Dealing with the ‘doctrine of pleasure’ implicit in civil service - Daily Current Affair Article

Context-

Centre brings Ordinances to extend tenure of ED, CBI directors up to 5 years

Key highlights

  • President Ram Nath Kovind has virtually extended the tenures of the chiefs of the two agencies for up to five years. Both posts currently have a fixed tenure of two years
  • The Delhi Special Police Establishment (DSPE) Act and The Central Vigilance Commission (CVC) Act have been amended to give the government the power to keep the two chiefs in their posts for one year after they have completed their two-year term.
  • The CBI is governed by The DSPE Act; The CVC Act lays down the term of office of the Director of Enforcement

"Vineet Narain Vs Union of India" judgment

Backgrounds

  • On 25th March 1991, Ashfaq Husain Lone, an alleged official of a terrorist organization named Hizbul Mujahedeen, was arrested in Delhi. Ashfaq was interrogated and it was revealed that his organization was getting funds through hawala transactions with the help of Surrender Kumar Jain and his family.
  • Subsequent to his interrogation, Central Bureau Investigation (CBI) raided the premises of Surrender Kumar Jain, his brothers, relatives, and his businesses. During the raid at his premises, the CBI seized Indian and Foreign currency along with two diaries and two notebooks. The diaries contained detailed accounts of huge payments made to persons identified only by initials. The initials corresponded to the initials of various high ranking politicians, both who were in power and who were out of power, and high ranking bureaucrats.
  • The CBI, then, stopped probing the case, leaving the diaries and the Jain brothers uninvestigated. In fact, the officers of CBI who were involved in the case were transferred to other places by an order from the ruling politicians.
  • Later on, on 4th October 1993, writ petitions were filed in the Supreme Court in the public interest under Article 32 of the Constitution of India. The petitions contained allegations against Government agencies, CBI, and revenue authorities, for not fulfilling their legal obligation and duties as they failed to investigate the ‘Jain diaries’ which were seized while investigating the matter.

Supreme Court Judgment

The Supreme Court using the power under Article 32 and Article 142 of the Constitution of India issued certain directives. These directives are:

For Central Bureau Investigation

  • The appointment of the director of the CBI shall be made on the basis of recommendation made by a committee headed by Chief Vigilance Commissioner with the Home Secretary and Secretary (Personnel) as its member.
  • The director of CBI shall have tenure of a minimum of 2 years, irrespective of the date of his superannuation. The reason for setting this limit is that a capable officer must not be ignored because of the fact that he/she has less than 2 years left for his/her superannuation.
  • The director shall be free to assign any work to any officer within the agency. Further, the director shall be free to constitute a team for any investigation; however, if the director wishes to make any change in the head of an investigative team, then he/she shall present cogent reasons for the same.
  • It is the responsibility of the director to file a charge-sheet in the court within stipulated-time. Apart from that, the director is also responsible for keeping the case under constant review.
  • The director shall timely appraise the officers of the agency to maintain their efficiency and efficacy and to prevent corruption as well.

For Enforcement Directorate (ED)

  • Director of ED shall be appointed by the Appointments Committee of the Cabinet (ACC) on the recommendation made by the Selection Committee headed by Central Vigilance Commissioner with the Home Secretary, Secretary (Personnel), and Revenue Secretary as its members.
  • Like the director of CBI, the director of Enforcement directorate shall have a minimum tenure of 2 years.
  • The transfer of the director before completion of the minimum tenure is possible only for extraordinary reasons with the approval of the Selection Committee.
  • The ED shall begin the prosecution/adjudication of the case within a period of one year.
  • Revenue department shall continuously review the work of the ED and a separate section in the annual report of the Department of Revenue shall contain a detailed account of the working of ED.

Benefits of fixed tenure

  • To prevent their sudden transfer out of office if their functioning goes against the interests of the regime of the day.
  • The reason for setting this limit is that a capable officer must not be ignored because of the fact that he/she has less than 2 years left for his/her superannuation.
  • The officers discharge their duty impartialy.

Issues with annual extension of services

  • In Prospect of getting an annual extension can be an incentive for displaying regime loyalty in the discharge of their duties.
  • If the extension allowed in exceptional circumstances it becomes the rule.
  • Other member will not get the chance of becoming director and their moral should down.

Supreme Court judgment in S.K. Mishra case

  • In September, the Supreme Court had held Mishra’s tenure of three years to be legal, but had asked the government not to extend it any further.
  • In a petition challenging the extension of Mishra’s tenure, the court had declined to interfere with the government’s order, saying that the provision in The CVC Act, 2003 that chiefs of the ED shall hold office for “not less than two years”, could not be read to mean not more than two years.
  • The bench of Justices L Nageswara Rao and B R Gavai had, however, said that “no further extension shall be granted” to Mishra beyond November 2021.
  • We should make it clear that extension of tenure granted to officers who have attained the age of superannuation should be done only in rare and exceptional cases, the bench had said.

Doctrine of Pleasure

  • Doctrine of pleasure originated in England.
  • In England, the Crown is regarded as the Executive head and the civil services are part of the Executive.
  • The doctrine of Pleasure means that the Crown has the power to terminate the services of a civil servant at any time they want without giving any notice of termination to the servant.
  • When the civil servants are removed from their service, they do not have the right to sue the Crown for wrongful termination and they also cannot ask for damages undergone due to wrongful termination.

The Position of Doctrine of Pleasure in India

  • The doctrine of pleasure is also followed in India. Since the President of India is the Executive Head of the Union and he enjoys the same position as the Crown enjoys in England, the President has been vested with the power to remove a civil servant at any time under this doctrine.
  • While this doctrine has been adopted in India it has not been blindly copied in the same manner as it is followed in England and there are some modifications which exist in India’s adoption of this doctrine from that of England. In India, Article 310 of the Indian Constitution embodies the provision for this doctrine.
  • According to Article 310, except for the provisions provided by the Constitution, a civil servant of the Union works at the pleasure of the President and a civil servant under a State works at the pleasure of the Governor of that State. Under the constitution, the following are excluded from the operation of this doctrine:
  • Judges of the Supreme Court
  • Judges of the High Courts
  • Chief Election Commissioner; and
  • Comptroller and Auditor General of India.
  • Article 311 says that no government employee either of an all India service or a state government shall be dismissed or removed by an authority subordinate to the owner that appointed him/her.
  • Section 2 of the article says that no civil servant shall be dismissed or removed or reduced in rank except after an inquiry in which he has been informed of the charges and given a reasonable opportunity of being heard in respect of those charges.

Recommendation provide by 2nd ARC for civil services neutrality

  • Promotion of officers through Departmental Promotion Committees (DPC), up to the level of Selection Grade may be delegated to the concerned Departments. The UPSC should supervise the functioning of these DPCs through periodic reviews, audit etc
  • In the case of disciplinary proceedings, consultation with the UPSC should be mandatory only in cases involving likely dismissal or removal of a government servant
  • All civil servants should undergo mandatory training before each promotion and each officer/official should be evaluated after each training programme. Successful completion of the training programme should be made mandatory for promotions
  • The Central Civil Services Authority should be charged with the responsibility to fixing tenure for all civil service positions and this decision of the Authority should be binding on Government.

Conclusion

The protection given by a fixed tenure and the use of a high-ranking committee to recommend appointments and transfers were meant to dilute the ‘doctrine of pleasure’ implicit in civil service. While the doctrine of pleasure has been adopted from the British legal system, it has been modified to suit Indian context as per prevailing social structure in India. The judiciary has played a key role in balancing the arbitrary aspects of this doctrine by their power of judicial review.

Source: the Hindu, Indian express, darpg.gov.in

General Studies Paper 2
  • Governance