What are the legal and constitutional safeguards to civil servants in India? What are the rationale and objectives of those safeguards? Read this to learn more.
Introduction
The position of a civil servant is a highly coveted one in India. Civil servants or bureaucrats form the backbone of a governmental administration in any nation.
The job of government in modern welfare states is to some extent limited to the framing of laws and policies but it is the civil servants who carry those laws and policies into action.
So the role of civil servants becomes extremely important as they help in executing the policies and programs of the government.
Consequently, there exist various legal and constitutional safeguards to civil servants in India to protect civil servants from arbitrary state actions.
Rationale behind Constitutional Safeguards to Civil Servants in India
The underlying reason for these constitutional safeguards to civil servants in India is to protect the bureaucracy from unnecessary political interference and influence so that these services remain independent from political agendas and can seamlessly carry out the welfare schemes.
Articles 308 to 323 of the Indian Constitution mention these safeguards available to Civil servants.
Civil Servants are also the most visible face of government to the general public. In British India, civil servants were considered the backbone of the colonial government, and their positions were secured in various British enactments such as the successive Government of India Acts.
And after Independence, their role in the implementation of government policies and public welfare has only increased. Their positions have been safeguarded by the Indian constitution and backed by numerous court decisions.
All Service Rules must Confirm to Constitutional Provisions
Article 309 of the Indian constitution provides that recruitment and conditions of service of persons serving the Union or a State shall be subject to the provisions of the constitution.
It empowers the legislature to regulate the recruitment process and conditions of service of persons appointed to public services and posts in connection with the affairs of the Union or of any State.
It has been held in numerous cases that these rules and regulations should not be arbitrary and unreasonable. They must conform to constitutional provisions.
These rules have also been tested on the touchstone of fundamental rights and especially Article 14 which deals with equal treatment. Articles 15 and 16 can also be attracted in certain cases.
Doctrine of Pleasure and Security of Tenure
Article 310 of the Indian constitution provides that civil servants shall hold office during the pleasure of the President or Governor as the case may be.
Further, the power of the President or a Governor to dismiss a civil servant, however, is not their personal right.
Though courts have justified the doctrine of pleasure on public policy grounds such as public interest and the public good, yet it is not absolute and must be exercised with caution keeping in mind the totality of circumstances and is subject to Fundamental Rights especially Articles 14, 15, and 16.
A civil servant may challenge his arbitrary termination in the Supreme Court of India. Article 311 provides that dismissal or removal of a Civil servant of Union or State cannot be made by an authority subordinate to that which made the appointment.
In all cases principles of natural justice (PNJ) have to be followed ie an inquiry should be held and a hearing must be given to the concerned civil servant. PNJ includes the rule against bias, the rule of fair hearing, speaking order, and good faith.
Clause 2 of Article 311 provides that no civil servant shall be dismissed, 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.
In Tejshree Ghagh v Prakash P Patil 2007, the court held that where an employee is transferred to a non-equivalent post resulting in loss of pay he suffers a civil consequence as his status and salary are adversely affected, hence PNJ is attracted.
Similarly, in SBI v KP Narayan Kutty 2003 court held PNJ has to be read into relevant service rules. In this case, the inquiry officer had found certain charges against an officer as partly proved, yet passed an order for his dismissal.
The underlying reason for the security of tenure is to ensure that a civil servant is able to seamlessly perform his tasks without fear of unreasonable dismissal due to political vendetta, etc.
Disclosure of Annual Confidentiality Report (ACR)
In Dev Dutt v Union of India 2008, Supreme Court held that every entry (not merely poor or adverse) relating to an employee under State whether civil, judicial, or other services (except military) must be communicated within a reasonable time. This is to ensure fairness and transparency in public administration.
In the words of the court, “every entry (and not merely a poor or adverse entry) relating to an employee under the State or an instrumentality of the State, whether in civil, judicial, police or other services (except the military) must be communicated to him, within a reasonable period, and it makes no difference whether there is a benchmark or not.
Even if there is no benchmark, non-communication of an entry may adversely affect the employee’s chances of promotion (or getting some other benefit), because when comparative merit is being considered for promotion (or some other benefit) a person having a `good’ or `average’ or `fair’ entry certainly has fewer chances of being selected than a person having a `very good’ or `outstanding’ entry”.
The court held further that “every entry in the A.C.R. of a public servant must be communicated to him within a reasonable period, whether it is a poor, fair, average, good, or very good entry. This is because non-communication of such an entry may adversely affect the employee in two ways:
- Had the entry been communicated to him he would know about the assessment of his work and conduct by his superiors, which would enable him to improve his work in future
- He would have an opportunity of making a representation against the entry if he feels it is unjustified and prays for its up-gradation.
Hence the court held non-communication of an entry to be arbitrary by taking a cue from the Constitution Bench decision of this Court in Maneka Gandhi vs. Union of India (supra) that arbitrariness violates Article 14 of the Constitution”.
Besides these constitutional protections, certain statutes such as the Civil Procedure Code 1908 (CPC) and the Code of Criminal Procedure 1973 (CrPC) also grant protections to civil servants.
Protection from Arrest and Detention in Certain Cases
Section 81 of CPC 1908 provides that no public officer can be arrested and cannot be directed by the court to appear when they do something in the discharge of public function. The underlying reason for this is that public officials cannot remain absent from their duty, otherwise the public interest would suffer.
Also, the property of public officials cannot be attached during the pendency of suit except in an executive decree.
In Coal India Ltd. v A Sons, 2005, Supreme Court stayed an order passed by the High Court requiring the personal appearance of a public servant.
Recently the Supreme Court diluted the stringent provisions SC/ST (Prevention of Atrocities Act, 1989) in an attempt to curb its misuse and to protect honest public servants carrying out genuine duties and observed that in view of the acknowledged abuse of law of arrest in cases under the Act, the arrest of a public servant can only be after approval of the appointing authority and of a non-public servant after approval by the SSP, which may be granted in appropriate cases if considered necessary for reasons recorded.
It held further that such reasons must be scrutinized by the magistrate for permitting further detention.
To avoid the false implication of an innocent, a preliminary inquiry may be conducted by the DSP concerned to find out whether the allegations make out a case under the act and that the allegations are not frivolous or motivated.’
Sanction For Prosecution in Certain Cases
Various general and special statutes like the Criminal Procedure Code 1973 and the Prevention of Corruption Act 2006 (PC Act) provide that a public servant cannot be prosecuted in absence of a previous sanction from the competent authority.
The competent authority in most cases is the authority competent to remove the concerned public servant.
For instance, Section 19 of the Prevention of Corruption Act provides that no court shall take cognizance of an offense punishable under [Sections 7, 11, 13, and 15 of the act] alleged to have been committed by a public servant, except with the previous sanction of the authority competent to remove him from his office.
A provision to this provision also provides that in the case of a request from the person other than a police officer or an officer of an investigation agency or other law enforcement authority, the appropriate Government or competent authority shall not accord sanction to prosecute a public servant without providing an opportunity of being heard to the concerned public servant
So these were some of the legal and constitutional safeguards to civil servants in India.
