Short essay on the importance of Public Services in India

The standard and efficiency of administration in any country depend ultimately on the caliber, training and integrity of the members of the Public Services.

When the aim of a Constitution is the establishment of a welfare State, it is evident that the functions of such a State will embrace a wide range of activities. The successful operation of these activities depends upon the availability of men of vision, ability, honesty and loyalty to man the administrative apparatus of the State.

The concern of the framers of the Constitution to ensure this is clear from the provisions dealing with the constitution and functions of the Public Service Commissions. We have also seen the constitutional guarantee of equality of opportunity in matters of public employment.

Not content with these, they went further and made certain special provisions dealing with the Public Services in India in order to make them feel contented and secure in their positions.

One of the major problems of a democratic government is the proper adjustment between the “political wing” and the “civil service wing” of the administrative machinery.

The former is the representative of the people, and, as such, enter and leave office according to the will of the people. The latter, on the other hand, are permanently in office and are often called upon to serve different masters at different times; to translate into action different policies at the behest of different masters.

This they can do only if they maintain an attitude of political detachment and eschew partisan approach. At the dame time, they should be loyal to the government of the day. Let us examine the extent to which this ideal is embodied in the Constitution.

Article 309 empowers Parliament and the State Legislatures to regulate the recruitment and the conditions of service of the Public Services of the Union and the States respectively.

Article 310 ensures that all persons who are members of the Defence Services or of the civil services of the Union or of All India Services hold office during the pleasure of the President. Similarly, members of State Services hold office during the pleasure of the Governor.

Since the President or the Governor is only the constitutional head of the State, the powers of the President or the Governor here are those which are exercised by the Union Cabinet or the State Cabinet.

Hence, the Cabinet wields the real power of controlling all categories of services. This is in harmony with the democratic and responsible character of the Government which ensures the responsibility of the Executive to the Legislature.

“To hold office during the pleasure of the President or Governor” does not, however, mean that a member of the public services can be dismissed arbitrarily by the President or the Governor. There are certain constitutional safeguards against such an action.

These are embodied in Article 311 in the following manner:

(1) No member of a civil service of the Union or an All India Service or a State Service can be dismissed or removed by an authority subordinate to that by which he was appointed.

(2) No such member shall be dismissed or removed or reduced in rank until he has been given a reasonable opportunity of showing cause against the action proposed to be taken against him.

The object of this Article as Ambedkar made it clear in the Constituent Assembly is to lay down a general proposition that in every case of action which affects a member of the civil service adversely, notice shall be given.

“I should have thought that was probably the best provision that we have f the safety and security of the civil service, because it contains a fundamental limitation upon the authority to dismiss.” There can hardly be any doubt that one of the most important aspects of the public service is “Permanence in office”.

This is so closely associated with the “security of service” that it is difficult to think of the one without at once associating it with the other. Continuity of personnel is of great importance. Constant change in the services is costly in money and more costly in effectiveness.

Civil servants must be given such security of tenure as will give them confidence to deal forthrightly with their “masters”. This is to a large extent obtained by the Constitutional guarantees mentioned above.

There are, however, a few exceptions where the civil servants are not given all these facilities to defend themselves. Theses are:

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

(ii) Where in the interest of the security of the State, it is not expedient to give such an opportunity to the Civil servants.

During the last five decades and more, the High Courts and the Supreme Court were, in a series of cases, called upon to declare the validity or otherwise of dismissals or removals of public servants from service by the Union or the States in the light of the protections provided by the Constitution.

In Shyam Lai vs. State of U.P. the Supreme Court held that” a compulsory retirement does not amount to dismissal or removal and, therefore, does not attract the provisions of Article 311″.

Similarly, termination of contractual service by notice under one of the provisions of the contract also does not amount to dismissal or removal contemplated under Article 311.

In Mahesh Prasad vs. State of U.P. the Court held that Article 311(1) does not mean that the removal from service must be by the very same authority who made the appointment or by his direct superior.

It is enough if the removing authority is of the same rank or grade. Giving reasonable opportunity of showing cause against the action proposed to be taken in regard to a civil servant does not imply giving more than one such opportunity.

Further, if the civil servant concerned does not make use of such opportunity given to him, he does so at his own risk.

The question as to whether non-compliance with the provisions of Article 320. under which the Government is expected to consult the Public Service Commission in every case of disciplinary action, will affect an action properly taken against a civil servant under Article 311 came up for consideration before the Supreme Court in State of U.P. vs. M. L. Srivastava.

The Court held that “Article 320 cannot be held to be mandatory and is not in the nature of a rider to Article 311 and Article 311 is not controlled by Article 320.

The Supreme Court had occasion to make an exhaustive analysis of the scope and ambit of the constitutional safeguards embodied in Article 311 in the light of all judicial decisions until 1958 in the case of Purushotam Lai Dhingra vs. Union of India.

The facts of this case, briefly, are as follows: Purushotam Lai joined the Railway service as a signaler in 1924. As a result of successive selections to higher posts, he became Chief Controller (a Class III services post) in 1950.

In March 1951 he was selected by a selection board for the post of Assistant Superintendent, Railway Telegraphs, which was a gazetted post in Class II Officers’ cadre. He joined duty in the new post in July 1953.

In 1953 his superior officer made certain adverse remarks against him in his confidential report for the year ending March 1953. The views expressed in this report were confirmed by another superior officer soon after.

These remarks were placed before the General Manager who wrote: “I am disappointed to read these reports. He should revert as a subordinate till he makes good the shortcoming noticed in this chance of his as an officer. Portions underlined are to be communicated”.

The appellant made a representation against the remarks made against him. But this did not produce any favourable result. By August 1953 orders were issued reverting him to Class III. He appealed unsuccessfully first to the President of India through a representation. In 1955 he filed a writ petition in the Punjab High Court.

The Judge who heard the petition declared that since Purushotam Lai was not given an opportunity to show cause against the action proposed to be taken in regard to him, provisions of Article 311 were violated and hence the action taken against him was invalid.

On a Letters Patent Appeal filed by the Union of India, a Division Benched of the High Court consisting of two judges, reversed the above order and dismissed the writ petition. Hence the appeal to the Supreme Court by the petitioner.

The Supreme Court was divided four to one in its decision. Speaking on behalf of the major. Chief Justice Das made the following important observations:-

“Subject to exceptions contemplated by the opening words of Article 310(1), e.g., Articles 124, 148, 218 and 324, our Constitution has adopted by the said Article 310 (1) the English Common Law Rule that public servants held office during the pleasure of the President or the Governor as the case may be and it has by Article 311 imposed two qualifications for the exercise of that pleasure; in other words, the provisions of Article 311 (1) operate as a proviso to Article 310(1). Upon Article 311 two questions arise, namely: (1) who are entitled to protection; and (2) the ambit and scope of protection”.

“To limit the operation of the protective provisions of this Article to persons holding permanentcivil posts or who are permanent members of the services will be to add qualifying words to the Article which will be contrary to sound principles of interpretation of the Constitution or a statute.

There could also be no rational basis for the distinction. The Article makes no distinctions between the two classes, permanent and temporary (officiating, provisional and on probation included) both of which, therefore, are within its protections”.

“The two protections under the Article are (1) against being dismissed or removed by an authority subordinate to that by which the appointment had been made; (2) against being dismissed, removed or reduced in rank without being heard.

The words ‘dismissed’, ‘removed’ and reduced in rank’ have acquired a special meaning at the time of the Constitution and it is only in those cases where the Government intends to inflict those three forms of punishment that the Government servant must be given reasonable opportunity of showing cause against the action proposed to be taken in regard to him.

Therefore, if the termination of service is sought to be brought about otherwise than by way of punishment, then the Government servant whose service is so terminated cannot claim the protection of Article 311 (2)”.

“The principle is that when a servant has a right to a post or to a rank either under the contract of employment, express or implied or under the Rules governing the conditions of service the termination of service of such a servant or his reduction to a lower post is by itself and prima facie a punishment, for it operates as a forfeiture of his right to hold the post or the rank and to get the emoluments and other benefits attached thereto.

But if the servant has no such right to the post or that rank as when he is appointed to a post permanent or temporary either on probation or on an officiating basis and whose temporary service has not ripened to a quasi-permanent service under the appropriate Rules, the termination of his employment does not deprive him of any right and cannot therefore by itself be a punishment.

In other words if the Government has the right to terminate the employment at any time then such termination in the manner contemplated by the contract or by the Rules is prima facie and per se not a punishment and does not attract the protective provisions of Article 311″.

“Even in such cases if the Government chose to proceed against the servant on the basis of misconduct, inefficiency and the like and inflict on him the punishment of dismissal, removal or reduction carrying with it penal consequences, the servant will be entitled to protection under Article 311 (2).

“The two tests to be applied by Courts are (1) whether the servant had a right to the post or the rank or (2) whether he has been visited with evil consequences.

If the case satisfied either of the two tests then it must be held that the servant had been punished and the termination of service must be taken as a dismissal or removal from service or the reversion to his substantive post must be regarded as a reduction in rank, attracting the provision in Article 311 (2) and the provision there of must have been complied with; otherwise the termination of service or reduction in rank must be held to be wrongful.”

“The appellant was appointed to the higher post on an officiating basis and under the Railway Code and Fundamental Rules he had no right to continue in the post. Such appointment was terminable at any time, on reasonable notice, by Government and so his reversion did not operate as a forfeiture of any right and could not be described as ‘reduction in rank’ by way of punishment.

It would not amount also to ‘dismissal or removal’ because of Note I to Rule 1729 of the Railway Code (applicable to the appellant). Further it did not entail the forfeiture of his future chances of promotion or affect his seniority in his substantive post. He cannot complain that the requirements of Article 311 (2) were not complied with.”

In his dissent, Justice Vivian Bose agreed generally with the interpretation of Article 311 by the majority. But he said that the words “dismissal, removal and reduction in rank” have special meaning and that Article 311 (2) applies when penal consequences ensure, that the Article is attracted whenever a right is infringed thereby. He said:

“The test must always be whether evil consequences over and above those that would ensure from a ‘contractual termination’ are likely to follow and Article 311 (2) cannot be confined to the penalties prescribed by the various rules or in other words the Article cannot be evaded by saying in a set of rules that a particular consequence is not a punishment or that a particular kind of action is not intended to operate as a penalty”.

“In the instant case, though the order of reversion is non-committal, the General Manager’s remarks or the otherwise irrelevant administrative nothings which form the real foundation for the order, i.e.,… till he makes good his shortcomings noticed in this chance of his as an officer cannot be ignored and Article 311(2) is attracted thereby”.

“The real hurt does not lie in any of those things – the form of action or the procedure followed or what operated in the mind of a particular officer – but in the consequences that follow and, in my judgment, the protection of Article 311 are not against harsh words but against hard blows.

It is the effect of the order alone that matters; and in my judgment, Article 311 applies whenever any substantial evil follows over and above a purely ‘contractual one’. I do not think that the Article can be evaded by saying in a set of rules that a particular consequence is not a punishment or that a particular kind of action is not intended to operate as a penalty.”

In Khemchand vs. the Union of India the Court said:

“The reasonable opportunity of showing cause against the action proposed includes:

(a) An opportunity to deny his guilt and establish his innocence which he can do only if he is told on what the charges are based;

(b) An opportunity to defend himself by cross-examining the witnesses produced against him and by examining himself or any other witnesses in support of his defense; and finally;

(c) An opportunity to make his representation as to why the proposed punishment should not be inflicted on him which he can only do if the competent authority after the inquiry is over and after applying his mind to the gravity or otherwise of the charges proved against the government servant tentatively proposes to inflict one of the three punishments and communicates the same to him.”

Can the services of a government servant be terminated on the ground of “subversive activities”? This question arose in Balakotaiah vs. Union of India in which the appellant challenged the validity of the notice under Rule 3 of Railway Service (Safeguarding of National Security) Rules, 1949, and the orders of suspension and dismissal served on him.

It was contended on behalf of the appellant that the Security Rules were void as they militated against the constitutional protections under Article 311 and the Fundamental Rights guaranteed under Articles 14 (equality before law and equal protection of laws) and 19( l)(c) (right to form associations). The Court rejected these contentions and unanimously held:

(1) It may be that the connotation of the words “subversive activities” in Rule 3 of the Security Rules is wide but that is not to say it is vague and indefinite. The object of the Rules as recited in the short title is safeguarding the national security which is emphasised inthe provision to Rule 3.

The words “subversive activities” in the context of national security is sufficiently precise to sustain a valid classification. The Security Rules, 1949, are not illegal as being repugnant to Article 14 of the Constitution.

(2) The appellants have, no doubt, a fundamental right to associations under Article 19 (1) (c) (and to be members of the Communist Party and trade unions); but they have no fundamental right to be continued in employment by the State and when their services are terminated by the State they cannot complain of the infringement of any of their constitutional rights whenno question of violation of Article 311 arises.

(3) The terms of employment (applicable to the appellants) provide for their service beingterminated on a proper notice and so no question of premature termination arises. Rule 7 of the Security Rules preserves their right to all the benefits of pension, gratuities and the like they would be entitled to under the rules.

The orders terminating their services stand on the same footing as an order or discharge under Rule 148 of the Railway Establishment Code and it is neither one of dismissal nor of removal so as to attract Article 311 of the Constitution.

(4) The rules are clearly prospective in that action there-under is to be taken in respect of subversive activities which either exist now or are likely to be indulged in, in future. That the materials for taking action in the latter case, as in the notices in the instant case, are drawn from the conduct of the employees prior to the enactment does not render them retrospective.

Can a government servant join an association of civil servants which has not been recognised by the Government? The Supreme Court answered the question in the positive and declared Rule 4-B of the Central Services (Conduct) Rules, 1955, to be unconstitutional and void.

It was unconstitutional because it contravened Article 19(1) (c) of the Constitution which guaranteed the right to from associations by prohibiting a government servant from joining or continuing to be a member of any association of government servants which has not been recognised or whose recognition has been withdrawn by the Government.

By the same decision the Court declared that Rule 4-A, which prohibits any form of demonstration, was also violation of the government servants’ rights. But in so far as the said rule prohibited a strike it could not be struck down for the reason that there was no fundamental right to resort to strike.

Has the State the power under Article 310 to punish a government servant for acts unconnected with his official duties? This question was answered in the affirmative by the Allahabad High Court in the case of L.N. Pande.

Delivering the judgment of the Court, Justice Dhawan said that “the action taken against the official would be justified if the Government was of the opinion that the act in question amounted to misconduct, unbecoming or unworthy of a Government official or violated the unwritten code of conduct, provided that the Government complied with the provisions of Article 311 and gave a reasonable opportunity to the accused official to shows cause against the action proposed to be taken against him.

He further pointed out that if the contention that a government servant was not answerable to the Government for misconduct committed in his private life was correct, the result would be that however reprehensible or abominable a government servant’s conduct in his private life might be, the Government would be powerless dispense with his service unless and until he committed a criminal offence or committed an act which was specifically prohibited by the Government Servants’ Conduct Rules.

This would clothe government servants with an impunity which would place the government in a position worse than that of an ordinary employer. It would be almost destructive of the principle laid down in Article 310 that every government servant held office during the pleasure of the President or Governor, as the case might be.

The power of the State to dispense with the services of any government servant, though hedged with safeguards contained in Article 311 and other provisions of the Constitution, was real.”