2013 Supreme(P&H) 157

IN THE SUPREME COURT OF INDIA
Before
The Hon’ble Mr. Justice A.K. Patnaik
The Hon’ble Mr. Justice Madan B. Lokur
Civil Appeal No. 7640 of 2011
State of Punjab
v.
Salil Sabhlok & Ors.
{Decided on 15/02/2013}

Headnote:Service Law--Appointment--Public Interest Litigation--Maintainability of--Chairman of Public Service Commission holds a Constitutional post and not a statutory post--Cannot be termed as "Service matter"--Public Interest Litigation for writ of quo warranto or writ of declaration would be maintainable.

       Service Law--Appointment--Chairman & Members of Public Service Commission--High Court cannot under Article 226 of Constitution lay down the procedure for such appointments--However, it can quash the selection and appointment to ensure that the discretion of the State Government is exercised within the bounds of the Constitution.

       (A) Service Law--Appointment--Quashing--Chairman of Public Service Commission--State of Punjab appointed Mr. Harish Dhanda--Materials do not indicate that Mr. Harish Dhanda had any knowledge or experience whatsoever either in administration or in recruitment nor do the materials indicate that he had the qualities to perform the duties as the Chairman of the State Public Service Commission under Article 320 of the Constitution--Appointment set aside. (Paras 35 & 63)

       Besides the aforesaid bio-data, there is a certificate dated 06.07.2011 given by the Speaker, Punjab Vidhan Sabha, certifying that Mr. Harish Rai Dhanda, MLA, has resigned from the membership of the 13th Punjab Legislative Assembly with effect from 06.07.2011 and that his resignation has been accepted by the Speaker. The aforesaid materials indicate that Mr. Harish Dhanda had B.A. and LL.B Degrees and was practicing as an Advocate at the District Courts in Ludhiana and had been elected as the President of the District Bar Association, Ludhiana for seven terms and has been member of the Legislative Assembly. These materials do not indicate that Mr. Harish Dhanda had any knowledge or experience whatsoever either in administration or in recruitment nor do these materials indicate that Mr. Harish Dhanda had the qualities to perform the duties as the Chairman of the State Public Service Commission under Article 320 of the Constitution which I have discussed in this judgment. No other information through affidavit has also been placed on record before us to show that Mr. Harish Dhanda has the positive qualities to perform the duties of the office of the Chairman of the State Pubic Service Commission under Article 320 of the Constitution. The decision of the State Government to appoint Mr. Harish Dhanda as the Chairman of the Punjab Public Service Commission was thus invalid for non-consideration of relevant factors implied from the very nature of the duties entrusted to the Public Service Commissions under Article 320 of the Constitution. (Para 35)

       As far as the deliberative process is concerned (or lack of effective consultation, as described in Mahesh Chandra Gupta) it is quite apparent that the entire process of selection and appointment of Mr. Dhanda took place in about a day--There is nothing to show the need for a tearing hurry, though there was some urgency, in filing up the post following the demise of the then Chairperson of the Punjab Public Service Commission in the first week of May 2011--But, it is important to ask, since the post was lying vacant for a couple of months, was the urgency such that the appointment was required to be made without considering anybody other than Mr. Dhanda--There is nothing to show that any consideration whatsoever was given to appointing a person with adequate administrative experience who could achieve the constitutional purpose for which the Public Service Commission was created. There is nothing to show that any background check was carried out to ascertain whether Mr. Dhanda had come in for any adverse notice, either in a judicial proceeding or any police inquiry--It must be remembered that the appointment of Mr. Dhanda was to a constitutional post and the basics of deliberation before making the selection and appointment were imperative--In this case, clearly, there was no deliberative process, and if any semblance of it did exist, it was irredeemably flawed--The inbuilt constitutional checks had, unfortunately, broken down. (Para 63)

       (B) Service Law--Appointment--Chairman & Members of Public Service Commission--Power is conferred on Governor of State for appointing Chairman and other members of Public Service Commission and also has implied powers to lay down the procedure for such appointments--High Court cannot under Article 226 of Constitution usurp this constitutional power of Government and lay down the procedure for such appointments--Constitution of India, 1950, Art.316 & 226. (Para 29)

       (C) Service Law--Selection--Chairman of Public Service Commission--Even where a procedure has not been laid down by the Governor for appointment of Chairman and Members of the Public Service Commission, the State Government has to select only persons with integrity and competence for appointment as Chairman of the Public Service Commission, because the discretion vested in the State Government under Article 316 of the Constitution is impliedly limited by the purposes for which the discretion is vested and the purposes are discernible from the functions of the Public Service Commissions enumerated in Article 320 of the Constitution--Constitution of India, 1950, Art.316 & 320. (Para 31)

       (D) Service Law--Selection--Chairman of Public Service Commission--Power of High Court--High Court should not normally, in exercise of its power under Article 226 of the Constitution, interfere with the discretion of the State Government in selecting and appointing the Chairman of the State Public Service Commission, but in an exceptional case if it is shown that relevant factors implied from the very nature of the duties entrusted to Public Service Commissions under Article 320 of the Constitution have not been considered by the State Government in selecting and appointing the Chairman of the State Public Service Commission, the High Court can invoke its wide and extra-ordinary powers under Article 226 of the Constitution and quash the selection and appointment to ensure that the discretion of the State Government is exercised within the bounds of the Constitution--Constitution of India, 1950, Art.316 & 320. (Para 34)

       (E) Service Law--Appointment--Public Interest Litigation--Maintainability of--Chairman of Public Service Commission holds a Constitutional post and not a statutory post--Cannot be termed as "Service matter"--Public Interest Litigation for writ of quo warranto or writ of declaration would be maintainable.

       It cannot be said that the Chairperson of the Public Service Commission holds a post in connection with the affairs of the Union or the State--He or she is not a Government servant, in the sense of there being a master and servant relationship between the Union or the State and the Chairperson--In view of the constitutional provisions pertaining to the security of tenure and the removal procedure of the Chairperson and members of the Public Service Commission, it can only be concluded that he or she holds a constitutional post.

       In a case for the issuance of a writ of declaration, exercise of the power of judicial review is presently limited to examining the deliberative process for the appointment not meeting the constitutional, functional and institutional requirements of the institution whose integrity and commitment needs to be maintained or the appointment for these reasons not being in public interest. (Paras 19, 35 & 108)

       (F) Service Law--Appointment--Eligibility--Chairman of Public Service Commission--Two most important requirements are that personally the Chairperson of the Public Service Commission should be beyond reproach and his or her appointment should inspire confidence among the people in the institution--The first 'quality' can be ascertained through a meaningful deliberative process, while the second 'quality' can be determined by taking into account the constitutional, functional and institutional requirements necessary for the appointment. (Para 47)

       (G) Service Law--Removal--Chairperson of a State Public Service Commission, even though appointed by the Governor, may be removed only by the President on the ground of misbehaviour after an inquiry by this Court, or on other specified grounds of insolvency, or being engaged in any other paid employment or being unfit to continue in office by reason of infirmity of mind or body--There is no question of the Chairperson of a Public Service Commission being shifted out if his views are not in sync with the views of the Chief Minister or the State Government--Constitution of India, 1950, Art.318--Punjab State Public Service Commission (Conditions of Service) Regulations, 1958. (Para 74)

       There is, therefore, a great deal of solemnity attached to the post of the Chairperson of the Public Service Commission--The Chairperson takes the oath of allegiance to India and to the Constitution of India - not an oath of allegiance to the Chief Minister--An appointment to that position cannot be taken lightly or on considerations other than the public interest--Consequently, it is not possible to accept the contention that the Chief Minister or the State Government is entitled to act only on the perceived suitability of the appointee, over everything else, while advising the Governor to appoint the Chairperson of the Public Service Commission--If such a view is accepted, it will destroy the very fabric of the Public Service Commission. (Para 79)