Public Services in the Constitution

One of the matters which do not usually find a place in a Constitutional document but have been included in the Constitution of India is the subject of Public Services.

The wisdom of the framers of the Constitution in providing a constitutional basis to such matters—ordinarily left to ordinary legislation and administrative regulations in other constitutions—can be appreciated only when we assess the importance of public servants in a modern democratic government.

Permanent and Political Executives

A notable feature of the Parliamentary system of government is that while the policy of administration is determined by Ministers responsible to the Legislature, the execution of policy and the actual administration of the country are carried out by a large body of officials who are non-political.

• In Political Science, these officials form the “permanent Executive”, as distinguished from the Ministers who form the “political Executive”.

• The political Executive is chosen from the majority party in the Legislature and holds office only so long as that party enjoys majority support.

• The permanent Executive, however, is appointed by a different procedure, does not belong to the ruling party, and maintains administrative continuity and political neutrality.

• The civil servants are considered experts in the technical and detailed functioning of government, whereas Ministers generally lack such expertise.

Inherent Weakness of the Permanent Executive

While civil servants are indispensable to the Parliamentary form of government, one inherent weakness exists in this system:

• Permanent civil servants tend to become increasingly tied to red-tape and routine, showing a lack of responsiveness to fresh ideas.

• On the other hand, the political Executive, being accountable to the Legislature, maintains such responsiveness.

Despite this weakness, civil servants remain vital to the functioning of the system.

Importance of an Independent Civil Service

As observed by the Joint Select Committee on Indian Constitutional Reforms:

• A system of responsible government can succeed only with a competent and independent Civil Service.

• Such a Civil Service must:

  • Be staffed by persons of long administrative experience.

  • Be secure in their positions during good behaviour.

  • Be bound to carry out the policy determined by the Government and Legislature.

The rationale is that in the modern age, government is not only an art but also a science, and requires expert management. Civil servants, therefore, function as a professional cadre dedicated to the business of government.

The problem of modern democracy is thus: How to prevent civil servants from converting democracy into a bureaucracy or officialdom?

Remedies to Prevent Bureaucratic Domination

The solution does not lie in:

• The Legislature itself taking over administration, since direct democracy is impracticable in modern times.

• The Ministers assuming detailed administrative work, as this would distract them from addressing broader national issues.

Instead, the proper solution is:

1. Selection of the right type of personnel—individuals who are:

   • Efficient and honest.

   • Impartial, without political or personal bias.

   • Willing to faithfully execute policy formulated by the Government of the day.

2. Maintaining discipline—ensuring public servants sustain the proper relationship with their employer, the State.

3. Accountability mechanisms—

   • For breaches of discipline, departmental action must be taken.

   • For breaches of law, public servants must be made answerable in courts of law.

4. Security of tenure—those who comply with the above principles must be assured protection against arbitrary removal. Without this, the best talents cannot be attracted to public service.

All these objectives require definite rules and safeguards governing the conditions of service of public servants, which the Constitution of India seeks to secure.

Constitutional and Legislative Provisions

The Constitution does not attempt to provide detailed rules for every matter concerning public service. Instead:

• The recruitment and conditions of service of Union and State public servants are to be regulated by legislation passed by the appropriate Legislature.

• Pending legislation, these matters are to be regulated by rules made by the President (for Union services) or the Governor (for State services) [Article 309].

• Once a law is enacted by the Legislature, it supersedes executive rules made under Article 309.

• However:

  • No rule may be framed that affects or impairs vested rights.

  • Rules framed under Article 309 have the force of law.

Examples:

• The All-India Services Act, 1951 provides a statutory framework for certain services.

• However, a large part of the field is still governed by executive rules, including those framed under the Government of India Acts, which continue until superseded.

It must be noted that:

• Neither a rule nor a legislative Act concerning services is valid if it contravenes the Constitution.

• Courts have annulled several service rules on this basis.

• Example: Any rule or order that permits the Government to dismiss a servant without giving an opportunity to be heard is unconstitutional for violating Article 311(2).

Matters Substantively Dealt with by the Constitution

The Constitution substantively deals with two key aspects:

1. Tenure of office and disciplinary action relating to public servants.

2. Constitution and functions of Public Service Commissions, which are independent bodies advising the Government on vital service matters.

Doctrine of Pleasure

India inherited from the British system the maxim that all service is held at the pleasure of the Crown. Accordingly:

• The Constitution declares that every person holding a civil or military post under the Union or a State serves “during the pleasure of the President or the Governor” [Article 310(1)].

• The power of compulsory retirement of a government servant is a facet of this doctrine of pleasure.

• This means:

  • Any Government employee may be dismissed at any time and on any ground.

  • Such dismissal does not ordinarily give rise to a cause of action for wrongful dismissal.

  • The only exception arises where dismissal is in contravention of constitutional safeguards, which will be discussed separately.

Doctrine of Pleasure and Its Exceptions

The right of the Government to dismiss a Government servant at its pleasure cannot be fettered by any contract. Any such contract would be void as it contravenes Article 310(1) of the Constitution, which embodies the principle of service at pleasure.

Exception under Article 310(2)

The rule is subject to an important exception under Article 310(2):

• Where the Government requires the services of technical personnel or specialists, who do not belong to the regular services, it may secure their services by entering into a special contract.

• Without such contracts, such individuals may not be available for government service.

• In such cases:

  • Compensation is payable for premature termination of service, if the contract specifically provides for such payment.

  • However, no compensation is payable if:

    • The service is terminated on the ground of misconduct, even within the contractual period.

    • Compensation is payable only in the following situations:

      • (a) If the post is abolished before the expiry of the contractual period.

      • (b) If the individual is required to vacate the post before the expiry of the contractual period for reasons unconnected with misconduct.