2013 Supreme(SC) 164

SUPREME COURT OF INDIA
A.K. PATNAIK, MADAN B. LOKUR, JJ.
State of Punjab – Appellant
Versus
Salil Sabhlok & Others – Respondents
Civil Appeal No. 7640 of 2011 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)
Decided on : 15-02-2013

Statutory post and Constitutional post.
Writ of declaration.

Headnote:(a) Constitution of India - Article 226 - Public Interest Litigation - Writ petition in question not a service matter litigation - In fact it espouses public interest - No infirmity in entertaining the petition. (Para 23)

        (1993) 4 SCC 119; (1998) 7 SCC 273; (2005) 1 SCC 590; (2004) 3 SCC 349; (2010) 9 SCC 655; (2010) 10 SCC 707 - Distinguished

        (b) Constitution of India - Article 226 r/w Article 316 - Writ petition not only against appointment of the incumbent being involved in irregularities - Petition raising issues concerning identification of proper person(s) for the post of Chairman, Public Service Commission in terms of Article 316 - The matter required consideration of validity of the procedure adopted and its effect - Mehar Singh Saini only discussed qualifications and experience etc. of the candidates for chairmanship of PSC - It did not lay down procedure for identifying correct person - No infirmity in making reference to Full Bench. (Para 25)

        (2010) 13 SCC 586 - Referred

        (c) Punjab High Court Rules - Rules 4, 6, 7, 8 and 9 - Jurisdiction of Full Bench flows from orders of the Division Bench or orders of the Chief Justice - Instantly there is no order of Chief Justice - Division Bench referring only specific questions relating to the procedure for identifying persons of competence and integrity for appointment as the Chairman of the Public Service Commission - Full Bench instead of deciding these specific questions directing the State 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 - Full Bench exceeded its jurisdiction. (Para 28)

        (1981) Supp.1 SCC 38 - Relied upon impliedly

        (d) Constitution of India - Article 316 - Empowers Governor to appoint Members/Chairman PSC - Impliedly Governor also empowered to make procedures therefor - High Court laying down procedure usurping powers of Governor - Not permissible. (Para 29)

        (1978) 1 SCC 405 - Relied upon impliedly

        (e) Constitution of India - Article 316 - Qualities of Chairman of PSC - Not specified in Article 316 - Include competence, maturity, experience of public administration - Appointments ignoring these qualities - Not in accordance with Constitution. (Para 32)

        (1985) 4 SCC 417; (2000) 4 SCC 309; (2006) 11 SCC 356; AIR 1975 SC 2226 - Relied upon

        (1974) 4 SCC 3; (2003) 2 SCC 604 - Distinguished

        (f) Constitution of India - Article 226 - Jurisdiction - Court should not normally interfered with appointment of Chairman PSC made under Article 316 - However Court can interfere if the factors implied Article 320 have not been considered - Invoking its jurisdiction under Article 226, High Court can quash such appointment. (Para 35)

        AIR 1966 SC 81 - Relied upon

        (2011) 4 SCC 1 - Relied upon impliedly

        (2006) 11 SCC 731 - Distinguished

        (g) Constitution of India - Article 320 - relevant factors implied from nature of duties entrusted to PSC under Article 320 not considered - Appointment of Chairman without such consideration - Invalid - High Court quashing such appointment - No infirmity. (Paras 35 and 36)

        AIR 2010 SC 1151; (2010) 13 SCC 586 - Referred

       Facts of the case:

        In this appeal a very important question of law arises for decision:

        Whether the High Court in exercise of its writ jurisdiction under Article 226 of the Constitution can lay down the procedure for the selection and appointment of the Chairman of the State Public Service

        Commission can quash his appointment in appropriate cases.

       Finding of the Court:

        There is distinction between statutory post and constitutional post. Therefore PIL is maintainable in instant case.

       Result : Appeals disposed of

       (a) Constitution of India – Article 226 – Appointment of Chairman PSC – Interference by High Court – Permissibility – High could have and ought to have interfered. (Para 3)

        (b) Constitution of India – Article 226 – Writ – Maintainability – Appointment of Chairperson PSC – Not a service matter – PIL is maintainable. (Para 4)

        (c) Constitution of India – Article 316 – Chairperson of PSC – Constitutional post and statutory post – Indicators for appointment – Difference. (Paras 7)

        (d) Constitution of India – Article 226 – Chairperson of PSC – Not a statutory post – No statutory parameters or requirement laid down for appointment – Writ of quo warranto would not lie. (Para 15)

        (2010) 9 SCC 655; (1993) 4 SCC 119; (2002) 6 SCC 269; (2003) 4 SCC 712; (2006) 11 SCC 731 (2); (2009) 8 SCC 273 – Relied upon

        (e) Words and Phrases – Service matter – Section 3(q), Administrative Tribunals Act, 1985 defines service matter – Chairperson of PSC does not have master-servant relationship with the Union or the State – Nature of Constitutional duties and functions of chairperson – Chairperson of PSC is Constitutional post – Appointment to such post cannot be described as service matter. (Paras 24 to 30)

        (1990) 4 SCC 262; 1994 Supp. (3) SCC 220; (2000) 4 SCC 309; (2009) 9 SCC 278; (2010) 13 SCC 586 – Relied upon

        (f) Constitution of India – Article 226 – A writ of quo warranto lies in service matter – PIL does not lie in service matter – Appointment of Chairperson of PSC not being service matter, PIL seeking writ of quo warranto would not be barred. (Para 35)

        (1993) 4 SCC 119; (2006) 11 SCC 731 (2); (2010) 10 SCC 707; (1998) 7 SCC 273; (2005) 1 SCC 590; (2004) 3 SCC 349; (2010) 9 SCC 655 – Relied upon

        (g) Constitution of India – Article 226 – Writ of declaration – Where writ of quo warranto cannot be issued – To declare disqualification of selected candidate and check arbitrariness in appointment to constitutional posts. (Paras 36 and 37)

        (1992) 2 SCC 428; (2009) 7 SCC 1; (2011) 4 SCC 1 – Relied upon

        (h) Constitution of India – Article 316 – Chairperson of PSC – Indicators – Incumbent should be beyond reproach and the appointment should inspire confidence among the people in the institution. (Para 47)

        (2006) 11 SCC 356; (2009) 5 SCC 65 – Relied upon

        (i) Constitution of India – Article 316 – Adverse comments in a judicial proceeding against incumbent Chairperson PSC – Neither disclosed by the incumbent, nor Chief Minister bothering to check whether incumbent was an appropriate person for the post – Deliberative process as required in Inderpreet Singh Kahlon not carried out. (Para 53)

        (2006) 11 SCC 356; (2009) 8 SCC 273 – Relied upon

        (j) Constitution of India – Article 316 – Chairperson of PSC – Suitability – Merely being an advocate and having electoral successes, but lacking administrative experience does not make a person eminently suitable – However suitability test is beyond scope of judicial review. (Paras 57 and 58)

        (2009) 8 SCC 273 – Relied upon

        (k) Administration of Justice – Judicial Review – Appointment of Chairperson PSC – Failure to carry out deliberative process and non-consideration of institutional requirements – Warrant judicial review – Entire exercise relating to appointment of the Chairperson of PSC completed in one day – constitutional, functional and institutional requirements of the PSC not kept in mind. (Paras 62 and 67)

        (2009) 8 SCC 273; (1978) 1 SCC 405; (2011) 4 SCC 1; (2009) 7 SCC 1– Relied upon

        (l) Administrative Law – Administrative position and Constitutional position – Cannot be equated – Distinction – Chief Minister recommending person for appointment to the post of Chairperson of PSC only on perceived suitability of the appointee, over everything else – Not proper. (Paras 72 to 74 and 79)

        (1974) 4 SCC 3; (2003) 2 SCC 604; (2010) 9 SCC 655; AIR 1968 SC 1113; AIR 1968 SC 1495; (1987) 4 SCC 486 – Distinguished

        (m) Administration of Justice – Judicial Review – Separation of powers – Court cannot legislate or issue any direction to parliament – Court can, however, issue directions for framing of rules, procedures etc. taking into consideration the factors indicated – These would be binding. (Paras 86 and 92)

        (2010) 13 SCC 586; (1989) 4 SCC 187; 1989 Supp (2) SCC 364; (2005) 13 SCC 287; 1992 Supp (1) SCC 548 – Relied upon

        (n) Administration of Justice – Reference to larger Bench – There is no bar on referring the entire case to larger Bench. (Para 96)

        1981 Supp SCC 38; (2006) 6 SCC 258; (2008) 3 SCC 243; (2010) 9 SCC 93 – Referred

        (o) Words and Phrases – Matter – Must take colour from the context in which it was used – Division Bench referring only two questions to Full Bench – Full Bench after deciding the referred questions remitting the matter to Division bench – Thus Full Bench also did not think that entire matter was referred to it. (Para 100)

        (p) Administration of Justice – Reference to Larger Bench – Full Bench reformulating issues posed by Division bench – Similarly Division Bench referring applicability of Supreme Court decisions to the case at hand – No infirmity (Paras 102 and 103)

        (q) Code of Civil procedure, 1908 – Order I, rule 8A – Appointment of Chairperson of Punjab PSC – High Court erred in impleading State of Haryana. (Para 104)

        (r) Constitution of India – Article 226 – Jurisdiction – High Court directing production of the advice tendered by the Chief Minister to the Governor – Beyond jurisdiction. (Para 105)

        (1961) 2 SCR 371 – Relied upon

       Finding of the Court:

        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

       Result : Appeals disposed of.