1. Reference by President under Article 317 of Constitution for removal of MPSC member for misbehaviour in examination malpractices. (Para 1 , 2 , 3 , 7 , 11 , 12 )
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2007 Supreme(SC) 786
Supreme Court Of India
SAYALEE SANJEEV JOSHI, MEMBER, MAHARASHTRA PUBLIC SERVICE COMMISSION - Appellant
Versus
STATE OF MAHARASHTRA - Respondent
Reference 1 Of 2004
Decided On : 05/17/2007
Advocates Appeared :
A.SHARAN, AJIT KUMAR SINHA, AMIT ANAND TIWARI, D.Patil, DINESH TIWARI, G.R.Pandey, GAURAV AGRAWAL, MAKARAND D.ADKAR, P.PARMESWARAN, Rakhi Suman, RAVINDRA K.ADSURE, S.D.SINGH, VIJAY KUMAR, VISHWAJIT SINGH
Members of a Public Service Commission must disclose the candidature of near relatives in examinations conducted by the Commission to ensure impartiality and maintain public confidence, as their status as constitutional functionaries imposes a higher obligation of integrity and transparency than that of ordinary employees.
Headnote:(A) Constitution of India - Article 317 - Removal and suspension of a member of a Public Service Commission - Misbehaviour - Obligation of disclosure of family members appearing for examinations - High standards of integrity and impartiality expected from constitutional functionaries (Paras 13, 14).
(B) Scope of enquiry under Article 317(1) - The enquiry conducted by the Court is an investigation into the facts themselves to determine if allegations of misbehaviour are proved, beyond the prima facie satisfaction of the President (Para 5).
(C) Conduct of Constitutional Trustees - Members of a Public Service Commission occupy a unique position requiring utmost objectivity and detachment. Their character and conduct must be above board to preserve the public's faith in the institution's proper functioning (Para 14).
Facts of the case:
A reference was made by the President of India to determine if a member of a State Public Service Commission was liable to be removed from office on the ground of misbehaviour. The charges included: (i) attempting to protect candidates in a competitive examination through a middleman, (ii) interfering with an internal inquiry into malpractices, (iii) failing to disclose that the member's daughter had applied for an examination conducted by the commission in violation of a mandatory office order, and (iv) colluding to sabotage a candidate's complaint. During the proceedings, evidence was taken regarding telephonic contacts with dubious characters and the recovery of confidential documents from the member's residence.
Findings of Court:
The Court found that the charges of attacking candidates and interfering with internal inquiries were not substantiated by sufficient corroborative evidence, as the testimony primarily relied on the confession of a co-accused without independent proof. However, the Court found that the member admitted to the non-disclosure of the daughter's application for an examination. The member's argument that the disclosure circular applied only to employees and officers, and not to members, was rejected.
Issues: Whether the failure to disclose the candidature of a daughter in a competitive examination conducted by the commission constitutes misbehaviour under Article 317(1) of the Constitution, given the higher status of the member as a constitutional functionary.
Ratio Decidendi: A member of a constitutional body, holding a status higher than an employee or officer, is subject to a greater obligation of transparency. The requirement to disclose near relations appearing for examinations is essential to ensure the member does not participate in the selection process, thereby preventing any partiality and safeguarding the credibility of the institution. Failure to make such disclosure amounts to misconduct and misbehaviour (Paras 55, 56).
Result: Reference answered in the affirmative only as regards the charge of non-disclosure of the daughter's candidature.
Legal Category Hierarchy
- constitutional law
- practice and procedure
- administrative law
Table of Contents
2. Respondent denied charges, claimed no obligation to disclose daughter's candidature, and challenged evidence as unreliable. (Para 13 , 14 , 44 , 46 )
3. Court analyzed evidence, found Charge No. 3 proved for non-disclosure of daughter's candidature; other charges not sufficiently established. (Para 45 , 46 , 47 , 48 , 49 , 50 , 51 , 52 , 53 , 54 , 55 , 56 , 57 , 58 , 59 , 60 )
4. Member of constitutional body must maintain highest standards; duty to disclose relative's candidature even if not covered by office circular. (Para 14 , 56 , 57 )
5. Reference answered in affirmative only as regards Charge No. 3; report forwarded to President of India. (Para 60 , 61 )
6. What is the standard of proof in an inquiry under Article 317(1) of the Constitution?
Not a criminal trial beyond reasonable doubt; it is an inquiry into conduct of a constitutional functionary. (Para 13 , 14 )
7. Is a prior confessional statement admissible as evidence in an inquiry under Article 317?
Yes, as a corroborative piece of evidence under previous statement principles. (Para 25 , 27 )
8. Does a member of a Public Service Commission have an obligation to disclose a relative's candidature in the Commission's examination?
Yes, even if the applicable circular does not technically cover members, the higher duty requires disclosure. (Para 55 , 56 , 57 )
9. What constitutes misbehaviour under Article 317(1) of the Constitution for a member of a Public Service Commission?
Failure to disclose daughter's candidature in an examination conducted by the Commission amounts to misbehaviour. (Para 56 , 57 )
10. Can a charge relating to conduct after the alleged misbehaviour be considered in an Article 317 reference?
Such charges were dropped as not strictly within the purview of the reference. (Para 8 )
P. K. BALASUBRAMANYAN, J.
( 1 ) THIS reference is made by the Hon'ble President of India under Article 317 of the constitution of India in relation to the conduct of the respondent, a member of the maharashtra Public Service Commission. The question is whether respondent No. 3 is liable to be removed from office on the ground of misbehaviour.
( 2 ) THE said respondent joined the maharashtra Public Service Commission as a member on 8. 5. 2001. She was arrested on 8. 6. 2003 in a crime registered in connection with a complaint lodged by the Public Service Commission relating to mal-practices in respect of an examination conducted in the year 1999. Twenty one others were also arrested. The respondent was lodged in jail. This led to His Excellency the Governor of maharashtra to request His Excellency the President of India to initiate action under Article 317 of the Constitution of india for her removal. He also suspended her from office until an order had been passed by the President under clause (1) of article 317 of the Constitution. It is seen that the respondent was subsequently released on ball though at least on three earlier occasions, her prayers for bail were rejected. Since a request was made to the president of India to act in terms of Article 317 (1) of the Constitution, the placing of the respondent under suspension under Article 317 (2) of the Constitution was proper. Considering the nature of the scam that emerged and the constitutional position enjoyed by the Public Service Commission, the reference to this Court under Article 317 (1) of the Constitution is seen to be the proper step to be taken.
( 3 ) THE Governor made the request to the president by letter dated 5. 8. 2003 to initiate action under Article 317 of the Constitution. His Excellency made the reference by letter dated 13. 12. 2003.
( 4 ) ARTICLE 317 of the Constitution reads as under :
"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 enquiry 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 Suprem,,, ourt 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 members, 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 cantinue 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. "
( 5 ) THE contours of enquiry when a reference is made by the President of India under Article 317 (1) of the Constitution of India has been clearly drawn by this Court in Special Reference no. 1 of 1983 [
