Page Count: 83

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
Manner of consultation 43
Rules to be subject to Constitution 43
Article 235: Control over subordinate courts 44

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 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-
fleged trial before the crimianal 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.
● 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.

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 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).
● 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.

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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.
● 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).

Applicability of Article 311:

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 ● 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 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:
● 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.

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 ● 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.
● Loss of substantive status by confirmation: If a person has confirmed in a post he gets 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 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

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 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 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.
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

8
 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 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 is 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

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 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;
(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

10
 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)
● 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 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.

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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 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.

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 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 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.

13
 ● 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 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 Amar 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.

14
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

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.

15
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.

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

16
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:

(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

17
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:

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.

18
(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 not 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
● 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.

19
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)
● 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.

20
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 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 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

21
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 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

22
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 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;

23
(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.

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

The discretionary power given under article 311(2) (c) must satisfy certain conditions:
(a) good faith of the authority;

24
(b) exercise of power for the purpose for which it is granted;
(c) consideration of relevant matters; and
(d) executive authority must act fairly.

25
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 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.

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.

26
 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 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;
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 C.R. 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)
Commented [1]: 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

27
 - 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.
● 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

28
- Andhra Pradesh Case: retrospective effect of change in retirement age
- Age lowered from 58 to 55 by one government; reinstated by new govt.

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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

● The doctrine of separation of powers and the need for having an independent judiciary as a
bulwark of constitutional democracy.

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 ● 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
- Supreme Court and high courts, is ensured by articles 124 and 218.
- For Sub-ordinate 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 placed 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.

(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 competence to delegate his functions to the administrator of the union
territory.

31
 - 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 appointment, or promotion is done, the act is complete. Finishing of probation is
not the final step.
- 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
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
● 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
- Shouldnt have joined Judiciary by the other method.

32
 - Law officer of Stage/Union Govt are also eligible.

● Recommendation not binding on Gov/Prez

● Members of judicial service 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’
● To maintain the independence of 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 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 u. 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 Mukhand 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.

33
 ● This includes power to callback judges working on deputation.

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.

34
 ● 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 fulfills 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- Rachacharan v. State of Orissa
● There must be some reasonable nexus between the rules and the object basically.
● 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

35
 ● 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.
● 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.

36
 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 an 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 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 dll),m 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 reorganization 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 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.

37
Enquiry ordered by the Governor invalid

● an enquiry held under the authority of 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.

Suspension
● The power to institute disciplinary proceedings against district judge 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

● When 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

38
 power is entrusted by the full court for the convenient transaction of the business is not an
impermissible delegation of power.

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 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.

39
 ● 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.
● 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.

40
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 Commented [2]: Half of the members to have held govt
office for at least 10 years
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

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

41
 - 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.

42
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 appoints.
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.
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 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,

43
 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

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 rule 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.

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 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

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 finalized, 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, acquire
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 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 vose

1. Difference between interview and viva vose - examination. The interview is a meeting of the
interviewer and the interviewed face to face especially for the purpose of formal conference
on 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 Kerela 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 authorized by rules
9. Allocation of marks – The weight given to viva voce test as against the written exam varies
from service to service according to the requirement of the service, min. qualification
prescribed, age group, the body authorized 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

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 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 member of the selection committee – must be 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 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 a 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
govt. service to a different post or department is called ‘appointment by transfer’. Only to an
equivalent post.

47
Effect of transfer – The employees transferred bring along with them the 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

1. Regularization impermissible – not open for executive to regularize the services of an

irregularly appointed candidate, for, the executive power cannot overrise the statutory rules.
In Secy. State of Karnataka v. Umadevi, SC came heavily on the HCs for making orders u/a 226
for absorption, regularization 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 of 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 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 deputationsit 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 proviso to Article 335, allows for the relaxation of qualifying marks and
standards in favor 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.

D. Method and Procedure

1. Seniority cum merit

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Seniority-cum-merit promotion prioritizes 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 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 unauthorized, 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

In such cases, it can be postponed but cannot be denied. The sealed cover procedure is discussed. It
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

50
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[1]

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?

Indra Sawhney v. UoI, 9 Judge Bench, 1993 Reservation of appointments or posts

contemplated in article 16(4) is related only to

the stage of entry into service and

docs 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.

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 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. Vs. It was held that SCs/STs who were given the benefit of
Virpal Singh Chauhan promotion would not get consequential seniority. Hence,
Article 16(4-A) was further amended by the Constitution
(Eighty-Fifth Amendment) Act, 2001 giving them the benefit
of consequential seniority.

Ajit Singh Juneja-I Vs. The rule of reservation provides accelerated promotion, but it
State of Punjab & does not give accelerated consequential seniority. If a general
Ors.(supra). 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.

52
Ajit Singh Juneja II Vs. The court has held that if a senior general category candidate
State of Punjab & Ors. 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 continuous
Haryana 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 officiation: and this benefit flowed from
articles 16(4) and (4A).

5 Judge Bench upheld constitutional validity of The 77th

M Nagraj v. UoI 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 Jarnail Direction in Nagaraja that the state has to collect quantifiable
Singh II 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

53
 2. Departmental examination cannot be added to the rules by executive order

3. Passing a departmental examination doesnt confers right 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

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
demoralized 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

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.

54
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 teacher.

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 authorized 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 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.

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Reversion

[1] 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

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.

56
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.

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 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 emphasized that it depends on the conditions in the appointment order and relevant rules

C. Discharge of a Probationer

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

57
 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 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, it’s constitutionality can be challenged on
the grounds of unreasonableness, justness and fairness.

58
 - 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 ‘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. Regularization 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.

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

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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 judgment in Direct Recruit Class II Engineering Officers Association vs
State of Maharashtra settled many of the long pending areas in inter-se seniority. To summarize, 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.
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.

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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.

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.

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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 lapses 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 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).

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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.

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
- 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

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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
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)

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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.
- 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.

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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.
- Enquiry officer must be free from bias
- The rules of natural justice plays a significant role in judging the validity of judicial and
administrative acts. Bias is taken to be a part of 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;

67
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;
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.

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.

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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 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

69
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.
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).

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.

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 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 thereo
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 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 judgment

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 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

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 and questioning the legality of an order

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

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

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

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 Reservatio A complaint that a selection and But a complaint that reservation order
n appointment made was in violation of itself is unconstitutional on the ground of
the order providing for reservation of arbitrary classification or excessive
posts in favour of backward classes, by reservation would be a matter involving
exceeding reservation or not giving effect constitutional validity of the law.
to the reservation and thereby the right
guaranteed under Articles 14 and 16 was
denied, is a matter which does not involve
any question of constitutional validity of
the law.

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

(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 judgment 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 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.

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(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 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.

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 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
judgment delivered by the high court and denied the binding effect of the judgment 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 judgment 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?

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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 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 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 HombeGowda 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 in 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

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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.

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 pn 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 discpline 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. Deliberatefailure to carry out senior orders of seniors
9. Corruption, embezzlement or misappropriation of Govt Money
10. Desertation of Duty

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
with in 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 imprisionment for more than 48 hours.

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Competent Authority to suspend a govt servant-

1. Appointing Authority
2. Any authorutry to which it is subordinate to
3. Discplinary 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 prypose 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 regulat pay but shall be paid Substeinece 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 amy be increased by 50% or lowered by the same amount during First 3 months
on the basis of the review.

The headquarters of a govt 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
accommodate by govt, as it does not cause any major expense to govt.

Promotion of suspended officers- Such officers recommendation for promotion is carried out by a
sealed cover, sealed cover shall be opneeded subject to result of disciplinary proceecings or
proceedings in regard to suspension.
(http://documents.doptcirculars.nic.in/D2/D02est/22034_4_2012_Estt_D.pdf)
LTC- A Govt. 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 accto FR
55.

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Voluntary retirement/Resignation-
The Appropriate authority shall withhold the permission fir 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.
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 Discplinary 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.pdf)
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.
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. Acc to The period between the date of suspension and the date of death shallbe treated as
duty for all purposes and his family shall be paid the full pay and allowances to which he would

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 have been entitled had he not been 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 dated. A resignation has to be clear and unconditional, acc 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)
● 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 govt servant for some compelling reasons.
2. There was no improper conduct of govt servant between date of resignation and the
date on which withdrawal was made.

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 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 view to taking 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 govt 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)
● 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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