●These appeals are filed before the Supreme Court of India against the judgement and orders of the Punjab and Haryana High Court, a very important question of law arises for ...
No Acts & Articles mentioned in this case
Page 1
Reportable
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL 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
AND
CIVIL APPEAL NOs. 1365-1367 OF 2013
(Arising out of S.L.P. (CIVIL) NOs. 22010-22012 OF 2011)
J U D G M E N T
A. K. PATNAIK, J.
Leave granted in S.L.P. (C) Nos. 22010-22012 of 2011.
2. In these appeals against the judgment and orders of the Punjab
and Haryana High Court, a very important question of law arises for our
decision: whether the High Court in exercise of its writ jurisdiction under
Page 2 Article 226 of the Constitution can lay down the procedure for the
selection and appointment of the Chairman of the State Public Service
Commission and quash his appointment in appropriate cases.
Facts:
3. The relevant facts very briefly are that by notification dated
07.07.2011, the State Government of Punjab appointed Mr. Harish
Dhanda as the Chairman of the Punjab Public Service Commission. On
10.07.2011, the respondent No.1 who was an Advocate practicing at the
Punjab and Haryana High Court, Chandigarh, filed a public interest
litigation under Article 226 of the Constitution (Writ Petition No.11846 of
2011) 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
Page 3 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
Public Service Commission [(2000) 4 SCC 309], Ram Kumar Kashyap
and another vs. Union of India and another (AIR 2010 SC 1151) and In re
Mehar Singh Singh Saini, Chairman, HPSC and others [(2010) 13 SCC
586], the Division Bench held that it is not disputed that the persons to
be appointed as Chairman and Members of the Public Service
Commission must have competence and integrity. The Division Bench
of the High Court further held that a question, therefore, arises as to
how such persons are to be identified and selected for appointment as
Chairman of the Public Service Commission and whether, in the present
case, the procedure adopted was valid and if not, the effect thereof.
The Division Bench further observed that these questions need to be
considered by a Bench of three Judges and referred the matter to the
Bench of three Judges of the High Court.
5. Pursuant to the order dated 13.07.2011 of the Division Bench, the
Page 4 Chief Justice of the High Court constituted a Full Bench. On 19.07.2011,
the Full Bench of the High Court passed an order calling for certain
information from the State Government of Punjab and the Punjab Public
Service Commission on the number of posts filled up by the Public
Service Commission in the last five years, the number of posts taken out
from the purview of the Public Service Commission in the last five years
and regulations, if any, framed by the State Government. On
01.08.2011, the Full Bench of the High Court also passed orders
requiring the Union of India to furnish information on three questions:
(1) Whether there were any criteria or guidelines to empanel a
candidate for consideration for appointment as a Member of the Union
India Public Service Commission; (2) Which authority or officer prepares
such panel; and (3) What methodology is kept in view by the authority
while preparing the panel.
6. Aggrieved by the order dated 13.07.2011 of the Division Bench of
the High Court and the orders dated 19.07.2011 and 01.08.2011 of the
Full Bench of the High Court, the State of Punjab filed Special Leave
Petitions (C) Nos.22010-22012 of 2011 before this Court. On
05.08.2011, this Court, while issuing notice in the Special Leave
Petitions, made it clear that issuance of notice in the Special Leave
Petitions will not come in the way of the High Court deciding the matter
Page 5 and the State of Punjab is at liberty to urge all contentions before 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 be serving Principal
Secretary i.e. not below the rank of Financial Commissioner and
the third member can be serving or retired Bureaucrat not below
the rank of Financial Commissioner, or member of the Armed
Page 6 Forces not below the rank of Brigadier or of equivalent rank.
3. The Search Committee shall consider all the names which
came to its notice or are forwarded by any person or by any
aspirant. The Search Committee shall prepare panel of suitable
candidates equal to the three times the number of vacancies.
4. While preparation of the panel, it shall be specifically elicited
about the pendency of any court litigation, civil or criminal,
conviction or otherwise in a criminal court or civil court decree or
any other proceedings that may have a bearing on the integrity
and character of the candidates.
5. Such panel prepared by the Search Committee shall be
considered by a High Powered Committee consisting of Hon’ble
Chief Minister, Speaker of Assembly and Leader of Opposition.
6. It is thereafter, the recommendation shall be placed with all
relevant materials with relative merits of the candidates for the
approval of the Hon’ble Governor after completing the procedure
before such approval.
7. The proceedings of the Search Committee shall be conducted
keeping in view the principles laid down in Centre for Public
Interest Litigation’s case (supra).
By the order dated 17.08.2011, the Full Bench of the High Court also
ordered that the writ petition be listed before the Division Bench to be
constituted by the Chief Justice of the High Court.
8. Pursuant to the judgment dated 17.08.2011, the Division Bench
constituted by the Chief Justice of the High Court quashed the
appointment of Mr. Harish Dhanda as Chairman of the Punjab Public
Service Commission and disposed of the writ petition of respondent No.1
in terms of the judgment of the Full Bench. Aggrieved, the State of
Page 7 Punjab, State of Haryana and Mr. H.R. Dhanda have filed these appeals
against the judgment and orders dated 17.08.2011 of the Full Bench and
the Division Bench of the High Court.
Contentions of the learned counsel for the parties:
9. Mr. P.P. Rao, learned senior counsel for the State of Punjab,
submitted that the writ petition before the High Court was a service
matter and could not have been entertained by the High Court as a
Public Interest Litigation at the instance of the writ petitioner. 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
Page 8 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, qualifications and
stature for appointment as Chairman/Members of the Public Service
Commission and this law declared by this Court was binding on all Courts
in India and hence, there was no necessity whatsoever for the Division
Bench to make a reference to a Full Bench on the very same questions of
law.
11.Mr. Rao submitted that this Court has held in Kesho Nath Khurana
v. Union of India & Ors. [(1981) Supp.1 SCC 38] that a Court to which a
reference is made cannot adjudicate upon an issue which is not referred
to it and yet the Full Bench of the High Court in this case has gone
beyond the order of reference passed by the Division Bench and held
that until a fair, rational, objective and transparent policy to meet the
mandate of Article 14 of the Constitution is laid down, the procedure laid
down by the Full Bench must be followed and has also declared the
appointment of Mr. Harish Dhanda as Chairman of the Public Service
Commission to be invalid. He also relied on the Punjab High Court Rules
to argue that the Full Bench can be constituted only for answering the
questions referred to it by the Division Bench of the High Court. He
vehemently argued that these provisions of the Rules of the Punjab High
Page 9 Court have been violated and the judgment of the Full Bench of the High
Court is clearly without jurisdiction. He next submitted that the direction
given by the Full Bench in its order dated 01.08.2011 to produce the file
containing the advice tendered by the Chief Minister to the Governor is
clearly unconstitutional and ultra vires of Article 163(3) of the
Constitution and relied on the decision of this Court in The State of
Punjab v. Sodhi Sukhdev Singh [(1961) 2 SCR 371] on this point.
12.Mr. Rao next submitted that Article 316 of the Constitution has left
it to the discretion of the State Government to select and appoint the
Chairman and Members of a Public Service Commission and having
regard to the doctrine of separation of powers which is part of the basic
structure of the Constitution, the High Court cannot direct the
Government to exercise its discretion by following a procedure
prescribed by the High Court. He cited Supreme Court Employees
Welfare Association v. Union of India & Anr. [(1989) 4 SCC 187], Suresh
Seth v. Commissioner of Indore Municipal Corporation [(2005) 13 SCC
287], Divisional Manager, Aravali Golf Club & Anr. v. Chander Hass &
Anr. [(2008) 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,
Page 10 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 that
this a fit case in which the order of the Division Bench dated 13.07.2011
and the interim orders as well as the judgment of the Full Bench dated
17.08.2011 and the final order of the Division Bench dated 17.08.2011 of
the High Court quashing the appointment of Mr. Harish Dhanda as well
as consequential orders passed by the Government implementing the
impugned judgment and order provisionally should be set aside by this
Court.
14.Mr. U.U. Lalit, learned senior counsel appearing for the respondent
Page 11 No.1 who had filed the writ petition before the High Court, referred to the
proclamation by the Queen in Council on 1
st
November, 1858 to the
Princes, Chiefs and the People of India to show that in the civil and
military services of the East India Company persons with education,
ability and integrity were to be recruited. He also referred to the report
on the Public Service Commission, 1886-87 wherein the object of Public
Service Commission was broadly stated to be to devise a scheme which
may reasonably be hoped to possess the necessary elements of finality,
and to do full justice to the claims of natives of India to higher and more
extensive employment in the public service. He also referred to the
report of the Royal Commission on the superior services in India dated
27.03.1924 and in particular Chapter IV thereof on “The Public Service
Commission” in which it is stated that wherever democratic institutions
exist, experience has shown that to secure an efficient civil service it is
essential to protect it from political or personal influences and to give it
that position of stability and security which is vital to its successful
working as the impartial and efficient instrument by which Governments,
of whatever political complexion, may give effect to their policies and for
this reason Public Service Commission should be detached so far as
practicable from all political associations. He also referred to the
speeches of Dr. B.R. Ambedkar, Mr. Jaspat Roy Kapoor, Pandit Hirday
Nath Kunzru and Mr. H.V. Kamath in the Constitutional Assembly and
Page 12 argued that to perform this difficult job of finding the best talent for the
State Public Services without any political influence and other
extraneous considerations the Public Service Commission must have a
Chairman of great ability, independence and integrity.
15. Mr. Lalit further submitted that this Court has also 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
Page 13 integrity for being appointed as the Chairman of the State Public Service
Commission. He submitted that it is not only the personal integrity of
the candidate who is to be appointed but also the integrity of the Pubic
Service Commission as an institution which has to be borne in mind
while making the appointment. He referred to the decisions of this Court
in Centre for PIL and Another v. Union of India and Another [(2011) 4
SCC 1] in which a distinction has been made between personal integrity
of a candidate appointed as the Central Vigilance Commissioner and the
integrity of the Central Vigilance Commission as an institution and it has
been held that while recommending a name of the candidate for
appointment as Central Vigilance Commissioner, the question that one
has to ask is whether the candidate recommended to function as the
Central Vigilance Commissioner would be competent to function as a
Central Vigilance Commissioner. He submitted that in the aforesaid
case, this Court has also held that there was a difference between
judicial review and merit review and has further held that the Courts,
while exercising the power of judicial review, are not concerned with the
final decision of the Government taken on merit but are entitled to
consider the integrity of the decision-making process.
17.Mr. Lalit submitted that the writ petitioner challenged the
decision-making process of the Government in selecting and appointing
Mr. Harish Dhanda as Chairman of the Public Service Commission on the
Page 14 ground that it was not an informed process of decision-making in as
much as the State Government has not collected information and
materials on whether Mr. Dhanda had the experience, ability and
character for being appointed as the Chairman of the Public Service
Commission. He submitted that as a matter of fact the State
Government was also not even informed of the fact that the Central
Administrative Tribunal, Chandigarh Bench, in its order dated
15.11.2007 in O.A. No.495/PB/2007 had adversely commented on the
conduct of Mr. Harish Dhanda. He explained that in the aforesaid O.A.,
Mr. Amit Misra, who belonged to the Indian Forest Service and was
posted as Divisional Forest Officer, Ropar in Punjab, had alleged that he
had been transferred out of Ropar and posted as Division Forest Officer,
Ferozpur, because of an incident which had occurred on 21.06.2007 on
account of which he incurred the displeasure of Mr. Harish Dhanda, who
was then the Chief Parliamentary Secretary, Department of Local
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
Page 15 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 the annoyance of Mr. Harish Dhanda and with his
political influence, the Forest Minister initiated the proposal for his
transfer from Ropar, which was approved by the Chief Minister. Mr. Lalit
submitted that this adverse finding of the Central Administrative
Tribunal in a proceeding, in which Mr. Harish Dhanda was also a
respondent, was not brought to the notice of the State Government
when it took the decision to select and appoint Mr. Harish Dhanda as the
Chairman of the Public Service Commission.
18.In reply to the submission of Mr. Rao that the Full Bench had no
jurisdiction to expand the scope of the reference and should have limited
itself to the questions referred to by the Division Bench by the order
dated 13.07.2011, Mr. Lalit submitted that the order dated 13.07.2011 of
Page 16 the Division Bench of the High Court would show that the entire case
was referred to the Full Bench and, therefore, the Full Bench passed the
order dated 17.08.2011 on all relevant aspects of the case. He cited the
decision of this Court in Kerala State Science & Technology Museum v.
Rambal Co. & Ors. [2006) 6 SCC 258] to argue that a reference can also
be made of the entire case to a larger Bench and in such a case, the
larger Bench has to decide the entire case and its jurisdiction is not
limited to specific issues. He also referred to the Rules of the Punjab
High Court to show that the Full Bench of the High Court can also be
constituted to decide the entire case in important matters.
19.On the jurisdiction of the High Court to issue a writ for quashing
the appointment of a Chairman of the Public Service Commission, Mr.
Lalit cited the decision in Dwarka Nath v. Income-tax Officer, Special
Circle, D Ward, Kanpur & Anr. [AIR 1966 SC 81] in which a three-Judge
Bench of this Court has held that Article 226 of the Constitution is
couched in comprehensive phraseology and it ex facie confers wide
power on the High Court to reach injustice wherever it is found. He
submitted that in this decision this Court has also explained that the
High Court under Article 226 of the Constitution can issue writs in the
nature of prerogative writs as understood in England and can also issue
other directions, orders or writs. He vehemently submitted that the
contention on behalf of the appellants that the High Court could not
Page 17 have issued a writ/order quashing the selection and appointment of Mr.
Harish 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 Commission even if
this Court finds infirmities in the impugned orders passed by the Full
Bench and the Division Bench of the High Court.
21.Learned counsel for Mr. Harish Dhanda, adopted the arguments of
Page 18 Mr. P.P. Rao and also submitted that the order of the Central
Administrative Tribunal in O.A. No.495/PB/2007 was filed before the Full
Bench of the High Court on 01.08.2011 which was the last date of
hearing. He submitted that Mr. Harish Dhanda, therefore, did not have
any opportunity to reply before the Full Bench on the findings in the
order of the Central Administrative Tribunal.
22.Mr. P.N. Misra, learned counsel appearing for the State of
Haryana, adopted the arguments of Mr. P.P. Rao and further submitted
that the Full Bench should not have added the State of Haryana as a
party. He also submitted that the Full Bench should not have issued the
directions in its order dated 17.08.2011 to the State of Haryana to adopt
the same procedure for selection and appointment of the Chairman and
Members of the Haryana Public Service Commission when the State of
Haryana had nothing to do with the appointment of Mr. Harish Dhanda
as Chairman of the Punjab Public Service Commission.
Findings of the Court:
23.The first question that I have to decide is whether the High Court
was right in entertaining the writ petition as a public interest litigation at
the instance of the respondent No.1. I have perused the writ petition
CWP No.11846 of 2011, which was filed before the High Court by the
respondent No.1, and I find that in the first paragraph of the writ petition
the respondent No.1 has stated that he was a public spirited person and
Page 19 that he had filed the writ petition for espousing the public interest and
for the betterment of citizens of the State of Punjab. In the writ petition,
the respondent No.1 has relied on the provisions of Articles 315, 316,
317, 318, 319 and 320 of the Constitution relating to Public Service
Commissions to contend that the functions of the Public Service
Commission are sensitive and important and it is very essential that a
person, who is appointed as the Chairman of the Public Service
Commission, must possess outstanding and high degree educational
qualifications and a great amount of experience in the field of selection,
administration and recruitment and he must also be a man of integrity
and impartiality. The respondent No.1 has alleged 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
Page 20 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
unsuccessfully contested the Vidhan Sabha election before he was
elected as MLA on the Shiromani Akali Dal ticket and that he had close
political affiliation and affinity with high ups of the ruling party and that
the ruling party in the State of Punjab has cleared his name for
appointment as the Chairman of the Punjab Public Service Commission
shortly. The respondent No.1 has also alleged in the writ petition various
irregularities and illegalities committed by Mr. Harish Dhanda. He has
further stated in the writ petition that his colleague has even sent a
representation to the Governor of Punjab and the Chief Minister of
Punjab against the proposed appointment of Mr. Harish Dhanda. He has
accordingly prayed in the writ petition for a mandamus to the State of
Punjab to frame regulations governing the conditions of service and
appointment of the Chairman and Members of the Punjab Public Service
Commission and for an order restraining the State of Punjab from
appointing Mr. Harish Dhanda as Chairman of the Punjab Public Service
Commission. On a reading of the entire writ petition filed by the
Page 21 respondent No.1 before the High Court, I have no doubt that the
respondent No.1 has filed this writ petition for espousing the cause of
the general public of the State of Punjab with a view to ensure that a
person appointed as the Chairman of the Punjab Public Service
Commission is a man of ability and integrity so that recruitment to public
services in the State of Punjab are from the best available talents and
are fair and is not influenced by politics and extraneous considerations.
Considering the averments in the writ petition, I cannot hold that the writ
petition is just a service matter in which only the aggrieved party has the
locus to initiate a legal action in the court of law. The writ petition is a
matter affecting interest of the general pubic in the State of Punjab and
any member of the public could espouse the cause of the general public
so long as his bonafides are not in doubt. Therefore, I do not accept the
submission of Mr. P.P. Rao, learned senior counsel appearing for the
State of Punjab, that the writ petition was a service matter and the High
Court was not right in entertaining the writ petition as a Public Interest
Litigation at the instance of the respondent No.1. The decisions cited by
Mr. Rao were in cases where this Court found that the nature of the
matter 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
Page 22 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 Public Service Commission on
the basis of political affiliation and this has resulted in selection and
appointment of undeserving persons to public service for extraneous
considerations. Though respondent No.1 had alleged in the writ petition
some irregularities and illegalities on the part of Mr. Harish Dhanda, who
was proposed to be appointed as Chairman of the Public Service
Commission by the State Government, the writ petition was not founded
only on such irregularities and illegalities alleged against Mr. Harish
Dhanda. In addition, the respondent No.1 had also alleged in the writ
Page 23 petition that Mr. Harish Dhanda was politically affiliated to the ruling
party and was not selected for appointment as Chairman of the Public
Service Commission on the basis of his qualifications, experience or
ability which are necessary for the post of the Chairman of the Public
Service Commission. Thus, even if the Division Bench had recorded a
finding in the order dated 13.07.2011 that the irregularities and
illegalities pointed out in the writ petition against Mr. Harish Dhanda do
not stand substantiated, the writ petition could not be disposed of with
the said finding only. The Division Bench of the High Court, therefore,
thought it necessary to make a reference to the Full Bench and has
given its reasons for the reference to the Full Bench in Paragraphs 6 and
7 of its order dated 13.07.2011, which are quoted hereinbelow:
“6. Even though, Article 316 of the Constitution does not
prescribe any particular procedure, having regard to the
purpose and nature of appointment, it cannot be assumed
that power of appointment need not be regulated by any
procedure. It is undisputed that person to be appointed
must have competence and integrity. Reference may be
made to judgments of the Hon’ble Supreme Court in In R/o
Dr. Ram Ashray Yadav, Chairman, Bihar Public Service
Commission (2000) 4 SCC 309, Ram Kumar Kashyap and
another v. Union of India and another, AIR 2010 SC 1151
and in re v. Mehar Singh Saini, Chairman, HPSC and others
(2010) 13 SCC 586 : (2010) 6 SLR 717.
7. If it is so, question is how such persons are to be
identified and selected and whether in the present
case, procedure adopted is valid and if not, effect
thereof. We are of the view that these questions need
to be considered by a Bench of three Hon’ble Judges.
Page 24 Accordingly, we refer the matter to a Bench of three
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 of the High Court having found in its order dated
13.07.2011 that the irregularities and illegalities pointed out in the writ
petition against Mr. Harish Dhanda are unsubstantiated, should not have
Page 25 made an academic reference to the larger Bench of the High Court.
26. I may now consider the submission of Mr. Rao that this Court in the
case of Mehar Singh Saini, Chairman, HPSC In Re (supra) had already
declared the law that it is for Parliament to frame the guidelines or
parameters regarding the qualifications, experience or stature for
appointment as Chairman/Members of the Public Service Commission
and hence it was not necessary for the Division Bench to make a
reference to a Full Bench on the very same question of law. In Mehar
Singh Saini Chairman, HPSC In Re (supra), this Court noticed that the
provisions of Article 316 of the Constitution do not lay down any
qualification, educational or otherwise, for appointment to the
Commission as Chairman and Members and made the following
observations in Para 85 of the judgment as reported in the SCC:
“Desirability, if any, of providing specific qualification or
experience for appointment as Chairman/members of
the Commission is a function of Parliament. The
guidelines or parameters, if any, including that of
stature, if required to be specified, are for the
appropriate Government to frame. This requires
expertise in the field, data study and adoption of the best
methodology by the Government concerned to make
appointments to the Commission on merit, ability and
integrity. Neither is such expertise available with the
Court nor will it be in consonance with the constitutional
scheme that this Court should venture into reading such
qualifications into Article 316 or provide any specific
guidelines controlling the academic qualification,
experience and stature of an individual who is proposed
to be appointed to this coveted office. Of course, while
Page 26 declining to enter into such arena, we still feel
constrained to observe that this is a matter which needs
the attention of the Parliamentarians and quarters
concerned in the Governments. One of the factors, which
has persuaded us to make this observation, is the
number of cases which have been referred to this Court
by the President of India in terms of Article 317(1) of the
Constitution in recent years. A large number of inquiries
are pending before this Court which itself 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:
Page 27 “Save as provided by law or by these rules or by special
order of the Chief Justice, all cases shall be heard and
disposed of by a Bench of two Judges.”
I have perused Rules 6, 7, 8 and 9 of the Punjab High Court Rules which
relate to Full Bench and I do not find therein any provision which
provides what matters a Full Bench comprising three Judges of the High
Court will decide. Hence, the Division Bench of the High Court has the
jurisdiction to decide a case, unless otherwise provided by law or by a
special order of the Chief Justice and the jurisdiction of a Full Bench to
decide matters will flow either from the order of the Chief Justice of the
High Court or from the order of the Division Bench which makes a
reference to the Full Bench. In the present case, there is no order of the
Chief Justice making a reference but only the order dated 13.07.2011 of
the Division Bench of the High Court making a reference to the Full
Bench of three Judges of the High Court. Thus, I have to look at the
order dated 13.07.2011 of the Division Bench to find out whether the
Division Bench referred only specific questions to the Full Bench as
contended by Mr. Rao or referred the entire case to the Full Bench as
contended by Mr. Lalit.
28. On a close scrutiny of Paragraphs 6 and 7 of the order dated
13.07.2011 of the Division Bench of the High Court which are extracted
above, I find that the Division Bench of the High Court has referred only
Page 28 specific questions to the Full Bench: how persons of competence and
integrity are to be identified and selected for appointment as Chairman
of the Public Service Commission and if the procedure adopted for such
appointment in the present case was not valid, the effect thereof. The
Division Bench of the High Court has made it clear in Para 7 of its order
dated 13.07.2001 that “these questions need to be considered by a
Bench of three Hon’ble Judges”. I, therefore, do not agree with Mr. Lalit
that the Division Bench referred the entire case to the Full Bench by the
order dated 13.07.2011. I further find that although the aforesaid
specific questions relating to the procedure for identifying persons of
competence and integrity for appointment as the Chairman of the Public
Service Commission only were referred by the Division Bench of the High
Court, the Full Bench, instead of deciding these specific questions
referred to it, has given directions to the State of Punjab and the State of
Haryana to follow a particular 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.
Page 29 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 case of the Union
Commission or a Joint Commission, by the President, and in
the case of a State Commission, by the Governor of the
State:
Provided that as nearly as may be one-half of the members
of every Public Service Commission shall be persons who at
the dates of their respective appointments have held office
for at least ten years either under the Government of India
or under the Government of a State, and in computing the
said period of ten years any period before the
commencement of this Constitution during which a person
has held office under the Crown in India or under the
Government of an Indian State shall be included.
(1A) 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 persons
appointed under clause (1) to the vacant office has entered
on the duties thereof or, as the case may be, until the
Chairman has resumed his duties, be performed by such
Page 30 one of the other members of the Commission as the
President, in the case of the Union Commission or a Joint
Commission, and the Governor of the State in the case of a
State in the case of a State Commission, may appoint for
the purpose.
(2) A member of a Public Service Commission shall hold
office for a term of six years from the date on which he
enters upon his office or until he attains, in the case of the
Union Commission, the 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.”
A reading of Article 316 of the Constitution would show that it confers
power on the Governor of the State to appoint the Chairman and other
Members of a Public Service Commission. It has been held by this
Court in 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
Page 31 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 appointment of the Chairman and Members of the Public
Service Commission, I have to set aside the judgment dated 17.08.2011
of the Full Bench of the High Court. Thereafter, either of the two courses
are open to me: remand the matter to the High Court for disposal of the
writ petition in accordance with law or decide the writ petition on merits.
To cut short the litigation, I proceed to decide the writ petition on merits
instead of remanding the matter to the High Court.
Page 32 31.This Court has had the occasion to consider the qualities which a
person should have for being appointed as Chairman and Member of
Public Service Commission and has made observations after considering
the nature of the functions entrusted to the Public Service Commissions
under Article 320 of the Constitution. In Ashok Kumar Yadav & Ors. v.
State of Haryana & Ors. (supra), a Constitution Bench of this Court
speaking through P.N. Bhagwati, J, observed:
“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.”
In R/O Dr. Ram Ashray Yadav, Chairman, Bihar Public Service
Commission (supra), Dr. A.S. Anand, C.J. speaking for a three Judge
Bench, cautioned:
“The credibility of the institution of a Public Service
Commission is founded upon the faith of the common
man in its proper functioning. The faith would be
eroded and confidence destroyed if it appears that the
Chairman or the members of the Commission act
subjectively and not objectively or that their actions
are suspect. Society expects honesty, integrity and
complete objectivity from the Chairman and members
of the Commission. The Commission must act fairly,
without any pressure or influence from any quarter,
unbiased and impartially, so that he society does not
lose confidence in the Commission. The high
Page 33 constitutional trustees, like the Chairman and
members of the Public Service Commission must
forever remain vigilant and conscious of these
necessary adjuncts.”
Despite these observations of this Court, the State Government of
Punjab appointed Mr. Ravi Pal Singh Sidhu as the Chairman of 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 constitutional
authorities (who are highly placed), affect a very large
Page 34 number of people for a very long time, therefore, it is
absolutely imperative that only people of high
integrity, merit rectitude and honesty are appointed to
these constitutional positions.”
Considering this experience of the damage to recruitment to public
services caused by appointing a person lacking in character as the
Chairman of the Public Service Commission in the State of Punjab, when
the respondent No.1 brought to the notice of the High Court through the
writ petition that the State Government of Punjab proposed to appoint
Mr. Harish Dhanda as the Chairman of the Public Service Commission,
only because of his political affiliation, the Division Bench of the High
Court rightly entertained the writ petition as a public interest litigation.
The Division Bench of the High Court, however, found that no procedure
for appointment of Chairman and Members of the Public Service
Commission has been laid down in Article 316 of the Constitution and
therefore posed the question in Paragraphs 6 and 7 of its order dated
13.07.2011 as to what should be the procedure for identifying and
selecting persons of integrity and competence for appointment of
Chairman of the Public Service Commission and referred the question to
a larger Bench of three Judges. I have already held that it is for the
Governor who is the appointing authority under Article 316 of the
Constitution to lay down the procedure for appointment of the Chairman
and Members of the Public Service Commission, but this is not to say
Page 35 that in the absence of any procedure laid down by the Governor for
appointment of Chairman and Members of the Public Service
Commission under Article 316 of the Constitution, the State Government
would have absolute discretion in selecting and appointing any person
as the Chairman of the State Public Service Commission. Even where a
procedure has not been laid down by the Governor for appointment of
Chairman and Members of the Public Service Commission, the State
Government has to select only persons with integrity and competence
for appointment as Chairman of the Public Service Commission, because
the discretion vested in the State Government under Article 316 of the
Constitution is impliedly limited by the purposes for which the discretion
is vested and the purposes are discernible from the functions of the
Public 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
Page 36 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,
these qualities are amongst the implied relevant factors which have to
be taken into consideration by the Government while determining the
competency of the person to be selected and appointed as Chairman of
the Public Service Commission under Article 316 of the Constitution.
Accordingly, if these relevant factors are not taken into consideration by
the State Government while selecting and appointing the Chairman of
the Public Service Commission, the Court can hold the selection and
appointment as not in accordance with the Constitution. To quote De
Smith’s Judicial Review, Sixth Edition:
“If the exercise of a discretionary power has been
influenced by considerations that cannot lawfully be
taken into account, or by the disregard of relevant
considerations required to be taken into account
(expressly or impliedly), a court will normally hold that
the power has not been validly exercised. (Page 280)
If the relevant factors are not specified (e.g. if the
Page 37 power is merely to grant or refuse a licence, or to
attach such conditions as the competent authority
thinks fit), it is for the courts to determine whether the
permissible considerations are impliedly restricted,
and, if so, to what extent (Page 282)”
In M/s Hochtief Gammon v. State of Orissa and Others (AIR 1975 SC
2226), A. Alagiriswamy writing the judgment for a three Judge Bench of
this Court explained this limitation on the power of the Executive in the
following words:
“The Executive have to reach their decisions by taking
into account relevant considerations. They should not
refuse to consider relevant matter nor should take into
account wholly irrelevant or extraneous consideration.
They should not misdirect themselves on a point of
law. Only such a decision will be lawful. The Courts
have power to see that the Executive acts lawfully”.
33. Mr. Rao, however, relied on a decision of the Constitution Bench
of this Court in E.P. Royappa v. State of Tamil Nadu & Anr. (supra) in
which it was held that the post of Chief Secretary is a highly sensitive
post and the Chief Secretary is a lynchpin in the administration and for
smooth functioning of the administration, there should be complete
rapport and understanding between the Chief Secretary and the Chief
Minister and, therefore, it is only the person in whom the Chief Minister
has complete confidence who can be appointed as Chief Secretary of the
State and hence the Chief Secretary of a State cannot be displaced
from his post on the ground that his appointment was arbitrary and
Page 38 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 Constitution provides that a person shall, on expiration
of his term of office be ineligible for reappointment to that office.
34.Mr. Rao has also relied on the decision of this Court in B. Srinivasa
Reddy v. Karnataka Urban Water Supply & Drainage Board Employees
Association & Ors. (supra) to argue that the High Court’s jurisdiction to
issue a writ of quo warranto is limited to only cases where the
Page 39 appointment to an office is contrary to the statutory rules. He also
distinguished the decision of this Court in Centre for PIL and Another v.
Union of India and Another (supra) cited by Mr. Lalit and submitted that
in that case the Court had found that the appointment of the Central
Vigilance Commissioner was in contravention of the statutory provisions
of the Central Vigilance Commission Act, 2003 and for this reason, this
Court quashed the appointment of the Central Vigilance Commissioner. I
have already held that besides express restrictions in a statute or the
Constitution, there can be implied restrictions in a statute and the
Constitution and the statutory or the constitutional authority cannot in
breach of such implied restrictions exercise its discretionary power.
Moreover, Article 226 of the Constitution vests in the High Court the
power to issue to any person or authority, including in appropriate cases,
any Government, within those territories directions, orders or writs,
including writs in the nature of habeas corpus, mandamus , prohibition,
quo warranto and certiorari, or any of them, for the enforcement of any
of the rights conferred by Part III and for any other purpose. The power
of the High Court under Article 226 of the Constitution is, thus, not
confined to only writ of quo warranto but to other directions, orders or
writs. In Dwarka Nath v. Income-tax Officer, Special Circle, D Ward,
Kanpur & Anr. (supra), K. Subba Rao, J. speaking for a three-Judge Bench,
has explained the wide scope of the powers of the High Court under
Page 40 Article 226 of the Constitution thus:
“This article is couched in comprehensive phraseology and it
ex facie confers a wide power on the High Courts to reach
injustice wherever it is found. The Constitution designedly
used a wide language in describing the nature of the power,
the purpose for which and the person or authority against
whom it can be exercised. It can issue writs in the nature of
prerogative writs as understood in 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: (AIR
1954 SC 440) and Irani v. State of Madras, 1962 (2) SCR 169:
(AIR 1961 SC 1731).”
Therefore, I hold that the High Court should not normally, in exercise of
its power under Article 226 of the Constitution, interfere with the
discretion of the State Government in selecting and appointing the
Chairman of the State Public Service Commission, but in an exceptional
case if it is shown that relevant factors implied from the very nature of
Page 41 the duties entrusted to Public Service Commissions under Article 320 of
the Constitution have not been considered by the State Government in
selecting and appointing the Chairman of the State Public Service
Commission, the High Court can invoke its wide and extra-ordinary
powers under Article 226 of the Constitution and quash the selection and
appointment to ensure that the discretion of the State Government is
exercised within the bounds of the Constitution.
35. Coming now to the facts of the present case, I find that the
Division Bench of the High Court in its order dated 13.07.2011 has
already held that the irregularities and illegalities alleged against Mr.
Harish Dhanda have not been substantiated. I must, however, enquire
whether the State Government took into consideration the relevant
factors relating to his competency to act as the Chairman of the State
Public Service Commission. We had, therefore, passed orders on
01.08.2012 calling upon the State of Punjab to produce before us the
material referred to in para 69 of the judgment of the Full Bench of the
High Court on the basis of which Mr. Harish Dhanda was selected for
appointment as Chairman of the Punjab Public Service Commission.
Pursuant to the order dated 01.08.2012, the State Government has
produced the files in which the selection and appointment of Mr. Harish
Dhanda was processed by the State Government. At page 26 of the file
Page 42 on the subject “Appointment of Chairman of P.P.S.C. – Mr. S.K. Sinha,
IAS, Mr. Harish Rai Dhanda”, I find that a bio-data in one sheet has been
placed at page 41 of the file, which reads as under:
“BIO DATA
Harish Rai Dhanda S/o Sh. Kulbhushan Rai
Resident: The Retreat, Ferozepur Road, Ludhiana
Date of Birth: 15th May, 1960
Attained Bachelor in Arts from SCD Government
College, Ludhiana, Punjab University, (1979).
Attained Bachelor in Laws from Law College, Punjab
University (1982).
Registered with Bar Council of Punjab and Haryana 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 13
th
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
Page 43 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 been placed on record before us to show that Mr. Harish Dhanda
has the positive qualities to perform the duties of the office of the
Chairman of the State Pubic Service Commission under Article 320 of the
Constitution. The decision of the State Government to appoint Mr.
Harish Dhanda as the Chairman of the Punjab Public Service Commission
was thus invalid for non-consideration of relevant factors implied from
the very nature of the duties entrusted to the Public Service
Commissions under Article 320 of the Constitution.
36. In the result, I am not inclined to interfere with the impugned
order of the Division Bench of the High Court dated 17.08.2011 quashing
the selection and appointment of Mr. Harish Dhanda as Chairman of the
Punjab Public Service Commission, but I set aside the judgment dated
17.08.2011 of the Full Bench of the High Court. Considering, however,
Page 44 the fact that the State Government of Punjab has already selected and
appointed Lt. Gen. R.A. Sujlana as the Chairman of the Punjab Public
Service Commission, I am not inclined to disturb his appointment only on
the ground that his appointment was consequential to the judgment
dated 17.08.2011 of the Full Bench of the High Court which I have set
aside. The appeal of the State of Punjab is partly allowed and the appeal
of the State of Haryana is allowed, but the appeal of Mr. Harish Dhanda
is dismissed. The parties to bear their own costs.
.……………………….J.
(A. K. Patnaik)
New Delhi,
February 15, 2013.
Page 45 REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL 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
AND
CIVIL APPEAL NOs. 1365-1367 OF 2013
[Arising out of SLP (Civil) Nos. 22010-22012 OF 2011]
J U D G M E N T
Madan B. Lokur, J.
1.While I entirely agree with Brother Patnaik, but given the
seminal importance of the issues raised, I think it appropriate
to separately express my views in the case.
2.The facts have been stated in detail by Brother Patnaik and it
is not necessary to repeat them.
The issues:
3.The primary substantive issue that arises for consideration is
whether the High Court could have – and if it could have,
whether it ought to have - interfered in the appointment, by a
Page 45 of 103
C.A. No. 7640 of 2011
Page 46 notification published on 7
th
July 2011, of Mr. Harish Rai
Dhanda as Chairperson of the Punjab Public Service
Commission. In my opinion, the answer to both questions
must be in the affirmative.
4.However, it must be clarified that even though a notification
was issued of his appointment, Mr. Dhanda did not actually
assume office or occupy the post of Chairperson of the
Punjab Public Service Commission. Before he could do so, his
appointment was challenged by Salil Sabhlok through a writ
petition being Writ Petition (Civil) No.11848 of 2011 filed in
the Punjab & Haryana High Court. When the writ petition was
taken up for consideration, a Division Bench of the High Court
observed in its order of 13th July 2011 that his “oath
ceremony” was fixed for the same day but learned counsel
appearing for the State of Punjab stated that the ceremony
would be deferred till the writ petition is decided. Thereafter,
the statement was sought to be withdrawn on 1st August
2011. However, the Full Bench of the High Court, which had
heard the matter in considerable detail, passed an order on
that day retraining administering of the oath of office to Mr.
Dhanda. As such, Mr. Dhanda did not take the oath of
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Page 47 allegiance, of office and of secrecy as the Chairperson of the
Punjab Public Service Commission. Later, since his
appointment was quashed by the High Court, the question of
his taking the oaths as above did not arise.
5. Another substantive issue raised is whether 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
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Page 48 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; the power of the Full Bench to frame guidelines for
the appointment of the Chairperson of the Punjab Public Service
Commission and of the Haryana Public Service Commission and
a few other incidental issues.
Public Interest Writ Petition in respect of a “service
matter”:
7. At the outset, it is important to appreciate that the
Chairperson of a Public Service Commission holds a
constitutional position and not a statutory post. The significance
of this is that the eligibility parameters or selection indicators
for appointment to a statutory post are quite different and
distinct from the parameters and indicators for appointment to
a constitutional position.
8. The appointment of a Chairperson of a State Public
Service Commission is in terms of Article 316 of the
Constitution, which reads as follows:
“316. Appointment and term of office of members. —
(1) The Chairman and other members of a Public Service
Commission shall be appointed, in the case of the Union
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Page 49 Commission or a Joint Commission, by the President, and
in the case of a State Commission, by the Governor of the
State:
Provided that as nearly as may be one-half of the
members of every Public Service Commission shall be
persons who at the dates of their respective
appointments have held office for at least ten years
either under the Government of India or under the
Government of a State, and in computing the said
period of ten years any period before the
commencement of this Constitution during which a
person has held office under the Crown in India or
under the Government of an Indian State shall be
included.
(1-A) 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 (1) to the vacant office has
entered on the 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 the Union Commission or a Joint
Commission, and the Governor of the State in the case of a
State Commission, may appoint for the purpose.
(2) A member of a Public Service Commission shall hold
office for a term of six years from the date on which he
enters upon his office or until he attains, in the case of the
Union Commission, the 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
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Page 50 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 is
provided security of tenure since the term of office is fixed at
six years or until the age of 62 years, whichever is earlier.
10.The security of tenure is confirmed by the provision for
removal of the Chairperson of the State Public Service
Commission from office as provided for in Article 317 of the
Constitution. This reads as follows:
“317. Removal and suspension of a member of a
Public Service Commission. —(1) Subject to the
provisions of clause (3), the Chairman or any other
member of a Public Service Commission shall only be
removed from his office by order of the President on the
ground of misbehaviour after the Supreme Court, on
reference being made to it by the President, has, on
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Page 51 inquiry held in accordance with the procedure prescribed
in that behalf under Article 145, reported that the
Chairman or such other member, as the case may be,
ought on any such ground to be removed.
(2) The President, in the case of the Union Commission or
a Joint Commission, and the Governor, in the case of a
State Commission, may suspend from office the Chairman
or any other member of the Commission in respect of
whom a reference has been made to the Supreme Court
under clause (1) until the President has passed orders on
receipt of the report of the Supreme Court on such
reference.
(3) Notwithstanding anything in clause (1), the President
may by order remove from office the Chairman or any
other member of a Public Service Commission if the
Chairman or such other member, as the case may be,—
(a) is adjudged an insolvent; or
(b) engages during his term of office in any paid
employment outside the duties of his office; or
(c) is, in the opinion of the President, unfit to continue in
office by reason of infirmity of mind or body.
(4) If the Chairman or any other member of a Public
Service Commission is or becomes in any way concerned
or interested in any contract or agreement made by or on
behalf of the Government of India or the Government of a
State or participates in any way in the profit thereof or in
any benefit or emolument arising therefrom otherwise
than as a member and in common with the other members
of an incorporated company, he shall, for the purposes of
clause (1), be deemed to be guilty of misbehaviour.”
11.An aspect that clearly stands out from a reading of
Article 317 is that the Chairperson of the State Public Service
Commission can be removed from office on the ground of
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Page 52 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
arbitrary appointment of a Chairperson of a State Public Service
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Page 53 Commission. The flip side is that if an arbitrary appointment is
made, removal of the appointee is a difficult process.
13.If the person walking on the street is appointed in a God-
forbid kind of situation, as the Chairperson of a State Public
Service Commission, what remedy does an aggrieved citizen
have? This question arises in a unique backdrop, in as much as
no eligibility criterion has been prescribed for such an
appointment and the suitability of a person to hold a post is
subjective.
14.In this context, three submissions have been put forward
by learned counsel supporting the appointment of Mr. Dhanda.
If these submissions are accepted, then one would have to
believe that a citizen aggrieved by such an appointment would
have no remedy. The first submission is that a writ of quo
warranto would not lie since there is no violation of a statute in
the appointment – indeed, no statutory or other qualification or
eligibility criterion has been laid down for the appointment.
Therefore, a petition for a writ of quo warranto would not be
maintainable. The second submission is that the appointment to
a post is a “service matter”. Therefore, a public interest
litigation (or a PIL for short) would not be maintainable. The
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Page 54 third submission is that the remedy in a “service matter” would
lie with the Administrative Tribunal, but an application before
the Tribunal would not be maintainable since the aggrieved
citizen is not a candidate for the post and, therefore, would
have no locus standii in the matter. It is necessary to consider
the correctness of these submissions and the availability of a
remedy, if any, to an aggrieved citizen.
Maintainability of a PIL:
(i)A writ of quo warranto
15.Learned counsel supporting Mr. Dhanda are right that
there is no violation of any statutory requirement in the
appointment of Mr. Dhanda. This is because no statutory
criterion or parameters have been laid for the appointment of
the Chairperson of a Public Service Commission. Therefore, a
petition for a writ of quo warranto would clearly not lie.
16.A couple of years ago, in Hari Bansh Lal v. Sahodar
Prasad Mahto, (2010) 9 SCC 655 this Court considered the
position at law and, after referring to several earlier decisions,
including R.K. Jain v. Union of India, (1993) 4 SCC 119,
Mor Modern Coop. Transport Society v. Govt. of
Haryana, (2002) 6 SCC 269, High Court of Gujarat v.
Gujarat Kishan Mazdoor Panchayat, (2003) 4 SCC 712
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Page 55 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 State
or of any local or other authority within the territory of
India or under the control of the Government of India,
or, as the case may be, of any corporation or society
owned or controlled by the Government, as respects—
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Page 56 (i) remuneration (including allowances), pension and
other retirement benefits;
(ii) tenure including confirmation, seniority,
promotion, reversion, premature retirement and
superannuation;
(iii) leave of any kind;
(iv) disciplinary matters; or
(v) any other matter whatsoever;”
19.It cannot be said that the Chairperson of the Public
Service Commission holds a post in connection with the affairs
of the Union or the State. He or she is not a Government
servant, in the sense of there being a master and servant
relationship between the Union or the State and the
Chairperson. In view of the constitutional provisions pertaining
to the security of tenure and the removal procedure of the
Chairperson and members of the Public Service Commission, it
can only be concluded that he or she holds a constitutional
post. In this context, in Reference under Article 317(1) of
the Constitution of India, In re, (1990) 4 SCC 262 it was
held:
“The case of a government servant is, subject to the
special provisions, governed by the law of master and
servant, but the position in the case of a Member of the
Commission is different. The latter holds a constitutional
post and is governed by the special provisions dealing with
different aspects of his office as envisaged by Articles 315
to 323 of Chapter II of Part XIV of the Constitution.”
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Page 57 20.Similarly, in Bihar Public Service Commission v. Shiv
Jatan Thakur, 1994 Supp. (3) SCC 220 the Public Service
Commission is referred to as a “constitutional institution” and
its Chairperson and members as “constitutional functionaries”.
21.In Ram Ashray Yadav (Dr.), Chairman, Bihar Public
Service Commission, In Re, (2000) 4 SCC 309 a reference
was made to the “constitutional duties and obligations” of the
Public Service Commissions. It was also observed that the
Chairperson of the Public Service Commission is in the position
of a constitutional trustee.
22.In Ram Kumar Kashyap v. Union of India, (2009) 9
SCC 278 the obligations of the Public Service Commission were
referred to as “constitutional obligations” and on a review of the
case law, it was held that:
“… since the Public Service Commissions are a
constitutional 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.”
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Page 58 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, points
to the cause of Commission being free from any influence
or limitation.”
24.A little later in the judgment, the Public Service
Commission is described as a “constitutional body”.
25.This being the position, it is not possible to say that the
Chairperson of the Public Service Commission does not occupy
a constitutional position or a constitutional post. To describe the
appointment to a constitutional post generically or even
specifically as a “service matter” would be most inappropriate,
to say the least.
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Page 59 (iii)Functional test
26.The employment embargo laid down in the Constitution
and the functions of a Public Service Commission also indicate
that its Chairperson has a constitutional status.
27.Article 319 of the Constitution provides that on ceasing to
hold office, the Chairperson of a State Public Service
Commission cannot take up any other employment either under
the Government of India or under the Government of a State,
except as the Chairperson or member of the Union Public
Service Commission or as the Chairperson of any other State
Public Service Commission.
28.Among other things, the functions of the State Public
Service Commission include, as mentioned in Article 320 of the
Constitution, conducting examinations for appointments to the
services of the State. The State Public Service Commission may
also be consulted by the President or the Governor of the State,
subject to regulations that may be made in that behalf, on all
matters relating inter alia to methods of recruitment to civil
services and for civil posts and on the principles to be followed
in making appointments to civil services and posts.
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Page 60 29.Article 322 of the Constitution provides that the expenses
of the State Public Service Commission, including salaries,
allowances and pensions of its members shall be charged on
the Consolidated Fund of the State. Article 323 of the
Constitution requires the Public Service Commission to annually
present a report of the work done by it to the Governor of the
State.
30.All these are serious constitutional functions and
obligations cast on the Chairperson and members of the Public
Service Commission and to equate their appointment with a
statutory appointment and slotting their appointment in the
category of a “service matter” would be reducing the
Constitution into just another statute, which it is not.
(iv)The remedy
31.What then is 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
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Page 61 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 Public
Service Commission
34.However, as an aggrieved person he or she does have a
public law remedy. But in a service matter the only available
remedy is to ask for a writ of quo warranto. This is the opinion
expressed by this Court in several cases. One of the more
recent decisions in this context is Hari Bansh Lal wherein it
was held that “…except for a writ of quo warranto, public
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Page 62 interest litigation is not maintainable in service matters.” This
view was referred to (and not disagreed with) in Girjesh
Shrivastava v. State of Madhya Pradesh, (2010) 10 SCC
707 after referring to and relying on Duryodhan Sahu (Dr.)
v. Jitendra Kumar Mishra (1998) 7 SCC 273, B. Srinivasa
Reddy, Dattaraj Nathuji Thaware v. State of
Maharashtra, (2005) 1 SCC 590, Ashok Kumar Pandey v.
State of W.B (2004) 3 SCC 349 and Hari Bansh Lal.
35.The significance of these decisions is that they prohibit a
PIL in a service matter, except for the purposes of a writ of quo
warranto. However, as I have concluded, the appointment of the
Chairperson in a Public Service Commission does not fall in the
category of a service matter. Therefore, a PIL for a writ of quo
warranto in respect of an appointment to a constitutional
position would not be barred on the basis of the judgments
rendered by this Court and mentioned above.
36.However, in a unique situation like the present, where a
writ of quo warranto may not be issued, it becomes necessary
to mould the relief so that an aggrieved person is not left
without any remedy, in the public interest. This Court has,
therefore, fashioned a writ of declaration to deal with such
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Page 63 cases. Way back, in T. C. Basappa v. T. Nagappa [1955] 1
SCR 250 it was said:
"The language used in articles 32 and 226 of our
Constitution is very wide and the powers of the Supreme
Court as well as of all the High Courts in India extend to
issuing of orders, writs or directions including writs in the
nature of habeas corpus, mandamus, quo warranto,
prohibition and certiorari as may be considered
necessary for enforcement of the fundamental rights and
in the case of the High Courts, for other purposes as well.
In view of the express provisions of our Constitution we
need not now look back to the early history or the
procedural technicalities of these writs in English law, nor
feel oppressed by any difference or change of opinion
expressed in particular cases by English 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.”
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Page 64 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 of declaration which would
achieve the same purpose.”
39. Finally and even more recently, in Centre for PIL v.
Union of India, (2011) 4 SCC 1 the recommendation of a
High Powered Committee recommending the appointment of
Mr. P.J. Thomas as the Central Vigilance Commissioner under
the proviso to Section 4(1) of the Central Vigilance Commission
Act, 2003 was held to be non est in law and his appointment as
the Central Vigilance Commissioner was quashed. This Court
opined:
“At the outset it may be stated that in the main writ
petition the petitioner has prayed for issuance of any other
writ, direction or order which this Court may deem fit and
proper in the facts and circumstances of this case. Thus,
nothing prevents this Court, if so satisfied, from issuing a
writ of declaration.”
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Page 65 Who may be appointed - views of this Court:
40.Having come to a conclusion that an aggrieved citizen
has only very limited options available to him or her, is there no
redress if an arbitrary appointment is made, such as of the
person walking on the street. Before answering this question, it
would be worth considering who may be appointed to a
constitutional post such as the Chairperson of the Public Service
Commission.
41.In Ashok Kumar Yadav v. State of Haryana, (1985)
4 SCC 417 this Court looked at the appointment of the
Chairperson and members of the Public Service Commission
from two different perspectives: firstly, from the perspective of
the requirement to have able administrators in the country and
secondly from the perspective of the requirement of the
institution as such. In regard to the first requirement, it was
said:
“It is absolutely essential that the best and finest talent
should be drawn in the administration and administrative
services must be composed of men who are honest,
upright and independent and who are not swayed by the
political winds blowing in the country. The selection of
candidates for the administrative services must therefore
be made strictly on merits, keeping in view various factors
which go to make up a strong, efficient and people
oriented administrator. This can be achieved only if the
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Page 66 Chairman and members of the Public Service Commission
are eminent men possessing a high degree of calibre,
competence and integrity, who would inspire confidence in
the public mind about the objectivity and impartiality of
the selections to be made by them.”
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. They
occupy a unique place and position and utmost objectivity
in the performance of their duties and integrity and
detachment are essential requirements expected from the
Chairman and members of the Public Service
Commissions.”
43.With specific reference to the Chairperson of the Public
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Page 67 Service Commission who is in the position of a “constitutional
trustee”, this Court said:
“The Chairman of the Public Service Commission is in the
position of a constitutional trustee and the morals of a
constitutional trustee have to be tested in a much stricter
sense than the morals of a common man in the
marketplace. Most sensitive standard of behaviour is
expected from such a constitutional trustee. His behaviour
has to be exemplary, his actions transparent, his
functioning has to be objective and in performance of all
his duties he has to be fair, detached and impartial.”
44.Inderpreet Singh Kahlon v. State of Punjab, (2006)
11 SCC 356 was decided in the backdrop of a Chairperson of
the Punjab Public Service Commission, “an important
constitutional authority”, being put behind bars, inter alia, for
being caught red-handed accepting a bribe.
45.This Court asserted the necessity of transparency in the
appointment to such constitutional positions. It was said:
“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 constitutional authorities (who are
highly placed), affect a very large number of people for a
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Page 68 very long time, therefore, it is absolutely imperative that
only people of high integrity, merit, rectitude and honesty
are appointed to these constitutional positions.”
46.Subsequently, in State of Bihar v. Upendra Narayan
Singh (2009) 5 SCC 65 this Court expressed its anguish with
the appointments generally made to the Public Service
Commissions. It was observed:
“The Public Service Commissions which have been given
the status of constitutional authorities and which are
supposed to be totally independent and impartial while
discharging 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
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Page 69 through a meaningful deliberative process, while the second
‘quality’ can be determined by taking into account the
constitutional, functional and institutional requirements
necessary for the appointment.
Selection and appointment of Mr. Dhanda:
48.Given the views expressed by this Court from time to
time, learned counsel for the writ petitioner submitted that Mr.
Dhanda ought not to have been appointed as the Chairperson
of the Public Service Commission. Three reasons were given in
this regard and all of them have been refuted by learned
counsel supporting the cause of Mr. Dhanda. They are: (1)
There is a question mark about the character and conduct of
Mr. Dhanda. (2) Mr. Dhanda lacks the qualifications and stature
to hold a constitutional position of the Chairperson of a Public
Service Commission. (3) The record shows that no meaningful
and effective thought was given before appointing Mr. Dhanda
as the Chairperson of the Public Service Commission.
49.As regards the first reason, certain allegations were
made against Mr. Dhanda in the writ petition filed in the High
Court. However, in its order dated 13
th
July 2011 a Division
Bench of the High Court held that: “As regards irregularities and
Page 69 of 103
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Page 70 illegalities pointed out in the petition, the same do not stand
substantiated.” This conclusion is strongly relied on by learned
counsel supporting Mr. Dhanda.
50.However, the judgment under appeal records that the
writ petitioner had alleged that Mr. Dhanda had used his
political influence to effect the transfer of an officer and that the
transfer was set aside by the Central Administrative Tribunal as
being mala fide. In this context, during the hearing of this
appeal, we were handed over a copy of the decision rendered
by the Central Administrative Tribunal (Chandigarh Bench) in
Original Application No. 495/PB/2007 decided on 15
th
November
2007. We were informed that this decision was placed before
the High Court and that this decision has attained finality, not
having been challenged by anybody.
52.A reading of the decision, particularly paragraph 12
thereof, does show that the applicant before the Central
Administrative Tribunal was subjected to a transfer contrary to
the policy decision relating to mid-term transfers. The relevant
portion of paragraph 12 of the decision reads as follows:
“Even though the Government decided not to allow use of
the Rest house as a permanent residence of the Chief
Page 70 of 103
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Page 71 Parliamentary Secretary, yet the applicant, being a junior
officer became the victim of the annoyance 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 appropriate person to
be appointed as the Chairperson of the Punjab Public Service
Commission in the light of the adverse comment. The “thorough
and meticulous inquiry and scrutiny” requirement mentioned in
Inderpreet Singh Kahlon was not at all carried out.
Page 71 of 103
C.A. No. 7640 of 2011
Page 72 54.As regards the second reason, the qualifications of Mr.
Dhanda are as mentioned in his bio-data contained in the
official file and reproduced by the High Court in the judgment
under appeal. The bio-data reads as follows:
“ - Harish Rai Dhanda son of Shri Kulbhushan Rai.
- Resident: The Retreat, Ferozepur Road, Ludhiana.
- Date of Birth: 15th May, 1960.
- Attained Bachelor in Arts from SCD Government
College, Ludhiana, Panjab University, 1979.
- Attained Bachelor in Laws from Law College, Panjab
University (1982).
- Registered with Bar Council of Punjab and Haryana 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.
55.The High Court noted that the official file shows that Mr.
Dhanda resigned from the membership of the Punjab
Legislative Assembly on 6
th
July 2011. The resignation was
accepted the same day.
56.Mr. Dhanda had filed an affidavit in the High Court in
which he disclosed that he was or had been the Vice President
of the Shiromani Akali Dal and the President of its Legal Cell
and its spokesperson.
Page 72 of 103
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Page 73 57.In fairness to Mr. Dhanda it must be noted that his
affidavit clearly mentions that he did not apply for or
otherwise seek the post of Chairperson of the Punjab Public
Service Commission. He was invited by the Chief Minister to
submit his bio-data and to accept the post. The question is
that with these qualifications, could it be said that Mr. Dhanda
was eminently suited to holding the post of the Chairperson of
the Public Service Commission? The answer to this must be in
the negative if one is to agree with the expectations of this
Court declared in various decisions. This is not to say that Mr.
Dhanda lacks integrity or competence, but that he clearly has
no administrative experience for holding a crucial
constitutional position. Merely because Mr. Dhanda is an
advocate having had electoral successes does not make him
eminently suitable for holding a constitutional position of
considerable importance and significance. It is more than
apparent that Mr. Dhanda’s political affiliation 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
Page 73 of 103
C.A. No. 7640 of 2011
Page 74 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 6
th
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 7
th
July 2011.
In other words, the entire exercise relating to the appointment
of the Chairperson of the Public Service Commission was
completed in a day.
60.Learned counsel supporting the appointment of Mr.
Dhanda submitted that no procedure is prescribed for the
selection of the Chairperson of the Public Service Commission.
Page 74 of 103
C.A. No. 7640 of 2011
Page 75 Therefore, no fault can be found in the procedure adopted by
the State Government. It was submitted, relying on Mohinder
Singh Gill v. Chief Election Commissioner, (1978) 1 SCC
405 that there is an implied power to adopt any appropriate
procedure for making the selection and the State Government
and the Governor cannot be hamstrung in this regard.
61.It is true that no parameters or guidelines have been laid
down in Article 316 of the Constitution for selecting the
Chairperson of the Public Service Commission and no law has
been enacted on the subject with reference to Entry 41 of List II
of the 7
th
Schedule of the Constitution. It is equally true that the
State Government and the Governor have a wide discretion in
the procedure to be followed. But, it is also true that Mohinder
Singh Gill refers to Lord Camden as having said that wide
discretion is fraught with tyrannical potential even in high
personages. Therefore, the jurisprudence of prudence demands
a fairly high degree of circumspection in the selection and
appointment to a constitutional position having important and
significant ramifications.
62.Two factors that need to be jointly taken into account for
the exercise of the power of judicial review are: the deliberative
Page 75 of 103
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Page 76 process and consideration of the institutional requirements.
63.As far as the deliberative process is concerned (or lack of
effective consultation, as described in Mahesh Chandra
Gupta) it is quite apparent that the entire process of selection
and appointment of Mr. Dhanda took place in about a day.
There is nothing to show the need for a tearing hurry, though
there was some urgency, in filling up the post following the
demise of the then Chairperson of the Punjab Public Service
Commission in the first week of May 2011. But, it is important to
ask, since the post was lying vacant for a couple of months, was
the urgency such that the appointment was required to be
made without considering anybody other than Mr. Dhanda.
There is nothing to show that any consideration whatsoever was
given to appointing a person with adequate administrative
experience who could achieve the constitutional purpose 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
Page 76 of 103
C.A. No. 7640 of 2011
Page 77 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 Commissioner and the Vigilance Commissioners
shall be appointed by the President by warrant under his
hand and seal:
Provided that every appointment under this sub-section
shall be made after obtaining the recommendation of a
Committee consisting of—
(a) the Prime Minister — Chairperson;
(b) the Minister of Home Affairs — Member;
(c) the Leader of the Opposition in the House of the
People — Member.
Explanation.—For the purposes of this sub-section, ‘the
Leader of the Opposition in the House of the People’ shall,
when no such Leader has been so recognised, include the
Leader of the single largest group in opposition of the
Page 77 of 103
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Page 78 Government in the House of the People.”
65.As can be seen, only the establishment of a High
Powered Committee (HPC) for making a recommendation is
provided for - the procedure to be followed by the HPC is not
detailed in the statute. This is not unusual since a statute
cannot particularize every little procedure; otherwise it would
become unmanageable and maybe unworkable. Moreover,
some situations have to be dealt with in a common sense and
pragmatic manner.
66.Acknowledging this, this Court looked at the appointment
of the Central Vigilance Commissioner not as a merit review of
the integrity of the selected person, but as a judicial review of
the recommendation making process relating to the integrity of
the institution. It was made clear that while the personal
integrity of the candidate cannot be discounted, institutional
integrity is the primary consideration to be kept in mind while
recommending a candidate. It was observed that while this
Court cannot sit in appeal over the opinion of the HPC, it can
certainly see whether relevant material and vital aspects
having nexus with the objects of the Act are taken into account
when a recommendation is made. This Court emphasized the
Page 78 of 103
C.A. No. 7640 of 2011
Page 79 overarching need to act for the good of the institution and in
the public interest. Reference in this context was made to N.
Kannadasan.
67.Keeping in mind the law laid down and the facts as they
appear from the record, it does appear that the constitutional,
functional and institutional requirements of the Punjab Public
Service Commission were not kept in mind when Mr. Dhanda
was recommended for appointment as its Chairperson.
A suitable appointee:
68.A submission was made by learned counsel supporting
the appointment of Mr. Dhanda that ultimately it 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
Page 79 of 103
C.A. No. 7640 of 2011
Page 80 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 filled up by a person in whom the State
Government had confidence. Consequently, it was held that
such a post need not be filled up only by seniority, but merit,
credibility and confidence that the person can command with
the State Government “must play a predominant role in
selection of an incumbent to such a post.”
71.Finally, in Hari Bansh Lal , a case concerning an
appointment to a statutory post of Chairperson of a State
Electricity Board, reference was made to State of Mysore v.
Syed Mahmood, AIR 1968 SC 1113, Statesman (P) Ltd. v.
H.R. Deb, AIR 1968 SC 1495 and State Bank of India v.
Page 80 of 103
C.A. No. 7640 of 2011
Page 81 Mohd. Mynuddin, (1987) 4 SCC 486 and it was held:
“It is clear from the above decisions, suitability or
otherwise of a candidate for appointment to a post is the
function of the appointing authority and not of the court
unless the appointment is contrary to the statutory
provisions/rules.”
72.These decisions are clearly distinguishable. First of all,
none of the cited decisions dealt with the appointment to a
constitutional position such as the one that we are concerned
with. A constitutional position such as that of the Chairperson of
a Public Service Commission cannot be equated with a purely
administrative position – it would be rather facetious to do so.
While the Chief Secretary and the Director General of Police are
at the top of the ladder, yet they are essentially administrative
functionaries. Their duties and responsibilities, however
onerous, cannot be judged against the duties and
responsibilities of an important constitutional authority or a
constitutional trustee, whose very appointment is not only
expected to inspire confidence in the aspirational Indian but
also project the credibility of the institution to which he or she
belongs. I am, therefore, unable to accept the view that the
suitability of an appointee to the post of Chairperson of a Public
Service Commission should be evaluated on the same yardstick
Page 81 of 103
C.A. No. 7640 of 2011
Page 82 as the appointment of a senior administrative functionary.
73.Secondly, it may be necessary for a State Government or
the Chief Minister of a State to appoint a “suitable” person as a
Chief Secretary or the Director General of Police or perhaps to a
statutory position, the connotation not being derogatory or
disparaging, but because both the State Government or the
Chief Minister and the appointee share a similar vision of the
administrative goals and 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
Page 82 of 103
C.A. No. 7640 of 2011
Page 83 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 removed only by the President on the ground
of misbehaviour after an inquiry by this Court, or on other
specified grounds of insolvency, or being engaged in any other
paid employment or being unfit to continue in office by reason
of infirmity of mind or body. There is no question of the
Chairperson of a Public Service Commission being shifted out if
his views are not in sync with the views of the Chief Minister or
the State Government.
75.The independence of the post of the Chairperson or the
member of the Punjab Public Service Commission cannot be
forgotten or overlooked. That independence is attached to the
post is apparent from a reading of the Punjab State Public
Service Commission (Conditions of Service) Regulations, 1958
framed by the Governor of Punjab in exercise of power
conferred by Article 318 of the Constitution.
Page 83 of 103
C.A. No. 7640 of 2011
Page 84 76.Regulation 2(c) of the Punjab State Public Service
Commission (Conditions of Service) Regulations, 1958 defines
“Member” as:
“Member” means a Member for the time being of the
Commission and includes the Chairman thereof”;
77.Regulation 4 of these Regulations provides that “Every
Member shall on appointment be required to take the oaths in
the form laid down in Appendix ‘A’ to these regulations.”
78.The oaths that a member (including the Chairperson) is
required to take in the form laid down in Appendix ‘A’ are oaths
of allegiance, of office and of secrecy. A Note given in Appendix
‘A’ states: “These oaths will be administered by the Governor in
person in the presence of the Chief Secretary.” The oaths read
as follows:
“Form of Oath of Allegiance
I ________________, solemnly affirm that I will be
faithful and bear true allegiance to India and to the
Constitution of India as by law established and that I will
loyally carry out the duties of my office.”
“Form of Oath of Office
I, _____________________, appointed a Member of the
Punjab Public Service Commission do solemnly declare,
that I will faithfully perform the duties of my office to the
Page 84 of 103
C.A. No. 7640 of 2011
Page 85 best of my ability, knowledge and judgment.”
“Form of Oath of Secrecy
I, ____________________, solemnly affirm that I will not
directly or indirectly communicate or reveal to any person
or persons any matter which shall be brought under my
consideration or shall become known to me as a Member
of the Punjab Public Service Commission, except as may
be required for due discharge of my duties as such
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:
Page 85 of 103
C.A. No. 7640 of 2011
Page 86 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 itself helpless in resolving
the dilemma in Mehar Singh Saini. This Court pointed out the
importance of the Public Service Commission vis-à-vis good
governance and the “common man”. In this regard, it was
observed that:
“The adverse impact of lack of probity in discharge of
functions of the [Public Service] Commission can result in
defects not only in the process of selection but also in the
appointments to the public offices which, in turn, will affect
effectiveness of administration of the State.”
It was then noted that:
“The conduct of the Chairman and members of the
Commission, in discharge of their duties, has to be above
board and beyond censure. The credibility of the institution
of the Public Service Commission is founded upon faith of
the common man on its proper functioning.”
81.In this background and in this perspective, this Court
drew a distinction between the exercise of legislative power by
Parliament and the executive power of the Government. It was
Page 86 of 103
C.A. No. 7640 of 2011
Page 87 held that laying down the qualifications and experience
required for holding the office of Chairperson or member of the
Public Service Commission is a legislative function. This is what
this Court said:
“Desirability, if any, of providing specific qualification or
experience for appointment as Chairman/members of the
Commission is a function of Parliament.”
82.However, the necessary guidelines and parameters for
holding such an office are within the executive power of the
State. It was held by this Court:
“The guidelines or parameters, if any, including that of
stature, if required to be specified are for the appropriate
Government to frame. This requires expertise in the field,
data study and adoption of the best methodology by the
Government concerned to make appointments to the
Commission on merit, ability and integrity.”
83.On the “legislative front”, this Court found itself quite
helpless. This Court obviously could not read those
qualifications into Article 316 of the Constitution which were not
there, nor could it direct Parliament to enact a law. All that
could be done (and which it did) was to draw the attention of
Parliament to the prevailing situation in the light of “the number
Page 87 of 103
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Page 88 of cases which have been referred to this Court by the President
of India in terms of Article 317(1) of the Constitution in recent
years.” It was also noted that “A large number of inquiries are
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
Page 88 of 103
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Page 89 supreme in its own sphere under the Constitution. It is
solely for the legislature to consider as to when and in
respect of what subject-matter, the laws are to be
enacted. No directions in this regard can be issued to the
legislature by the courts.”
85.In Suresh Seth v. Commissioner, Indore Municipal
Corpn., (2005) 13 SCC 287 this Court referred to Supreme
Court Employees' Welfare Assn. and State of J&K v. A.R.
Zakki, 1992 Supp (1) SCC 548 and held:
“….. this Court cannot issue any direction to the legislature
to make any particular kind of enactment. Under our
constitutional scheme Parliament and Legislative
Assemblies exercise sovereign power to enact laws and no
outside power or authority can issue a direction to enact a
particular piece of legislation.”
86.There is, therefore, no doubt that this Court can neither
legislate on the subject nor issue any direction to Parliament or
the State Legislature to enact a law on the subject.
87.On the “executive front”, this Court expressed its
helplessness in framing guidelines or parameters due to its lack
of “expertise in the field, data study and adoption of the best
methodology”. Keeping this in mind, the High Court was in error
in framing the guidelines that it did in the absence of any
Page 89 of 103
C.A. No. 7640 of 2011
Page 90 expertise in the field, data study or knowledge of the best
methodology for selecting the Chairperson of the Punjab Public
Service Commission.
Options before this Court:
88.But, is this Court really helpless, broadly, in the matter of
laying down appropriate guidelines or parameters for the
appointment of a Chairperson or members of the Public Service
Commission? If Mehar Singh Saini is understood in its correct
perspective, the answer to this question would be in the
negative.
89.First of all, this Court cannot overlook the
administrative imperative. There was and still is a need for the
Public Service Commission to deliver the goods, as it were. In
this context, the Second Administrative Reform Commission in
its 15
th
Report looked at the past, present and future of the
Public Service Commission and observed:
“2.5.3. In the early years of Independence, State Public
Service Commissions throughout the country functioned
well primarily on account of the fact that:
(a) There was objectivity in selection of competent and
experienced people as Chairman and Members of the
Commission. The government treated the Public Service
Commission as a sacrosanct institution and the Chairman
and Members were either very senior government
Page 90 of 103
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Page 91 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 Chairman and Members of the Public Service
Commission.”
90.In this context, the views of the Law Commission of India
as contained in its 14
th
Report, which are at variance with the
views of the Second Administrative Reform Commission
contained in its 15
th
Report are worth highlighting, one of the
reasons being that the luminaries who assisted the Law
Commission reads like a veritable Who’s Who from the legal
firmament. This is what was said:
Page 91 of 103
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Page 92 “Having regard to the important part played by the Public
Service Commission in the selection of the subordinate
judiciary, we took care to examine as far as possible the
Chairman and some of the members of the Public Service
Commissions in the various States. We are constrained to
state that the personnel of these Public Service
Commissions in some of the States was not such as could
inspire confidence, from the points of view of either
efficiency or of impartiality. There appears to be little
doubt that in some of the States appointments to these
Commissions are made not on considerations of merit but
on grounds of party and political affiliations. The evidence
given by members of the Public Service Commissions in
some of the States does create the feeling that they do not
deserve to be in the responsible posts they occupy.”
91.Secondly, the constitutional and more important
imperative is that of good governance for the benefit of the
aspirational Indian. For this, an appropriate person should be
selected to fill up the position of a constitutional trustee.
92.In the light of the various decisions of this Court adverted
to above, the administrative and constitutional imperative can
be met only if the Government frames guidelines or parameters
for the appointment of the Chairperson and members of the
Punjab Public Service Commission. That it has failed to do so
does not preclude this Court or any superior Court from giving a
direction to the State Government to conduct the necessary
exercise within a specified period. Only because it is left to the
Page 92 of 103
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Page 93 State Legislature to consider the desirability or otherwise of
specifying the qualifications or experience for the appointment
of a person to the position of Chairperson or member of the
Punjab Public Service Commission, does not imply that this
Court cannot direct the Executive to frame guidelines and set
the parameters. This Court can certainly issue appropriate
directions 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.
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Page 94 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 the answer
rendered by them to the question referred by the Single Judge
and left it to the Single Judge to dispose of the second appeal
according to law.). Kerala State Science & Technology
Museum v. Rambal Co., (2006) 6 SCC 258 (It is fairly well
settled that when reference is made on a specific issue either
by a learned Single Judge or Division Bench to a larger Bench
i.e. Division Bench or Full Bench or Constitution Bench, as the
case may be, the larger Bench cannot adjudicate upon an issue
which is not the question referred to.). T.A. Hameed v. M.
Viswanathan, (2008) 3 SCC 243 (Since, only reference was
made to the Full Bench, the Full Bench should have answered
the question referred to it and remitted the matter to the
Division Bench for deciding the revision petition on merits.). And
more recently, Saquib Abdul Hameed Nachan v. State of
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Page 95 Maharashtra, (2010) 9 SCC 93 (Normally, after answering
the reference by the larger Bench, it is for the Reference Court
to decide the issue on merits on the basis of the answers given
by the larger Bench.).
96.There is no bar shown whereby a Bench is precluded
from referring the entire case for decision by a larger Bench - it
depends entirely on the reference made. In any event, that
issue does not arise in this appeal and so nothing more need be
said on the subject.
97.What was the reference made by the Division Bench to
the Full Bench and did that Bench frame additional questions?
The answer to this is to be found in the judgment of the High
Court. The reference has not been artistically drafted, but it
reads as follows:
“6. Even though, Article 316 of the Constitution does not
prescribe any particular procedure, having regard to the
purpose and nature of appointment, it cannot be
assumed that power of appointment need not be
regulated by any procedure. It is undisputed that person
to be appointed must have competence and integrity.
Reference may be made to the judgments of the Hon'ble
Supreme Court in R/o Dr. Ram Ashray Yadav, Chairman,
Bihar Public Service Commission, (2000) 4 SCC 309, Ram
Kumar Kashyap and Anr. v. Union of India and Anr ., AIR
2010 SC 1151 and In re Mehar Singh Saini, Chairman,
HPSC and Ors., (2010) 13 SCC 586.
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Page 96 7. If it is so, question is how such persons are to be
identified and selected and whether in the present case,
procedure adopted is valid and if not, effect thereof. We
are of the 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 questions were raised on behalf of the
State of Punjab regarding the maintainability of the reference
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Page 97 itself. In my opinion, the first two questions actually touch upon
the maintainability of the writ petition itself. These issues
should have been decided by the Division Bench and had it
answered the questions in the negative, there would have been
no need to make any reference to the Full Bench.
100.Much was sought to be made by learned counsel for the
writ petitioner that the “matter” (that is the entire matter) was
referred to the Full Bench. It is difficult to agree that the entire
“matter” was referred to the Full Bench. Firstly, the word
“matter” must take colour from the context in which it was
used, which is with reference only to the two questions placed
before the Full Bench. Secondly, even the Full Bench did not
think that the entire matter was referred to it and that is why
after answering the reference the “matter” was remitted to the
Division Bench for disposal in accordance with law.
101.To this extent, learned counsel supporting the cause of
Mr. Dhanda are right that the Full Bench overstepped its
mandate. But where does this discussion lead us to? The two
questions were fully argued in this Court for the purposes of
obtaining a decision on them, and no suggestion was made that
the decision of the Full Bench on these questions be set aside
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Page 98 because of a jurisdictional error and the Division Bench be
asked to decide them quite independently. Therefore, this issue
is only of academic interest so far as this appeal is concerned
notwithstanding the law that a larger Bench should decide only
the questions referred to it. Of course, if a subsidiary question
logically and unavoidably arises, the larger Bench cannot be
dogmatic and refuse to answer it. A common sense approach
must be taken on such occasions.
102.So far as questions 3 and 4 formulated by the Full Bench
are concerned, I am of the opinion that they merely articulate
and focus on the issues that were not quite attractively phrased
by the Division Bench. I am not in agreement that the Full
Bench overstepped its jurisdiction in the reformulation of the
issues before it.
103.It was then submitted that there was really no occasion
for the Division Bench to make any reference to the Full Bench
of the High Court on the question of framing guidelines or
parameters for the appointment of 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
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Page 99 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 advice:
105.Learned counsel for the State of Punjab submitted that
the High Court could not have directed production of the advice
tendered by the Chief Minister to the Governor. The basis of this
argument is the order dated 1
st
August 2011 passed by the Full
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Page 100 Bench. The relevant portion of the order reads as follows:
“Mr. Jindal, Addl. Advocate General shall also produce the
record relating to the appointment process of respondent
No.4 [Mr. Dhanda].”
106.The grievance made by learned counsel in this regard is
justified. It need only be pointed out that in State of Punjab v.
Sodhi Sukhdev Singh, (1961) 2 SCR 371 this Court clearly
held that:
“It is hardly necessary to recall that advice given by the
Cabinet to the Rajpramukh or the Governor is expressly
saved by Article 163, sub-article (3) of the Constitution;
and in the case of such advice no further question need to
be considered.”
It is not necessary to say anything more on this subject.
Conclusion:
107.The appointment of the Chairperson of the Punjab Public
Service Commission is an appointment to a constitutional
position and is not a “service matter”. A PIL challenging such an
appointment is, therefore, maintainable both for the issuance of
a writ of quo warranto and for a writ of declaration, as the case
may be.
108.In a case for the issuance of a writ of declaration,
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Page 101 exercise of the power of judicial review is presently limited to
examining the deliberative process for the appointment not
meeting the constitutional, functional and institutional
requirements of the institution whose integrity and commitment
needs to be maintained or the appointment for these reasons
not being in public interest.
109.The circumstances of this case leave no room for doubt
that the notification dated 7
th
July 2011 appointing Mr. Harish
Rai Dhanda was deservedly quashed by the High Court since
there was no deliberative process worth the name in making
the appointment and also since the constitutional, functional
and institutional requirements of the Punjab Public Service
Commission were not met.
110.In the view that I have taken, there is a need for a word
of caution to the High Courts. There is a likelihood of
comparable challenges being made by trigger-happy litigants to
appointments made to constitutional positions where no
eligibility criterion or procedure has been laid down. The High
Courts will do well to be extremely circumspect in even
entertaining such petitions. It is necessary to keep in mind that
sufficient elbow room must be given to the Executive to make
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Page 102 constitutional appointments as long as the constitutional,
functional and institutional requirements are met and the
appointments are in conformity with the indicators given by this
Court from time to time.
111.Given the experience in the making of such
appointments, there is no doubt that until the State Legislature
enacts an appropriate law, the State of Punjab must step in and
take urgent steps to frame a memorandum of procedure and
administrative guidelines for the selection and appointment of
the Chairperson and members of the Punjab Public Service
Commission, so that the possibility of arbitrary appointments is
eliminated.
112.The Civil Appeals are disposed of as directed by Brother
Patnaik.
….…….…………………….. J.
(Madan B. Lokur)
New Delhi,
February 15, 2013
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