1.

Civil service in India

In a democracy, the civil services play an extremely important role in the administration,
policy formulation and implementation, and in taking the country forward towards progress
and development.

Definition

Civil service, the body of government officials who are employed in civil occupations that is
neither political nor judicial. In most countries the term refers to employees selected and
promoted on the basis of a merit and seniority system. (Britanica)

Officer of employee of a government

A public employee is a person who is employed by a government agency and includes the
employees of a municipal, state, or federal agency or state college or university.

The crucial question which requires consideration is whether a person working on a short
term contract basis can be said to be a Government servant. UPSC v. Girish Jayantilal, AIR
2006 SC 1165.

The first decision on the point is State of Assam v. Kanak Chandra Dutta MANU/SC/
0274/1966

There is a relationship of master and servant between the State and a person said to be
holding a post under it. The existence of this relationship is indicated by the State's
right to select and appoint the holder of the post, its right to suspend and dismiss him,
its right to control the manner and method of his doing the work and the payment by it
of his wages or remuneration. A relationship of master and servant may be established
by the presence of all or some of these indicia, in conjunction with other
circumstances and it is a question of fact in each case whether there is such a relation
between the State and the alleged holder of a post.

The question as to who can be said to be holder of civil post under the Government was
examined by a Constitution Bench in State of Gujarat v. Raman Lal Keshav Lal MANU/SC/

 0346/1983 : (1983)ILLJ284SC and after review of several earlier decisions the Bench
recorded its conclusions as under:

...We do not propose and indeed it is neither politic nor possible to lay down any
definitive test to determine when a person may be said to hold a civil post under the
Government. Several factors may indicate the relationship of master and servant.
None may be conclusive. On the other hand, no single factor may be considered
absolutely essential. The presence of all or some of the factors, such as, the right to
select for appointment, the right to appoint, the right to terminate the employment, the
right to take other disciplinary action, the right to prescribe the conditions of service,
the nature of the duties performed by the employee, the right to control the
employee's manner and method of the work, the right to issue directions and the right
to determine and the source from which wages or salary are paid and a host of such
circumstances, may have to be considered to determine the existence of the
relationship of master and servant. In each case, it is a question of fact whether a
person is a servant of the State or not.

The main object of Article 16 is to create a constitutional right to equality of opportunity and
employment in public offices. The words "employment" or "appointment" cover not merely
the initial appointment but also other attributes of service like promotion and age of
superannuation etc.

The appointment to any post under the State can only be made after a proper advertisement
has been made inviting applications from eligible candidates and holding of selection by a
body of experts or a specially constituted committee whose members are fair and impartial
through a written examination or interview or some other rational criteria for judging the
inter se merit of candidates who have applied in response to the advertisement made.

A regular appointment to a post under the State or Union cannot be made without issuing
advertisement in the prescribed manner which may in some cases include inviting
applications from the employment exchange where eligible candidates get their names
registered.

 Any regular appointment made on a post under the State or Union without issuing
advertisement inviting applications from eligible candidates and without holding a proper
selection where all eligible candidates get a fair chance to compete would violate the
guarantee enshrined under Article 16 of the Constitution.

(See B.S. Minhas v. Indian Statistical Institute and Ors. MANU/SC/0320/1983 :

(1984)ILLJ67SC ).

A private employer in India enjoys almost a complete freedom to select and appoint anyone
he likes and there is no statutory provision mandating advertisement of the post or selection
being made strictly on merit, even where some kind of competitive examination is held. A
private employer has absolute liberty to appoint a less meritorious person. Except those who
are covered by the definition of "workman" and are governed by the provisions of Industrial
Disputes Act or any such allied enactment, an employee working in a private establishment
normally does not enjoy any statutory protection regarding his tenure of service.

The nature of right possessed by a Government servant and also his status after his
appointment to a post under the Government was considered by a Constitution Bench in
Roshan Lal Tandon v. Union of India MANU/SC/0328/1967 : (1968)ILLJ576SC and it was
held as under in para 6 of the reports:

6. ...It is true that the origin of Government service is contractual. There is an offer
and acceptance in every case. But once appointed to his post or office the Government
servant acquires a status and his rights and obligations are no longer determined by
consent of both parties, but by statute or statutory rules which may be framed and
altered unilaterally by the Government. In other words, the legal position of a
Government servant is more one of status than of contract. The hall-mark of status is
the attachment to a legal relationship of rights and duties imposed by the public law
and not by mere agreement of the parties. The emolument of the Government servant
and his terms of service are governed by statute or statutory rules which may be
unilaterally altered by the Government without the consent of the employee. It is true
that Article 311 imposes constitutional restrictions upon the power of removal granted
to the President and the Governor under Article 310. But it is obvious that the

 relationship between the Government and its servant is not like an ordinary contract
of service between a master and servant. The legal relationship is something entirely
different, something in the nature of status. It is much more than a purely contractual
relationship voluntarily entered into between the parties. The duties of status are fixed
by the law and in the enforcement of these duties society has an interest. In the
language of jurisprudence status is a condition of membership of a group of which
powers and duties are exclusively determined by law and not by agreement between
the parties concerned.

The matter is clearly stated by Salmond and Williams on Contracts as follows:

So we may find both contractual and status-obligations produced by the same

transaction. The one transaction may result in the creation not only of obligations
defined by the parties and so pertaining to the sphere of contract but also and
concurrently of obligation defined by the law itself, and so pertaining to the sphere of
status. A contract of service between employer and employee, while for the most part
pertaining exclusively to the sphere of contract, pertains also to that of status so far as
the law itself has seen fit to attach to this relation compulsory incidents, such as
liability to pay compensation for accidents. The extent to which the law is content to
leave matters within the domain of contract to be determined by the exercise of the
autonomous authority of the parties themselves, or thinks fit to bring the matter within
the sphere of status by authoritatively determining for itself the contents of the
relationship, is a matter depending on considerations of public policy. In such
contracts as those of service the tendency in modern times is to withdraw the matter
more and more from the domain of contract into that of status." (Salmond and
Williams on Contracts, 2nd edition, p.12)

Union Public Service Commission vs. Girish Jayanti Lal Vaghela and Ors. (02.02.2006 -
SC) : MANU/SC/8003/2006

Permanent Nature

 The civil services form a part of the executive. While the ministers, who are part of the
executive, are temporary and are re-elected or replaced by the people by their will (through
elections), the civil servants are the permanent part of the executive.

British period

Colonial administration was largely a police and judicial system for the protection of life and
property and also a simple system of transport and communication for the export of raw
material to England. The principal agency for the performance of these activities was the
Indian Civil Service which was a centralised and neatly-integrated hierararchy of permanent
officials.

Following Lord Macaulay’s Report of the Select Committee of British Parliament, the
concept of a merit based modern Civil Service in India was introduced in 1854. The
Report recommended that patronage based system of East India Company should be replaced
by a permanent Civil Service based on a merit based system with entry through competitive
examinations. For this purpose, a Civil Service Commission was setup in 1854 in London
and competitive examinations were started in 1855. Initially, the examinations for Indian
Civil Service were conducted only in London.

Independence of India

Independence India has brought about political changes the character of civil service and has
completely transformed the character and role of Indian civil service because of the three
reasons. Firstly, the colonial system of government has surrendered itself to a nationalistic
republican order; secondly, the cameralistic pattern of administration has given place to a
democratic set-up; and thirdly, a laissez faire doctrine has yielded to a socialistic pattern of
society1. (A. R. TYAGI)

The civil servant is no longer the ruler of the country, but only its administrator, policy-
formulation being now the function of the representatives of the people. His sole duty is to
carry out the public will, as expressed in the Statutes of the Parliament and the Orders of the
Chief Executive. In a Parliamentary democracy, as ours is, a civil servant has two roles to

1ROLE OF CIVIL SERVICE IN INDIA Author(s): A. R. TYAGI Source: The Indian Journal of Political
Science , October-December 1958, Vol. 19, No. 4 (October-December 1958), pp. 349-356

 play. In the first place, he is an expert advisor to the minister, and in the second, manager of
his administrative unit.

Advisory role

Defining the advisory role of the civil servant, Sir Warren Fisher, sometimes Permanent
Secretary to the British Treasury, has said, -'Determination of policy is the function of
Ministers, and once a policy is determined it is the unquestioned and unquestionable business
of the civil servant to strive to carry out that policy with precisely the same energy and
precisely the same good will whether he agrees with it or not. That is axiomatic and will
never be in dispute.

Without fear and favour

Civil servants do their business without fear or favour, irrespective of whether the advice thus
tenderd may accord or not with the minister's initial view.

Servant of the people

Secondly, the civil servant in a democratic administration stands to the people in the
relationship of a servant.

The third impact of democracy on the civil service is on its internal relationship. The old
concepts of hierarchy and unity of command are ill-suited to a democratic system.

Role of a civil servant in a welfare state

In such a dynamic state, the civil servant's role also has become more creative than sedative,
and more positive than negative. His is what Prof. Burnham calls the "managerial role. He is
every day called upon to take decisions on technical issues of policy affecting a large class of
population, to manage big industries and corporations, to control finance and trade, to
regulate the entire economic and financial life of the community, to organize and apply
research for industrial, agricultural and defence purposes, to under- take community projects
in the social and cultural fields and to push the frontiers of technological and«scientific
research farther and farther.

2. Public employment and Doctrine of privilege

 Public employment granted as a privilege. It is a gift.

Holms’ dictum is that “petitioner may have constitutional right to talk polities but he has no
constitutional right to be a policeman.” McAulifee v. New Bedford 1892

Under this theory, when a citizen accepts public employment he voluntarily accepts all the
conditions which go with it. Although these conditions may interfere with the employee’s
constitutional rights, his rights are not violated in the constitutional sense because his
acceptance of these restrictions is voluntarily rather than compelled.

Fursman v. Chicago, 278

(1917), where it was held: "The [school] board has the absolute right to decline to employ or
reemploy any applicant for any reason whatever, or for no reason at all ... It is no
infringement upon the constitutional rights of anyone for the board to decline to employ
him. ... and it is immaterial whether the reason for the refusal . . . is because the applicant is
married or un- married, is of fair complexion or dark, is or is not a member of a trades union,
or whether no reason is given for such refusal."

In recent years, the doctrine of privilege has been replaced by that of "substantial interest."
The latter doctrine holds that there exist substantive constitutional rights which may not be
abridged by the state without a showing of actual necessity, notwithstanding the absence of
any constitutional right to public employment. Civil service removals consequently can be in
violation of the constitutional requirement of procedural due process. While the doctrine of
privilege tended to maximize the perceived incompatibility between the roles of citizen and
civil servant, the newer doctrine has tended to minimize this incompatibility by bringing the
constitutional rights of civil servants closer to those of other citizens. The doctrine of
substantial interest is also of political importance because it provides the judicial branch of
the government with a means of taking a more active part in determining the nature of public
employment.

The first important loyalty-security case to reach the Supreme Court was United States v.
Lovett,' which involved a provision in the 1943 Urgent Deficiency Appropriations Act'
prohibiting the payment of any future compensation to three civil servants because of their
alleged disloyalty.'
7

 The Court held the Act to be a bill of attainder and unconstitutional because it was ". ..
punishment without the safeguards of a judicial trial and 'determined by no previous law
or fixed rule.' "'s The case therefore established the principle that although there was no
constitutional right to public employment, the government was not free to proscribe anyone
from such employment in the absence of sixth amendment procedures or a fixed rule.

Political neutrality

Employees first amendment rights were not violated because ... the plain hard fact is that so
far as the Constitution is concerned, there is no prohibition against the dismissal of
Government employees because of their political beliefs, activities or affiliations....

The First Amendment guarantees free speech and assembly, but it does not guarantee
Government employ.

Of course, no one has a constitutional right to a job. But every citizen has a right to a fair trial
when his government seeks to deprive him of the privileges of first class citizenship.

3. Political neutrality of civil servants

In USA it was the product of political and administration dichotomy. Process of policy
making or decision is different from the process of administration and execution.

Senior civil servants should necessarily reframe from all political activities that would
adversely affect their ability to perform their official duties fairly or that would tend to
identify them personally with a political party or its policies.

The civil servants should make no public or private statements to the press except for a
purely formal nature. He should make no public speech of a political or controversial
character

The doctrine of political sterilisation of civil servants is primarily the product of British
parliamentary democracy which emphasizes harmonious coordination between the political
Masters and administration. India followed the legacy of British doctrine of political
neutrality of public administration.

Socialistic Democratic State

Task of civil servants in India is a gigantic one to implement Indian’s goal of socially
democratic welfare state. Civil services in a democratic socialist order cease to be merely a

 policeman or merely a steel frame upholding the legal structure. Outlining the role of a civil
service in our democracy

late GB Pant once observed the new tasks of civil servants are therefore all comprehensive
and include planning control and guidance of entire economic as well as social activities.

Every ounce of their energy, their intellect, their capacity, has to be devoted to the Service of
their masters, the people.

4. Article 309

In Roshan Lal v. Union of India AIR 1967 SC 1889, Constitution Bench of the Supreme
Court authoritatively laid down the proposition that although the origin of government
services is contractual – there being an offer and acceptance in every case – yet, once
appointed to his post or office, the government servant acquires a status and his rights and
obligations are no longer determined by consent of both parties but by statute or statutory
rules which might be altered unilaterally by the government.

Until provision is made by an appropriate legislature under Article 309, rules on these matters
may be made by the executive as laid down in the proviso. The rule-making power of the
government is identical with that of the legislature.

The constitution does not aim at providing detailed rules for recruitment or conditions of the
services of the Union or the states. The power is left to the respective legislatures (Entry 70 of
List I and 41 of List II). The power of appointment belonging to the Executive will thus be
subject to legislative control.

Subject to provisions of the Constitution – if any rule contravenes any of the provisions of the
Constitution including the fundamental rights, art. 14, 15, 16, 19, 299, 234, 310 (1), 311(7),
or 311 (2), the rule shall be void. It also satisfied as equal pay for equal work under Article 39
(d).

Similarly, there are other provision in the Constitution, which empower other authorities to
make rules relating to the conditions of service of certain classes of public servants, eg. Art
98 and 187 – relating to staff of each house of parliaments and of a state legislature, Article
146 (2) – relating to officers of Supreme Court, Article 148 (5) – persons serving in the
Indian Audit and Accounts Department, Art 299 (2) – officers of High court. Hence, Article
309 shall have no application to these classes of government servants.

But article 235 does not confer upon a High Court the power to make rules relating to
conditions of service of judicial officers attached to the District and subordinate courts, which
power belongs to the State legislature and the Governor.

 The rule making function is a legislative not executive or quasi-judicial function so that no
hearing is necessary for making or changing Rules made under Article 309.

In C. Sankaranarayanan v. State of Kerala AIR 1971 SC 1997, the nature of power to

regulate the conditions of service of teachers in government and government-aided schools
was in issue. The government had issued an order raising the age of retirement from 55 to 58
years after a memorandum submitted by the appellants in this regard. The rules framed under
the Kerala Education Act, 1958 were amended accordingly. Subsequently, in supersession of
its earlier order, the government reduced the age of retirement to 55 years, and made
necessary amendments in the rules also. It was argued that the earlier order raising the age of
retirement to 58 years was issued as a result of an understanding which could be considered
as a binding contract or agreement between the government and the teachers, and therefore,
cannot be unilaterally altered. The Supreme Court rejected this argument and observed that
the powers of the Governor under Article 309 to regulate the conditions of service cannot be
fettered by an agreement or contract.

A. K. Krishnan v. State of Karnataka AIR 1998 SC 1050

The occupied field principle – the state government of Karnataka constituted a Fire Service
under the Fire Force Act, 1964. Section 39 of that Act conferred rule making power on the
State Government and certain service rules were framed by the State in the exercise of such
power. There was also in force in the State general rules relating to Government Service
namely, the Karnataka Civil Services (General Recruitment) Rules 1977 which had been
framed under Article 309 of the Constitution.

Conditions of service

The expression “condition of service” is of wide import. It means all those conditions which
regulate the holding of a post by a person right from the time of his appointment till his
retirement and even beyond it in matters like pension etc. (State of MP v. Shardul Singh
1970)

Appointment and recruitment

Appointment means an actual act of posting a person to a particular office. Recruitment is an

initial process that may lead to eventual appointment in the service.

Whether compulsory retirement is amount to punishment to attract Article 311 of the

Constitution?

Probation – in Punjab v. Dharam Singh 1968 held that where an employee had been
continued in service beyond a specified probationary period, then in the absence of an order
confirming him in that post, it was not possible to hold that he should be taken to been

10

 confirmed. This was because on his continuing in service, a necessary implication arose that
the period of probation had been extended.

The scheme is that the conditions of service should be regulated by the legislature and the
executive law making should be resorted to and remain operative only till legislatures have
made such laws.

5. Doctrine of pleasure

Black's Dictionary defines 'Pleasure Appointment' as the assignment of someone to

employment that can be taken away at any time, with no requirement for notice or
hearing.

The Pleasure Doctrine has its origin in English law, with reference to the tenure of
public servants under the Crown2. In Dunn v. Queen 1896 (1) QB 116 the Court of
Appeal referred to the old common law rule that a public servant under the
British Crown had no tenure but held his position at the absolute
discretion of the Crown. It was observed:

The Crown may put an end to the employment at its pleasure.

In Shenton v. Smith 1895 AC 229 the Privy Council explained that the pleasure
doctrine was a necessity because, the difficulty of dismissing those servants whose
continuance in office was detrimental to the State would, if it were necessary to prove
some offence to the satisfaction of a jury (or court) be such, as to seriously impede
the working of the public service.

State of Bihar v. Abdul Majid 1954 SCR 786 another Constitution Bench
explained the doctrine of pleasure

The true scope and effect of this expression is that even if a special contract
has been made with the civil servant the Crown is not bound thereby. In other
words, civil servants are liable to dismissal without notice and there is no right
of action for wrongful dismissal, that is, that they cannot claim damages for
premature termination of their services.

A Constitution Bench of the Supreme Court in Union of India v. Tulsiram Patel

(1985) 3 SCC 398 explained the origin of the doctrine thus:

In England, except where otherwise provided by statute, all public officers and
servants of the Crown hold their appointments at the pleasure of the Crown.
When a person holds office during the pleasure of the Crown, his appointment
can be terminated at any time without assigning cause. The exercise of
pleasure by the Crown can, however, be restricted by legislation enacted by
Parliament because in the United Kingdom Parliament is sovereign....

2 B.P. Singhal vs. Union of India (UOI) and Ors. (07.05.2010 - SC)

11

 Doctrine of pleasure in a democracy ruled by law

There is a distinction between the doctrine of pleasure as it existed in a feudal

set-up and the doctrine of pleasure in a democracy governed by rule of law. In
a nineteenth century feudal set-up unfettered power and discretion of the
Crown was not an alien concept. However, in a democracy governed by Rule
of Law, where arbitrariness in any form is eschewed, no Government or
Authority has the right to do what it pleases. The doctrine of pleasure does not
mean a licence to act arbitrarily, capriciously or whimsically. It is presumed
that discretionary powers conferred in absolute and unfettered terms on any
public authority will necessarily and obviously be exercised reasonably and for
public good3.

Whether the doctrine is justifiable in the context of modern employment

relationship?

The Constitution refers to offices held during the pleasure of the President (without
restrictions), offices held during the pleasure of the President (with restrictions) and
also appointments to which the said doctrine is not applicable.

1. The Articles in the Constitution of India which refer to the holding of office
during the pleasure of the President without any restrictions or limitations are
Article 75(2) relating to ministers, Article 76(4) relating to Attorney General
and Article 156(1) relating to Governors. Similarly Article 164(1) and 165(3)
provides that the Ministers (in the States) and Advocate General for the State
shall hold office during the pleasure of the Governor.

2. Article 310 read with Article 311 provide an example of the application of 'at
pleasure' doctrine subject to restrictions. Clause (1) of Article 310 relates to
tenure of office of persons serving the Union or a State, being subject to
doctrine of pleasure. However, Clause (2) of Article 310 and Article 311
restricts the operation of the 'at pleasure' doctrine contained in Article 310(1).
For convenience, we extract below Clause (1) of Article 310 referring to
pleasure doctrine and Clause (2) of Article 311 containing the restriction on
the pleasure doctrine:

3. The Constitution of India also refers to other offices whose holders do not
hold office during the pleasure of the President or any other authority. They
are: President under Article 56; Judges of the Supreme Court under Article
124; Comptroller & Auditor General of India under Article 148; High Court

3 B.P. Singhal v. Union of India (UOI) and Ors. (07.05.2010 - SC) : MANU/SC/0350/2010

12

 Judges under Article 218; and Election Commissioners under Article 324 of
the Constitution of India. In the case of these constitutional functionaries, it is
specifically provided that they shall not be removed from office except by
impeachment, as provided in the respective provisions.

Constitution of India thus provides for three different types of tenure: (i) Those who
hold office during the pleasure of the President (or Governor); (ii) Those who hold
office during the pleasure of the President (or Governor), subject to restrictions; (iii)
Those who hold office for specified terms with immunity against removal, except by
impeachment, who are not subject to the doctrine of pleasure. Constitutional
Assembly debates clearly show that after elaborate discussions, varying levels of
protection against removal were adopted in relation to different kinds of offices. We
may conveniently enumerate them: (i) Offices to which the doctrine of pleasure
applied absolutely without any restrictions (Ministers, Governors, Attorney General
and Advocate General); (ii) Offices to which doctrine of pleasure applied with
restrictions (Members of defence service, Members of civil service of the Union,
Member of an All-India service, holders of posts connected with defence or any civil
post under the Union, Member of a civil service of a State and holders of civil posts
under the State); and (iii) Offices to which the doctrine of pleasure does not apply at
all (President, Judges of Supreme Court, Comptroller & Auditor General of India,
Judges of the High Court, and Election Commissioners). Having regard to the
constitutional scheme, it is not possible to mix up or extend the type of protection
against removal, granted to one category of offices, to another category.4

The doctrine of pleasure as originally envisaged in England was a prerogative power

which was unfettered. It meant that the holder of an office under pleasure could be
removed at any time, without notice, without assigning cause, and without there
being a need for any cause. But where rule of law prevails, there is nothing like
unfettered discretion or unaccountable action. The degree of need for reason may
vary. The degree of scrutiny during judicial review may vary. But the need for reason
exists. As a result when the Constitution of India provides that some offices will be
held during the pleasure of the President, without any express limitations or
restrictions, it should however necessarily be read as being subject to the
"fundamentals of constitutionalism". Therefore in a constitutional set up, when an
office is held during the pleasure of any Authority, and if no limitations or
restrictions are placed on the "at pleasure" doctrine, it means that the holder of the
office can be removed by the authority at whose pleasure he holds office, at any time,
without notice and without assigning any cause. The doctrine of pleasure, however, is
not a licence to act with unfettered discretion to act arbitrarily, whimsically, or
capriciously. It does not dispense with the need for a cause for withdrawal of the
pleasure. In other words, "at pleasure" doctrine enables the removal of a person

4 B.P. Singhal v. Union of India (UOI) and Ors. (07.05.2010 - SC) : MANU/SC/0350/2010

13

 holding office at the pleasure of an Authority, summarily, without any obligation to

give any notice or hearing to the person removed, and without any obligation to
assign any reasons or disclose any cause for the removal, or withdrawal of pleasure.
The withdrawal of pleasure cannot be at the sweet will, whim and fancy of the
Authority, but can only be for valid reasons.5

B.P. Singhal vs. Union of India (UOI) and Ors. (07.05.2010 - SC) : MANU/SC/
0350/2010

6. Article 311- Constitutional safeguards to civil servants

Article 311 puts certain restrictions on the absolute power of the President or Governor for
dismissal, removal or reduction in rank of an officer.

These protections are not available against defence personals.

This article places two restrictions on the prerogative of dismissal at pleasure. They are:

1. Employees shall not be dismissed or removed by an authority subordinate to that by

which they were appointed; and
2. No such person shall be dismissed or removed or reduced in rank except after an
enquiry as provided in clause (2).
Whether the termination of service is amount to punishment or not?
These safeguards are not applicable to members of defence forces or to any posts connected
with defence. Their employment can be terminated without assigning any reasons. Even a
civilian, holding a post in a department connected with defence, such as Military Engineering
Service, or Military Farm or an ordinance factory, or a naval base connote claim any right
under this article, even if he is not governed by the laws relating to the armed forces, because
he is not a member of the civil service of the Union or a person holding a civil post under the
Union.

Parshotam Lal Dhingra v. Union of India the Supreme court held that the provisions of
Article 311 are applicable both to permanent and temporary servants. Article 310 make no
distinction between the two classes.

Article 311 does not apply to probationers. It applies to them only after they are confirmed in
the post the expiry of the period of probation or otherwise.

The government employee dismissed under these provisions can approach either tribunals
like the state administrative tribunal or Central Administrative Tribunal (CAT) or the courts.

5 Ibid

14

 Suspension of a govt servant from service is neither dismissal nor removal and is not,
therefore, within the scope of protection of article 311 of the Constitution. Loss of job or rank
of a temporary servant resulting from abolition of the post would not attract article 311 (2).

No removal by subordinate authority

The first safeguards is that no member of a civil service or holding a civil post can be
dismissed or removed by any authority subordinate to the authority by which he was
appointed.

Suraj Narain Anand v. North-West Frontier Province 1942, a case under the Government of
India Act, 1935, the plaintiff was appointed a sub-Inspector in the police force of the North-
West Frontier Province by the Inspector General of Police. He was dismissed by the Deputy
Inspector General of Police of that Province. The Federal court held that as the plaintiff had
been appointed by the Inspector General of Police, the Deputy Inspector General of Police
being only a subordinate authority not competent to dismiss him.

Article 311 (1) cannot be read as implying that the removal must be by the same authority
who made the appointment or by his direct superior. It is enough that the removal authority is
of the same rank or grade.

Reasonable opportunity to defend –

Civil servant shall not be dismissed or removed or reduced in rank except after an enquiry in
which he has been informed of the charges against him and given a reasonable
opportunity of being heard in respect of those charges. This is accordance to the rule of
natural justice that no man should be condemned without of hearing.

The protection of Article 311 (2) can be available only where dismissal, removal or reduction
in rank is sought to be inflicted by way of punishment and not otherwise.

What do you mean the reasonable opportunity?

1. An enquiry should have been held in accordance with the rules of natural justice;
2. The enquiry should have been conducted fairly and properly.
Although an enquiry must be conducted in accordance with the principles of natural justice,
these principles are not fixed principles. What principles of natural justice should be applied
depends on the facts and circumstances of that case.

Cross-examination

Justice Venkatarama Aiyer said in Union of India v. T.R. Varma AIR 1957 SC 882, 885

Rules of natural justice require that a party should have the opportunity of adducing
all relevant evidence on which he relies, that the evidence of the opponent should be

15

 taken in his presence, and that he should be given the opportunity of cross-examining
the witnesses examined by that party, and that no materials should be relied on against
him without his being given an opportunity of explaining them. It is hardly necessary
to emphasise that the right to cross-examine the witnesses who give evidence against
him is a very valuable right, and if it appears that effective exercise of this right has
been prevented by the enquiry officer by not giving to the officer relevant documents
to which he is entitled, that inevitably would mean that the enquiry had not been held
in accordance with the rules of natural justice.

Kuldeep Singh v. Commr. of Police AIR 1999 SC 677

In a case where the complainant’s witnesses were not produced before the enquiry officer but
only their written statements were produced on the plea that the delinquent civil servant had
removed them from the scene, the court held that the requirement of reasonable opportunity
was not satisfied because the delinquent could not test the truth of the statements through
cross-examination.

However, the application of the principles of natural justice may be excluded by legislation or
by a constitutional provision such as the second proviso of Article 311 (2). (Union of India v.
Tulsiram Patel AIR 1985 SC 1416

Compulsory retirement

A person who is compulsorily retired in accordance with the service rules cannot claim any
right under this article because the retirement is not by way of punishment.

Two exceptions to article 311 (2)

1. If a permanent public servant is asked to retire on the ground that he has reached the
age of superannuation which has been reasonable fixed, Article 311 (2) does not
apply, because such retirement is neither dismissal nor removal of the public servant;
and
2. If a permanent public servant is compulsorily retired under the rules.
Test for removal, dismissal or reduction of rank by way of punishment

Parshotam Lal Dhingra v. Union of India AIR 1958 SC 36

It has laid down two tests for determining if the dismissal, etc., is by way of punishment:

1. Whether the servant had a right to the post or the rank, or

2. Whether he has been visited with evil consequences.
In Moti Ram Deka v. North East Frontier Railway AIR1964 sc 600 Supreme court observed
that a person who held a permanent post had a right to continue in service, subject to the rules

16

 of superannuation and compulsory retirement. If for any other reason that right was taken
away and he was asked to leave his service, the termination of his services would be the
nature of punishment so that it would be comply Article 311 of the Constitution.

Whether the abolition of posts attracts Article 311? The court in N. Ramanatha Pillai v. State
of Kerala AIR 1973 SC 2641 explained that the power to create and abolish a post is a matter
of governmental policy which is determined by the exigencies of circumstances and
administrative necessity, and such matters are decided by the government in the interests of
administration and the general public.

It was stated that with regard to the abolition of post and consequential termination no
charges could normally be framed and no enquiry could be held.

Temporary post

Appointment to a post on an officiating basis is, from the nature of appointment, itself of a
transitory nature and in the absence of any contract or a specific rule regarding the conditions
of service to the contrary, the implied term of such an employment is that it is terminable at
any time. The government servant so appointed acquires no right to the post.

Temporary servants are entitled to protection of Article 311 (2) in the same manner as
permanent government servants, if the government takes action against them by giving one of
the three punishments, that is, dismissal, removal or reduction in rank.

7. Recruitment and appointment

Recruitment and appointment are distinct and separate concept. Appointment is the end result
of the process of recruitment.

Recruitment is a comprehensive term and includes any method provided for inducting a
person in public service. Appointment, selection, promotion, deputation and all well known
methods of recruitment.

The term recruitment connotes and clearly signifies enlistment, acceptance, selection or
approval for appointment. It is an initial process of an appointment. Notifying the
vacancies, inviting applications, their scrutiny, finalisation of list of such eligible candidates
as would be put to test, their written and oral tests and interview, selection and approval for
appointment, are all different steps in the process of recruitment.

Appointment means an actual act of posting a person to a particular office.

Basant Lal Malhotra v. State of Punjab AIR 1969 P & H 178 – different between
recruitment and posting

17

 Before actual appointment is ordered, a candidate has to undergo such periods of training as
are required of him under rule. The term 'recruitment' connotes and clearly signifies
enlistment, acceptance, selection or approval for appointment and not actual appointment or
posting in service while 'appointment' means an actual act of posting a person to a particular
office.

The policy decision of the Government regarding recruitment is not amenable to judicial
review unless the same is arbitrary. (State of Orissa v. Bhikari Charan Khuntia AIR 2003 SC
4588) Court should not lay down modes and procedures for recruitment. General policy
decision of the Government to abolish, reduce posts or recruitment cannot be challenged
unless it is shown that the decision is mala fide, the exercise of screening of posts have been
done in arbitrary manner, vitiated by non-application of mind or influenced by extraneous
reasons.

A Constitution Bench of this Court in Shankarsan Dash v. Union of India, [1991] 2 SCR
567 held that candidates whose names appear in the merit list do not acquire indefeasible
right of appointment if vacancies exist. The State is under no obligation to fill up all or any of
the vacancies, unless the relevant recruitment rules so indicated.

Though, the State is under no legal duty to fill up all or any of the vacancies, it does not mean
that State has licence of acting in an arbitrary manner. The decision not to fill up the
vacancies has to be taken bona fide for proper reasons.

Nature of power of appointment

The power of appointment includes the power to make interim appointments. It is also
includes a power not to make the appointment and it is left to the appointing authority
subject, of course, to there being no statutory provision to the contrary, to fill up the
vacancies or not at a particular point of time.

It is obvious that without the existence of posts or vacancies in such posts, the question of
recruitment could not arise. Posts can be created by administrative orders so long as they are
not inconsistent with any statutory rules.

Nor can a court direct the employer to create posts to be filled by particular mode of
recruitment. Judicial review can be exercised only if the action of the employer runs contrary
to the Constitution, to statutory provisions or is patently arbitrary or illegal6. Creation of
posts is the prerogative of the executive.

It is well settled that generally the employer is not bound to fill up any post or posts.
Whether a particular vacancy or what number of vacancies will be filled is a managerial

6 Official Liquidatory v Dayanand (2008) 10 SCC 1

18

 function depending upon administrative necessity. It might happen that the Government for
financial or other administrative reason might not fill up any vacancy.

It is settled law that the Government need not immediately notify vacancies as soon as they
arise. It is a well settled principle in service jurisprudence that even when there is a vacancy,
the state is not bound to fill up such vacancy nor is there any corresponding right vested in an
eligible employee to demand that such vacancies be filled up.

Process of recruitment

Sources of recruitment – it may be categorized into internal and external sources i.e., direct
appointment, by promotion, or by absorption/ transfer – direct recruitment – appointment
made otherwise than by promotion.

External sources would comprise all eligible persons who are not already in service in
the organisation to which recruitment is to be made. They are sometimes referred to as
candidates from the open market. It is well settled that it is fully within the competence of the
Govt. to decide as a matter of policy the sources from which the personnel required for
manning the services are to be drawn.

Laying down qualifications for recruitment

Inviting applications from qualified candidates

Making selection

Whether anganwadi workers are government employees or not?

State of Karnataka v. Ameerbi (2007) 11 SCC 681

Where the posts of anganwadi workers were not statutory but were created under non-
statutory scheme and the workers did not carry on any function of the state and no
recruitment rules were followed in their appointment and the posts were not created by the
Central Government or the State government in exercise of the powers under Article 77 and
162 of the Constitution of India, rules framed under Article 309 are not attracted and hence
the workers were free to contest an election whereas a holder of civil post is not so entitled.

8. Public Service Commission

Functions

Chinnappa Reddy J. in Neelima Shangla v State of Hariyana 1986

The duty of the Public Service Commission is confined to holding the writing
examination, holding the viva voce test and arranging the order or merit according to
marks among the candidates who have qualified as a result of the written and the viva

19

 voce tests. Thereafter the PSC is required to publish the result in the Gazette and,
apparently, to make the result available to the Government. The PSC is not required to
make any further selection from the qualified candidates and is, therefore, not
expected to withhold the names of any qualified candidates. The duty of the Public
Service Commission is to make available to the Govt a complete list of qualified
candidates arranged in order of merits. Thereafter the govt is to make the selection
strictly in the order in which they have been placed by the Commission as a result of
the examination.

Appointment must be strictly on merit.

Government consultation with the Commission is not mandatory – it has been held in a
number of decisions of the Supreme Court that the duty to consult the public service
commission in the matter of appointment to a civil post by govt is not mandatory but
directory and absence of such consultation will not render any appointment made by the govt
invalid or illegal. (State of UP v. Manbodhan Lal Srivastava AIR 1957SC 912) Article 320
(3) “shall be consulted” is not mandatory but directory.

Selection by Commission is only a recommendation – it is only a recommendation and the

final authority for appointment is the Government. However if it chooses not to accept the
recommendation of the Commission the Constitution enjoins the Govt to place it on the table
of the Legislative Assembly with its reasons and report for doing so. The Government is
made answerable to the House for any departure by reason of Article 323.

Although the recommendation of a Service Commission is not binding on the authority, it has
also been held that the advice for appointment made by the Public Service Commission
cannot be kept pending for an unduly long period since that would itself be arbitrary and
violative of the equality of opportunity under Articles 14 and 16 of the Constitution.

9. Nature of appointment

Appointment may be in a substantive capacity or in an officiating capacity

In government service there are different cadres. Cadre means the strength of a service or a
part of a service sanctioned as a separate unit. Each of these cadres consists of a number of
posts. These posts may be permanent or temporary.

Appointment to a permanent post may be substantive or on probation or on an officiating

basis.

A substantive appointment to a permanent post in public service confers, normally on the

servant so appointed, a substantive right to the post and he becomes entitled to hold a ‘lien’
on the post. (Fundamental Rules, s. III, Ch. II. r. 9 (13)

20

 Well settled that a person cannot be appointed substantively to a post over which an
employee has an existing lien.

An appointment to officiate in a permanent post is usually made when the incumbent

substantively holding that post is on leave or when the permanent post is vacant and no
substantive appointment has yet been made to that post. Such an officiating appointment
comes to an end on the return of the incumbent substantively holding the post from leave in
the former case or on a substantive appointment being made to that permanent post in the
latter case or on the service of a notice of termination as agreed upon or as may be reasonable
under the ordinary law.

Compassionate appointment

Compassionate appointment is an exception to the general rule that appointment to public

service should be on merits and through open invitation. In such cases, the appointment is
given to a member of the family of the deceased employee by accommodating him in a
suitable vacancy.

10. Probation

An appointee on probation means that the appointee has been recruited on a trial basis for a
particular period.

Very often an appointment is initially made on probation. The reason as to why a period of
probation is prescribed and how such period has been understood in service jurisprudence has
been elaborately discussed by the Supreme Court in Ajith Singh v. State of Punjab AIR 1983
SC 494. – developing master servant relationship in public service where it became difficult
for the employer to dispense with the services of an employee without following certain
procedural safeguards like natural justice.

“A new recruit was put on test for a period before he is absorbed in service or gets a
right to take post. To this period, an employer to observe the work, ability, efficiency,
sincerity and competence of the servant and if he is found not suitable for the post, the master
reserved a right to dispense with his service without anything more during or at the end of the
prescribed period which is styled as period of probation”.

No right to the post – it is well settled that generally a probationer does not acquire any
substantive right to the post and cannot complain if his service is terminated at any time
during the probationary period i.e., before confirmation. It is a transitory character, and in the
absence of any special contract or special rule regulating the condition of service, the implied
term of such appointment is that it is terminable at any time.

The period of probation is normally provided by the service rules or the order of
appointment.

21

 Confirmation

A probationer is entitled to be considered for confirmation upon successful completion of

probation. On such confirmation he is considered to be substantively appointed or absorbed
in service and secures a right to the post.

There is a large area of discretion in deciding whether to confirm the services of a probationer
or not. But the decision not to confirm cannot be an irrational or arbitrary decision. for
example, it has been held that in the absence of any material to show that the work of the
probationer was not satisfactory, it was unreasonable and illegal to terminate his services.

Process of confirmation

If the confirmation is expressly made dependent upon the probationer fulfilling certain
objective criteria eg Passing a confirmation test, then his failure in the test would justify
denial of confirmation.

It is settled law that, generally, a confirmation order should be specifically issued. In other
words, the law does not recognise any automatic confirmation even though the original
period of confirmation is over and the probationer is permitted to continue to serve the
employer. In Sukhbans Singh v. State of Punjab AIR 1962 SC 1711 the Constitution Bench of
the Supreme Court firmly laid down:

“A probationer cannot automatically acquire the status of a permanent member of his service,
unless of course the rules under which he is appointed expressly provide for such a result.”

Seniority

Seniority, in service law, connotes the precedence or preference in position of an employee

over other employees similarly situated.

The New shorter oxford English dictionary define “The state quality of being senio r;
position or priority by reason of greater age, longer service, or higher rank,..”

Black’s Law Dictionary

“precedence or preference in position over others similarly situated. As used, for example,
with reference to job seniority, worker with most years of sevice is first promoted within
range of jobs subject to seniority.”

N. Chandramouli v. State of Mysor, 1970, “Sniority in simple English means a longer life
than of another thing or person taken for capmparison. In the case of a Governsdment
servant, it means the length of service. If the service of one person is longer that of another
the first named person is called senior to the other.”

22

 The Supreme Court has recognised that seniority confers a valuable right on the employee
and his entire future career at times is dependent upon such seniority. (Andhra Pradesh
Cooperative Oil Seeds Growers Federation Ltd v. D. Achyuta Rao 2007

Although seniority may not be a fundamental right but a civil right, the infringement of this
right is permissible only if there are validly framed rules to this effect.

Although length of service is the generally accepted norm for determining seniority, it is
obvious that in some cases length of service cannot be the basis for determining seniority e.g.
when two or more persons join a service on the same date. Therefore other norms like merit
or age have been adopted to meet such situations where the criteria of length of service
cannot be applied.

The question of seniority arises only in relation to employees who are similarly
circumstanced, i.e. where they are functioning in the same rank, grade or cadre.

Seniority and stoppage of increment are distinct and separate concepts. Stoppage of
increment is a penalty provided under most of the conduct rules for an employee’s
misconduct. Seniority has nothing to do with misconduct or penalty. If therefore, an
employee’s increment for one year was stopped by way of penalty after disciplinary
proceedings, such stoppage of increment will have no effect whatsoever on his seniority.

S. K. Sharma v. Haryana State Electricity Board 1988 – the appellant was visited with a
penalty resulting in depriving him of the monetary benefit of one increment for one year only.
Following there upon, the Electricity Board placed the juniors of the appellant above him in
the seniority list and confirmed him long after such juniors. The Supreme Court held that the
question of seniority had nothing to do with the penalty that was imposed upon the appellant
and it was apparent that for the same act of misconduct the appellant had been punished twice
i.e. first by the stoppage of one increment for one year and, second, by placing him below his
juniors in the seniority list. In other words the Court did not permit double jeopardy. (problem
question)

Relinquishment of Seniority

The conduct and surrounding circumstances (e.g. a teacher originally appointed in one
district, selected and appointed in another district in response to his own application for the
latter appointment) can be the basis of an inference of relinquishment of seniority for
attracting Rule 38 of Kerala State and Subordinate Services Rules.

Fairness demands that seniority position enjoyed by an incumbent cannt be disturbed after the
lapse of a long time, even assuming that the rival claimant has got a legally better claim.
(V.K.M. Pavithran v. State of Kerala 2010)

23

 It has been held that the competent authority can lay down any reasonable rule for
determining seniority and the Court is not competent to strike down such a rule on the ground
that in its opinion another rule would have been better or more appropriate. Reserve Bank of
India v. N. C. Paliwal AIR 1976 SC 2345 that when such a rule is challenged as violating Art.
14, 15 and 16, the only enquiry that the Court could make was whether the rule laid down by
the State was arbitrary and irrational so that it resulted in inequality of opportunity amongst
employees belonging to the same class.

Confidential reports

The confidential report of an employee are basically performance appraisals of the employee
and constitute vital service records in relation to his career advancement. The forms and
contents of such confidential reports are usually laid down in the service rules or in
administrative instructions.

Confidentiality is essential character

Objectivity and a dispassionate approach are also considered as essential

In Vithalrao v. State of Maharashtra (1973 Bombay High Court) the court observed that
maintenance of a confidential record of a Government servant is necessary in public interest.

“This record is primarily and predominantly intended for keeping the Government informed
of the required material about the servant, for deciding how best to exploit his talents for the
administration of the State, though incidentally it may affect the servant adversely. It is this
record which enables the government like any other master to make up its mind while
allotting work, places and promotions and in various other administrative fields”.

Annual confidential report and departmental enquiry

Puran Singh v. State of Punjab, 1981 Punjab and Haryana High Court observed that

“Whilst the former is specifically of rth internal assessment or estimate of the performance of
a public servant by his superiors over the period of one year, the latter is intrinsically
intended as the foundation for taking a punitive action against him if the charges come to be
proved. An annual confidential report is in essence subjective and administrative whilst a
departmental enquiry is inevitably objective and quasi judicial.”

Promotion

Promotion means advancing or raising an employee to a higher office or rank or post than the
one the employee was holding or to a higher scale of pay than the one the employee was
enjoying immediately before such promotion.

24

 The higher office or rank or post or scale is generally referred to as the promotional post or
scale as the case may be. The office or rank or post from which the employee is promoted is
referred to as the feeder post.

The higher post usually carries more responsibilities and higher pay. The promotional post is
generally a higher post with a higher pay than the feeder post.

Promotion is appointment to a different post carrying a higher scale of pay in this service.

Distinction between promotion and grant of selection grade

selection grade is essentially the sanction of a higher scale of pay in the same category of pos.
it is sanctioned with the object of providing incentive to employees having no outlets or very
limited outlets for promotion to higher posts. It carries a higher scale of pay even though
there are no changes in the duties.
A promotional post is a higher post with a higher grade. A selection grade confers entitlement
to higher pay but in the same post. it is intended to ensure that capable employees who may
not get a chance of promotion on account of Limited outlets of promotion should at least be
placed in the selection grade to prevent stagnation on the maximum of the scale.
The purpose for the selection grade appointment is to avoid stagnation or resultant frustration
of lack of promotional avenues.
Although an employee has no right to be promoted, he has a right to be considered for
promotion. This right to be considered for promotion is one of the matters relating to
employment or appointment within the meaning of Art. 16 (1) of the Constitution.
Different kinds of promotion
Although the general and most accepted connotation in service law is moving up to a higher
post or office thereby implying the existence of a vertical hierarchy of posts in the service,
yet there are certain non-vertical movements and non-post wise vertical movements which
are considered as promotion.
A useful test for determining whether a particular movement is a promotional movement or
not would be: Does the movement lead to a career advancement whether by way of office or
by way of emoluments? If the answer to both or either of the situations is on the affirmative,
then the movement must be considered as promotion.
Thus, asking an officer who substantively holds a lower post merely to discharge the duties of
a higher post cannot be treated as a promotion particularly when the officer does not get the
salary of the higher post although he might be remunerated by an allowance which in service
parlance is called a “charge allowance”.
Nature of movement
a. From a lower (i.e. feeder) post to higher post: vertical movement.
b. From a lower scale to higher scale : vertical movement.
Officiating promotion
A promotion may be granted on a regular basis or on an officiating basis. An officiating
promotion may be the prescribed method of granting promotion by the rules or conditions of

25

 service, at the first instance, to be followed by confirmation. It may granted by administrative

necessity. Such appointments are generally considered to be ex-cadre appointments. The
nature of the promotion would depend upon the rules or executive instructions operating in
the field.
A promotion on an officiating basis will not normally confer upon the promote a right to hold
the post, And unless duly regularized the employee is liable to be reverted to the substantive
post from which he was given officiating promotion at the end of such officiation.
Ad hoc promotion
The characteristics of ad hoc promotions are substantially the same as officiating promotions.
It may be given due to administrative exigencies or to meet emergent or unusual situations.
Such promotees do not have any substantive rights as promotees and their entire length of
service as ad hoc promotees cannot be counted for seniority.
Accelerated promotion
A scheme of accelerated promotion introduced for police personnel in recognition of their
outstanding work in the field of anti-extremist operation coupled with guidelines laid down to
check conferring of undue favour has been held to be valid. (Govt. A.P. v. G. Jaya Prasad
Rao (2007) 11 SCC 528)

11. Compulsory retirement

Baikuntha Nath Das v. Chief District Medical Officer, Baripada (1992) 2 SCC 299 wherein
it has been held that the order of compulsory retirement is not a punishment. The order of
compulsory retirement is in public interest and is passed on the subjective satisfaction of the
Government and is not liable to be quashed by the Court merely for the reason that
uncommunicated adverse remarks were taken into consideration.

This Court approved the earlier judgment of this Court reported as Union of India v. M. E.
Reddy (1980) 2 SCC 15 wherein it was held as under:

“12. An order of compulsory retirement on one hand causes no prejudice to the

government servant who is made to lead a restful life enjoying full pensionary and
other benefits and on the other gives a new animation and equanimity to the Services.
The employees should try to understand the true spirit behind the rule which is not to
penalise them but amounts just to a fruitful incident of the Service made in the larger
interest of the country. Even if the employee feels that he has suffered, he should
derive sufficient solace and consolation from the fact that this is his small contribution
to his country, for every good cause claims its martyr.”

A three Judge Bench of this Court reported as Union of India v. Dulal Dutt (1993) 2 SCC
179 examined the order of compulsory retirement of a Controller of Stores in Indian Railway.
It was held that an order of compulsory retirement is not an order of punishment. It is a

26

 prerogative of the Government but it should be based on material and has to be passed on the
subjective satisfaction of the Government.

A three Judge Bench of this Court in a judgment reported as State of Punjab v. Gurdas Singh
(1998) 4 SCC 92 considered the argument that the order of compulsory retirement was based
on material which was non-existent inasmuch as there were no adverse remarks against him
and if there were any such remarks, it should have been communicated to him. This Court
held as under:

“11. …..Before the decision to retire a government servant prematurely is taken the
authorities are required to consider the whole record of service. Any adverse entry
prior to earning of promotion or crossing of efficiency bar or picking up higher rank is
not wiped out and can be taken into consideration while considering the overall
performance of the employee during whole of his tenure of service whether it is in
public interest to retain him in the service. The whole record of service of the
employee will include any uncommunicated adverse entries as well.”

This Court also considered the “washed-off theory” i.e., the remarks would be wiped off on
account of such record being of remote past. Reliance was placed upon a three Judge Bench
judgment of this Court reported as Pyare Mohan Lal v. State of Jharkhand (2010) 10 SCC
693 and it was observed that:

“22. It clearly follows from the above that the clarification given by a two-Judge
Bench judgment in Badrinath [(2000) 8 SCC 395 : 2001 SCC (L&S) 13 : (2000) 6
Scale 618] is not correct and the observations of this Court in Gurdas Singh [(1998) 4
SCC 92 : 1998 SCC (L&S) 1004 : AIR 1998 SC 1661] to the effect that the adverse
entries prior to the promotion or crossing of efficiency bar or picking up higher rank
are not wiped off and can be taken into account while considering the overall
performance of the employee when it comes to the consideration of case of that
employee for premature retirement.

23. The principle of law which is clarified and stands crystallised after the judgment
in Pyare Mohan Lal v. State of Jharkhand [(2010) 10 SCC 693 : (2011) 1 SCC
(L&S) 550] is that after the promotion of an employee the adverse entries prior
thereto would have no relevance and can be treated as wiped off when the case of the
government employee is to be considered for further promotion. However, this
“washed-off theory” will have no application when the case of an employee is being
assessed to determine whether he is fit to be retained in service or requires to be given
compulsory retirement. The rationale given is that since such an assessment is based
on “entire service record”, there is no question of not taking into consideration the
earlier old adverse entries or record of the old period. We may hasten to add that while
such a record can be taken into consideration, at the same time, the service record of

27

 the immediate past period will have to be given due credence and weightage. For
example, as against some very old adverse entries where the immediate past record
shows exemplary performance, ignoring such a record of recent past and acting only
on the basis of old adverse entries, to retire a person will be a clear example of
arbitrary exercise of power. However, if old record pertains to integrity of a person
then that may be sufficient to justify the order of premature retirement of the
government servant.”

Central Industrial Security Force v. HC (GD) OM Prakash 2022 LiveLaw (SC) 128.

FEBRUARY 04, 2022.

The entire service record is to be taken into consideration which would include the ACRs of
the period prior to the promotion. The order of premature retirement is required to be passed
on the basis of entire service records, though the recent reports would carry their own weight.

Resent judgments

State of Manipur v. Surjakumar Okram

2022 LiveLaw (SC) 112

The Supreme Court observed that a law passed by the legislature is good law till it is declared
as unconstitutional by a competent Court or till it is repealed.

28