The Union Public Service Commission (Arts. 315 to 320):
(i) Status :
The Union Public Service Commission is a constitutionally constituted independent body under the Con- stitution.lt is an advisory body to help recruitment in Government Services.(Central)
(ii) Composition : It consists of a Chairman and other members appointed by the President. The total number is fixed by the President. At least half of them should be with 10 years Government Service or experience. The tenure is 6 years. Retiring age is 65 years.
The President may remove a member on a report of the Supreme Court given on a reference by the President to it. The grounds are Adjudged insolvency, inde- pendent engagement, or misbehaviour.However, infirmity is not a ground. Where a professor known to be blind was appointed, a member of the Bihar State Public Service Com. ,the Supreme Court held he cannot be removed under infirmity. Shankar Prasad V.St of Bihar 1993.
The Union Public Service Commis- sion is independent because:
(a) Its members cannot be removed except under a special procedure - by an enquiry conducted by a Supreme Court judge.
(b)The service conditions of members should not be varied.
(c) Its expenses are charged on the Consolidated Fund. (d) Future appointments are restricted to the members,
(v) Duties :
(a) It is the duty of the Commission to conduct examinations for appointments to Union Services.
(b) To advise on any matter referred to it by the President.
(c) To exercise statutory functions.
(d) To present the annual report to the President who shall place it before the Parliament.
(vi) Consultative Functions :
The Union Public Service Commission shall be consulted :
(a) On all matters relating to methods of recruitment to Civil Services.
(b) On the principles to the followed in making appoint ments, transfers, promotions etc.
(c) On all disciplinary proceedings.
(d) On any claims relating to expenses spent by an official in defending legal proceedings of the Government.
(vii) Binding nature of Commission's advice : (a) The Supreme Court has held in D'Silva V. Union of India (1962) that the recommendations of the U.P.S .C. are not binding. The President is to place the annual report before the Parliament. If any of the recommendations are not followed the Govern- ment should give specific reasons. This has kept the non- acceptance of the recommendation at a minimum.In respect of recruitment, if a list of merited candidates is submitted to the Government., such a list is not absolutely binding. On grounds of health, police report etc., even a merited person's name may be omitted,at the discretion of the Government. The Supreme Court has made it clear that the recommendations should not be taken in a light vein. They must be respected and followed.Other leading cases: State ofU.P. V. Srivatsava; Ram Gopal V. State ofM.P.
(b) According to Art.320(c), the U.P.S.C. should be consulted by the Government. The Supreme Court, in U.P. V. M.Lai has held that this was not mandatory.
Constitutional Safeguards of Civil Servants :
(i) Introduction : In a Parliamentary System of Govern- ment, the policy is decided by the Cabinet. It is a body of officials—the Civil Servants—who actually put the policy of
the State into operation. These are 'Permanent' officials whencompared to the political heads, the ministers, whose tenure is'temporary' (maximum : 5 years). As the Civil Servants system has a tendency to be tied to 'red-tape' and to routine work, and also lacking in responding to fresh ideas, the political head, the minister is expected to cure these evils, as he is responsible to the Legislature.
(ii) Rules and Safeguards : Civil servants are the back- bone of the Administration. The success lies in selecting the right type of men, who are honest, impartial, efficient, sincere and disciplined. The best available talents can be attracted by offering security of service and safeguards against arbitrary dismissals or terminations. The Constitution aims at this objective. Articles 309 to 311 have provided for the safe- guards which are beyond the ordinary powers of the Parliament.
(iii) Art. 309 : Recruitment and Conditions of Service of the Union and State Civil Servants may be regulated by the Acts of Parliament or State Legislatures. Until then, the President and the Governor may make rules regulating the recruitment and conditions of service.
(iv) Tenure : Art. 310 provides that the Civil Servants, Union or State, hold their jobs during the pleasure of the President or the Governor as the case may be. This is the doctrine of pleasure having its origin in England. 'The pleasure of the Crown' means that Crown is not subject to any restrictions and hence such a person can be terminated, at any time without giving any reasons. This doctrine has undergone some changes in England. Our Constitution has imposed some limitations in Arts. 310 and 311.
Contract Services : The President or the Governor may appoint persons with special qualifications under contract of service: compensation is to be paid if the post is abolished or the person is made to vacate.
(v) Dismissal, Removal or Reduction in Rank : These are major penalties. Protection is given only against them. (Minor Penalties like censure, admonition etc. are not within Art.311. Similarly "suspension order" is not a penalty and is not within Art.311) Two conditions have been imposed.
(a) Under Art. 311 (1), no Civil Servant should be dismissed or removed by an authority subordinate to the appointing authority.In Rangachary 's Case, the Sub-Inspector had been appoin- ted by the I.G.P., but was dismissed by the D.I.G. Held, Dismissal was bad.
(b) Procedural Safeguards : Art. 311(2). A Civil Servant may be dismissed, removed or reduced in Rank, but the procedure to be followed is :
1. He should be given a show cause notice stating clearly the charges;
2. An Enquiry is to be conducted;
3. He must be given an opportunity to defend himself. This requires that the principle of natural justice must be followed, i.e., there should be no BIAS, and the rule audi alterem partens (Hear and decide) must be followed.
Otherwise, the enquiry becomes ultra vires.
42nd Amendment: After the above enquiry, if a penalty was proposed against the Civil servant, he was given the opportunity of being heard against such proposed penalty. This second opportunity is dropped by the 42nd Amendment.
(1) The protection under Art. 311 will not apply to a Civil servant who has been convicted on a criminal charge.
(2) Where the concerned authority is satisfied that for some recorded reason it is not reasonably practicable to conduct the enquiry, he may not conduct the enquiry.
(3) Where the President (or Governor) is satisfied that in the interests of the Security of the State it is not expedient to hold the enquiry.In these three circumstances, Art. 311 may not be followed. In Union of India V. Tulsiram Patel, the Supreme Court held that these were Constitutionally prohibitory injunctions and no enquiry need be held. These were made in public interest and for public good. Hence, enquiry need not be conducted and principles of natural justice need not be followed.
Leading Cases : Shyamlal V. State of U.P. S, an Engineer in Government service was compulsorily retired on comple- tion of 25 years of qualifying service, as per rules. S contend- ed that this was removal. Held, compulsory retirement did not amount to removal.
Moti Ram V. Frontier Railway. A permanent railway employee under Rule 149(3) of the Railway Code could be terminated without following the procedure of Art.311(2). The Supreme Court struck down this rule.Dingra V. Union. D was a Class III employee. He was allowed to officiate in Class II. Subsequently, he was reverted to Class III. Held, Art. 311 did not apply. It applies, if the reduction in rank is by way of punishment. Appeal dismissed. State of Punjab V. Raj Bahadur. A probationer comes within Art. 311, if his termination is by way of punishment (Stigma Doctrine).