17
Constitutional Protection to Civil Servants
In this chapter, an attempt has been made to discuss the role of civil servants in
running the government, constitutional provisions and their importance to safeguard
the services, implications of doctrine of pleasure in removal of civil servants and
principle of natural justice along with judicial judgements in this respect.
The Role of Civil Service
The makers of our Constitution were fully aware of the role of civil service in a
democracy. H. V. Kamath said in the constituent assembly that ‘a country without an
efficient civil service cannot make progress in spite of the earnestness of those
people at the helm of affairs in the country. Wherever democratic institutions
exist, experience has shown that it is essential to protect the public service as
far as possible from political or personal influence and to give it that position,
stability and security which is vital to its successful working as an impartial and
efficient instrument by which government of whatever political complexion may give
effect to their policies’.1 Likewise, Anantasayanam Ayyanger concluded that ‘a
healthy, efficient and honest public service is the very backbone of a government
or its administration’.2 Further, H. N. Kunzru stated that provision should be made
with the object to ‘secure for the state efficient public servants who will serve
all people equally well and will always watch over the interests of all communities
and the state as a whole’.3 This was found to be all the more important because
ours is a federation having a concurrent list, due to which administration became
complicated. To manage such administrative apparatus was a difficult task.
Provisions in Constitution for civil servants need elaboration. One view is that
administration is not a constitutional issue, it is a legal matter, therefore, it
should not figure in the Constitution. It is a document containing principles and
political philosophy. The other view is that the Constitution should have been
specific about the civil service and they should not be left to the vagaries of a
power coterie. H. V. Kamath, a former civil servant, expressed his fears and
observed that ‘the civil service will apprehend that amenability to ministerial
pressure and a correct attitude towards questions in which a little coterie or the
group for the time being in power is interested will secure them promotions rather
than merit or efficiency.’4 In view of this, our Constitution should have detailed
provisions, but it does not contain any detailed provisions regarding the methods
of recruitment, conditions of service of civil servants, etc. and left them to be
decided by the acts of appropriate legislatures.5 However, the law has not yet been
enacted by the legislature. As a result, the civil servants continue to be governed
by the rules framed by the executive which can be changed at any time in arbitrary
manner. The Supreme Court commented on the frequent changes in the rules in the B.
S. Yadav v. State of Haryana6 case said ‘there was a change in the government which
evidently led to a change in the rules, as if service rules are a plaything in the
hands of the government.’7
The Doctrine of Pleasure
The tenure of our civil servants including defence and all-India services depends
upon the ‘pleasure of the president or the governor’8 in case of state officers. It
means they can hold office as long as the executive head is pleased to retain them.
We borrowed this provision from the British system where the officers hold their
offices during the pleasure of the Crown. Their appointments can be terminated at
any time without assigning any cause. The exercise of pleasure by the Crown, can,
however, be restricted by legislation enacted by Parliament. It is now well
established in British constitutional theory, at any rate as it has developed since
the eighteenth century, that any appointment as a Crown servant, however,
subordinate, is terminable at will unless it is expressly otherwise provided by
legislation. However, in practice, a dismissal takes place only as the result of
well established disciplinary processes.
Though the Crown still retains the right of dismissal at pleasure, the legal
position of civil servants has radically changed in recent years as a result of
legislation and legally binding collective agreements can be entered into between
the Crown and representatives of the staff and those representatives can sue for
breach of any condition of service covered by these agreements. Even a civil
servant can bring an action for unfair dismissal or sue on his conditions of
service. But just as an ordinary employee cannot insist on continuing in
employment, so also a civil servant cannot insist on continuing in employment. The
remedy in both cases is to recover damages for wrongful dismissal.9
These consequences follow not because the pleasure doctrine is a special
prerogative of the British Crown which has been inherited by India and transposed
into our Constitution, adapted to suit the constitutional set up of our republic,
but because public policy requires public interest needs and public good demands
that there should be such a doctrine. The pleasure doctrine is not relevant in
Indian conditions, it should not be applied here, because first, the pleasure of
the president or the governor ultimately becomes the pleasure of the prime minister
or the chief minister. Therefore, it is liable for political use. Second, in our
country politics of patronage or ‘patron-client politics’,10 has emerged and in
such situation civil servants will be forced to fulfil the desire of politically
powerful leaders at the cost of politically unorganized, socially weak and deprived
people at the grassroots level. Third, ours is an independent nation and we need
not borrow each and every principle from Britain. Rather, we should develop our own
according to the need, requirement and ecology of our administration.
The Importance of Constitutional Safeguards
Civil servants implemented the policies, programmes and decisions of the government
faithfully. Nowhere in the world does the administrative system like to have a
civil servant who is undisciplined, inefficient, dishonest or corrupt and has
become a security risk. The power of the government to terminate the services of
the civil servants on the above grounds cannot be denied. But it has to be ensured
that the government does not follow the policy of harassment and victimization of
honest and efficient civil servants on extraneous considerations. To ensure,
against such type of actions, constitutional safeguards are required to check abuse
and misuse, arbitrary and discriminatory exercise of powers by the government. In a
democratic society governed by the rule of law, disregard of it would set aside the
constitutional promise of justice, equality, liberty and freedom. Thus,
constitutional safeguards are essential for liberty and its spirit.
Constitutional Safeguards
The Indian Constitution provides certain safeguards to the civil services so that
they can discharge their duties freely and conscientiously, without any feeling of
insecurity of tenure, under Article 311. These safeguards are as follows:
That no civil servant would be dismissed or removed by an authority subordinate to
that by which he was appointed. It means that an officer can be dismissed or
removed or reduced in rank by an authority superior to the appointing authority.
Before dismissal or removal or demotion in rank a reasonable opportunity will be
given to the officer. What does reasonable opportunity mean? Does it mean giving a
hearing to the officer before framing charges or does it mean hearing him before
taking the final action? This was not discussed in detail in the constituent
assembly, and as per the 16th Amendment of the Constitution, only one opportunity
is essential to be given.
There are three exceptions to the procedural protection given by Clause (2) of
Article 311.
Where an officer is dismissed or removed or reduced in rank on the ground of
conduct which has led to his conviction on a criminal charge. Here the question
arises, what type of criminal charge? A charge of a grave nature or an ordinary
type has not been specified.
When the legitimate authority is satisfied that it is not reasonably practicable to
hold an enquiry, it may dispense with it after indicating the reasons in writing.
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 give to that person
such an opportunity.
These are the safeguards as ‘far as Article 311 is concerned’. But, in our
Constitution, Article 320(3)(c) says that ‘the Union public service commission or
the state public service commission, as the case may be, shall be consulted on all
disciplinary matters affecting a person serving under the Government of India or
the government of a state in a civil capacity, including memorials or petitions
relating to such matters.’ It is implied in this clause that the charge sheet with
the explanation of the officer concerned shall pass through the public service
commission. Thus, our Constitution makers tried to give procedural protection to
our civil servants against possible arbitrary use of executive powers by involving
public service commission. However, the protection amounts to very little because
opinion tendered by the public service commission is not binding on the government.
The second way is to go to the court and seek protection from judiciary, but
judicial protection will also not be very effective because the courts will only
examine whether the prescribed procedure is followed or not. The case of Union of
India v. Tulsi Ram Patel is illustrative of this point.11 It shows the
ineffectiveness of judicial protection. In this case, Patel was dismissed under
Article 311(2) and he went to the Supreme Court. A five-judge bench including the
chief justice of India decided the case in favour of the Government of India. The
judges argued that the express language of the second provision to Article 311(2)
is inevitable and there is no escape from it. The learned judges opined that
although it may appear harsh, the second Proviso has been inserted in the
Constitution as a matter of public policy and public interest and for public good.
It is in the public interest and for the public good that a government servant who
has been convicted of a grave and serious offence or on rendering him unfit to
continue in office should be summarily dismissed or removed from service instead of
being allowed to continue in it at public expense and to public detriment. Further,
the Court pointed out that ‘it is, however, as much in public interest and for
public good that government servants who are inefficient, dishonest or corrupt or
have become a security risk should not continue in service and that the protection
afforded to them by the Acts and Rules made under Article 309 and by Article 311 be
not abused by them to the detriment of public interest and public good.’
When a situation as envisaged in one of the three clauses of the second Proviso to
Clause (2) of Article 311 arises, and the relevant clause is properly applied and
the disciplinary inquiry dispensed with, the concerned Government servant cannot be
heard to complain that he is deprived of his livelihood. The livelihood of an
individual is a matter of great concern to him and his family, but his livelihood
is a matter of his private interest and where such livelihood is contrary to public
interest and for public good, the former must yield to the latter.
Principles of Natural Justice
The Court held the view that the principle of natural justice contained in Article
14 can be modified and in exceptional cases can be excluded. In this case, the
principle of natural justice has been excluded by a constitutional provision,
namely, the second proviso to Clause (2) of Article 311. The opportunity of hearing
is wholly ruled out under second proviso and it cannot be reintroduced by recourse
to Article 14. The second proviso is based on public policy and is in public
interest and for public good. The Constitution makers who inserted it in Article
311(2) were the best persons to decide whether such an exclusive provision should
be there and the situation in which this provision should apply. A government
servant is not wholly without any opportunity where the second provision applies,
though there is no prior opportunity to a civil servant to defend himself against
the charges made, he has the opportunity to go for an appeal arguing that the
charges made against him are not true and this would be a sufficient compliance
with the requirements of natural justice. Thus, this case is an eye opener and
judicial protection is no protection at all.
Soon after the judgement, many trade unions and even members of Parliament
expressed their reservation and concern about the judgement. In Delhi, many trade
unions organized a massive rally in protest against this judgement. On the other
hand, some state governments, taking advantage of this judgement, removed several
government employees.12 Thus, the judgement has been misunderstood by the
government as well as by employees associations.
The decision in the case of Union of India v. Tulsi Ram Patel needs to be reviewed
first, because it appears that this decision has been given in haste because the
then chief justice of India, Y. V. Chandrachud, was about to retire. Second, it is
based on the doctrine of pleasure which is a legacy of colonial government and
against social interest. To give a fresh lease of life to such a principle is
unjust and unreasonable. Though the judgement is based on facts, it will lead to
misuse of principles and theories of law inherent in it. If the points of the
judgement are not understood properly and the limits of the case are not well
taken, it will impose a permanent emergency on the government servants. Therefore,
it is submitted that the Tulsi Ram Patel’s case should not be treated as a general
law for disciplinary actions under Article 311(2) but its application should be
rare, only if national security demands. The intention of our Constitution makers
in providing safeguards to civil servants was to protect them from arbitrary
victimization, discriminatory and fanciful actions of the government.
The question is where is the protection against the wrongful punishment of an
officer by a determined political leader who holds the reins of power. The answer
is in the negative. In our Constitution, the president/governor is a nominal head
and he always acts on the advice of the ministry, meaning thereby that if a prime
minister/chief minister is determined to dismiss an officer, reduce him in rank or
not to promote him, there is nothing to protect the civil servant. H. V. Kamath
pointed out in the constituent assembly that if a chief minister informs an officer
that ‘in the interests and security of the state, I hereby take action against you.
You are removed from service.’13 That is the end of it. This provision will always
hang like Damocles’ sword over the neck of a civil servant. Even if this step is
not taken by the political bosses, in practice, it will be sufficient for an
officer to do ‘the needful’ for the politicians who are in power and for their
party.14 This shows that services do not have even that amount of protection which
an ordinary citizen has got the right to be heard before being condemned, that, ‘to
refuse to give opportunity is to refuse justice’, and that the expression ‘security
of the state’ which is so dear to the heart of everyone is a much exploited
expression and has been needlessly over-emphasized in Proviso (C).15
The fact is that our services have not been put on a firm foundation. The
constitutional provisions should be amended in such a way so that efficient, honest
and hard-working civil servants should feel encouraged on one hand and on the other
such servants should be punished who disregard their basic duties and set bad
examples in society. Law implementers should not be law breakers. Civil servants
who involve themselves in heinous social crimes, like rape, smuggling, criminally
assaulting others; are involved in cases of moral turpitude; or do not implement
policies meant for the poor segment of population should be severely punished.
