The position of a civil servant is a highly coveted one in India. Civil servants or bureaucrats form the backbone of a governmental administration in any nation. The job of government in modern welfare states is to some extent limited to the framing of laws and policies but it is the civil servants who carry those laws and policies into action. So the role of civil servants becomes extremely important as they help in executing the policies and programmes of the government. They are also the most visible face of government to the general public. In British India, civil servants were considered the backbone of the colonial government and their positions were secured in various British enactments such as successive Government of India Acts. In Independent India too, their positions have been safeguarded by the Indian constitution and backed by numerous court decisions. The underlying reason for these constitutional safeguards is to protect the bureaucracy from political interference and influence so that these services remain independent from political agendas and can seamlessly carry out the welfare schemes. Articles 308 to 323 of the Indian Constitution mention these safeguards to the Civil servants.
All service rules must confirm constitutional Provisions-
Article 309 of the Indian constitution provides that recruitment and conditions of service of persons serving the Union or a State shall be subject to the provisions of the constitution, and legislature has been empowered to regulate the recruitment, and conditions of service of persons appointed, to public services and posts in connection with the affairs of the Union or of any State. It has been held in numerous cases that these rules and regulations should not be arbitrary and unreasonable and must conform to constitutional provisions. These rules have also been tested on the touchstone of fundamental rights and especially Article 14 of the Indian constitution which provides for the right to equality. Article 15 and 16 can also be attracted in certain cases.
Security of Tenure-
Though Article 310 provides that civil servants shall hold office during the pleasure of the President or Governor as the case may be but the power of the President or a Governor to dismiss a civil servant is not his/her personal right. Though courts have justified the doctrine of pleasure on public policy grounds such public interest and the public good, yet it is not absolute and must be exercised with caution keeping in mind the totality of circumstances and is subject to Fundamental Rights especially Articles 14, 15 and 16. A civil servant may challenge his arbitrary termination in the Supreme Court of India. Article 311 provides that dismissal or removal of a Civil servant of Union or State cannot be made by an authority subordinate to that which made the appointment. In all cases principles of natural justice (PNJ) has to be followed ie an inquiry should be held and hearing must be given to the concerned civil servant. PNJ include the rule against bias, the rule of the fair hearing, speaking order and good faith. Clause 2 of Article 311 provides that no civil servant shall be dismissed, 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. In Tejshree Ghagh v Prakash P Patil 2007, the court held that where an employee is transferred to a non-equivalent post resulting in loss of pay he suffers a civil consequence as his status and salary are adversely affected, hence PNJ is attracted. Similarly, in SBI v KP Narayan Kutty 2003 court held PNJ have to be read into relevant service rules. In this case, the enquiry officer had found certain charges against an officer as partly proved, yet passed an order for his dismissal. The underlying reason for the security of tenure is to ensure that a civil servant is able to seamlessly perform his tasks without fear of unreasonable dismissal due to political vendetta, etc.
Disclosure of Annual Confidentiality Report (ACR)-
In Dev Dutta v Union of India 2008, Supreme Court held that every entry (not merely poor or adverse) relating to an employee under State whether civil, judicial or other services (except military) must be communicated within a reasonable time. This is to ensure fairness and transparency in public administration.
Besides these constitutional protections, certain statutes such as the Civil Procedure Code 1908 (CPC) and the Code of Criminal Procedure 1973 (CrPC) also grant protections to civil servants.
Protection from arrest and detention in certain cases-
Section 81 of CPC 1908 provides that no public officer can be arrested and cannot be directed by the court to appear when they do something in the discharge of public function. The underlying reason is that public officials cannot remain absent from his duty, otherwise the public interest would suffer. Also, the property of public officials cannot be attached during the pendency of suit except in an executive decree. In Coal India Ltd. v A Sons, 2005, Supreme Court stayed an order passed by the High Court requiring the personal appearance of a public servant. Recently the Supreme Court diluted the stringent provisions SC/ST (Prevention of Atrocities Act, 1989) in an attempt to curb its misuse and to protect honest public servants carrying out genuine duties and observed-‘In view of the acknowledged abuse of law of arrest in cases under the Act, the arrest of a public servant can only be after approval of the appointing authority and of a non-public servant after approval by the SSP, which may be granted in appropriate cases if considered necessary for reasons recorded. Such reasons must be scrutinized by the magistrate for permitting further detention. To avoid the false implication of an innocent, a preliminary inquiry may be conducted by the DSP concerned to find out whether the allegations make out a case under the act and that the allegations are not frivolous or motivated.’
With Peace and best regards!