PROJECT ON CONSTITUTIONAL GOVERNANCE-II

TOPIC: - DOCTRINE OF PLEASURE AND ITS LIMITATIONS AS UNDER

THE CONSTITUTION OF INDIA

NATIONAL LAW UNIVERSITY, JODHPUR

SUBMITTED ON- 9TH MARCH 2015

SUBMITTED

BY-

SUBMITTED TOPooja Meena (1124),

Prof. K.L. Bhatia

Sasha Singh (1134)

Professor of Law

IV Sem. B.A. LLB.(Hons.)

National Law University, Jodhpur

ACKNOWLEDGEMENT
A research project like this is never the work of anyone alone. The contribution of
many different people, in different ways, makes these works possible and so is with
this project. We would like to extend our appreciation to such people. Thanking God
for the wisdom and perseverance that he has been bestowed upon us during this
research project, and indeed, throughout our lives: We can do everything through
him who gives us strength. Our friends, as they always are, have been very helpful in
making of this project and consequently we thank them for their continual support and
encouragement throughout. And also we would like to take this special opportunity to
thank NLUJ Prof. Sir K.L. Bhatia for providing us such a good topic and such an
opportunity to discuss on this issue of Doctrine of Pleasure under Article 310(1) of the
under Indian Constitution. Indeed, without his guidance, we would not have been able
to put our labour in this topic. The experience throughout has been very interesting
and rewarding one. Weve learnt a lot form this topic. We would also like to thank all
those people whom we cannot name but who have directly or indirectly helped us
throughout the project

TABLE OF CONTENTS

TABLE OF CONTENTS....................................................................................................2
INTRODUCTION..............................................................................................................6
ORIGIN AND SCOPE OF DOCTRINE OF PLEASURE IN INDIA.............................8
APPLICATION OF DOCTRINE OF PLEASURE IN INDIA........................................9
DOCTRINE OF PLEASURE..........................................................................................10
DOCTRINE OF PLEASURE IN RELATION TO THE GOVERNOR.........................14
PUBLIC SERVICE COMMISSION...............................................................................16
RECRUITMENT AND CONDITIONS OF SERVICE..................................................16
RESTRICTIONS ON THE DOCTRINE OF PLEASURE:...........................................18
CONSTITUTIONAL

SAFEGUARDS

AVAILABLE

TO

THE

CIVIL

SERVANTS...............................................................................................................21
IS SUSPENSION OR COMPULSORY RETIREMENT A FORM OF PUNISHMENT?
...........................................................................................................................................25
IS ARTICLE 310 AND 311 CONTRARY TO ARTICLE 20(2) OF INDIAN
CONSTITUTION OR TO THE PRINCIPLE OF NATURAL JUSTICE?....................26
JUDICIAL PERSPECTIVE ON DOCTRINE OF PLEASURE IN INDIA..................26
CONCLUSION.................................................................................................................28

INDEX OF AUTHORITIES

Cases
A. B. Krishna v State of Karnataka, AIR 1998 S.C.1050..............................................19
B.P. Singhal v. Union of India & Another, 2010 4 AWC(Supp)3617SC..............................16
Bansh singh Vs State of Punjab, 1962 AIR SC 1711.....................................................26
Dunn v. Queen, 1896 (1) QB 116....................................................................................10
Jaswant Singh v. State of Punjab, AIR 1991 SC 385.....................................................28
Kuldip Singh v. State of Punjab, AIR 1987 SC 79.........................................................25
Mahesh v. Uttar Pradesh, AIR 1955 SC 70....................................................................22
Moti Ram v. N.E. Frontier Railway, AIR 1964 SC 600.................................................11
Om Prakash v. State of Uttar Pradesh, AIR 1955 SC 600............................................28
Parshottam Lal Dhingra v. Union of India, AIR 1958 SC 36........................................22
Rajinder Singh v State of Punjab, AIR, 2001 S.C 1769.................................................18
S.L. Agarwal (Dr.) v. General Manager, 1970 AIR SC 1150........................................21
Shankar Das v. Union of India, AIR 1985 SC 772.........................................................24
Shyam Lal Vs State of U.P, AIR1954 SC 369................................................................26
Shyam v Union of India, AIR 1987 SC 1137..................................................................13
State of Assam v. Kanak Chandra Dutta, 1967 AIR SC 884.........................................21
State of Bihar v. Abdul Majid, AIR 1954 SC 245...........................................................27
State of Maharashtra v. Joshi, AIR 1969 SC 1302.......................................................28
Surath Chandra Chakraborty v. State of West Bengal, (1970) 3 SCC 548...................23
Union of India v Tulsiram, AIR 1985 SC 1416..............................................................14

Union of India v. Balbir Singh, AIR 1998 SC 2043.......................................................28

Union of India Vs Sunil Kumar Sarkar, AIR 2001 SC 1092.........................................27
Wells v. Newfound land, 1999 (177) DL (4th) 73(SCC).................................................16
Websites referred
http://www.shareyouressays.com/115275/short-speech-on-the-doctrine-of-pleasure
31 Aug 2013......................................................................................................................12
Books
Dr. J. J. R. Upadhyaya, Administrative Law, 476 (Kanpur: Central Law Agency
Publications, 8th ed., 2012).........................................................................................20
I P Massey, Administrative Law 581 (8th ed., 2012).....................................................15
M.P Jain, Indian Constitutional Law, p. 2052 (Nagpur: LexisNexis Butterworths
Wadhwa, 6th ed., 2010)................................................................................................12
Saharay, Madhusudan, Adoption of Foreign Doctrines by the Supreme Court , p.308
(Eastern Law House, ed., 2011)...................................................................................12
Samaraditya Pal, Law Relating To Public Service, p.823(LexisNexis Butterworths
Wadhwa Nagpur, 3rd ed., 2011)..................................................................................21
Shukla, V. N., Constitution of India, p.870 (Delhi: Eastern Book Company, 11th ed.,
2011)..............................................................................................................................12

INTRODUCTION
The idea of establishing a Public Service Commission for the recruitment of Public
Services in the country was first formulated in the memorandum presented by the

Government of India in 1919 to the Committee on the division of functions. It is

provided that there shall be established in India a Public Service Commission which
shall discharge in regard to the recruitment and control of the public services in
India., such other functions as may be assigned thereto by rules made by the secretary
of State in council The Government of India considered this question and forwarded
its recommendations to the Provincial Governments of their views. It also said that
competitive examinations were going to be introduced; it must be subject to the
following conditions.
First the candidates must be graduates; there should be a preliminary selection of
candidates by a Committee to be constituted for the purpose; the Provincial
Governments should decide upon the recommendations of the Committee; there
should be some age limit. In 1924, the Royal Commission on public Services (Lee
Commission) laid stress on the necessity for constituting without delay a Public
Service Commission under the Government of India Act, 1919. They proposed to
assign to the Commission four distinct functions; First, the recruitment of personnel
for public services; Second, the establishment and the maintenance of proper
standards of qualifications for admission to the services; Third, quasi-judicial
functions relating to disciplinary control and protection of services and finally,
advisory functions in regard to the general service problems.
The Government of India Act, 1935 accordingly provided in section 264 that, there
shall be a Public Service Commission for the Federation and a Public Service
Commission for each Province. After India attained her Independence in 1947 and
proceeded to frame a constitution according to her own ideals, the Constituent
Assembly, entrusted with this responsibility, did not fail to appreciate the need of a
Public Service Commission both for Union and for the Units for purposes of
recruitment to the Civil Services as well as for the protection of the interests of the
civil servants.
Accordingly, in Chapter I and II of Part XIV Articles 308 to 323 of the Constitution of
India, provides provisions relating to services under the Union and States and Public
Service Commission. Article 315 (1) of the Constitution of India says that there shall
6

be a Public Service Commission for each state. Two or more State may agree that
there shall be one Public Service Commission for that group of States. In that case
Parliament may be requested by the Governor to serve the needs of the state.

ORIGIN AND SCOPE OF DOCTRINE OF PLEASURE IN INDIA

Article 156 (1) states that the Governor shall hold office during the pleasure of the
President. What does pleasure of the President mean? There are various connotations
and contexts attached to this term. Before understanding the meaning of Doctrine of
Pleasure in Indian Context, let us first understand the genesis of this term.
The origin of the Doctrine of Pleasure can be traced to a Latin Maxim durante bene
placito which means during good pleasure or during the pleasure of the appointer
as opposed to an office held dum bene se gesserit which means during good
conduct, also called quadiu se bene gesserit (as long as he shall behave himself
well). 1
Blacks Dictionary defines Pleasure Appointment as the assignment of someone to
employment that can be taken away at any time, with no requirement for notice or
hearing. We have borrowed this concept from the English Law. In Dunn v. Queen 2, the
Court of Appeal referred to the old common law rule that a public servant under the
British Crown had no tenure but held that his position is at the absolute discretion of
the Crown.
However, the Indian situation is quite different. Let us discuss how this doctrine has
taken shape in India.

Union of India v. Tulsiram Patel, (1985) 3 SCC 398.

Dunn v. Queen, 1896 (1) QB 116.

APPLICATION OF DOCTRINE OF PLEASURE IN INDIA

There are three kinds of Offices held during the Pleasure of the President that are
referred to in our Constitution.
1. Offices held during the pleasure of the President without any restrictions
Article 75(2) relating to ministers, Article 76 (4) relating to Attorney General
and Article 156(1) relating to Governors. There are no restrictions whatsoever.
The Governors and Ministers can be dismissed summarily by the President.
2. Offices held during the pleasure of the President with restrictions The
pleasure of the President is clearly controlled by the provisions of Art. 311,
and so, the field that is covered by Art. 311 on a fair and reasonable
construction of the relevant words used in that article would be excluded from
the operation of the absolute doctrine of pleasure. The pleasure of the
President would still be there, but it has to be exercised in accordance with the
requirements of Art. 311 3 This includes Members of defence service,
Members of civil service of the Union, Member of an All-India service,
holders of posts connected with defence or any civil post under the Union,
Member of a civil service of a State and holders of civil posts under the State.
3. Appointments to which the said doctrine is not applicable This includes
constitutional functionaries such as the Supreme Court Judges, the High Court
Judges, the Election Commissioners, the Comptroller and Auditor General etc.
that cannot be removed except by way of Impeachment.
The Supreme Court today held that "Doctrine of Pleasure" under which certain
authorities hold office till he or she enjoys the confidence of the President or the
Governor is not absolute and unrestricted and cannot be at the authority's sweet will,
whim and fancy. "It is of some relevance to note that the Doctrine of Pleasure in its
absolute unrestricted application does not exist in India. The said doctrine is severely
curtailed in the case of government employment," a five judge Constitution Bench
headed
3

by

Chief

Justice

Balakrishnan

said.

Moti Ram v. N.E. Frontier Railway, AIR 1964 SC 600

The Court passed the order while curtailing the power of the Central government in
removing Governors in the middle of five-year tenure without any valid reason.
The Bench held that the court can interfere if such actions have been taken arbitrarily
and

the

government

have

to

explain

before

it.

"... At pleasure doctrine enables the removal of a person holding office at the
pleasure of an Authority, summarily, without any obligation to give any notice or
hearing to the person removed, and without any obligation to assign any reasons or
disclose any cause for the removal, or withdrawal of pleasure. The withdrawal of
pleasure cannot be at the sweet will, whim and fancy of the Authority, but can only be
for

valid

reasons,"

the

said. 4

court

"The doctrine of pleasure as originally envisaged in England was a prerogative power

which was unfettered. It meant that the holder of an office under pleasure could be
removed at any time, without notice, without assigning cause, and without there being
a need for any cause. But where rule of law prevails, there is nothing like unfettered
discretion

or

unaccountable

action,"

the

court

said.

"When the Constitution of India provides that some offices will be held during the
pleasure of the President, without any express limitations or restrictions, it should
however

necessarily

be

read

as

being

subject

to

the

fundamentals

of

constitutionalism," the court said.

DOCTRINE OF PLEASURE
The doctrine of Pleasure is a common law rule. This doctrine has its origin in
England. The Doctrine of Pleasure is a special prerogative of the British Crown. 5In
England, a servant of the Crown holds office during the pleasure of the Crown and he
4

http://www.outlookindia.com/news/article/Doctrine-of-Pleasure-is-Not-Absolute-in-India-SC/681335
Saharay, Madhusudan, Adoption of Foreign Doctrines by the Supreme Court , p.308 (Eastern Law

House, ed., 2011)

10

can be dismissed from the service of Crown at pleasure. The tenure of office of a civil
servant can be terminated at any time without assigning any cause. Even if there
exists any special contract between the Crown and the civil servant concerned, the
Crown is not bound by it. The civil servant is liable to be dismissed without notice
and they cannot claim damages for wrongful dismissal or immature termination of
service. 6The Crown is not bound by the any special contract between it and a civil
servant, for theory is that the Crown could not fetter its future executive action by
entering into a contract in matters concerning the welfare of the country. The
justification for the rule is that the crown should not be bound to continue in public
service any person whose conduct is not satisfactory. 7 This common law Doctrine
hence in England is based on Public Policy. The public policy is that a public servant
whose continuance in office is not or is against the public interest must be relieved of
it.8 Its operation, however, can be modified by an act of Parliament.
Though doctrine of pleasure is accepted in India as it has developed in England, it has
not been completely accepted in India. This Doctrine of Pleasure is embodied in India
in Article 310(1).It reads as follows: Tenure of office of persons serving the Union or
a State:9
(1) Except as expressly provided by this Constitution, every person who is a member
of a defence service or of a civil service of the Union or of an all India service or
holds any post connected with defence or any civil post under the Union, holds office
during the pleasure of the President, and every person who is a member of a civil
service of a State or holds any civil post under a State holds office during the
pleasure of the Governor of the State.

http://www.shareyouressays.com/115275/short-speech-on-the-doctrine-of-pleasure. 31 Aug 2013

M.P Jain, Indian Constitutional Law, p. 2052 (Nagpur: LexisNexis Butterworths Wadhwa, 6th ed.,

2010).
8

Shukla, V. N., Constitution of India, p.870 (Delhi: Eastern Book Company, 11th ed., 2011)

Art. 310, Constitution of India

11

This is the general rule which operates except as expressly provided by

the Constitution. This means that the Doctrine is subject to constitutional limitations.
Therefore, when there is a specific provision in the Constitution giving to servant
tenure different from that provided in Article 310, then that servant would be
excluded from the operation of the pleasure doctrine. The following are expressly
excluded by the Constitution from the rule of Pleasure. They are:
1.

Supreme Court Judges Article 124,

2.

Auditor General (Article 148)

3.

High Court Judges (Article 217, 218)

4.

A member of Public Service Commission (Article 317)

5.

The Chief Election Commissioner.

Though doctrine of pleasure is accepted in India as it has developed in England, it has

not been completely accepted in India. It is subject to the provisions of Article 311
which provides for procedural safeguards for civil servants.
It was decided in the case of Shyam v Union of India 10, Pleasure under Article 310 is
not required to be exercised by the President or the Governor personally. It may be
exercised by the President or the Governor acting on the advice of the Council of
Ministers. In another case of Union of India v Tulsiram 11, it was decided that
pleasure of the President or the Governor under Article 310 is not subject to any
contract and cannot be fettered by contract, ordinary legislation or the rules made
under Article 309.

ARTICLE 311 OF THE CONSTITUTION

OF INDIA STATES THAT:

(1) No person who is a member of a civil service of the Union or an all-India

service or a civil service of a State or holds a civil post under the Union or a
10

11

Shyam v Union of India, AIR 1987 SC 1137

Union of India v Tulsiram, AIR 1985 SC 1416

12

State shall be dismissed or removed by an authority subordinate to that by

which he was appointed.
(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 is satisfied that for some reason, to be recorded by that authority
in writing, it is not reasonably practicable to hold such inquiry; or
c) where the President or the Governor, as the case may be, is satisfied that in
the interest of the security of the State it is not expedient to hold such inquiry.
(3) If, in respect of any such person as aforesaid, a question arises whether it is
reasonably practicable to hold such inquiry as is referred to in clause (2), the
decision thereon of the authority empowered to dismiss or remove such
person or to reduce him in rank shall be final."12
Therefore, services of any civil servants cannot be terminated at pleasure unless the
mandatory provisions of Article 311 have been observed. This doctrine of pleasure is
further restricted by the general law of the land which empowers any civil servant to
file suit in a court of law for enforcing any condition of his service and for claiming
arrears of pay. The power to dismiss at pleasure any civil servant is not a personal
right of the President or the Governor, as the case may be. It is an executive power
12

Art. 311, Constitution of India

13

which is to be exercised at the advice of Council of Ministers. Doctrine of Pleasure as

contained in Article 310, being a constitutional provision cannot be abrogated by any
legislative or executive law; therefore Article 309 is to be read subject to Article
310.13

DOCTRINE OF PLEASURE IN RELATION TO THE GOVERNOR

It is the first scenario (pleasure of the President without any restrictions) that we are
concerned with in the present post. We see that there is no such thing as absolute and
unfettered discretion in India. There is a distinction between the doctrine of pleasure
as it existed in a medieval set-up and the doctrine of pleasure in a democracy
governed by Rule of Law. Where Rule of Law prevails, there is nothing
like unrestricted discretion or unaccountable action. The degree of need for
reason may vary. The degree of scrutiny during judicial review may vary. But the
need for reason exists.
Thus where there are no express limitations or restrictions existing, it should be read
as being subject to the fundamentals of constitutionalism.
In the case of B.P. Singhal v. Union of India & Another 14, the court has categorically
stated that the Doctrine of Pleasure in its absolute unrestricted application does not
13

14

I P Massey, Administrative Law 581 (8th ed., 2012)

B.P. Singhal v. Union of India & Another, 2010 4 AWC(Supp)3617SC

14

exist in India. The court further said that: The said doctrine is severely curtailed in
the case of government employment, as will be evident from clause (2) of Article 310
and clauses (1) and (2) of Article 31115. Even in regard to cases falling within the
proviso to clause (2) of Article 311, the application of the doctrine is not unrestricted,
but moderately restricted in the sense that the circumstances mentioned therein
should exist for its operation.
Even the Canadian Supreme Court in Wells v. Newfound land 16 has concluded that at
pleasure doctrine is no longer justifiable in the context of modern employment
relationship.
B.P. Singhals Case also held that the doctrine of pleasure is not a licence to act with
unfettered discretion to act arbitrarily, whimsically, or capriciously. It does not
dispense with the need for a cause for withdrawal of the pleasure. In other words, at
pleasure doctrine enables the removal of a person holding office at the pleasure of an
authority, summarily, without any obligation to give any notice or hearing to the
person removed, and without any obligation to assign any reasons or disclose any
cause for the removal, or withdrawal of pleasure. However, the withdrawal of
pleasure cannot be at the sweet will, whim and fancy of the authority, but can only be
for valid reasons.
Thus, we see that Doctrine of Pleasure refers to the discretion vested in the President
to remove various constitutional functionaries. Article 156 merely mentions that the
Governor shall hold office during the pleasure of the President. It does not prescribe
any conditions for exercising this pleasure. However, this does not mean that the
discretion is absolute, unrestricted and unfettered. The President can remove a
Governor summarily but valid explanation for such removal must exist.
15

Article 311 (2) Dismissal, removal or reduction in rank of persons employed in civil capacities

under the Union or a State:

(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.
16

Wells v. Newfound land, 1999 (177) DL (4th) 73(SCC)

15

B.P. Singhals Case was a Constitutional Bench Judgment and is considered to be a

landmark case on the Doctrine of Pleasure.
The doctrine of pleasure also came for consideration in the recent case of Union of
India and Ors Vs Major S.P. Sharma and Ors reported in (2014) 6 SCC 351. The
said matter for consideration of doctrine of pleasure was with regard to armed forces.
Some officers of the Armed Forces were removed for espionage and another security
reasons. The Court held that the Army Act, 1950 Section 18 was also relevant and
such provision does not curtail power under Article 310 of the Constitution of India.
Such person of armed forces could be removed without issuance of notice and asking
of show cause and holding any enquiry. The government was not obliged to assign
any reason for removal of such person but the material and information was still open
for judicial review where the challenge against action being mala fide, unreasonable,
illegal and without any bases. Once the primary onus was discharged by the aggrieved
party then the government was obliged to show the material to the Court who can take
appropriate action in the matter. Thus the pleasure doctrine has progressed and can be
seemed in the light of incorporation of such article of Constitution of India.
Parliamentary debates on the incorporation of said provision, Sarkariya Commission
report and the report submitted by National Commission were also considered by
Honble Supreme Court in its judgment of B.P. Singhal Vs Union of India reported in
(2010) 6 SCC 331. Thus the position which emerges is that when the Governor is
removed from office. The Courts have limited jurisdiction to adjudicate the matter.
Such provisions can only be tested by principals of constitutionality and in a
democracy by rule of law and the material and information which made the basis of
action of President of India.

PUBLIC SERVICE COMMISSION

The Constitution of India, unlike the constitution of many other countries, has
provided for public service commission at the Centre as well as in the States. In most
Countries of the world such agencies are created by the legislature; they have no
constitutional existence. Considered from this point of view, the commissions are only

16

advisory bodies, and the governments may disregard their advice with impunity.
Experience, however, reveals that the governments both at centre and in the states
have been implementing the recommendations of the Commissions with all sincerity.
In a democratic state, like India, it is desirable that the government should be guided
in respect of appointment and control of its officials by an impartial body of experts
like the public service commission. It has been observed from the discussion in
parliament and in state legislature over the years on the reports of the Commissions
that only in a very few cases the government failed to accept the recommendations of
the Commissions, and even for such few cases the government concerned has been
bitterly criticised.

RECRUITMENT AND CONDITIONS OF SERVICE

Under the provisions of Article 309, Parliament is empowered to regulate the
recruitment and conditions of service of persons appointed to public service and posts
in connection with the affairs of the Union. Similarly, State Legislatures are
empowered to regulate recruitment and conditions of service of persons appointed to
public service or posts in connection with the affairs of the states. But according to
the opinion of the Supreme Court, In the case of Rajinder Singh v State of Punjab 17,
the executive instructions cannot amend the rules, where appointment or promotion is
made without requisite qualifications prescribed by Rules only, relying upon
notification the appointment or promotion shall be illegal.
Article 311 expressly imposes restrictions upon the pleasure of the President or the
Governor, as the case may be, and provisions of clause (1) and (2) of it come within
the ambit of the words Except as otherwise provided by this constitution which
qualify Article 310(1). However, opening words of Article 309 make it expressly
subject to other provisions of the Constitution and therefore it cannot operate as an
exception to pleasure doctrine. Rules made under the proviso to article 309 or Acts
referable to it would be subject to both Articles 310 and 311 decided in Union of

17

Rajinder Singh v State of Punjab, AIR 2001 S.C 1769

17

India v Tulsiram Patel 18. Where however, no law is made by Parliament or State
Legislature for such regulation, President can make rules in connection with the
Union Public Services and posts and Governor in connection with State Public
Services and posts. The President and Governors have also been given power to
delegate their rule making power to any other person.
The law made by Parliament or legislature of a state under this article is subject to
restrictions in other provisions of the constitution, for example, fundamental rights or
restrictions in Article 311 and the rules made by the President and Governors have
been expressly made subject to Act of Parliament and State legislatures respectively.
Thus, if there is no law made by Parliament and rules are made by the President or
person authorised by him and later on Parliament passes an Act and the provisions of
which are inconsistent with such rules, the rules will cease to be effective.
In A. B. Krishna v State of Karnataka ,19, it has been held that the Governor cannot
exercise power under article 309 if the legislature has already made a law and
occupied the field. In this case Mysore Fire Force (Cadre Recruitment) Rules, 1971,
which were made under Mysore Fire Force Act, 1964 provided for examination to be
held for promotion, but Karnataka Civil Service (General Recruitment) Rules, 1971,
which were made under Article 309, were amended after policy decision in 1982 that
promotions to the post of Heads of the Departments and Additional Heads of
Departments should be made by selection but promotions to other posts should be
made on the basis of seniority-cum-merit, not by selection.
In 1986, appellants were promoted on the basis of seniority to the post of leading
firemen. The promotions were challenged on the ground that they should have been
made in accordance with the provisions of rules under Mysore Fire Force Act, not
under Karnataka Civil Service (General Recruitment) Rules. The contention was
upheld by Karnataka Administrative Tribunal. From the decision of the Tribunal,
appeals were made to the Supreme Court. The Supreme Court dismissed the appeals.
18

Union of India v Tulsiram Patel, AIR1985 S.C. 1416

19

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

18

RESTRICTIONS ON THE DOCTRINE OF PLEASURE:

Under Indian Constitution several restrictions has been placed on Doctrine of
Pleasure. They are as follows:
(i)

The service contract entered between the civil servant and

government may be enforced.

(ii)

The fundamental rights guaranteed under the Constitution are

restrictions on the pleasure doctrine and therefore this doctrine
cannot be resorted too freely and unfairly, Articles 14, 15 and 16 of
the Constitution imposed limitations on free exercise of Pleasure
Doctrine. Article 14 embodies the principle of reasonableness the
principle of reasonableness is anti-thesis of arbitrariness. In this
way, Article 14 prohibits arbitrary exercise of power under pleasure
doctrine. In addition to article 14 of the constitution Article 15 also
restricts arbitrary exercise of power in matters of services. Article 15
prohibits termination of service on grounds of religion, race, caste,
sex or place of birth or any of them. Another limitation is
under Article 16(1) which obligates equal treatment and bars
arbitrary discrimination.

(iii)

Further the doctrine of pleasure is subject to many more limitations

and a number of posts have been kept outside the scope of pleasure
doctrine. Under the constitution the tenure of the Judges of the High
Courts and Supreme court, of the comptroller and Auditor-General of
India, of the Chief Election Commissioner and the Chairman and
Members of Public service commission is not at the pleasure of the
Government. 20

20

Dr. J. J. R. Upadhyaya, Administrative Law, 476 (Kanpur: Central Law Agency Publications, 8th

ed., 2012)

19

Thus, the general principle relating to civil services has been laid down
under Article 310 of the Constitution to the effect that government servants hold
office during the pleasure of the government and Article 311 imposes restrictions
on the privilege of dismissal at the pleasure in the form of safeguards.
PERSONS ENTITLED TO SAFEGUARD:
Constitutional safeguards provided under Article 311 are not available to all the
government servants. The text of the Article refers to members of civil services of
the Union or all- India service of a State or hold a civil post under the Union or a
State.
The constitution bench of the Supreme Court in S.L. Agarwal (Dr.) v. General
Manager21, Hindustan Steel Limited, generally considered as to who are the
persons entitled to the protection of Article 311. The Court identified the
following persons:
1. Persons who are members of:
a) A civil service of the union; or
b) An All India Service; or
c) A civil service of a State; or
2. Hold a civil post under the Union or State.
Difficulties have always arisen in relation to the meaning and scope of Civil
Post. Though this expression has been interpreted in many ways there is no
debate that Article 311(1) deals with persons employed in the civil side of
administration in contradistinction to defence. Supreme Court in State of Assam

21

S.L. Agarwal (Dr.) v. General Manager, 1970 AIR SC 1150 ; Samaraditya Pal, Law Relating To

Public Service, p.823(LexisNexis Butterworths Wadhwa Nagpur, 3rd ed., 2011)

20

v. Kanak Chandra Dutta 22 laid down that civil post in Clause (1) means a post
not connected with the defence services and outside the regular civil services. 23
Further, in Parshottam Lal Dhingra v. Union of India 24, the Supreme Court of
India has held that under Article 311 the safeguards are applicable to both
permanent and temporary servants.

CONSTITUTIONAL SAFEGUARDS AVAILABLE TO THE CIVIL SERVANTS:

There are two constitutional safeguards provided under Article 311 of the
Indian Constitution. They are as follows:
1. Clause (1) of Article 311 addresses itself to the authority who can impose
any of the punishments of dismissal or removal. According to this, no order
of dismissal or removal can be made by an authority subordinate to the
appointing authority. But if the removing authority is of the same or coordinate rank or grade as the appointing authority then, dismissal or
removal by such authority is valid. 25
2. Clause (2) of Article 311 provides the procedural essentials to be followed
before dismissing, removing or reducing in rank. Article 311(2) mandates
the compliance of the Principles of Natural Justice. A civil servant cannot
be punished without: (a) holding an enquiry; and (b) informing the civil
servant about the charges against him; and (c) giving him a reasonable
opportunity of being heard in respect of those charges.
The enquiry contemplated by Article 311(2) is generally known as departmental
enquiry and the Constitutional requirements for a proper enquiry within the meaning
of Article 311(2) are two-fold:
22

State of Assam v. Kanak Chandra Dutta, 1967 AIR SC 884

23

Samaraditya Pal, supra note 11 at 830

24

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

25

Mahesh v. Uttar Pradesh, AIR 1955 SC 70

21

a) The civil servant must be informed of the charges against him; and
The civil servant against whom a accusation of misconduct is made must be
Formally informed i.e., to say those acts or omissions of the public servant
which are termed as Misconduct under the Service Rules usually referred to as
Conduct rules. But, acts or conduct not covered by such may still amount to
misconduct. It is fundamental and essence of the concepts of fair play and
justice that a person should know why he is being charged. 26
b) He must be afforded a reasonable opportunity of being heard in respect of
those charges.27
Neither

the

General

clauses

Act

nor

the Constitution defines

reasonable

opportunity. Reasonable opportunity here too refers to the rules according to

Principles of Natural Justice. Broadly, it implies an opportunity to deny the guilt
alleged in order to establish innocence, to defend by examining himself and his
witnesses.28
EXCEPTIONS TO THE SAFEGUARDS PROVIDED UNDER ARTICLE 311:
The provision to Article 311 (2) provides for certain circumstances in which the
procedure envisaged in the substantive part of the clause need not be followed. These
are as follows:
a) Where a person is dismissed or removed or reduced in rank on the ground of
conduct which has led to his connection on criminal charge; or
b) Where the authority empowered to dismiss or remove a person or to reduce
him in rank is satisfied that for some reason to be recorded by that authority in
writing, it is not reasonably practicable to hold such inquiry; or

26

Surath Chandra Chakraborty v. State of West Bengal, (1970) 3 SCC 548

27

Samaraditya Pal, supra note 11 at 830

28

Krishna lal vij pg: 830

22

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. 29
These provisions have been explained below in detail:(a)

CONVICTION ON CRIMINAL CHARGE:

The Supreme Court has emphasised under Art. 311(2)(a), the disciplinary authority is
to regard the conviction of the concerned civil servant as sufficient proof of
misconduct on his part. The authority is to decide whether conviction demands the
imposition of any penalty and, if so, what penalty. For this purpose, the authority has
to take into consideration the judgement of the criminal court, the entire conduct of
the civil servant, the gravity of the offense, the impact of the offence on the
administration, whether the offence was of a technical or trivial nature, and
extenuating circumstances if any. This is the Disciplinary authority has to do ex-parte
and without giving a hearing to the concerned civil servant. 30
The power has to be exercised by the authority fairly, justly and reasonably.
Hearing need not be given while imposing the penalty after conviction on a criminal
charge, but the right to impose a penalty the duty to act justly. 31For instance, a
government servant convicted for parking in the no-parking area cannot be dismissed.
(b) IMPRACTICABILITY :
It is important to know that this clause applies only when the conduct of government
servant is such as he deserves the punishment of dismissal, removal or reduction in
rank. Before denying government servant his constitutional right to an inquiry, the
paramount consideration is whether the conduct of the government is such as justifies
the penalty of dismissal, removal or reduction in rank.

29

Article 311, Constitution of India

30

Jain supra note 8 at 2092

31

Shankar Das v. Union of India, AIR 1985 SC 772

23

In Tulsi ram Patel case 32, the Supreme court explaining the scope of the clause has
said whether it was practicable to hold the inquiry or not must be judged in the
context of whether it was reasonably practicable to do so. It is not a total or absolute
impracticability which is required by cl. (b). What is requisite is that holding of the
inquiry is not practicable in the opinion of a reasonable man taking a reasonable
view of the prevailing situation. The Supreme Court further held that the reasonable
practicability of holding an inquiry is a matter of assessment to be made by the
disciplinary as he is the best judge of the situation. 33
(c) REASONS OF SECURITY:
Under (c) the satisfaction has to be that of the President or the Governor as the case
may be. The satisfaction must be with respect to the expediency or inexpediency of
holding an inquiry in the interest of the security of the State. Security of State being
of paramount importance all other interests are subordinate to it, Security of State
may comprise a situation of disobedience and insubordination on the part of members
of the police force. In Tulsi ram Patel case 34 the Supreme Court has clarified that the
question is not whether the security of the State has been affected or not, for the
expression cl(c) is in the interest of the security of State. The interest of security of
State may be affected by actual act, or even the likelihood of such acts taking place.
So the Court has observed What is required under cl.(c) is not the satisfaction of the
President or the Governor, that interest of the security of the State is or will be
affected but his satisfaction in the interest of security of State, it is not expedient to
hold an inquiry as contemplated by Article 311(2).
The government is under obligation to disclose to the court the nature of the activities
of the employee on the basis of which the satisfaction of the President or the
Governor was arrived at for the purpose of passing an order under Article 311(2)(c).
In the absence of any indication about the activities, it would not be possible for the
32

Union of India v. Tulsi ram Patel, AIR 1985 SC 1416

33

Kuldip Singh v. State of Punjab, AIR 1987 SC 79

34

Supra note 31.

24

Court to determine whether the satisfaction was arrived at on the basis of relevant
considerations. The government is under obligation to place relevant material on the
basis of which the satisfaction was arrived at subject to a claim of privilege under
Sections 123 and 124 of the Evidence Act, 1872.

IS SUSPENSION OR COMPULSORY RETIREMENT A FORM OF PUNISHMENT?

Neither suspension nor compulsory retirement amounts to punishment and hence they
can't be brought under the purview of Article311 and has no protection is available.
Supreme court in case of such Bansh Singh Vs State of Punjab 35 clearly held that
suspension from service is neither dismissal nor removal nor reduction in rank,
therefore, if a Government servant is suspended he cannot claim the constitutional
guarantee of Article 311[2].
In Shyam Lal Vs State of U.P 36Supreme Court held that compulsory retirement differ
from dismissal and removal as it involves no penal consequences and also a
government servant who is compulsory retired does not loose any part of benefit
earned during the service so it doesn't attract the provisions of Article 311.

ARE ARTICLES 310 AND 311 CONTRARY TO ARTICLE 20(2) OF

THE INDIAN

CONSTITUTION OR TO THE PRINCIPLE OF NATURAL JUSTICE ?

When a government servant is punished for the same misconduct under the army act
and also under central civil services (classification and control and appeal) rules 1965
then the question arises that can it be brought under the ambit of double jeopardy. The
answer was given by Supreme court in the case of Union of India Vs Sunil Kumar
Sarkar37,held that the court martial proceeding is different from that of central rules ,
the former deals with the personal aspect of misconduct and latter deals with
disciplinary aspect of misconduct.
35

Bansh singh Vs State of Punjab, 1962 AIR SC 1711

36

Shyam Lal Vs State of U.P, AIR1954 SC 369

37

Union of India Vs Sunil Kumar Sarkar, AIR 2001 SC 1092.

25

Ordinarily, natural justice does not postulate a right to be represented or assisted by a

lawyer, in departmental Inquiries but in extreme or particular situation the rules of
natural justice or fairness may require that the person should be given professional
help.

JUDICIAL PERSPECTIVE ON DOCTRINE OF PLEASURE IN INDIA

The Judicial perspective on Doctrine of Pleasure can be discussed in the following
cases: As we all know that rule emanating from the pleasure doctrine is that no servant of
the Crown can maintain an action against the Crown for any arrears of salary. The
assumption underlying this rule is that the only claim of the civil servant is on the
bounty of the Crown and not for a contractual debt.
The Supreme Court of India in State of Bihar v. Abdul Majid 38 refused to follow
this rule of the Doctrine of pleasure. In this case sub-inspector of police was
dismissed from service on the ground of cowardice, was later reinstated in service.
But the government contested his claim for arrears of salary for the period of his
dismissal. The Supreme Court in this case upheld his claim arrears of salary on the
ground of contract or quantum merit i.e., for the value of the service rendered.
Similarly the Supreme Court the reiterated the above ruling in Om Prakash v. State
of Uttar Pradesh 39,where it was held that when dismissal of a civil servant was found
to be unlawful, he was entitled to get his salary from the date of dismissal to the date
when his dismissal was declared unlawful.
Further in State of Maharashtra v. Joshi 40, it was held that a claim of arrears of
salary was held to be based on contract.

38

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

39

Om Prakash v. State of Uttar Pradesh, AIR 1955 SC 600

40

State of Maharashtra v. Joshi, AIR 1969 SC 1302

26

Further the judiciary has also acted as checks and balances on the arbitrary exercise of
the power of conferred by the doctrine on the president and the Governor. The
Supreme Court in Jaswant Singh v. State of Punjab 41 held that in spite of finality of
Article 311(3) the finality can certainly be tested in the court of law and interfered
with if the action is found to be arbitrary or malafide or motivated by extraneous
considerations or merely a ruse to dispense with the inquiry.
In Union of India v. Balbir Singh 42, the Supreme Court held that the Court can
examine the circumstances on which the satisfaction of the president or Governor. If
the Court finds that the circumstances have no bearing whatsoever on the security of
State, the Court can hold that satisfaction of the president or the Governor which is
required for passing such an order has been vitiated by wholly extraneous or
irrelevant considerations.

CONCLUSION
Thus it can be said that the Constitution makers then at that time had known about the
discrepancies like corruption to creep into the civil services, so in order not to grant
immunity from summary dismissal to dishonest or corrupt government servants so
that they continue in service for months together at the public expense and to Public
detriment. Also at the same time the judiciary with its limited judicial review and
departmental appeal has ensured that the power to dismiss has not been misused by
the authority.
With the lot many cases coming into light in relation to corruption among the
government officials and the linking of various government officials with anti-social
41

Jaswant Singh v. State of Punjab, AIR 1991 SC 385

42

Union of India v. Balbir Singh, AIR 1998 SC 2043

27

elements the Article 310 and 311 of the Indian Constitution envisaged in the Part XIV
act as a check and does not allow the government officials to make mockery of Law.
Doctrine of Pleasure applies not only upon the conduct of a person in the course of his
official duty, but can also be applied in case of his illegal or morally wrong behavior
in his private life. Article 310(1) says about the Doctrine of Pleasure and the provision
is such that the civil servants and the defense personnel would hold the office upon
the pleasure of the President/Governor respectively at the Union and the State levels.
But, sometimes there is wrong judicial procedure which is being initiated and due to
this the affected party fails to receive the arrears of his salary. The honble Supreme
Court in the case of State of Bihar v. Abdul Majid 43 had granted aggrieved party the
arrears of his salary on the basis of quantum meruit i.e. for the value of the services
rendered, as he was later reinstated in the service. In the Constitution itself, there is a
provision in the Article 310 (2) which states that if a person is appointed in the job on
the basis of any special qualification then if the President/Governor thinks fit can
secure his services by granting him termination only after the expiration of the term
and there is no role for the premature retirement.

43

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

28