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1971 Supreme(Gau) 21
GAUHATI HIGH COURT
P.K.Goswami, M.C.Pathak, B.N.Sarma, JJ.
Devajit Chaliha -Appellant
Versus
Harendra Nath Baruah -Respondent
Civil Rule No. 421 of 1969
Decided On : 12-04-1971
S.M.Lahiri, R.C.Choudhary, A.Sharma, G.K.Talukdar
The constitution of the Commission and the validity of the interview conducted by the Chairman and one Member of the Commission.
Headnote:
PUBLIC SERVICE COMMISSION - Constitution - Minimum number of members required for interview - Validity of recommendation - Assam Public Service Commission Regulations, 1951, Regulation 4.
Fact of the Case:
The petitioner, an engineer, challenged the nomination of the respondent as the Principal of an engineering college by the Assam Public Service Commission (Commission). The petitioner argued that the interview for the post was conducted by only the Chairman and one Member of the Commission, instead of the minimum number of three members required under the amended Regulation 4 of the Assam Public Service Commission Regulations, 1951. The petitioner relied on a previous decision of the court (A. C. Sarkar v. State of Assam) to support his argument.
Finding of the Court:
The court held that the interview conducted by the Chairman and one Member of the Commission was valid and the recommendation made by them was the recommendation of the Commission. The court noted that the constitution of the Commission had not been challenged and that the petitioner did not deny that the nomination of the respondent was made by the Commission. The court also considered Articles 316 (1-A) and 317 (2) of the Constitution, which provide for contingencies when the office of the Chairman or other members of the Commission becomes vacant or when they are unable to perform their duties. The court found that these provisions indicate that there is no illegality per se of the Commission continuing to function with one member less under certain circumstances.
Issues: 1. Whether the interview conducted by the Chairman and one Member of the Commission was valid and the recommendation made by them was the recommendation of the Commission. 2. Whether the constitution of the Commission was illegal.
Ratio Decidendi: 1. The court held that the interview conducted by the Chairman and one Member of the Commission was valid and the recommendation made by them was the recommendation of the Commission. The court noted that the constitution of the Commission had not been challenged and that the petitioner did not deny that the nomination of the respondent was made by the Commission. The court also considered Articles 316 (1-A) and 317 (2) of the Constitution, which provide for contingencies when the office of the Chairman or other members of the Commission becomes vacant or when they are unable to perform their duties. The court found that these provisions indicate that there is no illegality per se of the Commission continuing to function with one member less under certain circumstances. 2. The court held that the constitution of the Commission was not illegal. The court noted that the petitioner had not challenged the constitution of the Commission and that the Commission had been constituted by the Governor under Article 316 (1) of the Constitution and that the Governor had also made a Regulation known as "The Assam Public Service Commission Regulations, 1951" under Art. 318 of the Constitution.
Final Decision: The court dismissed the petition, holding that the interview conducted by the Chairman and one Member of the Commission was valid and the recommendation made by them was the recommendation of the Commission. The court also held that the constitution of the Commission was not illegal.
On 5th June, 1968, an advertisement was made in the Assam Gazette (vide Annexure 'C') by the Assam Public Service Commission, hereinafter called 'the Commission', inviting applications for the post of the Principal, along with some other posts, prescribing the qualifications etc., for, the post. The petitioner applied for the post in answer to the aforesaid advertisement and he along with three other candidates including the Respondent No. 1 were interviewed for the said post by the Commission on 29th January, 1969. The interview of the petitioner and the other candidates was held by the Chairman and another Member of the Commission. There was also Sri A. Z. Ahmed, Retired Chief Engineer, present in the interview with the Members as an expert. After the interview, the Commission recommended only one name, that of the Respondent No. 1 for the appointment.
The petitioner represented to the Education Minister objecting to the nomination and praying for considering his case favourably. The petitioner did not object to the constitution of the Commission or to the Board of interview in this representation dated 18th February, 1969. The petitioner was informed that "the Government do not find any apparent reason for not accepting the said nomination of the Assam Public Service Commission". The petitioner then obtained the present returnable Rule on 23rd May, 1969 challenging the nomination of the Commission on various grounds.
2. When this Rule was heard by a Division Bench of this Court on 22nd September, 1969, the petitioner's counsel submitted that a Division Bench decision of this Court since reported in Assam LR (1969) Assam and Nagaland 202 (A. C. Sarkar v. State of Assam) would require reconsideration and that is how this case has come before this Full Bench.
When, however, the matter came up before us for final heari
