Page Count: 104

Table of Contents

Part IV: Tenure of Office 3

Chapter 1: Tenure at Pleasure 3
Chapter 2: Security of Tenure 5
Chapter 3: Removal, Dismissal and Reduction in Rank 12
Chapter 4: Reduction in Rank 19
Chapter 5: Termination of Temporary Service 25
Chapter 6: Exceptions to Article 311(2) 27
Chapter 7: Retirement 33
Legality of Retirement 33
General order extending service 34
Premature Retirement 34
Bishwanath Prasad Singh v. State of Bihar 34
Ramachandra Raju v. Orissa 34
Order to be Prescribed by Authority 34
Premature Retirement Judicial Review 34
Premature Retirement and Security of Tenure 35
Other relevant stuff 35
Chapter 8: Limitation imposed by Article 311(2) on Legislative Power of State 36
Allowed Provisions 36
Disallowed Provisions 36
Cases 36
Part V 37
Chapter 1: Judicial Service 37
INTRODUCTION 37
THE OBJECT OF SPECIAL PROVISIONS 37
WHY? 38
Article 233: APPOINTMENT, POSTING AND PROMOTION OF DISTRICT JUDGES 38
Bare provision 38
Mode of Recruitment 39
Direct recruitment 40
Consultation with the High Court- for Judicial Services 40
Power of the Governor to frame recruitment rules 41
Transfer of district judges 41
ARTICLE 234: RECRUITMENT OF PERSONS OTHER THAN DISTRICT JUDGES 42
Power to create post 42

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 Manner of consultation 43
Rules to be subject to Constitution 43
Article 235: Control over subordinate courts 44
Article 235 44
Power of the high court not subject to any outside control 45
Two restrictions on the power of the High Court 45
Right of appeal: Scope?- 45
Power to Fix Seniority: 46
Effect of provisions in law relating to reorganisation of states 46
Power to fix age of superannuation: 46
Enquiry ordered by the Governor invalid 46
Suspension 47
Recommendation of the High Court Binding 47
Power under article 235 can be entrusted to a judge or committee of judges 47
Part VI: 48
Public Service Commission 48
Composition 48
Term of Office and Security of Tenure 48
Prohibition on further employment (re-employment) 48
Conditions of service of members and staff of the commission 48
Functions of Public Service Commission 49
Consultation 49
Selection Procedure 49
Part VII: Recruitment and Conditions of Service 50
Chapter 1: Recruitment 50
Chapter 2: Promotions 58
Chapter 3: probation and Officiation 67
Chapter 4: Seniority 70
Chapter 5: Temporary Service 76
Chapter 6: Disciplinary Proceedings 78
Part XI: Administrative Tribunals 85
Handbook (Suspension- Resignation) 95

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Part IV: Tenure of Office

Chapter 1: Tenure at Pleasure

Under Article 310, every person who is a member of the defence service or of a civil
service of the union or of any all India service or holds any post connected with the
defence or holds any civil post under the union, holds office during the pleasure of the
President, and every such office holder under the State government holds office at the
pleasure of the Governor. This is embodied in the Latin maxim- durante bene placito
(during pleasure). For a civil servant, the tenure can be terminated anytime without
any cause.

The pleasure doctrine in Article 310 has been upheld by the Supreme Court on the
basis of public policy, public interest and public good insofar as efficient, dishonest or
corrupt officials who have become a security threat should not be in service.

Limitations on pleasure under the Constitution:

Article 311(2) places restrictions on the exercise of pleasure. When there is a breach of
the restriction in Article 311(2) and the servant is removed.
1. Article 311(1): no civil servant shall be dismissed or removed by a subordinate
authority to the authority by which he was appointed- such dismissal will be
invalid. The dismissal need not be by the appointing authority or by the direct
superior authority- it may be by the same or co-ordinate rank authority also.
2. Article 311(2): no civil servant shall be dismissed or removed except after an
inquiry in which he knows of the charges against him and has been given an
opportunity of being heard. It does not apply to minor punishments like
censure, withholding promotion or increments.
● Exception 1: when the civil servant is dismissed on the ground of conduct
which has led to his conviction in a criminal charge.
There shall be no disciplinary inquiry if the cause is obvious, and if it has
already been proven. Further opportunity need not be provided if he has
had the benefit of a full-fledged trial before the criminal courts, unless
the punishment inflicted is fairly arbitrary or excessive.
In a pending appeal, the servant can be dismissed and the department
need not wait till the appeal or revision is finally decided. If it succeeded,
he could be reviewed and ensured justice.

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 ● Exception 2: when the authority empowered to dismiss the civil servant
is satisfied (and records reasons in writing) that it is not reasonable to
hold such inquiry.
If the inquiry is impracitcable, the authority needs to show total and
absolute impracticability in the holding of the inquiry. The reasons for
not holding such an inquiry should be germane to the cause of holding
the inquiry. No illegal, arbitrary or act out of ulterior motive should be
there.
● Exception 3: when the president or governor is satisfied that the security
of the state demands that such opportunity should not be given.
This is only the instance of absolute pleasure of the governor or president
(in a constitutional sense), and implies that the security of the state is the
highest concern. Subjective satisfaction is important, and there are no
objective standards for the same.
Union of India v. Balbir Singh: Respondent was accused in Indira
Gandhi’s assasination- dismissed from Delhi police without inquiry-
dismissal on the basis of a high powered committee recommendation- IB
said it had bearing on state security- he was acquitted in criminal trial
but the dismissal was not interfered with by the court, since the material
recovered from him was prejudicial to the security of the state.

● Absolute pleasure of the President in respect of defence personnel: Article 311(2)

which places a restriction on the pleasure is applicable ONLY to the civil
servants. It does NOT apply to the defence services, where the pleasure is
absolute. Non-compliance with the rules of defence services for determining
the tenure of a member of defence services furnishes no basis for setting aside
the order.
● Pleasure cannot be curtailed in any other manner: the pleasure to terminate a
civil servant is absolute if it is for good and sufficient reason the pleasure cannot
be curtailed by any laws framed by the legislature.
● Pleasure relates to tenure and not to other conditions of service: Article 310 only
covers pleasure about the tenure. Every rule regulating recruitment and
conditions of service is framed under Article 309, and no rule made by the
Governor or law by the Parliament can infringe upon the power of the President
or Governor, subject to Article 311(2).

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 ● No power to continue after superannuation: Pleasure does not allow the civil
servant to continue post superannuation. He holds office at the pleasure of the
president or Governor, until he has reached the age of superannuation. Pleasure
cannot allow the civil servant to continue after superannuation for the purpose
of conducting disciplinary activities.
● Distinction between power of disciplinary authority and pleasure under Article
310: Article 310 subjects the tenure of a civil servant to the pleasure of the
president/governor. Power to remove or dismiss at pleasure is vested in the
President and is outside the scope of power of the government. The power to
remove at pleasure cannot be delegated. This power can be exercised by the
authority empowered to appoint the civil servant under the concerned rules for
recruitment, but should not be lower than the rank of the appointing authority.
This power is separate from the power of an appointing authority or a higher
authority for dismissal or removal from service. The power exercisable by the
appointing authority or any higher authority to remove or dismiss a civil
servant is the power available under article 309 read with article 311(1) and not
under article 310.
● Exception to the pleasure tenure: the pleasure doctrine is made inapplicable to
some services. They are: judges of the supreme court, auditor general of India,
judges of the high courts, chairman and members of the public service
commission, chief election officer/ election commissioners and other election
regional commissioners.

Chapter 2: Security of Tenure

● Authority competent to remove or dismiss a civil servant: Article 311(1): Only

the appointing authority or the authority higher than the appointing authority
is empowered to remove or dismiss a civil servant. Such activity by a
subordinate authority is prohibited. If no such officer is available, then the order
will have to be passed by an officer of superior rank and NOT by an officer of
lesser rank. The confirmation of a civil servant to a post which he was officiating
and has been appointed to such post on probation is equivalent to appointment
on a permanent basis. Eg: a person appointed by a Secretary cannot be
dismissed by a deputy secretary.

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● Power can be vested in an officer of equal rank: under Article 311(1),nothing
debars the government from conferring powers on any other authority except
the appointing authority to dismiss a servant, provided the power has been
conferred on the authority and it is not subordinate in rank to the appointing
authority.
● Authority competent to impose penalty in the case of an official transferred to
another department: if a civil servant is transferred from one department to the
other, it is not mandatory that he should be appointed to the department to
which he is transferred. He begins holding the post to which he is transferred to
andt the authority competent to make appointment to the new post is the one
which is entitled to dismiss such an officer.
● Guarantee under Article 311 cannot be affected by legislation: a guarantee
under this article cannot be taken away by any legislation.
● Authority subordinate does not mean existing subordination: in case the
appointing authority has ceased to exist, and an officer lower than the authority
exercises his power to dismiss, it cannot be contended that since the post of the
appointing authority had ceased to exist, there is no subordination and hence
the order is tenable. An order in such a case will have to be passed by a higher
officer.
● Disciplinary proceedings can be initiated by authority lower in rank than the
appointing authority: the governor can, under Article 309 form rules regulating
the conditions of service. He can authorise an authority lower in rank than the
appointing authority to initiate disciplinary proceedings and to impose minor
punishments. In case a removal is called for, he should forward the record to a
higher authority who is competent to levy such punishment. A DSP, although
subordinate to the appointing authority of head constable is not incompetent to
hold departmental enquiry against the head constable.
● Punishments other than removal and dismissal: article 311 only protects
against orders of removal or dismissal. Other orders can be conferred on an
authority of a lower rank.
● Article 311 has no application for suspension: suspension does not remove the
servant from service. Hence, it is not protected by Article 311(1).

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Applicability of Article 311:
● All persons in civil employment only: protection is only to members of civil
services of the union and states, members of all india services, and persons who
hold civil posts under the union or the state.
● Meaning of civil post: no formal definition, it is used in context and setting. It is
a post on the civil side as against the defence side of the administration- an
employment in a civil capacity under the union or state.
● Criteria to assess if a person holds a post under the state: a post denotes an
office. A person holding a civil post holds so till the pleasure of the
president/governor. A post under the state is an office or position to which a
person is appointed and which may exist apart from and independently of the
holder of the post.
● Eg: a village accountant and patel is holding a civil post and is entitled to
protection of Article 311(1). A tehsildar is paid salary from the state funds and is
appointed by the government, and the relation of master-servant can be seen. A
person who is employed as an artist on the establishment of All India Radio
holds a civil post. A post in a government factory, which is directly under the
control of and part of a department of the government, is a civil post. (refer to
page 16-18 of PDF for more such examples)
● A master-servant relationship may be established and it is a question of facts
which is to be decided on the following criteria:
(i) There should be an element of service i.e., the person should be employed to
do a particular service under the State. The employment may be whole time or
part time;
(ii) there should be relationship of master and servant between the state and the
person holding the particular post which is indicated by-
(a) state's right to select and appoint a person to the post;
(b) state's power to suspend and dismiss a person appointed to the post;
(c) state's right to control the manner and method of his doing the work;
(d) payment by the State to such persons, wages or remuneration, but it is not
necessary that the post should carry definite rate of pay; payment of
remuneration in any form is sufficient;
(e) nature of work

Defence services:

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 ● The protection is not available to defence services or to any person who is either
a member of the defence services or holds a post in connection thereto and for
which salary is paid from defence estimates.

Right to hold the post- protection of Article 311(2)

● Article 309 allows the appropriate legislature to regulate recruitment and
conditions of service for civil servants. In the absence of legislation, the
President or Governor can regulate these through rules. Statutory provisions
govern the rights of civil servants appointed by the Union and the States, while
their status and rights depend on the rules regulating conditions of service.
(1) Status of a civil servant may be- (a) Substantive or permanent; (b) officiating
on promotion; (c) appointed on probation; (d) temporary; (e) appointed for a
specified period; and (f) appointed on contract basis; and (2) Age of
superannuation or retirement.
● Rights of person appointed on a substantive basis: Civil Servant has right to
hold the post under the age of superannuation or if he reaches earlier the age
which is prescribed under valid rule regulating such retirement. He can also be
dismissed or removed from service. An employee is called a permanent
employee after he gets the security of tenure. A permanent employee cannot be
terminated abruptly or arbitrarily without giving him a notice or three months
pay in advance regardless of the fact that there was such a stipulation in the
service rules.
● Right of a person appointed substantively to a lower post and officiating in a
higher post: A person appointed substantively has a right to hold the same post
and can be removed only after compliance with article 311. If he is officiating, he
no longer enjoys the same right in respect of the higher post. Employee is
confirmed at post and a pay scale cannot be terminated or the same cannot be
reduced without hearing him. Employees on promotion become entitled to a
right of the post and to the scale of pay fixed.
● Rights of persons appointed for a specific period: Person acquires right to hold
the post for the period specified. A premature termination cannot contravene
article 311(2). If the Terms of service allow premature termination on the
grounds of misconduct or inefficiency article 311 will still be attracted. The state
can enter into temporary contracts and impose special terms in every case in
consonance with the Constitution.

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 ● Loss of substantive status by confirmation: If a person has confirmed in a post
he gets the right to hold the post substantively. An order of the confirmation or
cancellation of confirmation attracts article 311.
● Cancellation of illegal confirmation: If the order of confirmation is passed on an
illegal confirmation without authority of law it does not confer any right on the
civil servant and cancellation will not attract article 311. Authority purporting to
act under competence will not give that person a status which it is not entitled
to. The condition for confirmation is the existence of a permanent post in which
a civil servant should be confirmed.
● Temporary government servants and persons appointed on Officiation of
probation: Article 311 will apply to persons on temporary or officiating basis. It
makes no distinction between a permanent or temporary post and will explain
protection to all government servants. Article 311 will only protect in case of a
dismissal from one post, removal or termination from a post. Test for
determining whether the termination voice by way of punishment or otherwise
is whether under the service rules the servant has the right to hold the post.
Termination of tenure:
● Difference between removal and dismissal: No civil servant shall be removed or
dismissed without holding an enquiry. In punishment and dismissal the civil
servant stands removed from service. The difference is that under the rules
governing recruitment to a post, a dismissed employee is disqualified from
fresh appointment while a removed employee is not. Termination of service is
not dismissal. Termination of service by compulsory retirement is not equal to
inflicting a punishment and therefore will not attract Article 311(2). Similarly
retirement will not amount to removal. In both these cases the termination of
service will not entail penal consequences or loss of pay or allowances.
However, dismissal means termination of service by way of punishment.
● Termination: Termination puts an end to the tenure of the civil servant. The use
of the word termination is not conclusive, this means that if in the
circumstances of the case yet the termination refers to a removal or dismissal it
will fall under article 311. Every order of removal brings about termination of
service but all orders of termination do not amount to removals. The test to
determine whether the order of termination is punitive is to see whether the
termination was followed by a full scale formal enquiry into the allegations

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 involving moral turpitude or misconduct, which culminated in the finding of
guilt.
● Discharge: This is used for termination of service of a public servant appointed
on probation on the ground of unsuitability. Article 311 will not be attracted,
except where the discharge is made as a measure of penalty and it amounts to
removal under Article 311(2).
● Compulsory retirement: This means the retirement of a civil servant before a
rich superannuation no legal right can be said to exist in relation to any
government servant to continue after 55 years. It does not amount to dismissal
or removal or reduction in rank, but it is compulsory retirement in accordance
with the service rules. The purpose of compulsory retirement Eshtu chop of the
dead wood within integrity to secure efficiency in public service and maintain
honesty and integrity. It may be inflicted on employed by the appropriate
authority and for decisions taken with regard to compulsory retirement the
service records to be first decision overall assessment of the record of service,
and the authority would reach a decision as to the compulsory retirement in
public interest. Such an order may be an exercise of a punishment or penalty. If
the retirement is made in excess of power under the rules, the civil servant will
not lose the right to get benefits for service rendered until then and will get
retirement benefits also. It has no civil consequences, but if it is made as a
penalty or attaches a stigma despite his being eligible for normal retirement,
then Article 311(2) will be attracted.
Abolition of post:
● Right to hold the post comes to an end: Possible servant is given the right to
hold that post to which he was appointed until he is retired from service or is
removed from service. When the post which he was appointed as abolished, the
right ceases to exist. Abolition of cost is not a penalty. Discharge on account of
volition of post held is not an action which is to be taken as a penalty but is an
action concerning the policy of the state. Whether that employee could be
offered any other employment under the state would be a policy decision. The
creation of post along with pollution is dictated by policy decision exigencies of
circumstances and administration necessity. The creation continues and
abolition of the post is decided in the interest of administration and general
public.

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 A civil servant under Suspension pending A disciplinary enquiry loses his right
for reinstatement if the post is abolished. He will get the areas of salary.
● Power to abolish does not flow from article 310 and is not controlled by article
311: The power to regulate service calls and entry 17 of the union list and entry 41
of the state list read with article 245 of the Constitution. It is competent for the
executive to regulate matters of service in exercise of executive power which is
coextensive with legislative power. This power includes power to create any
police services or posts, and to enhance or reduce the number of posts in any
branch. Creation or abolition is dictated by a policy decision and article 311 will
not affect that for power. Abolition of a post causes the disappearance of
necessity for dismissal or removal, since the right to continue in the post is
contingent on the existence of the post.
● Abolition of post ineffective if it is malafide: Abolition of a post is mala fide, Or
is colourable exercise of power, abolition as a mass of penal action will violate
Article 311. The court will not go beyond the wisdom of the decision and see
whether a post should be abolished or not but will see if the decision was in
good faith and not as a cloak or pretence to terminate the service of the person
holding that cost. If it is found to be arbitrary or is used as a cloak, the order
abolishing the post will lose its effectiveness. If a person is appointed to a
particular post and not a post belonging to a particular cadre, and the entire
cadre is abolished, then every person holding the post ceases to hold the post.
The selection of persons for termination of their services consequent on the
abolition of a few posts must be made on the basis of last come first go.
However if the services of senior officials in the cadre are terminated retaining
juniors, Article 311(2) will be violated.
● Right to continue in a post similar to the one abolished: If the rules of service
provide that the abolition of a post in which a civil servant was holding in a
quasi-permanent capacity or permanently, he has to be continued in a post in
the same cadre if available. The test to find out whether posts belong to the
same cadre or not is to find out from the rules of recruitment and conditions of
service. The fact that posts carry equal pay is not enough to conclude that they
are on the same level.
Mohd. Sagiruddin v. District Mechanical Engineer: When services of a public
relations officer in a quasi permanent capacity are terminated it is not open for
the civil servant to continue that he must be treated as a cosy permanent

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 employee in the post of assistant station director. If the posts are in the same
grade and the same cadre, then he will retain his status. Mere Equivalence of
pay scales is not enough or conclusive.
Providing alternative employment owing to physical incapacity:
● A servant, if found to be medically unfit to hold a particular post to which he
was appointed, the authorities can discharge him from service. If he is provided
an alternative post with a lower pay scale, it will not amount to imposition of or
penalty and article 311(2) will not apply.
Reduction in rank:
● Reduction means the revision of a government servant from a higher class or
grade of post to a lower class or great of post and does not include reduction in
the same pay scale. It means reduction from a higher to a lower rank and not
merrily losing the post in the rank to which he belongs, that is, his seniority.
● Reversion and reduction in rank: Reversion means posting of a servant
appointed to officiate in a higher post to his original post. If a servant has the
right to hold a particular class or grade of post, reversion per se attracts article
311(2). Reversion if made as a penalty, article 311 will be attracted. Reversion to a
lower post will not amount to a stigma. Yet the entirety of circumstances
precedent to the impugned order should be examined and the overriding test
will always be whether the misconduct is a major motive or is the very
foundation of the order. A promotee can only be appointed to his lower post
again. A direct recruit to a post that cannot be reverted to the lower post. If an
employee is promoted to a temporary post and then reverted to his substantive
post, no objection can be raised. (Purshottam Lal Dhingra v. Union of India,
Union of India v. Tara Chand Sharma)

Chapter 3: Removal, Dismissal and Reduction in Rank

A government servant can only be removed from service after a proper disciplinary
inquiry. The departmental inquiry should be held and opportunity should be given to
the servant, which includes: (Khemchand v. Union of India)
(a) An opportunity for the civil servant to deny his guilt and establish his innocence
which he can only do if he is told what the charges levelled against him are and
the allegation on which such charges are based;

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 (b) an opportunity to defend himself by cross-examining the witnesses produced
against him and by examining himself or any other witness in support of his
defence; and
(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 enquiry 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 the
government servant.
● Every disciplinary enquiry has two stages: The first is an enquiry into the
allegations and the findings, and the second is the grant of an opportunity to the
servant to contest the findings recorded and the propriety of the punishment.
Both the stages are quasi-judicial in nature.
Reasonable opportunity:
● It is obligatory for the state to hold a regular departmental enquiry and afford a
reasonable opportunity to the suit. There is a charge and a denial, followed by
an enquiry at which evidence is left and material is assessed before reaching a
conclusion. This attracts principles of natural justice.
● Holding of regular inquiry as part of reasonable opportunity: When charges
are framed and they are denied by the servant, the authority has to hold a
regular inquiry. The Constitution guarantees the civil servant or fair enquiry in
his conduct with principles of natural justice being followed. The rule which
incorporates the procedure for holding an oral enquiry mandates the
conduction of a regular procedure.
● Opportunity of enquiry not availed- penalty is not illegal: If an opportunity is
granted but not availed, the civil servant cannot say that there was no
reasonable opportunity and hence the enquiry is illegal. The enquiry officer can
proceed ex-parte if the servant does not appear.
● Enquiry must be directed against the civil servant concerned: A general
enquiry cannot be said to be directed against any official. A finding raised in a
general enquiry cannot substitute a specific enquiry against a civil servant.
When several officials are involved, it is enough to conduct a common enquiry
against all this avoids multiplicity of proceedings and saves time. A disciplinary
enquiry is not a criminal prosecution. (Balbir Chand v. FCI)

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 ● Preliminary inquiry is not sufficient: A preliminary enquiry is held to decide a
prima facie case for holding departmental enquiry. In a regular enquiry, it has to
be held after charges are framed. No punishment can be given after the
admission of some facts in the preliminary enquiry even if admitted, some
investigation is required. However if the charges are denied, an enquiry is a
must. (T.K. Singh v. State of Bihar)

Reasonable opportunity during the enquiry:

Cases: Sarin v. UoI, Krishan Gopal Sharma v. UoI, Ghanshyam v. State of MP, JK
Agarwal v. State of Haryana, Bhagat Ram v. State of HP, Rama Kanta v. District
School Board, Mohinder Singh v. State of Punjab
● Reasonable opportunity is hearing in accordance with principles of natural
justice. The ingredients of reasonable opportunity are as follows:
1. Charges must not be vague and indefinite: This is because if the charges
are vague, the civil servant will not be able to defend himself.
2. Statement of allegations must be furnished.
3. Documents required for cross-examination should be supplied.
4. Failure to supply the documents: the documents should be relevant for
the purpose of cross-examination of witnesses. The report in connection
with the complaint is sought by the government, which is supposed to
influence the decisions as to whether the departmental inquiry is
required. This report if not furnished will not vitiate the inquiry. Refusal
to supply relevant documents and preliminary enquiry reports on the
grounds of public interest state security without an opinion for reasons
recorded in writing will amount to a denial of reasonable opportunity. If
the request for documents is weak and unreasonable, it will not amount
to violation. Documents which form a part of the judicial record if not
furnished will not amount to a denial. If no grievance was raised on
behalf of the civil servant, non-supply of documents cannot be
contended in a writ petition. Copies of primary investigation reports or
other inter-departmental communications will not vitiate the enquiry
proceedings.
5. Furnishing copies of statements recorded in a preliminary enquiry for
preparing defence: Failure to do so is fatal to the enquiry and the final
order. It is necessary that those copies are supplied to the civil servant

14
 and not the synopsis thereof. The officer is entitled to these documents at
the commencement of the enquiry.
6. Reliance on previous statements of witnesses: If witnesses have given
statements in the preliminary enquiry in support of the judge and then
resign from their earlier statements, denial of the statements to the
servant will not be a violation of principles of natural justice provided the
delinquent official is given a full opportunity to cross-examine.
7. To cross examine officers make adverse reports: If an adverse report is
made by a superior officer the enquiry officer has to send a notice to
such an officer and the servant has to be given an opportunity to cross
examine.
8. Opportunity to defend and lead evidence: Such an opportunity has to be
afforded to the civil servant and any omission would vitiate the
proceedings. Arbitrary picking up of witnesses and refusal of the enquiry
officer do not allow the official to make such choices will cause prejudice
and will amount to a denial of reasonable opportunity. If witnesses or
presented by the delinquent officer in support of his case and the
authorities refused to take them on record, this will cause prejudice. The
value of a witness’ evidence cannot be predetermined.
9. Refusal on part of the inquiry officer to not allow the delinquent to
summon documents and witnesses necessary will amount to denial.
10. Refusal of request for reasonable time to prepare the defence: refusal to
Grant such a request would amount to a denial of reasonable
opportunity. The servant must have reasonable time to defend and
prepare to defend. If a civil servant is served with the statement of
allegations and immediately an enquiry is commenced and fitness is
examined, if the officer requests for a day’s time and that is refused, it
will amount to violation of principles of natural justice.
11. Legal assistance: The civil servant has to be allowed legal assistance in
defending his case, He is entitled to appoint a legal practitioner for
leading evidence. The denial of such right will amount to a denial of
reasonable opportunity. Under Rule 15(5) of the Central Services
(Classification, Control and Appeal) Rules, 1967, a government servant
may present his case with the assistance of any government servant

15
 approved by the disciplinary authority or, with its permission, through a
lawyer.
12. Refusal of permission to visit the places of the choice of the delinquent:
This will not amount to a denial of reasonable opportunity if the visit of
such a place is not necessary for preparing a defence.
13. Non payment of subsistence allowance: Civil servant is entitled to
subsistence allowance if he is under suspension. Non-payment is an
inhuman act and has impromptus effect on the life of the employee and
you cannot steal his substance. If an employee could not attend the
departmental proceedings because of financial problems arising out of
non-payment of subsistence allowance, the whole proceedings would
stand vitiated.
14. Recording of evidence in a language not known to the official: The fact
that the language was not known to the official would amount to a denial
of reasonable opportunity since the official will not be able to defend
himself.
15. Query officer collecting information from outside sources: Is highly
improper if it is coupled with not making that information available to
the officer and using that information in the enquiry proceedings. Being
influenced by such material and making a conclusion based on it without
mentioning it in the enquiry report is enough to vitiate the entire
proceedings. An appellate court has to correct such errors.
16. Effect independent consideration by disciplinary and appellate authority:
If there is an allegation against the officer to the effect that the
information was collected outside the record and no evidence is available
in the report it will not be enough to vitiate the proceedings since this
enquiry has been conducted in accordance with the principles of natural
justice and the records have been independently considered by the
disciplinary authority and the ability authority.
17. Finding by disciplinary authority: A disciplinary enquiry is not always
practicable to be held by the department itself. In such cases, it is
competent to appoint an enquiry officer for holding the enquiry,
recording the findings and submission of the report to the disciplinary
authority for final orders. The power of punishment however cannot be
delegated to any other authority. The findings of the enquiry officer were

16
 not binding on the departmental authority since it is only the punishing
authority and the decision-making authority and therefore has the power
to come to its own conclusion keeping in mind the views of the enquiry
officer. Their opinions may differ.
18. Second opportunity: One opportunity has to be given during the framing
of charges and the second opportunity has to be given before the
imposition of any penalty on the officer, thereby allowing him to make a
representation on the penalty proposed based on the evidence
considered.
19. Stages are judicial: The process of trial and recording of finding and the
determination of the penalty to be imposed or both judicial and not
separate or independent proceedings. Both stages are not lesser than the
other.
20. Failure to furnish the enquiry officer’s report: Along with the show cause
notice, the disciplinary authority has to furnish the copy of the report of
the enquiry officer. Failure will vitiate the proceedings.
21. Withholding of part of enquiry officer’s report is illegal: Enquiry officer is
only to record an observation on the charges that are framed and not on
the quantum of punishment.If it contains the quantum of punishment it
will influence the minds of the disciplinary authority and therefore were
issuing the show cause notice withholding the part which deals with the
quantum of punishment is illegal and invalid
22. Non-disclosure of disagreement on findings of acquittal: Notice has to be
given by the disciplinary authority to the concerned official if it agrees
with the findings and some judges in terms of acquittal or conviction.
Where the enquiry officer suggested a lesser penalty and the
departmental authority suggested a higher penalty, such a report is
required to be furnished.

Effect of amendment of Article 311(2) by the 42nd Constitutional Amendment:

● By virtue of this amendment, the requirement of a second opportunity was
dispensed with. Now, where it is proposed after enquiry to impose upon a
government servant the punishment of dismissal, reduction in rank or removal,
it may be imposed on the basis of the enquiry evidence without giving him any
chance of representation regarding the penalty proposed.

17
 ● Mahabaleshwar v. State of Karnataka: In this case the court considered if the
amendment of article 311 was applicable to pending cases and whether the
obligation to give a second chance survives after the amendment. The court
held that all pending cases will be governed by the amendment and second
opportunity would be an obligation on the authorities in cases where the report
of the enquiry authority deferred from the report of the disciplinary authority.
In other words if the disciplinary authority had appointed the enquiring
authority, the report of enquiry must be provided along with a second
opportunity to the officer for presenting his views on the report.
● Tulsiram Patel v. Union of India: Tulsi Ram Patel held that ruling out the
requirement of giving the second opportunity goes hand-in-hand with
dispensing the enquiry in three types of cases, and the principles of natural
justice also stand excluded.
● In Union of India v. Mohd. Ramzan Khan, Supreme Court held that if the
enquiry officer holds the charges proved a copy of the enquiry report should be
furnished to the official against whom the charges are proposed. The
disciplinary authority, if influenced by the report of the enquiry officer, has to
provide the delinquent officer an opportunity to defend himself. This will be in
accordance with the principles of natural justice.
● Two stages in a disciplinary enquiry. The first stage and when the disciplinary
authority arrives at its conclusion based on the evidence, enquiry officer's
report and the delinquent employee's report. Stage begins when the disciplinary
authority decides to impose any charge on the officer. The officer has to be
given an opportunity to express his views on the inquiry officer’s report.

Final order:
● Requirements for passing a final order: Final order imposing penalty should
disclose the points which have led to such conclusion and to the quantum of
punishment. Object of issuing a show cause notice is to give the delinquent
officer an opportunity to contest the findings of the enquiry and the quantum of
punishment. The final order should be a speaking order and should meet all
points which were contested by the officer. While agreeing with the findings of
the enquiry officer the disciplinary authority is not required to give reasons. But
while passing orders it is mandatory that the disciplinary authority considers

18
 the reply of the officer. Natural justice principles demand that the authority that
proposes guilt should hear the delinquent officer.
● There is no duty to consider a subsequent belated representation.
● Oral hearing is not a part of a reasonable opportunity: An opportunity of
showing calls against the action is a reasonable opportunity but a mere oral
hearing to make a representation is not a necessary postulate of showing cause
under article 311.
● Consideration of past misconduct while passing final orders: If the disciplinary
enquiry proposes a higher penalty with regard to the charges of past
misconduct, it has to be specified in the show cause notice. If there is no such
preference in the notice, the authority cannot impose a higher penalty and it
will be illegal.

Chapter 4: Reduction in Rank

Protection under Article 311(2)

Article 311 (2) - No such person as aforesaid shall be dismissed or 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
Provided that where it is proposed after such inquiry, to impose upon him any such
penalty, such penalty may be imposed on the basis of the evidence adduced during
such inquiry and it shall not be necessary to give such person any opportunity of
making representation on the penalty proposed: Provided further 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; or

(b) where the authority empowered to dismiss or remove a person or to reduce

him in rank ins satisfied that for some reason, to be recorded by that authority
in writing, it is not reasonably practicable to hold such inquiry; or

(c) 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 hold such inquiry

19
Article 311(2) protection extends to three types of major penalties

· Dismissal,

· Removal

· Reduction in rank - A civil servant stands removed from the class or grade of post
in which he was serving and stands reverted to the specified lower class or grade of
post.

The expression 'reduction in rank' suggests the reversion of a civil servant from higher
rank, or class or grade of post in the hierarchy to a lower rank or class or grade of post
and not merely losing some places in the seniority in the same rank, or class or grade
of post to which the government servant belongs.

Further, the protection of article 311(2) applies not only to persons holding posts
substantively but also to persons appointed on probation or officiating or temporary
basis and can be invoked when a civil servant is reverted from a higher rank, or class
or grade of post to a lower rank or class or grade of post.

State of Punjab v. Kishandas, AIR 1971 SC 766:

When a civil servant loses higher salary or seniority or consequential chances of

promotion to the higher post. The protection for a civil servant against such an order
should be sought under the rules governing the conditions of service and not under
article 311 (2) since such an action does not amount to 'reduction in rank.’

Reversion and reduction in rank

Though reduction in rank, in one sense, might connote the idea of reversion from a
higher post to a lower post, all reversions from a higher post are not necessarily
reductions in rank.

20
Example –

Officiating Basis - A person working in a higher post, not substantively, but purely on
an officiating basis may, for valid reasons, be reverted to his substantive post. That
would not, by itself, be a reduction in rank unless circumstances of the reversion
disclose a punitive element.

(Whether an order of reversion amounts to reduction in rank or not depends on the

question whether the reversion was ordered in accordance with rules regulating
promotion and reversions in the exigencies of public service or whether it was ordered
as a measure of penalty.)

Substantive Basis - Persons holding the posts substantively have the right to the post.
Any order passed against them reverting them to a lower class or grade of post, except
on account of abolition of posts amounts to imposition of penalty of reduction in rank
and, at once attracts the provisions of article 311(2).

K. H. Phadnis v. State of Maharashtra, (1971) 1 SCC 79

There are two objective tests to determine whether the reduction of post or rank of a
government servant is by way of punishment, viz.,

(a) whether the servant had a right to the post; and

(b) whether he has been visited with evil consequences.

Test to find out when reversion amounts to reduction in rank –

Purushottam Lal Dhingra v. Union of India, AIR 1958 SC 36

The real test for determining whether the reduction in such cases is or is not by way of
punishment is to find out as to whether the order of reversion also visits the servant
with any of the following penal consequences:

21
 (i) whether the order attaches a stigma to the conduct of a civil servant,
or

(ii) whether the order entails or provides

a. for the forfeiture of his pay or allowances, or

b. the loss of his seniority in his substantive rank,

c. the stoppage or postponement of his further chances of promotion.

Test to find out whether a particular order attaches a stigma

· Reversion after framing charge

· Reversion after holding enquiry

· Reversion on allegation of unsatisfactory work

· Reversion on grounds of incompetence and inefficiency

· Reversion from a tenure post before expiry on the ground of low standard of
performance

Order of reversion resulting in penal consequences:

· Loss must be with reference to substantive post

· Reversion for a specified period

· Loss of seniority and postponement of promotions

· Reversion of senior on adverse confidential report while continuing juniors

· Reversion and deletion of name from eligibility list

· Reversion after satisfactory completion of probation or officiation in the higher post

22
Appar Apar Singh v. State of Punjab. 1971 SLR SC 71;

All the circumstances must be looked into. When an order reverting an official from an
officiating higher post to a lower post is challenged, it is the duty of the court to
examine all the circumstances and to determine whether the order really amounts to
reduction in rank or is passed only in the exigencies of public service.

Reversion from deputation - does not attract article 311(2). However, when such
deputation was to a higher post carrying higher emoluments and was for a specific
period and the circumstances of the reversion before the expiry of the period indicate
that it was a measure of penalty such a reversion amounts to reduction in rank and
attracts article 311 (2).

Ramakrishna Reddy v. State of Mysore, 1964 Mys LJ Suppl. 689

Transfer to an equivalent post affecting special pay - Transfer in such circumstances

does not amount to reduction in rank.

Adverse remark -

Reversion made on the basis of adverse remarks which do not pertain to efficiency and
performance but to disrespectful and disobedient behaviour attaches stigma to the
conduct. And, therefore, a reversion would be bad when it is not preceded by an
inquiry and a finding against a civil servant. Further, If a civil servant is selected for
promotion on the basis of merit and suitability even though he had a few adverse
remarks, it means on an overall consideration of his merit and service record he
deserved selection and promotion.

Reversion of direct recruits to a post lower than the one to which they were recruited
whether permissible:

23
The punishment of reduction in rank, specified as one of the major penalties under
Article 311, does not seem to allow for such a penalty against directly recruited
government servants for several reasons:

(a) The punishment of removal and dismissal can be imposed on any civil servant, but
reduction in rank cannot be imposed on all civil servants. Directly recruited
government servants in the lowest category of posts cannot be punished by reduction
in rank because there is no lower class or grade to which they can be demoted.

(b) Certain officers, such as the lowest category of judicial officers, doctors, or
engineers, hold positions that are entirely different from lower-ranking posts.
Demoting such officers to posts of a different category or with different duties and
responsibilities is impractical and illogical.

(c) Reverting a person directly recruited to a higher class of post, such as Class I, II, or
III, to a lower class of post they have never held, or even to a Class IV post, is also
difficult to conceive.

A civil servant earns promotion based on merit and ability, and the penalty of
reduction in rank should only be applied if the individual is unfit for the higher
position. It suggests that the term "reduction in rank" in Article 311 refers to demotion
rather than removal or dismissal. The punishment of reduction in rank can only be
imposed on a civil servant who has been promoted from a lower post to a higher post.
Reversion to a lower post is not applicable to someone directly recruited to a higher
post. Additionally, a civil servant cannot be demoted to a position that does not offer
the opportunity for promotion. The reverting of clerks in the office of the accountant
general to the position of peons is illegal because there were no provisions for
promotion to the clerk position according to the rules.

Cases of reversion constituting reduction in rank:

● Where the order of reversion from an officiating higher post is made as a

measure of punishment or
● When the order of reversion attaches a stigma, or has adverse effect on the
substantive pay or seniority, or

24
 ● Has the effect of postponement of chances of promotion, as indicated above.

Reversion based on mere unsuitability or other justified administrative grounds does

not amount to reduction in rank, and the provisions of article 311 (2) are not attracted
to such cases.

Chapter 5: Termination of Temporary Service

Introduction
Article 311(2) of the Constitution does not explicitly state that its protection applies only
to permanent government servants. Adding such a qualification would be an
interpretation rather than the literal reading of the article. The protection provided by
Article 311(2) applies equally to both permanent and temporary government employees.
Temporary employees can have their services terminated due to the exigencies of
public service, but if their termination is based on alleged misconduct, the provisions
of Article 311(2) must be followed, including holding an inquiry and providing a
reasonable opportunity for defence. In such cases, the temporary employee is entitled
to the protection guaranteed by Article 311(2). Similarly, even an extra-departmental
postal delivery agent, as a civil servant, is entitled to the protection of Article 311(2) if
their termination is a punitive measure.

Nar Singh Pal v. Union of India, AIR 2000 SC 1401.

When the order of termination of service is passed by way of punishment and is ex
facie punitive in nature, such an order cannot be passed even in respect of temporary
employees, without a regular departmental inquiry.

Further even in case of an employee on probation and the government dismisses such
an employee in a punitive manner, or as a punishment, then termination of his service
may amount to ‘dismissal’ or ‘removal’ attracting the application of article 311.” In such
a case, it becomes incumbent to hold a formal inquiry by framing charges against him
and giving him reasonable opportunity in accordance with article 311(2).

The principles governing the cases of termination of temporary civil servants

attracting the provisions of article 311(2)

25
 ● Motive - Where the order of termination of service of a temporary civil servant
in form and substance is nothing more than the discharge effected under the
terms of contract or the relevant rule, it cannot in law be regarded as dismissal.
When the authority comes to the conclusion that the temporary government
servant is not suitable. it may pass a simple order of discharge under the rules.
In such a case, it is not open for him to invoke the protection of article 311(2).
● Discharge vs Dismissal - When an authority wants to terminate the services of
a civil servant in temporary service it can pass a simple order of discharge
without casting any aspersions against the temporary servant or attaching any
stigma to his character. But if the order casts an aspersion on the temporary
servant, such an order cannot be considered as a simple order of discharge. The
test in such a case is, does or does not the order of termination attach stigma to
the officer concerned when he is purported to be discharged from service? If
the answer is in the affirmative, then regardless of the form of the order, the
termination must be held as amounting to dismissal. (Jagadish Mitter v. Union of
India. AIR 1964 SC 449.)
● A temporary employee is terminated on the ground that he has been found
undesirable. Such an order clearly imposes a stigma on the civil servant and
therefore amounts to a penalty and the provisions of article 311(2) of the
Constitution is attracted.
● A temporary employee claiming article 311(2) protection has to prove that the
termination in his case amounts to removal or dismissal within the meaning of
that article. If he proves that it is a ‘penalty' and that article 311(2) is not
complied with, then the order is liable to be set aside.

Other aspects relating to termination

llukam Chanel Khundia v. Chandigarh Administration. (1995) 6 SCC 534.

Order of termination simpliciter on the basis of unsatisfactory service record without
attaching any stigma against the employee and without holding any departmental
inquiry is not violative of article 311.

Union of India v. M. Aslam. AIR 2001 SC 526

Where the petitioners should have been treated as government servants, their services
could not have been terminated on the ground that their services were no longer

26
required. The only ground stated for terminating their services was that it was only for
five years and their services were no longer required. It was held by the court that
termination was illegal and petitioners were entitled to be reinstated in service with
consequential benefits.

Chapter 6: Exceptions to Article 311(2)

Introduction
Article 311(2) limits the power of the President, Governor, and other authorities to
determine the tenure of a civil servant at their discretion. It states that none of the
specified penalties, such as removal, dismissal, or reduction in rank, can be imposed
without giving the civil servant a reasonable opportunity to defend themselves.
However, the second proviso to Article 311(2) provides exceptions to this limitation in
three cases:
● when the penalty is based on a criminal conviction,
● when conducting an inquiry is impracticable and the competent authority is
satisfied with reasons recorded in writing, or
● when the President or Governor deems it expedient to impose the penalty
without an inquiry due to the security interests of the state.

Doctrine of pleasure in pubic interest

Union of India v. Tulsiram Patel. AIR 1985 SC 141

The efficient implementation of these policies and laws lies with the civil services. As
government servants are paid from public funds, their efficiency and integrity are of
vital interest to the public. The responsibility for the smooth functioning of public
administration does not solely rest on top officials but also on all members of the civil
services, including those in subordinate positions. To discharge their duties faithfully,
government servants require a sense of job security, which is provided by Acts, rules,
and safeguards outlined in Article 309 and Article 311. However, it is also essential for
public interest that inefficient, dishonest, corrupt, or security-compromising
government servants are not allowed to continue in service, and the protection
afforded to them should not be misused to the detriment of public welfare. When one
of the clauses in the second proviso to Article 311(2) is properly applied and a

27
disciplinary inquiry is dispensed with, the government servant cannot complain about
being deprived of their livelihood. Although an individual's livelihood is of personal
concern to them and their family, when that livelihood is provided by public funds, its
removal in the public interest and for public welfare takes precedence over private
interests. These consequences are not solely based on the British Crown's pleasure
doctrine, which has been adapted to suit India's constitutional framework, but are
derived from public policy considerations. The pleasure doctrine in Article 310(1), the
protection granted to civil servants in clauses (1) and (2) of Article 311, and the
withdrawal of protection under the second proviso of Article 311(2) are all included in
the Constitution to serve public policy, public interest, and the greater public good.

Opportunity of hearing ruled out by second proviso

Cases related to the second proviso under Article 311(2) were presented before the High
Courts of Madhya Pradesh and Patna. Orders imposing dismissal based on the conduct
leading to the conviction of the civil servants, orders imposing penalties without an
inquiry, and orders imposing penalties without an inquiry for reasons of state security
were set aside by these courts. The basis for setting aside these orders was the absence
of separate consideration regarding the quantum of penalty and non-compliance with
relevant rules of natural justice. However, the Supreme Court, in the case of Tulsiram,
overruled the previous decision and held that the second proviso to Article 311(2)
clearly indicates that Clause (2) does not apply to cases falling under any of the three
clauses of the proviso. The Supreme Court concluded that when an inquiry is
dispensed with under any of the clauses, the opportunity for a hearing, both at the first
and second stages, is entirely ruled out. The Supreme Court also clarified that the
language of Article 311(2) refers to the conduct leading to conviction, not the sentence
or punishment awarded. Therefore, the suspension of a sentence or release on bail
does not negate the operative conviction, and it does not bar the dismissal, removal, or
reduction in rank of a government servant who has been convicted by a criminal court.

Conviction by criminal courts

Karnataka High Court in Ansari v. Union of India
Clause (a) of Article 311(2) states that in cases where a civil servant has been found
guilty of a charge by a criminal court, the requirement of a departmental inquiry is

28
dispensed with. The conduct of the civil servant, which formed the basis of the
criminal charge and subsequent conviction, is considered equivalent to a finding in a
departmental inquiry. The disciplinary authority is then empowered to impose a
penalty based on the finding recorded by the criminal court. This means that a
separate departmental inquiry is unnecessary when a civil servant has already been
found guilty of a criminal charge by a court of law. An important question arises in
relation to Clause (a) of Article 311(2): After conviction by a lower court, the concerned
employee may appeal to a higher court against the conviction.

Settappa v. State of Mysore, 1963(2) Mys LJ 28;

Conduct basis for disciplinary action and not conviction: Under article 311(2) proviso (a)
conduct is the criterion for disciplinary action and not the conviction. Proviso (a) to
clause (2) of article 311 provides that the enquiry contemplated under clause (2) of
article 311 is not required to be followed in cases where the punishment is inflicted on a
civil servant on the basis of the conduct, which has led to the conviction. The power to
impose penalty, on the basis of the conduct, which had led to the conviction of a civil
servant, like all other powers of the state, has to be exercised fairly, justly and
reasonably. Surely the Constitution does not contemplate that a government servant
who is convicted for parking his scooter in a no-parking area should be dismissed
from service.

Mahalinga P. v. D.I.G. of Police

The servant challenged the legality of his dismissal on the basis of the conduct which
had led to his conviction during the pendency of his appeal. The court agreed with the
petitioner that he would suffer irretrievably by the decision, if his conviction were to
be set-aside on appeal. The court held that while this was unfortunately so, since the
relevant rules were silent in this regard, the problem lay within the domain of the
rule-making authority, not in the domain of the court.

Can a civil servant be dismissed from service after conviction irrespective of his
appeal

Union of India v. Ramesh Kumar

The employee was convicted of an offence under the Prevention of Corruption Act and
he was dismissed from service. He appealed to the high court, which suspended the

29
sentence pending final disposal of the appeal and released him on bail. The Supreme
Court ruled that suspension of the sentence does not wipe out conviction that
continues and is not obliterated. Accordingly, his dismissal from service was not
affected and so it could not be quashed.

Dr. Trilochan Singh v. State of Rajasthan, SLR 1983(1) Raj 456.

The Rajasthan High Court has, however, taken the view that no action can be taken
under article 311(2) proviso (a) on the basis of conduct, which had led to the conviction
during the pendency of appeal against it

Conclusion - It should be pointed out that no such restriction is imposed under article
311. Such a view would also defeat the object of article 311(2) (C) as the state would be
compelled to continue civil servants who are convicted for serious offences until the
appeals are decided and more so in case in which the appeals are dismissed, after a
lapse of several years.

Note - Conviction prior to appointment does not furnish the basis for dispensing with
the inquiry by virtue of article 311(2) proviso. Generally, in all the recruitment rules,
conviction on a criminal charge constitutes a disqualification for recruitment.
Therefore, if a person has already been convicted he would not be recruited at all. If for
any reason a person who had been convicted for an offence which disqualified him for
appointment had been recruited on account of mistake or suppression of information
action for cancellation of appointment or termination of service could be taken in
which event principles of natural justice have to be complied with.

Exceptions
To sum up, the purport of the three clauses is-
(i) clause (a) substitutes a criminal trial in which a civil servant is found guilty of
criminal charge to a departmental enquiry;
(ii) clause (b) provides for dispensing with the enquiry into the misconduct of a civil
servant, if the holding of the same is reasonably impracticable; and
(iii) clause (c) dispenses with the holding of the enquiry even if it is practicable but, in
the opinion of the President or the Governor, the holding of enquiry is not expedient in
the interest of the security of the state.

30
Compulsory retirement:
An order of compulsory retirement imposed on the basis of the conduct which led to
the conviction of the civil servant concerned is a case which falls under clause (a) of the
second proviso and is therefore valid. The contention that punishment of compulsory
retirement is not one of the penalties specified either under clause (2) or article 311 or
in clause (a) of the second proviso thereto and therefore cannot be inflicted is
untenable

Dispensing with inquiry when impracticable.

State of Orissa v. Krishnaswamy, AIR 1964 Ori 29
Union of India v. Rajinder Prakash. SLR 1970 Del 392
CM Engineer v. Jyoti Prasad, SLR 1975(2) Cal 437
Union of lndia v. P. C. Choudhary, SLR 1976(2) Cal 81
Situations in which the holding of inquiry in the view of the concerned authority had
become impracticable.
1. Reasons must be recorded in writing; failure to record reasons renders the order
imposing penalty invalid.
2. while, in the nature of things there is no requirement to communicate the reasons to
the concerned civil servant though it is obligatory to produce before the court when so
directed in a proceeding challenging the order;
3. there is no need to give show cause notice for dispensing with the inquiry;
4. the reasons must have nexus to the dispensing with the inquiry, i.e., the satisfaction
as to the impracticability of the holding of the inquiry should not be subjective but
should be based on objective materials; otherwise, the order dispensing with the
inquiry as also the final order would be illegal;
5. the order dispensing with the inquiry must be a speaking order and it is subject to
judicial review on the following grounds:
(a) whether reasons indicating the circumstances the existence of which is a condition
precedent for dispensing with the inquiry had been recorded?
(b) whether the reasons have nexus to the dispensing with the inquiry and such an
opinion would have been formed by a reasonable person?
(c) whether the decision is taken in good faith and on relevant consideration and not
on extraneous grounds?

Dispensing with enquiry in interest of security of state

31
The discretionary power given under article 311(2) (c) must satisfy certain conditions:
(a) good faith of the authority;
(b) exercise of power for the purpose for which it is granted;
(c) consideration of relevant matters; and
(d) executive authority must act fairly.

32
Chapter 7: Retirement

Power to fix age of retirement subject only to:

1. Articles 14 and 16(1)

2. Pleasure of Governor/President u/ Art 310
3. Article 311

State has a reasonably wide prerogative. Policy decisions questionable only by Indian
standards.

Government servants have a right to continue service until the age of retirement.

- Any premature retirement needs to be met with standards u/ Art 311(2).

- Govt changing the age of retirement after start of service does not mean
‘removal’ a-la-Art 311(2).

Legality of Retirement

1. When age is fixed ‘generally’ for a class.

- Age for all government employees is fixed at 55 - but 58 for a certain category
‘generally’ - then servants from that class retire at 58.
- ‘Generally’ means a general rule, unless early retirement is deemed fit due to
adverse record/inefficiency.

2. When rule for retirement at 60 but 55 due to inefficiency.

- Same as above.

3. Rules providing age of retirement for ministerial government servants.

- Needs to be a ministerial servant at the general age of retirement, not at the
threshold date.
- Retirement before increased age is illegal.
- No right to continue when no lien established before threshold date.
- Post need not be in the same department.

4. Retirement when no right to continue.

- Can be sacked when there is no right to continue; rests on discretion of
government.

33
 5. When post-retirement leaves.
- No right to rejoin service after retirement.
6. Service cannot be extended post-retirement.

General order extending service

1. Government can fix a higher age than that of rules through a general order.
2. Leave preparatory to retirement is not retirement; servants are entitled to
change in retirement age.
3. Enhanced age of retirement when servant’s service extended = entitled to such
enhancement.
4. Any retirement prior to a fixed age of superannuation is wrongful.

Premature Retirement
A lot of irrelevant schlock; covering only the cases. Read from PDF upar upar se ek
baar. Page 309-311

Bishwanath Prasad Singh v. State of Bihar

- Compulsory retirement is a post-inquiry disciplinary action.
- Premature retirement OTOH is not a punishment; given when a person's
services are no longer required.

Ramachandra Raju v. Orissa

- Inefficiency, corruption, and incompetence are factors to determine premature
retirement

Order to be Prescribed by Authority

- Compulsory retirement order can only be passed by prescribed authority;
irrespective of seniority
- If notice is delegated to a lower authority, but application of mind by prescribed
authority is evident, then compulsory retirement notice is valid.
- A prescribed authority higher than the appointing authority, which itself may be
an appointing authority, can order compulsory retirement.

Premature Retirement Judicial Review

- Can be challenged on three grounds:
1. Requisite opinion not formed;

34
 2. Arbitrary reasoning; or
3. Based on collateral grounds.
- Court can call for records to determine the validity of the order.
- Servant may be compulsorily retired even during the pendency of inquiry
- Onus on the government to show that order of Compulsory Retirement. was
reasonable and bona fide.
- When decision to retire based on service records, it is valid.
- Competent servant may be validly retired due to tactless dealing and wilful
insubordination.
- Allegations of misconduct require a fair opportunity to be heard.
- Relevant records cannot be misrepresented or fabricated.
- When a servant is also a workman under ID Act then retrenchment
compensation needs to be paid.
- Non-payment renders retirement order invalid.
- Re-employment after compulsory retirement renders the previous order
invalid.

Premature Retirement and Security of Tenure

Earlier interpretation of Art. 311(2)
- Rule providing termination/retirement without stigma or affecting benefits does
not contravene 311(2)
- Therefore, any such retirement/termination is valid under 311(2)
- When there is a specific provision for these terms then servants cannot claim
the right to remain in service.
Later interpretation of Art. 311(2) - Motiram Deka v. NE Frontier Railway Landmark
for this
- Rule not providing minimum service period before compulsory retirement is hit
by 311(2)
- Purpose of 311(2) to protect good, honest, and independent civil servants
- Reasonably long minimum period (10 years wrong; 25 years correct)
- May create insecurity in the civil servant
- Lmao C.R. may even be per se repugnant to 311(2) - security of tenure

Other relevant stuff

● Notice is not a condition precedent for the issuance of an order of compulsory
retirement.

35
 ● Premature retirement does not invite any civil consequences.
● PNJ have no application when rules/legislation specifically circumvent them
○ However, duty exists to act ‘fairly’, even if not ‘judicially’
● Civil servants are entitled to retirement after qualifying period for service; no
question of acceptance or rejection.
● Tenure post: post created for a fixed time period
○ C.R. Orders to be quashed, person reinstated

Chapter 8: Limitation imposed by Article 311(2) on Legislative Power of State

General idea: 309 allows the legislature to lay down conditions of service but 311(2)
provides security to the civil servants. Naturally, 311(2) circumscribes legislative
powers.

Allowed Provisions
- Selection of temporary employees for permanent absorption
- Reasonable time period before availability of C.R.

Disallowed Provisions
- No time period fixed before Compulsory Retirement available
- Time period must be reasonable
- Automatic termination after specified period of absence
- Automatic removal of lien after specified time of unauthorised absence
- Compulsory transfer of government servants to non-governmental body

Cases
- N Chellappan Pillai v. State of Kerala: executive instructions cannot override
statute
- M Chellappan v.Director of Handloom:
- Bishan Narain v. State of UP: retirement at fixed age of retirement is outside
311(2)
- Amit Roy Choudhury v. MECON: employer has right to increase/reduce age of
retirement
- Andhra Pradesh Case: retrospective effect of change in retirement age
- Age lowered from 58 to 55 by one government; reinstated by new govt.

36
Part V

Chapter 1: Judicial Service

INTRODUCTION

● Chapter VI of Part VI of the Constitution contains special provisions for

regulating recruitment and conditions of service in the judicial services of the
states. Article 309 grants power to the appropriate legislature or the
President/Governor to regulate recruitment and conditions of service until the
legislature makes provisions.
● After the 42nd Amendment, both state legislature and Parliament share this
power. Entry 3 of List II and Entry 11-A of List III allow legislatures to make laws
concerning subordinate courts and members of the judicial service.
● Special provisions in Chapter VI address the importance of the judicial service.
The special provisions in Chapter VI of Part VI of the Constitution limit the
power of the appropriate legislature and the rule-making authority of the
President or Governor, depending on the situation. These powers are subject to
the provisions of the Constitution. The specific provisions outlined in Articles
233 to 237 are discussed in detail under their respective headings.

The provisions relate to:

Article 233- The appointing authority, the minimum qualification and method of
recruitment to the cadre of district judges;

Article 234- The appointing authority and provision for consultation regarding
recruitment rules to the cadre of judges other than district judges;

Article 235- Control over the district courts and subordinate courts and in respect of
posting, promotion and grant of leave to members of judicial service;

Article 236- The definition of the words 'district judge' and 'judicial service' and

Article 237- Bringing all the magistrates under the control of the high court to ensure
their independence

THE OBJECT OF SPECIAL PROVISIONS

37
 ● The doctrine of separation of powers and the need for having an independent
judiciary as a bulwark of constitutional democracy.
● Seeks to achieve the avowed object of insulating even the subordinate judiciary
from the influences of the executive and the legislature.
● To ensure the independence of the judiciary up to the lowest level
● vast powers of judicial review,
● For the Supreme Court of India in chapter IV of part V.
● High court in chapter V of part VI.
● Security of tenure of judges of the
- The Supreme Court and high courts are ensured by articles 124 and 218.
- Subordinate judiciary- are assured by these special provisions and
particularly by article 235 vesting the entire administrative control over
the subordinate courts in the judges of the high court, whose security of
tenure is ensured by article 218.

WHY?

● In the case of All India Judges Association (II) v. Union of India: The judicial
service is not service in the sense of employment, Said that Judges are the
judiciary equivalent to MP/MLAs of the Legislature(s)
● Judicial services have to be independent of executive influence, placing them on
a pedestal different from other services.
● It is of importance that the members of the judicial services should not work
under apprehension of retaliatory action by the police and the executive

Article 233: APPOINTMENT, POSTING AND PROMOTION OF DISTRICT JUDGES

Bare provision

Article 233(1) Appointments of persons to be, and the posting and promotion of,
District Judges in any State shall be made by the Governor of the State in consultation
with the High Court exercising jurisdiction in relation to such State.

38
(2) A person not already in the service of the Union or of the State shall only be eligible
to be appointed a District Judge if he has been for not less than seven years as advocate
or a pleader and is recommended by the High Court for appointment.

Analysis of the section:

- The Governor/President of the State/UT is the authority empowered.
- Either by direct recruitment or by promotion.
- Cannot be conferred on any other authority.
- the President has the competence to delegate his functions to the administrator
of the union territory.
- Not a discretionary function of the Governor/President for UTs. Executive
function required to be exercised by him in accordance with the rules of
business framed under article 166.
- When an appointment, or promotion is done, the act is complete. Finishing
probation is not the final step.
- The Governor, however, has the power to pass an order of dismissal, removal
or termination on the recommendations of the High Court.

Mode of Recruitment

● Two sources
- Judicial services. In consultation with HC.
- Member of bar, for 7 years as pleader before any HC, then
recommendation by HC.
- In All India Judges Association (HI) v. Union of India
- Apex court has directed that the existing two sources of recruitment, to
be replaced by three sources. Namely,
1. Direct recruitment to 25% of the posts from advocates by
competitive examination.
2. Promotion to 50% of the posts on the basis of merit-cum-seniority
for which the high court should prescribe a test.
3. Promotion to remaining 25% of the posts strictly on the basis of
merit through limited departmental competitive examination from
civil judges (senior division) with not less than 5 years’ service.
● Promotion - (a) Qualification and procedure: To be made from persons
already in the service

39
 ● The Constitution has not prescribed any procedure to be followed for
promotion. It only mandates that the same can be made by the Governor in
consultation with the high court.
● In State of Kerala v. M.K. Krishnan Nair: Court held that bifurcation of state
judicial services with different avenues of promotion are not violative of articles
14 and 16.
● Article 236 defines the expression "district judge" as including judge of a city
civil court, additional district judge, joint district judge, assistant district judge,
chief judge of a small cause court, chief presidency magistrate, additional chief
presidency magistrate, session's judge, additional sessions judge and assistant
sessions judge. So Art. 233 applies to all of the above.
● Orissa Judicial Service Association v. State of Orissa: Direct recruitment
cannot be stopped only for the sake of promotions from lower judiciary.

Direct recruitment

● Eligibility:
- Should have been an advocate or pleader in ANY HC for not less than
seven years, any rule mandating any specific court goes against Art.
14&16
- Shouldn't have joined the Judiciary by the other method.
- Law officers of Stage/Union Govt are also eligible.

● Recommendation not binding on Gov/Prez

● Members of judicial service are not eligible for direct recruitment, duh.
● Quota for direct recruitment: Different states have different quotas in place.
But at least 1/3 of the total posts for quota was upheld in the case of Delhi
Judicial Service Association v. Delhi High Court.
● What happens where quotas are not fixed? State government in consultation
with the high court is competent to prescribe.
● However, in case of All India Judges Association (III) v. Union of India,relying
on Justice Shetty Commission's recommendation, said it should be 25%

Consultation with the High Court- for Judicial Services

● Consultation is of utmost importance, does NOT mean ‘concurrence’

40
 ● To maintain the independence of the judiciary.
● High Court must be given regard, full and complete honesty and disclosure
between parties, to select the best candidates.
● Governor/Prez cannot appoint HC agrees..
● Must be had with the full court and not just with the Chief Justice or whoever.
● In Re: Chandra Mohan, court said appointment of district judges by a
committee consisting of two judges of the high court and the judicial secretary
to government contravened article 233.
● However, in the High Court of Judicature for Rajasthan v. P. P. Singh, it was
held that the Chief Justice is empowered to make a selection committee, and its
decision will be the decision of the court.

Power of the Governor to frame recruitment rules

● May be necessary to prescribe other qualifications or disqualifications such as
max/min. ages and shit, which the governor/legislature(s) will be empowered to
do so. proviso to Art. 309.
● Must be in compliance with Art. 233 and 234
● If no rules are drafted, HC becomes sole authority.
● In State of Bihar v. Bal Mukund Sah, court said, governor’s power u. S.309
includes creation of cadres and creation of posts in the cadre comprised in the
judicial service.

Transfer of district judges

● The appointment, posting, etc. powers of the governor do NOT cover transfers.
● In Chief Justice of A. P. v. L. V.A. Dixitulu, the court reiterated that the power of
control over subordinate judiciary vested in the high court by virtue of article
235 of the Constitution includes power to transfer district judges.
● This includes power to callback judges working on deputation.

41
 ARTICLE 234: RECRUITMENT OF PERSONS OTHER THAN DISTRICT JUDGES

Article 234: Appointments of persons other than district judges to the judicial service
of a State shall be made by the Governor of the State in accordance with rules made by
him in that respect after consultation with the State Public Service Commission and
with the High Court exercising jurisdiction in relation to such State.

Analysis of the section

● Appointing authority for persons other than district judges- Governor/Prez for
UT
● Rules, made by him
● After consultation with HC again, it is an important part of the process in view
of selecting the best candidate.
● prescription of educational or other qualification and method of recruitment
and all other matters in respect of which provisions are necessary is left to be
laid down by the rules to be made by the Governor in consultation with the high
court and the public service
commission

Power to create post

● The mere creation of two grades of courts like courts of civil judge class I and
class II under the Civil Courts Act does not bring into existence two cadres
when according to law or order creating the posts, there is only one cadre of
officers.
● Posting from class I to class II court is no reduction in rank.
● Creation of common judicial service for the state by integrating the civil judicial
service and criminal judicial service and prescribing a quota for each wing and a
rule for rotation of vacancies between them in a particular proportion for the
purpose of seniority is permissible.

General rules not applicable

● Consultation of the Governor with the public service commission is
substantially different in nature from that with the high court.
● The advice tendered by the public service commission, will confine itself to
constitutional requirements of article 320.

42
 ● Any rules which regulate recruitment qualifications would be applicable to the
recruitment of judicial service, if only framed in consultation with the high
court and the public service commission.
● rules made without such consultation cannot be invoked for recruitment to
judicial service.
● In State of Bihar v. Bal Mukund Sah- The court observed that any statute or law
having general application and operation relating to other state services will be
alright and no consultation with HC is needed until and unless it tries to
encroach upon the field of the recruitment and appointment to the subordinate
judicial service of the state as envisaged by articles 233 and 234.

Manner of consultation
● The governor, before framing the rules, should send the copy of the proposed
rules to the high court and the commission seeking their advice.
● Even if they offer no opinion, so long as the governor seeks their advice, it fulfils
the requirement of consultation.
● The defect in not consulting the public service commission stands cured if it
was entrusted with the interviewing of candidates and the commission
interviewed and made the selection.
● However the Supreme Court took a contrary view in the case of Gauhati High
Court v. Kuladhar Pukhan, where it was observed that the control and
consultation of/with the high court are not a matter of mere formality.
● Consultation with the Public Service Commission only regarding rules and not
the actual recruitment.

Rules to be subject to Constitution

● Rules to be subject to the provisions of the Constitution: The power to frame
recruitment rules under article 309 read with article 234 has to be exercised
subject to other provisions of the Constitution.
● For example, a rule, which renders a married woman ineligible for recruitment,
is also invalid as it amounts to discrimination only on the ground of sex- Racha
Charan v. State of Orissa
● There must be some reasonable nexus between the rules and the object
basically.

43
 ● There can be no delegation In framing the rules for recruitment to subordinate
judiciary, as it would amount to delegation of essential legal functions.
● Article 234 makes it a special duty and responsibility of the Governor himself to
make a rule about qualifying marks
● Prescription of qualifying marks will be invalid if it is imposed by the Public
Service Commission alone without any input from the governor.
● This view has been overruled by K.H. Siraj v. High Court of Kerala where apex
court has not treated prescription of minimum pass marks as essential
legislative function.
● Selection made in accordance with rules binding on the high court
● Selection made in violation of rules will be invalid, for example viva voce was
meant to test the general knowledge and grasp of principles of law, the addition
of personality and suitability by the public service commission would render
selection contrary to rules and as such invalid.

Article 235: Control over subordinate courts

Article 235
The control over district courts and courts subordinate thereto including the posting and
promotion of, and the grant of leave to person belonging to the Judicial Service of a State and
holding any post inferior to the post of District judge shall be vested in the High Court, but
nothing in this article shall be construed as taking away from any such person any right of
appeal which he may have under the law regulating the conditions of his service or as
authorising the High Court to deal with him otherwise than in accordance with the conditions
of his service prescribed under such law.

Analysis of the Section

Control vested in the high court

● To insulate the subordinate judiciary against executive interference.
● In respect of all other matters, such as promotions, transfers and postings,
sanction of leave, disciplinary proceedings and imposition of penalties.
● Even when the governor has the power, he has to consult.
● High Court, the sole custodian of subordinate judiciary, in all matters apart
from appointment, even then there is consultation.

44
 ● Absolute powers of posting, promotion to higher cadres (except to the cadre of
district judges).
● "control" referred to in this article, is used in a comprehensive sense, including
- disciplinary control.
- recommend the imposition of punishment of dismissal, removal and
reduction in rank or compulsory retirement.
- suspension of a member of the judicial service.

Power of the high court not subject to any outside control

● These articles are special provisions applicable to judicial service though it forms part
of state civil services so an administrative tribunal constituted under article 371 -D of
the Constitution empowered to hear appeals against orders affecting the conditions of
service of state civil servants would not have jurisdiction wrt Judicial services.

Two restrictions on the power of the High Court

1. Right of appeal, available to members of judicial service under the service rules.
2. giving of opportunity as prescribed in article 311(2) in the matter of disciplinary
proceedings and the rules regulating conditions of service including disciplinary
proceedings, framed by the government under article 309.

The power under clause (b) of second proviso to article 311(2): The Supreme Court in
Nripendranath case, having laid down that the power to hold disciplinary proceedings
and recommend imposition of major penalty on a member of judicial service is vested
in the high court.

Right of appeal: Scope?-

SC has observed that Inclusion of the right of appeal against the order of the high court
in the conditions of service indicates an order passed in disciplinary jurisdiction.
Interpretation of article 235 in this manner yields the following result:
a. Decision taken and recommendation made by the high court to impose any major
penalty on a member of judicial service is final and binding on the Governor. There
cannot be any further appeal.
b. Orders imposing minor penalties on the members of judicial service can be made by
High Court and are appealable.
c. Therefore, it appears that in matters like fixation of pay and allowances, pension, etc.,
that is, matters relating to conditions of service other than control which includes
disciplinary jurisdiction, which affect the finances of the state, appeals could be

45
 provided as it does not in any way affect the control vested in the high court over the
members of judicial service.

Power to Fix Seniority:

● The power to fix seniority of officers of judicial service is vested in the high court and
not in the Governor.
● Power to frame rules regulating seniority is no doubt vested in the Governor.
● Thus, the High Court is under a duty to fix seniority of judicial officers in accordance
with the rules framed by the Governor.
● in All India Judges Association, has directed the high courts to suitably amend and
promulgate seniority rules on the basis of the roster principles as approved by it in R.K.
Sabharwal v. State of Punjab.
● However, specifically directed that the existing relative seniority of the members of
higher judicial service has to be protected and the roster has to be evolved for the
future.

Effect of provisions in law relating to reorganisation of states

● Any provision contained in any law effecting the reorganisation of states which confers
power on the central government to fix the seniority of members of judicial service, has
an overriding effect on the power conferred on the high court under articles 233, 234
and 235 and therefore has to prevail.

Power to fix age of superannuation:

● The power to fix the age of superannuation of members of the judicial service is part of
the power under article 309 to regulate the recruitment and conditions of all civil
servants.

Enquiry ordered by the Governor invalid

● an enquiry held under the authority of the high court alone can form the foundation of
any punishment that may be imposed on a judicial officer.
● The governor has no power to order such enquiry or to empower any person to hold
such an enquiry.
● Thus falls within disciplinary action.

46
Suspension
● The power to institute disciplinary proceedings against district judges and other
members of the judicial service is vested in the high court under that article. Because
Control includes suspension as well, could also be disciplinary action.

Recommendation of the High Court Binding

● After holding a departmental enquiry, the high court recommends the imposition of
any penalty on a judicial officer; it is binding on the Governor.
● If contrary order is passed, Article 235 is violated.

Power under article 235 can be entrusted to a judge or committee of judges

● Under article 216 the high court means the chief justice and all the judges of the
concerned high court.
● But that does not mean that every administrative decision affecting a member of
judicial service should be taken by the full court.
● In State ofU.P. v. Batuk Deopati Tripati, the Supreme Court held that under article 235
power of control could be entrusted to one or more judges of the high court by rules
and regulations.
● To, sum up
- Consequently, for purposes of article 233 the word 'High Court' has to be
understood as the full court and the power cannot be entrusted to a judge or
committee of judges. But for the purposes of article 235 the word 'High Court'
has to be understood as including a judge or committee of judges to whom the
concerned function is entrusted by the decision of the full court.
● The interpretation given for the word 'High Court' in article 235 in the case oí Tripathi
should apply as well to article 233.
● In Nawal Singh v. Stale of U.P.; The SC approved the stand taken in Tripathi.

Exercise of power by disciplinary committee is no delegation

● In P. P. Singh case, following the ratio, in Tripathi, a full bench of the Andhra Pradesh
High Court has held that exercise of disciplinary power by a committee of judges of the
high court, to whom the power is entrusted by the full court for the convenient
transaction of the business is not an impermissible delegation of power.

47
Orders passed by chief justice when not authorised by the full court

● Disciplinary proceedings initiated against a member of judicial service by the ch)ef

justice without the authority of the full court is void ab initio. It cannot be ratified also
for that reason.

Consultation with public service commission renders decision invalid

● The judicial service is outside the scope of the public service commission. Therefore, the
commission should not be consulted.

High court cannot impose major penalty

● Only Governor in case of major penalty. Minor penalty for High Court, Major penalty
cases mein its only a recommendatory body.
● Question of dismissal, removal, reduction in rank, or termination of services rests with
governor.
● Power to initiate disciplinary proceedings against judicial officers, place them under
suspension and to impose punishment lies with the high court.

Premature retirement:

● The decision under the relevant rules that it is not in public interest to continue a
member of judicial service after he had put in the prescribed number of years of
qualifying service, or after he had attained the prescribed age, and to prematurely
retire him from service has to be taken only by the high court. Such a decision is
binding on the Governor though formal order retiring such an officer has to be issued
only by the Governor.
● However, no criminal case against a judge in course of discharge of his duty, held in
U.P. Judicial Officers Association v. Union of India.

Miscellaneous Provisions

Protection to acts done in judicial capacity

● If the act done or ordered to be done in the discharge of judicial duties is within his
jurisdiction the protection is absolute and no enquiry will be entertained whether the

48
 act done or ordered was done erroneously, irregularly or even illegally or was done or
ordered without believing in good faith that he had jurisdiction to do or order that act
complained of.
● still protected, if at the time of doing or ordering the act complained of, he in good faith
believed himself to have jurisdiction to do or order the Act.
● Not protected if acted in executive capacity w/o jurisdic.
● Not protected for misconduct.
● Acts of judicial officers which do not constitute any offence but may, nevertheless, be of
a nature calculated to do harm to administration of justice and to public interest at
large, are NOT protected.

Provision for Appeal:

● At present where a punishment is imposed against a judicial officer by the high court
the only remedy available to a member of a judicial service is to file a writ petition
before the same high court under Article 226.

Position of officers and servants of subordinate courts

● Control over subordinate courts includes officers and servants also.

Power to prematurely retire officers of judicial department:

● Under article 309, it is competent for the Governor to frame a rule providing for
premature retirement in public interest of civil servants of the judicial department

Composition of judicial service

● Consists of district judges as the head of each district, who also function as sessions
judges and judges of equivalent posts with various designations as defined under article
236(a).
● The registrar of small causes court, who exercises judicial powers, is a member of
judicial service. Hence disciplinary action taken against him by the high court is valid.
● The sweep of article 237 covers magistrates existing prior to separation of judiciary
from the executive, those who may not have been appointed in accordance with the
rules framed under article 234 or who might not have been under the control of high
court under article 235.
● But, until the necessary notifications are issued, the magistrates do not belong to
judicial service.

49
● The effect of such notification under article 237 would be that the magistrate so
specified comes under the control of the high court under article 235 in the same
manner as the members of judicial service. In most of the states notifications under
article 237 have been issued and the directive principles contained in article 50 has been
implemented.

50
Part VI:

Public Service Commission

UPSC and State Public Service Commissions (SPSCs) under Article 315
- 315(2): Joint PSCs across multiple States
- 315(4): UPSC can provide help to States

Composition
- Constitution does not provide for composition of UPSC or SPSCs
- Depends on President and Governor for UPSC and SPSCs respectively
- Jaishankar Prasad v. State of Bihar: proviso to Art 315 only directory in nature

Term of Office and Security of Tenure

- Art 316 fixes tenure of chairman and members of UPSC and SPSCs
- 6 years from date of entry into service
- UPSC: 65 years; SPSC: 62 years
- Art 317: security of tenure - chairman/member may be removed for misbehaviour only
after reference to Supreme Court
- Art 317(3): removal of chairman or member for (a) insolvency; (b) paid
employment outside duties of office; (c) infirmity of mind or body
- ‘Misbehaviour’ not defined in the consti, so
- Occasional omissions did not amount to misbehaviour
- Physical violence, attempting to influence results of exam = misbehaviour
- Art 317(4): Interest in contract/agreement of government for any profit/benefit =
misbehaviour

Prohibition on further employment (re-employment)

- Art 316(3): expiration of term of office disqualifies member from reappointment
- Art 319: disqualification - after expiration of term - of chairman/members from
re-employment to same office under same commission, and for any employment under
governments
- Only eligible for certain posts; everything else by default ineligible
- Governor is not employed under any government so eligible
- Art 319(d): member can be appointed as chairman since different offices

Conditions of service of members and staff of the commission

- Art 318: President/Governor to determine conditions of service
- Proviso: cannot be varied to disadvantage after appointment
- Office of chairman and office of members are distinct offices - members cannot claim
same facilities as chairman
- Bihar PSC v. Shiv Jatan Thakur: chairman can withdraw amenities/facilities; not hit by
proviso to Art 318 as this is not an alteration to terms of service

51
Functions of Public Service Commission
- Art 320(1): Conduct exams for appointment
- Art 320(3): UPSC/SPSCs shall be consulted on following matters
- Method of recruitment
- Principles to be followed in making appointments/promotions/transfer
- Disciplinary matters
- Claims for legal charges by government servant incurred in line of duty
- Claims for pension qua injuries
- Art 320(3) Proviso: President/Governor can lay down things for which PSCs need not
necessarily be consulted
- Art 320(5): Legislative review of these
- V Sreenivasa Reddy v. Govt. of AP: cannot take massive departure from consultation
- Art 320(4): no need to consult in reservations for backward classes
- Art 321: Additional functions can be given

Consultation
- Consultation is for independence and removal of bias
- Consultation is not mandatory, despite using ‘shall’, because:
- Provisor to Art 320 allows for dispensing of consultation
- Advice made is not binding
- Non-consultation does not render an order invalid
- GS Lamba v. UOI: Rule for consultation is directory; should not be ignored/applied
arbitrarily
- Consultation is, however, mandatory when the relevant provision so provides
- Advice, of course, is not binding on the govt
- Recommendation of a list of selection cannot be partially accepted
- Full and proper consultation

Selection Procedure
- Appointment can only be made after proper advertisement has been made inviting
applicants
- PSCs can cancel results of examination - not possible to demarcate all possible
circumstances
- Cannot revalue the paper or remove certain questions
- Cannot rescind/alter results once announced
- Impropriety in select lists can be ameliorated
- State of MP v. Raghuvir Singh Yadav: Candidate passing exam does not acquire
vested right to appointment
- Member committees can be formed
- select list not placed before the commission for consideration and approval is invalid.

52
Part VII: Recruitment and Conditions of Service

Chapter 1: Recruitment

1. Objective – to appoint persons capable of satisfactorily discharging the duties and

responsibilities of the posts to which they are appointed.
2. Important aspects – (1) Prescription of qualification; (2) determination of sources of
recruitment (direct recruitment or promotion); (3) method or procedure for
selection.
The state regulates these matters through either a law or a subordinate legislation, or
by rules framed used proviso to A.309 and in the absence of both by executive orders of
instructions. (subject to fundamental rights)
3. Qualification- No person can be appointed to a post under the state unless he
possesses the prescribed qualification. The Employer shall prescribe qualification
both for direct recruitment and promotion.
Case – Technical Employees v. Ministry of Railways – the railway board prescribed
higher qualification for promotions. Court relying on UOI v. Dr. S.B. Kohli, held that it
is not arbitrary and irrational to prescribe higher qualification for promotions as for
maintaining efficiency of service the higher qualification is required for the discharge
of the duties in the higher positions.
4. Equivalent qualification must be notified – must be declared and incorporated in
the advertisement. Unless the rules prescribe that an equivalent qualification is also
an alternative minimum qualification, even the equivalence declared by the
government can have no effect on the recruitment. The decision of the government
about the equivalence of qualification can be struck down only when it is shown to
be based on extraneous or irrelevant consideration or actuated by mala fides or
irrational or perverse or manifestly wrong.
5. Qualification not prescribed by rules cannot be insisted upon – In Upen Chandra
Gogoi v. State of Assam, the Supreme Court held that where a person did not
possess the prescribed qualification on the date of advertisement/appointment, his
appointment cannot be validated with amendment in the rules subsequently.
6. Eligibility of high second class - a line has to be drawn at mid point between the
marks required for securing pass class and the marks required for securing first
class. Above that mark – high second class. Below that – low second class.
7. Experience as qualification – mandatory requirement. Refers to postgraduate work.

53
8. ‘Leaving’ the job a disqualification – meaning -- the rule means that those who had,
in breach of the term of appointment, left the service are disqualified to apply for
the higher post.
9. Age qualification – service rendered under contract courts for enhancement of age
limit – min. 18 yrs. In the absence of a cut off date for determining eligibility
qualification pertaining to age, it has to be fixed at the time of issuing the
advertisement. In GK Lokmatha v. Director of Technical Education – HC where
according to the rules, service rendered by a person in a temporary capacity under
the government counts for enhancing the maximum age limit fixed for regular
recruitment, the fact that appointment of a candidate concerned was on contract
basis is no ground to deny the service for the purpose of enhancing the maximum
age limit for recruitment. But in Girish Jayantilal, the Supreme Court did not give
relief of age relaxation meant for government employees, to the person employed
on contract basis in the government. The court held that a temporary employee
cannot be equated with permanent employees and so he cannot take benefit of this
provision.
10. Power of the higher authority to select - If the rules confer power on a higher
authority to approve the appointment, it can approve the appointment if the person
concerned possesses the prescribed qualification.
11. Selection – the date of eligibility – must possess qualification on the last date fixed
for receipt of application.
12. Subsequent change of qualification – no ground for invalidating an earlier
appointment - When a person who is eligible for recruitment under the rules in
force is recruited to the service under the state, his appointment cannot be
invalidated on the basis of change in the new recruitment rules. His eligibility
would be tested on the basis of the qualification as they stood prior to the change.
13. Subsequent derecognition – no effect – illegal
14. Relaxation of qualification - The recruitment in deviation of the published
qualifications amounts to arbitrary exercise of power hit by articles 14 and 16 of the
Constitution. Relaxation of qualification prescribed can only be made in public
interest and having due regard to the special qualifications, experience or
competence of a particular individual. No relaxation when application has been
submitted or when ‘no relaxation clause’ is mentioned in the advertisement.

Sources of recruitment

54
 1. Effect of prescribing max percentage for one source of recruitment – Rules
merely fix the percentage for promotion leaving it to the authority concerned to
adopt any percentage below that figure.
2. Obedience to quota rules is mandatory – illegal. Those eligible for promotion
according to the quota prescribed in recruitment rules are entitled to seek a
mandamus to fill up the posts reserved for promotion in conformity with the
rules.
3. Direct recruitment vacancies can be filled up by promotion only temporarily.
4. The quota rule cannot be violated even in making temporary appointments
5. The quota rule has no retrospective effect
6. Difference between rule of rotation and rule of promotion - It cannot be said
that the rules provide that appointment by direct recruitment and promotion
should be made by way of rotation. All that such recruitment rules require is
that at any given point of time, the quota rule should not be violated. There is
no prohibition for the appointing authority to fill up the direct recruitment
vacancies or promotional vacancies available, as the case may be on any date. It
is open to the authorities to fill up promotional quota first and thereafter to fill
up direct recruitment quota or vice versa.
7. Recruitment of rotation - where the rules instead of fixing quota by way of
proportions as between direct recruitment and promotion clearly provide that
a specified vacancy or vacancies has got to be filled up by promotion or by
direct recruitment the appointment by direct recruitment and promotion must
be made in accordance with the rotation of vacancies.
8. Vacancies which should be taken to decide the quota – All vacancies which are
not stop gap or otherwise adventurous must be taken into account. No warrant
for the conclusion that vacancies referred to in the quota rules must be
vacancies in the permanent posts. But when the rules provide for direct
recruitment against permanent vacancies, only such vacancies should be taken
as the basis. If the rules expressly or impliedly indicate that vacancies arising
each year should be taken as the basis, the quota of direct recruits and
promotees should be adjusted on that basis.

Selections and appointments

55
 1. Application for recruitment: rejection of application for selection of irrelevant
ground – illegal (production of service certificate to claim the age limit; not to
interview on ground of non-production of marksheet of a second class degree
candidate; certificate from head of uni department cannot be rejected on the
ground that certificate from the principal specified in the ad had not been
produced)
2. Amendment of rules after advertisement:
a. So long as no selection had been made under the unamended rules and all
that had been done was to conduct the viva voce examination, no candidate
acquires any right and consequently cannot seek a writ to the public service
commission to make selection ignoring the amendment.;
b. When the rule in pursuance of which applications were called for was
declared invalid and thereafter the rule was amended the only way of
proceeding with recruitment is by calling for fresh applications. (if list of
selected candidates finalised, it cannot be affected)
i. Normally the rule is amended prospectively but the court in
Dhan Singh v State of Haryana held that the state government can
amend the rule retrospectively. However, the Supreme Court in K.
Narayana v. State of Karnataka struck down the amendment of rule
retrospectively on the ground that the same will disturb the system,
which has been in operation for the last 60 years.
c. Persons who had filed applications earlier under a rule, which was declared
invalid, acquired no right to say that only applications filed earlier should be
considered.

Selections – validity of selection

1. Selection made by a recruitment committee not properly constituted is invalid.
(absence of quorum, absence of an expert where mandatory, presence of a
member who has a vested interest in the selection, etc.)
2. Absence of a member of selection committee – selection invalid
3. Valid and invalid selection not severable
4. Competitive examinations - Different marks may be fixed for different subjects
having regard to the relative importance of the subjects and their degree of
relevance. No cheating.
5. Holding written test contrary to rules

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 6. Common test
7. Selection has to be made with the prescription of min. marks for success
8. Prescription of min. marks – when not necessary - never
9. Failure to add academic marks to interview marks – have to add both.
10. Appointments required to be made on the basis of recommendation by an
expert committee.

Interview and viva vocevoce

1. Difference between interview and viva voce - examination. The interview is a

meeting of the interviewer and the interviewed face to face especially for the
purpose of formal conference at some point, whereas a viva voce examination is
an oral examination in a specified subject.
2. Interview not an arbitrary test - The Supreme Court in Siraf v KeralaKerala
observed that the interview is the best mode of assessing the suitability of the
candidate for a particular position. However, the oral tests like interview and
viva voce, are highly subjective in character and thus an allegation of
arbitrariness could easily be made. It is susceptible to misuse.
3. Selection by interview alone not arbitrary
4. Interview should not be a farce
5. Assessment of marks at interviews when several objective tests are prescribed
to be assessed – each prescribed test is important. If taken the entire thing
lump-sum – illegal. Although, if rules do not require the assignment of marks
separately, awarding of lump-sum marks does not invalidate the selection. In
Madan Lal v. State of J & K, the court observed that where the rule merely
provided for assessing the candidate’s intelligence, GK, personality, aptitude
and suitability, assigning of separate marks under diff heads was not necessary.
6. Objects of viva voce – different types of viva voce – The performance of viva
voce is the discovery of abilities and deficiencies not displayed by the
performance in the written exam. It tests abilities, aptitudes, attainments and
accomplishments of the candidate.
7. Interview cannot be equated with viva voce
8. Viva voce matters must be authorised by rules
9. Allocation of marks – The weight given to the viva voce test as against the
written exam varies from service to service according to the requirement of the

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 service, min. qualification prescribed, age group, the body authorised to make
recruitments, etc.
10. Selection when preference for higher academic qualification is prescribed – (a)
other things being equal, person possessing higher academic qualification than
the one prescribed should be preferred; (b) When the rules of recruitment
prescribe the minimum qualification for recruitment and also prescribe
preferential qualification, and the rules regulating procedure for selection
provide that candidates equal to four times the number of posts for which
selections required to be made alone should be called for interview, the
procedural rules cannot be used to defeat the provisions of the substantive
rules prescribing the qualification for recruitment.
11. Exclusion from consideration on valid grounds – valid.
12. Selection by considering confidential records – valid
13. ‘Suitability’ not a vague term
14. Computation of marks at the qualifying examination – if a candidate fails to
mention the additional qualification or place any record or certificate before
the appropriate authority at the appropriate time, he may be precluded from
contending any prejudice has been caused to him by not giving him additional
marks.
15. Belated option for selection to any cadre – cannot change option at request of
candidate.
16. Allegation of bias against members of the selection committee – must be a
substantial possibility of bias animating the mind of the member of the
aggrieved party.

Appointment after selection

1. Inclusion in the select list – right for appointment according to ranking can be
challenged on grounds of arbitrariness, mala-fide and extraneous
considerations.
2. No right for appointment – (a) mere inclusive not right to be appointed. In the
case of ‘UOI v. Ishwar Singh Khatri’ upheld the right of the candidates to be
selected, whose names appear in the select list in excess of the number of
vacancies. (b) Principles of legitimate expectation also prevent the appointing
authorities not to keep the select list pending for long lest they shall be

58
 accountable for such unexplained delay. The Supreme Court in Prasanna Kumar
v National Insurance Co. held that after expiry of the validity period, if the
authority makes a single appointment from the candidates in the select list,
then the claim of the other candidates in the select list cannot be denied as it
would be discriminatory. It would amount to having kept the list alive.
a. The select list, once prepared, can be cancelled on grounds that the
recruitment rule had not been followed.
3. Denial of appointment on grounds of medical unfitness – valid.
4. Appointing authority has no power to reassess the suitability of selected
candidate
5. Cancellation of selection and appointment – the selecting authority has the
power to cancel the selection and also to debar a candidate form further
selection permanently or for a specified period, for misconduct like
suppression of material information. Upheld in the case of Central Provident
Fund Commissioner v. Ashok Dubey. The right of hearing should be given.
6. Automatic deletion of name on failure to join duty.
7. Selected candidates can be deleted if found unsuitable.
8. No right for change of departments.

Appointment by transfer

Sometimes an appointmentan appointment of a person already in service to a post in

some other department of the government is required. The state has the power to do
so. An appointment of a person already in the government service to a different post or
department is called ‘appointment by transfer’. Only to an equivalent post.

Effect of transfer – The employees transferred bring along with them seniority and are
entitled to hold substantively the permanent posts to which they are transferred.

Failure to give option within time – cannot claim to become a member of the new
service.

Other matters relating to recruitment

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 1. Regularisation impermissible – not open for executive to regularise the services
of an irregularly appointed candidate, for, the executive power cannot override
the statutory rules. In Secy. State of Karnataka v. Umadevi, SC came heavily on
the HCs for making orders u/a 226 for absorption, regularisation of recruitment
and permanent continuation. Has to be done only if the recruitment itself was
made regularly and in terms of constitutional scheme. R.S Garg v State of UP –
such appointments are void.
2. Recruitment to a cadre created to satisfy a temporary need.
3. Recruitment with retrospective effect – illegal
4. No substantive appointment against a tem post.
5. No bar for direct recruitment to temp posts.
6. Assurance given by executive order not to prevail over the rules - The principle
of promissory estoppel does not prevail against the rule making power of the
state. Therefore, no writ can be issued to the state to implement the assurance
by amending the rules.

Absorption
1. Taking over private institutions – (a) For perm. Absorption, a formal order of
the absorbing body is necessary; (b) When taken over subject to the condition
that the services rendered by the members of the staff in such institutions will
be treated a public service, an officer is entitled to count his previous service in
the equivalent cadre for purposes of seniority; (c) Servants – absorption is
continuation in service of an employee without interruption; (d) The
antecedent service has to be taken into account for consideration of seniority
under the government.
2. Right to be absorbed in an equivalent post - in Anis Parvez v. DG the court
upheld the absorption in the higher scale because it was done by way of
concession under a scheme of absorption passed pursuant to a direction issued
by the Supreme Court. However, in Biplab Kumar v WB, the court refused the
appellant who was tax collector on contract basis, the relief of absorption in the
service of dafadars and chowkidars.
3. Irregularly appointed person has no right
4. Absorption in different unit – not allowed
5. Absorption of deputationists – no right to absorption in deputed dep., the
employer always has a right to repatriate the deputationist to the parent org.

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Chapter 2: Promotions

PROMOTIONS

A. Introduction

Every public employee has a right under Article 16(1) to have his case considered for
promotion if eligible.

B. Importance of seniority in promotions

1. Seniority is an essential factor in promotions under the seniority-cum-merit

method. The seniority-cum-merit method is generally used for promotions in
lower cadres.

2. Deciding whether to use the seniority-cum-merit or promotion-by-selection

method is a complex administrative decision that falls to the relevant authority.

3. A need for a proper balance between seniority and merit in a promotion policy
was stressed in the case of Sant Ram Sharma v. State of Rajasthan. Again, in
UoI v. ML Capoor the court stressed the state’s responsibility to formulate a
proper promotion policy.

4. Generally, seniority is effective from the date of promotion unless there exist
rules to the contrary. The provision to Article 335, allows for the relaxation of
qualifying marks and standards in favourfavour of scheduled castes or
scheduled tribes for reservations in promotions.

C. Meaning of Promotion

1. Appointing a government servant to a higher post, otherwise than by direct

recruitment, is considered as promotion. Hence, a senior not promoted is
entitled to claim when a junior has been promoted to a higher post so long as he
was not directly recruited.

2. In-charge arrangements for a government servant to temporarily discharge

duties of a higher post without promotion are not equivalent to promotion, and
appointment by promotion cannot be equated to an emergency appointment for
a short period.

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D. Method and Procedure

1. Seniority cum merit

Seniority-cum-merit promotion prioritises seniority but also considers merit, while

merit-cum-seniority promotion places greater emphasis on merit. Merit includes
various attributes such as academic qualifications, past performance, character,
integrity, and devotion to duty. Time-bound promotion is intended to prevent
frustration due to stagnation. When considering years of service, it is based on the
actual promotion date, not the notional promotion date.

2. Promotion by selection

It is based solely on merit, and eligible candidates have the right to be considered.
Seniority is irrelevant unless candidates have equal merit, in which case seniority may
be considered. If a junior person is promoted on merit, it is not considered
supersession of seniors since seniority was not a criterion. However, if a senior person
is bypassed, it is considered a supersession. Generally, a standard is fixed below which
no selection is made.

3. It is illegal to adopt the other method of selection for promotion where

seniority-cum-merit method is prescribed

4. Personal evaluation may form the basis for promotion, it cannot be said that it
introduces an element of arbitrariness, leading favouritism and nepotism

5. Honest evaluation based on uniform principles should be adopted

6. Assistance of departmental committee cannot be unauthorised, bias of a member of

selection committee vitiates selection

7. Selection solely based on an interview might be bad

8. Seniority must be fixed (post which promotions are affected), right for consideration
on each occasion should be given, and change of rules doesn’t affect earlier promotions.
The existing seniority list forms the basis for promotion.

9. Promotion during the pendency of departmental enquiry

62
In such cases, it can be postponed but cannot be denied. The sealed cover procedure is
used when an employee is due for promotion but disciplinary or criminal proceedings
are pending against them.

The Department of Personnel and Training issued a modified Office Memorandum in

1988, following the court decision in Union of India v. Tejinder Singh. The new
memorandum requires a six-monthly review of pending proceedings against
government servants still at the investigation stage. If the appointing authority
concludes that there is no prima facie case based on evidence collected up to that
point, the sealed cover is opened, and the employee is given due promotion. The sealed
cover only opens when the employee is exonerated from all charges. They are entitled
to their promotion and salary from the date they would otherwise have been
promoted.

10. Date for eligibility of promotion when determining the right for consideration for
promotions is the date on which promotion was considered by a competent authority

11. Right of promotees against promotional quota is independent of whether direct

recruitment were made or not in that year

12. Promotions are to be made as per the prescribed ratio, the extra are considered to be
ad-hoc promotions

13. Mandamus can be issued

The High Court can issue a writ of mandamus only to direct the authority to consider
the case for promotion if it has been wrongly denied. But still if arbitrarily denied to
promote him, writ to promote will be issued.

14. Reservation and Promotion

Issue: Whether there can be reservation of posts at the time of promotion or whether it
is restricted to the time of initial appointment only?

63
Indra Sawhney v. UoI, 9 Judge Bench, Reservation of appointments or posts
1993
contemplated in article 16(4) is related
only to the stage of entry into service
and does not contemplate and provide
for reservations being made in the
matter of promotions as well

77th CAA, 1997 Clause 16(4A) inserted: Nothing shall

prevent the state from making
reservation in promotion for SC/ST.

R.K. Sabharwal v. State of Punjab The court decided that when

calculating the percentage of reserved
posts for promotions, all scheduled
caste/tribe candidates in the entire
cadre should be considered, even if
some of them were promoted based on
merit or seniority without reservation
benefits

15. Consequential Seniority or Catch up Rule

Both Ajit Singh (I) and Virpal Singh Chauhan were seen to be judgments in favour of
general candidates, while Jagdish Lai v. State of Haryana was seen as against them.

Union of India & Ors. It was held that SCs/STs who were given the benefit of
Vs. Virpal Singh promotion would not get consequential seniority.
Chauhan Hence, Article 16(4-A) was further amended by the

64
 Constitution (Eighty-Fifth Amendment) Act, 2001
giving them the benefit of consequential seniority.

Ajit Singh Juneja-I Vs. The rule of reservation provides accelerated

State of Punjab & promotion, but it does not give accelerated
Ors.(supra). consequential seniority. If a general category
candidate is promoted later to a higher grade than a
Scheduled Caste/Scheduled Tribe candidate who was
promoted earlier due to reservation, the general
category candidate shall regain seniority over the
reserved category candidate. This is necessary to
ensure that posts in the higher grade are not held
exclusively by those who entered service on the basis
of reservation, which would not be consistent with
the Constitution's requirements or spirit.

Ajit Singh Juneja II Vs. The court has held that if a senior general category
State of Punjab & Ors. candidate reaches a higher level before a reserved
candidate who was promoted through roster points,
then the seniority at the higher level should be
modified to place the general candidate above the
reserved candidate based on their inter se seniority at
the lower level. The promotion to the next level
should be based on the modified seniority at the
higher level.

Jagdish Lal v. State of the three-judge bench ruled that as the period of
Haryana continuous officiation has to be taken into account for
seniority, the roster-point promotees were entitled to
be taken into account for seniority, the roster-point
promotees were entitled to the benefit of continuous

65
 officiation: and this benefit flowed from articles 16(4)
and (4A).

5 Judge Bench upheld constitutional validity of The

M Nagraj v. UoI
77th amendment, 81st amendment and the 85th
amendment. However, it was held that the power to
make provision for reservation in promotions must be
exercised with the conditions that: (i) There must be
quantifiable data on backwardness of SCs and STs; (ii)
There is inadequacy of representation of SCs and STs in
the service and (iii) The reservation so provided shall not
affect overall administrative efficiency.

Jarnail Singh I and Direction in Nagaraja that the state has to collect
Jarnail Singh II quantifiable data of backwardness of SCs and STs,
being contrary to Indra Sawhney, was invalid. The
other two conditions of M Nagaraj were maintained.
These issues came before 3-Judge bench in Jarnail
Singh II – court observed that issues were best left to
the discretion of the states.

E. Qualification for promotion

1. Departmental examination cannot be enforced unless specifically prescribed

2. Departmental examination cannot be added to the rules by executive order

3. Passing a departmental examination doesnt confers ri ght for promotion

4. Extension of time for passing examination or exemption may be granted by the

state

5. Denial of promotion after granting exemption is illegal

66
 6. Failure to pass a departmental examination within time might result in reversion

7. Date of passing of the dept. examination doesn’t give any benefit against a senior
who has passed the exam later

8. however, on the date of actual promotion the senior is still unqualified and the
qualified junior is promoted, the latter acquires seniority superseding the former.

9. The Governor has the power to prescribe higher qualifications for promotion to the
next higher post.

10. ‘Experience’ for qualification need not be continuous

11. Higher qualification cannot cannot be insisted unless prescribed.

12. Filling up the post by deputation without considering the case of eligible officers is
illegal.

F. Confidential Report

The purpose of writing a confidential report is to provide the officer with an

opportunity to improve their performance and to improve the quality and efficiency of
public service. The report should be objective, impartial, and fair, with no biases, and
should encourage devotion to duty, honesty, and integrity. The reports should be
written by a superior officer of high rank, and there should be another higher-ranking
officer to review the report. It is important to ensure that the officers are not
demoralised as it would adversely affect their efficiency and efficacy in public service.

Some important aspect are as follows;

1. Confidential reports must be for the relevant period

2. Consideration of remarks after exoneration stand cancelled

3. Consideration of uncommunicated adverse remark

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The issue is whether uncommunicated adverse remarks in confidential reports should
be considered while making decisions regarding promotion, reversion, or premature
retirement of a civil servant.

The key judgement relating to this issue has been discussed in case of Gurdial Singh v.
State of Punjab, where the Supreme Court held that considering uncommunicated
adverse remarks for promotion was a violation of natural justice and entitled the civil
servant to have his case reconsidered. This judgement was followed by various high
courts. However, there have been conflicting judgements on whether uncommunicated
adverse remarks can be considered for decisions on reversion or premature
retirement.

G. Next Below Rule

That the service of an official on deputation should be treated as if it were a service in

the parent department, and they should be entitled to benefits and promotions
accordingly. a teacher deputed to a non-teaching post does not cease to be a teacher.
For the purposes of promotion they have to be regarded as teachers.

H. Retrospective Promotion

Officials have the right to be considered for promotion based on seniority and can
claim it retrospectively if they were passed over due to pending enquiries or incorrect
ranking. They are also entitled to salary and benefits with retrospective effect if they
are found fit for promotion. However, retrospective promotion must be against
available vacancies and cannot exceed the number of posts available. Retired
employees are entitled to benefits with retrospective effect if they were issued to
similarly placed persons still in service.

I. Reconsideration of Promotion

Promotions made by selection cannot be reviewed on the grounds of a revision of

seniority list, and a successor officer cannot review a promotion already made unless
authorised by the rule. However, a promotion made in violation of an order disallowing
promotion during a departmental inquiry can be revoked. The service rules must be
applied strictly, and promotions cannot be denied due to wrongful interpretation of

68
rules. It is not competent for the authority to cancel a promotion with retrospective
effect and deny salary of the promotional post. The competent authority can cancel or
amend a panel in accordance with the rules. Once a promotion is conceded in an
earlier writ petition, it cannot be reviewed unless it is a measure of punishment after
holding the inquiry in the prescribed manner.

Reversion
Where according to rules of recruitment promotion to a cadre is required to be made
from cadres A,B,C in the ratio of 4:2:1, the rule means that in respect of first four
vacancies arising after the promulgation of the rules, promotions must be made from
officers in category Ά' on the basis of seniority-cum-merit and likewise.

Chapter 3: Probation and Officiation

A. Introduction

During the probation period, a person recruited directly to a post is put on trial to test
their suitability for the job. The period is specified in the recruitment rules, during
which the person may be required to pass departmental exams and prove their
integrity, ability, and capacity to perform the duties of the post. The individual has no
right to the post during this period and can be found suitable or discharged based on
the appointing authority's decision.

B. Probationary Period

1. When a person is appointed on probation, they must satisfactorily complete

the period of probation, after which the appointing authority must declare them
to have done so. Confirmation of the probationer may take place simultaneously
with this declaration or after, depending on the availability of a permanent
vacancy against which they can be confirmed.

2. Despite being treated as substantive for certain purposes under the civil
services rules, probationers have no substantive status, meaning they have no
right to hold their post and cannot complain if their service is terminated at any
time during the probationary period.

69
 3. Simply continuing to work beyond the end of the probationary period does not
automatically confirm the probationer in their position, unless the rules
expressly provide for automatic confirmation. Permission to continue to hold
the post beyond the maximum period of probation provided by the rules may be
deemed to be confirmation, but this depends on the conditions of the order of
appointment and relevant rules, and the conduct of the employer must be
consistent with confirmation.

4. If a maximum period of probation is fixed and no other condition is

prescribed for confirmation, the probationer who continues beyond the
maximum period of probation acquires the right to be treated as a substantive
member of the service, but confirmation still requires a permanent vacancy.

5. When rules prescribe additional conditions for confirmation, such as passing a

departmental examination, an official who fails this examination cannot be
treated as confirmed. Finally, when a person is appointed on probation to a
temporary post, they remain temporary until they are confirmed, and the
probationary period may be reduced, subject to certain conditions.

6. The judgments of Dharam Singh and Bijoy Kumar Misra deal with the rule of
implied confirmation in employment. In the Dharam Singh case, the Supreme
Court held that if an employee is allowed to continue in a post beyond the
maximum probation period provided by the rules, it will be considered as
confirmation by implication. However, in Bijoy Kumar Misra, the court held that
mere continuation beyond the maximum period of probation will not lead to
confirmation by implication, and the conduct of the employer must be
consistent with the confirmation.

7. The court in subsequent cases has applied the rule of implied confirmation
conservatively and emphasised that it depends on the conditions in the
appointment order and relevant rules

C. Discharge of a Probationer

70
 1. A probationer being on trial his suitability has to be adjudged by the
appointing authority during the period of probation. Discharge of a probationer
at the end of the period of probation on the ground of unsuitability is perfectly
valid. This is called simpliciter termination.

2. The suitability of a probationer for confirmation can be judged based on

factors beyond their performance during the probation period, such as attitude,
attempts to secure a job elsewhere, and previous conduct. The consequences of
discharging a probationer in violation of rules depend on the interpretation of
the conditions. Natural Justice is to be followed.

3. If a discharge order is based on charges that attach stigma, it is considered

removal or dismissal as punishment and must be passed in accordance with
Article 311(2). However, determining whether a discharge is by way of
punishment or not can be difficult, and depends on whether it puts an indelible
stigma on the officer affecting their future career. Each case is decided on its
own facts and circumstances. The court looks at the substance of the matter,
not just the form, to decide whether the discharge is by way of punishment or
not.

D. Right to be reverted

If a probationer was previously in the service of the government before direct

recruitment, their services can only be terminated if they are found unsuitable for the
higher post and are reverted to a lower post. Their services cannot be terminated
outright.

E. Officiation

It is similar to probation and refers to the period during which an employee is

promoted to a higher post and kept on trial. The rules often prescribe the period of
officiation, which is necessary to avoid uncertainty in the tenure of promoted officers.
Continuance of promoted officers for an unduly long period on an officiating basis has
given rise to several disputes relating to seniority and discontent among promoted

71
officers. Reversion of an official from the officiating higher post on the ground of
unsuitability, like discharge of a probationer on the same ground, without causing
penal consequences or attaching a stigma is legal and valid. However, reversion from
an officiating higher post to the lower substantive post made for a collateral or legally
extraneous purpose is illegal and invalid. Similarly, when reversion has to be made on
the return of senior officers who went on deputation, it is not illegal.

Chapter 4: Seniority

https://www.linkedin.com/pulse/concept-seniority-under-service-law-vaibhav-gupta/
- Also a summary of our pdf only

Seniority means length of service in similar grade and status.

- Important matter relating to conditions of service because it has a direct
bearing on the question of promotion.
- Seniority, under the rules, is a civil right. However, its constitutionality can be
challenged on the grounds of unreasonableness, justness and fairness.
- Right for consideration of promotion according to seniority and in preference of
a junior is a part of fundamental right of equality of opportunity in matters related
to employment - Union of India vs S. L. Dutta
- However, there is no vested right of seniority, and determination of rules of
seniority is a question of policy, which the state will decide, even with
retrospective effect.

Seniority is a concept which involves a comparison between the length of service in the
same grade and not the overall length of service in different grades.

This ‘length of service’ is determined from the date of appointment in regular, not ad
hoc services. In case of a question regarding inter se seniority of persons joining on
same day, the following will govern the Court’s decision:

Service rules → If not, then executive instruction → If still not, fair and just
principles

Direct Recruit Class II Engineering Officers Association vs State of Maharashtra - The

words used in the appointment order must be read carefully - ‘date of appointment’ vs

72
‘date of order of appointment.’ In absence of the latter, to count seniority, the date to
count length of service would be date of appointment, not date of confirmation.

Principles governing fixation of seniority

1. The officials must be holding posts in the same cadre or grade
a. Regularisation is a fresh appointment
b. Past services are not considered
2. Seniority is to be fixed as between persons who hold similar status i.e.
officiating or substantive.
a. Officiating normally means that a person has been appointed to
discharge work in a post (usually a higher one) where he/she has not been
substantially appointed.
3. Persons holding permanent posts are always senior to those holding
temporary or officiating posts.
4. The date of confirmation or substantive appointment is the basis for seniority;
a. The general rule that length of service is calculated from date of
appointment and not confirmation, will not apply if the initial
appointment is ad hoc in nature. Thus, the probationary period can be
counted towards seniority.
5. From among persons holding temporary or officiating appointments the
length of service in the cadre or grade is normally the basis for fixation of
seniority.
6. In the case of persons who are recruited through a competitive examination,
the inter se seniority is determined on the basis of the rank assigned by the
Public Service Commission conducting the examination.
7. Where qualifications are prescribed for appointment to a post, the date of
acquisition of such qualification can also determine seniority.

Other General Principles

- It is only on confirmation of appointment that the person is substantively
appointed. On this substantive date, the length of service for determining
seniority will begin. Thus, even if the officer has been on temporary basis
beyond the prescribed time, the date of the order of the regularisation will be
counted.

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 - Even if recruitment is done first but confirmation is later, the person confirmed
first is senior to the one confirmed later.
- Confirmation takes effect from the date of completion on probation.

Seniority of direct recruits

1. If rules require fixation of seniority by the Public Service Commission, the order
by which the Commission recommends will be the fixed list, irrespective of
anything else.
2. In case direct recruits are to report to duty within a prescribed time under the
rules for seniority, and fail to do so, confirmation will be from the date at which
he joins service.
3. The seniority is determined by the list on the basis of a list prepared by the
authority, which is what the rules usually provide.

Seniority of promotees
- If promotion is made irregularly, the seniority of the persons promoted on
officiating basis is the same as their seniority in the substantive cadre
- If subsequently a seniority list is held invalid, and has already reached finality, it
cannot be challenged anymore.
- When promotion was passed over and given later, due to any reason, the date of
seniority for his next promotion will be counted from the date on which he was
supposed to assume promotion.
- When senior officers are considered unfit for promotion and the junior officers
are promoted, the latter (juniors) acquire seniority.
- Retrospective promotion must not exceed number of vacancies
- The denial of retrospective confirmation and seniority on retrospective
promotion is illegal. Meaning, if a person who was passed over for promotion is
given that promotion retrospectively, his salary/benefits/seniority for next
promotion will also be counted retrospectively.

Seniority between direct recruits and promotees

This is called inter-se seniority.

Where reserved candidates have been promoted earlier to a general candidate, their
seniority in the cadre will rank from the date of joining on promotion and this

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seniority is not and cannot have the effect of getting wiped out after the promotion and
of general candidates.

The rules of recruitment often fix specific quota for direct recruitment and promotion.
The quota cannot be violated at the will and pleasure of the appointing authority.
Vacancies must be classified as 'direct recruitment' and 'promotional' vacancies and
recruitment must be made from the respective source.

The five judge bench judgement in Direct Recruit Class II Engineering Officers
Association vs State of Maharashtra settled many of the long pending areas in inter-se
seniority. To summarise, the court held:
a. Once an incumbent is appointed to a post according to rule, his seniority has to
be counted from the date of his appointment and not according to the date of
his confirmation.
- The corollary of the above rule is that where the initial appointment is only ad
hoc and not according to rules and made as a stopgap arrangement, the
officiation in such post cannot be taken into account for considering the
seniority.
b. If the initial appointment is not made by following the procedure laid down by
the rules but the appointee continues in the post uninterruptedly till the
regularisation of his service in accordance with the rules, the period of
officiating service will be counted.
c. When appointments are made from more than one source, it is permissible to
fix the ratio for recruitment from the different sources, and if rules are framed
in this regard they must ordinarily be followed strictly (Rota rule).
d. If it becomes impossible to adhere to the existing quota rule, it should be
substituted by an appropriate rule to meet the needs of the situation.
e. Where the quota rule has broken down and the appointments are made from
one source in excess of the quota, but are made after following the procedure
prescribed by the rules for the appointment, the appointees should not be
pushed down below the appointees from the other source inducted in the
service at a later date.
f. Where the rules permit the authorities to relax the provisions relating to the
quota, ordinarily a presumption should be raised that there was such relaxation
when there is a deviation from the quota rule.

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 g. The quota for recruitment from the different sources may be prescribed by
executive instructions, if the rules are silent on the subject.
h. If the quota rule is prescribed by an executive instruction, and is not followed
continuously for a number of years, the inference is that the executive
instruction has ceased to remain operative.

Ajit Singh II vs State of Punjab

General Category students cannot be promoted against a reserved post but the vice -
versa is possible. The Court here clarified that promotees in the reserved category who
have been promoted against the general category cannot be treated as senior to
general category candidates who were senior to them in the lower category but
promoted later, provided the reserved category employees have not been further
promoted.
The 81st Constitutional Amendment Act, 2000 has the effect of nullifying the Ajit Singh
decision by enabling the state to make provisions for reservations “in matters of
promotion with consequential seniority, to any class or classes of posts" in the services
under the state in favour of Scheduled Castes and the Scheduled Tribes which, in the
opinion of the state are not adequately represented in the services under the state
(Article 16 (4-A)).

Method of fixing seniority

In A. Subraman A. K. vs Union of India, the Supreme Court laid down the method of
fixing seniority under quota rule:
1. The seniority of a civil servant in the cadre concerned will count from the date
of initial appointment on officiation (on promotion) or probation (on direct
recruitment) provided the initial appointment is within the quota;
2. The quota rule applies to vacancies in all posts, permanent or temporary
included in the sanctioned strength of the cadre, except vacancies which are
purely fortuitous or adventitious;
3. The validity of appointment from one source does not depend upon the making
of appointment from the other source
4. If the direct recruits are appointed against promotional vacancies, or promotees
are appointed against direct recruitment vacancies, their appointment must be
adjusted against clear vacancies becoming available thereafter at any time.
5. Once seniority is fixed, the source of their appointment is irrelevant.

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Steps to be taken to ensure obedience to quota rule and proper fixation of seniority:
1. The clear vacancies available in respect of permanent and or temporary posts at
the commencement of a given year should be apportioned between direct
recruitment and promotion in accordance with the quota prescribed.
2. Once the proper classification and recruitment is made, the vacancies must be
made available for that source only.
3. Appointments either by way of promotion or by direct recruitment should be
made as far as possible only against clear vacancies classified for that particular
source and this fact should be indicated in the appointment orders.
4. Whenever promotions are made against direct recruitment vacancies, the
orders themselves should specifically indicate that the promotions are made
against these vacancies.
5. Whenever promotions are made against stop-gap or fortuitous vacancies, the
appointment orders should specify that the promotions are made against such
vacancies.
6. In cases where initially promotions are made either against direct recruitment
vacancies or stop-gap or fortuitous vacancies and are subsequently adjusted
against promotional vacancies, fresh orders should be given as and when
persons so promoted or adjusted against clear vacancies reserved for promotion
indicating the date with effect from which the promotion is made regular.
The Supreme Court in Paramjit Singh vs Ram Rakha has observed that the procedure
of making available the vacancy arising out of a direct recruit post for direct
recruitment and the vacancy arising out for a promotee post for promotion is not
correct. The above view has been taken on the basis that such a method would result in
the violation of the quota rule and result in imbalance in the proportion of direct
recruits and promotees.

In Kadli vs State of Karnataka, it was held that vacancies earmarked for direct
recruitment or promotion lapse after three years.

In B. S. Yadav vs State of Haryana, it was held that in the absence of any indication in
the rules, that quota rule should be applied at the time of confirmation as well as the
time of initial recruitment. However, the quota fixed for different sources of

77
recruitment is relevant for making recruitment only. No seniority principle can be read
into such a rule.

Seniority on transfer to separate unit

● Where persons already in government service are transferred in the public
interest from one department to another to an equivalent post, they are entitled
to count the entire service rendered in the department from which they are
transferred in the department to which they are transferred.
● The case of persons who gets transferred to another department or to another
post on his request stands on a different footing. In such a case, he has to take
seniority from the date on which he enters the new post.
● Service rendered in another government prior to direct recruitment does not
count for seniority.

Procedural aspects of governing seniority

- Seniority cannot be altered without giving opportunity.
- The right cannot be taken away with retrospective effect by an executive order.
- The seniority principle cannot be given retrospective effect unless provided for.
- Where a provisional seniority list is published on the basis of principles set out
in the notification and objections were called for only from the aggrieved
official, any alteration in the final list prepared to the disadvantage of the
officials who were not aggrieved by the provisional list would be opposed to
principles of natural justice if done without giving them an opportunity to
present.
- Officers on deputation are entitled to retain their seniority in the parent
department and to promotion in the parent department.
- Order determining seniority must be a speaking order (reasoned order).

Chapter 5: Temporary Service

The State may legitimately employ temporary servants to satisfy the needs of a
particular contingency. The state may also regulate conditions of service of a class of
temporary servants in different ways in some respects from those of permanent
employees.

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Temporary appointments
- Even if the order doesn't say that the person is appointed in a temporary
manner, the fact that the post is temporary, speaks for itself.
- Rules that deal with leave, increment etc are applicable to temporary posts as
well. In such a case, the temporary post will be treated as substantial, but such
treatment doesn't actually make it substantial.
- If the post is made permanent, it does not mean that the person becomes a
permanent employee. A separate declaration is required.

Quasi-Permanency
- A temporary work may be declared to be quasi - permanent on fulfilment of two
conditions:
1. continuous service for more than three years
2. declaration by the appointing authority as required by the rules
based on satisfaction of his work and conduct
- It is a right to be considered, not a right to be declared quasi - permanent.
- Quasi permanency is a condition precedent for permanent absorption
- Protection against illegal termination is same as permanent employee under
Article 311 (2)

Permanency
- Declaration of permanency is essential
- Merely because a temporary employee was allowed to continue in employment
for a time beyond the term of his appointment, would not entitle him to be
absorbed in regular service or to be made permanent.

Termination
- Same protections under Art. 311 as permanent employees
- As per section 5 of the Central Government Service (Temporary) Rules, 1949
three options are open to the employer to terminate the services of a temporary
employee:
a. In terms of the order of appointment
b. According to the conduct rules
c. As a result of a criminal case

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 - Temporary service can be terminated in accordance with the rules at any time.
- Termination can only be done by competent authority.
- Order of termination which is violative of the applicable rules, is illegal
- Termination or reversion from temporary service on irrelevant ground is illegal

Chapter 6: Disciplinary Proceedings

Article 309 – Power of state to prescribe conditions of service by law or by rules which
includes the power to regulate disciplinary proceedings against government servants

Rules regulating disciplinary proceedings

Central Civil Services (Classification, Control and Appeal) Rules, 1965 – to regulate
disciplinary proceedings against persons appointed to services and posts at Central
level.

1. Minor penalties (enquiry needed)

1.1. Censure
1.2. Promotion withheld
1.3. Increment withheld
1.4. Recovery of pecuniary loss to government

2. Major penalties (regular departmental enquiry essential)

2.1. Compulsory retirement
2.2. Removal from service
2.3. Removal from service plus Disqualification for future employment

Regarding the major and minor penalties, the disciplinary authority has to decide the
penalty which it considers expedient to impose having regard to the nature of the
charges first and then to initiate enquiry according to the appropriate procedure.
The only judicial forum available to challenge disciplinary proceedings is the writ
jurisdiction in the exercise of which the courts have no power to interfere with the
quantum of punishment.

Departmental Enquiry
Steps for departmental enquiry

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1. Initiation of proceedings
2. Enquiry
3. Final order passed after enquiry

Article 311(1) – A member of civil service cannot be dismissed by an authority

subordinate to the one which appointed him

Essentials of departmental enquiry: -

1. Obligatory – essential for imposing any penalty
2. Removal of temporary employee for misconduct – enquiry not needed (only
needed if misconduct)
3. Removal before expiry of trial or re-employment – An order of premature
termination of re-employment without enquiry is invalid
4. Termination on grounds of medical unsuitability – no penalty for misconduct
and no enquiry necessary
5. Complicated matters affecting civil rights cannot be enquired into – a bigamy
case where it is a mixed question of fact and law, it has no substance

Procedure for imposition of major penalties

Article 311(2) – reasonable opportunity for imposing major penalties
- Withholding of increments with cumulative effect amounts to a major penalty.
It amounts to putting the clock back in the service of an official and virtually
amounts to reduction to a lower stage in the time scale.
- Withholding of promotion with loss of seniority – Unless the seniority of a
government servant is restored in the promotional post after the expiry of the
period of withholding of promotion, if he is considered fit for promotion on the
first occasion and promoted, it will have different consequences against
different government servants on whom the said penalty is imposed depending
on the fortuitous circumstances of the promotions taking place to the next
higher category during the relevant period.

Procedure for imposition of minor penalty

- No such penalty shall be imposed unless the government servant is informed in
writing of the proposal, he is given an opportunity to make representation and
that the representation is considered by the disciplinary authority.

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 - Authority competent to initiate disciplinary proceedings
- An enquiry against a government servant must be instituted at the instance of a
competent disciplinary authority. The disciplinary power vested in a designated
authority cannot be delegated. The authority to institute disciplinary
proceedings against a judicial officer is vested in the high court.

Statutory restrictions
A disciplinary action against a civil servant must conform to all the statutory
safeguards afforded to him. If the rules provide that no proceedings should be
instituted without informing the designated authority, any non-compliant action
would be illegal and any order of dismissal passed against a civil servant would be
invalid.

Preliminary enquiry
A departmental enquiry proceeding cannot be challenged on the ground that no
preliminary enquiry was held. There is no such principle of natural justice that, before
holding a regular departmental enquiry, the disciplinary authority itself should hold a
preliminary enquiry.

No vested right in procedure

There is no vested right in respect of the procedure under which a departmental
enquiry should be held against a civil servant. It is competent for the Governor to
amend the rules and entrust the departmental enquiry to the vigilance commission.

Joint enquiry
When a number of officers belonging to different cadres are jointly involved in
misconduct, it is competent for the government to institute disciplinary proceedings
jointly against all the officers.

Appointment of enquiry officer

- If no rules have been framed regarding who shall initiate the departmental
proceedings, then on the basis of article 311 of the Constitution it cannot be
urged that it is only the appointing authority and no officer subordinate to such
authority can initiate the departmental proceedings.

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 - Enquiry officer must be free from bias
- The rules of natural justice play a significant role in judging the validity of
judicial and administrative acts. Bias is taken to be a part of the principle of
natural justice which envisages that all decisions should be taken in good faith
without any bias.

Article of charges
Enquiring authority has no power to frame new charges. Charges must be specific and
statement of allegations must be furnished.

Legal Assistance
A government servant is permitted to take the assistance of another government
servant of his choice. Any refusal on the part of the department to accord permission
is illegal; unless, making him available is highly impracticable.

Rule of evidence for departmental enquiries

The rule of evidence applicable to departmental proceedings is not the same as the one
applicable for trials before criminal courts which are governed by the provisions of the
Indian Evidence Act. The technical rule relating to the sufficiency of evidence does not
apply to a departmental enquiry. An authority conducting the departmental enquiry
should be guided by rules of equity and natural justice and is not bound by the formal
rules of evidence.

Natural justice
It is a fundamental requirement of law that the doctrine of natural justice be complied
with and the same has, as a matter of fact, turned out to be an integral part of
administrative jurisprudence. The doctrine of natural justice is not only to secure justice
but to prevent miscarriage of justice. The following principles of natural justice are
applicable to the disciplinary proceedings against government servants;
1. the party should have the opportunity of adducing all relevant evidence which
he relies on;
2. the evidence of the opponent should be taken in his presence;
3. he should be given an opportunity to cross-examine the witnesses examined by
that party;

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4. no material should be relied on against him without giving him an opportunity
of explaining them.

Findings in departmental enquiries

The finding in a departmental enquiry by the enquiry officer or the disciplinary
authority must be specific. It is the duty of the disciplinary authority to focus attention
on the record so as to enable itself to reach a proper conclusion regarding the proof of
the charge.

Show cause notice

After the disciplinary authority records its findings on the charges and before
imposing any one of the major penalties, it is mandatory for the authority to issue a
show cause notice to the civil servant. A civil servant is entitled to make a
representation not only against the findings recorded but also against the quantum of
penalty proposed. Failure to give a show cause notice renders the penalty imposed
invalid.

Final order in disciplinary proceedings

After the disciplinary authority records its findings and issues a show cause notice to
the delinquent civil servant he is, at that stage, entitled to make representation
questioning not only the correctness of the findings recorded against him but also
against the quantum of proposed punishment.

Enquiry into charges once exonerated

Where in a departmental enquiry a government servant is exonerated on some of the
charges and punishment is imposed on the basis of the rest of the charges proved
against him and the punishment so imposed is quashed by the court, in a de novo
enquiry the disciplinary authority cannot enquire into the charges of which the civil
servant has once been exonerated.

Appeal
In the absence of a specific provision of law or any rule conferring on an appellate
authority power to convert an order of exoneration into one of punishment, an
appellate authority may either dismiss the appeal or allow it either wholly or partly
and uphold or set aside or modify the order challenged in such appeal.

84
Appellate Order
In an appeal presented against an order imposing a penalty on a civil servant, the rules
require that the appellate authority should consider:
1. whether the procedure laid down has been complied with and if not whether
such non-compliance has resulted in the violation of any provisions of the
Constitution or in failure of justice
2. whether the findings of the disciplinary authority are warranted by the findings
on record; and
3. whether the penalty imposed is adequate, inadequate or severe.

Deprivation of right of appeal

Where a joint departmental enquiry is held against several officers belonging to
different classes and grades and for that purpose the authority having power to impose
punishment on the highest officer involved in the joint departmental enquiry acts as
the disciplinary authority and as a consequence the officers holding lower cadres are
denied the right of appeal, such deprivation of the right of appeal is not illegal. If
compliance with a particular rule results in denial of the right of appeal, the mere fact
that there is no right of appeal which was otherwise available to a government servant
cannot be regarded as a ground for interfering with the order of punishment.
Review
In the absence of any specific rule authorising the authority to review an order passed
in disciplinary proceedings it is not permissible for an authority to embark upon such
a review.

Revisional Power
It is not competent for the revising authority to enhance the punishment unless power
is specifically conferred for enhancing the punishment. Where the statutory provision
conferring revisional power on the government only authorised revision it is not
competent for the government to interfere with an order of acquittal passed in favour
of a civil servant.

De novo enquiry (fresh enquiry)

Where the final order passed in a departmental proceedings imposing punishment
against a civil servant is set aside by the court on the ground that a mandatory

85
procedure has not been complied with or the enquiry contravenes the principles of
natural justice and the merits of the charges are not investigated there is no bar for the
state to hold a de novo enquiry in respect of the same charges. When the earlier
departmental proceeding was really dismissed on the basis of a technicality, it was
open to the competent authority to initiate a de novo enquiry.

Abandonment
Where after the issue of a show cause notice to a government official and his
furnishing the explanation, no further action is taken for a considerable period, the
one and the only inference that can be drawn under the circumstances is that the
disciplinary authority has abandoned the proceedings. It is not competent for the
disciplinary authority to revive the same disciplinary proceedings subsequently and to
impose punishment against a civil servant.

Departmental enquiry and criminal trial

An enquiry by a domestic tribunal in good faith in exercise of the powers statutorily
vested in it and the regulations framed thereunder into the charge of misconduct
against an employee does not amount to contempt of court merely because an enquiry
in respect of the same charges is pending before a civil or a criminal court.

Disciplinary proceedings after retirement

No disciplinary proceedings against a retired government servant can be held under
the rules. A mere pendency of a departmental enquiry does not stop the retirement of
a civil servant. Enquiry continued beyond the age of superannuation is illegal.
Therefore, if a disciplinary action is sought to be taken against a government servant,
this must be done before the official retires. If the disciplinary action cannot be taken
before the date of retirement, the course open to the government is to pass an order of
suspension and refuse to permit the concerned public servant to retire and retain him
in service.

Avoiding of enquiry by temporary employee

If the rules entitle a temporary government servant to bring about termination of his
services by giving a month's notice or one month's salary in lieu of notice he is legally
entitled to terminate his services even when he is under suspension pending
disciplinary proceedings.

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Right to full salary
When an order of removal passed against a civil servant is held void by the court, the
civil servant is entitled to be reinstated automatically in the service of the state. After
ordering reinstatement, it is not competent for the state to pass an order of
reinstatement with the condition that he will be given salary only for a period of three
years prior to the passing of the order of reinstatement.

Court martial – powers

The court martial constituted under the Army Act has the power to impose the penalty
of imprisonment against a member of the armed forces found guilty of the charges
levelled against him as also the penalty of reduction in rank. Power to constitute a
court of enquiry is only an enabling provision and not a precondition to the enquiry by
a court martial.

Review
When according to the rules, only the appellate authority is vested with the power to
review an order made-by a disciplinary authority,it is not open to any other authority
including a higher authority not mentioned under the rules to review the order.

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Part XI: Administrative Tribunals

Intro
1. Administrative tribunal act, 1985 enacted in pursuance of article 323A of
Constitution.
2. Power to decide disputes related to recruitment and condition of service of
person persons appointed to
a. Public services
b. posts in connection with the affairs of the union or of any state as also
any local or other authority is brought within the exclusive jurisdiction of
the central or the state administrative tribunal, as the case may be.
3. The act excludes jurisdiction of all courts except the Supreme Court with
respect to disputes or complaints in service matters.

Scope of Article 323A and 323B

1. Only 323A deals with administrative tribunals, 323B deals with other kinds of
tribunals.

2. Similarities (in scope or purpose) - gave power to legislature to

a. Establishment of tribunals via law to adjudicate disputes between state
and the individual related to certain specific matters and also specifying
the jurisdiction and power of such tribunals.
b. Procedure to be followed (limitation, rule of evidence etc)
c. Transfer of cases pending to these tribunals from any other courts after
the act came into force.
d. Exclude jurisdiction of other courts. (except SC under article 136)
e. Power to punish for contempt.
f. Overriding effect on other provisions of the Constitution or any other
law in force.

3. Distinction
a. 323-A; for deciding disputes and complaints of public servants in respect
of service matters of the union and of the states.
323-B: any matter enlisted in clause (2).

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 b. 323-A; Power vested on parliament only.
323-B; The power to enact the law under this article is vested in the
appropriate state legislature, i.e. either Parliament or state legislature,
according to their respective legislative competence over each of the
subjects specified in the article.

4. The object and purpose of the articles is speedy disposal of cases falling under
those categories.

Salient features of the Act, 1985.

1. The act is not applicable to
a. any member of the naval, military or air force or of any other armed
forces of the union
b. any officer or servant of the Supreme Court or of any high court, and
c. any person appointed to the secretarial staff of either House of
Parliament or to the secretarial staff of any State Legislature or a House
thereto
d. In 1987, even the officers and servants of the subordinate courts were also
excluded from the purview of the Act

2. Section 3(q) define “service matters”; all mattress relating to the condition of his
service, such as
a. remuneration (including allowances), pension and other retirement
benefits
b. tenure including confirmation, seniority, promotion, reversion,
premature retirement and superannuation;
c. Leave of any kind
d. Disciplinary matters

Read section 5 and 6; procedural stuff.

3. Section 5 provides for the composition of tribunals and benches thereof.
a. Section 5(1); each tribunal shall consist of a chairman and such number of
vice chairman and judicial and administrative members, as the

89
 appropriate government may deem fit and subject to the provisions of
the Act.
b. Section 5(2) provides that a bench shall consist of one judicial member
and an administrative member.
4. Section 6 (1), (2) and (3) prescribes the qualification for appointment as
chairman, vice-chairman and judicial member and administrative member.
5. Section 14 confers jurisdiction, powers and authority on the central
administrative tribunal in relation to;
6. Section 15 similarly for state administrative tribunals.

Does jurisdiction to decide disputes and complaints in service matter

1. The court held that the jurisdiction to decide disputes and complaints did not,
under the scheme of the Constitution, include the jurisdiction to decide
constitutional validity of service law and accordingly answered the question in
the negative.
2. In coming to the conclusion, the high court relied on the ratio of the four
Constitution bench decisions of the Supreme Court in
a. Jugal Kishore v. Sitamarhi Central Co-operative Bank,
b. East India Commercial Company v. Collector of Customs,
c. Chief Justice, Andhra Pradesh v. Dikshitalu,
d. Raja Ganga Pratap v. Allahabad Bank,
3. Relevant bit of the Raja Ganga Pratap judgement
a. Neither Article 323A nor Section 2(r) which defines 'service matter' nor
Sections 14, 28 or 29, provide that disputes and complaints which could
be raised before the Tribunal would include questions relating to the
constitutional validity of the law regulating the conditions of service and
recruitment of civil servants.
b. A jurisdiction of that magnitude has to be conferred and cannot be
inferred. Therefore, the very absence of a provision in Article 323A of the
Constitution which enables…
c. If it is allowed, an anomaly situation would arise where high courts
(whose jurisdiction are excluded) would not be able to determine
constitutional validity of the act but tribunals would.

Categories of cases in jurisdiction of the high courts and administrative tribunals

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In view of the respective and mutually exclusive jurisdiction of the High Courts and of
the Administrative Tribunals, it is necessary to clarify as to the categories of cases,
which fall within the exclusive jurisdiction of the High Courts and of the
Administrative Tribunals.

General High Court Tribunal

Rule:

General enforcement of fundamental rights questioning the legality of an order

Rule: and other provisions of the imposing penalties on a civil servant
Constitution as reflected in the or affecting any of his conditions of
laws enacted or otherwise by way service or any of his rights in
of challenging the constitutional matters relating to recruitment
validity of law regulating the
condition of service or
recruitment.

Article 14 A challenge to an order of A challenge to an order of

and 16) termination of service on the termination of service on the
ground that the rule which ground that it is discriminatory and
authorized termination of service violative of Articles 14 and 16 of the
without assigning any reason, Constitution does not involve
itself was violative of Articles 14 constitutional validity of any law but
and 16, would be a case involving only would involve question of
constitutional validity of the law, constitutional validity of the order
for, unless the rule is held to be
void the termination of service
cannot be set aside.

Reservat A complaint that a selection and But a complaint that reservation

ion appointment made was in violation order itself is unconstitutional on
of the order providing for the ground of arbitrary
reservation of posts in favour of classification or excessive
backward classes, by exceeding reservation would be a matter

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 reservation or not giving effect to involving constitutional validity of
the reservation and thereby the the law.
right guaranteed under Articles 14
and 16 was denied, is a matter
which does not involve any
question of constitutional validity
of the law.

Promoti If a civil servant says that though If non-promotion of civil servant is

on he was senior, his case was not challenged on the ground that the
considered for promotion as rule, which denied him the
required under the rule and seeks promotion, was violative of Articles
a direction for his promotion, it is 14 and 16, it would be a case
only a case of enforcement of the involving the question of
relevant rule as also right constitutional validity.
guaranteed under Articles 14 and 16
of the Constitution

(Basic funda is if the order is challenged then it is case of administrative tribunal, if the
law or rules in pursuant of which order is challenged then it is for high court to look
into the matter)

While challenging the legality of an order or action by invoking constitutional

provision (article 14, 16, 311) on the ground that the provision of a law intended to give
effect to those Articles of the Constitution had been violated, or in the absence of any
such law, the provision of the Constitution itself was violated and; Tribunals

The cases in which the provisions of a law regulating recruitment and conditions of
service under which an order or action, the legality of which is challenged, was made
or taken, itself is challenged on the round that it is violative of Articles 14 and 16 or 311
or any other provision of the Constitution; High Courts

In view of the judgement of the Supreme Court in J.B. Chopra v. Union of India, the
administrative tribunals have the power to decide constitutional validity of service
laws, i.e. the rules framed by the President or the Governor, as the case may be, or the

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laws enacted by Parliament or the appropriate legislature, and the high courts have no
jurisdiction to entertain the writ petitions even in respect of those matters.
(criticism: Any State legislature by enacting an ordinary law could divest the high
court of its constitutional jurisdiction under articles 226 and 227 to decide
constitutional validity of laws in respect of such matters specified in article 323 B as
would fall within the competence of State legislature. )

In L Chandra Kumar v. Union of India, held that the provisions ousting the
jurisdiction of high courts and Supreme Court under articles 226/227 and 32
respectively were held unconstitutional. It in this case it was also observed that
“though the subordinate judiciary or tribunal created under the ordinary legislation
cannot exercise the power of judicial review of legislative action to the exclusion of the
high courts and the supreme court, there is no constitutional prohibition against their
performing a supplemental - as opposed to a substitutional - role in this respect". So
long as the jurisdiction of the High Courts under Articles 226/227 and that of this court
under Article 32 is retained, there is no reason why the power to test the validity of
legislations against the provisions of the Constitution cannot be conferred upon
Administrative Tribunals. However, this power was made subject to an important
exception that the tribunal shall not entertain any question regarding the vires of their
parent statutes following the settled principle that a tribunal which is a creature of an
Act cannot declare that very Act to be unconstitutional.

Thus, the question has still not been convincingly resolved. But the present position is
that, by virtue of L. Chandra Kumar s ruling, the tribunals set up under article 323 A or
323 B are competent to test the vires of statutory provisions subject to an exception
mentioned above. However, their function in this respect is only supplementary to the
high courts. The mounting arrears of service matters before the high courts since
independence is one of the justifications offered by the apex court in arriving at this
conclusion.

Creation of administrative tribunal does not affect basic structure

In SP Sampath Kumar v. UOI, the constitutional validity of the provisions of the

Administrative Tribunals Act was challenged mainly on the ground that exclusion of

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judicial review of administrative action from the purview of the high court and its
conferment on the administrative tribunal affected the basic structure of the
Constitution.
1. Judicial review fundamental aspects of basic structure hence, bar of jurisdiction
of high court under 226/227 as contained in S.28 cannot be sustained.
- Court held; Thus exclusion of the jurisdiction of the High Court does not
totally bar judicial review. This Court in Minerva Mills pointed out that
"effective alternative institutional mechanisms or arrangements for
judicial review" can be made by Parliament.
- Done to relieve the high courts of the load of backlog of cases and for
assuring quick settlement of service disputes in the interest of the public
servants.
2. Tribunal being a substitute of the High Court, its constitution and set up should
be such that it would in fact function as such substitute and become an
institution in which the parties could repose faith and trust
- Suggested as far as chairman is concerned ordinarily a retiring or retired
Chief Justice of a High Court or when such a person is not available, a
Senior Judge of proven ability either in office or retired should be
appointed.
- For selection procedure when it is not of a sitting Judge or retired Judge
of a High Court should be done by a high powered committee with a
sitting Judge of the Supreme Court to be nominated by the Chief Justice
of India as its Chairman.
- This will ensure selection of proper and competent people to man these
high offices of trust and help to build up reputation and acceptability.

Law declared by the High Court binding on administrative tribunal or not?

The question is, whether the decision rendered by the high court concerned earlier to
the constitution of the tribunal or by an appellate bench of the high court after the
constitution of the tribunal, are binding or not on the administrative tribunal, for, if
they are not binding on the administrative tribunal and the questions could be
re-opened before the tribunal, the possibility of conflicting decisions could not be
excluded.
In Sreedharan Kallat v. Union of India, Central Administrative Tribunal has commented
upon the judgement delivered by the high court and denied the binding effect of the

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judgement on the ground of alleged inconsistency with the rules. The Apex court held
that the legal position already settled by the High Court should not be disturbed by the
tribunals, even when the supreme court refused to interfere with the view of the high
court.

Application of 'doctrine of precedent' to administrative tribunals

Whether the law declared by an earlier bench of the tribunal is binding on the
subsequent co-ordinate or smaller benches of the tribunal?
The doctrine of precedent is made applicable in judicial processes of administrative
tribunals as well and the subsequent co-ordinate and smaller benches of the tribunal
are bound by the judgement of the earlier bench of the same tribunal.
Cases; Sub-inspector, Rooplal v. Lt. Governor, Government of A. P. v. A.P. Jaiswal.

Whether power of superintendence of high courts under articles 226 and 227 is
excluded in respect of administrative tribunals?
The constitution bench of the Supreme Court in the case of Jugal Kishore has held that
every tribunal situated within the territorial jurisdiction of the high court is subject to
the power of superintendence and control of the high court concerned.
There is no express clause either in Article 323A or 323B which expressly excluded the
power of superintendence of the High Court over the said tribunal. Further, article 226
empowers a high court to ensure that tribunal situated within its territorial
jurisdiction do not exceed their jurisdiction and also to compel any tribunal by
mandamus to discharge its duty, if there is failure to do so.
The apex court while dealing with the above question in L. Chandra Kumar, has
categorically held that the power vested in the high courts to exercise judicial
superintendence over the decisions of all courts and tribunals within their respective
jurisdiction is also part of the basic structure of the Constitution.

Power to reduce penalty

In the absence of such an express provision conferring the power to interfere with the
quantum of penalty, the question is whether the administrative tribunals can interfere
with the quantum of punishment imposed in the disciplinary proceedings?
The apex court while dealing with the above question, in Union of India v. Parma
Nanda, has held that the tribunal has ordinarily no power to interfere with the
punishment awarded by competent authority in departmental proceedings on the

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ground of penalty being excessive or disproportionate to the misconduct proved, if the
punishment is based on evidence and is not arbitrary, mala fide or perverse. It was
further observed that the jurisdiction of the tribunal to interfere with the disciplinary
matters or punishment could not be equated with an appellate jurisdiction. The
tribunal cannot interfere with the findings of the inquiry officer or competent
authority where they are not arbitrary or utterly perverse.

Same was upheld in Om Kumar v. Union of India, the quantum of punishment is for
disciplinary authority to decide. The Jurisdiction of the high court under 226 or
administrative tribunal is limited. the court while reviewing punishment and if it is
satisfied that Wednesbury's principles are violated, it has normally to remit the
matter to administrator for fresh decision as to the quantum of punishment. Only in
extreme and rare cases where there has been a long delay in the time taken by the
disciplinary proceedings and in the time taken in the court, can the court substitute its
own view as to the quantum of punishment.

In Hombe Gowda Education Trust v. State of Karnataka, the court held that “While
exercising such discretionary jurisdiction, no doubt it is open to the tribunal to
substitute one punishment by another; but it is also trite that the Tribunal exercises a
limited jurisdiction on this behalf. The jurisdiction to interfere with the quantum of
punishment could be exercised only when, inter alia, it is found to be grossly
disproportionate.

Power to punish for contempt of itself

Section 17 of the Administrative Tribunals Act, 1985 expressly provides that the
tribunals shall have, and exercise, the same jurisdiction, powers and authority in
respect of contempt of itself as a high court has and may exercise under the provisions
of the Contempt of Courts Act, 1971.
Thus, though the power of administrative tribunals to punish for contempt of itself is
same as the power of the high court under article 215 of the Constitution read with the
provisions of Contempt of Courts Act, the exercise of the said power by the tribunals is
amenable to the writ jurisdiction of the high court under article 226/227 of the
Constitution subject to an exception that the order punishing contempt is appealable
only to the Supreme Court.

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The Administrative Tribunals (Amendment) Bill, 2006

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Handbook (Suspension- Resignation)

SUSPENSION

Suspension means-
1. Temporary forced withdrawal of duties from a gov servant.
2. With withdrawal of rights and reduction in pay.
Such withdrawal would be subjected to the inquiry on his/her conduct which had led
to his suspension.
Provisions for Suspension in context of disciplinary proceedings-
As such there is no one comprehensive set of rules containing all the provisions of
Suspension, they are scattered in a range of rules. It is majorly governed through two
set of rules-
1. FR (53,54 & 55)
2. Rule 10 of CCS (CCA) Rules, 1965.

Nature of Suspension-
A suspension is not a penalty given to a govt servant, but when it is given to a govt
servant, then the govt loses on the person’s services and pays him for no work. But
there is a stigma that is attached to suspension and thereby it should be carefully done.
The circumstances in which a govt servant may be suspended-
1. A disciplinary proceeding is pending against him
2. He does something prejudicial against the interest of the security of the nation
3. A case against him in respect of a criminal offence is against inquiry, trial, or
investigation
4. If his continuance in the service would be prejudicial against investigation,
inquiry or trial against him or Subvert discipline in the service/ against wider
public interest such as in the case of scandals.
5. Where the preliminary inquiry against govt servant’s suggests that he may end
up getting convicted of which he currently has been alleged of.
6. Any offence or conduct involving moral turpitude.
7. Serious dereliction of duty which causes loss to govt
8. Deliberate failure to carry out senior orders of seniors
9. Corruption, embezzlement or misappropriation of Govt Money
10. Dissertion of Duty

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These circumstances are based on Rule 10(1) of CCS(CCA) Rules.
Reasons for suspension if not communicated in the suspension orders then shall be
communicated within three months.
Deemed Suspension-
A govt servant would be deemed suspended by the appointing authority if-
1. He is detained in custody for more than 48 hours for criminal charge
2. If he is convicted and given an imprisonment for more than 48 hours.

Competent Authority to suspend a govt servant-

1. Appointing Authority
2. Any authority to which it is subordinate to
3. Disciplinary authority
4. Any authority empowered by president, by general or special order
Exception- Suspension made by CAG in regard to a member of Indian Audits and
Account Service, where suspension made by authority lower than appointing
authority.

Review of Suspension-
An order of suspension can anytime be modified or revoked by the authority making
it- Rule 10(5)(c) of CCS(CCA) Rules.

Validity period of Suspension Order-

1. An order of suspension shall remain valid for 90 days from making it and would
be invalidated if it is not reviewed by the authority competent to modify or
revoke before the said period, based on the recommendations of the review
committee.
2. This review committee is constituted for the purpose of modifying or extending
the suspension period, in case the suspension period is extended, such
extension shall not be beyond 180 days and subsequent reviews shall be done
accordingly.
3. No review is needed in case of deemed suspension
These have been contained in Rule 10(6) and Rule 10(7) of the CCS9CCA) Rules.
The pay the govt servant gets on suspension- Acc to FR 53(1) II A- The govt servant
suspended shall not be paid regularregular pay but shall be paid

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Subsistencesubsistence allowance, which would be amount equivalent to the pay he
would have been paid on leave i.e. Majorly Half Pay, in addition to DA. The SA is also to
be reviewed and maymay be increased by 50% or lowered by the same amount during
First 3 months on the basis of the review.

The headquarters of a government servant shall be his last place of duty. The order of
his suspension shall contain where his headquarters were. The request for change of
headquarters is generally accommodated by the government, as it does not cause any
major expense to the government.

Promotion of suspended officers- Such officers recommendation for promotion is

carried out by a sealed cover, sealed cover shall be opened subject to result of
disciplinary proceedings or proceedings in regard to suspension.
(http://documents.doptcirculars.nic.in/D2/D02est/22034_4_2012_Estt_D.pdf)

LTC- A Govt. a servant under suspension cannot avail of LTC as he cannot get any
leave including casual leave during the period of suspension. As he continues to be in
service during the period of suspension, members of his family are entitled to LTC. So
leave may not be granted to him acc. to FR 55.

Voluntary retirement/Resignation-
The Appropriate authority shall withhold the permission forfor a govt servant who is
suspended to retire, applicable rules: Proviso (c) of FR 56 (k) (1) (c) and second proviso
to Rule 48(1) of CCS(Pension) Rules, 1972 and Notice of Voluntary Retirement Under FR
56 (k) or Rule 48 (1) of CCS(Pension) Rules, 1972.

As far as resignation is concerned, The competent authority should examine, with

reference to the merit of the disciplinary case pending against the Government
servant, whether it would be in the public interest to accept the resignation. Normally,
as officers are placed under suspension only in cases of grave delinquency, it would
not be correct to accept the resignation of an officer under suspension. Exceptions
would be where the alleged offence does not involve moral turpitude or where the
evidence against the officer is not strong enough to justify that departmental
proceedings.

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As far as retirement is concerned, A Government servant who retires while under
suspension is entitled to provisional pension equal to the maximum pension on the
basis of qualifying service upto the date immediately preceding the date on which he
was placed under suspension. Gratuity will not be paid until the conclusion of
disciplinary proceedings. (Applicable rules: [Rule 69 of CCS(Pension) Rules, 1972]

On Conclusion of DisciplinaryDisciplinary Proceedings-

1. Where the Competent Authority is of the opinion that the suspension was
wholly unjustified, the Government servant may be paid full pay and allowances.
2. Where the Competent Authority is of the opinion that the proceedings were
delayed for reasons directly attributable to the Govt. servant, it may after notice
to the Govt. servant and considering his representation-if any, order a reduced
amount to be paid.
3. Where the proceedings result only in minor penalty being imposed, then the
suspension is treated as wholly unjustified.
(http://documents.doptcirculars.nic.in/D2/D02est/11012_15_85-Estt.A-03121985.p
df)
4. If the govt servant is neither exonerated nor there is only minor penalty, as
mentioned in above cases, then acc to FR 54-B(5), The competent authority shall
determine the amount to be paid, after notice to Govt servant and considering
his representation-if any.
5.
Imp Notes:
1. Acc to [FR 54-B (3) & (4)], The period of suspension will be treated as period
spent on duty for all purposes.
2. The period of suspension shall not be treated as duty unless the competent
authority specifically directs that it shall be so treated for any specified purpose.
3. If the Govt servant so desires, the period of suspension may be converted into
leave of the kind due and admissible, acc to FR 54-B(7)], As per FR 54-B(9)
wherever the amount allowed is less than full pay and allowances it shall not be
less than the Subsistence Allowance already paid.
4. According to The period between the date of suspension and the date of death
shall be treated as duty for all purposes and his family shall be paid the full pay
and allowances to which he would have been entitled had he not been

101
 suspended, for that period subject to adjustment of subsistence allowance
already paid.
5. Suspension order should normally indicate the grounds for suspension.
6. Where the suspension is on grounds of contemplated proceedings, charge sheet
should be served upon the Govt servant within 3 months, Where charge sheet is
not served within 3 months, the reasons for suspension should be
communicated to the Govt servant immediately on expiry of 3 months from the
date of suspension.
7. Order of Suspension is appealable under Rule 23 (i) of CCS (CCA) Rules, 1965.

RESIGNATION

Meaning- It is an intimation in writing that has to be sent to the Competent Authority

by the incumbent of a post, of his intention or proposal to resign the office/post either
immediately or from a future specified date. A resignation has to be clear and
unconditional, according to notification https://dopt.gov.in/download/acts .

Acceptance of Resignation- Generally, it is not the norm to not let go of a govt

employee who wants to retire, there are only few circumstances , wherein he is
stopped-
1. Where the Government servant concerned is engaged on work of importance
and it would take time to make alternative arrangements for filling the post
2. A person submitting a resignation under suspension to a competent authority,
its fate has to be decided based on the merit of the disciplinary case pending
against the Government servant,generally the resignation shall not be accepted
as a govt servant is suspended only in cases of grave delinquency, but shall be
accepted when he is suspended not because of moral turpitude or when the
proceedings does not seemto have dismissed him from teh service.
3. In cases where acceptance is deemed necessary in the public interest, the
acceptance may be done with prior approval of the Head of the Department in
respect of Group ‘C’ & ‘D’ posts and that of the Minister in charge in respect of
holders of Group ‘A’ and ‘B’ posts exception again is CAG-officers serving in
Indian audit service.
(http://documents.doptcirculars.nic.in/D2/D02est/28034_25_87-Estt.A-11021988.
pdf)

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● A resignation becomes effective when it is accepted and the Government
servant is relieved of his duties.
● The withdrawal of resignation is governed by the rules (4) to (6) of Rule 26 of the
CCS (Pension) Rules, 1972 which corresponds to Art. 418 (b) of the Civil Service
Regulations:- The appointing authority may permit a person to withdraw his
resignation in the public interest on the following conditions-
1. The resignation was tendered by the government servant for some
compelling reasons.
2. There was no improper conduct of the government servant between the
date of resignation and the date on which withdrawal was made.
3. The period shall not be more than 90 days for joining duty between the
the date on which the resignation became effective and the date on which
the person is allowed.
4. An order accepting withdrawal shall be deemed to include the
condonation of interruption in service but the period of interruption
shall not be counted as qualifying service.”
● The withdrawal of resignation will not be accepted if it is made to take up an
appointment in or under a private commercial company or in or under a
corporation or company by the Government or in or under a body controlled or
financed by the Government.
(http://documents.doptcirculars.nic.in/D2/D02est/28034_25_87-Estt.A-11021988.
pdf)
The government servants holding permanent posts resigning would have CCS
(Pension) Rules, 1972 applicable to them.
(http://documents.doptcirculars.nic.in/D2/D02est/28034_25_87-Estt.A-11021988.
pdf#1012)
● A Government servant who has been selected for a post in a Central Public
enterprises/Central autonomous body may be released only after obtaining and
accepting his resignation from the Government service.
(http://documents.doptcirculars.nic.in/D2/D02est/28034_25_87-Estt.A-11021988.
pdf#1012)
● In all cases of acceptance of resignation, the Competent authority, shall insist,
as a mandatory measure, on prior vigilance clearance, before taking a decision
on request for resignation (Source: Notification)

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● Only exceptional cases of withdrawal, which are properly justified from the
point of public interest and where time limit is exceeded only very marginally,
are required to be referred to DOPT.

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