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allowances, periodical increments, leave, promotion, tenure or
termination of service, transfer, deputation, various types of rights,
disciplinary action, holidays, hours of work and retirement benefits
like pension, provident fund, gratuity and so on.
Under this provision, the Parliament or the state legislature can
impose ‘reasonable’ restrictions on the Fundamental Rights of
public servants in the interests of integrity, honesty, efficiency,
discipline, impartiality, secrecy, neutrality, anonymity, devotion to
duty and so on. Such restrictions are mentioned in the conduct
rules like Central Services (Conduct) Rules, Railway Services
(Conduct) Rules and so on.
2. Tenure of Office
According to Article 310, members of the defence services, the
civil services of the Centre and the all-India services or persons
holding military posts or civil posts3 under the Centre, hold office
during the pleasure of the president. Similarly, members of the
civil services of a state or persons holding civil posts under a
state, hold office during the pleasure of the governor of the state.
However, there is an exception to this general rule of dismissal
at pleasure. The president or the governor may (in order to secure
the services of a person having special qualifications) provide for
the payment of compensation to him in two cases: (i) if the post is
abolished before the expiration of the contractual period, or (ii) if
he is required to vacate that post for reasons not connected with
misconduct on his part. Notably, such a contract can be made only
with a new entrant, that is, a person who is not already a member
of a defence service, a civil service of the Centre, an all-India
service or a civil service of a state.
3. Safeguards to Civil Servants
Article 311 places two restrictions on the above ‘doctrine of
pleasure’. In other words, it provides two safeguards to civil
servants against any arbitrary dismissal from their posts:
(a) A civil servant cannot be dismissed or removed4 by an
authority subordinate to that by which he was appointed.
(b) A civil servant cannot be dismissed or removed or reduced in
rank5 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.
The above two safeguards are available only to the members of
the civil services of the Centre, the all-India services, the civil
services of a state or to persons holding civil posts under the
Centre or a state and not to the members of defence services or
persons holding military posts.
However, the second safeguard (holding inquiry) is not
available in the following three cases:
(a) Where a civil servant 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 civil
servant or to reduce him in rank is satisfied that for some
reason (to be recorded in writing), it is not reasonably
practicable to hold such inquiry; or
(c) Where the president or the governor is satisfied that in the
interest of the security of the state, it is not expedient to hold
such inquiry.
Originally, the opportunity of being heard was given to a civil
servant at two stages–at the inquiry stage, and at the punishment
stage. But, the 42nd Amendment Act of 1976 abolished the
provision for second opportunity (that is, the right of a civil servant
to make representation against the punishment proposed as a
result of the findings of the inquiry). Hence, the present position is
that where it is proposed (after inquiry) to impose upon a civil
servant the punishment of dismissal, removal or reduction in rank,
it may be imposed on the basis of the evidence adduced at the
inquiry without giving him any opportunity of making
representation on the penalty proposed.
The Supreme Court held that the expression ‘reasonable
opportunity of being heard’ envisaged to a civil servant (in the
second safeguard mentioned above) includes:
(a) an opportunity 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 allegations 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 witnesses in support of his defence; and
(c) the disciplinary authority must supply a copy of the inquiry
officer’s report to the delinquent civil servant for observations
and comments before the disciplinary authority considers the
report.
4. All-India Services
Article 312 makes the following provisions in respect of all-India
services:
(a) The Parliament can create new allIndia services (including
an all-India judicial service), if the Rajya Sabha passes a
resolution declaring that it is necessary or expedient in the
national interest to do so. Such a resolution in the Rajya
Sabha should be supported by two-thirds of the members
present and voting. This power of recommendation is given
to the Rajya Sabha to protect the interests of states in the
(b) Parliament can regulate the recruitment and conditions of
service of persons appointed to all-India services.
Accordingly, the Parliament has enacted the All-India
Services Act, 1951 for the purpose.
(c) The services known at the commencement of the
Constitution (that is, January 26, 1950) as the Indian
Administrative Service and the Indian Police Service are
deemed to be services created by Parliament under this
provision.
(d) The all-India judicial service should not include any post
inferior to that of a district judge6. A law providing for the
creation of this service is not to be deemed as an
amendment of the Constitution for the purposes of Article
368.
Though the 42nd Amendment Act of 1976 made the provision
for the creation of allIndia judicial service, no such law has been
made so far.
5. Other Provisions
Article 312 A (inserted by the 28th Amendment Act of 1972)
confers powers on the Parliament to vary or revoke the conditions
of service of persons who were appointed to a civil service of the
Crown in India before 1950. Article 313 deals with transitional
provisions and says that until otherwise provided, all the laws in
force before 1950 and applicable to any public service would
continue. Article 314 which made provision for protection of
existing officers of certain services was repealed by the 28th
Amendment Act of 1972.
Table 66.1 Articles Related to Public Services at a Glance
Article No. Subject-matter
308. Interpretation
309. Recruitment and conditions of service of persons
serving the Union or a state
310. Tenure of office of persons serving the Union or a
311. Dismissal, removal or reduction in rank of persons
employed in civil capacities under the Union or a
state
312. All-India Services
312A. Power of Parliament to vary or revoke conditions
of service of officers of certain services
313. Transitional provisions
314. Provision for protection of existing officers of
certain services (Repealed)
NOTES AND REFERENCES
1. In 1963, a provision was made for the creation of three
more all-India services. They were Indian Forest
Service, Indian Medical and Health Service and Indian
Service of Engineers. However, out of these three, only
the Indian Forest Service came into existence in 1966.
2. This was done on the recommendation of the Third Pay
Commission (1970–1973) while the earlier change was
done on the recommendation of the First Pay
Commission (1946–1947).
3. A ‘civil post’ means an appointment or office or
employment on the civil side of the administration as
distinguished from the military side.
4. The difference between dismissal and removal is that
the former disqualifies for future employment under the
government while the latter does not disqualify for future
employment under the government.
5. ‘Reduction in rank’ means reduction from a higher to a
lower rank or post. It is a penalty imposed on a civil
servant.
6. The expression ‘district judge’ includes 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
67 Rights and Liabilities of the
Government
A
rticles 294 to 300 in Part XII of the Constitution deal with
the property, contracts, rights, liabilities, obligations and
suits of the Union and the states. In this regard, the
PROPERTY OF THE UNION AND THE STATES
1. Succession
All property and assets that were vested in the Dominion of India
or a province or an Indian princely state, before the
commencement of the present Constitution, became vested in the
Union or the corresponding state.
Similarly, all rights, liabilities and obligations of the government
of the dominion of India or a province or an Indian state would
now be the rights, liabilities and obligations of the Government of
India or the corresponding state.
2. Escheat, Lapse and Bona Vacantia
Any property in India that would have accrued to King of England
or ruler of Indian state (princely) by escheat (death of a person
inte-state without any heir), lapse (termination of rights through
disuse or failure to follow appropriate procedures) or bona
vacantia (property found without any owner) for want of a rightful
owner, would now vest in the state if the property is situated there,
and in the Union, in any other case. In all these three cases, the
property accrues to the government as there is no rightful owner
(claimant).
3. Sea-Wealth
All lands, minerals and other things of value under the waters of
the ocean within the territorial waters of India, the continental shelf
of India and the exclusive economic zone of India vests in the
Union. Hence, a state near the ocean cannot claim jurisdiction
over these things.
India’s territorial waters extend to a distance of 12 nautical
miles from the appropriate base line. Similarly, India’s exclusive
economic zone extends upto 200 nautical miles1 .
4. Compulsory Acquisition by Law
The Parliament as well as the state legislatures are empowered to
make laws for the compulsory acquisition and requisitioning of
private property by the governments. Further, the 44th
Amendment Act (1978) has also abolished the constitutional
obligation to pay compensation in this regard except in two cases:
(a) when the government acquires the property of a minority
educational institution; and (b) when the government acquires the
land held by a person under his personal cultivation and the land
is within the statutory ceiling limits2 .
5. Acquisition under Executive Power
The Union or a state can acquire, hold and dispose property
under the exercise of its executive power.
Further, the executive power of the Union or a state extends to
the carrying on any trade or business within and in other states
also.
SUITS BY OR AGAINST THE GOVERNMENT
Article 300 of the Constitution deals with the suits by or against
the Government in India. It lays down that the Government of
India may sue or be sued by the name of the Union of India and
government of a state may sue or be sued by the name of that
state, eg, State of Andhra Pradesh or State of Uttar Pradesh and
so on. Thus, the Union of India and states are legal entities
(juristic personalities) for purposes of suits and proceedings, not
the Government of the Union or government of states.
Regarding the extent of the governmental liability, the
Constitution (Article 300) declares that the Union of India or states
can sue or be sued in relation to their respective affairs in the like
cases as the dominion of India and the corresponding provinces
or Indian states might have sued or been sued before the
Constitution. This provision is subject to any law made by
Parliament or a state legislature. But, no such law has been
enacted so far. Hence, at present, the position in this respect
remains the same as it existed before the Constitution. In the pre-
Constitution period (i.e., from the days of the East India Company
up to the commencement of the Constitution in 1950), the
government was suable for contracts but not for torts (wrongs
committed by its servants) in respect of its sovereign functions.
This is explained in detail as follows:
1. Liability for Contracts
Under the exercise of its executive power, the Union or a state
can enter into contracts for the acquisition, holding and disposal of
property, or to carry on any trade or business, or for any other
purpose. But, the Constitution lays down three conditions which
must be fulfilled by such contracts:
(a) They must be expressed to be made by the president or
governor, as the case may be;
(b) They must be executed on behalf of the president or
governor, as the case may be; and
These conditions are mandatory and not merely directory in
nature. Failure to comply with them nullifies the contracts and
renders them void and unenforceable in the courts.
Further, the president or the governor is not personally liable in
respect of any contract executed in his name. Similarly, the officer
executing the contract is also not personally liable. This immunity
is purely personal and does not immunize the government from a
contractual liability, making the government suable in contracts.
This means that the contractual liability of the Union government
and the state governments is the same as that of an individual
under the ordinary law of contract, which has been the position in
India since the days of the East India Company.
2. Liability for Torts
In the beginning, the East India Company was only a trading body.
Gradually, it acquired territories in India and became a sovereign
authority. The Company was suable for its functions as a trader
but not as a sovereign. This immunity of the Company in respect
of its sovereign functions was based on the English Common Law
maxim that the ‘King can do no wrong’, which means that the King
was not liable for wrongs of his servants. This traditional immunity
of the State (i.e., Crown) in Britain from any legal liability for any
action has been done away by the Crown Proceedings Act (1947).
However, the position in India still remains the same.
Therefore, the government (Union or states) in India can be
sued for torts (civil wrongs) committed by its officials only in the
exercise of its non-sovereign functions but not in the sovereign
functions like administering justice, constructing a military road,
commandeering goods during war, etc. This distinction between
the sovereign and nonsovereign functions of the Government in
India and the immunity of the government in respect of its
sovereign functions was established in the famous P and O
Steam Navigation Company case3 (1861). This was reaffirmed by
the Supreme Court in the post-independence era in the Kasturilal
government and awarded compensation to victims in a large
number of cases.
In Nagendra Rao Case4a (1994), the Supreme Court criticised
the doctrine of sovereign immunity of the State and adopted a
liberal approach with respect to the tortuous liability of the State. It
ruled that when a citizen suffers any damage due to the negligent
act of the servants of the State, the State would be liable to pay
compensation for it and the State cannot avoid this liability on the
ground of sovereign immunity. It held that in the modern sense,
the distinction between sovereign and non-sovereign functions
does not exist. It laid down the proposition that barring a few
functions, the State cannot claim any immunity. Its observations,
in this case, are as follows:
1. No civilised system can permit an executive to play with the
people of its country and claim that it is entitled to act in any
manner as it is sovereign. The concept of public interest has
changed with structural change in the society. No legal or
political system today can place the State above law as it is
unjust and unfair for a citizen to be deprived of his property
illegally by negligent act of officers of the State without any
remedy.
2. The modern social thinking of progressive societies and the
judicial approach is to do away with archaic State protection
and place the State or the Government at par with any other
juristic legal entity. Any water-tight compartmen-talisation of
the functions of the State as “sovereign” and “non-sovereign”
or “governmental” and “non-governmental” is not sound. It is