TaxTMI 
TaxTMI 
1994 (7) TMI 374
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....s as well as the said Transferred Case were set down together for hearing, we have heard learned Counsel on all sides and are proceeding to dispose them of by this common judgment. 2. Since a correct understanding of the factual background of the Special Leave Petitions and the Transferred Case, becomes necessary for their proper disposal, such background calls for a brief mention. 3. Dr. Thakur was appointed as a Member of the BPSC on 4th March, 1991. By a Writ Petition, C.W.J.C. No. 446 of 1992 filed in the Patna High Court by an advocate, issuance of a writ of qua warranto for removal of Dr. Thakur from his membership of the BPSC was sought on the ground that the infirmity of blindness suffered by him, had made him unfit to continue as a Member of the BPSC. The High Court, no doubt, dismissed that writ petition by its judgment dated the 16th January, 1992, but observed therein thus : "Dr. Thakur as long as was not removed form the membership of the BPSC in accordance with law, was entitled to and shall be given by the BPSC and its Chairman and Officers/employees all the facilities and amenities as enjoyed by any other Member of the BPSC and in such matters there should not....
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....rit petition filed by Dr. Thakur. The second interim order made in that Writ Petition by the High Court just two days later on 1st September, 1992, as appears from that order itself, was made for the reasons that no one appeared in Court on behalf of the BPSC on that day and that no one produced the decision which should have been taken by the BPSC pursuant to Court's earlier Order dated 27th August, 1992. The order further discloses that leave was given to Dr. Thakur to join all the members of the Commission including the BPSC through its Chairman as respondents in the Writ Petition. Then follows the third interim order made in the Writ Petition by the High Court on 7th September, 1992, which read: This matter would appear tomorrow when the Chairman, Bihar Public Service Commission, is directed to appear in Court with all relevant records in connection with this matter, failing which non-bailable warrant of arrest shall be issued against him. Let it be recorded that no one appears on behalf of the Chairman except for asking adjournment by a junior advocate and no record is produced. Let it appear tomorrow under the same heading. ....
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....ave stated, we may now proceed to consider and dispose of the Special Leave Petitions and the Writ Petition. C.W.J.C. No. 1898 to 1992 (the transferred case). 10. The reliefs sought for, by Dr Thakur, the member of the BPSC, in his writ petition (the transferred case), filed invoking the jurisdiction of the High Court under Article 226 of the Constitution were, these: (A) To issue an appropriate writ/s, direction/s, order/s for the retrieval of all the facilities unfailingly enjoyed by the petitioner till the 1st October, 1991 which inter alia, include (i) the well furnished officer-chamber house in room No. 2 of the administrative building containing telephone, cooler, one English Typewriter, two steel almirahs, ante-room for P.A. and the toilet attached to the Chamber. (ii) the service of reader, Mr. R.P. Verma, appointed under Sub-regulation 2(b) of the Bihar Public Service Commission Regulation (called in short hereinafter Regulation) read with the Education Department letter No. J/M/-07/83 dated 30.4.1985, and the Finance Department Circular No. 3/A-3-2/91/3985/F92) of 25.7.91. (iii) P.A. of confidence, Shri S.M. D....
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.... 12. Chapter II of Part XIV of the Constitution contains provisions relating to Public Service Commissions. Article 315 in that Chapter relates to establishment of Public Service Commissions for the Union and for the State. Article 316 therein which refers to appointment and term of office of Chairman and members of the Public Service Commissions, states that such appointments of Chairman and members to a State Public Service Commission are to be done by the Governor of the State concerned subject to the eligibility criteria to be satisfied by the appointees as provided for under the proviso to that Article. Article 316(1-A) therein Which specifically deals with the office of the Chairman of the Commission reads: If the office of the Chairman of the Commission becomes vacant or if any such Chairman is by reason of absence or for any other reason unable to perform the duties of his office, those duties shall, until some person appointed under Clause (i) to the vacant office has entered on duties thereof or, as the case may be, until the Chairman has resumed his duties, be performed by such one of the other members of the Commission as the President, in the case of th....
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.... the conditions of service of a member of the Public Service Commission, by stating that the conditions of service of a member shall not be varied to his disadvantage after his appointment. 15. However, Article 319 therein prohibits the holding of governmental offices by the Chairman and members of Commission on ceasing to be Chairman or members. 16. When it comes to Article 320 therein, it deals with functions of Public Service Commissions. Clause (i) thereof states that it shall be the duty of the Union and the State Public Service Commissions to conduct examinations for appointments to the services of the Union and the services of the State respectively. Clause (2) thereof refers to the duty to be performed by the Union Public Service Commission in situations mentioned therein. Clause (3) thereof refers to duty of the Union Public Service Commission or the State Public Service Commission, as the case may be, to advise on matters on which it shall be consulted, or referred for its advice. Article 321 therein empowers the Parliament and the Legislature of a State to provide by legislation, for the exercise of additional functions by the concerned Commission as respects the s....
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....egulations 5A to 7 thereof deal with the matters concerning leave of the Chairman and the members of the Commission. Regulation 8 says, "when the Chairman is absent on leave or otherwise, the senior most Member may hold current charge of the administrative duties of the Chairman and be allowed a special pay of Rs. 200 per month during such period." Then Regulations 9, 10, 11, 12, 13, 14 and 15 deal with pensions payable to the Chairman and the members of the Commission. Regulation 16 deals with travelling and halting allowances of the Chairman and members. Coming to Regulation 17 it empowers the Governor to grant special compensatory allowance as may be fixed by him. Regulation 18 says that medical facilities admissible to the All India Service officers and their family will be admissible to the Chairman and the members of the BPSC and their families. Regulation 19 thereof says that the Chairman and the members of the Commission may recess at Ranchi on their own expense for a period not exceeding three months in any calendar year subject to the following conditions: (a) That the recess will be continuous : and (b) that the Chairman and other members ma....
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....petition (transferred case). 25. What is claimed in prayer paragraph (A) as relief of retrieval of facilities, is founded mainly on two grounds : (i) Petitioner (Dr. Thakur), who is a Member of the BPSC, is entitled to have a well furnished separate chamber in the Administrative Building, when the Chairman of the BPSC, who is also a member of the BPSC within the meaning of proviso of Clauses (1), (2) and (3) of Article 316 and Article 318 of the Constitution and Regulation 2(d) of the Regulations is having a well furnished separate chamber in the Administrative Building, inasmuch as he was given such separate chamber earlier, (ii) When the proviso to Article 318 of the Constitution has protected the service conditions of a member by stating that 'the conditions of service of a member of a Public Service Commission shall not be varied to his disadvantage after his appointment', the facilities which were given to the petitioner after his appointment could not have been denied to him. 26. Insofar as the relief as to direction to be given to the State Government for reporting to the President of India for taking penal action against the Chairman sought by the petitioner i....
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....t petition which Dr. Thakur had filed with reference to the very allegation now put forward, against the Chairman and the Secretary of the BPSC, when was rejected by the High Court earlier, the question of seeking the same relief over again can neither arise nor be permitted to be raised. 30. Therefore, what now, remains for our consideration is the relief sought by Dr. Thakur in prayer paragraph (A) of the writ petition (the Transferred Case). 31. The facilities, the retrieval of which is sought by way of relief here by Dr. Thakur were those which he claimed to have enjoyed for a short time after his appointment on 4th March, 1991 till 1st October, 1991. Those facilities, according to him comprised of, firstly, the well-furnished office room in the administrative building containing telephone, cooler, one English typewriter, two steel almirahs, anti-room for P.A. and the toilet attached to the room; secondly, the services of a reader, Mr. R.P. Verma, who had been appointed for the petitioner's benefit; and thirdly, services of Mr. S.N. Das, his P.A. of confidence, and orderly of his choice, Mr Abhinandan Prasad Badal. 32. The contention of Shri R.K. Garg, the learned ....
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....footing as urged. The Chairman cannot be treated on par with a member, becomes clear not only from Regulation 4 of the Regulations which provides for higher salary to the Chairman and lower salary for the member, but also from Regulation 8 thereof which provides for payment of a special allowance to a senior member who holds current charge of administrative duties of the Chairman. Further, the Chairman and the member of the Public Service Commission cannot be treated as persons standing on the same footing in respect to every matter, when the Constitution in several of its Articles treats the Chairman and the members alike for certain purposes and in several other Articles treats them differently for certain other purposes by use of the words 'the Chairman and the member', and 'other than the Chairman'. Therefore, under the scheme of the provisions in the Constitution and the scheme of the Regulations to which we have already adverted. Chairman of a public Service Commission has an exclusive role to play in discharge of administrative duties of his office as a chairman while a member cannot have any role to play in that regard unless otherwise required. As the Chief....
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....es claimed by the petitioner as a matter of his constitutional or legal right, there should be no reason for the petitioner to feel, as urged by Shri R.K. Garg, that as a member of the Public Service Commission, he is humiliated by withdrawal of the facilities of Public Service Commission provided to him earlier by the Chairman as we were told on behalf of the BPSC that almost all the facilities which he had earlier are restored and the same was not disputed. However, Shri R.K. Garg's insistence that a separate room with toilet facility shall be ordered to be provided for the petitioner, in that, according to him such facility was required by him not only as a completely blind person but also for effective functioning as a member, cannot bear fruit since it was submitted on behalf of the BPSC that there were- hardly three rooms in its Administrative Building available for the BPSC to function, one room cannot be spared exclusively for use of the petitioner. We cannot say anything in this matter, in that the facilities of accommodation to be provided to the members of the BPSC for their office work has to necessarily depend upon the accommodation available for its functioning. A....
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....C including the BPSC through its chairman as party- respondents in the writ petition, appears to have been indeed made for the reasons that no one appeared on behalf of the BPSC in the court and that no one produced the decision which was asked to be taken by the BPSC. Then comes the third interim order dated 7.9.1992 which says that the matter would appear the next day when the Chairman should appear in the Court with all the records in connection with the matter, and a non-bailable warrant for his arrest would be issued if he does not appear the next day with the required records. The fourth interim order made thereafter by the Court says that a decision was to be taken by the commission with regard to the petition of Dr. Thakur without allowing the Chairman and Dr. Thakur to vote on the decision. This interim order to which we have adverted to earlier, is reproduced in extenso for the sake of knowing its clear purport: ...As the questions, which are being raised as to whether the decision taken by the Chairman regarding Dr. Thakur is the decision of the Commission or not, that was the whole purpose of our earlier orders. Accordingly, we direct that the meeting be ....
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....ponsibility of carrying on the functions of the BPSC by appointing its own chairman for conducting a meeting of the BPSC. It is no doubt open to the Court to reject the affidavit filed on behalf of the BPSC by the Chairman on its view that it cannot be regarded as the opinion of the BPSC. But, in a case, even where such decision of the Commission as a body had been called for, the High Court was not enabled, in the purported exercise of its jurisdiction under Article 226 of the Constitution, to make such interim orders which would have made the functioning of the BPSC, a constitutional institution, a mockery in the eyes of the general public and exposed its constitutional functionaries to ridicule. It is true that Article 226 of the Constitution, empowers the High court to exercise it discretionary jurisdiction to issue directions, orders or writs, including writs in the nature of habeas corpus, certiorari, quo warranto and mandamus or any of them for the enforcement of the rights conferred under the Constitution or for an other purpose, but such discretion to issue directions or writs on orders conferred on the High Court under Article 226 being a judicial discretion to be exercis....