This article is written by Prachilekha Sahoo pursuing LLM from National Law University, Odisha. The article has been edited by Ruchika Mohapatra (Associate, LawSikho).
Table of Contents
Introduction
The origin of the doctrine of pleasure can be traced back to England to the Latin phrase “durante bene placito (during pleasure)”. It is a common law rule having special prerogative of the British crown. In England, a servant of the crown holds office during the pleasure of the crown and he can be dismissed from the service of the crown at pleasure. The tenure of the office of a civil servant can be terminated at any time without assigning any cause. Even if there exists any special contract between the crown and the civil servant concerned, the crown is not bound by it.
The civil servant is liable to be dismissed without notice and he/she can’t claim damages for wrongful dismissal or immature termination of service except where it is otherwise provided by a statute. The justification for the rule is that the crown shouldn’t be;
- Bound to continue the public service of any person whose conduct is not satisfactory.
- Shackle its future executive action by entering into an agreement in matters concerning the welfare of the country.
The doctrine of pleasure is based on public policy. Its operation, however, can be modified by an act of Parliament.
Doctrine of pleasure in India
In India, the doctrine of pleasure has not been completely adhered to, rather it has been modified to suit the needs of the country. This doctrine has been incorporated in Article 310 of the Constitution of India. Article 310(1) reads as follows:
“except as expressly provided by the Constitution, every person, who is a member of 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, the state holds office during the pleasure of the Governor of the State.”
In our constitutional set-up, when an office is held during the pleasure of the President, it means that the officer can be removed by the authority on whose pleasure he holds office, without assigning any reason. The authority is not obliged to assign any reason or disclose any cause for the removal. Article 310 also makes it clear that though a person serves the Union or a State during the pleasure of the President/Governor, the power of removal at pleasure is subjected to the other express provisions of the Constitution.
Pleasure under Article 310 is not required to be exercised by the President or the Governor personally. It may be exercised by the President or the Governor acting on the advice of the Council of Ministers. In another case, it was decided that the pleasure of the President or the Governor under Article 310 is not subject to any contract and cannot be fettered by contract, ordinary legislation, or the rules made under Article 309.
What is the implication of the doctrine of pleasure?
The Supreme Court has justified the pleasure doctrine on the basis of ‘public policy’, ‘public interest’ and ‘public good’ insofar as inefficient, dishonest or corrupt persons, or those who have become a security risk, should not continue in service.
Under Article 310, the government has the authority to penalize any of its servants for misconduct committed not only in the course of official duties but even for that committed by him in private life. The government has the right to expect that each of its servants will abide by certain values of decency and morality in his private life. If the government were not able to do so, there would be an appalling fall in the moral prestige of the administration. Thus, disciplinary action can be taken against a police constable (for example) for behaving crudely and improperly with a member of the public in his private life.
What are the exceptions to the doctrine of pleasure?
The term except as expressly provided by the Constitution provided in Article 310(1) clearly states that the Doctrine of pleasure is subjected to other express provisions of the Constitution. Article 310(1) will not apply where the constitution expressly provides for secured tenure different from that provided in Article 310 and hence those servants shall be excluded from it. The following persons have constitutionally secured tenure as follows:
- The Supreme Court and the High Court judges. (Article 124 and Article 217 respectively);
- The Comptroller and Auditor-General of India (Article148);
- Chairman and Members of Public Service Commission (Article 317) and
- The Chief Election Commissioner (Article 324).
The doctrine of pleasure does not apply to the holders of these offices. However, they can be removed from the office on the grounds of ‘proved misbehaviour’ or ‘incapacity’ by following the procedure provided by the constitution.
Other offices subject to the doctrine of pleasure
The President and the Governor of the State have been vested with the administrative power of the Union and of a state concerned respectively. The President and the Governor have a fixed term of five years since the President is the executive head of the country while the governor is the executive head of the state. However, the difference that lies in the tenure of the governor is that he can be removed from his office earlier because he holds his office during the pleasure of the President. This doctrine of pleasure has no protection and in a number of scenarios, the Governors have been dismissed by the President indiscriminately. There are no safeguards presented to him. Similarly, the union ministers and various state ministers have real executive power and hold office during the pleasure of the President or a Governor as the case may be.
Likewise, the Council of Ministers of the National Capital Territory of Delhi holds office during the pleasure of the President though it is accountable to the Legislative Council. The Attorney General of India and the Advocate General of each state also hold office during the pleasure of the President or the Governor as the case may be.
Comparative analysis of the doctrine of pleasure under Article 310 and Common Law
- In Britain, the doctrine of pleasure is a Common Law doctrine. It can be altered by Parliament by law. In India, it is a constitutional doctrine and cannot be transformed by ordinary legislation.
- In Britain, a civil servant has no right to bring suit against the Crown for arrears of salary. The assumption underlying this rule is that the only claim of the civil servants is on the bounty of the Crown and not for a contractual debt.
The Supreme Court of India refused to abide by the abovementioned rule in the case of the State of Bihar vs Abdul Majid. A sub-inspector of Police was dismissed from the service on the grounds of cowardice and later he was reinstated in service but the government contested his claim for arrears of salary for the period of his dismissal. The Supreme Court upheld his claim for arrears of salary on the ground of contract or quantum meruit, i.e. for the value of the service rendered.
The Supreme Court again reiterated the above ruling in the case of Om Prakash v State of Uttar Pradesh where it was held that when the dismissal of a civil servant was found to be unlawful, he was entitled to get his salary from the date of dismissal to the date when his dismissal was declared unlawful.
In India, therefore, a civil servant will get his arrears of salary if his dismissal is found to be unlawful.
Civil servants and the doctrine of pleasure
The legislature has constituted commissions at the Central and state levels (UPSC/SPSC) to regulate the employment and working conditions of civil servants, supervise appointments and promotions and endorse the value of public service. It is an independent constitutional body in the sense that it has been directly created by the constitution. Articles 315 to 323 in Part XIV of the Constitution contain elaborate provisions regarding the composition, appointment and removal of members along with the independence, powers and functions of UPSC. Under the provisions of Article 309, Parliament is authorized to regulate the prerequisite conditions of service of persons appointed to public service and posts in connection with the affairs of the Union. Similarly, State Legislatures are parallelly given the same powers to regulate recruitment and conditions of service of persons appointed to public service or posts in connection with affairs of the State.
The term ‘civil servant’ includes members of a civil service of the centre or a state, or of all India service, or all those who hold civil posts under the Centre or a State. A ‘civil post’ means an appointment or office on the civil side and includes all personnel employed in the administration of the union and the states.
The origin of Indian civil services can be traced back to England when it was officially known as Imperial civil service in the late 18th century to early 19th century. It was considered to be an exam for the elite class who, after passing the exam, would be appointed under the crown under Section XXXII of the Government of India Act, 1858, enacted by the Parliament of the UK. It was headed by the Secretary of State for India, a British member cabinet. Thereby, they shall work under the crown’s pleasure. After the Indian independence, the inkling to establish a Public Service Commission for the recruitment of Public Services in the country was first expressed in the memorandum presented to the Committee on the division of functions by the Government of India in 1919. The Royal Commission on Public Services (Lee Commission) in 1924, emphasised the requirement for establishing without delay a Public Service Commission under the Government of India Act, 1919. They planned to allot to the Commission four different purposes; First, the enrollment of employees for public services; Second, proper standardization of qualifications for admission to the services; Third, punitive control and protection of services and finally, advisory roles in regard to the overall service complications.
The Government of India Act, 1935 in Section 264 included that, “there shall be a Public Service Commission for the Federation and a Public Service Commission for each Province”. India attained its Independence in 1947 and framed a constitution according to the ideals of the country. The Constituent Assembly, trusted with this responsibility, did not fail to appreciate the need of a Public Service Commission both for Union and for the Units for purposes of recruitment to the Civil Services as well as for the protection of the interests of the civil servants.
Independence of civil services
The independence of the civil service in giving advice in policy-making and in performing field responsibilities is an important issue that has affected the functioning of the civil services in recent years. In the Constituent Assembly of India, on 10th October, 1949, Sardar Vallabh Bhai Patel said:
“If you want an efficient all-India service, I advise you to allow the service to open their mouth freely. If you are a Premier, it would be your duty to allow your Secretary, or Chief Secretary, or other services working under you, to express their opinion without fear or favour. But I see a tendency today that in several provinces, the services are set upon and told, “No, you, are servicemen, you must carry out our orders.” The Union will go, you will not have a united India if you do not have a good all- India service that has the independence to speak out its mind, which has a sense of security that you will stand by your word and that after all, there is the Parliament, of which we can be proud, where their rights and privileges are secure. If you do not adopt this course, then do not follow the present Constitution.”
In the early years of independence, in the 1950s and even the early 1960s, the nexus between the political executive and civil service was of trust and non-partisan operatives of the civil service. The trust has finally caved into the segmentation of civil servants and their politicisation in many cases. Two emerging areas of relationship occurred, the first in those, where civil servants tried to preserve their integrity and moral behaviour, and in the second where civil servants would bootlick up to the political executive and cater to their needs irrespective of the service rules, good behaviour or ethical conduct as the partisan class may not advantage them with respect to their assignments, allocations, transfers and, other departmental matters.
The Second Administrative Reforms Commission (10th report on personnel administration, 2008) had observed, “Often systematic rigidities, needless complexities and over-centralization make public servants ineffective and helpless in achieving positive outcomes and on the other hand, the negative power of abuse of authority through flagrant violation of law, petty tyranny and nuisance value is virtually unchecked.”
The Hota Committee and the Santhanam committee have recognized that much of the deterioration in the standards of probity and accountability within the Civil services can be traced to the practice of issuing and acting on verbal instructions or oral orders which are not recorded. At present, the scheme of handovers, placements, elevations, disciplinary and other non-personnel matters relating to the higher civil services are ad-hoc and non-transparent. Transfers are often used as instruments of reward and punishment, with officials being frequently transferred on the whims and caprices, as well as the personal needs of local politicians and other vested interests. Officers, especially those in the All India services serving in the state governments have no stability or security of tenure, the arena of transfer is backed by entrenched and powerful vested interests, as frequent transfers generate huge amounts of black money for corrupt officials and politicians, both directly and indirectly.
All commissions and committees dealing with administrative reforms have stressed the need for transfers at all levels to be handled in a non-political, non-partisan, open and transparent manner. The Hota Committee had identified the absence of a fixed tenure for officials as one of the most important reasons for tardy implementation of government policies and programs, lack of accountability, waste of public money and large-scale corruption. “Good administration is not possible without continuity and intelligent administration is not possible without local knowledge.”
What are the constitutional safeguards under Article 311?
Article 311 provides a procedural safeguard. This safeguard has existed since the commencement of administrative services in India in the form of rules, but the safeguard was elevated to constitutional status in 1935.
All civil servants hold office during the pleasure of the Crown and are liable to be dismissed without any reason assigned to them at the time of dismissal under the English Common Law. The Secretary of State for the implementation of the doctrine of pleasure, though, outlined rules which, according to the Judicial Committee, were envisioned to serve as a solemn pledge to the services that the rule of pleasure shall not be used in a whimsical and capricious manner. The nature of the rules under the Government of India Act, 1915, were executive instructions and it merely had the force of law. However, in 1919, Section 96-B was introduced by the British Parliament which reiterated the rule of pleasure, subjecting it to certain conditions and was given statutory force to the provision. In later years, after certain modifications, it culminated as Article 311(1) and Article 311(2) in our constitution.
Article 311(1): – According to this constitutional provision, no civil servant is to be dismissed or removed by an authority ‘subordinate’ to the authority by which he was appointed. Dismissal or removal of a civil servant by an authority subordinate to the appointing authority is invalid.
This requirement doesn’t mean that the removal/dismissal must be by the appointing authority himself or his direct superior. It is enough if the removing authority is of the same/coordinated rank or grade as the appointing authority. The dismissal of a civil servant must comply with the procedure laid down in Article 311. The object of the safeguard is that the government servants are entitled to the judgment of the authority by which they were appointed or some authority superior to that authority and that they should not be dismissed or removed by a lesser authority in whose judgment they may not have the same faith. The underlying idea is that a provision like this will ensure to them a certain amount of security of tenure.
Article 311(2):- This safeguard was introduced for the first time in the 1935 Act under (Sec. 240 (3) ) and its scope was interpreted in I.M. Lai’s case. Both the provisions apply to a person who is a member of the civil service of the Union, All-India Services, the civil services of a state or holds a civil post under the Union or a state. The most significant limitation imposed on the doctrine of pleasure is by Article 311(2). According to this provision, no civil servant can be dismissed, 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. The concept of ‘reasonable opportunity’ being a constitutional limitation on the doctrine of ‘tenure at pleasure’, Parliament or a state legislature can enact a law defining the content of ‘reasonable opportunity’, and prescribing the procedure for affording the said opportunity to the accused government servant. Pending legislation, rules can be made by the executive for the purpose under Article 309. The concept of ‘reasonable opportunity to show cause’ is synonymous with natural justice. According to the Supreme Court, Article 311(2) gives a constitutional mandate to the principles of natural justice.
Conclusion
The purpose for which Articles 310 and 311 were introduced in the Constitution is still relevant in the light of natural justice principles. In course of time, a feeling developed that Article 311 as interpreted by courts, had come to impose elaborate procedural formalities before a delinquent civil servant could be punished. Fulfilment of these formalities appeared to consume too much time and cause undue delay in meting out punishment to guilty officials which resulted in lowering the standards of employee discipline in government establishments. It was thus thought desirable to keep the doctrine of pleasure enshrined in our constitution to cut down some procedural formalities to expedite disciplinary proceedings against civil servants. It must be borne in mind that civil servants can’t scoff off the law if they are guilty and it is precisely for that reason, that the continued use of the doctrine of pleasure is required in India.
References
- Krishna Kumar v Divl Assistant, EE Central Railway, AIR 1979 SC 1912
- Govt. of Andhra Pradesh v N Ramanaiah, (2009) 7 SCC 165
- Parshotam Lai Dhingra v Union of India, AIR 1958 SC 36
- High Commissioner for India v. LM. Lai, AIR 1948 PC 121
- UOI v SB Mishra, (1995) 5 SCC 657
- http://www.jstor.org/stable/43949606
- Sampuran Singh v State of Punjab, AIR 1982 SC 1407
- State of Bihar v Abdul Majid, AIR 1954 SC 245: 1954 SCR 786
- Om Prakash v State of Uttar Pradesh, AIR 1955 SC 600
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