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2011(3) LAW HERALD (P&H) (FB) 2417
IN THE HIGH COURT OF PUNJAB AND HARYANA
(FULL BENCH)
Before
The Hon’ble Mr. Justice Hemant Gupta
The Hon’ble Mr. Justice Permod Kohli
The Hon’ble Mr. Justice K. Kannan
Civil Writ Petition No.11846 of 2011 (O&M)
Salil Sabhlok
v.
Union of India & Ors.
{Decided on 17/08/2011}
(B) Service Law--Appointment--Chairman of Public Service Commission--Quashing of--Article 14 ensures that all appointments under the constitution of India are made fairly, objectively and in transparent manner--The appointment to the constitutional posts such as members of the Commission cannot be excluded from such principle--Since the decision making process is not transparent, objective and no effort has been made to choose the best possible talent to discharge the Constitutional functions, the appointment of Respondent No 4 is liable to be set aside--Constitution of India, 1950, Art.14. (Para 69)
The records pertaining to the decision making process have been produced--In so far as they are relevant to the choice of the Chairman, they contain no more than a single sheet of the bio data of the 4th respondent--Only the name of respondent No.4 was considered and recommended for appointment in a day--The affidavit filed on behalf of the said respondent spells out that he was Vice- President of Shiromani Akali Dal; President of Legal Cell of Shiromani Akali Dal and the spokesperson of the present ruling party--He resigned from the membership of the State Assembly on 6.7.2011 and on the next date i.e. 7.7.2011, he has been appointed as Chairman of the Commission--The decision making process on the basis of material produced shows that the appointment was made with a pre-conceived mind and in a determined manner to appoint respondent No.4 as the Chairman of the Commission--It cannot be said that the respondent No 4 is the only candidate who could be considered and appointed for such assignment--The law declared by the Supreme Court is that the Chairman and Members of the Commission have to be persons of impeccable integrity, caliber and merit--Such is the recommendation of the Administrative Reforms Commission and circulated by Central Government to the State Governments. (Para 69)
(C) Service Law--Appointment--Chairman of Public Service Commission--Quashing of--Personal Integrity--Members and the Chairman of the Commission have to be impeccable integrity, caliber and qualifications--The Chairman and the Members of the Commission have to discharge onerous function of choosing the most suitable candidates for appointment to the civil posts under the State Governments--The personal integrity of the said respondent is not such which can satisfy the minimum benchmark expected of the said office. (Para 24)
The fact that the name of respondent No.4 appears in the FIR and in civil litigation in respect of usurpation of public property and the fact that the allegations of mala-fide have been found substantiated by the Central Administrative Tribunal, are enough to infer that the personal integrity of respondent No.4 is not such as would be commensurate with the personal integrity expected of the Chairman of the Public Service Commission--It is contended that may be, respondent No.4 is good in winning election of the Bar, Bar Council and Legislative Assembly, but that does not make him eligible to discharge duties of the high constitutional post of the Chairman of the Public Service Commission, that demands purity and integrity of the administrative services--He is not shown to possess any high academic attainments or exceptional caliber or administrative experience which can justify his appointment--No other person was considered and the entire process is believed to have been completed in a day. (Para 24)
(D) Service Law--Appointment--Chairman of Public Service Commission--Quashing of--Maintainability of Public Interest Litigation--Chairman or the Members of the Commission are not the persons holding civil posts governed by the service jurisprudence, but are required to be dealt with keeping in view the expectations and nature of duties assigned to them by the Constitution--Thus, this is not a Public Interest Litigation in a ‘service matter’, so called, but the Public Interest Litigation in relation to the matter of appointment to constitutional post--Therefore, such Public Interest Litigation is maintainable. (Para 39)
(E) Service Law--Appointment--Chairman of Public Service Commission--Quashing of--A writ of quo warranto is maintainable where the appointment is against law--Such Law is not only statutory law but shall include the law as declared by the Supreme Court. (Para 14)
The judgments of various Courts have reiterated time and again the expectations from the constitutional bodies, such as the Public Service Commissions--The State Governments have been impressed upon to appoint persons of caliber, impeccable integrity and merit as Chairman and Members of the Commission--To ensure that the Chairman and the Members of the Commission are of impeccable integrity and caliber possessing adequate administrative experience, so as to select the best possible talent to man the civil posts under the State, the decision making process has to be transparent and objective to ensure that the best possible candidates are selected for the coveted assignments. (Para 41)
(F) Service Law--Appointment of--Members and Chairman of Public Service Commission--Guidelines--Court can issue directions in the nature of guidelines for a transparent, fair and objective procedure to ensure that the persons of impeccable personal integrity, caliber and qualifications alone are appointed as the members/Chairman of State Public Service Commission--Following Guidelines issued.
1. There shall be Search Committee constituted under the Chairmanship of the Chief Secretary of the respective State Governments.
2. The Search Committee shall consist of at least three members. One of the members shall be serving Principal Secretary i.e. not below the rank of Financial Commissioner and the third member can be serving or retired Bureaucrat not below the rank of Financial Commissioner, or member of the Armed forces not below the rank of Brigadier or of equivalent rank.
3. The Search Committee shall consider all the names which came to its notice or are forwarded by any person or by any aspirant. The Search Committee shall prepare panel of suitable candidates equal to the three times the number of vacancies.
4. While preparation of the panel, it shall be specifically elicited about the pendency of any court litigation, civil or criminal, conviction or otherwise in a criminal court or civil court decree or any other proceedings that may have a bearing on the integrity and character of the candidates
5. Such panel prepared by the Search Committee shall be considered by a High Powered Committee consisting of Hon’ble Chief Minister, Speaker of Assembly and Leader of Opposition.
6. It is thereafter, the recommendation shall be placed with all relevant materials with relative merits of the candidates for the approval of the Hon’ble Governor after completing the procedure before such approval.
7. The proceedings of the Search Committees shall be conducted keeping in view the principles laid down in Centre for PIL’s case (Supra). (Para 44 & 72)
Mr. Hemant Gupta, J.: - I. The reference to the Full Bench – the subject that requires fullfledged consideration.
1. The present writ petition has been placed before this Bench on a reference made by a Division Bench of this Court in respect of the issues arising out of appointment of respondent No.4 as Chairman of the Punjab Public Service Commission (for short referred to as ‘the Commission’). His appointment was challenged before a Division Bench of this Court just on the eve of the occasion for swearing-in ceremony. While ordering notice on the petition on July 13, 2011, the Court noticed the importance of the issues raised in the case and referred the matter observing, as follows:
“6. Even though, Article 316 of the Constitution does not prescribe any particular procedure, having regard to the purpose and nature of appointment, it cannot be assumed that power of appointment need not be regulated by any procedure. It is undisputed that person to be appointed must have competence and integrity. Reference may be made to the judgments of the Hon’ble Supreme Court in R/o Dr. Ram Ashray Yadav, Chairman, Bihar Public Service Commission, (2000)4 SCC 309, Ram Kumar Kashyap and another v. Union of India and another, AIR 2010 SC 1151 and In re Mehar Singh Saini, Chairman, HPSC and others, (2010)13 SCC 586.
7. If it is so, question is how such persons are to be identified and selected and whether in the present case, procedure adopted is valid and if not, effect thereof. We are of the view that these questions need to be considered by a Bench of three Hon’ble Judges. Accordingly, we refer the matter to a Bench of three Hon’ble Judges.”
2. Even before the case got underway through arguments, Mr. P.P. Rao, learned Senior Counsel, appearing on behalf of the State of Punjab, submitted that the questions of law as framed by the Division Bench do not arise for consideration as such questions stand concluded by the judgments of Supreme Court. This Full Bench shall therefore return the reference without any more adjudication. He stated that the Division Bench has, even while making a reference to the Full Bench, observed that the irregularities and illegalities pointed out by the petitioner in the writ petition do not stand substantiated. Therefore, this Bench cannot frame new questions and the reference made by the Bench should be returned unanswered. Mr. Rao further sought to present at the threshold that the Public Interest Litigation challenging appointment of a person is not maintainable and that only an aggrieved candidate can challenge the appointment. We have maintained that the case required a full fledged discussion that cannot be short-circuited by a contention of non-maintainability of the reference as a preliminary point and urged the counsel to make their arguments on all the essential points brought out through their respective pleadings.
II. Array of parties; Suo motu Impleadment of parties and particulars that were sought from them
3. After reference to Full Bench, on 19.7.2011, we suo motu directed the impleadment of the State of Haryana and Haryana Public Service Commission, as issues common in respect of the States of Punjab and Haryana, were likely to arise. Both the States and their Public Service Commissions were directed to furnish the following information:-
“1. The number of posts filled up by respective Public Service Commissions in the last five years;
2. The number of posts which have been taken out of the purview of the Public Service Commission in the last five years;
3. Whether any regulations have been framed in respect of the appointment of the Members and Chairman of the Commission.”
III. Facts set forth in the writ petition that have given rise to the lis
(a) The personal attributes necessary for the high constitutional post
4. The petitioner is an Advocate, practising before this Court and has filed the present petition as a public spirited person. It is, inter-alia, pleaded that the primary func
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