Thoughts on economics and liberty

Constitutional validity of lateral entry into the senior bureaucracy in India

I’ve had a look at the constitutional validity of lateral recruitment to senior positions by GOI. These appear to be fully valid constitutionally.

First, Article 310(1) allows that persons who hold “any civil post under the Union” do so during the pleasure of the President. Likewise in States at the pleasure of the Governor. This pleasure is limited by other aspects of the constitution, but I believe this is a very broad power.

Second, there is case law that article 311 does not apply in normal circumstances to temporary positions or to probationers. The service of such persons can be terminated so long as no disciplinary inquiry is caused. An inquiry to ascertain whether the public servant should be retained in service does not attract article 311. (e.g. State of Punjab vs Sukh Raj Bahadur, AIR 1968 SC 1089).

Third, Article 320(3) allows “the President as respects the all India services and also as respects other services and posts in connection with the affairs of the Union, and the Governor, as respects other services and posts in connection with the affairs of a State, may make regulations specifying the matters in which either generally, or in any particular class of case or in any particular circumstances, it shall not be necessary for a Public Service Commission to be consulted”. Such rules were made in 2016, I understand.

Fourth, the constitutional provisions for reservations will not apply to contractual appointments.

Fifth, standard remuneration principles applicable to civil services do not apply in such cases. The salary can be as high as the government wishes.

In brief, there is no constitutional barrier to hiring people on contract from the open market to non-cadre posts. Thus the main constraint is the cadre rules, not the constitutional power. If competent people are appointed to non-cadre posts, there should be no constitutional challenge.

 

 

Sanjeev Sabhlok

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