Pleasure Doctrine.

2. Article 310 of the Constitution contains what is known as the Pleasure Doctrine. It provides that the term of appointment of the union Government Servants shall depend upon the pleasure of the President. In fact the provision applies to all members of defence services, members of Civil Services, members of All India Services, holders of Civil Posts and holders of defence posts. The same Article also provides that the pleasure of the President can be over ridden only by the express provisions of the Constitution and nothing else. Thus, in case there is any express provision relating to the tenure of appointment of a Government Servant, the same will prevail; otherwise, the tenure of appointment will depend upon the pleasure of the President.

3. Restriction on the Pleasure Doctrine is provided in a number of provisions of the Constitution in respect of high level functionaries. Some of the examples are Article124 [Tenure of Supreme Court judges], Article 148(2) [Tenure of High Court judges] Article 324 [The Chief Election Commissioner, Article 317 [Chairman and members of public service commission] who are holders of civil posts. 4. In respect of the multitude of ordinary Government Servants, a restriction on the Pleasure of the President is contained in the immediately following Article viz. Article 311. The first thing to be noted about Article 311 is that it does not apply to the defence personnel. The Supreme Court has clarified that even the civilians working in connection with the defence are not covered by the provisions of Article 311. It is also significant that even the rules framed under proviso to Article 309 cannot provide the protection under Article 311, to those employees who are not entitled to the protection under the said Article. In this connection, the following observations by the Hon’ble Supreme Court in Union of India and another Vs. K.S. Subramanian [JT1988(4)SC681, 1989 Supp(1)SCC331] is relevant 11. It was, however, argued for the respondent that 1965 Rules are applicable to the respondent, first, on the ground that Rule 3(1) thereof itself provides that it would be applicable, and second, that the Rules were framed by the President to control his own pleasure doctrine, and therefore, cannot be excluded. This contention, in our opinion, is basically faulty. The 1965 Rules 10 among others, provide procedure for imposing the three major penalties that are set out under Article 311(2). When Article 311(2) itself stands excluded and the protection thereunder is withdrawn there is little that one could do under the 1965 Rules in favour of the respondent. The said Rules cannot independently play any part since the rule making power under Article 309 is subject to Article 311. This would be the legal and logical conclusion 5. The ruling in the above extract should not be misconstrued to mean that any penalty imposed on a defence civilian by following the procedure prescribed in CCA Rules is liable to be set aside for the simple reason that the above rules do not apply to defence Civilians. Unless a different rule is applicable for a defence civilian and unless the aggrieved person establishes that application of CCA Rules has caused prejudice to him, the application of the CCA Rules cannot be a ground for invalidating the penalty imposed. Hon’ble Supreme Court in the case of Director General of Ordnance Services and others Vs. P.N. Malhotra 1995 AIR 1109, 1995 SCC Supl. (3) 226 reversed the decision of the Hon’ble Tribunal and held that - “10. The learned counsel for the appellants submits that the respondent cannot be said to have suffered any prejudice by following the procedure prescribed by 1965 Rules. He submits that the said Rules are nothing but a codification of the principles of natural justice. Indeed, it is submitted, they are more specific, more elaborate and more beneficial to the employee than the broad principles of natural justice. If we assume for the sake of argument that the respondent was entitled to insist upon an enquiry before he could be dismissed, we must agree with the submission of the learned counsel for the appellants. ….” 6. Article 311 basically grants two protections to the civilian government servants (other than the defence civilians, of course). The two protections relate to who and how. The first part of the Article provides that no person shall be dismissed or removed from service by an authority subordinate to the one by which he was appointed. Thus, the protection is that, before being sent out of service, a Government servant is entitled to have his case considered by the authority who is equal in rank to the one who appointed him to the service. If the penalty of dismissal or removal from service is imposed by an authority who is lower in rank than the Appointing Authority, the same will be unconstitutional. The following are some of the practical difficulties which may arise in complying with this provision: (a) The employee concerned may be holding a post different from the one in which he was initially recruited and his promotion to the present grade might been made by an authority other than the one who initially recruited him to service. Who is appointing authority in respect of such an employee? . (b) The power for making appointment to a grade keeps on changing. Twenty years ago, the power of making appointment to a grade was exercised by an officer of a certain level. Consequent to the decentralisation of powers, the power for making appointment to the same grade is presently vested in a lower level officer. Is there any restriction on the exercise of the power of dismissal by the lower level officer? 11 (c) A post has been abolished consequent to some re-organisation restructuring of certain departments. The post so abolished was the Appointing Authority in respect of a number of levels. Who can exercise the powers of dismissal in such cases? The answers to these questions are contained in Rule 2(a) of the CCA Rules and other statutory rules which have been framed under the Proviso to Article 309. 7. The second protection granted by Article311 is available in Clause 2 of the Article and it states how a Government Servant can be dismissed, or removed from service or reduced in rank. It provides that no one can be dismissed or removed from service or reduced in rank except after an inquiry. The same article also indicates that the above mentioned inquiry must satisfy the following two conditions: (a) The individual concerned must be informed of the charges. (b) Must be granted a reasonable opportunity of being heard in respect of those charges. 8. The phrase reasonable opportunity has not been defined in the Constitution; but the courts have clarified through a number of decisions that this implies that the accused has a right to: • know the charge, • know the evidence led by the Disciplinary Authority in support of the charge • inspection of documents, • cross examine the witness deposing for the Disciplinary Authority • lead evidence in defence, etc. 9. Another important question relating to the applicability of Article 311 is, whether the article provides protection to permanent employees only or even the temporary employees are entitled for the protection. Although Article 311 does not specifically state as to whether the provisions are applicable to temporary employees also, the Supreme Court has clarified about the applicability of the protection. The law laid down by the Hon’ble Supreme Court in the case of Parshottam Lal Dhingra Vs Union of India [AIR1958 SC 36] more than half a century ago is still applicable. As per the case law on the subject, the protection is available under any one of the under mentioned circumstances: (a) Where there is a right to hold the post (b) Where there is visitation of evil consequences 10. All permanent employees have a right to post and hence are entitled for this protection. As regards the temporary employees, even in their case, a reasonable opportunity of defence will have to be afforded if they are being visited by evil 12 consequences. Thus, if a temporary employee is discharged from service by giving him one month notice, without assigning any reason, the same may be permissible. If the order of discharge mentions any reasons having a bearing on the conduct or the competence of the employees, in such cases an inquiry will be necessary. In short, even probationers will be entitled to the protection of inquiry, if the order of discharge contains a stigma. As pointed out by the Hon’ble Supreme Court in the following passage in the case of Mathew P. Thomas Vs. Kerala State Civil Supply Corpn. Ltd. and Ors. [JT2003(2), (2003)3SCC263], the issue continues to be difficult to determine: