TaxTMI 
TaxTMI 
2013 (2) TMI 772
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....praying for a mandamus directing the State Government to frame regulations governing the conditions of service and appointment of the Chairman and/or the Members of the Public Service Commission as envisaged in Article 318 of the Constitution of India. The respondent No.1 also prayed for a direction restraining the State Government from appointing Mr. Harish Dhanda as the Chairman of the Punjab Public Service Commission in view of the fact that his appointment does not fall within the parameters of integrity, impartiality and independence as reiterated time and again by this Court. 4. The Division Bench of the High Court, after hearing the learned counsel for the writ petitioner and the learned Additional Advocate General for the State of Punjab, passed an order on 13.07.2011 holding that even though Article 316 of the Constitution does not prescribe any particular procedure for appointment of Chairman of the Public Service Commission, having regard to the purpose and nature of the appointment, it cannot be assumed that the power of appointment need not be regulated by any procedure. Relying on the judgments of this Court in the case of In R/O Dr. Ram Ashray Yadav, Chairman, Bihar....
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....the High Court. Accordingly, the Full Bench of the High Court heard the matters on 08.08.2011 and directed the Chief Secretary of the State of Punjab to remain present at 2.00 P.M. along with the relevant files which contain the advice of the Chief Minister to the Government. The Chief Secretary of the State of Punjab produced the original files containing the advice of the Chief Minister to the Governor of Punjab and after seeing the original files, the Full Bench of the High Court returned the same and reserved the matter for judgment. 7. Thereafter, the Full Bench of the High Court delivered the judgment and order dated 17.08.2011 directing that till such time a fair, rational, objective and transparent policy to meet the mandate of Article 14 is made, both the State of Haryana and the State of Punjab shall follow the procedure detailed hereunder as part of the decision-making process for appointment as Members and Chairman of the Public Service Commission:- 1. There shall be Search Committee constituted under the Chairmanship of the Chief Secretary of the respective State Governments. 2. The Search Committee shall consist of at least three members. One of the members shall b....
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....He cited the decisions of this Court in R.K. Jain v. Union of India & Ors. [(1993) 4 SCC 119], Dr. Duryodhan Sahu & Ors. v. Jitendra Kumar Mishra & Ors. [(1998) 7 SCC 273], Dattaraj Nathuji Thaware v. State of Maharashtra & Ors. [(2005) 1 SCC 590], Ashok Kumar Pandey v. State of West Bengal [(2004) 3 SCC 349], Hari Bansh Lal v. Sahodar Prasad Mahto & Ors. [(2010) 9 SCC 655] and Girjesh Mr.vastava & Ors. v. State of M.P. & Ors. [(2010) 10 SCC 707] for the proposition that a dispute relating to a service matter cannot be entertained as a Public Interest Litigation. 10. Mr. Rao next submitted that the Division Bench has recorded a clear finding in its order dated 13.07.2011 that the allegations regarding irregularities and illegalities against Mr. Harish Dhanda in the writ petition do not stand substantiated and there was, therefore, absolutely no need for the Division Bench of the High Court to make an academic reference to the Full Bench of the High Court. He next submitted that this Court in the case of Mehar Singh Saini Chairman, HPSC In Re (supra) had already declared the law that it is for the legislature to frame the guidelines or parameters regarding the experience, qualifica....
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....) 1 SCC 683] and Asif Hameed & Ors. v. State of J & K & Ors. [(1989) 2 Supp. SCC 364] in support of the aforesaid submission. He submitted that the appointments to the constitutional offices, like the Attorney General, Advocate General, Comptroller & Auditor General, Chief Election Commissioner, Chairman and Members of the Union Public Service Commission and appointments to the topmost Executive posts, like the Chief Secretary or Director General of Police, has to be made within the discretion of the Government inasmuch as persons in whom the Government has confidence are appointed to the posts. He relied on E.P. Royappa v. State of Tamil Nadu & Anr. [(1974) 4 SCC 3] and State of West Bengal & Ors. v. Manas Kumar Chakraborty & Ors. [(2003) 2 SCC 604] for this proposition. 13. Mr. Rao argued that in the absence of clear violation of statutory provisions and regulations laying down the procedure for appointment, the High Court has no jurisdiction even to issue a writ of quo warranto. In support of this argument, he relied on the decision of this Court in B. Srinivasa Reddy v. Karnataka Urban Water Supply & Drainage Board Employees Association & Ors. [(2006) 11 SCC 731]. He submitted....
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....in a number of pronouncements emphasized on the need to appoint eminent persons possessing a high degree of competence and integrity as Chairman and Members of the Public Service Commission so as to inspire confidence in the public mind about the objectivity and impartiality of the selection to be made by the Public Service Commission. In this context he referred to the judgments of this Court in Ashok Kumar Yadav & Ors. v. State of Haryana & Ors. [(1985) 4 SCC 417], in R/O Dr. Ram Ashray Yadav, Chairman, Bihar Public Service Commission [(2000) 4 SCC 309], Inderpreet Singh Kahlon and Others v. State of Punjab and Others [(2006) 11 SCC 356] and Mehar Singh Saini, Chairman, Haryana Public Service Commission and others In Re (supra). 16. Mr. Lalit submitted that Mr. Harish Dhanda may be eligible for appointment as Chairman of the Public Service Commission but eligibility is not enough to be the Chairman of the State Public Service Commission. He submitted that the person who is eligible must also have some positive qualities such as experience, ability, character and integrity for being appointed as the Chairman of the State Public Service Commission. He submitted that it is not only....
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....cal Government, Punjab. He alleged that Mr. Dhanda had been given the permission to stay at the Van Chetna Kendra/Forest Rest House at Pallanpur, District Ropar, for a few days, but later on he wanted to make the Forest Rest House as his permanent residence to which Mr. Amit Misra objected as the same was not permitted under the Rules and Mr. Amit Misra had directed the official incharge of the Rest House not to allow anybody to use the Rest House without getting permission and accordingly when Mr. Dhanda wanted the keys of the Rest House on 22.06.2007 he was not given the keys of the Rest House and Mr. Dhanda recorded a note addressed to the Principal Chief Conservator of Forests narrating the entire incident and ensured that Mr. Amit Misra was posted out of Ropar by an order of transfer dated 31.07.2007. The Central Administrative Tribunal, Chandigarh Bench, called for the official noting which led to the passing of the transfer order dated 31.07.2007 and recorded the finding that even though the Government decided not to allow the use of the Rest House as a permanent residence of the Chief Parliamentary Secretary, yet Mr. Amit Misra, being a junior officer, became the victim of ....
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....ish Dhanda is, therefore, not correct. 20. Mr. Lalit finally submitted that pursuant to the impugned orders of the Full Bench and the Division Bench of the High Court, the Search Committee was constituted by the Government for selection of the Chairman of the Punjab Public Service Commission and the Search Committee invited the names of eminent persons of impeccable integrity, caliber and administrative experience from all walks of life, to be considered for the post of the Chairman of Punjab Public Service Commission and thereafter the High Power Committee selected Lt. Gen. R.A. Sujlana (Retd.) who has been appointed by the State Government as the Chairman of the Punjab Public Service Commission in December, 2011 and he has been functioning as such since then. He submitted that the appointment of Lt. Gen. R.A. Sujlana is also not subject to orders passed by this Court and the news reports indicate that Lt. Gen. R.A. Sujlana has been an upright officer of the Indian Army and has wide administrative experience. He submitted that this is not a fit case in which this Court should interfere with the appointment of Lt. Gen. R.A. Sujlana as the Chairman of the Punjab Public Service Comm....
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....ed in the writ petition that the State Government has not laid down any qualification for appointment to the post of Chairman of the Punjab Public Service Commission and is continuing to appoint persons to the post of Chairman of Public Service Commission on the basis of political affiliation. In the writ petition, the respondent No.1 has also given the example of Mr. Ravi Pal Singh Sidhu, who was appointed as the Chairman, Punjab Public Service Commission on the basis of political affiliation and the result was that during his period as the Chairman of the Punjab Public Service Commission, several cases of undeserving candidates being selected and appointed to the Public Service Commission in the State of Punjab came to light and investigations were carried out leading to filing of various criminal cases against the officials of the Public Service Commission as well Mr. Sidhu. The respondent No.1 has further stated in the writ petition that he has filed the writ petition after he read a news report titled: "MLA Dhanda to be new PPSC Chairperson". He has stated in the writ petition that Mr. Harish Dhanda was an Advocate at Ludhiana before he ventured into politics and had unsuccess....
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....tter before the Court was essentially a service matter and this Court accordingly held that in such service matters, the aggrieved party and not any third party can only initiate a legal action. 24. The next question that I have to decide is whether the Division Bench of the High Court, after having recorded a finding in its order dated 13.07.2011 that the allegations of irregularities and illegalities against Mr. Harish Dhanda in the writ petition do not stand substantiated, should have made an academic reference to the Full Bench of the High Court. As I have noticed, the respondent No.1 had, in the writ petition, relied on the constitutional provisions in Articles 315, 316, 317, 318, 319 and 320 of the Constitution to plead that the functions of the Public Service Commissions were of a sensitive and critical nature and hence the Chairman of the Public Service Commission must possess outstanding and high educational qualifications and a great amount of experience in the field of selection, administration and recruitment. The respondent No.1 has further pleaded in the writ petition that the State Government had on an earlier occasion made an appointment of a Chairman of the Punjab....
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....e Hon'ble Judges." 25. It will be clear from the Paragraphs 6 and 7 of the order dated 13.07.2011 quoted above that the Division Bench of the High Court found that Article 316 of the Constitution, which provides for appointment of the Chairman and other Members of the Public Service Commission by the Governor, does not prescribe any particular procedure and took the view that, having regard to the purpose and nature of appointment, it cannot be assumed that power of appointment need not be regulated by any procedure. The Division Bench of the High Court was of the further view that the persons to be appointed must have competence and integrity, but how such persons are to be identified and selected must be considered by a Bench of three Judges and accordingly referred the matter to the three Judges. The Division Bench also referred the question to the larger Bench of three Judges as to whether the procedure adopted in the present case for appointing Mr. Harish Dhanda as the Chairman of the Punjab Public Service Commission was valid and if not, what is the effect of not following the procedure. I do not, therefore, find any merit in the submission of Mr. Rao that the Division Bench....
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....self reflects that all is not well with the functioning of the Commissions." The observations of this Court in the aforesaid case of Mehar Singh Saini Chairman, HPSC In Re (supra) relate to qualification and experience for appointment as Chairman/Members of the Commission and have nothing to do with the questions relating to the procedure for identifying persons of integrity and competence to be appointed as Chairman of the Public Service Commission, which were referred by the Division Bench of the High Court to the Full Bench by the order dated 13.07.2011. Mr. Rao is, therefore, not right in his submission that in view of the law declared by this Court in Mehar Singh Saini, Chairman, HPSC In Re (supra), there was no necessity for the Division Bench to make a reference to the Full Bench by the order dated 13.07.2011. 27. I may next deal with the contention of Mr. Rao that the Full Bench exceeded its jurisdiction by enlarging the scope of reference and deciding matters which were not referred to it by the order dated 13.07.2011 of the Division Bench. Rule 4 of the Punjab High Court Rules reads as follows: "Save as provided by law or by these rules or by special order of the Chief ....
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....procedure for appointment of Members and Chairman of the Public Service Commission till such time a fair, rational, objective and transparent policy to meet the mandate of Article 14 of the Constitution is made. I, therefore, agree with Mr. Rao that the Full Bench of the High Court has decided issues which were not referred to it by the Division Bench of the High Court and the judgment dated 17.08.2011 of the Full Bench of the High Court was without jurisdiction. 29. I may next consider the contention of Mr. Rao that as the Constitution has left it to the discretion of the State Government to select and appoint the Chairman and Members of a State Public Commission, the High Court cannot direct the Government to exercise its discretion by following a procedure prescribed by the High Court. Mr. Rao has relied on Article 316 of the Constitution and the decision of this Court in Mohinder Singh Gill & Anr. v. The Chief Election Commissioner, New Delhi & Ors. [(1978) 1 SCC 405]. Article 316 of the Constitution of India is quoted hereinbelow: "316. Appointment and term of office of members.- (1) The Chairman and other members of a Public Service Commission shall be appointed, in the ca....
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....n Mohinder Singh Gill & Anr. v. The Chief Election Commissioner, New Delhi & Ors. (supra) that an authority has implied powers to make available and carry into effect powers expressly conferred on it. Thus, under Article 316 of the Constitution, the Governor of a State has not only the express power of appointing the Chairman and other Members of Public Service Commission but also the implied powers to lay down the procedure for appointment of Chairman and Members of the Public Service Commission and the High Court cannot under Article 226 of the Constitution usurp this constitutional power of the Government and lay down the procedure for appointment of the Chairman and other Members of the Public Service Commission. The Full Bench of the High Court, therefore, could not have laid down the procedure for appointment of the Chairman and Members of the Punjab Public Service Commission and the Haryana Public Service Commission by the impugned judgment dated 17.08.2011. 30. Having held that the Full Bench of the High Court has in its judgment dated 17.08.2011 acted beyond its jurisdiction and has usurped the constitutional power of the Governor in laying down the procedure for appointm....
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.... the Punjab Public Service Commission between 1996 to 2002 and as has been noted in the judgment of S.B. Sinha, J. of this Court in Inderpreet Singh Kahlon and Others v. State of Punjab and Others (supra), allegations were made against him that he got a large number of persons appointed on extraneous considerations including monetary consideration during the period 1998 to 2001 and raids were conducted in his house on more that one occasion and a large sum of money was recovered from his custody and his relatives and FIRs were lodged and criminal cases initiated by the Vigilance Bureau of the State of Punjab. Writing a separate judgment in the aforesaid case, Dalveer Bhandari, J, had to comment: "This unfortunate episode teaches us an important lesson that before appointing the constitutional authorities, there should be a thorough and meticulous inquiry and scrutiny regarding their antecedents. Integrity and merit have to be properly considered and evaluated in the appointments to such high positions. It is an urgent need of the hour that in such appointments absolute transparency is required to be maintained and demonstrated. The impact of the deeds and misdeeds of the constitut....
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....Service Commissions enumerated in Article 320 of the Constitution. Under clause (1) of Article 320 of the Constitution, the State Public Service Commission has the duty to conduct examinations for appointments to the services of the State. Under clause (3) of Article 320, the State Public Service Commission has to be consulted by the State Government on matters relating to recruitment and appointment to the civil services and civil posts in the State, on disciplinary matters affecting a person serving under the Government of a State in a civil capacity, on claims by and in respect of a person who is serving under the State Government towards costs of defending a legal proceeding, on claims for award of pension in respect of injuries sustained by a person while serving under the State Government and other matters. In such matters, the State Public Service Commission is expected to act with independence from the State Government and with fairness, besides competence and maturity acquired through knowledge and experience of public administration. 32. I, therefore, hold that even though Article 316 does not specify the aforesaid qualities of the Chairman of a Public Service Commission....
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....te and hence the Chief Secretary of a State cannot be displaced from his post on the ground that his appointment was arbitrary and violative of Articles 14 and 16 of the Constitution. Mr. Rao also relied on the decision of a two-Judge Bench of this Court in State of West Bengal & Ors. v. Manas Kumar Chakraborty & Ors. (supra) in which it was similarly observed that the post of DG and IG Police was a selection post and it is not open to the courts to sit in appeal over the view taken by the appointing authority with regard to the choice of the officer to be appointed as DG and IG Police and for such selection, the Government of the State must play a predominant role. I am of the considered opinion that the Chairman of the Public Service Commission, who along with its other members has to perform his duties under Article 320 of the Constitution with independence from the State Government cannot be equated with the Chief Secretary or the DG and IG Police, who are concerned solely with the administrative functions and have to work under the State Government. To ensure this independence of the Chairman and Members of the Public Service Commission, clause (3) of Article 316 of the Consti....
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....England; but the scope of those writs also is widened by the use of the expression "nature", for the said expression does not equate the writs that can be issued in India with those in England, but only draws an analogy from them. That apart, High Courts can also issue directions, orders or writs other than the prerogative writs. It enables the High Courts to mould the reliefs to meet the peculiar and complicated requirements of this country. Any attempt to equate the scope of the power of the High Court under Article 226 of the Constitution with that of the English Courts to issue prerogative writs is to introduce the unnecessary procedural restrictions grown over the years in a comparatively small country like England with a unitary form of government to a vast country like India functioning under a federal structure. Such a construction defeats the purpose of the article itself. To say this is not to say that the High Courts can function arbitrarily under this Article. Some limitations are implicit in the article and others may be evolved to direct the article through defined channels. This interpretation has been accepted by this Court in T.C. Basappa v. Nagappa, 1955-1 SCR 250....
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....ana as Advocate in 1982. Practiced Law at District Courts, Ludhiana from 1982 to 2007. Elected as President of District Bar Association, Ludhiana for seven terms." Besides the aforesaid bio-data, there is a certificate dated 06.07.2011 given by the Speaker, Punjab Vidhan Sabha, certifying that Mr. Harish Rai Dhanda, MLA, has resigned from the membership of the 13th Punjab Legislative Assembly with effect from 06.07.2011 and that his resignation has been accepted by the Speaker. The aforesaid materials indicate that Mr. Harish Dhanda had B.A. and LL.B Degrees and was practicing as an Advocate at the District Courts in Ludhiana and had been elected as the President of the District Bar Association, Ludhiana for seven terms and has been member of the Legislative Assembly. These materials do not indicate that Mr. Harish Dhanda had any knowledge or experience whatsoever either in administration or in recruitment nor do these materials indicate that Mr. Harish Dhanda had the qualities to perform the duties as the Chairman of the State Public Service Commission under Article 320 of the Constitution which I have discussed in this judgment. No other information through affidavit has also b....
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....AL NO. 7640 OF 2011 State of Punjab ... Appellant Versus Salil Sabhlok & Ors. ... Respondents WITH CIVIL APPEAL NO. 2685 OF 2012, CIVIL APPEAL NO. 3687 OF 2012 &....
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....the High Court could have entertained a Public Interest Writ Petition in respect of a "service matter", namely, the appointment of Mr. Harish Rai Dhanda as Chairperson of the Punjab Public Service Commission. In my opinion, the appointment of the Chairperson of the Punjab Public Service Commission is not a "service matter" and so a Public Interest Litigation could have been entertained by the High Court. 6. A few procedural issues have also arisen for consideration and they relate to the desirability of making a reference by the Division Bench to the Full Bench of the High Court of issues said to have been settled by this Court; the framing of questions by the Full Bench of the High Court, over and above the questions referred to it; the necessity of impleadment of the State of Haryana in the proceedings before the Full Bench, even though it had no concern with the appointment of the Chairperson of the Punjab Public Service Commission; the validity of the direction given by the Full Bench to produce the advice tendered by the Chief Minister of the State of Punjab to the Governor of the State in respect of the appointment of the Chairperson of the Punjab Public Service Commission; ....
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....age of sixty-five years, and in the case of a State Commission or a Joint Commission, the age of sixty-two years, whichever is earlier: Provided that- (a) a member of a Public Service Commission may, by writing under his hand addressed, in the case of the Union Commission or a Joint Commission, to the President, and in the case of a State Commission, to the Governor of the State, resign his office; (b) a member of a Public Service Commission may be removed from his office in the manner provided in clause (1) or clause (3) of Article 317. (3) A person who holds office as a member of a Public Service Commission shall, on the expiration of his term of office, be ineligible for re-appointment to that office." 9. Two features clearly stand out from a bare reading of Article 316 of the Constitution, and these are: (1) No qualification has been laid down for the appointment of the Chairperson of a State Public Service Commission. Theoretically therefore, the Chief Minister of a State can recommend to the Governor of a State to appoint any person walking on the street as the Chairperson of the State Public Service Commission. (2) The Chairperson of the State Public Service Commission ....
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....from office on the ground of misbehaviour only after an inquiry is held by this Court on a reference made by the President and that inquiry results in a report that he or she ought to be removed on such ground. The Governor of the State is not empowered to remove the Chairperson of the State Public Service Commission even though he or she is the appointing authority. There are, of course, other grounds mentioned in Article 317 of the Constitution but none of them are of any concern for the purposes of this case. 12. A reading of Article 316 and Article 317 of the Constitution makes it clear that to prevent the person walking on the street from being appointed as the Chairperson of a State Public Service Commission, the Constitution has provided that the appointment is required to be made by the Governor of the State, on advice. Additionally, the Chairperson has security of tenure to the extent that that person cannot be effortlessly removed from office even by the President as long as he or she is not guilty of proven misbehaviour, or is insolvent, or does not take up any employment or is not bodily or mentally infirm. There is, therefore, an in- built constitutional check on the ....
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....ety v. Govt. of Haryana, (2002) 6 SCC 269, High Court of Gujarat v. Gujarat Kishan Mazdoor Panchayat, (2003) 4 SCC 712 and B. Srinivasa Reddy v. Karnataka Urban Water Supply & Drainage Board Employees' Association, (2006) 11 SCC 731 (2) held that "even for issuance of a writ of quo warranto, the High Court has to satisfy that the appointment is contrary to the statutory rules." 17. This principle was framed positively in Mahesh Chandra Gupta v. Union of India & Others, (2009) 8 SCC 273 wherein it was said: "In cases involving lack of "eligibility" writ of quo warranto would certainly lie." ii) Is it a service matter? 18. Is the appointment of a person to a constitutional post a "service matter"? The expression "service matter" is generic in nature and has been specifically defined (as far as I am aware) only in the Administrative Tribunals Act, 1985. Section 3(q) of the Administrative Tribunals Act is relevant in this regard and it reads as follows: "3. Definitions.-In this Act, unless the context otherwise requires,- (q) "service matters", in relation to a person, means all matters relating to the conditions of his service in connection with the affairs of the Union or of any....
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....itutional creation, the principles of service law that are ordinarily applicable in instances of dismissals of government employees cannot be extended to the proceedings for the removal and suspension of the members of the said Commissions." 23. Finally, in Mehar Singh Saini, Chairman, Haryana Public Service Commission, In re, (2010) 13 SCC 586 a distinction was made between service under the Government of India or a State Government and a constitutional body like a Public Service Commission. It was observed that, "A clear distinction has been drawn by the Framers [of our Constitution] between service under the Centre or the States and services in the institutions which are creations of the Constitution itself. Article 315 of the Constitution commands that there shall be a Union Public Service Commission for the Centre and State Public Service Commissions for the respective States. This is not, in any manner, linked with the All-India Services contemplated under Article 312 of the Constitution to which, in fact, the selections are to be made by the Commission. The fact that the Constitution itself has not introduced any element of interdependence between the two, undoubtedly, poin....
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.... the remedy to a person aggrieved by an appointment to a constitutional position like the Chairperson of a Public Service Commission? 32. About twenty years ago, in a case relating to the appointment of the President of a statutory tribunal, this Court held in R.K. Jain v. Union of India, (1993) 4 SCC 119 that an aggrieved person - a "non- appointee" - would alone have the locus standii to challenge the offending action. A third party could seek a remedy only through a public law declaration. This is what was held: "In service jurisprudence it is settled law that it is for the aggrieved person i.e. non-appointee to assail the legality of the offending action. Third party has no locus standi to canvass the legality or correctness of the action. Only public law declaration would be made at the behest of the petitioner, a public-spirited person." 33. This view was reiterated in B. Srinivasa Reddy. Therefore, assuming the appointment of the Chairperson of a Public Service Commission is a "service matter", a third party and a complete stranger such as the writ petitioner cannot approach an Administrative Tribunal to challenge the appointment of Mr. Dhanda as Chairperson of the Punjab....
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....h Judges". 37. More recently, such a writ was issued by this Court was in Kumar Padma Prasad v. Union of India, (1992) 2 SCC 428 when this Court declared that Mr. K.N. Srivastava was not qualified to be appointed a Judge of the Gauhati High Court even after a warrant for his appointment was issued by the President under his hand and seal. This Court, therefore, directed: "As a consequence, we quash his appointment as a Judge of the Gauhati High Court. We direct the Union of India and other respondents present before us not to administer oath or affirmation under Article 219 of the Constitution of India to K.N. Srivastava. We further restrain K.N. Srivastava from making and subscribing an oath or affirmation in terms of Article 219 of the Constitution of India and assuming office of the Judge of the High Court." 38. Similarly, in N. Kannadasan v. Ajoy Khose, (2009) 7 SCC 1 this Court held that Justice N. Kannadasan (retired) was ineligible to hold the post of the President of the State Consumer Redressal Forum. It was then concluded: "The superior courts may not only issue a writ of quo warranto but also a writ in the nature of quo warranto. It is also entitled to issue a writ o....
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....In regard to the second requirement, it was said: "We would therefore like to strongly impress upon every State Government to take care to see that its Public Service Commission is manned by competent, honest and independent persons of outstanding ability and high reputation who command the confidence of the people and who would not allow themselves to be deflected by any extraneous considerations from discharging their duty of making selections strictly on merit." 42. In In R/O Dr Ram Ashray Yadav, Chairman, Bihar Public Service Commission, (2000) 4 SCC 309 this Court considered the functional requirements of the Public Service Commission and what is expected of its members and held: "Keeping in line with the high expectations of their office and need to observe absolute integrity and impartiality in the exercise of their powers and duties, the Chairman and members of the Public Service Commission are required to be selected on the basis of their merit, ability and suitability and they in turn are expected to be models themselves in their functioning. The character and conduct of the Chairman and members of the Commission, like Caesar's wife, must therefore be above board. ....
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.... their function in terms of Article 320 have become victims of spoils system. "In the beginning, people with the distinction in different fields of administration and social life were appointed as Chairman and members of the Public Service Commissions but with the passage of time appointment to these high offices became personal prerogatives of the political head of the Government and men with questionable background have been appointed to these coveted positions. Such appointees have, instead of making selections for appointment to higher echelons of services on merit, indulged in exhibition of faithfulness to their mentors totally unmindful of their constitutional responsibility." 47. While it is difficult to summarize the indicators laid down by this Court, it is possible to say that the two most important requirements are that personally the Chairperson of the Public Service Commission should be beyond reproach and his or her appointment should inspire confidence among the people in the institution. The first 'quality' can be ascertained through a meaningful deliberative process, while the second 'quality' can be determined by taking into account the constitutional, functional....
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....nce of Respondent No.3 [Mr. Dhanda] and with his political influence, the Forest Minister initiated the proposal for his transfer from Ropar, which was approved by the Chief Minister..... ....But a transfer made in this manner when the work and conduct of the officer is not only being appreciated by the Secretary, but also by the Finance Minister is unwarranted and also demoralizing. These are the situations when the courts have to interfere to prevent injustice to employees who are doing their duty according to rules." 53. While it may be that Mr. Dhanda was given a clean chit by the Division Bench when the case was first before it, the fact is that information subsequently came to the notice of the High Court which indicated that Mr. Dhanda was not above using his political influence to get his way. That Mr. Dhanda came in for an adverse comment in a judicial proceeding was certainly known to him, since he was a party to the case before the Central Administrative Tribunal. But he did not disclose this fact to the Chief Minister. In the deliberative process (or whatever little there was of it) the Chief Minister did not even bother to check whether or not Mr. Dhanda was an approp....
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....iation weighed over everything else in his appointment as the Chairperson of the Punjab Public Service Commission. 58. But, as pointed out in Mahesh Chandra Gupta the suitability of a person to hold a post is a matter of opinion and this is also a peg on which learned counsel supporting Mr. Dhanda rest their case. The "suitability test" is said to be beyond the scope of judicial review. 59. The third reason is supported by the writ petitioner through the finding given by the High Court that the official file relating to the appointment of Mr. Dhanda as the Chairperson of the Punjab Public Service Commission contains only his bio-data, a certificate to the effect that he resigned from the membership of the Punjab Legislative Assembly on 6th July 2011 and his resignation was accepted the same day and the advice of the Chief Minister to the Governor apparently to appoint Mr. Dhanda as the Chairperson of the Punjab Public Service Commission. The advice was immediately acted upon and Mr. Dhanda was appointed as the Chairperson of the Punjab Public Service Commission by a notification published on 7th July 2011. In other words, the entire exercise relating to the appointment of the Cha....
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....for which the Public Service Commission was created. There is nothing to show that any background check was carried out to ascertain whether Mr. Dhanda had come in for any adverse notice, either in a judicial proceeding or any police inquiry. It must be remembered that the appointment of Mr. Dhanda was to a constitutional post and the basics of deliberation before making the selection and appointment were imperative. In this case, clearly, there was no deliberative process, and if any semblance of it did exist, it was irredeemably flawed. The in- built constitutional checks had, unfortunately, broken down. 64. In Centre for PIL this Court struck down the appointment of the Central Vigilance Commissioner while reaffirming the distinction between merit review pertaining to the eligibility or suitability of a selected candidate and judicial review pertaining to the recommendation making process. In that case, the selection of the Central Vigilance Commissioner was made under Section 4(1) of the Central Vigilance Commission Act, 2003 (for short the Act) which reads as follows: "4. Appointment of Central Vigilance Commissioner and Vigilance Commissioners.-(1) The Central Vigilance Com....
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.... is for the State Government to decide who would be the most suitable person to be appointed as the Chairperson of the Public Service Commission. 69. In this regard, reliance was placed on three decisions. In the first such decision, that is, E.P. Royappa v. State of Tamil Nadu, (1974) 4 SCC 3 the post of the Chief Secretary of the State was under consideration. This Court observed that the post is a sensitive one. The post is one of confidence and the Chief Secretary is a lynchpin in the administration of the State. Therefore, the Chief Secretary and the Chief Minister of the State must have complete rapport and understanding between them. If the Chief Secretary forfeits the confidence of the Chief Minister, then he may be shifted to some other post in the larger interests of the administration, provided that no legal or constitutional right of the Chief Secretary is violated. 70. The second decision relied upon was State of W.B. v. Manas Kumar Chakraborty, (2003) 2 SCC 604. That case concerned itself with the post of the Director General and Inspector General of Police (DG&IP) in a State. This Court observed that the said post was of a very sensitive nature. It could only be fi....
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....nd requirements of the State. The underlying premise also is that the State Government or the Chief Minister has confidence that the appointee will deliver the goods, as it were, and both are administratively quite compatible with each other. If there is a loss of confidence or the compatibility comes to an end, the appointee may simply be shifted out to some other assignment, provided no legal or constitutional right of the appointee is violated. 74. The question of the Chief Minister or the State Government having "confidence" (in the sense in which the word is used with reference to the Chief Secretary or the Director General of Police or any important statutory post) in the Chairperson of a State Public Service Commission simply does not arise, nor does the issue of compatibility. The Chairperson of a Public Service Commission does not function at the pleasure of the Chief Minister or the State Government. He or she has a fixed tenure of six years or till the age of sixty two years, whichever is earlier. Security of tenure is provided through a mechanism in our Constitution. The Chairperson of a State Public Service Commission, even though appointed by the Governor, may be rem....
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....uch Member or as may be specially permitted by the Governor." 79. There is, therefore, a great deal of solemnity attached to the post of the Chairperson of the Public Service Commission. The Chairperson takes the oath of allegiance to India and to the Constitution of India - not an oath of allegiance to the Chief Minister. An appointment to that position cannot be taken lightly or on considerations other than the public interest. Consequently, it is not possible to accept the contention that the Chief Minister or the State Government is entitled to act only on the perceived suitability of the appointee, over everything else, while advising the Governor to appoint the Chairperson of the Public Service Commission. If such a view is accepted, it will destroy the very fabric of the Public Service Commission. Finding an appropriate Chairperson: 80. Taking all this into consideration, how can an appropriate person be searched out for appointment to the position of a Chairperson of a Public Service Commission? This question arises in the context of the guidelines framed by the High Court and which have been objected to by the State of Punjab and the State of Haryana. This Court found i....
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....pending before this Court which itself reflects that all is not well with the functioning of the Commissions." 84. Apart from this Court's inability to read qualifications into Article 316 of the Constitution, it was submitted by learned counsel supporting the cause of Mr. Dhanda that this Court cannot direct that legislation be enacted on the subject. Reference was made to Supreme Court Employees' Welfare Assn. v. Union of India, (1989) 4 SCC 187 wherein it was held: "There can be no doubt that no court can direct a legislature to enact a particular law. Similarly, when an executive authority exercises a legislative power by way of subordinate legislation pursuant to the delegated authority of a legislature, such executive authority cannot be asked to enact a law which he has been empowered to do under the delegated legislative authority." A similar view was expressed in Asif Hameed v. State of J & K, 1989 Supp (2) SCC 364. It was held in that decision that: "The Constitution has laid down elaborate procedure for the legislature to act thereunder. The legislature is supreme in its own sphere under the Constitution. It is solely for the legislature to consider as to when and....
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....rnment servants (drawn usually from the ICS) or academicians of high standing in their field. (b) The Commission enjoyed excellent reputation for objectivity, transparency and fairplay. "2.5.4 But in recent years, this Constitutional body has suffered extensive loss of reputation in many States, mainly on account of (a) charges of corruption, favouritism and nepotism in matters of recruitment and (b) use of archaic processes and procedures in its functioning which leads to inordinate delays. For example, the civil services examinations conducted by a State Public Service Commission take a minimum time period of one and half year to complete. In some cases, it may take even longer. "2.5.6.6 The Commission is of the view that the intention behind creation of an autonomous Public Service Commission as a Constitutional authority was to create a body of achievers and ex- administrators who could select meritorious candidates for recruitment and promotion to various civil service positions under the State Government with utmost probity and transparency. There is need to take steps to ensure that only persons of high standing, intellectual ability and reputation are selected as Chairma....
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....in this regard, and in the light of the experience gained over the last several decades coupled with the views expressed by the Law Commission, the Second Administrative Reform Commission and the views expressed by this Court from time to time, it is imperative for good governance and better administration to issue directions to the Executive to frame appropriate guidelines and parameters based on the indicators mentioned by this Court. These guidelines can and should be binding on the State of Punjab till the State Legislature exercises its power. Additional questions framed by the Full Bench: 93. Learned counsel supporting the appointment of Mr. Dhanda submitted that the Full Bench could not expand the scope of the reference made to it by the Division Bench, nor could it frame additional questions. 94. Generally speaking, they are right in their contention, but it also depends on the reference made. 95. The law on the subject has crystallized through a long line of decisions and it need not be reiterated again and again. The decisions include Kesho Nath Khurana v. Union of India, 1981 Supp SCC 38 (The Division Bench ought to have sent the appeal back to the Single Judge with ....
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....e view that these questions need to be considered by a Bench of three Hon'ble Judges. Accordingly, we refer the matter to a Bench of three Hon'ble Judges." 98. On the basis of the submissions made, the Full Bench reformulated the questions referred to it in the following words: "1. Whether the present petition is not maintainable as the questions raised are the concluded questions by the decisions of the Supreme Court? 2. Whether the present petition is public interest litigation in a service matter, and hence not maintainable on the said ground also? 3. Whether this Court can issue directions in the nature of guidelines for a transparent, fair and objective procedure to ensure that the persons of impeccable personal integrity, caliber and qualifications alone are appointed as the members / Chairman of State Public Service Commission? 4. Whether in exercise of power of judicial review, it could be stated that the decision making process leading to the appointment of Respondent No. 4 [Mr. Harish Rai Dhanda] as Chairman of Commission was arbitrary, capricious or violative of Article 14?" 99. The reformulation was explained by the Full Bench by stating that the first two....
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.... the Chairperson of the Punjab Public Service Commission. This Court had already laid down the law in Mehar Singh Saini and the High Court was merely required to follow it. The argument puts the issue rather simplistically. The Division Bench was fully entitled to refer to the Full Bench the applicability of the decision of this Court to the facts of the case and for further follow up action, if necessary. This argument is mentioned only because it was raised and nothing really turns on it, except to the extent that it is another way of questioning the maintainability of the writ petition filed in the High Court. Impleadment of the State of Haryana by the Full Bench: 104. The justification given by the Full Bench for suo motu impleading the State of Haryana and the Haryana Public Service Commission is because "issues common in respect of the States of Punjab and Haryana, were likely to arise." I think this is hardly a reason for impleadment. The case concerned the appointment of the Chairperson of the Punjab Public Service Commission and it should have and could have been left at that without enlarging the scope of the controversy before it. Production of the Chief Minister's ad....