 ARTICLE 309- Laws or rules regulating Recruitment and Conditions of Service

cannot be violative of rule of equality, equality of opportunity, principle of non-

arbitrariness, principle of non-discrimination, principles of natural justice, principles
of fairness, fundamental freedoms, right to life or personal liberty.... (e.g. laws or
rules restricting air hostesses from getting married or becoming mother, etc. are
unconstitutional; gender discrimination in jobs or employment is unconstitutional;
different pay for different employees without any intelligible differentia is
unconstitutional; termination of a government employee because he or she is the
whistleblower is a violation of his or her freedom of speech and expression, etc.)
 Maj Gen HM Singh, VSM v. Union of India-Supreme Court decided on January 9,
2014- Eligible candidates have a fundamental right to be considered for
promotion against the vacancy and promoted if suitable.
 The exceptions contemplated by the opening words of Art. 310(1) quite clearly refer,
inter alia, to Arts. 124, 148, 218 and 324 which respectively provide expressly that the
Supreme Court Judges, the Auditor-General, the High Court Judges and the Chief
Election Commissioner shall not be removed from his office except by an order of the
President passed after an address by each House of Parliament, supported by the
requisite majority therein specified, has been presented to him in the same session for
such removal on the ground of proved misbehaviour or incapacity. These are clearly
exceptions to the rule embodied in Art. 310(1), that public servants hold their office
during the pleasure of the President or the Governor, as the case may be. Subject to
these exceptions our Constitution, by Art. 310(1), has adopted the English Common
Law rule that public servants hold office during the pleasure of the President or
Governor, as the case may be and has, by Art. 311, imposed two qualifications on the
exercise of such pleasure. Though; the two qualifications are set out in a separate
article, they quite clearly restrict the operation of the rule embodied in Art. 310(1). In
other words the provisions of Art. 311 operate as a proviso to Art. 310(1). (See
PL Dhingra case)
 The pleasure of the President is clearly controlled by the provisions of Art. 311, and
so, the field that is covered by Art. 311 on a fair and reasonable construction of the
relevant words used in that article, would be excluded from the operation of the
absolute doctrine of pleasure. The pleasure of the President would still be there, but it
has to be exercised in accordance with the requirements of Art. 311.
 Samsher Singh v. State of Punjab, AIR 1974 SC 2192—President/Governor
u/Art. 310 cannot act alone---it is not personal action----Both have to act on the
aid and advice of the council of ministers.
 Moreover, like Art. 310 of the Constitution, which makes no distinction between
persons holding permanent or temporary posts in the matter of their tenure being
dependent on the pleasure of the President or the Governor, Art. 311 which is in the
nature of a proviso to Art.310, also makes no distinction between permanent and
temporary posts and extends its protection equally to all Government servants holding
permanent or temporary posts or officiating in any of them. (See PL Dhingra case)
 Article 311 is all about the Principles of Natural Justice----Rule against bias and
opportunity of being heard. Right to be considered fairly in all administrative is a part
of the principles of natural Justice. And what is fairness?? It all depends upon the
individual facts and circumstances. Moreover, there must be balance between
administrative smoothening-cum-efficiency and principles of fairness because the
purpose of the principles of natural justice or fairness does not mean to hamper the
administrative process. It also means that there various means to execute the
principles of natural justice. For example, right to be personally heard is not feasible
in all cases; mere recording of reasons would be sufficient.
 TO ATTRACT RIGHT TO BE HEARD (PRINCIPLES OF NATURAL
JUSTICE), DELINQUENT OFFICIAL HAS TO PROVE THAT THE
DEAPRAMENTAL ACTION AFFECTED HIS OR HER CONDITIONS OF
SERVICE AND BROUGHT HIM OR HER THE CIVIL CONSQUENCES OR
ADVERSE CONSEQUENCES
 Parshotam Lal Dhingra v. Union of India, AIR 1958 SC 36- The Supreme
Court held that the protection of Art. 311 can be available only where dismissal,
removal or reduction in rank is sought to be inflicted by way of punishment and
not otherwise.
 K. I. Shephard v. Union of India, AIR 1988 SC 686-- It was held that even
administrative acts have to be in accordance with natural justice if they have
civil consequences. It was also held that natural justice has various facets and acting
fairly is one of them.
 Dev Dutt v. Union of India 2008, Supreme Court held: “non-communication of
entries in the Annual Confidential Report of a public servant, whether he is in civil,
 judicial, police or any other service (other than the military), certainly has civil
consequences because it may affect his chances for promotion or get other
benefits. Hence, such non-communication would be arbitrary, and as such violative of
Article 14 of the Constitution.”......
The Court ordered: “We, therefore, direct that the 'good' entry be communicated to the
appellant within a period of two months from the date of receipt of the copy of this
judgment. On being communicated, the appellant may make the representation, if he
so chooses, against the said entry within two months thereafter and the said
representation will be decided within two months thereafter. If his entry is upgraded
the appellant shall be considered for promotion retrospectively by the Departmental
Promotion Committee (DPC) within three months thereafter and if the appellant gets
selected for promotion retrospectively, he should be given higher pension with arrears
of pay and interest @ 8% per annum till the date of payment.”
 Annual Confidential or Annual Appraisal Report---The Performance Appraisal
Report is an important document. It provides the basic and vital inputs for the
further development of an officer. The appraisee, the Reporting Authority and the
Reviewing Authority should, therefore, undertake the duty of filling up the form with
a high sense of responsibility. Performance appraisal should be used as a tool for
human resource development. Reporting Officers should realize that the objective is
to develop an officer so that he/she realizes his/her true potential. It is not meant to
be a fault-finding process but a development tool. The Reporting Officer and the
Reviewing Officer should not shy away from reporting shortcomings in performance,
attitudes or overall personality of the officer reported upon. The columns should be
filled with due care and attention and after devoting adequate time. Any attempt
to fill the report in a casual or superficial manner will be easily discernible to the
higher authorities. Although the actual documentation of performance appraisal is a
year-end exercise, in order that it may be a tool for human resource development, the
Reporting Officer and the appraisee should meet during the course of the year at
regular intervals to review the performance and to take necessary corrective
steps.1
 In exercise of powers conferred by proviso to Article 309 and Clause (5) of Article
148 of the Constitution and after consultation with the Comptroller and Auditor
General in relation to persons serving in Indian Audit and Accounts Department, the
1
https://dopt.gov.in/committeereports/general-guidelines-filling-par-form
 President hereby makes Central Civil Services (Classification, Control and Appeal)
Rules, 1965.
 Under Central Civil Services (Classification, Control and Appeal) Rules, 1965
“Central Civil Service and Central Civil post” includes a civilian Service or
civilian post, as the case may be, of the corresponding Group in the Defence Services;

“Defence Services” means services under the Government of India in the Ministry of
Defence, paid out of the Defence Services Estimates, and not subject to the Army Act,
1950 (46 of 1950), the Navy Act, 1957 (62 of 1957) and the Air Force Act, 1950 (45
of 1950);

“Department of the Government of India” means any establishment or

organization declared by the President by a notification in the Official Gazette to be a
department of the Government of India;

“Government servant” means a person who –

(i) is a member of a Service or holds a civil post under the Union, and includes any
such person on foreign service or whose services are temporarily placed at the
disposal of a State Government, or a local or other authority; (ii) is a member of a
Service or holds a civil post under a State Government and whose services are
temporarily placed at the disposal of the Central Government;
(iii) is in the service of a local or other authority and whose services are temporarily
placed at the disposal of the Central Government;

“Service” means a civil service of the Union.

 Suspension is not punishment.

 Suspension: The appointing authority or any authority to which it is subordinate or
the disciplinary authority or any other authority empowered in that behalf by the
President, by general or special order, may place a Government servant under
suspension-(a) where a disciplinary proceeding against him is contemplated or is
pending; or (aa) where, in the opinion of the authority aforesaid, he has engaged
himself in activities prejudicial to the interest of the security of the State; or (b)
 where a case against him in respect of any criminal offence is under investigation,
inquiry or trial.
 Deemed Suspension: A Government servant shall be deemed to have been placed
under suspension by an order of appointing authority –
(a) with effect from the date of his detention, if he is detained in custody, whether on
a criminal charge or otherwise, for a period exceeding forty-eight hours;
(b) with effect from the date of his conviction, if, in the event of a conviction for an
offence, he is sentenced to a term of imprisonment exceeding forty-eight hours and
is not forthwith dismissed or removed or compulsorily retired consequent to such
conviction.
EXPLANATION - The period of forty-eight hours referred to in clause (b) of this sub
rule shall be computed from the commencement of the imprisonment after the
conviction and for this purpose, intermittent periods of imprisonment, if any, shall be
taken into account.
 Review of Suspension Order: An order of suspension made or deemed to have been
made under this rule shall be reviewed by the authority which is competent to modify
or revoke the suspension, before expiry of ninety days from the effective date of
suspension, on the recommendation of the Review Committee constituted for the
purpose and pass orders either extending or revoking the suspension.
 Subsistence Allowance during suspension is fundamental right.
 Ajay Kumar Choudhary v. Union of India, (2015) 7 SCC 291- the Supreme Court held
“the currency of a Suspension Order should not extend beyond three months if
within this period the Memorandum of Charges/Chargesheet is not served on the
delinquent officer/employee; if the Memorandum of Charges/Chargesheet is
served a reasoned order must be passed for the extension of the suspension.”
 Prem Nath Bali v. Reg.,High Court Of Delhi-Supreme Court decided on 16
December, 2015- Departmental Enquiry should be concluded within six months.
 Shri Anant R. Kulkarni v. Y.P. Education Society -SC Judgment dated 29.04.2013- It
is a settled legal proposition that a departmental enquiry can be quashed on the
ground of delay provided the charges are not very grave.
 Ayaaubkhan Noorkhan Pathan Vs. State of Maharashtra -SC Judgement dated
08.11.2012- Supreme Court said, “we direct that before the submission of any
report by the Scrutiny Committee, his application for calling the witnesses for
 cross-examination must be disposed of, and appellant must be given a fair
opportunity to cross-examine the witnesses, who have been examined before the
Committee. We further direct the Scrutiny Committee to pass appropriate
orders in accordance with the law thereafter. In case, the Scrutiny Committee
has already taken a decision, the same being violative of the principles of natural
justice, would stand vitiated.”
 Stanzen Toyotetsu India Private Limited v. Girish V. (2014) 3 SCC 636- The
disciplinary proceedings and proceedings in a criminal case can proceed
simultaneously in the absence of any legal bar to search simultaneity.
 MANAGING DIRECTOR, ECIL vs. B. KARUNAKAR, 5 JUDGES BENCH OF
SUPREME COURT 1993, IN WHICH THE COURT HELD: “Since the denial of
the report of the Inquiry Officer is a denial of reasonable opportunity and a breach of
the principles of natural justice, it follows that the statutory rules, if any, which deny
the report to the employee are against the principles of natural justice and, therefore,
invalid. The delinquent employee will, therefore, be entitled to a copy of the report
even if the statutory rules do not permit the furnishing of the report or are silent
on the subject”). (READ 42ND AMENDMENT 1976 ADDED PROVISO TO
ARTICLE 311 (2) SUBJECT TO THIS JUDGMENT)
 Reena Rani v. State of Haryana, (2012) 10 SCC 215- Art. 311(2) second proviso cl.
(b) provides for dismissal without inquiry in case it is not reasonably practicable to
hold such inquiry. But the Court held that it would be valid only if the punishing
authority has recorded reasons that it was not reasonably practicable to hold such
inquiry. Mere fact that it was “Not practicable to hold regular departmental
enquiry because no independent witness would be available” is not sufficient to
use Art. 311(2) second proviso cl. (b).
In this case, a police constable was dismissed because she developed close relations
with one M who was involved in several criminal cases and she used to meet him in
jail on many occasions. Transcript of alleged conversation between appellant and M
not indicating that she was trying to help M or any other accused, nor that she was
divulging confidential information pertaining to pending cases. Besides, in writ
petition filed by appellant challenging her dismissal, she had explained that she was in
contact with M because her family members wanted her to marry him, and that she
had known him before joining police service.
 Hence held, there was no valid ground much less justification for dismissal of
appellant without holding enquiry. If regular enquiry had been held, appellant could
have defended herself by adducing evidence in support of her contentions.
Moreover, in dismissal order, no reasons were disclosed as to why it was not
reasonably practicable to hold enquiry. Therefore, appellant’s dismissal was ultra
vires Art. 311.
 Punishment must be proportionate. Chairman cum Managing Director, Coal
India Limited v. Mukul Kumar Choudhuri, AIR 2010 SC 75- The Court held:
“The doctrine of proportionality is, thus, well recognized concept of judicial
review in our jurisprudence. What is otherwise within the discretionary domain
and sole power of the decision maker to quantify punishment once the charge of
misconduct stands proved, such discretionary power is exposed to judicial
intervention if exercised in a manner which is out of proportion to the fault.
Award of punishment which is grossly in access to the allegations cannot claim
immunity and remains open for interference under limited scope of judicial
review. One of the tests to be applied while dealing with the question of quantum
of punishment would be: would any reasonable employer have imposed such
punishment in like circumstances? Obviously, a reasonable employer is expected
to take into consideration measure, magnitude and degree of misconduct and all
other relevant circumstances and exclude irrelevant matters before imposing
punishment. In a case like the present one where the misconduct of the
delinquent was unauthorized absence from duty for six months but upon being
charged of such misconduct, he fairly admitted his guilt and explained the
reasons for his absence by stating that he did not have any intention nor desired
to disobey the order of higher authority or violate any of the Company's Rules
and Regulations but the reason was purely personal and beyond his control and,
as a matter of fact, he sent his resignation which was not accepted, the order of
removal cannot be held to be justified, since in our judgment, no reasonable
employer would have imposed extreme punishment of removal in like
circumstances. The punishment is not only unduly harsh but grossly in excess to
the allegations. Ordinarily, we would have sent the matter back to the
appropriate authority for reconsideration on the question of punishment but in
the facts and circumstances of the present case, this exercise may not be proper.
In our view, the demand of justice would be met if the Respondent No. 1 is
 denied back wages for the entire period by way of punishment for the proved
misconduct of unauthorized absence for six months.”
 De novo enquiry ---De novo enquiry is an enquiry done afresh. When a court feels
that an enquiry is not done in a complete or correct manner, court can insist on
enquiry into the matter in issue from the beginning. When the prior enquiry is found
deficient de novo enquiry is ordered. This occurs in administrative agencies enquiries
also.
 In Deoki Nandan Prasad v. State of Bihar (1971) S.C.R. 634—The Supreme Court
authoritatively ruled that pension is a right and the payment of it does not depend
upon the discretion of the Government but is governed by the rules and a
Government servant coming within those rules is entitled to claim pension. It was
further held that the grant of pension does not depend upon any one’s discretion. It is
only for the purpose of quantifying the amount having regard to service and other
allied maters that it may be necessary for the authority to pass an order to that effect
but the right to receive pension flows to the officer not because of any such order but
by virtue of the rules.
 State of Jharkhand v. Jitendra Kumar Srivastava, (2013) 12 SCC 210- The Court
held that, in absence of specific rules, pension during pendency of disciplinary and
criminal proceeding cannot be withheld. The Court reiterated that pensions are not
bounty but property. Such earned benefit cannot be taken away without complying
with due process of law.