Doctrine of Pleasure

The Doctrine of Pleasure is a principle of Common Law, which is embodied in the Latin
Maxim “durante bene placito regis” which means “During Good Pleasure of King”.
In England this Doctrine is based on Public Policy, hence, a civil servant holds office during
pleasure of the Crown. This signifies, that a civil servant’s services can be terminated at any
time by the Crown, even if there is an employment contract.
Article 309 - Deals with Recruitment and Conditions of Service of person serving the
Union or the State.
Subject to the provisions of this Constitution, Acts of the appropriate Legislature may
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.
Provided that it shall be competent for the President or such person as he may direct in the
case of services and posts in connection with the affairs of the Union, and for the
Governor of a State or such person as he may direct in the case of services and posts in
connection with the affairs of the State, to make rules regulating the recruitment, and the
conditions of service of persons appointed, to such services and posts until provision in
that behalf is made by or under an Act of the appropriate Legislature under this article,
and any rules so made shall have effect subject to the provisions of any such Act.
The proviso to Article 309 empowers the Executives to make rules having the force of law
until the appropriate Legislature legislate on the subject.
In State of Mysore v. Padmanabhacharya1 a petition was filed by a trained teacher who was
illegally terminated from his services after the completion of 55 years of age, even though a
notification had been issued by the government stating that trained teachers could be retired
by the age of 58 years. The appeal of the State was dismissed and the government was
instructed to extend the person’s service till he attained the age of 58 years. The Apex Court
also clarified that, Proviso to Article 309 merely enables the President or Governor to make
rules to regulate the ‘recruitment and conditions of service’ of the persons mentioned therein
is not co-extensive with the power of legislature under Item 70 of List I or Item 41 under List
II. It does not confer any power to validate an order which was invalid when it was made.
Article 14, 15, 16, 119, 20 and 21 are applicable while making rules under Article 309.
Case which come under Article 309 include those of Conditions of Service, Recruitment,
Dearness Allowance, Pension, Promotion & Seniority, Transfers.
In India, Article 310 is based on the Common Law Doctrine of Pleasure, yet with certain
modifications.
Article 310 - Tenure of office of persons serving the Union or a State
(1) Except as expressly provided by this Constitution, 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

1
1966 SC 602 (605)
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
(2) Notwithstanding that a person holding a civil post under the Union or a State holds
office during the pleasure of the President or, as the case may be, of the Governor of the
State, any contract under which a person, not being a member of a defence service or of an
all India service or of a civil service of the Union or a State, is appointed under this
Constitution to hold such a post may, if the President or the Governor as the case may be,
deems it necessary in order to secure the services of a person having special qualifications,
provide for the payment to him of compensation, if before the expiration of an agreed
period, that post is abolished or he is, for reasons not connected with any misconduct on
his part, required to vacate that post.
In Union Of India And Another v. Tulsiram Patel And Others2 it was held by the 7 judge
bench that, subject to the other provisions of the Constitution, all civil posts under the
Government are held at pleasure of the Government under which they are held and are
terminable at its will. Also it was held that, Pleasure of President or Governor under Article
310(1) is not subject to Article 309 and thus, cannot be fettered or impaired by rules made
under Article 309.
The Doctrine of Pleasure cannot be exercised by the President or Governor as a personal
right, since it is an executive power which has to be exercised upon advice of the Council of
Ministers.
Further, Pleasure of Government under Article 310(1) cannot be fettered by Contracts.
Furthermore, pleasure of Government cannot be fettered by Ordinary Legislation except by
provision of Article 311
Unlike their English counterparts, Civil Servant in India can sue for Arrears of Salary for
premature termination of service. This rule is qualified by the word “expressly provided by
the Constitution”. Article 311 lays down procedural safeguards for civil servants, therefore
Article 311 becomes a Proviso for Article 310. Both Article 310 and Article 311 apply to
Government Servants who may be Permanent, Temporary, Officiating or on Probation.
In Moti Ram v. General Manager3, it was stated that Article 311 does not in any way alter or
affect the principle that a government servant holds office at pleasure of the President or the
Governor. Article 311 only subjects the exercise of that pleasure to the following 2
Conditions, which includes –
(i) An employee shall not be dismissed or removed by any authority subordinate by
which he is appointed.
(ii) Such employee shall not be dismissed or removed or reduced in rank without an
inquiry into the charges against him and without offering him an opportunity of
showing cause against the action proposed to be taken in regard to him.
Also, there are certain offices outside the ambit of Article 310 and Article 311, they put a
restriction on the Doctrine of Pleasure. These offices include those of –

2
1985 SC 1416 (para 45, 58-59)
3
A. 1964 SC 600
  Supreme Court Judges
 High Court Judges
 Chief Election Commissioner
 Chairman and members of Public Service Commission
Article 311 lays down the procedure to assure security of tenure to Government Servants and
provides certain safeguards against the arbitrary dismissal, removal or reduction of rank of a
government servant. The provisions of Article 311 are enforceable in the Court of Law.

Law of Precedent
Article 141 of the Constitution stipulates that, law declared by the Supreme Court is binding
on all Courts which lie within the territory of India. Precedent is a principle or rule that was
declared or laid down in the previous case. Law of Precedent implies that the Raito Decidendi
of a landmark case is followed by subordinate courts and courts of similar strength. A
judgement can be classified into 2 parts based on the context in which it has been given by
the Judge. The part containing the interpretation or explanation or reason for giving out the
judgement or logic of law applied to the facts is termed to be the Raito Decidendi of the Case.
Rest of the case can be classified as Orbiter Dictum, since it does not contain reasoned
application of law and may just include a mere saying, a chance remark and is not binding on
the future courts, yet it might be respected due to reputation of judge, eminence of court or
the circumstances in which it came to be pronounced.
Judicial Precedents ensure that law of the land is uniform. The Modern Legal system is
“judge made law”, it is also known as Common Law and has developed only through Judicial
Decisions. Many branches of law such as torts have been created exclusively by Judges.
The doctrine of Stare Decisis requires judges to respect and abide by precedents laid down by
prior decisions and has emerged from the Latin maxim “Stare decisis et non quieta movere”
which implies “to stand by decisions and not disturb the undisturbed”.
It is a settled principle that Interim (Temporary order for the intervening period, while court
makes its decision) as well as Interlocutory Order (Settling only some part of the Cause and
not deciding the whole cause) do not hold precedential value.
“A decision is available as a precedent only if it decides a question of law. Merely because
grounds are not mentioned in a judgment of this Court, it cannot be understood to have been
passed without an adequate legal basis. High Courts have no power, like the power available
to the Supreme Court under Article 142 of the Constitution of India, and merely because the
Supreme Court granted certain reliefs in exercise of its power under Article 142 of the
Constitution of India, similar orders could not be issued by the High Courts.” This was
decided in State of Punjab v. Surinder Kumar4.
Various types of precedents include :-
1) Original Precedent – In original precedents new laws are created and applied.
2) Declaratory Precedent – Mere application of rule in previous legal case is used
4
(1992) 1 SCC 489
 3) Persuasive Precedent – Here the precedent need not necessarily be followed, it is not
necessarily considered as source of law, rather it is seen as a historic precedent. For
example- the decision taken by one High Court can only have Persuasive Value in
another.
4) Absolutely Authoritative Precedent – In such cases earlier verdict must be
mandatorily followed by the judge. This may happen due to sheer numbers in a bench
or on account of the hierarchy that needs to be followed.
5) Conditionally Authoritative – Precedents are generally authoritative but if the case
goes before the Supreme Court, it can even be overturned.

What are Cross Appeals? Whether Cross Appeals are

Maintainable in Writ Appels?

Under Order 41 Rule 22 of the Civil Procedure Code, a party is allowed, to not prefer an
Appeal and instead to file Cross Objection against the unfavourable part of the Decree, which
could have been taken by way of Appeal. Therefore, instead of filing a separate Appeal the
party files a Cross Objection in the Appeal preferred by the other party. The Cross Objection
is treated as a separate appeal and is disposed of on the same principles as of Appeal from
Original Decree in accordance with Order 41 of the CPC.
In Banarsi & Ors. v. Ram Phal,5 Justice R. C Lahoti speaking for the division bench stated
that “under the amended Order 41 Rule 22 sub-rule (1) makes it permissible to file a cross
objection against a finding”. Further it was stated that “A respondent may defend himself
without filing any cross objection to the extent to which decree is in his favour; however, if
he proposes to attack any part of the decree, he must take cross objection. Hence, there arises
three situations :-
(i) The impugned decree is partly in favour of the appellant and partly in favour of the
respondent;
(ii) The decree is entirely in favour of the respondent though an issue has been decided
against the respondent;
(iii) The decree is entirely in favour of the respondent and all the issues have also been
answered in favour of the respondent but there is a finding in the judgment which goes
against the respondent.
In the type of case (i) it was necessary for the respondent to file an appeal or take cross
objection against that part of the decree which is against him if he seeks to get rid of the same
though that part of the decree which is in his favour, he is entitled to support without taking
any cross objection.
Furthermore, it was held by the division bench that “The advantage of preferring such cross
objection is that in spite of the original appeal having been withdrawn or dismissed for

5
(2003) 9 SCC 606
default the cross objection taken to any finding by the respondent shall still be available to be
adjudicated upon on merits.”
In the case of Superintending Engineer And Ors vs B. Subba Reddy6 the court held that
“Cross Objections are nothing but an appeal, in fact a Cross Appeal. Even when the Appeal is
withdrawn or dismissed for default, Cross Objections shall be heard and decided on”.
In Jabalpur Development Authority vs Y.S. Sachan And Ors7, a Division bench of the Madhya
Pradesh High Court held that “The writ appeal being a proceeding on the appellate side of the
High Court and being a civil proceeding, the provisions of the Code of Civil Procedure would
apply and Order 41, Rule 22, Civil Procedure Code which makes, a provision for the filing of
cross-objections, would therefore, equally apply to a writ appeal. Consequently, the cross-
objection, which in this case is termed as 'cross writ appeal' are maintainable. The mere fact
that it has been numbered as an independent writ appeal does not affect to the character of the
petition filed by the writ petitioner. The 'cross writ appeal' is accordingly treated as 'cross
objections' under Order 41, Rule 22, Civil Procedure Code”
In Joby Vettiyadan vs State Of Kerala8 the Kerala High Court while allowing cross
objections, held that “It has been consistently held by this Court that a regular suit is the
appropriate remedy for settlement of the disputes relating to property rights between the
private persons. The remedy under Article 226 of the Constitution shall not be available
except where violation of some statutory duty on the part of statutory authority is alleged. In
such cases, the Court has jurisdiction to issue appropriate directions to the authority
concerned.”. While deciding Writ Petition the court allowed cross objections and decided on
the matter. Hence, it is reiterated that Cross Appeals in Writ Petitions are maintainable.

What is Willful Disobedience? When does Willful Disobedience

amount to Contempt of Court

The term Willful Disobedience has been used in 4 statutes Section 2 of the Contempt of
Court Act (1971), Section 3 of the Workman Compensation Act (1923), Section 45 of the
Prisons Act (1894), Section 36 of the Indian Forest Act (1927).
In Ashok Paper Kamgar Union And Ors. vs Dharam Godha And Ors9 a Division Bench of
the Supreme Court observed that “Section 2(b) of Contempt of Courts Act defines 'Civil
Contempt' and it means Willful Disobedience to any judgment, decree, direction, order, writ
or other process of a Court or Willful Breach of undertaking given to a Court. 'Wilful' means
an act or omission which is done voluntarily and intentionally and with the specific intent to
do something the law forbids or with the specific intent to fail to do something the law
requires to be done, that is to say with bad purpose either to disobey or to disregard the law. It
signifies a deliberate action done with evil intent or with a bad motive or purpose. Therefore,
in order to constitute Contempt the Order of the Court must be of such a nature which is
6
(1999) 4 SCC 423
7
2004 (2) MPHT 314
8
W.A.No.202 of 2020 & Cross Objection No.33 of 2020 in W.A.No.202 of 2020
9
AIR 2004 SC 105
capable of execution by the person charged in normal circumstances. It should not require
any extra ordinary effort nor should be dependent, either wholly or in part, upon any act or
omission of a third party for its compliance. This has to be judged having regard to the facts
and circumstances of each case.”
Further in a 201010 Case the Supreme Court elaborated on conscious nature of wilful
disobedience “In our considered opinion,….. well-settled legal position reflected in a catena
of decisions of this court that contempt of a civil nature can be held to have been made out
only if there has been a wilful disobedience of the order and even though there may be
disobedience, yet if the same does not reflect that it has been a conscious and wilful
disobedience, a case for contempt cannot be held to have been made out. In fact, if an order is
capable of more than one interpretation giving rise to variety of consequences, non-
compliance of the same cannot be held to be wilful disobedience of the order so as to make
out a case of contempt entailing the serious consequence including imposition of
punishment.”

10
Dinesh Kumar Gupta vs United India Insurance Co. Ltd. & Ors, AIR 2010 SCW 6939