Scope of doctrine of pleasure
Scope of doctrine of pleasure:—
The Pleasure Doctrine has its origin in English law, with reference to the tenure of public servants under the Crown. 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:
“I take it that persons employed as the petitioner was in the service of the Crown, except in cases where there is some statutory provision for a higher tenure of office, are ordinarily engaged on the understanding that they hold their employment at the pleasure of the Crown. So I think that there must be imported into the contract for the employment of the petitioner, the term which is applicable to civil servants in general, namely, that the Crown may put an end to the employment at its pleasure. It seems to me that it is the public interest which has led to the term which I have mentioned being imported into contracts for employment in the service of the Crown. The cases cited show that, such employment being for the good of the public, it is essential for the public good that it should be capable of being determined at the pleasure of the Crown, except in certain exceptional cases where it has been deemed to be more for the public good that some restrictions should be imposed on the power of the Crown to dismiss its servants.” (See. B.P. Singhal vs Union Of India & Anr on 7 May, 2010Author: R V RaveendranBench: K.G. Balakrishnan, S.H. Kapadia, R.V. Raveendran, B. Sudershan Reddy, P. Sathasivam).
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.
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 or durante bene placito (“during good pleasure” or “during the pleasure of the appointor”) as opposed to an office held dum bene se gesserit (“during good conduct”), also called quadiu se bene gesserit (“as long as he shall behave himself well”). 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. ……”
In State of Bihar v. Abdul Majid – 1954 SCR 786, another Constitution Bench explained the doctrine of pleasure thus:
“The rule that a civil servant holds office at the pleasure of the Crown has its origin in the latin phrase “durante bene placito” (“during pleasure”) meaning that the tenure of office of a civil servant, except where it is otherwise provided by statute, can be terminated at any time without cause assigned. 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.”
H.M. Seervai, in his treatise `Constitutional law of India’ (4th Ed., Vol. 3, pp.2989-90) explains this English Crown’s power to dismiss at pleasure in the following terms:
“In a contract for service under the Crown, civil as well as military, there is, except in certain cases where it is otherwise provided by law, imported into the contract a condition that the Crown has the power to dismiss at pleasure….Where the general rule prevails, the Crown is not bound to show good cause for dismissal, and if a servant has a grievance that he has been dismissed unjustly, his remedy is not by a law suit but by an appeal of an official or political kind……If any authority representing the Crown were to exclude the power of the Crown to dismiss at pleasure by express stipulation, that would be a violation of public policy and the stipulation cannot derogate from the power of the Crown to dismiss at pleasure, and this would apply to a stipulation that the service was to be terminated by a notice of a specified period of time. Where, however, the law authorizes the making of a fixed term contract, or subjects the pleasure of the Crown to certain restrictions, the pleasure is pro tanto curtailed and effect must be given to such law.”
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.
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 good.
The following classic statement from Administrative Law (HWR Wade & CF Forsyth – 9th Ed. – Pages 354-355) is relevant in this context:
“The common theme of all the authorities so far mentioned is that the notion of absolute or unfettered discretion is rejected. Statutory power conferred for public purposes is conferred as it were upon trust, not absolutely – that is to say, it can validly be used only in the right and proper way which Parliament when conferring it is presumed to have intended. Although the Crown’s lawyers have argued in numerous cases that unrestricted permissive language confers unfettered discretion, the truth is that, in a system based on the rule of law, unfettered government discretion is a contradiction in terms. The real question is whether the discretion is wide or narrow, and where the legal line is to be drawn. For this purpose everything depends upon the true intent and meaning of the empowering Act.
The powers of public authorities are therefore essentially different from those of private persons. A man making his will may, subject to any rights of his dependants, dispose of his property just as he may wish. He may act out of malice or a spirit of revenge, but in law this does not affect his exercise of his power. In the same way a private person has an absolute power to allow whom he likes to use his land, to release a debtor, or where the law permits, to evict a tenant, regardless of his motive. This is unfettered discretion. But a public authority may do none of these things unless it acts reasonably and in good faith and upon lawful and relevant grounds of public interest…… The whole conception of unfettered discretion is inappropriate to a public authority, which possesses powers solely in order that it may use them for the public good. There is nothing paradoxical in the imposition of such legal limits. It would indeed be paradoxical if they were not imposed.”
It is of some relevance to note that the `Doctrine of Pleasure’ in its absolute unrestricted application does not exist in India. The said doctrine is severely curtailed in the case of government employment, as will be evident from clause (2) of Article 310 and clauses (1) and (2) of Article 311. Even in regard to cases falling within the proviso to clause (2) of Article 311, the application of the doctrine is not unrestricted, but moderately restricted in the sense that the circumstances mentioned therein should exist for its operation. The Canadian Supreme Court in Wells v. Newfound land [1999 (177) DL (4th) 73(SCC)] has concluded that “at pleasure” doctrine is no longer justifiable in the context of modern employment relationship.
In Abdul Majid (supra), this Court considered the scope of the doctrine of pleasure, when examining whether the rule of English Law that a civil servant cannot maintain a suit against the State or against the Crown for the recovery of arrears of salary as he held office during the pleasure of the crown, applied in India. This Court held that the English principle did not apply in India. This Court observed :
In Abdul Majid (supra), the Supreme Court considered the scope of the doctrine of pleasure, when examining whether the rule of English Law that a civil servant cannot maintain a suit against the State or against the Crown for the recovery of arrears of salary as he held office during the pleasure of the crown, applied in India. This Court held that the English principle did not apply in India. The Supreme Court observed :
“It was suggested that the true view to take is that when the statute says that the office is to be held at pleasure, it means “at pleasure”, and no rules or regulations can alter or modify that; nor can section 60 of the Code of Civil Procedure, enacted by a subordinate legislature be used to construe an Act of a superior legislature. It was further suggested that some meaning must be given to the words “holds office during His Majesty’s pleasure” as these words cannot be ignored and that they bear the meaning given to them by the Privy Council in I.M. Lall’s case. [75 I.A.225] In our judgment, these suggestions are based on a misconception of the scope of this expression. The expression concerns itself with the tenure of office of the civil servant and it is not implicit in it that a civil servant serves the Crown ex gratia or that his salary is in the nature of a bounty. It has again no relation or connection with the question whether an action can be filed to recover arrears of salary against the Crown. The origin of the two rules is different and they operate on two different fields.”
This shows the `absoluteness’ attached to the words `at pleasure’ is in regard to tenure of the office and does not affect any constitutional or statutory restrictions/limitations which may apply.
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. 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.
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 310and 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 :
“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 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.
311. Dismissal, removal or reduction in rank of persons employed in civil capacities under the Union or a State : –
(1) xxxxxxx (2) – No such person as aforesaid shall be dismissed or removed or reduced in rank except after an inquiry in which he has been informed of the charges against him and given a reasonable opportunity of being heard in respect of those charges.”
“Subject to these exceptions our Constitution, by Art. 310(1), has adopted the English Common Law rule that public servants hold office during the pleasure of the President or Governor, as the case may be and has, by Art. 311, imposed two qualifications on the exercise of such pleasure. Though the two qualifications are set out in a separate Article, they quite clearly restrict the operation of the rule embodied in Art. 310(1). In other words the provisions of Art. 311 operate as a proviso to Art. 310(1).”
Again, in Moti Ram v. N.E. Frontier Railway – AIR 1964 SC 600, the Supreme Court referred to the qualifications to which pleasure doctrine was subjected in the case of government servants, as follows :
“The rule of English law pithily expressed in the latin phrase `durante bene placito (“during pleasure”) has not been fully adopted either by S. 240 of the Government of India Act, 1935 or by Art. 310(1) of the Constitution. The pleasure of the President is clearly controlled by the provisions of Art. 311, and so, the field that is covered by Art. 311 on a fair and reasonable construction of the relevant words used in that article, would be excluded from the operation of the absolute doctrine of pleasure. The pleasure of the President would still be there, but it has to be exercised in accordance with the requirements of Art. 311.