Part XIV, comprising Arts.308 to 323, deals with services under the Union and the States and with Public Service Commissions. Its structure is easy to hold in mind: Art.309 provides how conditions of service are laid down, Art.310 states the doctrine of pleasure, and Art.311 is the exception that gives the civil servant his security.
Legal Framework
| Provision | Subject | Key Rule |
|---|---|---|
| Art.309 | Recruitment and conditions of service | Regulated by Acts of the appropriate Legislature; until such an Act is made, by rules made by the President or the Governor or a person directed by them |
| Art.310 | Doctrine of pleasure | Every member of a defence or civil service of the Union or of an all-India service holds office during the pleasure of the President, and every member of a State civil service during the pleasure of the Governor, except as expressly provided by this Constitution |
| Art.311(1) | Competent authority | No person may be dismissed or removed by an authority subordinate to that by which he was appointed |
| Art.311(2) | Inquiry | No person may be dismissed, removed or reduced in rank except after an inquiry in which he has been informed of the charges and given a reasonable opportunity of being heard in respect of those charges |
| Art.311(2) proviso (a) | Conviction | No inquiry needed where the penalty is imposed on the ground of conduct which has led to conviction on a criminal charge |
| Art.311(2) proviso (b) | Not reasonably practicable | No inquiry needed where the authority empowered is satisfied that it is not reasonably practicable to hold one |
| Art.311(2) proviso (c) | Security of the State | No inquiry needed where the President or Governor is satisfied that in the interest of the security of the State it is not expedient to hold one |
| Art.311(3) | Finality | The decision of the authority on whether it is reasonably practicable to hold an inquiry is final |
| Art.312 | All India Services | Parliament may create an all-India service if the Council of States so resolves by not less than two thirds of the members present and voting |
| Art.315 | Public Service Commissions | A Commission for the Union and one for each State; Parliament may provide for a Joint Commission for two or more States on their request |
| Art.316 | Appointment and term | Appointed by the President for the Union and a Joint Commission, and by the Governor for a State; at least one half of the members must have held office for at least ten years under the Government of India or a State; term of six years or until the age of 65 for the Union and 62 for a State, whichever is earlier |
| Art.317 | Removal | Only by order of the President, on the ground of misbehaviour after reference to the Supreme Court, whose advice is binding |
| Art.319 | Bar on further office | Restrictions on further employment after ceasing to hold office |
| Art.320 | Functions | Conduct of examinations, and consultation on methods of recruitment, principles of appointment, promotion and transfer, disciplinary matters, and certain claims |
| Art.322 | Expenses | Charged on the Consolidated Fund of India or of the State |
| Art.323 | Annual report | Presented to the President or Governor and laid before the legislature, with a memorandum explaining any case in which the Commission's advice was not accepted |
The Doctrine of Pleasure and its Limits
The doctrine derives from English law, where a servant of the Crown held office at pleasure. Article 310 adopts it but immediately qualifies it with the words "except as expressly provided by this Constitution", and the principal express provision is Art.311. The result is that the pleasure is real but procedurally fettered: the Government need not show cause for wanting to be rid of a servant, but if it proceeds by way of dismissal, removal or reduction in rank, it must observe Art.311.
Which officers are outside Art.311. Judges of the Supreme Court and High Courts, the Comptroller and Auditor-General, the Chief Election Commissioner and the Chairman and members of Public Service Commissions do not hold office at pleasure; each has a separate protected tenure. Members of the defence services hold at pleasure and are expressly excluded from Art.311(2) as regards the requirement of inquiry in the manner it applies to civil servants.
Facts: An officer holding a higher post in an officiating capacity was reverted to his substantive lower post. He contended that this amounted to reduction in rank and that he was entitled to an inquiry under Art.311(2). The Government said it was a mere reversion, not a punishment.
Issue: How does one distinguish a termination or reversion simpliciter, which needs no inquiry, from dismissal, removal or reduction in rank, which does?
Held: The Court laid down the tests that have governed ever since. The protection of Art.311(2) is attracted only where the action amounts to a punishment, and the two indicia of punishment are: first, whether the servant had a right to hold the post, so that its loss deprives him of something he was entitled to; and second, whether the action visits him with evil consequences or casts a stigma on his competence or character. A person holding a post in an officiating or temporary capacity has no right to it, so his reversion or termination is not by itself a punishment. But if the order is founded on misconduct and carries a stigma, the form in which it is cast will not save it, and Art.311(2) applies. The Court also drew the distinction between the motive for the order and its foundation.
Relevance: The foundational case on Art.311. Every problem on termination of a probationer or temporary servant is answered through the motive and foundation distinction.
Facts: A group of appeals concerned civil servants dismissed without any inquiry, the authorities having invoked the second proviso to Art.311(2), namely that it was not reasonably practicable to hold an inquiry, in circumstances of collective indiscipline.
Issue: What is the effect of invoking the provisos to Art.311(2), and how far is the satisfaction reviewable?
Held: Where a proviso is validly invoked, the inquiry is dispensed with and so, necessarily, are the rules of natural justice in the form of a hearing, because the Constitution itself has excluded them; a plea of breach of natural justice cannot be used to reintroduce what Art.311(2) has expressly taken away. But the safeguard is not illusory. The satisfaction must be that of the competent authority, must be based on relevant material and reached in good faith, and though Art.311(3) makes the decision final, it remains open to judicial review on the grounds that it was arrived at mala fide, or on no material, or on grounds extraneous to the proviso. Reasons must be recorded. The Court also confirmed that after the 42nd Amendment, 1976 the "reasonable opportunity" in Art.311(2) is confined to the charges, and there is no longer any right to a second opportunity to show cause against the proposed penalty.
Relevance: The leading case on the provisos. State both halves: natural justice is excluded, but the satisfaction is reviewable.
Facts: Disciplinary authorities imposed penalties after considering inquiry reports which had not been supplied to the delinquent officers, so that they had no opportunity to comment on the inquiry officer's findings before the penalty was decided.
Issue: Whether the inquiry officer's report must be furnished to the delinquent servant before the disciplinary authority acts on it.
Held: It must. Where the inquiry officer is someone other than the disciplinary authority, the report is a document on which the authority will act, and the servant's right to a reasonable opportunity under Art.311(2) includes an opportunity to respond to the report before the penalty is decided. Non-supply is a breach. The Court, however, declined to make the consequence automatic: relief depends on the servant showing prejudice, and the ordinary course is to remit the matter to the stage at which the report should have been furnished rather than to set aside the penalty outright.
Relevance: The practical operative rule in service law. Note the two stages of the answer: breach established, then prejudice assessed.
Public Service Commissions
| Feature | Union Public Service Commission | State Public Service Commission |
|---|---|---|
| Appointment | By the President | By the Governor |
| Composition of members | At least one half must have held office for ten years under the Government of India or a State | The same requirement |
| Term | Six years or until the age of 65, whichever is earlier | Six years or until the age of 62, whichever is earlier |
| Resignation | To the President | To the Governor |
| Removal | Only by the President, on the Supreme Court's binding advice | Only by the President, likewise |
| Expenses | Charged on the Consolidated Fund of India | Charged on the Consolidated Fund of the State |
| Report | To the President, laid before Parliament | To the Governor, laid before the State Legislature |
Removal under Art.317. Note the two points most often missed. First, even a member of a State Commission can be removed only by the President, not by the Governor, which is a deliberate insulation of the Commission from the State Government. Second, removal for misbehaviour requires a reference to the Supreme Court, and the Court's report on inquiry is binding on the President. Separately, and without any reference, the President may remove a member who becomes insolvent, engages in paid employment outside the duties of his office, or is in the President's opinion unfit by reason of infirmity of mind or body.
Restrictions on further office under Art.319. The scheme is graduated to prevent the prospect of future employment from influencing the discharge of the office:
| Office held | Eligible for |
|---|---|
| Chairman of the Union Commission | No further employment under the Government of India or of a State |
| Member of the Union Commission | Chairman of the Union Commission or of a State Commission, but no other employment |
| Chairman of a State Commission | Chairman or member of the Union Commission, or Chairman of another State Commission, but no other employment |
| Member of a State Commission | Chairman of that or another State Commission, or Chairman or member of the Union Commission |
Facts: A civil servant was dismissed without the Public Service Commission having been consulted as Art.320(3)(c) requires in disciplinary matters. He contended that the omission invalidated the dismissal.
Issue: Whether the requirement of consultation with the Public Service Commission in Art.320(3) is mandatory.
Held: The provision is directory and not mandatory. It does not confer any right on a public servant, and failure to consult the Commission does not by itself invalidate the disciplinary action. The article contains no words making consultation a condition precedent, provides no consequence for non-compliance, and expressly permits the making of regulations specifying matters in which consultation may be dispensed with.
Relevance: The standard authority on Art.320(3). Contrast it sharply with Arts.233 and 234, where consultation with the High Court has been held mandatory, and with Art.124(2), where consultation with the Chief Justice is mandatory. The lesson is that the character of a consultation requirement depends on the article, not on the word.
Illustrations
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Dismissal by a subordinate authority: An officer appointed by the Governor is dismissed by a departmental head. This offends Art.311(1), the dismissing authority being subordinate to the appointing authority.
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Reversion of an officiating officer: An officer officiating in a higher post is reverted for administrative reasons. Applying Parshotam Lal Dhingra (1958), he had no right to the post and no stigma attaches, so Art.311(2) is not attracted.
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Reversion founded on misconduct: The same officer is reverted by an order reciting that his integrity is doubtful. The order carries a stigma and is founded on misconduct, so it amounts to reduction in rank and requires an inquiry.
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Motive and foundation: A probationer is discharged after a preliminary assessment of his suitability which mentions instances of poor work. If misconduct is merely the motive for assessing him unsuitable, no inquiry is needed; if it is the foundation of the order, an inquiry is required.
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Conviction on a criminal charge: A servant is convicted of theft and dismissed on that ground. Proviso (a) to Art.311(2) applies and no departmental inquiry is needed, though the penalty must still be proportionate.
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Inquiry not reasonably practicable: Witnesses are terrorised and cannot be produced, and the authority records that an inquiry is not reasonably practicable. Applying Tulsiram Patel (1985), the inquiry may be dispensed with, but the satisfaction must rest on relevant material and reasons must be recorded, and it remains reviewable for mala fides or absence of material.
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Security of the State: The Governor is satisfied that holding an inquiry would be inexpedient in the interest of the security of the State. Proviso (c) applies, and the decision is that of the President or Governor and not of the departmental authority.
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Inquiry report not furnished: A penalty is imposed on the basis of a report the servant never saw. Applying ECIL v B Karunakar (1993), there is a breach, but relief depends on proof of prejudice and the ordinary course is remission.
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Commission not consulted: A servant is dismissed without consulting the Public Service Commission. Applying Manbodhan Lal Srivastava (1957), Art.320(3) is directory and the dismissal is not void on that ground.
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Removal of a State Commission member: A State Government purports to remove a member of its Public Service Commission for misbehaviour. The order is void: only the President may remove, and only on the binding advice of the Supreme Court after reference under Art.317.
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Further employment: A retiring Chairman of the Union Commission is offered a post as a Governor's adviser. Article 319(a) bars any further employment under the Government of India or of a State.
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Advice not accepted: The Government departs from the Commission's advice on a recruitment matter. This is permissible, but under Art.323 a memorandum explaining the reasons must be laid before the legislature with the annual report.
Recall Check
- State the doctrine of pleasure in Art.310 and identify the words that qualify it.
- State the two tests in Parshotam Lal Dhingra for determining whether an order is a punishment.
- State the three provisos to Art.311(2) and who must be satisfied under each.
Key Cases
Parshotam Lal Dhingra v Union of India (1958) Parshotam Lal Dhingra v Union of India 1958
Issue: How to distinguish termination or reversion simpliciter from dismissal, removal or reduction in rank.
Rule: Art.311(2) applies only where the action amounts to punishment, tested by whether the servant had a right to the post and whether the order carries evil consequences or a stigma; the motive for an order is distinguished from its foundation.
Held: The reversion of an officiating officer was not a punishment, he having had no right to the higher post.
Union of India v Tulsiram Patel (1985) Union of India v Tulsiram Patel 1985
Issue: The effect of invoking the provisos to Art.311(2) and the reviewability of the satisfaction.
Rule: Where a proviso applies, the inquiry and with it the hearing are constitutionally excluded, but the satisfaction must rest on relevant material and remains reviewable for mala fides, absence of material or extraneous grounds.
Held: The dismissals were examined on that standard, and the position after the 42nd Amendment confining the opportunity to the charges was confirmed.
State of Uttar Pradesh v Manbodhan Lal Srivastava (1957) State of UP v Manbodhan Lal Srivastava 1957
Issue: Whether consultation with the Public Service Commission under Art.320(3) is mandatory.
Rule: The provision is directory, confers no right on a public servant, and non-compliance does not invalidate the action.
Held: The dismissal was not void for want of consultation.
Managing Director, ECIL, Hyderabad v B Karunakar (1993) Managing Director ECIL v B Karunakar 1993
Issue: Whether the inquiry officer's report must be furnished before the penalty is decided.
Rule: It must, as part of the reasonable opportunity under Art.311(2), but relief depends on proof of prejudice.
Held: Non-supply was a breach, and the appropriate course is ordinarily to remit rather than to quash.
Distinctions
| Basis | Art.310 | Art.311 |
|---|---|---|
| Content | Tenure at the pleasure of the President or Governor | Restrictions on the exercise of that pleasure |
| Nature | Substantive rule of tenure | Procedural safeguard |
| Who benefits | The Government | The civil servant |
| Relationship | The general rule | The express exception saved by the words "except as expressly provided by this Constitution" |
| Basis | Termination simpliciter | Dismissal, removal or reduction in rank |
|---|---|---|
| Right to the post | None, as with a probationer or officiating officer | The servant has a right to hold the post |
| Stigma | None | Casts a stigma or visits evil consequences |
| Inquiry required | No | Yes, under Art.311(2) |
| Misconduct | May be the motive | Is the foundation |
| Authority | Parshotam Lal Dhingra (1958) | Parshotam Lal Dhingra (1958) |
| Basis | Art.320(3) consultation with a Public Service Commission | Art.233 consultation with a High Court |
|---|---|---|
| Character | Directory | Mandatory |
| Effect of omission | Action not invalidated | Appointment invalid |
| Right conferred on the individual | None | Not applicable; the requirement protects judicial independence |
| Authority | Manbodhan Lal Srivastava (1957) | Chandra Mohan v State of Uttar Pradesh (1966) |
Flashcards
What does Art.309 provide?
That recruitment and conditions of service are regulated by Acts of the appropriate Legislature, and until then by rules made by the President or Governor.
State the doctrine of pleasure in Art.310.
Members of the defence and civil services of the Union and of all-India services hold office during the pleasure of the President, and members of State civil services during the pleasure of the Governor, except as expressly provided by the Constitution.
What are the two protections in Art.311?
No dismissal or removal by an authority subordinate to the appointing authority, and no dismissal, removal or reduction in rank except after an inquiry with a reasonable opportunity of being heard on the charges.
What did the 42nd Amendment change in Art.311(2)?
It removed the requirement of a second opportunity to show cause against the proposed penalty, so the opportunity is now confined to the charges.
State the three provisos to Art.311(2).
Conduct leading to conviction on a criminal charge; satisfaction that an inquiry is not reasonably practicable; and satisfaction of the President or Governor that an inquiry is inexpedient in the interest of the security of the State.
Is the satisfaction under the second proviso reviewable?
Yes. Although Art.311(3) makes it final, Tulsiram Patel (1985) held it reviewable for mala fides, absence of material or extraneous grounds.
What are the two tests of punishment in *Dhingra*?
Whether the servant had a right to hold the post, and whether the order visits him with evil consequences or casts a stigma.
What is the difference between motive and foundation?
If misconduct merely prompts an assessment of unsuitability it is the motive and no inquiry is needed; if the order rests on the misconduct it is the foundation and Art.311(2) applies.
Must the inquiry report be given to the delinquent servant?
Yes, before the disciplinary authority decides the penalty, but relief for non-supply depends on prejudice (ECIL v B Karunakar, 1993).
Is consultation with the Public Service Commission mandatory?
No. Art.320(3) is directory (Manbodhan Lal Srivastava, 1957).
Who may remove a member of a State Public Service Commission?
Only the President, and for misbehaviour only on the binding advice of the Supreme Court after a reference under Art.317.
What is the term of a member of the Union Public Service Commission?
Six years or until the age of 65, whichever is earlier. For a State Commission the age is 62.
What proportion of members must have prior government service?
At least one half, each having held office for at least ten years under the Government of India or a State.
Can a retired Chairman of the Union Commission take further government employment?
No. Art.319(a) bars any further employment under the Government of India or of a State.
What must accompany the Commission's annual report where its advice was not accepted?
A memorandum explaining the reasons for non-acceptance, laid before the legislature under Art.323.
Exam Scenario
Problem: Anil, appointed by the Governor to a State service, is officiating in a higher post. The Head of Department passes an order reverting him to his substantive post, reciting that his "integrity is suspect and his conduct unbecoming". Separately, Bhavna, a permanent servant of the same Department, is dismissed without any inquiry, the disciplinary authority recording in one line that "an inquiry is not practicable in the circumstances". Chandra, another permanent servant, is dismissed after an inquiry, but the inquiry officer's report was never given to her before the penalty was fixed. In none of the three cases was the State Public Service Commission consulted. The State Government also purports to remove a member of its Public Service Commission for misbehaviour by an order of the Governor. Advise all four.
Step 1: Take two independent points on Anil's reversion
First, Art.311(1). He was appointed by the Governor, and the order was passed by a Head of Department, who is an authority subordinate to the appointing authority. The order is void on that ground alone.
Second, apply Parshotam Lal Dhingra v Union of India (1958). Ordinarily the reversion of an officiating officer is not a punishment, because he has no right to hold the higher post. But the second test is satisfied here.
The order recites that his integrity is suspect and his conduct unbecoming, which casts a stigma and visits him with evil consequences. Misconduct is the foundation of the order, not merely its motive, so the reversion amounts to reduction in rank and Art.311(2) required an inquiry. The form of the order cannot save it.
Step 2: Concede the exclusion of inquiry for Bhavna, then attack the satisfaction
Apply the second proviso to Art.311(2) with Union of India v Tulsiram Patel (1985). Accept the first half of the State's case: where the proviso is validly invoked, the inquiry and with it the right to a hearing are excluded by the Constitution itself, and she cannot plead natural justice to reintroduce them.
The case turns on the second half. The satisfaction must be that of the competent authority, must rest on relevant material, and reasons must be recorded.
A one line recital that an inquiry is "not practicable in the circumstances" discloses no material and no reasoning. Despite the finality clause in Art.311(3), the order is open to review for having been reached on no material. The dismissal is liable to be quashed and the matter remitted.
Step 3: Treat Chandra's case as a defect cured by remission
Apply Managing Director, ECIL v B Karunakar (1993). The inquiry officer's report is a document on which the disciplinary authority acts, and the reasonable opportunity under Art.311(2) includes an opportunity to respond to it before the penalty is settled. Non-supply is therefore a breach.
Be precise about the consequence. Relief is not automatic: she must show prejudice, and the ordinary course is to remit the matter to the stage at which the report ought to have been furnished, rather than to set the penalty aside outright.
Step 4: Dispose of the non-consultation point shortly
Apply State of Uttar Pradesh v Manbodhan Lal Srivastava (1957). Art.320(3) is directory, confers no right on a public servant, and its breach does not invalidate any of the three actions. None of the three can rely on it.
| Provision | Consultation required with | Force |
|---|---|---|
| Art.320(3) | Public Service Commission | Directory. Breach does not invalidate, and no right is conferred |
| Arts.233 and 234 | High Court | Mandatory |
The contrast shows why the same word bears different force in different articles.
Step 5: Strike the removal of the Commission member under Art.317
The order is void for two reasons. Removal can be ordered only by the President and not by the Governor, even in the case of a State Commission. And removal on the ground of misbehaviour requires a reference to the Supreme Court, whose report on inquiry is binding. Neither condition was met.
| Ground of removal | Who may order | Reference to Supreme Court |
|---|---|---|
| Misbehaviour | President only | Required, and the report is binding |
| Insolvency, outside paid employment, infirmity | President only | Not required |
The Governor could not act in any event.
Art.311(1) is a separate ground from Art.311(2). Anil's order is void simply because a Head of Department is subordinate to the Governor, before any question of stigma arises.
Foundation, not motive. Under Dhingra, a reversion becomes punitive only when misconduct is the foundation of the order. A stigmatising recital cannot be saved by the form the order takes.
Do not plead natural justice against the second proviso. Tulsiram Patel excludes the inquiry and the hearing by the Constitution itself. The attack must be on the recorded reasons and the material, not on the absence of a hearing.
Art.311(3) finality is not absolute. An order reached on no material remains reviewable despite the finality clause.
Karunakar relief is not automatic. Chandra must show prejudice, and the normal order is remission to the stage at which the report should have been supplied, not quashing of the penalty.
Art.320(3) helps nobody. It is directory and confers no right, so non-consultation cannot be used to attack any of the three actions.
Art.317 has two independent conditions. The Governor cannot remove at all, and misbehaviour additionally requires a Supreme Court reference. Missing either is fatal.
Conclusion. Anil's reversion is void twice over, under Art.311(1) and as a punitive reduction in rank under Art.311(2). Bhavna's dismissal is liable to be quashed for want of recorded material. Chandra is entitled to remission on proof of prejudice. The non-consultation point avails none of them, and the removal of the Commission member is wholly void.
See Also
- Subordinate Judiciary : Arts.233 to 235, a special recruitment scheme carved out of this general service law.
- Administrative Relations : Art.312 and the All India Services as instruments of administrative integration.
- Election Commission : the other constitutional body with a protected tenure comparable to Art.317.