Constitutional Protections in Public Service and Administrative Adjudication

Most disputes about the service conditions of Central Government employees begin before the Central Administrative Tribunal, established under the Administrative Tribunals Act, 1985 pursuant to Article 323A. Several States have constituted State Administrative Tribunals; elsewhere, State employees approach the High Court directly under Article 226. Employees of public sector undertakings and other bodies that are 'the State' under Article 12, within the tests laid down in Ajay Hasia v. Khalid Mujib Sehravardi, ordinarily go to the High Court.

The route from a tribunal was settled by a seven-judge Bench in L. Chandra Kumar v. Union of India. The Court held that the power of judicial review vested in the High Courts under Articles 226 and 227 and in the Supreme Court under Article 32 is part of the basic structure, so the provisions excluding it were invalid. Decisions of the tribunals are subject to scrutiny by a Division Bench of the High Court within whose jurisdiction the tribunal falls, and a special leave petition lies to the Supreme Court only against the High Court's decision. The tribunals remain the courts of first instance in their field, and a litigant cannot bypass them by going straight to the High Court, except where the validity of the statute creating the tribunal is itself challenged.

Members of the armed forces follow a different path. Under Sections 30 and 31 of the Armed Forces Tribunal Act, 2007, an appeal lies to the Supreme Court against a final decision of the Tribunal with the leave of the Tribunal or of the Supreme Court, which is to be granted where a point of law of general public importance is involved or the Supreme Court considers that the point ought to be considered by it. In Union of India v. Major General Shri Kant Sharma, the Court held that, given this statutory appeal, High Courts should not ordinarily entertain writ petitions against the Tribunal's orders, although later decisions have made clear that the High Court's writ jurisdiction is not excluded altogether.

Articles 14 and 16 require that public employment be open to all eligible candidates on fair terms. Appointments made without advertisement or a fair selection process are therefore vulnerable, as are rules that discriminate without a rational basis connected to the requirements of the post.

The rules governing a selection cannot be changed to the disadvantage of candidates once the process is under way. In Tej Prakash Pathak v. Rajasthan High Court, a Constitution Bench held that the recruitment process begins with the advertisement and ends with the filling of the vacancies; eligibility criteria notified at the outset cannot be changed midway unless the applicable rules or an advertisement consistent with them permit it, and even a permitted change must satisfy the requirement of non-arbitrariness under Article 14. The recruiting body may lay down a transparent and non-arbitrary procedure where the rules are silent, but inclusion in a select list does not by itself confer a right to be appointed; the State may decline to fill vacancies for bona fide reasons, but not arbitrarily.

Reservation in promotion is governed by Articles 16(4A) and 335. In Jarnail Singh v. Lachhmi Narain Gupta, a Constitution Bench declined to refer the earlier decision in M. Nagaraj to a larger Bench, but held that its requirement of quantifiable data showing the backwardness of Scheduled Castes and Scheduled Tribes was contrary to Indra Sawhney. The requirements of data showing inadequacy of representation in the cadre, and of maintaining the efficiency of administration under Article 335, remain.

Claims by temporary, ad hoc, contractual and daily-wage employees to be regularised form a large part of service litigation. In Secretary, State of Karnataka v. Umadevi (3), a Constitution Bench held that public employment must be made in accordance with the constitutional scheme of equal opportunity, and that courts should not direct the regularisation or absorption of persons engaged without following that scheme. It drew a distinction between illegal appointments and irregular ones made to sanctioned posts by persons who were qualified, and directed a one-time measure for regularising those who had worked for ten years or more in duly sanctioned posts without the protection of interim court orders.

Later decisions have cautioned against relying on Umadevi to deny relief to workers who have performed regular duties in sanctioned posts for many years, and have emphasised the State's obligation, as a model employer, not to keep employees on temporary terms indefinitely. Each claim therefore turns closely on the nature of the initial engagement, the existence of sanctioned posts and the length and character of the service.

Article 311(1) provides that a civil servant may not be dismissed or removed by an authority subordinate to the one that appointed him or her. Article 311(2) provides that no such person shall be dismissed, removed or reduced in rank except after an inquiry in which he or she has been informed of the charges and given a reasonable opportunity of being heard. The second proviso dispenses with the inquiry where the penalty is based on conduct that led to a criminal conviction, where the disciplinary authority records in writing that it is not reasonably practicable to hold an inquiry, or where the President or Governor is satisfied that holding it is not expedient in the interest of the security of the State.

In Union of India v. Tulsiram Patel, a Constitution Bench upheld the power to dispense with the inquiry under the second proviso, while holding that the reasons for doing so must be recorded and that the decision is open to judicial review. In Managing Director, ECIL v. B. Karunakar, another Constitution Bench held that where the inquiry officer is not the disciplinary authority, the employee is entitled to a copy of the inquiry report before the disciplinary authority decides the question of guilt; failure to supply it does not automatically invalidate the penalty, and the court must consider whether the employee was prejudiced.

Judicial review of disciplinary action is otherwise limited. The courts do not reappreciate the evidence before the inquiry officer; they examine whether the inquiry was held in accordance with the rules and the principles of natural justice, whether the findings rest on some evidence, and whether the penalty is so disproportionate as to shock the conscience. Where the penalty is found disproportionate, the usual course is to remit the matter to the disciplinary authority to reconsider it.

When disciplinary or criminal proceedings are pending against an employee who falls for consideration for promotion, the departmental promotion committee records its assessment and places it in a sealed cover, to be opened when the proceedings end. In Union of India v. K.V. Jankiraman, the Court held that the sealed cover procedure can be resorted to only after a charge memo has been issued in disciplinary proceedings or a charge sheet has been filed in a criminal case; the pendency of a preliminary investigation before that stage is not enough.

If the employee is fully exonerated, the sealed cover is opened and, if found fit, he or she is promoted from the date on which the immediate junior was promoted. The Court recognised that arrears of salary for the intervening period may be withheld where the proceedings were delayed by the employee or the acquittal was on a benefit of doubt, but held that the authority must decide that question on the facts rather than deny arrears as a rule.

Pension is not a bounty. In D.S. Nakara v. Union of India, a Constitution Bench held that pensioners form a single class, and that a liberalised pension formula could not be confined to those who retired after a chosen date, since the division bore no rational relation to the object of the scheme.

In State of Jharkhand v. Jitendra Kumar Srivastava, the Court held that pension and gratuity are property within Article 300A and cannot be withheld, even in part, merely because departmental or criminal proceedings are pending, unless a statutory rule authorises it; executive instructions are not enough. Claims to pension and to correct fixation of pay are generally treated as continuing causes of action, but arrears are ordinarily restricted to a limited period before the claim was brought.

Transfer is an incident of service, and courts interfere with a transfer order only where it is shown to be mala fide, made by an authority without power, or in breach of a statutory rule; administrative guidelines on transfers do not by themselves create enforceable rights. Suspension pending an inquiry is not a penalty, but prolonged suspension without a charge memo being issued has been disapproved, and subsistence allowance must be paid as the rules require.

At the interim stage, courts are generally reluctant to stay transfers or to direct promotions or appointments, since such orders would effectively grant the final relief. They are more willing to preserve the status quo where a termination, reversion or recovery from salary would cause hardship that could not be undone if the employee ultimately succeeded.

Under Section 21 of the Administrative Tribunals Act, an application must ordinarily be filed within one year of the final order, or, where a representation has been made and not decided, within one year after six months from the date of the representation; the tribunal may admit a later application if sufficient cause is shown. Writ petitions have no fixed limitation period, but delay and laches can be fatal, especially where the relief sought would unsettle the seniority or promotion of others. Persons who did not challenge an order in time are not always entitled to the benefit of a judgment obtained later by more diligent colleagues.

Service litigation turns on the precise rules in force at the relevant time. A petition should therefore annex the recruitment or service rules as they stood on the relevant date, with later amendments, the employee's service record so far as relevant, the representations made and the replies received, and, in disciplinary matters, the charge memo, the inquiry report and the orders of the disciplinary and appellate authorities. Where seniority or promotion is affected, the employees who would be displaced must be impleaded, since an order cannot be made to their prejudice without hearing them.