2010 Supreme(SC) 1081

2010 (7) Supreme 873
SUPREME COURT OF INDIA
S.H. Kapadia, CJI., K.S. Radhakrishnan and Swatanter Kumar, JJ.
ADVISORY JURISDICTION
Reference Under Article 317 (1) No.2 of 2008
In re:
Mehar Singh Saini, Chairman, HPSC & Ors.
Decided on : 12-11-2010

IMPORTANT POINT
Integrity and merit have to be properly considered and evaluated in the appointments to the offices of Members and Chairman of the Public Service Commission.

Headnote:Constitution of India – Article 320 – Public Service Commissions are expected to adopt a fair and judicious process of selection to ensure that deserving and meritorious candidates are inducted to the services of the State – This should not only be done but also appear to have been done. (Para 2)

        (2000) 4 SCC 309 – Relied upon

        (b) Constitution of India – Article 315 – Provision of separate PSC for the Centre and the States – Absence of any element of inter-dependence between the two is a pointer to the cause of Commission being free from any influence or limitation. (Para3)

        (c) Constitution of India – Article 317 – Immunities enjoyed by the Chairman and Members of the Commission under the Constitution are far greater and cannot be impinged upon by the normal procedure of service law for dismissal of a civil servant under the Civil Services Rules for an alleged misconduct. (Paras 3 and 22)

        (d) Constitution of India – Article 320 – The necessity of sustenance of public confidence in the functioning of the Commission may be compared to the functions of judiciary in administration of justice. (Para 5)

        (1968) 3 All ER 304 – Relied upon

        (e) Constitution of India – Article 317(2) – Ordinary principles of service law applicable in instances of dismissals of government employees cannot be extended to the proceedings for the removal and suspension of the members of the Public Service Commissions – En bloc suspension of Members and Chairman of a Public Service Commission by the Governor would be valid and not liable to be quashed. (Para 14)

        (2009) 9 SCC 378 – Relied upon

        (f) Constitution of India – Article 145(1)(j) r/w Part VI, Order XXXVIII of Supreme Court Rules, 1966 – Supreme Court can appoint any officer of the Court, or direct an Additional / Sessions Judge or any other Judge, to record evidence in accordance with the provisions of the Indian Evidence Act, 1872 and by way of filing affidavit, wherever directed, in view of the provisions of Order XIX CPC – After recording of evidence, the matter is to be placed before the Supreme Court for regular hearing upon which, the Court is expected to make a report of its findings on the misbehaviour of the Chairman/Members of the Commission. (Para 25)

        (1983) 4 SCC 258 – Relied upon

        (g) Constitution of India – Article 317 – Reference jurisdiction, by its vary nature, is jurisdiction of limited scope in contradistinction to original or appellate jurisdiction of the Supreme Court – The Court can examine articles of charge, facts or evidence which were not before the President while making a reference to this Court – Such need may arise because of subsequent events, as a result of investigation or otherwise, and which have a direct connection to the matters in issue. (Para 27)

        (1983) 4 SCC 258; (2007) 11 SCC 547; (1993) 4 SCC 441 – Relied upon

        (h) Constitution of India – Article 317 – Neither the principles of service jurisprudence nor those of criminal law are applicable to enquiry under Article 317 – Supreme Court can evolve its own procedure in consonance with the principles of natural justice to suit the facts of a given case and to ensure that ends of justice are achieved and there is no abuse of the process of Court. (Paras 31 to 34)

        (2007) 11 SCC 547 – Relied upon

        (i) Constitution of India – Article 317(1) – ‘On the ground of misbehaviour’ – The expression is of wide connotation and cannot be given a restricted meaning – The expression having not been defined in the Constitution, must be understood and explained in its common parlance, keeping in view the object sought to be achieved. (Paras 41 and 44)

        (2009) 1 SCC 344; (2004) 5 SCC 689; (1992) 4 SCC 54; (1979) 2 SCC 286 – Relied upon

        (1961) 63 Punj LR 780 – Cited with approval

        (j) Constitution of India – Article 124(4) and Article 317 – ‘Proved misbehaviour’ is an expression clearly distinguishable from ‘misbehaviour’ and ‘misconduct’ – ‘Misbehaviour’ may include behaviour that was not expected of the holder of the constitutional office but would not include ‘grave misconduct’ or ‘proved misbehaviour’. (Paras 46 and 47)

        (1991) 4 SCC 699; (2009) 1 SCC 344 – Relied upon

        (k) Constitution of India – Article 316 – There is no constitutional requirement of any particular academic qualification or specific experience of any number of years for appointment as Official/Non-official Member of the Commission – However, integrity and merit have to be properly considered and evaluated in the appointments to such high positions. (Para 50)

        (1993) 2 SCC 597; (2000) 4 SCC 309; (2006) 11 SCC 356 – Relied upon

        (l) Constitution of India – Article 317(1) – The commission selecting a candidate whose application was received after the due date, whose application was full of contradictions in respect of experience and contained bogus experience certificate and in preference to more competent and meritorious candidates – Complaint thereagainst not examined – Omissions and commissions as well as administrative lapses on the part of the Chairman and Members of the Commission is writ large which would certainly fall within the ambit of misbehaviour justifying their removal from office. (Paras 59, 60 and 65)

        (m) Constitution of India – Article 317(1) – Commission, by resolution, withholding documents from the Vigilance Bureau and not co-operating with them – Deprecated by Supreme Court – Claim of privilege for non-production of documents with reference to Sections 123 and 124 of the Evidence Act, 1872 was not sustainable or justified. (Paras 71, 73 and 80)

        (2008) 2 SCC 161 – Relied upon

        (n) Administration of justice – It is impermissible to examine an order passed by the High Court or Supreme Court which has attained finality inter-se the parties that too in a collateral proceeding – This will be opposed to the doctrine estoppel per rem judicatam. (Para 74)

        (o) Constitution of India – Article 317(1) – Standard of proof – Rule of ‘reasonable preponderance of probabilities’ would be the right standard to be applied to such cases. (Para 85)

       Facts of the case:

        1. The election to the Haryana Legislative Assembly was due in February, 2005 and the model code of conduct was imposed by the competent authority on 17th December, 2004. By 15 th December, 2004, the Commission came to be reconstituted.

        2. During its tenure, the Commission had made selections and recommended candidates for appointment to various posts in different cadres of the State.

        3. Subsequently, it came to the notice of the Government that various irregularities and illegalities, such as acts of favouritism, discrimination and violation of rules/regulations had been committed by the Commission in the process of selection made by them.

        4. As a result the Chief Secretary, Government of Haryana, requested the Secretary to Governor of Haryana, to refer the matter to the President of India at the earliest for removal of the Chairman and Members of the Commission in terms of Article 317(1) of the Constitution of India.

        5. The President, after examining the records, referred the matter to the Supreme Court under Article 317(1) of the Constitution for inquiry and report, as to whether the existing Chairman and Members of the Commission ought to be removed from the office on the alleged grounds of misbehaviour.

       Finding of the Court:

        Government has failed to prove Charge 1 therefore the respondents are not guilty of any misbehaviour as contemplated under Article 317(1) on this count. However they are guilty on all other counts.