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IN THE HIGH COURT OF GAUHATI, NAGALAND, MIZORAM AND ARUNACHAL PRADESH, ITANAGAR BENCH
Arun Dev Choudhury, J.
Colonel Koj Tari S/o Late Koj Hanya – Petitioner
Versus
The State of AP, Represented by the Chief Secretary and ors. – Respondents
WP(C)/223 & 213/2023
Decided On : 08-12-2023
APPOINTMENT - Public Service Commission - Article 316(1), Article 316(2), Article 317 - The judgment discussed the appointment of Members of Arunachal Pradesh Public Service Commission (APPSC) and the recall of their appointment. The court analyzed the distinction between 'appointed' and 'enter upon his office' in Article 316(1) and (2) and the requirement of oath of office and secrecy. It concluded that the appointment made under Article 316(1) is complete and removal requires adherence to Article 317. The court held that the recall of the appointment was beyond the scope of Constitutional mandate under Article 317 and set aside the impugned orders.
Fact of the Case:
The case involved the challenge to the recall of the appointment of Members of Arunachal Pradesh Public Service Commission (APPSC) and the subsequent issuance of a fresh advertisement for the same posts.
Finding of the Court:
The court found that the appointment made under Article 316(1) is complete and removal requires adherence to Article 317. It held that the recall of the appointment was beyond the scope of Constitutional mandate under Article 317 and set aside the impugned orders.
Issues: The issues addressed by the court were: 1. Whether there is a distinction in meaning between the words 'appointed, employed in sub clause (1) of Article 316 of the Constitution of India and the words 'enter upon his office', employed in sub-clause (2) of Article 316' and whether, procedure under Article 317 is required to be followed only after oath is administered to a Member/Chairman in terms of Clause 4B? 2. Whether, in the event it is held that the petitioners are not entitled for procedural protection provided under Article 317, the impugned action can be interfered being arbitrary, unreasonable and being violative of Articles 14 and 16 of the Constitution of India?
Ratio Decidendi: The court determined that the appointment made under Article 316(1) is complete and removal requires adherence to Article 317. It held that the recall of the appointment was beyond the scope of Constitutional mandate under Article 317 and set aside the impugned orders.
Final Decision: The court allowed the writ petitions, set aside the impugned orders, and directed the respondents to continue with the selection process excluding the posts to which the petitioners had already been appointed. It clarified that the present order shall not debar the respondents to take recourse to the provision of Article 317 of the Constitution of India to remove the present petitioners.
JUDGMENT :
1. Heard Mr. D. Mazumdar, learned Senior Counsel, assisted by Mr. B Kaushik, learned counsel, appearing on behalf of the petitioner, in WP(C) 223 (AP)/2023, and heard Mr. D Panging, learned counsel appearing on behalf of the petitioner in WP(C) 213(AP)/2023. Also heard Mr. I Chowdhury, learned Advocate General, Arunachal Pradesh, assisted by Mr. S Tapin, learned Senior Government Advocate appearing on behalf of the State respondents and Mr. R.H. Nabam, learned Additional Advocate General, Arunachal Pradesh.
2. As agreed to by the learned counsels for the parties, these two writ petitions are taken up for final hearing on 13.11.2023 as both the writ petitions involve identical facts and identical question of law.
3. The basic challenges made in these two writ petitions are a decision of the State Cabinet dated 29.03.2023, whereby a decision was taken by the Cabinet to recall the appointment notification dated 07.02.2023 issued under Article 316(1) of the Constitution of India by the Governor appointing Chairman/Members of Arunachal Pradesh Public Service Commission (hereinafter referred as to AAPSC) pursuant to a selection process initiated vide advertisement dated 21.11. 2022 and the resultant Notification dated 18.04.2023, issued by the Governor whereby, the Notification of appointment dated 07.02.2023 issued in exercise of power under Article 316(1) of the Constitution of India was recalled. The further challenge is the advertisement dated 28.04.2023, whereby, applications were invited for filling up one post of Chairman and 3 (three) post of Members for appointment in APPSC.
4. Both the petitioners were appointed as Member of APPSC by Notification dated 07.02.2023 issued in exercise of power under Article 316(1) of the Constitution of India pursuant to a selection process.
5. Background facts :-
The undisputed facts leading to filing of the these writ petitions , discernible from the pleadings of the parties, are summarized as follows:
I. On 21.11.2022, the Government of Arunachal Pradesh, Department of Administrative Reforms issued an advertisement inviting applications from citizens of India for filing up one post of Chairman and 3 posts of Members in the APPSC.
II. The petitioners being eligible and interested submitted their application for the post of Member, Arunachal Pradesh Public Service Commission.
III. Thereafter, on 11.01.2023, the Government of Arunachal Pradesh, Department of Administrative Reforms issued a notification constituting a screening committee for screening the applications received for the post of Chairman and Members of APPSC.
IV. Thereafter, in the meeting held on 12.01.2023, Screening Committee recommended the names of the petitioners, along with others for appointment as Member of APPSC.
V. Then, on 04.02.2023 after detailed deliberations the cabinet approved the name of the petitioners alongwith 2 others for appointment as Member of the APPSC.
VI. On 07.02.2023, the Governor of Arunachal Pradesh in exercise of powers conferred under Clause (1) of Article 316 of the Constitution of India read with clause 4 of the Arunachal Pradesh Public Service Commission Regulation, 1988(For short Regulation,1988) appointed the petitioners as a Member of the Arunachal Pradesh Public Service Commission.
VII. Then, on 15.02.2023 the Joint Secretary, Department of Administrative Reforms communicated to the petitioners that the Governor of Arunachal Pradesh has consented to administer the oath of office and secrecy to the newly appointed Chairman and Members of the Arunachal Pradesh Public Service Commission on 17.02.2023 and the petitioners were requested to arrive at Raj Bhawan by 14:30 hours.
VIII. On 17.02.2023, the cabinet decided to call off the swearing-in ceremony of the Chairman and Members of the Arunachal Pradesh Public Service Commission in view of the request placed by the Arunachal Indigenous Tribes Forum and Pan Arunachal Joint Steering Committee.
IX. Thereafter, on 18.02.2023 a meeting was held in the
AI
The main legal point established in the judgment is that the appointment made under Article 316(1) is complete and removal requires adherence to Article 317. The court held that the recall of the app....
Mere recommendations in the selection process do not confer a right to appointment; the state exercises discretion in final appointments based on administrative necessity.
The doctrine of pleasure does not permit arbitrary or capricious exercise of power by the State, and such actions must comply with principles of fairness and Article 14 of the Constitution.
"Doctrine of Pleasure" has its genesis under common law - A public servant could be dismissed from service by Crown at its pleasure.
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