Doctrine of Pleasure As Under The Indian Constitution

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.[1] In England, a
servant of the Crown holds office during the pleasure of the Crown and he 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.[2]The 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.[3]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.[4]
Doctrine Of Pleasure In India:
Doctrine of Pleasure under the Indian Constitution is also based on the same policy
considerations as it existed under the common law in England. 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 :[5]
(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.
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.
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 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."[6]
Therefore, services of any civil servants cannot be terminated at pleasure unless the
mandatory provisions of Article311 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 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.[7]
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.[8]
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 theArticle 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.[9]
The constitution bench of the Supreme Court in S.L. Agarwal (Dr.) v. General
Manager[10], 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 v. Kanak Chandra Dutta
laid down that civil post in Clause (1) means a post not connected with the defence
services and outside the regular civil services.[11]
Further, in Parshottam Lal Dhingra v. Union of India[12], 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
co-ordinate rank or grade as the appointing authority then, dismissal or removal by
such authority is valid.[13]
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:
(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.[14]
(b) He must be afforded a reasonable opportunity of being heard in respect of those
charges.[15]
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.[16]
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
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.[17]
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 the Disciplinary authority has to do ex-parte and without giving a hearing to
the concerned civil servant.[18]
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.[19]For 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 punishmen 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.
In Tulsi ram Patel case[20]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.[21]
(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[22] 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 underArticle 311(2)(c). In the
absence of any indication about the activities, it would not be possible for the 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.
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[23] 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 muruit 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[24] 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[25], it was held that a claim of arrears of salary
was held to be based on contract.
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[26] 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[27], 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
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.
*********************
Bibliography:
Statutes:
The Constitution of India, 1949
* Books:
# M. P. Jain, Indian Constitutional Law (LexisNexis Butterworths Wadhwa Nagpur, 6th ed.
2012)
# I. P. Massey, Administrative Law (Eastern Book Company, 8th ed. 2012)
# V. N. Shukla, Constitution of India (Eastern Book Company, 11th ed. 2011)
# Dr. J. J. Upadhyaya, Administrative law (Central Law Agency Publication)
# Samaraditya Pal, Law Relating to Public Service (LexisNexis Butterworths Wadhwa
Nagpur, 3th ed. 2011)
# Madhusudan Saharay, Adoption of Foreign Doctrines by the Supreme Court (Eastern
Law House, ed., 2011)
[1]Madhusudan Saharay, Adoption of Foreign Doctrines by the Supreme Court 308
(Eastern Law House, ed., 2011)
[2] http://www.shareyouressays.com/115275/short-speech-on-the-doctrine-of-pleasure.
31 Aug 2013
[3] M.P Jain, Indian Constitutional Law, 2052 (LexisNexis Butterworths Wadhwa Nagpur,
6th ed., 2010)
[4] V N Shukla, Constitution of India 870 (Eastern Book Company, 11th ed., 2011)
[5] Art. 310, Constitution of India
[6] Art. 311, Constitution of India
[7] I P Massey, Administrative Law 581 (8th ed., 2012)
[8] Dr. J. J. R. Upadhyaya, Administrative Law, 476 ( Central Law Agency Publications,
8th ed., 2012)
[9] AIR 1970 SC 36
[10]Samaraditya Pal, Law relating to public service 823(LexisNexis Butterworths
wadhwa Nagpur, 3rd ed., 2011)
[11]Samaraditya Pal, supra note 11 at 830
[12] AIR 1958 SC 36
[13] Mahesh v. Uttar Pradesh AIR 1955 SC 70
[14] Surath Chandra Chakraborty v. State of West Bengal (1970) 3 SCC 548

[15]Samaraditya Pal, supra note 11 at 830

[16] Krishna lal vij pg: 830
[17] Article 311, Constitution of India
[18]Jain supra note 8 at 2092
[19] Shankar Dass v. Union of India, AIR 1985 772
[20] Union of India v. Tulsi ram Patel, AIR 1985 SC 1416
[21] Kuldip Singh v. State of Punjab, AIR 1987 SC 79
[22] AIR 1985 SC 1416
[23] AIR 1954 SC 245
[24] AIR 1955 SC 600
[25] AIR 1969 SC 1302
[26] AIR 1991 SC 385
[27] AIR 1998 SC 2043