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Critically analysis of Doctrine of Pleasure

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Author: Shashwat Agarwal - Semester V student of Nirma University

Category: Home \ Constitution \ Constitutional Law

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Effective and efficient governance is the expectation of every civilized society. This role is performed by the government which is one of the four essential elements of the state viz. The Executive, The Legislature and The Judiciary. A government is a set of institutions that exercises control through legal devices and imposes penalties on those breaks the law. For this purpose, social acceptance of the power of the government to control people must be accepted by the people voluntarily and recognized by them. A government normally functions by dividing its functions between its organs. Each organ performs some specific functions. It primarily performs three main functions i.e. making of laws, enforcing the laws and adjudicating disputes.

The Legislature, Executive and Judiciary are complementary to each other and are meant to work in perfect harmony while adhering to principles of separation of power. "It is the rule of law that is supreme”. There should be transparency, accountability and adherence to the rule of law, which depends on a systemic arrangement and coherency between the three arms of the state, viz. the Executive, Legislature and Judiciary. The Executives implements the laws and the orders which are passed by the Legislature and the Judiciary punishes the person who tries to disobey those laws.

The civil servants, who are also known as to be the members of the Executive wing of the nation, who are also known as the non-political and non elected functionaries thus helping them to prevail in the nation a proper law and order situation. And to limit their powers, the Indian Constitution has provided Articles 309 to 323. Articles 309 to 323 of the Indian Constitution have elaborately discussed the provisions relating to the Centre and the State services. The Constitution thus seeks to inculcate in the civil servants a sense of security and fair play and to give the best to the nation.

With lot many cases coming with corruption of civil servants and other government official it is interesting to know what procedure has been provided in the constitution of India to punish them. In specific, the Indian Constitution has laid down a doctrine which is known as Doctrine of Pleasure. Doctrine of Pleasure applies not only upon the conduct of a person in the course of his official duty, but can also be applied in case of his illegal or morally wrong behavior in his private life. Article 310(1) says about the Doctrine of Pleasure and the provision is such that the civil servants and the defense personnel would hold the office upon the ‘pleasure’ of the President/Governor respectively at the Union and the State levels.

But, sometimes there is wrong judicial procedure which is being initiated and due to this the affected party fails to receive the arrears of his salary. The hon’ble Supreme Court in the case of State of Bihar v. Abdul Majid had granted aggrieved party the arrears of his salary on the basis of quantum meruit i.e. for the value of the services rendered, as he was later reinstated in the service. In the Constitution itself, there is a provision in the Article 310 (2) which states that if a person is appointed in the job on the basis of any special qualification then if the President/Governor thinks fit can secure his services by granting him termination only after the expiration of the term and there is no role for the premature retirement.

Historical Background:
The East India Company sent out to India its own servants and so did the Crown, and from the earliest times, under the various Charters given to the East India Company, the Crown could at its pleasure remove any person holding office, whether civil or military, under the East India Company. The Court of Directors of the East India Company had also the power to remove or dismiss any of its officers or servants not appointed by the Crown.

Section 74 of the Act of 1833 “made it lawful" for His Majesty by any Writing under His Sign Manual, countersigned by the President of the said Board of Commissioners, to remove or dismiss any person holding any office, employment or commission, civil or military, under the said Company in India, and to vacate any Appointment or Commission of any person to any such office or employment. "Section 75 provided that nothing contained in that Act would take away the power of the Court of Directors to remove or dismiss any of the officers or servants of the Company" but that the said Court shall and may at all times have full Liberty to remove or dismiss any of such officers or servants at their will and pleasure.

"By the end of the nineteenth century a well-organized civil service had developed in India, the control over it being vested in the executive, and the members of the "civil service of the Crown in India" were governed in the matter of their appointments as also the regular of the conditions of their service, such as, classification methods of recruitment, pay and allowances, and discipline and conduct, by rules made by the executive. In the Government of India Act of 1919, specific provisions were incorporated which enabled the Secretary of India to make rules for regulating the classifications of the civil services in India, also including the method of their recruitment, their conditions of services, pay allowances and discipline and conduct.

The Government of India (Amendment) Act, 1916 didn’t make any reference to the tenure of members of the civil service in India. This was for the first time done by the Government of India Act, 1919, which introduced several amendments in the 1915 Act including the insertion of Part VIIA consisting of section 96 B to 96 E. Section 96 B (1) provided that the civil servant is obliged to hold the office during the pleasure of His Majesty and the civil servant cannot be dismissed by any other person who is subordinate to that civil servant. The Secretary of the State was entitled to reinstate back the wrongly dismissed servant. (2) provides for the same provisions which were there in the Section 75 of the Act of 1833.

(3) provides shall prejudice the rights to which any person may, or may have, become entitled under the provisions in relation to pensions contained in the East India Annuity Funds Act, 1874

Section 96B of the Government of India Act, 1919, for the first time expressly stated that every person in the civil service of the Crown in India held office "during His Majesty's pleasure." This was, however, made subject to three safeguards, namely-
(1) a civil servant could not be dismissed by any authority subordinate to that by which he was appointed;
(2) the Secretary of State in Council had the power, unless he provided to the contrary in the rules, to reinstate any person in service who had been dismissed; and
(3) if a civil servant appointed by the Secretary of State in Council thought himself wronged by an order of an official superior in a Governor's Province and on due application made to that superior did not receive the redress to which he considered himself entitled, he could, without prejudice to any other right of redress, complain to the Governor of the Province in order to obtain justice and the Governor had to examine such complaint and require such action to be taken thereon as might appear to him to be just and equitable.

In the later developments, when the Indian Parliamentarians started to make some kind of rules and regulations for India, Section 240 of the 1935 Act which is relevant. Section 240 provided as follows: 240. Tenure of office of persons employed in civil capacities in India.-
(1) Except as expressly provided by this Act, every persons who is a member of a civil service of the Crown in India, or holds any civil post under the Crown in India holds office during His Majesty's pleasure.
(2) No such person as aforesaid shall be dismissed from the service of His Majesty by any authority subordinate to that by which he was appointed.

(3) No such person as aforesaid shall be dismissed or reduced in rank until he has been given a reasonable opportunity of showing cause against the action proposed to be taken in regard to him: Provided that this sub-section shall not be apply-
(a) where a person is dismissed or reduced in rank on the ground of conduct which has led to his conviction on a criminal charge; or
(b) where an authority empowered to dismiss a person or reduce him in rank is satisfied that for some reason, to be recorded by that authority in writing, it is not reasonably practicable to give to that person an opportunity of showing cause.

(4) Notwithstanding that a person holding a civil post under the Crown in India holds office during His Majesty's pleasure, any contract under which a person, not being a member of a civil service of the Crown in India is appointed under this Act to hold such a post may, if the Governor-General, or, as the case may be, the Governor, deems it necessary in order to secure the service 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.

After the Indian independence, the constitutional framers had inserted the above provisions as it is until they are in consistence with the Constitution.
This was the historical background of the development of the constitutional provisions relating to the services under the Union and the State.

Constitutional Provisions with small commentaries:
Article 310(1) Except as expressly provided by this Constitution, every person who is a member of a defense service or of a civil service of the Union or of an all-India service or holds any post connected with defense 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.

(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 defense 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.

Article 310 talks about the pleasure of the President/Governor for the purpose of deciding the tenure of the people who are in the civil services or are in the defense services and also for those personnel who have been appointed due to their special qualification.

According to Article 309, Parliament or a State Legislature can regulate the recruitment and conditions of services of persons appointed to the public services and posts in connections with the affairs of the Union or the State.

Article 309: 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.

The rules which are made under the proviso to Article 309 or under such acts referable to that article are subject to the Article 310 (1). Article 309 is a genesis and the growth from the Section 241 (1) and (2) of the Government of Indian Act 1935.

Article 311talks about the dismissal, removal or reduction in rank of persons employed in civil capacities under the Union or a State.-
(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 a foresaid 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 in regard to him:
Provided that this clause shall not apply-
(a) where a person is dismissed or removed or reduced in rank on the ground of conduct which has led to his conviction on a criminal charge;
(b) where an authority empowered to dismiss or remove a person or to reduce him in rank is satisfied that for some reason, to be recorded by that authority in writing it is not reasonably practicable to give to that person an opportunity of showing cause; or
(c) where the President or Governor or Rajpramukh, 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.

(3) If any question arises whether it is reasonably practicable to give to any person an opportunity of showing cause under clause (2), the decision thereon of t he authority empowered to dismiss or remove such person or to reduce him in rank, as the case may be, shall be final.

Article 311 as a complete article is very important for understanding the Doctrine of Pleasure. Article 311 finds its genesis from the sub-sections (2) and (3) of the Section 240 of the Government of India Act, 1935. Clause (1) of Article 311 talks about the restriction in the arbitrary power which could be exercised and hence the clause says that the dismissing authority cannot be a person of the rank lower than that of the person who is being dismissed. The Constitution (15th Amendment) Act, 1963 substituted the clauses (2) and (3) was added particularly to provide that a civil servant, particularly against whom the dismissal order is passed has to be informed about the charges and should be given a reasonable opportunity of giving him a chance to put forward his stand in front of the committee.

The Article 311 acts as a proviso to the Article 310 (1) of the Indian Constitution. The clause (2) refers to the 3 forms of punishments: dismissal, removal and reduction in rank. An appointment to a temporary post for a certain specified period also gives the servant so appointed a right to hold the post for the entire period of his tenure and his tenure cannot be put an end to during that period unless he is, by way of punishment, dismissed or removed from the service. Except in these two cases the appointment to a post, permanent or temporary, on probation or on an officiating basis or a substantive appointment to a temporary post gives to the servant so appointed no right to the post and his service may be terminated unless his service had ripened into what is, in the service rules, called a quasi-permanent service.

Article 311 does not, in terms, say that the protections of that article extend only to persons who are permanent members of the services or who hold permanent civil posts. Art. 311, it is obvious that if that article is limited to persons who are permanent members of the services or who hold permanent civil posts or are in any defense post, then the constitutional protection given by cls. (1) and (2) will not extend to persons who officiate in a permanent post or in a temporary post and consequently such persons will be liable to be dismissed or removed by an authority subordinate to that by which they were appointed or be liable to be dismissed, removed or reduced in rank without being given any opportunity to defend themselves.

Persons who are merely officiating in the posts cannot be said to "hold" the post, for they only perform the duties of those posts. When there is a conflict between a rule and the executive instruction, it is the rule which prevails. The latter can make the provision only in the matter which is not covered in the rules.

The Supreme Court has recently justified the pleasure doctrine on the basis of ‘public policy, public interest and public good’ in so far as inefficient, dishonest and the person who is a threat to the security should not continue to be in service. It was iterated by the hon’ble Supreme Court in Union of India v. Tulsiram Patel .

Under Article 310, the government has the power to punish any servant on the account of misconduct committed not only I the officiating duty but also in the private life. There should be some public decency, morality in his private life too. A permanent employment assures security and efficient and incorrrupted work of public administration.

The satisfaction and the pleasure which has been envisaged by clause (c) of the 2nd provision to Article 311 (2) must be that of the President himself. It cannot be delegated . But, this view was subsequently changed in the 7 Judge bench and was said that the President must have some personal satisfaction . Therefore, now the President’s satisfaction is based upon the aid and advice of the Council of Ministers. Tha satisfaction can be based upon the secret information relating to the security of the State and like matters and the reasons of the satisfaction of the President is not needed to be noted/ recorded.

End notes:
# A.I.R. 1985 S.C. 1416.
# Sardari Lal v. Union of India, A.I.R. 1995 S.C. 1403.
# Ram Jawaya Kapoor v. State of Punjab, A.I.R. 1974 S.C. 549

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Authors contact info - articles The  author can be reached at: shashwat.nirma@legalserviceindia.com

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Date of Publication: 14 Feb 2010

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