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HIGH COURT OF CALCUTTA
D. N. Sinha, G. K. Mitter, P. Chatterjee
DHIRENDRA KRISHNA BISWAS - Appellant
Versus
CORPORATION OF CALCUTTA - Respondent
Special Bench Ref. In Civil Revn. Case 2025 Of 1958
Decided On : JUNE 04, 1965
CONSTITUTION OF INDIA, 1950 - ARTICLES 316, 318, 319 - CALCUTTA MUNICIPAL ACT, 1951 - SECTION 82 - PUBLIC SERVICE COMMISSION - CHAIRMAN AND OTHER MEMBERS - TERM OF OFFICE - APPOINTMENT OF CHAIRMAN - CESSATION OF MEMBERSHIP - PROHIBITION ON HOLDING OFFICE - MUNICIPAL SERVICE COMMISSION - COMPOSITION - QUALIFICATION OF MEMBERS - INTERVIEW AND RECOMMENDATION BY IMPROPERLY CONSTITUTED COMMISSION - WRIT OF MANDAMUS.
Fact of the Case:
The petitioner, an employee of the Corporation of Calcutta, challenged the recommendation of the Municipal Service Commission for filling up the post of Assistant Controller of Stores on the ground that the respondent No. 3, who was the Chairman of the Commission, had ceased to be a member thereof on the expiry of 6 years from the date of his appointment as a member and that he was not qualified to take part in the deliberations of the Commission when the respondent No. 8, a relation of his through his wife, was before the Commission seeking appointment to the post.
Finding of the Court:
The Court held that the Chairman of the Public Service Commission was a member of the Commission and that the term of his office was provided for in Article 316 of the Constitution. The Court further held that on ceasing to hold office, the Chairman of a State Public Service Commission became ineligible for any employment either under the Government of India or under the Government of a State other than the post of the Chairman or a member of the Union Public Service Commission or as the Chairman of any other State Public Service Commission. The Court also held that the Municipal Service Commission was not properly constituted as the respondent No. 3 had ceased to be a member of the State Public Service Commission on the expiry of six years from the date of his appointment as a member and that the interview and recommendation by the Commission were therefore invalid.
Issues: 1. Whether the Chairman of the Public Service Commission was a member of the Commission and whether the term of his office was provided for in Article 316 of the Constitution? 2. Whether on ceasing to hold office, the Chairman of a State Public Service Commission became ineligible for any employment either under the Government of India or under the Government of a State other than the post of the Chairman or a member of the Union Public Service Commission or as the Chairman of any other State Public Service Commission? 3. Whether the Municipal Service Commission was properly constituted and whether the interview and recommendation by the Commission were valid?
Ratio Decidendi: 1. The Court held that the Chairman of the Public Service Commission was a member of the Commission and that the term of his office was provided for in Article 316 of the Constitution. The Court relied on the provisions of Articles 316, 318 and 319 of the Constitution and the regulations framed under Article 318 to arrive at this conclusion. 2. The Court held that on ceasing to hold office, the Chairman of a State Public Service Commission became ineligible for any employment either under the Government of India or under the Government of a State other than the post of the Chairman or a member of the Union Public Service Commission or as the Chairman of any other State Public Service Commission. The Court relied on the provisions of Article 319 of the Constitution to arrive at this conclusion. 3. The Court held that the Municipal Service Commission was not properly constituted as the respondent No. 3 had ceased to be a member of the State Public Service Commission on the expiry of six years from the date of his appointment as a member and that the interview and recommendation by the Commission were therefore invalid. The Court relied on the provisions of Section 82 of the Calcutta Municipal Act, 1951 to arrive at this conclusion.
Final Decision: The Court made the Rule absolute and issued an appropriate writ directing the Municipal Service Commission to withdraw its recommendations dated 29-3-1958 and treat the interview made on 11th March, 1958 as of no effect and to act now in accordance with law and an appropriate writ directing the respondents Nos. 1 and 2 not to give effect to the said recommendation. The cost of the rule was to be paid by the opposite party no. 1.
( 1 ) IN this matter I have had the opportunity of reading the judgment of my learned brother Chatterjee J. I agree with his findings, and would like only to deal with the constitutional point involved in this application. That point is shortly as follows: Dr. A, T. Sen was appointed as a member of the State Public Service Commission on the 14th January, 1952. He was appointed as Chairman thereof on the 16th November 1954. Section 82 of the Calcutta Municipal Act 1951 provides that the State Government shall, as soon as may be after the commencement of the said Act, constitute a Municipal Service Commission consisting of a Chairman who shall be a member of the State Public Service Commission, deputed by such Commission from time to time, and two members, one of whom shall be nominated by the State Government and the other by the Corporation. At the relevant time, that is to say, in March, 1958 Dr. A. T. Sen was purporting to act us the Chairman of the State Public Service Commission and was also acting as the Chairman of the Municipal Service Commission, On March 29, 1958 the Municipal Service Commission with Dr. A. T. Sen as the Chairman informed the Corporation that it recommended Sri Nir-mal Chandra Gupta for permanent appointment to the post of Assistant Controller of Stores, in the grade of Rs. 300-20-400 with the usual allowances, This recommendation has been accepted by the Finance Standing Committee, by its resolution dated 17th June, 1958. Dhirendra Krishna Biswas, the petitioner in this application, who was a candidate for the said appointment has challenged the recommendation of the Municipal Service Commission mentioned above, on the ground that on the relevant date, Dr. A. T. Sen had ceased to be a member of the State Public Service Commission and therefore he could neither act as the Chairman of that Commission nor as the Chairman of the Municipal Service Commission. According to the petitioner, the recommendation was accordingly made by a body in which the person purporting to act as its Chairman was disqualified from holding office under the provisions of the Constitution. The question is whether this is a ground of substance. The subject matter of Public Service Commissions is contained in Chapter II of Part XIV of the Constitution. Article 315 (1) provides that, subject to the provisions of the said Article, there shall be a Public Service Commission for the Union and a Public Service Commission for each State. Article 318 deals with the appointment and term of office of members. The wordings are important and are set out below:"316 (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 Govern ment of an Indian State shall be included. "
( 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 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 f
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