NATIONAL LAW INSTITUTE UNIVERSITY,

BHOPAL

In the partial fulfilment for the requirement of the project on the subject of
Constitutional law - I of B.A., L.L.B (Hons.), Third Trimester.

DOCTRINE OF PLEASURE

Submitted to:

Ms. Kuldeep Kaur

Submitted by:

Avanish Deshpande

(2018BALLB55)

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 Acknowledgement

On completion of this Project it is my present privilege to acknowledge our profound

gratitude and indebtedness towards my teachers for their valuable suggestions and
constructive criticism. Their precious guidance and unrelenting support kept me on the right
track throughout the project. I gratefully acknowledge my deepest sense of gratitude to:

Prof. (Dr.) V. Vijayakumar Director, National Law Institute University, Bhopal for providing
us with the infrastructure and the means to make project;

My Constitutional Law I professor, Ms. Kuldeep Kaur, who provided me with this wonderful
opportunity and guided me throughout the project work;

I am also thankful to the library and computer staff of the University for helping me find and
select books from the University library.

Finally, I am thankful to my family members and friends for the affection and encouragement
with which doing this project became a pleasure.

Avanish Deshpande

(2018BALLB55)

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 Table Contents

Acknowledgement...............................................................................................2

Table Contents....................................................................................................3

Introduction.........................................................................................................4

Constitution of India...........................................................................................5

Application of Doctrine of Pleasure in India....................................................5

Article 309.........................................................................................................6

Article 310.........................................................................................................7

Article 311.........................................................................................................9

Judicial Perspective..........................................................................................14

Conclusion.........................................................................................................15

Bibliography......................................................................................................16

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 Introduction

The head of the Union Executive as well as State Executive has certain powers which can be
used by them on the advice of their Council of Ministers or on their own discretion. Doctrine
of Pleasure states that an employee under the post of Union Government holds office during
the pleasure of the President while an employee under the post of State Government holds
office during the pleasure of the Governor. The doctrine of pleasure is a common law
principle originating from English courts. The doctrine in context of England states that every
civil servant of the crown holds his office during the pleasure of the crown and can be
terminated by the crown anytime the crown wishes.

Similar doctrine is followed in India where the Head of the Union executive i.e. the President
and the head of the State executive i.e. the Governor have the power to terminate any
employee under the post of the respective governments. In India, this doctrine was adopted
and is mentioned under Article 310 of the Constitution of India where it is stated that the
employees of the government hold their posts during the pleasure of the head of the
respective executive. However, this power is not as arbitrary as that in the monarchical State
of England. The Constitution of India has limited this power through the provisions given
under Article 311.

The origin of the Doctrine of Pleasure can be can be traced back to the United Kingdoms.
The concept evolved in the country was based on the Latin maxim – ‘durante bene
placito’ which means “during good pleasure” or “during the pleasure of the appointer”. The
Black’s Dictionary has defined ‘Pleasure Appointment’ as the assignment of someone to
employment that can be taken away at any time, with no requirement for notice or hearing.
This concept from English law was adopted by the Indian Constitution but however the
absolute power has been curtailed.

In the Indian Constitution, the doctrine of pleasure has been referred to under seven sections.
Under the doctrine of pleasure, the president and the Governors have the arbitrary power to
dismiss any public servant without any obligation of reason or explanation. But this arbitrary
power has been toned down and then inserted in the Constitution in order to safeguard
democracy and freedom. Article 310 of the Indian Constitution provides for the application of

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the doctrine of pleasure in India while article 311 limits the power given under the former
article.

Constitution of India

Application of Doctrine of Pleasure in India

There are three kinds of public services based on the freedom to which are held during the
pleasure of the president that are mentioned in the constitution.

There are services which are held during the absolute pleasure of President. these services are
mentioned under the following articles – The Article 75(2) relating to appointment ministers,
Article 76 (4) relating to Attorney General and Article 156(1) relating to Governors. There
are no restrictions whatsoever on the President and the Ministers, the Attorney General and
the Governors and can be dismissed abruptly by the President.

There are some services which are held during the pleasure of President with certain
restrictions on the exercise of this power. Article 311 of the constitution clearly provides for
the restrictions on the doctrine of pleasure which is prescribed in the article 310. It has
provided particular requirements in accordance to which the power can be practised. This has
been clearly explained in the following judgement – “The pleasure of the President is clearly
controlled by the provisions of Art. 311, and so, the field that is covered by Art. 311 on a fair
and reasonable construction of the relevant words used in that article would be excluded from
the operation of the absolute doctrine of pleasure. The pleasure of the President would still be
there, but it has to be exercised in accordance with the requirements of Art. 311”.1 The
services which are mentioned in the article include Members of defence service, Members of
civil service of the Union, Member of an All-India service, holders of posts connected with
defence or any civil post under the Union, Member of a civil service of a State and holders of
civil posts under the State.

Lastly there are certain appointments to which there is no applicability of the doctrine and the
sole process of their removal before the end of their term is by impeachment. These services
are of such nature that they have the responsibility of keeping a check on the working of the
government, and a direct control of an executive organ over their dismissal may disrupt
fairness, justiciability, and democracy in the country. These appointments include the
1
Moti Ram v. N.E. Frontier Railway, AIR 1964 SC 600

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Supreme Court Judges, the High Court Judges, the Election Commissioners, the Comptroller
and Auditor General etc.

In addition to the President, the governors have pleasure during which certain offices are
held. Under article 164, Chief Minister and Ministers of a state hold their posts during the
Governor’s pleasure. The Advocate General is appointed by the Governor and holds the post
during his pleasure under article 165(3).

Article 309

The above article states that –

“Subject to the provisions of this Constitution, Acts of the appropriate Legislature

may regulate the recruitment, and conditions of service of persons appointed, to
public services and posts in connection with the affairs of the Union or of any
State:

Provided that it shall be competent for the President or such person as he may
direct in the case of services and posts in connection with the affairs of the Union,
and for the Governor 2*** of a State or such person as he may direct in the case of
services and posts in connection with the affairs of the State, to make rules
regulating the recruitment, and the conditions of service of persons appointed, to
such services and posts until provision in that behalf is made by or under an Act of
the appropriate Legislature under this article, and any rules so made shall have
effect subject to the provisions of any such Act.”

The article defines the power of the President and the Governors to provide for the conditions
relating to the recruitment and conditions of services of public office or posts related to
public affairs of the Union or States, in the absence of any appropriate Act or Legislature
enacted for the same.

In the landmark case of A. B. Krishna v State of Karnataka 2, it was held that the Governor
cannot exercise power under article 309 if the legislature has already made a law and
occupied the field

2
A. B. Krishna v State of Karnataka, AIR 1998 S.C.1050

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Article 310
(1) Except as expressly provided by this Constitution, every person who is a member of a defence service or of a
civil service of the Union or of an all-India service or holds any post connected with defence or any civil post
under the Union holds office during the pleasure of the President, and every person who is a member of a civil
service of a State or holds any civil post under a State holds office during the pleasure of the Governor 3*** of
the State. (2) Notwithstanding that a person holding a civil post under the Union or a State holds office during
the

The article provides for the application of doctrine of pleasure in India. It states that any
employee of defence or civil services or all India services, holds the position during
President’s pleasure. Similarly, any person under employment of defence or civil service of a
states, holds the office during governor’s pleasure. The second clause states that even if there
is a special contractual relationship between a person and Union or State, the service is held
during the pleasure of President or Governors and can be terminated due to the abolishment
of such office or post.

The Article 310 of the Indian Constitution states that –

(1) Except as expressly provided by this Constitution, every person who is a

member of a defence service or of a civil service of the Union or of an all
India service or holds any post connected with defence or any civil post under
the Union, holds office during the pleasure of the President, and every person
who is a member of a civil service of a State or holds any civil post under a
State holds office during the pleasure of the Governor of the State.
(2) Notwithstanding that a person holding a civil post under the Union or a State
holds office during the pleasure of the President or, as the case may be, of the
Governor 1*** of the State, any contract under which a person, not being a
member of a defence service or of an all-India service or of a civil service of
the Union or a State, is appointed under this Constitution to hold such a post
may, if the President or the Governor 2***, as the case may be, deems it
necessary in order to secure the services of a person having special
qualifications, provide for the payment to him of compensation, if before the
expiration of an agreed period that post is abolished or he is, for reasons not
connected with any misconduct on his part, required to vacate that post.

In clause 1, it can be observed that there is a general rule which operates “except as expressly
provided by the Constitution.” This means that the Doctrine is not arbitrary and is subject to
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constitutional limitations. Therefore, when there is a specific provision in the Constitution
giving to servant tenure different from that provided in Article 310, then that servant would
be excluded from the operation of the pleasure doctrine. The following articles in the
Constitution expressly exclude certain posts from the rule of Pleasure. They are:

1. Article 124 excludes Supreme Court Judges.

2. Article 148 excludes Auditor General.

3. Article 217 and Article 218 exclude High Court Judges.

4. Article 317 excludes members of Public Service Commission.

5. Article 243K excludes he Chief Election Commissioner.

Though doctrine of pleasure is accepted in India as it has developed in England, it has not
been completely accepted in India. It is subject to the provisions of Article 311 which
provides for procedural safeguards for civil servants.

In case of Union of India v Tulsiram 3, it was decided that pleasure of the President or the
Governor under Article 310 is not subject to any contract and cannot be fettered by contract,
ordinary legislation or the rules made under Article 309. In another case Shyam v Union of
India4, it was decided, “Pleasure under Article 310 is not required to be exercised by the
President or the Governor personally. It may be exercised by the President or the Governor
acting on the advice of the Council of Ministers.”

3
Union of India v Tulsiram, AIR 1985 SC 1416
4
Shyam v Union of India, AIR 1987 SC 1137

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Article 311

The article provides for certain requirements which are to be accorded with, in order to
exercise power under Article 310. The article limits the power in following ways –

Article 311(1) states that –

“No person who is a member of a civil service of the Union or an all-India service or
a civil service of a State or holds a civil post under the Union or a State shall be
dismissed or removed by an authority subordinate to that by which he was appointed.”

The clause is regarding the authority who can impose any of the punishments of dismissal or
removal. Under the article, a public servant cannot be removed by any authority which is
subordinate to the authority which was responsible for the appointment. In the landmark case
of Mahesh v. Uttar Pradesh5 it was explained that, “The posts which are higher than the
person’s also do not have the power to dismiss if they are subordinate to the authority which
appointed the person. No order of dismissal or removal can be made by an authority
subordinate to the appointing authority. But if the removing authority is of the same or co-
ordinate rank or grade as the appointing authority then, dismissal or removal by such
authority is valid.”6

Article 311(2) states that –

(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

5
6
Mahesh v. Uttar Pradesh AIR 1955 SC 70

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 b) where the authority empowered to dismiss or remove a person or to reduce
him in rank is satisfied that for some reason, to be recorded by that authority in
writing, it is not reasonably practicable to 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.

Article 311(3) states that -

(3) If, in respect of any such person as aforesaid, a question arises whether it is
reasonably practicable to hold such inquiry as is referred to in clause (2), the decision
thereon of the authority empowered to dismiss or remove such person or to reduce
him in rank shall be final."7

Under the article any person can be dismissed or removed or reduced in rank only after an
inquiry informing the person about the charges against him and giving him an opportunity to
put his side. 2. Clause (2) of Article 311 provides the procedural essentials to be followed
before dismissing, removing or reducing in rank. Article 311(2) mandates the compliance of
the Principles of Natural Justice. A civil servant cannot be punished without: (a) holding an
enquiry; and (b) informing the civil servant about the charges against him; and (c) giving him
a reasonable opportunity of being heard in respect of those charges. Therefore, services of
any civil servants cannot be terminated at pleasure unless the mandatory provisions
of Article 311 have been observed. This doctrine of pleasure is further restricted by the
general law of the land which empowers any civil servant to file suit in a court of law for
enforcing any condition of his service and for claiming arrears of pay.

The power to dismiss at pleasure any civil servant is not a personal right of the President or
the Governor, as the case may be. It is an executive power which is to be exercised at the
advice of Council of Ministers. Doctrine of Pleasure as contained in Article 310, being a
constitutional provision cannot be abrogated by any legislative or executive law;
therefore Article 309 is to be read subject to Article 310.8

Constitutional safeguards provided under Article 311 are not available to all the government
servants. The text of the Article refers to members of civil services of the Union or all- India
service of a State or hold a civil post under the Union or a State. The constitution bench of the

7
Art. 311, Constitution of India
8
I P Massey, Administrative Law 581 (8th ed., 2012)

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Supreme Court in S.L. Agarwal (Dr.) v. General Manager9, Hindustan Steel Limited,
generally considered as to who are the persons entitled to the protection of Article 311. The
Court identified the following persons:

1. Persons who are members of:

a) A civil service of the union; or

b) An All India Service; or

c) A civil service of a State; or

2. Hold a civil post under the Union or State.

Supreme Court in State of Assam v. Kanak Chandra Dutta 10 laid down that civil post in
Clause (1) means a post not connected with the defence services and outside the regular civil
services.11 Further, in Parshottam Lal Dhingra v. Union of India12, the Supreme Court of
India has held that under Article 311 the safeguards are applicable to both permanent and
temporary servants.

In addition to this, certain circumstances are provided where the procedure envisaged in the
article is not required to be followed –

a) “Where a person is dismissed or removed or reduced in rank on the ground of conduct

which has led to his connection on criminal charge;”13

The Supreme Court has emphasised under Art. 311(2)(a), the disciplinary authority is to
regard the conviction of the concerned civil servant as sufficient proof of misconduct on his
part. For this purpose, the authority may take into consideration the judgement of the criminal
court, the entire conduct of the civil servant, the gravity of the offense, the impact of the
offence on the administration, whether the offence was of a technical or trivial nature, and

9
S.L. Agarwal (Dr.) v. General Manager, 1970 AIR SC 1150 ; Samaraditya Pal, Law Relating To Public
Service, p.823(LexisNexis Butterworths Wadhwa Nagpur, 3rd ed., 2011) 
10
State of Assam v. Kanak Chandra Dutta, 1967 AIR SC 884
11
Samaraditya Pal, supra note 11 at 830
12
Porchetta Lal Dhingra v. Union of India, AIR 1958 SC 36
13
Article 311, Constitution of India.

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extenuating circumstances if any. This is the Disciplinary authority has to do ex-parte and
without giving a hearing to the concerned civil servant.14

The power has to be exercised by the authority “fairly, justly and reasonably”. Hearing need
not be given while imposing the penalty after conviction on a criminal charge, but the right to
impose a penalty the duty to act justly. 15 For instance, a government servant convicted for
parking in the no-parking area cannot be dismissed.

b) “Where the authority empowered to dismiss or remove a person or to reduce him in

rank is satisfied that for some reason to be recorded by that authority in writing, it is
not reasonably practicable to hold such inquiry;”16

It is important to know that this clause applies only when the conduct of government servant
is such as he deserves the punishment of dismissal, removal or reduction in rank. Before
denying government servant his constitutional right to an inquiry, the paramount
consideration is whether the conduct of the government is such as justifies the penalty of
dismissal, removal or reduction in rank.

In Tulsi ram Patel case17, the Supreme court explaining the scope of the clause has said
“whether it was practicable to hold the inquiry or not must be judged in the context of
whether it was reasonably practicable to do so. It is not a total or absolute impracticability
which is required by cl. (b). What is requisite is that holding of the inquiry is not practicable
in the opinion of a reasonable man taking a reasonable view of the prevailing situation.” The
Supreme Court further held that the reasonable practicability of holding an inquiry is a matter
of assessment to be made by the disciplinary as he is the best judge of the situation.18

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

Under the clause, the satisfaction has to be that of the President or the Governor as the case
may be. The satisfaction must be with respect to the expediency or inexpediency of holding
14
Jain supra note 8 at 2092
15
Shankar Das v. Union of India, AIR 1985 SC 772
16
Article 311, Constitution of India..
17
Union of India v. Tulsi ram Patel, AIR 1985 SC 1416
18
Kuldip Singh v. State of Punjab, AIR 1987 SC 79
19
Article 311, Constitution of India.

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an inquiry in the interest of the security of the State. Security of State being of paramount
importance all other interests are subordinate to it, “Security of State may comprise a
situation of disobedience and insubordination on the part of members of the police force”. In
Tulsi ram Patel case20 the Supreme Court clarified that the question is not whether the
security of the State has been affected or not, for the expression “in the interest of the security
of State”. The interest of security of State may be affected by actual acts, or even the
likelihood of such acts taking place. Therefore, it was stated by the court that, “What is
required under cl.(c) is not the satisfaction of the President or the Governor, that interest of
the security of the State is or will be affected but his satisfaction in the interest of security of
State, it is not expedient to hold an inquiry as contemplated by Article 311(2)”.

20
Supra note 17.

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 Judicial Perspective

Doctrine of pleasure has been discussed at many instances in Indian courts. Various
judgements have explained the scope and nature of the application of the doctrine of pleasure
in India.

In State of Bihar v. Abdul Majid21, the Supreme Court of India refused to follow the
English rule of the Doctrine of pleasure. In this case sub-inspector of police was suspended
from service on the ground of cowardice and then was later reinstated in service. But the
government contested the claim for arrears of salary for the period of his suspension. The
Supreme Court in this case upheld the petitioner’s claim of arrears of salary on the ground of
contract or quantum merit i.e., for the value of the service rendered.

The Supreme Court reiterated similar ruling in Om Prakash v. State of Uttar Pradesh22,
where it was held that when there is an unlawful dismissal of a civil servant, he is entitled to
get the remuneration from the date of dismissal to the date the dismissal was declared
unlawful. Further in State of Maharashtra v. Joshi23, it was held that a claim of arrears of
salary was held to be based on contract.

In addition to this, the judiciary has also acted as checks and balances on the arbitrary
exercise of the power of conferred by the doctrine on the President and the Governors. The
Supreme Court in Jaswant Singh v. State of Punjab 24  held that in spite of finality of
Article 311(3) the “finality can certainly be tested in the court of law and interfered with, if
the action of the authority is found to be arbitrary or with malice or motivated by extraneous
considerations or merely a ruse to dispense with the inquiry.”

In Union of India v. Balbir Singh25, the Supreme Court held that the Court has the power to
scrutinize the circumstances on which the satisfaction of the President or Governor was based
on. If the Court finds that the circumstances have no bearing whatsoever on the security of
State, the Court can hold that satisfaction of the President or the Governor which is required
for passing such an order has been vitiated by wholly extraneous or irrelevant considerations.

21
State of Bihar v. Abdul Majid, AIR 1954 SC 245 
22
Om Prakash v. State of Uttar Pradesh, AIR 1955 SC 600
23
State of Maharashtra v. Joshi, AIR  1969 SC 1302
24
Jaswant Singh v. State of Punjab, AIR 1991 SC 385
25
Union of India v. Balbir Singh, AIR 1998 SC 2043

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 Conclusion

It can be observed that the doctrine of pleasure though included in the constitution inspired
from English Law, the makers of the constitution also included provisions in order to limit
the exercise of such power. The balance between two different and contrasting ideas i.e. ‘to
keep in check the working of public servants' and 'to protect the fundamental rights of the
citizens.’ Thus, it can be said that the Constitution makers then at that time had known about
the discrepancies like corruption to creep into the civil services, so in order to not grant
immunity from summary dismissal to dishonest or corrupt government servants the doctrine
of pleasure was included in the constitution. Also at the same time the necessity was
acknowledged to add certain provisions to limit the same. Therefore, the judiciary is entitled
with limited judicial review and departmental appeal has ensured that the power to dismiss
has not been misused by the authority.

With the lot many cases coming into light in relation to corruption among the government
officials and the linking of various government officials with anti-social elements
the Article 310 and 311 of the Indian Constitution envisaged in the Part XIV act as a check
and does not allow the government officials to make mockery of Law.

Doctrine of Pleasure applies not only upon the conduct of a person in the course of his
official duty, but can also be applied in case of his illegal or morally wrong behavior in his
private life. Article 310(1) says about the Doctrine of Pleasure and the provision is such that
the civil servants and the defense personnel would hold the office upon the ‘pleasure’ of the
President/Governor respectively at the Union and the State levels.

But, sometimes there is wrong judicial procedure which is being initiated and due to this the
affected party fails to receive the arrears of his salary. The hon’ble Supreme Court in the case
of State of Bihar v. Abdul Majid26 had granted aggrieved party the arrears of his salary on
the basis of quantum meruit i.e. for the value of the services rendered, as he was later
reinstated in the service. In the Constitution itself, there is a provision in the Article 310 (2)
which states that if a person is appointed in the job on the basis of any special qualification
then if the President/Governor thinks fit can secure his services by granting him termination
only after the expiration of the term and there is no role for the premature retirement.

26
State of Bihar v. Abdul Majid, AIR 1954 SC 245

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 Bibliography

Books

1. Dr. J. J. R. Upadhyaya, Administrative Law, 476 (Kanpur: Central Law Agency

Publications, 8th ed., 2012)
2. I P Massey, Administrative Law 581 (8th ed., 2012)
3. M.P Jain, Indian Constitutional Law, p. 2052 (Nagpur: LexisNexis Butterworths
Wadhwa, 6th ed., 2010).
4. Saharay, Madhusudan, Adoption of Foreign Doctrines by the Supreme Court , p.308
(Eastern Law House, ed., 2011)
5. Samaraditya Pal, Law Relating To Public Service, p.823(LexisNexis Butterworths
Wadhwa Nagpur, 3rd ed., 2011)
6. Shukla, V. N., Constitution of India, p.870 (Delhi: Eastern Book Company, 11th ed.,
2011).

Websites

1. http://www.shareyouressays.com/115275/short-speech-on-the-doctrine-of-pleasure

2. www.legalservicesindia.com/article/1643/Doctrine-of-Pleasure-as-under-the-
Indian-Constitution.html

3. https://www.lawctopus.com/academike/doctrine-of-pleasure/#_edn1
4. www.manupatrafast.com

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