Article 16(4A)of the

Constitution of India
Continued
77th Amendment, 1995-Article 16(4A) –Nothing in this Article shall prevent
the State from making any provision for reservation in the matter of
promotion to any class or classes of posts under State for SC & ST

Article 16(4)-Deals with backward classes of citizens and Article 16(4A)-deals

only SC & ST
Indra Sawhney v. Union of India, 1993
UOI v. Virpal Singh Chauhan, 1995- Efficiency of administration-not basic
feature of the Constitution of India but equality is a basic feature of the
Constitution of India. Catch up rule was followed.
• Catch up rule will be followed (general category candidate will regain
seniority when he will be promoted later on

• Reserved category candidate is promoted earlier than general

category candidate under rule of reservation/roaster

• Feeder Category-general category is senior to reserved category

Continued
• Candidate promoted earlier by virtue of rule of reservation/ roster
shall not be entitled to seniority over his senior in feeder category
and as and when the general category candidate is promoted, such
general category will regain seniority over the reserved category.
• The decision in Virpal Singh led to another 85th Constitutional
Amendment, 2001, whereby the Clause (4A) of Article 16 was further
amended enabling the State to make a provision for reservation in
matters of promotion with consequential seniority.
• Amendment was made effective retrospectively from 17/6/1995-the
date of coming into force the original clause (4A) of article 16
Continued……
• Ajit Singh Janjua & Ors v. State of Punjab (1996)-Catch up rule
• Balance must be maintained in such manner that there was no
reverse discrimination against the general category candidates and
any rule/ circular or order which gives seniority to the reserved
category candidates promoted at the roaster point would be violative
of Article 14 & 16 of the Constitution of India.
• Jagdish Lal & Ors. v. State of Haryana & Ors.(1997)-seniority granted
to the SC & ST candidates over general category candidates due to
accelerated promotion does not in all events got wiped out, on
promotion of general category candidate
Continued…..
• Ajit Singh & Ors II v.State of Punjab & Ors. (1999)-Catch up rule
• M. Nagraj & Ors v. Union of India(2006)-neither the catch up rule nor
the concept of consequential seniority is implicit in clauses(1) & (4) of
Article 16
• Discretionary power of the State
• Collect quantifiable data-Backwardness of the class and inadequacy
of representation of that class in public employment in addition to
compliance with Article 335.
Article 310(1) of the Constitution Of India
• 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.
The common Law “doctrine of Pleasure” was borrowed in India under the
Government of India Act, 1858(Section 16 of this Act), Section 96-B of the
Government of India Act, 1919 and further the rule was retained under the
Government of India Act, 1935
• State of Bihar v. Abdul Majid-upheld his claim arrears of salary on the
ground of contract or quantum muruit i.e for the value of the service
rendered.
• Om Prakash v. State of Uttar Pradesh-dismissal-unlawful-he was entitled
to get his salary from the date of dismissal to the date when his dismissal
was declared unlawful.
• Union of India v. Balbir Singh-Court can examine the circumstances on
which the satisfaction of the president or Governor is arrived. 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.
• Article 310(1) Except as expressly provided by this Constitution of India,
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
• Based on Public policy
• Continuance in office against the public interest
• Conduct unsatisfactory
• Government has right to expect from its employee to observe certain
standard of decency or morality- in public as well as in private life
• Union of India v. Tulsiram patel- employee must have feeling of security of
tenure. At the same time if he is inefficient, dishonest or corrupt –should
not continued in service-public interest and for public good. Protection
given under laws enacted under 309(1) or protection given under article
311 of Constitution of India –not abused by employee to detriment of
public interest and public good.
• Implications of doctrine of Pleasure
• Government has right to regulate or determine the tenure- article
311 have been observed
• Punish for misconduct- official duty as well as private life
• 310(1) not fettered by ordinary legislation
• Law under Article 309(1) –not affect the power under Article 310(1)
read with Article 311
• 310(1) aid and advice of Council of Ministers or with the advice of
authority specified in the Acts or Rules under 309
Limitations
• Article 310(2) Exempt person having special qualifications
• Article 311(2)
• Judges of the SC and High Courts, Comptroller and Auditor General of
India, the members of the UPSC, and Chief Election Commissioner
• Article 320(3) (c) PSC shall be consulted –disciplinary matters
• Can’t compel employee to continue in service beyond the age of
retirement except services are required in public interest
• Delegation of pleasure
• Babu Ram Upadhya
• Overruled Babu judgement in Moti Ram Deka
• Union of India v. Tulsi ram-Not personally exercised but executive
power may with aid and advice of council of ministers
 Article 311 of the Constitutions of India
• Civil Service of India can be classified into two
• (a) All India Services-IAS, IFS, IPS
• (b) Central Civil Services- divided into two (group A) and Group B
• Group A are concerned with the administration of the union
Government. All appointment to CCS (group A) are made by the
President of India. Recruitment of Group A is made through civil
service examination, Engineering Service Examination, Combined
Geo-scientist & Geologist examination, I.E. S./ I.S.S. Examination,
Combined medical Service Examination, Central Armed Police Force
Of UPSC-All promotion or empanelment in CCS –by Civil Service Board
or by appointment committee of Cabinet
• Group B-combined graduate level examination –conducted by Staff
Selection Commission
• Appointments are made by authorities specified by a general or
special order of President
• Persons Entitled To Safeguard- Article 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
• S.L. Aggarwal (Dr.) v. General Manager Hindustan Steel Limited-
who are the persons entitled to the protection of Article 311.
• (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.
• includes a civilian in a Defence Service, except positions in the Indian Armed
Forces
employees of a statutory public corporation, government companies registered
under the Companies Act, 1956,a registered Society, The members of autonomous
District/ Regional Council under Schedule VI of the Constitution of India are not
entitled to the protection of Article 311(2). Not civil servant.
Abolition of Civil Post
• Appointing Authority
• It is the authority who actually appointed a person to the post who
shall be the “appointing authority” and not the authority empowered
under the rules to make such appointment.
• Smt. Kanta Devi v. Union of India- Actual appointing authority not the
authority from whom approval of that appointment is required
• Subordinate Authority
• Removal or Dismissal by Authority Equal in Rank or Superior to
Appointing Authority
• Dismissal or removal-Union of India v. Tulsiram Patel
• There are some grounds when the dismissal would not be wrongful-These
are
• Infidelity-an act -incompatible with the due or faithful discharge of his
duty to his master
• Incompetency-failure of a servant to provide the skill
• Disobedience-Wilful disobedience to the lawful and reasonable
orders of the masters
• Negligence-
• Misconduct-disobedience insubordination and acts subversive of
discipline
• Reduction in Rank-demotion from a higher to a lower rank or post.
Article 311 of the Constitution of India

• (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 as a civil post under the Union
or a State be dismissed or removed by an authority subordinates to that by
which he was appointed.
• (2) No such person as aforesaid shall be dismissed or removed or reduces
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.
Termination of Service when amounts to
punishment.
• Parshottam Lal Dhingra V. Union of India-
(1) Whether the servant had a right to hold the post or the rank;
(2) Whether he has been visited with evil consequences.
• Evil Consequences may be civil or penal consequences. Evil penal
consequences follow if termination of service or reduction entails or
provides for the forfeiture of his pay or allowance or the loss of
seniority in the substantive rank or the stoppage or the
postponement of his future chances of promotion. In other words, if
the order attaches a stigma, it results in evil or penal consequences
• Provided further that this clause shall not apply-
• 311(2)(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. .
• Union of India v Tulsiram Patel-charges in the criminal case must relate to
misconduct of such magnitude as would have deserved the penalty of
dismissal, removal or reduction in rank.
• 311(2)(b)-Where an authority empowered to dismiss or remove a person
or to reduce him in rank is satisfied that for some reasons to be recorded
by that authority in writing, it is not reasonably practicable to hold such
inquiry Article 311(1), Constitution of India
• Union of India v Tulsi Ram Patel-not a total or absolute impracticability , a
reasonable view of the prevailing situation
• 311(2)(c)-Reasons of Security
Who has Right to hold Post or Rank?

• Persons appointed substantively to permanent posts,

• Persons holding posts in a quasi- permanent capacity, and
• Persons appointed for a fixed term.
• Post held in Officiating Capacity
• Temporary service
• Quasi-Permanent Service-Rule 3 of the Central Civil Services (Temporary Services) Rules, 1965
• (a) if he has been in continuous government service for more than three years, and
• (b) the appointing authority, being satisfied as to his suitability for employment in a quasi-permanent
capacity, has issued a declaration to that effect.
• Fixed-tenure Service
• Probationer
• Compulsory Retirement-Shyam Lal v. State of U.P,
• Ram Ekbal Sharma v. State of Bihar-order of compulsory retirement may be couched in innocuous language
without making any imputation against the government servant
Removal or dismissal or reduction in rank can be done after an inquiry
affording reasonable opportunity of hearing.

• Khem Chand V. Union of India-An opportunity to deny his guilt and establish his
innocence, An opportunity to defend himself by cross-examining, An opportunity
to make his representation
• Rule of natural justice that no man should be condemned without hearing;
• The Constitution (42nd Amendment) Act, 1976,
• Bashyan case
• Suresh Koshy case
• Keshav Mills Co. Ltd. Case
• S.K. Singh v. Central Bank case
• Superintendent of Post Offices v R. Valasina Babu-false certificate-
• Coal India Ltd. v Saroj Kumar Mishra-proceedings are said to have been initiated
only when a charge-sheet is issued.
Administrative Tribunals
• Part XIV-A of the Constitution of India-Articles 323-A and 323-B inserted by the Constitution (Forty- Second
Amendment) Act, 1976
• Article 323-A(1) provides for the establishment of Administrative Tribunals for determining disputes relating
to recruitment and conditions of services of persons appointed to public services and posts in connection
with the affairs of Union or of any State or of any local or other authority within the territory of India or
under the control of the Government of India or of any Corporation owned or controlled by the
Government.
• Clause (2) of article 323-A –provided for the establishment of one Central Administrative Tribunal for
Unionand separate tribunals for each State or two or more States if request is made by any State or two or
more States.
• Provide for the procedure to be followed by Tribunal
• Exclude the jurisdiction of all courts except Article 136
• Provide for the transfer to tribunal of any cases pending before any court or other authority
However, do not, apply to members of paramilitary forces, armed forces of the Union, officers or employees of
the Supreme Court, or to persons appointed to the Secretariat Staff of either House of Parliament or the
Secretariat staff of State/Union Territory Legislatures.
•
• In the exercise of power under article 323-A Parliament passed the Administrative
Tribunals Act, 1985
• In the exercise of power under Article 323-A of the Constitution of India, the Central
Govt. shall by notification establish one Central Administrative Tribunal and separate
tribunals for each State or two or more States if request is made by any State or two or
more States.
• Composition-
• Section 5(1) of the Act, provides that the Tribunal shall consists of a Chairman and such
number of Judicial and Administrative Members as the appropriate Government may
deem fit. The Administrative Tribunals Act, 1985.
• The appointment of the Chairman and every other Member of the Tribunal shall be
made by the President of India after consultation with the Chief Justice of India. In case
of a Tribunal for a State, the appointment of the Chairman and every other Member of
the Tribunal shall be made by the President after consultation with the Governor of the
concerned State Section 6 (3), the Administrative Tribunals Act, 1985
Qualification

• Amended Act, 2006 there is substitution of new section 5 for section 6

• Qualifications for appointment as Chairman- A person shall not be qualified for
appointment as the Chairman unless he is, or has been, a Judge of a High Court.
• Provided that a person appointed as Vice-Chairman before the commencement of this
Act shall be qualified for appointment as Chairman if such person has held the office of
the Vice-Chairman at least for a period of two years
• Qualification for appointment as Administrative Members
• A person shall be qualified for appointment as an Administrative Member if he has held
for at least two years the post of Secretary to the Government of India or any other post
under the Central or State Government and carrying the scale of pay which is not less
than that of a Secretary to the Government of India for at least two years or
• held a post of Additional Secretary to the Government of India for at least five years or
any other post under the Central or State Government carrying the scale of pay which is
not less than that of Additional Secretary to the Government of India at least for a period
of five years.
• Qualification for appointment as Judicial Members
• A person shall be qualified for appointment as a Judicial Member if he is or has been qualified to be a Judge
of a High Court or he has for at least two years held the post of a Secretary to the Government of India in the
Department of Legal Affairs or the Legislative Department including Member-Secretary, Law Commission of
India or
• held a post of Additional Secretary to the Government of India in the Department of Legal Affairs and
Legislative Department at least for a period of five years.
• Tenure of office
• Chairman for only 5 years or unto the age of 65 which is increased to 68 in Amendment Act 2006 (whichever
is earlier)
• Other members for 5 yeas and further extended to more 5 years or up to the age of 62 which is increased to
65 by amended Act, 2006 (whichever is earlier)
• Section 10A of the Administrative Tribunals (Amendment) Act, 2006-(Saving terms and conditions of
service of Vice-Chairman)- the Chairman, Vice-Chairman and Member of a Tribunal appointed before the
commencement of the Administrative Tribunals (Amendment) Act, 2006 shall continue to be governed by
the provisions of the old Act, and the rules made there under as if the Administrative Tribunals
(Amendment) Act, 2006 had not come into force.
• The Administrative Tribunals (Amendment) Act, 2006 makes it clear that
the Chairman and Members appointed prior to Amending Act of 2006, on
completion of either their term of service or on attainment of 65 years
in the case of Chairman or 62 years in the case of Members of the Tribunal,
whichever is earlier, may be considered for fresh appointment. Proviso to
section 10A of amended Act provides that such fresh appointment could be
made only when the criteria prescribed under amended sec. 8 is satisfied
and it is further subject to the condition that the total term of office of the
Chairman shall not exceed 5 years and that of a Member, ten years.
• A. K. Behera v. Union of India and anr
• Jurisdiction, Powers and Authority- Sampath Case, L Chandra case
• Procedure before the Tribunals