 of the Constitution, he is elected indirectly with the
help of an Electoral College consisting of elected members of Lok Sabha and Rajya Sabha and elected
members of Legislative Assemblies of the States (including the MLAs of NCT of Delhi and Union

1
Territory of Pondicherry), through the system of proportional representation by way of single transferable
vote. The system adopted for voting is secret ballot.

Qualifications for the office of President (Article 58)

He should possess following qualifications:

(i) He must be a citizen of India,
(ii) He must have completed 35 years of age,
(iii) He should be qualified to get elected to the Lok Sabha,
(iv) He must not hold office under the Central Government or State Government or local or other
authority subject to the control of any of the said governments.

However, Article 59 clearly provides that President cannot be a member of any House of Union or State
Legislature.
Term of office of President (Article 56)

President holds office for a term of 5 years but he can resign before completing his term. However, he
can be removed from his office on the only ground of violation of the Constitution. This process is called
“impeachment”.

Powers of President

He exercises the following powers:

(a) Executive Powers: The executive powers of the Union are vested in the President (Article 53). All
executive functions are executed in the name of the President (Article 77). All important appointments of
the Union (e.g. Prime Minister, members of UPSC, Judges of Supreme Court and High Courts, Attorney
General of India etc.) are made by him. He is the supreme commander of the defence forces. Only the
President has the power to declare War or Peace.

(b) Legislative Powers: He summons and prorogues the sessions of Parliament. Lok Sabha sessions
begin with the President’s address. A bill introduced in and passed by Parliament cannot become a law
unless the President gives his assent. Article 123 confers ordinance making power on him.

(c) Judicial Powers: President makes important judicial appointments. He appoints the Chief Justice of
India and other judges of the Supreme Court and High Court. He has the power to grant pardon to a
convict (Article 72). He can remove a judge if the Parliament proposes a resolution against him.

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(d) Financial Powers: A money bill can be n in the Lok Sabha only on the recommendation of the
President. He appoints the Finance Commission of India.

(e) Diplomatic Powers: He sends and receives Ambassadors and other diplomatic representatives. All
international documents, agreements and treaties are negotiated and concluded in his name.

(e) Emergency Powers: President has the authority to declare an Emergency. The Constitution of India
provides for the following types of Emergency:

(i) National Emergency (Article 352): If the President feels that the country’s integrity and security
is in danger because of war or external aggression or armed rebellion, then he can declare a state of
National Emergency.

(ii) State Emergency or President’s Rule (Article 356): President also has the power to declare an
Emergency in a particular state on the ground of breakdown of Constitutional machinery in that State.

(iii) Financial Emergency (Article 360): If the President feels that the country’s financial stability is
in danger, he has the power to declare Financial Emergency.

(2.1.2) Vice President

Article 63 provides that there shall be a Vice-President of India. Vice President is the ex-officio
Chairman of the Rajya Sabha (Article 64). He is elected by the members of both the houses of Parliament
at a joint session through the system of proportional representation by way of single transferable vote. The
system adopted for voting is secret ballot. He possesses same qualifications as are applicable to President
with the only difference that he must be eligible for election to the Rajya Sabha. He enjoys a term of 5
years but may resign before the expiry of his term. He may also be removed from his office by the
majority of members of Rajya Sabha by passing a resolution. But this resolution must be agreed to by a
majority of the members of Lok Sabha. He exercises following Functions:

(i) He presides over the meetings of Rajya Sabha,

(ii) Acts as President (in case of vacancy in the office of President) till a new President is elected.

(iii) Acts as President in case the President in unable to discharge his functions due to absence, illness etc.

(2.1.3) Prime Minister

He is the head of the Council of Ministers and the keystone of the cabinet arch. His resignation
means the resignation of the entire Council of Ministers. The leader of the party in majority in Lok Sabha

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or a person who is able to win the confidence of the majority in that house is appointed as Prime Minister
by the President. But in case of multiple party system, if there is no single party in power and a coalition
government is formed, the President may select the leader of any party who, in his opinion, can form a
stable ministry.

Functions and Duties of Prime Minister

(i) Ministers are appointed by the President on the recommendation of the Prime Minister.

(ii) He coordinates various governmental policies and generates a team spirit among various Ministries.

(iii) He communicates all the decisions made by the Council of Ministers to the President.

(iv) His takes initiatives for improving India’s reputation and position at the international level.

Article 78 provides following duties of the President:

(i) To communicate to the President all decisions of the Council of ministers relating to the administration
of the affairs of the Union and proposals for legislation,

(ii) To furnish such information relating to administration of the affairs of the Union and proposals for
legislation as the President may call for,

(iii) If the President so requires to submit for the consideration of the Council of Ministers any matter on
which a decision has been taken by a minister but which has not been considered by the cabinet.

(2.2.4) Council Of Ministers

The Prime Minister and his Council of Ministers form the Union government. The Council of
Ministers consists of various ministers, for example, finance minister, law minister, home minister,
external affairs minister etc. Each minister is the head of his respective ministry. According to the 91st
Amendment, 2003, the total number of ministers, including the Prime Minister, in the Council of
Ministers shall not exceed 15 % of the total number of members of the House of People. Though the
ministers are the members of either house of Parliament, but even a non-member can also become a
minister provided he becomes a member of Parliament within six months. The Council of Ministers are
however collectively responsible to the Lok Sabha [Article 75 (3)]. They introduce proposals for
legislation. The Annual budget is presented in the Lok Sabha by the Finance Minister. They also
formulate public policies, and foreign policies.

(2.1.6) Attorney General of India​

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 The Attorney General is the first law officer of the government of India. The Attorney General is
appointed by the President and he holds office during the pleasure of the President. In order to be
appointed as the Attorney General a person must be qualified to be appointed as a judge of the Supreme
Court.

Duties

His duties are:

(i) To advise the government on legal matters,

(ii) To perform other legal duties which are referred or assigned to him by the President, and

(iii) To discharge the functions conferred on by him by the Constitution.

Though he is not a member of the Cabinet, he has the right to speak in both the Houses of Parliament or
any committee thereof, but he has no right to vote. In the performance of his official duties the Attorney
General shall have a right of audience in all the courts in the territory of India. The Attorney General
represents the government but is allowed to take up private practice provided the other party is not the
state. Because of this he is not paid salary but a retainer to be determined by the President. The Attorney
General gets a retainer equivalent to the salary of a judge of a Supreme Court.

(2.2) State Executive

The executive at the state level has been established on the central pattern. It consists of the
Governor, the Council of Ministers and the Chief Minister.

(2.2.1) Governor

Article 153 provides for the office of Governor. Normally there is a governor for each state but it is
possible to appoint the same person as Governor for two or more states [Article 153 (proviso)]. The
Governor is appointed by the President and holds office during the pleasure of the President.

Qualifications

To be eligible for appointment as governor a person must be:

(i) a citizen of India,

(ii) must have completed 35 years of age,
(iii) should not be a member of either house of Parliament or the State legislature,

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(iv) must possess the qualifications prescribed for membership of the state legislature, and
(v) must not hold any office of profit.
Term
The Governor is appointed for a term of five years. However, he can relinquish his office earlier by
tendering his resignation to the President. The President can also remove him from office before the
expiry of his term. Though he is a nominee of the Central Government, but he cannot be dismissed on the
ground that he does not agree with the policies and ideologies of the Union Government or has lost its
confidence.1

Powers

The Constitution vests quite extensive powers in the Governor and he is expected to exercise on the aid
and advise of the Council of Ministers at the State level.

(a) Executive Powers: The governor is the executive head of the state and all executive actions of the
State are taken in his name. Article 154 provides that the executive power of the state is vested in the
Governor. He shall exercise this power either directly or through subordinates. He also appoints important
officials at the state level including the Chief minister, State ministers, advocate general, chairman and
members of the state public service commission. But does not appoint the judges of High Court.

(b) Legislative Powers: The Governor is a part of the State Legislature. He has the power to summon or
prorogue either house of the state legislature and dissolve the state legislative assembly (Article 174),
address the first session of the state legislature after the general elections, send messages to the state
legislature on bills pending before it, appoint one-sixth of the members of the legislative council (Article
171), he can appoint one member from the Anglo-Indian community to the state legislative assembly if in
his opinion this community is not adequately represented in that house, give assent to the bills passed by
the state legislature, reserve certain bills passed by the legislature for the assent of the President (Article
200) and make laws through ordinances (Article 213) during the recess of the state legislatures.

(c) Financial powers: He ensures that the budget of the state is laid before the state legislature every year
(Article 202). All money bills can be introduced in the state legislature only on the recommendation of the
Governor. The Governor administers the Contingency Fund of the State and can advance money out of it
to meet unforeseen expenditure pending its authorization by the legislature. Article 203 provides that
demand of grants can be made only on the recommendation of Governor.

1
B.P. Singhal v. Union of India, (2010) 6 SCC 331.

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(d) Judicial powers: The Governor is consulted by the President while appointing the Chief Justice and
judges of the state High Court. He appoints judges of courts below the High court. Like the President, the
Governor has the power to grant pardons (Article 161), reprieves, respites or remissions of punishment to
persons convicted of an offence against state laws. It should be noted that the President’s power of pardon
is wider than that of Governor. While the President can pardon a death sentence and punishments of
sentences inflicted by court martial, Governor cannot so.

(e) Emergency powers: The Governor has the power to make a report to the President whenever he is
satisfied that a situation has arisen in which government of the state cannot be carried on in accordance
with the provisions of the Constitution (Art 356) i.e. failure of Constitutional machinery in the State,
thereby inviting the President to assume to himself the functions of the government of the state or any of
them. When the state is placed under President’s rule, the Governor acts as the representative of the
President in the state and assumes extensive powers.

However, it should be noted that the Governor can act in his discretion only in matters in which he is
expressly required by or under the Constitution to do so. For example, appointment of the Chief Minister,
dismissal of a minister, dissolution of Legislative Assembly and advising the President for the
proclamation of State emergency under Article 356.

(2.2.2) Chief Minister

The Governor is assisted in the discharge of his functions by the State Council of Ministers headed by the
Chief Minister. The Chief Minister is appointed by the Governor. Generally the leader of the majority
party in the state assembly is appointed Chief Minister, who holds position identical to that of the Prime
Minister at the center. He enjoys a term that runs parallel to that of the state legislature. The Chief
Minister recommends to the Governor the names of persons to be appointed as members of the Council of
Ministers and allocates portfolios among them. The Chief Minister is the chief link between the Governor
and the Council of Ministers and keeps the former informed of all decisions of the council.

(2.2.3) Council of Ministers

The Council of Ministers headed by Chief Minister aids and assists the Governor. The ministers are
appointed by the governor on the advice of the Chief Minister. Any person can be appointed as a minister
but he ceases to be a minister if he is not elected as a member of the State legislature within six months
after his appointment as a Minister. The Council of Ministers is collectively responsible to the Vidhan
Sabha (Legislative Assembly). The 91st Amendment, 2003, has made a provision thereby fixing the
maximum size of ministries. The total number of ministers, including the Chief Minister, in the Council

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of Ministers in a state shall not exceed 15% of the total number of members of the Legislative Assembly
of that State provided that the number of ministers, including the Chief Minister in a State, shall not be
less than 12 for smaller states.

(2.2.4) Advocate General

The Advocate General is the first law officer of a state. He enjoys similar function within the state as
are enjoyed by Attorney General at the Centre. He is appointed by the Governor and holds office during
the pleasure of the Governor. A person who is qualified to be appointed as a judge of a high court can
only be appointed as Advocate General. He has the right to participate in the proceedings of the houses of
state legislatures without the right to vote and has the right of audience in any court in the State.

(3) Services

Services make administration of a country more efficient, thereby contributing towards the peace,
prosperity and progress of the country. Therefore, it is very essential to protect the public services from
any kind of political or personal influence. Part XIV (Article 308 to 323) of the Constitution of India deals
with the services under the Union and the States. Article 308 excludes the application of the provisions of
this part in respect to the State of Jammu and Kashmir.

(3.1) Recruitment and Conditions of Service of Persons serving the Union or a State (Article 309)

Article 309 empowers the Parliament and the State Legislature to regulate the “recruitment” and the
“conditions of service” of the persons appointed to public services and posts under the Union and the
States.

Article 309 reads as follows:

Recruitment and conditions of service of persons serving the Union or a State: Subject to the
provisions of this 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 any State.
Provided that it shall be competent for the President or such person as he may direct in the case of
services and posts in connection with the affairs of the Union, and for the Governor of a State or such
person as he may direct in the case of services and posts in connection with the affairs of the State, to
make rules regulating the recruitment, and the conditions of service of persons appointed, to such
services and posts until provision in that behalf is made by or under an Act of the appropriate
Legislature under this article, and any rules so made shall have effect subject to the provisions of any
such Act.

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Thus, it is clear from the above provision that until the appropriate Legislature makes such laws, the
President or Governor or an authorized person may make rules for the aforesaid purpose. However, such
law making power of the Legislature and rule making power of the Executive must not contravene any
provision of the Constitution including fundamental rights under Article 14, 15, 16 and 19. It should be
noted that Article 309 does not make it mandatory for the Legislature to make law or the Executive to
make rules in this regard. But what if neither the appropriate Legislature has made a law nor the
Executive has framed any rules under this Article. In this respect, Section 313 requires a special mention.

Article 313 reads as follows:

Transitional provisions: 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.

(3.1.1) Recruitment and Conditions of Service

The term “recruitment” includes any method provided for inducting or admitting a person in
public service, such as appointment, selection, promotion, deputation, transfer etc.2 Power to regulate
recruitment includes not only the power to constitute a service but also the power to constitute a new
cadre by merging certain existing cadres.3

The expression “conditions of service” has a very wide scope and would include matters relating to
salary, time scale of pay or grades; provident fund- compulsory or contributory; dearness allowance;
termination of service; eligibility for promotion; seniority4; retirement; pension; suspension; fixation of
quota for promotees/direct recruits and variance of quota5; the like.6

(3.1.2) Rules made under Article 309 to have Retrospective effect

In Bhakta Ram Gowda v. State of kerala7 the Supreme Court clarified that rules made under Article
309 could be made or amended with retrospective effect, but they cannot take away the vested rights.8

(3.1.3) Limits on the Power conferred by Article 309

2
State of Rajasthan v. A.P. Solanki, AIR 2003 SC 3849.
3
S.P. Shivprasad Pipal v. Union of India, AIR 1998 SC 1882.
4
Acctt. General v. Bakshi, AIR 1962 SC 505.
5
Indian Railways Class II Officers Federation v. Anil Kumar Sanghi, AIR 2002 SC 3314.
6
B.S.N.L v. Rajesh Kumar Saxena, AIR 2008 SC 2952. For details, see Narender Kumar, Constitutional Law of
India, 866 (2011).
7
1998 (1) SLJ 208. Also see, M.P.R.A.F Officers Assocn. v. State of M.P. AIR 2004 SC 2020.
8
P. Tulsi Das v. Government of A.P., AIR 2003 SC 43.

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(a) As stated earlier, the legislative power or the rule making power under Article 309 is subjected to
various provisions of the Constitution including fundamental rights and directive principles of State
Policy (particularly Article 39(d) relating to “equal pay for equal work”).

(b) Moreover, the power conferred by Article 309 is subject to the doctrine of pleasure contained in
Article 310(1).

(c) Article 311 which contains procedural safeguards for civil servants, also imposes a limitation on
power conferred by Article 309.

(d) Clause (3) of Article 320 though not mandatory in nature, requires consultation with the appropriate
Public Service Commission in all matters relating to recruitment to civil services and civil posts, in
making promotions, transfers and all disciplinary matters affecting civil services.

(e) Besides, there are special provisions9 in the Constitution regulating the appointment and conditions of
service of some categories of public servants. To these categories of public servants, the Acts or rules
made under Article 309 would not apply.

(f) Article 309 is not applicable to persons who are not government employees.10

It is important to note that the power conferred by Article 309 is not fettered or controlled by an
agreement between the Government and the concerned government employee11 because the legal position
of a government servant is more of status than of contract.12

(3.2) Doctrine of Pleasure (Article 310)

The Common Law doctrine of Pleasure was borrowed in India from England. The expression is
drawn from the latin phrase “durante bene placito”, which means “during pleasure”. In England, a servant
of the Crown used to hold office during the pleasure of the Crown i.e. the services of a civil servant could
be terminated at any time, at will, without assigning any reason. That, the Crown is not bound by any
contract between it and a civil servant and therefore, the civil servant can neither enforce in a court of law
any of the conditions of his service.

Basis and Justification of the Doctrine

9
For example, see Articles 98, 146(2), 148(5), 187, 233, 234, 229(2).
10
D.M.P. Div. Andaman & Nicobar Islands v. Munnu Barrick, AIR 2005 SC 1158.
11
Union of India v. Arun Kumar Roy, AIR 1986 SC 737.
12
State of Haryana v. Shakuntala Devi, AIR 2009 SC 869.

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 The doctrine is based on public policy, in the sense that the government servants who were inefficient,
dishonest or corrupt or had become a risk to security and integrity, should discontinue in service and that
the immunity given to them under various provisions (Articles 309 and 311), be not abused by them so as
to effect public interest and public good.13

The doctrine was borrowed under the Government of India Act, 1858, and was also retained under
Government of India Act, 1919 and 1935.14 Article 310 (1) of the Constitution contains the doctrine of
pleasure of India and confers the power on President and Governor. It reads as follows:

Article 310 (1): Except as expressly provided by this 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 any civil post under a State holds
office during the pleasure of the Governor of the State.

(3.2.1) Implications of Doctrine of Pleasure under Article 310(1)

(a) The power conferred by Article 310 (1) is not effected by any contract to the contrary, provided
mandatory provisions of Article 311 have been observed.

(b) Similarly, the Pleasure is not fettered by ordinary laws.15

(c) 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.

(d) As stated earlier, Article 309 is to be read subject to Articles 310 (1) and 311.

(e) The Pleasure can be exercised by the President or the Governor either with the aid and advice of
Council of Ministers16 or by the authority specified in the Act or Rules made under Article 309.

(3.2.2) Limitations on the Doctrine of Pleasure

(a) Doctrine of Pleasure is subject to various provisions of the Constitution i.e. Article 310(2), 311(2) and
Fundamental Rights under Part III. Article 310(2) exempts certain persons from the applicability of
Article 310(1). It reads as follows:

13
Union of India v. Tulsiram Patel, AIR 1985 SC 1416. For details, see supra note 10 at 870.
14
Supra note 10 at 870.
15
Supra note 14.
16
Ibid.

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Article 310 (2): Notwithstanding that a person holding a civil post under the Union or a State holds
office during the pleasure of the President or, as the case may be, of the Governor of the State, any
contract under which a person, not being a member of a defence service or of an all India service or of a
civil service of the Union or a State, is appointed under this Constitution to hold such a post may, if the
President or the Governor as the case may be, deems it necessary in order to secure the services of a
person having special qualifications, provide for the payment to him of compensation, if before the
expiration of an agreed period, that post is abolished or he is, for reasons not connected with any
misconduct on his part, required to vacate that post

(b) Moreover, holders of specified offices like, Judges of Supreme Court and High Court, the Comptroller
and Auditor General Of India, Members of Public Service Commissions, Chief Election Commissioner
etc. are also exempted from the applicability of Article 310(1).

(c) Article 320 (3) (c) also imposes a limit on pleasure as it provides for the consultation with the
respective Public Service Commission on all disciplinary matters affecting government employees.

(d) A government servant cannot be compelled to continue in service against his will, after reaching the
age of superannuation, except where his service is required in public interest.

(e) This power of President or Governor may be done away with by repealing article 310(1) by the Act of
Parliament.17

(3.3) Constitutional Protection to Civil Servants (Article 311)

Article 311 provides certain safeguards to civil servants by putting restrictions on the power of the
President or Governor to dismiss, remove or reduce in rank. Article 311 reads as follows:

(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.
(2) No such person as aforesaid 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.

(3.3.1) Civil Post

In State of U. P. v. A. N. Singh18 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

17
Supra note 10 at 872.
18
AIR 1965 SC 360.

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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.19 The
protective safeguards given under Article 311 are not available to defence personnel.

(3.3.2) Dismissal and Removal

Though the words dismissal and removal have same meaning but in the context of this provision they
have different implications. In case of dismissal a person is debarred from future employment, but in case
of removal he is not debarred from future employment.20

(3.3.3) No Removal by Subordinate Authority

No removal by subordinate authority does not mean that the dismissal or removal must be by the same
authority who made the appointment or by his direct superior. It is enough if the removing authority is of
the same or co-ordinate rank as the appointing authority.21

(3.3.4) Reduction in Rank

Reduction in Rank means reduction from a higher rank or post to a lower rank or post and not merely
loosing place in rank or cadre. In State of Punjab v Kishan Das22 the Supreme Court held that a mere
reduction in the salary in the same cadre is not reduction in rank.23

(3.3.5) Inquiry and Reasonable Opportunity of Being Heard

It is mandatory under Article 311(2) to make an inquiry before the dismissal, removal or reduction in rank
of a civil servant. In that inquiry the civil servant has to be informed of the charges against him and given
a reasonable opportunity of being heard in respect of those charges.24 Informed of the charges, means
serving of a charge sheet explaining the reasons of the charges leveled against the concerned officer and
statement of allegations against each charge. In Khem Chand v Union of India25 the Supreme Court held
that the 'reasonable opportunity' means:-

(a) An opportunity to deny his guilt and prove his innocence.

19
J.N. Pandey, Constitutional Law of India, 690-691 (2011).
20
Mohd. Abdul Salim Khan v. Sarfaraz, AIR 1975 SC 1064.
21
Mahesh Prasad v. State of U.P., AIR 1950 SC 70.
22
AIR 1971 SC 766.
23
Supra note 19 at 693.
24
Ibid., p. 691.
25
AIR 1958 SC 300.

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(b) An opportunity to defend himself by cross examining the witness produced against him and by
examining himself in support of his defiance.

(c) An opportunity to make his representation as to why the proposed punishment should not be inflicted
on him.26

(3.3.6) Termination of Service When Amounts to Punishment.

The protection under Article 311 is available only when the dismissal, removal or reduction in rank is
by way of punishment. In Parshotham Lal Dhingra v Union of India27 the Supreme Court has laid down
two tests to determine whether termination is by way of punishment:

(a) whether the servant had a right to hold the post or the rank (under the terms of contract or under any
rule), and

(b) whether he has been visited with evil consequences.28

If the answer is in affirmative, it amounts to punishment.

(3.3.7) Cases where Opportunity of Being Heard is not available

Article 311(2) provides that reasonable opportunity of being heard is not applicable in the following
cases.

(a) Suspension is neither dismissal or removal nor reduction in rank. So the employee cannot claim a
reasonable opportunity to be heard.29

(b) Where a person is dismissed or removed or reduced in rank on the ground of misconduct which has
led to his conviction on a criminal charge; or

(c) Where the concerned authority is satisfied that for some reason, to be recorded by in writing, it is
impracticable to hold such inquiry; or

(d) 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.30

26
Supra note 19 at 699. Also see, A. Prasanna, “Constitutional Protection to Civil Servants”. Available at www.
www.img.kerala.gov.in/docs/downloads/cp_to_cs.pdf. (Accessed on 7.7.14).
27
AIR 1958 SC 36.
28
Supra note 19 at 692.
29
Ibid., p. 694.
30
Ibid.,pp.701-701.

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 An employee who is convicted on criminal charges need not be given an opportunity to be heard,
before his dismissal from service. However in Divisional personal Officer, Southern Railway v T. R.
Chellappan31 the Supreme Court held that the imposition of the penalty of dismissal, removal or reduction
in rank without holding an inquiry was unconstitutional and illegal. The objective consideration is only
possible when the delinquent employee is being heard. But in Union of India v Tulshiram Patel32 the
Court held that the dismissal, removal or reduction in rank of a person convicted on criminal charges is in
public interest, and therefore not violative of Article 311(2) of the Constitution. The Court thus overruled
its earlier decision in Chellappan's case.33

(e) An employee cannot claim an opportunity to be heard before he is compulsorily retired from service.
The Supreme Court of India has issued certain guidelines regarding compulsory retirement34 in State of
Gujarat v Umedbhai M.Patel35:

(a) When the Service of a public servant is no longer useful to the general administration, the officer can
be compulsorily retired in public interest but due regard shall be had to the entire service record of the
officer including any adverse entries made in his annual confidential record (ACR) whether
communicated or not.

(b) Ordinarily, the order of compulsory retirement is not to be treated as a punishment under Article 311
of the Constitution.

(c) The order of compulsory retirement shall not be passed as a short cut to avoid departmental inquiry
when such course is more desirable.

In Baikunth Nath v Chief Medical Officer36 the Court issued additional clarifications regarding
compulsory retirement:

(a) The order has to be passed by the Govt. in public interest. The order is passed on the subjective
satisfaction of the Govt.

(b) Principles of natural justice have no place in the context of an order of compulsory retirement.
However courts will interfere if the order is passed mala fide or there is no evidence or it is arbitrary.

31
(1976) 3 SCC 1990.
32
(1958) 3 SCC 398.
33
Supra note 20 at 702.
34
Ibid.,p. 694.
35
AIR 2001 SC 1109.
36
(1992) 2 SCC 299.

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(e) An order of compulsory retirement is not liable to be quashed by a Court merely on showing that
while passing it excommunicated adverse remarks were taken into consideration. The circumstances by
itself cannot be a basis for interference.37

(3.3.10) Temporary Employees and Probationers

In State Of Punjab v Sukh Raj Bahadur38 the Supreme Court laid down the following principles regarding
the applicability of Article 311 to temporary servants and probationers.

(a) The services of a temporary servant or a probationer can be terminated under the rules of his
employment and Article 311 of the Constitution would not apply.

(b) The facts and circumstances of each case should be examined in totality.

(c) If the public servant suffers from any evil consequences or an allegation is made against his character
or integrity, it must be considered to be one by way of punishment, no matter whether he was a mere
probationer or a temporary servant.

(d) Article 311 is also not applicable where an order of termination of service in unexceptionable form is
preceded by an enquiry by the seniors only to ascertain whether the public servant should be retained in
service or not.

(e). But, if there be a full-scale departmental enquiry conducted, an Enquiry Officer is appointed, a charge
sheet submitted, explanation called for and considered, any order of termination of service made
thereafter will attract the provisions of article 311.39

The Constitution of India through Article 311, thus protects and safeguards the rights of civil servants
in Government service against arbitrary dismissal, removal and reduction in rank, thereby enabling them
to discharge their functions boldly, efficiently and effectively and thus contributing towards improving the
public interest and security of India. The courts have given various guidelines and clarifications to
supplement and interpret the law contained in the above provisions. These guidelines together with the
constitutional provisions give civil servants sufficient security of tenure, reduce the chances of abuse of
official powers conferred upon them and thus strengthen the civil services of the nation as a whole.

37
Supra note 19 at 697.
38
AIR 1968 SC 1089.
39
Supra note 19 at 698.

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