A reading of Article 316 of the Constitution would show that it confers
power on the Governor of the State to appoint the Chairman and other
Members of a Public Service Commission. It has been held by this
Court in Mohinder Singh Gill & Anr. v. The Chief Election Commissioner,
New Delhi & Ors. (supra) that an authority has implied powers to make
available and carry into effect powers expressly conferred on it. Thus,
under Article 316 of the Constitution, the Governor of a State has not
only the express power of appointing the Chairman and other Members
of Public Service Commission but also the implied powers to lay down
the procedure for appointment of Chairman and Members of the Public
Service Commission and the High Court cannot under Article 226 of the
Constitution usurp this constitutional power of the Government and lay
down the procedure for appointment of the Chairman and other
Members of the Public Service Commission. The Full Bench of the High
Court, therefore, could not have laid down the procedure for
appointment of the Chairman and Members of the Punjab Public Service
Commission and the Haryana Public Service Commission by the
impugned judgment dated 17.08.2011.
30. Having held that the Full Bench of the High Court has in its
judgment dated 17.08.2011 acted beyond its jurisdiction and has
usurped the constitutional power of the Governor in laying down the
JUDGMENTprocedure for appointment of the Chairman and Members of the Public
Service Commission, I have to set aside the judgment dated 17.08.2011
of the Full Bench of the High Court. Thereafter, either of the two courses
are open to me: remand the matter to the High Court for disposal of the
writ petition in accordance with law or decide the writ petition on merits.
To cut short the litigation, I proceed to decide the writ petition on merits
instead of remanding the matter to the High Court.
31. This Court has had the occasion to consider the qualities which a
person should have for being appointed as Chairman and Member of
Public Service Commission and has made observations after considering
the nature of the functions entrusted to the Public Service Commissions
under Article 320 of the Constitution. In Ashok Kumar Yadav & Ors. v.
State of Haryana & Ors. (supra), a Constitution Bench of this Court
speaking through P.N. Bhagwati, J, observed:
“We would therefore like to strongly impress upon
every State Government to take care to see that its
Public Service Commission is manned by competent,
honest and independent persons of outstanding ability
and high reputation who command the confidence of
the people and who would not allow themselves to be
deflected by any extraneous considerations from
discharging their duty of making selections strictly on
merit.”
In R/O Dr. Ram Ashray Yadav, Chairman, Bihar Public Service Commission (supra),JUDGMENTDr. A.S. Anand, C.J. speaking for a three Judge Bench, cautioned:
“The credibility of the institution of a Public Service
Commission is founded upon the faith of the common
man in its proper functioning. The faith would be
eroded and confidence destroyed if it appears that the
Chairman or the members of the Commission act
subjectively and not objectively or that their actions
are suspect. Society expects honesty, integrity and
complete objectivity from the Chairman and members
of the Commission. The Commission must act fairly,
without any pressure or influence from any quarter,
unbiased and impartially, so that he society does not
lose confidence in the Commission. The high
constitutional trustees, like the Chairman and
members of the Public Service Commission must
forever remain vigilant and conscious of these
necessary adjuncts.”
Despite these observations of this Court, the State Government of
Punjab appointed Mr. Ravi Pal Singh Sidhu as the Chairman of the
Punjab Public Service Commission between 1996 to 2002 and as has
been noted in the judgment of S.B. Sinha, J. of this Court in Inderpreet
Singh Kahlon and Others v. State of Punjab and Others (supra),
allegations were made against him that he got a large number of
persons appointed on extraneous considerations including monetary
consideration during the period 1998 to 2001 and raids were conducted
in his house on more that one occasion and a large sum of money was
recovered from his custody and his relatives and FIRs were lodged and
criminal cases initiated by the Vigilance Bureau of the State of Punjab.
Writing a separate judgment in the aforesaid case, Dalveer Bhandari, J, JUDGMENT
had to comment:
“This unfortunate episode teaches us an important
lesson that before appointing the constitutional
authorities, there should be a thorough and
meticulous inquiry and scrutiny regarding their
antecedents. Integrity and merit have to be properly
considered and evaluated in the appointments to such
high positions. It is an urgent need of the hour that in
such appointments absolute transparency is required
to be maintained and demonstrated. The impact of
the deeds and misdeeds of the constitutional
authorities (who are highly placed), affect a very large
number of people for a very long time, therefore, it is
absolutely imperative that only people of high
integrity, merit rectitude and honesty are appointed to
these constitutional positions.”
Considering this experience of the damage to recruitment to public
services caused by appointing a person lacking in character as the
Chairman of the Public Service Commission in the State of Punjab, when
the respondent No.1 brought to the notice of the High Court through the
writ petition that the State Government of Punjab proposed to appoint
Mr. Harish Dhanda as the Chairman of the Public Service Commission,
only because of his political affiliation, the Division Bench of the High
Court rightly entertained the writ petition as a public interest litigation.
The Division Bench of the High Court, however, found that no procedure
for appointment of Chairman and Members of the Public Service
Commission has been laid down in Article 316 of the Constitution and
therefore posed the question in Paragraphs 6 and 7 of its order dated JUDGMENT 13.07.2011 as to what should be the procedure for identifying and
selecting persons of integrity and competence for appointment of
Chairman of the Public Service Commission and referred the question to
a larger Bench of three Judges. I have already held that it is for the
Governor who is the appointing authority under Article 316 of the
Constitution to lay down the procedure for appointment of the Chairman
and Members of the Public Service Commission, but this is not to say
that in the absence of any procedure laid down by the Governor for
appointment of Chairman and Members of the Public Service
Commission under Article 316 of the Constitution, the State Government
would have absolute discretion in selecting and appointing any person
as the Chairman of the State 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. Under clause (1) of Article 320 of the Constitution, the
State Public Service Commission has the duty to conduct examinations JUDGMENT
for appointments to the services of the State. Under clause (3) of Article
320, the State Public Service Commission has to be consulted by the
State Government on matters relating to recruitment and appointment
to the civil services and civil posts in the State, on disciplinary matters
affecting a person serving under the Government of a State in a civil
capacity, on claims by and in respect of a person who is serving under
the State Government towards costs of defending a legal proceeding, on
claims for award of pension in respect of injuries sustained by a person
while serving under the State Government and other matters. In such
matters, the State Public Service Commission is expected to act with
independence from the State Government and with fairness, besides
competence and maturity acquired through knowledge and experience
of public administration.
32. I, therefore, hold that even though Article 316 does not specify the
aforesaid qualities of the Chairman of a Public Service Commission,
these qualities are amongst the implied relevant factors which have to
be taken into consideration by the Government while determining the
competency of the person to be selected and appointed as Chairman of
the Public Service Commission under Article 316 of the Constitution.
Accordingly, if these relevant factors are not taken into consideration by
the State Government while selecting and appointing the Chairman of
JUDGMENTthe Public Service Commission, the Court can hold the selection and
appointment as not in accordance with the Constitution. To quote De
Smith’s Judicial Review, Sixth Edition:
“If the exercise of a discretionary power has been
influenced by considerations that cannot lawfully be
taken into account, or by the disregard of relevant
considerations required to be taken into account
(expressly or impliedly), a court will normally hold that
the power has not been validly exercised. (Page 280)
If the relevant factors are not specified (e.g. if the
power is merely to grant or refuse a licence, or to
attach such conditions as the competent authority
thinks fit), it is for the courts to determine whether the
permissible considerations are impliedly restricted,
and, if so, to what extent (Page 282)”
In M/s Hochtief Gammon v. State of Orissa and Others (AIR 1975 SC
2226), A. Alagiriswamy writing the judgment for a three Judge Bench of
this Court explained this limitation on the power of the Executive in the
following words:
“The Executive have to reach their decisions by taking
into account relevant considerations. They should not
refuse to consider relevant matter nor should take into
account wholly irrelevant or extraneous consideration.
They should not misdirect themselves on a point of
law. Only such a decision will be lawful. The Courts
have power to see that the Executive acts lawfully”.
33. Mr. Rao, however, relied on a decision of the Constitution Bench
of this Court in E.P. Royappa v. State of Tamil Nadu & Anr. (supra) in
which it was held that the post of Chief Secretary is a highly sensitive JUDGMENT
post and the Chief Secretary is a lynchpin in the administration and for
smooth functioning of the administration, there should be complete
rapport and understanding between the Chief Secretary and the Chief
Minister and, therefore, it is only the person in whom the Chief Minister
has complete confidence who can be appointed as Chief Secretary of the
State and hence the Chief Secretary of a State cannot be displaced
from his post on the ground that his appointment was arbitrary and
violative of Articles 14 and 16 of the Constitution. Mr. Rao also relied on
the decision of a two-Judge Bench of this Court in State of West Bengal &
Ors. v. Manas Kumar Chakraborty & Ors. (supra) in which it was similarly
observed that the post of DG and IG Police was a selection post and it is
not open to the courts to sit in appeal over the view taken by the
appointing authority with regard to the choice of the officer to be
appointed as DG and IG Police and for such selection, the Government of
the State must play a predominant role. I am of the considered opinion
that the Chairman of the Public Service Commission, who along with its
other members has to perform his duties under Article 320 of the
Constitution with independence from the State Government cannot be
equated with the Chief Secretary or the DG and IG Police, who are
concerned solely with the administrative functions and have to work
under the State Government. To ensure this independence of the
Chairman and Members of the Public Service Commission, clause (3) of JUDGMENT
Article 316 of the Constitution provides that a person shall, on expiration
of his term of office be ineligible for reappointment to that office.
34. Mr. Rao has also relied on the decision of this Court in B. Srinivasa
Reddy v. Karnataka Urban Water Supply & Drainage Board Employees
Association & Ors. (supra) to argue that the High Court’s jurisdiction to
issue a writ of quo warranto is limited to only cases where the
appointment to an office is contrary to the statutory rules. He also
distinguished the decision of this Court in Centre for PIL and Another v.
Union of India and Another (supra) cited by Mr. Lalit and submitted that
in that case the Court had found that the appointment of the Central
Vigilance Commissioner was in contravention of the statutory provisions
of the Central Vigilance Commission Act, 2003 and for this reason, this
Court quashed the appointment of the Central Vigilance Commissioner. I
have already held that besides express restrictions in a statute or the
Constitution, there can be implied restrictions in a statute and the
Constitution and the statutory or the constitutional authority cannot in
breach of such implied restrictions exercise its discretionary power.
Moreover, Article 226 of the Constitution vests in the High Court the
power to issue to any person or authority, including in appropriate cases,
any Government, within those territories directions, orders or writs,
including writs in the nature of habeas corpus, mandamus, prohibition, JUDGMENT
quo warranto and certiorari, or any of them, for the enforcement of any
of the rights conferred by Part III and for any other purpose. The power
of the High Court under Article 226 of the Constitution is, thus, not
confined to only writ of quo warranto but to other directions, orders or
writs. In Dwarka Nath v. Income-tax Officer, Special Circle, D Ward,
Kanpur & Anr. (supra), K. Subba Rao, J. speaking for a three-Judge Bench,
has explained the wide scope of the powers of the High Court under
Article 226 of the Constitution thus:
“This article is couched in comprehensive phraseology and it
ex facie confers a wide power on the High Courts to reach
injustice wherever it is found. The Constitution designedly
used a wide language in describing the nature of the power,
the purpose for which and the person or authority against
whom it can be exercised. It can issue writs in the nature of
prerogative writs as understood in England; but the scope of
those writs also is widened by the use of the expression
“nature”, for the said expression does not equate the writs
that can be issued in India with those in England, but only
draws an analogy from them. That apart, High Courts can
also issue directions, orders or writs other than the
prerogative writs. It enables the High Courts to mould the
reliefs to meet the peculiar and complicated requirements of
this country. Any attempt to equate the scope of the power
of the High Court under Article 226 of the Constitution with
that of the English Courts to issue prerogative writs is to
introduce the unnecessary procedural restrictions grown
over the years in a comparatively small country like England
with a unitary form of government to a vast country like
India functioning under a federal structure. Such a
construction defeats the purpose of the article itself. To say
this is not to say that the High Courts can function arbitrarily
under this Article. Some limitations are implicit in the article
and others may be evolved to direct the article through
defined channels. This interpretation has been accepted by JUDGMENT this Court in T.C. Basappa v. Nagappa, 1955-1 SCR 250: (AIR
1954 SC 440) and Irani v. State of Madras, 1962 (2) SCR 169:
(AIR 1961 SC 1731).”
Therefore, I hold that the 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.
35. Coming now to the facts of the present case, I find that the
Division Bench of the High Court in its order dated 13.07.2011 has
already held that the irregularities and illegalities alleged against Mr.
Harish Dhanda have not been substantiated. I must, however, enquire
whether the State Government took into consideration the relevant
factors relating to his competency to act as the Chairman of the State
Public Service Commission. We had, therefore, passed orders on
JUDGMENT01.08.2012 calling upon the State of Punjab to produce before us the
material referred to in para 69 of the judgment of the Full Bench of the
High Court on the basis of which Mr. Harish Dhanda was selected for
appointment as Chairman of the Punjab Public Service Commission.
Pursuant to the order dated 01.08.2012, the State Government has
produced the files in which the selection and appointment of Mr. Harish
Dhanda was processed by the State Government. At page 26 of the file
on the subject “Appointment of Chairman of P.P.S.C. – Mr. S.K. Sinha,
IAS, Mr. Harish Rai Dhanda”, I find that a bio-data in one sheet has been
placed at page 41 of the file, which reads as under:
“BIO DATA
Harish Rai Dhanda S/o Sh. Kulbhushan Rai
Resident: The Retreat, Ferozepur Road, Ludhiana
Date of Birth: 15th May, 1960
Attained Bachelor in Arts from SCD Government
College, Ludhiana, Punjab University, (1979).
Attained Bachelor in Laws from Law College, Punjab
University (1982).
Registered with Bar Council of Punjab and Haryana as
Advocate in 1982.
Practiced Law at District Courts, Ludhiana from 1982
to 2007.
Elected as President of District Bar Association,
Ludhiana for seven terms.” 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 JUDGMENT
Commissions under Article 320 of the Constitution.
36. In the result, I am not inclined to interfere with the impugned
order of the Division Bench of the High Court dated 17.08.2011 quashing
the selection and appointment of Mr. Harish Dhanda as Chairman of the
Punjab Public Service Commission, but I set aside the judgment dated
17.08.2011 of the Full Bench of the High Court. Considering, however,
the fact that the State Government of Punjab has already selected and
appointed Lt. Gen. R.A. Sujlana as the Chairman of the Punjab Public
Service Commission, I am not inclined to disturb his appointment only on
the ground that his appointment was consequential to the judgment
dated 17.08.2011 of the Full Bench of the High Court which I have set
aside. The appeal of the State of Punjab is partly allowed and the appeal
of the State of Haryana is allowed, but the appeal of Mr. Harish Dhanda
is dismissed. The parties to bear their own costs.
(A. K. Patnaik)
New Delhi, February 15, 2013.
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 7640 OF 2011
State of Punjab ... Appellant
Versus Salil Sabhlok & Ors. ... Respondents
WITH
CIVIL APPEAL NO. 2685 OF 2012,
CIVIL APPEAL NO. 3687 OF 2012
AND
CIVIL APPEAL NOs. 1365-1367 OF 2013
[Arising out of SLP (Civil) Nos. 22010-22012 OF 2011]
1.While I entirely agree with Brother Patnaik, but given the seminal importance of the issues raised, I think it appropriate JUDGMENT to separately express my views in the case.
2.The facts have been stated in detail by Brother Patnaik and it is not necessary to repeat them. The issues:
3.The primary substantive issue that arises for consideration is whether the High Court could have – and if it could have, whether it ought to have - interfered in the appointment, by a notification published on 7th July 2011, of Mr. Harish Rai Dhanda as Chairperson of the Punjab Public Service Commission. In my opinion, the answer to both questions must be in the affirmative.
4.However, it must be clarified that even though a notification was issued of his appointment, Mr. Dhanda did not actually assume office or occupy the post of Chairperson of the Punjab Public Service Commission. Before he could do so, his appointment was challenged by Salil Sabhlok through a writ petition being Writ Petition (Civil) No.11848 of 2011 filed in the Punjab & Haryana High Court. When the writ petition was taken up for consideration, a Division Bench of the High Court observed in its order of 13th July 2011 that his “oath ceremony” was fixed for the same day but learned counsel appearing for the State of Punjab stated that the ceremony would be deferred till the writ petition is decided. Thereafter, the statement was sought to be withdrawn on 1st August 2011. However, the Full Bench of the High Court, which had heard the matter in considerable detail, passed an order on that day retraining administering of the oath of office to Mr. Dhanda. As such, Mr. Dhanda did not take the oath of allegiance, of office and of secrecy as the Chairperson of the Punjab Public Service Commission. Later, since his appointment was quashed by the High Court, the question of his taking the oaths as above did not arise.
5.Another substantive issue raised is whether the High Court could have entertained a Public Interest Writ Petition in respect of a “service matter”, namely, the appointment of Mr. Harish Rai Dhanda as Chairperson of the Punjab Public Service Commission. In my opinion, the appointment of the Chairperson of the Punjab Public Service Commission is not a “service matter” and so a Public Interest Litigation could have been entertained by the High Court.
6.A few procedural issues have also arisen for consideration and they relate to the desirability of making a reference by the Division Bench to the Full Bench of the High Court of issues said to have been settled by this Court; the framing of questions by the Full Bench of the High Court, over and above the questions referred to it; the necessity of impleadment of the State of Haryana in the proceedings before the Full Bench, even though it had no concern with the Commission; the validity of the direction given by the Full Bench to produce the advice tendered by the Chief Minister of the State of Punjab to the Governor of the State in respect of the Commission; the power of the Full Bench to frame guidelines for the appointment of the Chairperson of the Punjab Public Service Commission and of the Haryana Public Service Commission and a few other incidental issues. Public Interest Writ Petition in respect of a “service matter”:
7.At the outset, it is important to appreciate that the Chairperson of a Public Service Commission holds a constitutional position and not a statutory post. The significance of this is that the eligibility parameters or selection indicators for appointment to a statutory post are quite different and distinct from the parameters and indicators for appointment to a constitutional position.
8.The appointment of a Chairperson of a State Public Service Commission is in terms of Article 316 of the Constitution, which reads as follows: “316. Appointment and term of office of members.— (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 Government of an Indian State shall be included. (1-A) If the office of the Chairman of the Commission becomes vacant or if any such Chairman is by reason of absence or for any other reason unable to perform the duties of his office, those duties shall, until some person appointed under clause (1) to the vacant office has entered on the duties thereof or, as the case may be, until the Chairman has resumed his duties, be performed by such one of the other members of the Commission as the President, in the case of the Union Commission or a Joint Commission, and the Governor of the State in the case of a State Commission, may appoint for the purpose. (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-two 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 from his office in the manner provided in clause (1) or clause (3) of Article 317. (3) A person who holds office as a member of a Public Service Commission shall, on the expiration of his term of office, be ineligible for re-appointment to that office.”
9.Two features clearly stand out from a bare reading of Article 316 of the Constitution, and these are: (1) No qualification has been laid down for the appointment of the Chairperson of a State Public Service Commission. Theoretically therefore, the Chief Minister of a State can recommend to the Governor of a State to appoint any person walking on the street as the Chairperson of the State Public Service Commission. (2) The Chairperson of the State Public Service Commission is provided security of tenure since the term of office is fixed at six years or until the age of 62 years, whichever is earlier.
10.The security of tenure is confirmed by the provision for JUDGMENTremoval of the Chairperson of the State Public Service Commission from office as provided for in Article 317 of the Constitution. This reads as follows: “317. Removal and suspension of a member of a Public Service Commission.—(1) Subject to the provisions of clause (3), the Chairman or any other member of a Public Service Commission shall only be removed from his office by order of the President on the ground of misbehaviour after the Supreme Court, on reference being made to it by the President, has, on inquiry held in accordance with the procedure prescribed in that behalf under Article 145, reported that the Chairman or such other member, as the case may be, ought on any such ground to be removed. (2) The President, in the case of the Union Commission or a Joint Commission, and the Governor, in the case of a State Commission, may suspend from office the Chairman or any other member of the Commission in respect of whom a reference has been made to the Supreme Court under clause (1) until the President has passed orders on receipt of the report of the Supreme Court on such reference. (3) Notwithstanding anything in clause (1), the President may by order remove from office the Chairman or any other member of a Public Service Commission if the Chairman or such other member, as the case may be,— (a) is adjudged an insolvent; or (b) engages during his term of office in any paid employment outside the duties of his office; or (c) is, in the opinion of the President, unfit to continue in office by reason of infirmity of mind or body. (4) If the Chairman or any other member of a Public Service Commission is or becomes in any way concerned or interested in any contract or agreement made by or on behalf of the Government of India or the Government of a JUDGMENT State or participates in any way in the profit thereof or in any benefit or emolument arising therefrom otherwise than as a member and in common with the other members of an incorporated company, he shall, for the purposes of clause (1), be deemed to be guilty of misbehaviour.”
11.An aspect that clearly stands out from a reading of Article 317 is that the Chairperson of the State Public Service Commission can be removed from office on the ground of misbehaviour only after an inquiry is held by this Court on a reference made by the President and that inquiry results in a report that he or she ought to be removed on such ground. The Governor of the State is not empowered to remove the Chairperson of the State Public Service Commission even though he or she is the appointing authority. There are, of course, other grounds mentioned in Article 317 of the Constitution but none of them are of any concern for the purposes of this case.
12.A reading of Article 316 and Article 317 of the Constitution makes it clear that to prevent the person walking on the street from being appointed as the Chairperson of a State Public Service Commission, the Constitution has provided that the appointment is required to be made by the Governor of the State, on advice. Additionally, the Chairperson has security JUDGMENT of tenure to the extent that that person cannot be effortlessly removed from office even by the President as long as he or she is not guilty of proven misbehaviour, or is insolvent, or does not take up any employment or is not bodily or mentally infirm. There is, therefore, an in-built constitutional check on the arbitrary appointment of a Chairperson of a State Public Service Commission. The flip side is that if an arbitrary appointment is made, removal of the appointee is a difficult process.
13.If the person walking on the street is appointed in a Godforbid kind of situation, as the Chairperson of a State Public Service Commission, what remedy does an aggrieved citizen have? This question arises in a unique backdrop, in as much as no eligibility criterion has been prescribed for such an appointment and the suitability of a person to hold a post is subjective.
14.In this context, three submissions have been put forward by learned counsel supporting the appointment of Mr. Dhanda. If these submissions are accepted, then one would have to believe that a citizen aggrieved by such an appointment would have no remedy. The first submission is that a writ of quo warranto would not lie since there is no violation of a statute in JUDGMENT the appointment – indeed, no statutory or other qualification or eligibility criterion has been laid down for the appointment. Therefore, a petition for a writ of quo warranto would not be maintainable. The second submission is that the appointment to a post is a “service matter”. Therefore, a public interest litigation (or a PIL for short) would not be maintainable. The third submission is that the remedy in a “service matter” would lie with the Administrative Tribunal, but an application before the Tribunal would not be maintainable since the aggrieved citizen is not a candidate for the post and, therefore, would have no locus standii in the matter. It is necessary to consider the correctness of these submissions and the availability of a remedy, if any, to an aggrieved citizen. Maintainability of a PIL: (i) A writ of quo warranto
15.Learned counsel supporting Mr. Dhanda are right that there is no violation of any statutory requirement in the appointment of Mr. Dhanda. This is because no statutory criterion or parameters have been laid for the appointment of the Chairperson of a Public Service Commission. Therefore, a petition for a writ of quo warranto would clearly not lie. JUDGMENT
16.A couple of years ago, in Hari Bansh Lal v. Sahodar Prasad Mahto, (2010) 9 SCC 655 this Court considered the position at law and, after referring to several earlier decisions, including R.K. Jain v. Union of India, (1993) 4 SCC 119, Mor Modern Coop. Transport Society v. Govt. of Haryana, (2002) 6 SCC 269, High Court of Gujarat v. Gujarat Kishan Mazdoor Panchayat, (2003) 4 SCC 712 and B. Srinivasa Reddy v. Karnataka Urban Water Supply & Drainage Board Employees’ Association, (2006) 11 SCC 731 (2) held that “even for issuance of a writ of quo warranto, the High Court has to satisfy that the appointment is contrary to the statutory rules.”
17.This principle was framed positively in Mahesh Chandra Gupta v. Union of India & Others, (2009) 8 SCC 273 wherein it was said: “In cases involving lack of “eligibility” writ of quo warranto would certainly lie.” (ii) Is it a service matter?
18.Is the appointment of a person to a constitutional post a “service matter”? The expression “service matter” is generic in nature and has been specifically defined (as far as I am aware) only in the Administrative Tribunals Act, 1985. Section 3(q) of the Administrative Tribunals Act is relevant in this regard and it reads as follows: “3. Definitions.—In this Act, unless the context otherwise requires,— (q) “service matters”, in relation to a person, means all matters relating to the conditions of his service in connection with the affairs of the Union or of any State or of any local or other authority within the territory of India or under the control of the Government of India, or, as the case may be, of any corporation or society owned or controlled by the Government, as respects— (i) remuneration (including allowances), pension and other retirement benefits; (ii) tenure including confirmation, seniority, promotion, reversion, premature retirement and superannuation; (iii) leave of any kind; (iv) disciplinary matters; or (v) any other matter whatsoever;”
19.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 this context,JUDGMENTin Reference under Article 317(1) of the Constitution of India, In re, (1990) 4 SCC 262 it was held: “The case of a government servant is, subject to the special provisions, governed by the law of master and servant, but the position in the case of a Member of the Commission is different. The latter holds a constitutional post and is governed by the special provisions dealing with different aspects of his office as envisaged by Articles 315 to 323 of Chapter II of Part XIV of the Constitution.”
20.Similarly, in Bihar Public Service Commission v. Shiv Jatan Thakur, 1994 Supp. (3) SCC 220 the Public Service Commission is referred to as a “constitutional institution” and its Chairperson and members as “constitutional functionaries”.
21.In Ram Ashray Yadav (Dr.), Chairman, Bihar Public Service Commission, In Re, (2000) 4 SCC 309 a reference was made to the “constitutional duties and obligations” of the Public Service Commissions. It was also observed that the Chairperson of the Public Service Commission is in the position of a constitutional trustee.
22.In Ram Kumar Kashyap v. Union of India, (2009) 9 SCC 278 the obligations of the Public Service Commission were JUDGMENTreferred to as “constitutional obligations” and on a review of the case law, it was held that: “… since the Public Service Commissions are a constitutional creation, the principles of service law that are ordinarily applicable in instances of dismissals of government employees cannot be extended to the proceedings for the removal and suspension of the members of the said Commissions.”
23.Finally, in Mehar Singh Saini, Chairman, Haryana Public Service Commission, In re, (2010) 13 SCC 586 a distinction was made between service under the Government of India or a State Government and a constitutional body like a Public Service Commission. It was observed that, “A clear distinction has been drawn by the Framers [of our Constitution] between service under the Centre or the States and services in the institutions which are creations of the Constitution itself. Article 315 of the Constitution commands that there shall be a Union Public Service Commission for the Centre and State Public Service Commissions for the respective States. This is not, in any manner, linked with the All-India Services contemplated under Article 312 of the Constitution to which, in fact, the selections are to be made by the Commission. The fact that the Constitution itself has not introduced any element of interdependence between the two, undoubtedly, points to the cause of Commission being free from any influence or limitation.”
24.A little later in the judgment, the Public Service Commission is described as a “constitutional body”.
25.This being the position, it is not possible to say that the Chairperson of the Public Service Commission does not occupy a constitutional position or a constitutional post. To describe the appointment to a constitutional post generically or even specifically as a “service matter” would be most inappropriate, to say the least. (iii) Functional test
26.The employment embargo laid down in the Constitution and the functions of a Public Service Commission also indicate that its Chairperson has a constitutional status.
27.Article 319 of the Constitution provides that on ceasing to hold office, the Chairperson of a State Public Service Commission cannot take up any other employment either under the Government of India or under the Government of a State, except as the Chairperson or member of the Union Public Service Commission or as the Chairperson of any other State Public Service Commission.
28.Among other things, the functions of the State Public Service Commission include, as mentioned in Article 320 of the Constitution, conducting examinations for appointments to the services of the State. The State Public Service Commission may also be consulted by the President or the Governor of the State, subject to regulations that may be made in that behalf, on all matters relating inter alia to methods of recruitment to civil services and for civil posts and on the principles to be followed in making appointments to civil services and posts.
29.Article 322 of the Constitution provides that the expenses of the State Public Service Commission, including salaries, allowances and pensions of its members shall be charged on the Consolidated Fund of the State. Article 323 of the Constitution requires the Public Service Commission to annually present a report of the work done by it to the Governor of the State.
30.All these are serious constitutional functions and obligations cast on the Chairperson and members of the Public Service Commission and to equate their appointment with a statutory appointment and slotting their appointment in the category of a “service matter” would be reducing the Constitution into just another statute, which it is not. (iv) The remedy JUDGMENT
31.What then is the remedy to a person aggrieved by an appointment to a constitutional position like the Chairperson of a Public Service Commission?
32.About twenty years ago, in a case relating to the appointment of the President of a statutory tribunal, this Court held in R.K. Jain v. Union of India, (1993) 4 SCC 119 that an aggrieved person – a “non-appointee” – would alone have the locus standii to challenge the offending action. A third party could seek a remedy only through a public law declaration. This is what was held: “In service jurisprudence it is settled law that it is for the aggrieved person i.e. non-appointee to assail the legality of the offending action. Third party has no locus standi to canvass the legality or correctness of the action. Only public law declaration would be made at the behest of the petitioner, a public-spirited person.”
33.This view was reiterated in B. Srinivasa Reddy. Therefore, assuming the appointment of the Chairperson of a Public Service Commission is a “service matter”, a third party and a complete stranger such as the writ petitioner cannot approach an Administrative Tribunal to challenge the appointment of Mr. Dhanda as Chairperson of the Punjab Public Service Commission JUDGMENT
34.However, as an aggrieved person he or she does have a public law remedy. But in a service matter the only available remedy is to ask for a writ of quo warranto. This is the opinion expressed by this Court in several cases. One of the more recent decisions in this context is Hari Bansh Lal wherein it was held that “…except for a writ of quo warranto, public interest litigation is not maintainable in service matters.” This view was referred to (and not disagreed with) in Girjesh Shrivastava v. State of Madhya Pradesh, (2010) 10 SCC 707 after referring to and relying on Duryodhan Sahu (Dr.) v. Jitendra Kumar Mishra (1998) 7 SCC 273, B. Srinivasa Reddy, Dattaraj Nathuji Thaware v. State of Maharashtra, (2005) 1 SCC 590, Ashok Kumar Pandey v. State of W.B (2004) 3 SCC 349 and Hari Bansh Lal.
35.The significance of these decisions is that they prohibit a PIL in a service matter, except for the purposes of a writ of quo warranto. However, as I have concluded, the appointment of the Chairperson in a Public Service Commission does not fall in the category of a service matter. Therefore, a PIL for a writ of quo warranto in respect of an appointment to a constitutional position would not JUDGMENTbe barred on the basis of the judgments rendered by this Court and mentioned above.
36.However, in a unique situation like the present, where a writ of quo warranto may not be issued, it becomes necessary to mould the relief so that an aggrieved person is not left without any remedy, in the public interest. This Court has, therefore, fashioned a writ of declaration to deal with such cases. Way back, in T. C. Basappa v. T. Nagappa [1955] 1 SCR 250 it was said: "The language used in articles 32 and 226 of our Constitution is very wide and the powers of the Supreme Court as well as of all the High Courts in India extend to issuing of orders, writs or directions including writs in the nature of habeas corpus, mandamus, quo warranto, prohibition and certiorari as may be considered necessary for enforcement of the fundamental rights and in the case of the High Courts, for other purposes as well. In view of the express provisions of our Constitution we need not now look back to the early history or the procedural technicalities of these writs in English law, nor feel oppressed by any difference or change of opinion expressed in particular cases by English Judges".
37.More recently, such a writ was issued by this Court was in Kumar Padma Prasad v. Union of India, (1992) 2 SCC 428 when this Court declared that Mr. K.N. Srivastava was not qualified to be appointed a Judge of the Gauhati High Court even after a warrant for his appointment was issued by the JUDGMENTPresident under his hand and seal. This Court, therefore, directed: “As a consequence, we quash his appointment as a Judge of the Gauhati High Court. We direct the Union of India and other respondents present before us not to administer oath or affirmation under Article 219 of the Constitution of India to K.N. Srivastava. We further restrain K.N. Srivastava from making and subscribing an oath or affirmation in terms of Article 219 of the Constitution of India and assuming office of the Judge of the High Court.”
38.Similarly, in N. Kannadasan v. Ajoy Khose, (2009) 7 SCC 1 this Court held that Justice N. Kannadasan (retired) was ineligible to hold the post of the President of the State Consumer Redressal Forum. It was then concluded: “The superior courts may not only issue a writ of quo warranto but also a writ in the nature of quo warranto. It is also entitled to issue a writ of declaration which would achieve the same purpose.”
39.Finally and even more recently, in Centre for PIL v. Union of India, (2011) 4 SCC 1 the recommendation of a High Powered Committee recommending the appointment of Mr. P.J. Thomas as the Central Vigilance Commissioner under the proviso to Section 4(1) of the Central Vigilance Commission Act, 2003 was held to be non est in law and his appointment as the Central Vigilance Commissioner was quashed. This Court opined: “At the outset it may be stated that in the main writ petition the petitioner has prayed for issuance of any other writ, direction or order which this Court may deem fit and proper in the facts and circumstances of this case. Thus, nothing prevents this Court, if so satisfied, from issuing a writ of declaration.” Who may be appointed - views of this Court:
40.Having come to a conclusion that an aggrieved citizen has only very limited options available to him or her, is there no redress if an arbitrary appointment is made, such as of the person walking on the street. Before answering this question, it would be worth considering who may be appointed to a constitutional post such as the Chairperson of the Public Service Commission.
41.In Ashok Kumar Yadav v. State of Haryana, (1985) 4 SCC 417 this Court looked at the appointment of the Chairperson and members of the Public Service Commission from two different perspectives: firstly, from the perspective of the requirement to have able administrators in the country and secondly from the perspective of the requirement of the institution as such. JUDGMENTIn regard to the first requirement, it was said: “It is absolutely essential that the best and finest talent should be drawn in the administration and administrative services must be composed of men who are honest, upright and independent and who are not swayed by the political winds blowing in the country. The selection of candidates for the administrative services must therefore be made strictly on merits, keeping in view various factors which go to make up a strong, efficient and people oriented administrator. This can be achieved only if the Chairman and members of the Public Service Commission are eminent men possessing a high degree of calibre, competence and integrity, who would inspire confidence in the public mind about the objectivity and impartiality of the selections to be made by them.” In regard to the second requirement, it was said: “We would therefore like to strongly impress upon every State Government to take care to see that its Public Service Commission is manned by competent, honest and independent persons of outstanding ability and high reputation who command the confidence of the people and who would not allow themselves to be deflected by any extraneous considerations from discharging their duty of making selections strictly on merit.”
42.In In R/O Dr Ram Ashray Yadav, Chairman, Bihar Public Service Commission, (2000) 4 SCC 309 this Court considered the functional requirements of the Public Service Commission and what is expected of its members and held: “Keeping in line with the high expectations of their office and need to observe absolute integrity and impartiality in the exercise of their powers and duties, the Chairman and members of the Public Service Commission are required to JUDGMENT be selected on the basis of their merit, ability and suitability and they in turn are expected to be models themselves in their functioning. The character and conduct of the Chairman and members of the Commission, like Caesar's wife, must therefore be above board. They occupy a unique place and position and utmost objectivity in the performance of their duties and integrity and detachment are essential requirements expected from the Chairman and members of the Public Service Commissions.”
43.With specific reference to the Chairperson of the Public Service Commission who is in the position of a “constitutional trustee”, this Court said: “The Chairman of the Public Service Commission is in the position of a constitutional trustee and the morals of a constitutional trustee have to be tested in a much stricter sense than the morals of a common man in the marketplace. Most sensitive standard of behaviour is expected from such a constitutional trustee. His behaviour has to be exemplary, his actions transparent, his functioning has to be objective and in performance of all his duties he has to be fair, detached and impartial.”
44.Inderpreet Singh Kahlon v. State of Punjab, (2006) 11 SCC 356 was decided in the backdrop of a Chairperson of the Punjab Public Service Commission, “an important constitutional authority”, being put behind bars, inter alia, for being caught red-handed accepting a bribe.
45.This Court asserted the necessity of transparency in the appointment to such constitutional positions. It was said: “This unfortunate episode teaches us an important lesson that before appointing the constitutional authorities, there should be a thorough and meticulous inquiry and scrutiny regarding their antecedents. Integrity and merit have to be properly considered and evaluated in the appointments to such high positions. It is an urgent need of the hour that in such appointments absolute transparency is required to be maintained and demonstrated. The impact of the deeds and misdeeds of the constitutional authorities (who are highly placed), affect a very large number of people for a very long time, therefore, it is absolutely imperative that only people of high integrity, merit, rectitude and honesty are appointed to these constitutional positions.”
46.Subsequently, in State of Bihar v. Upendra Narayan Singh (2009) 5 SCC 65 this Court expressed its anguish with the appointments generally made to the Public Service Commissions. It was observed: “The Public Service Commissions which have been given the status of constitutional authorities and which are supposed to be totally independent and impartial while discharging their function in terms of Article 320 have become victims of spoils system. “In the beginning, people with the distinction in different fields of administration and social life were appointed as Chairman and members of the Public Service Commissions but with the passage of time appointment to these high offices became personal prerogatives of the political head of the Government and men with questionable background have been appointed to these coveted positions. Such appointees have, instead of making selections for appointment to higher echelons of services on merit, indulged in exhibition of faithfulness to their mentors totally unmindful of their constitutional responsibility.”
47.While it is difficult to summarize the indicators laid down by this Court, it is possible to say that the 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. Selection and appointment of Mr. Dhanda:
48.Given the views expressed by this Court from time to time, learned counsel for the writ petitioner submitted that Mr. Dhanda ought not to have been appointed as the Chairperson of the Public Service Commission. Three reasons were given in this regard and all of them have been refuted by learned counsel supporting the cause of Mr. Dhanda. They are: (1) There is a question mark about the character and conduct of Mr. Dhanda. (2) Mr. Dhanda lacks the qualifications and stature to hold a constitutional position of the Chairperson of a Public Service Commission.JUDGMENT(3) The record shows that no meaningful and effective thought was given before appointing Mr. Dhanda as the Chairperson of the Public Service Commission.
49.As regards the first reason, certain allegations were made against Mr. Dhanda in the writ petition filed in the High Court. However, in its order dated 13th July 2011 a Division Bench of the High Court held that: “As regards irregularities and illegalities pointed out in the petition, the same do not stand substantiated.” This conclusion is strongly relied on by learned counsel supporting Mr. Dhanda.
50.However, the judgment under appeal records that the writ petitioner had alleged that Mr. Dhanda had used his political influence to effect the transfer of an officer and that the transfer was set aside by the Central Administrative Tribunal as being mala fide. In this context, during the hearing of this appeal, we were handed over a copy of the decision rendered by the Central Administrative Tribunal (Chandigarh Bench) in Original Application No. 495/PB/2007 decided on 15th November 2007. We were informed that this decision was placed before the High Court and that this decision has attained finality, not having been challenged by anybody.
52.A reading of the decision, particularly paragraph 12 thereof, does show that the applicant before the Central Administrative Tribunal was subjected to a transfer contrary to the policy decision relating to mid-term transfers. The relevant portion of paragraph 12 of the decision reads as follows: “Even though the Government decided not to allow use of the Rest house as a permanent residence of the Chief Parliamentary Secretary, yet the applicant, being a junior officer became the victim of the annoyance of Respondent No.3 [Mr. Dhanda] and with his political influence, the Forest Minister initiated the proposal for his transfer from Ropar, which was approved by the Chief Minister….. ….But a transfer made in this manner when the work and conduct of the officer is not only being appreciated by the Secretary, but also by the Finance Minister is unwarranted and also demoralizing. These are the situations when the courts have to interfere to prevent injustice to employees who are doing their duty according to rules.”
53.While it may be that Mr. Dhanda was given a clean chit by the Division Bench when the case was first before it, the fact is that information subsequently came to the notice of the High Court which indicated that Mr. Dhanda was not above using his political influence to get his way. That Mr. Dhanda came in for an adverse comment in a judicial proceeding was certainly known to him, since he was a party to the case before the Central Administrative Tribunal. But he did not disclose this fact JUDGMENT to the Chief Minister. In the deliberative process (or whatever little there was of it) the Chief Minister did not even bother to check whether or not Mr. Dhanda was an appropriate person to be appointed as the Chairperson of the Punjab Public Service Commission in the light of the adverse comment. The “thorough and meticulous inquiry and scrutiny” requirement mentioned in Inderpreet Singh Kahlon was not at all carried out.
54.As regards the second reason, the qualifications of Mr. Dhanda are as mentioned in his bio-data contained in the official file and reproduced by the High Court in the judgment under appeal. The bio-data reads as follows: “ - Harish Rai Dhanda son of Shri Kulbhushan Rai. - Resident: The Retreat, Ferozepur Road, Ludhiana. - Date of Birth: 15th May, 1960. - Attained Bachelor in Arts from SCD Government College, Ludhiana, Panjab University, 1979. - Attained Bachelor in Laws from Law College, Panjab University (1982). - Registered with Bar Council of Punjab and Haryana as Advocate in 1982. - Practiced Law at District Courts, Ludhiana from 1982 to 2007. - Elected as President of District Bar Association, Ludhiana for seven terms.
55.The High Court noted that the official file shows that Mr. Dhanda resigned from the membership of the Punjab Legislative Assembly on 6th July 2011. The resignation was JUDGMENT accepted the same day.
56.Mr. Dhanda had filed an affidavit in the High Court in which he disclosed that he was or had been the Vice President of the Shiromani Akali Dal and the President of its Legal Cell and its spokesperson.
57.In fairness to Mr. Dhanda it must be noted that his affidavit clearly mentions that he did not apply for or otherwise seek the post of Chairperson of the Punjab Public Service Commission. He was invited by the Chief Minister to submit his bio-data and to accept the post. The question is that with these qualifications, could it be said that Mr. Dhanda was eminently suited to holding the post of the Chairperson of the Public Service Commission? The answer to this must be in the negative if one is to agree with the expectations of this Court declared in various decisions. This is not to say that Mr. Dhanda lacks integrity or competence, but that he clearly has no administrative experience for holding a crucial constitutional position. Merely because Mr. Dhanda is an advocate having had electoral successes does not make him eminently suitable for holding a constitutional position of JUDGMENT considerable importance and significance. It is more than apparent that Mr. Dhanda’s political affiliation weighed over everything else in his appointment as the Chairperson of the Punjab Public Service Commission.
58.But, as pointed out in Mahesh Chandra Gupta the suitability of a person to hold a post is a matter of opinion and this is also a peg on which learned counsel supporting Mr. Dhanda rest their case. The “suitability test” is said to be beyond the scope of judicial review.
59.The third reason is supported by the writ petitioner through the finding given by the High Court that the official file relating to the appointment of Mr. Dhanda as the Chairperson of the Punjab Public Service Commission contains only his biodata, a certificate to the effect that he resigned from the membership of the Punjab Legislative Assembly on 6th July 2011 and his resignation was accepted the same day and the advice of the Chief Minister to the Governor apparently to appoint Mr. Dhanda as the Chairperson of the Punjab Public Service Commission. The advice was immediately acted upon and Mr. Dhanda was appointed as the Chairperson of the Punjab Public Service Commission by a notification published on 7th July 2011. In other words, the entire exercise relating to the appointment of the Chairperson of the Public Service Commission was completed in a day.
60.Learned counsel supporting the appointment of Mr. Dhanda submitted that no procedure is prescribed for the selection of the Chairperson of the Public Service Commission. Therefore, no fault can be found in the procedure adopted by the State Government. It was submitted, relying on Mohinder Singh Gill v. Chief Election Commissioner, (1978) 1 SCC 405 that there is an implied power to adopt any appropriate procedure for making the selection and the State Government and the Governor cannot be hamstrung in this regard.
61.It is true that no parameters or guidelines have been laid down in Article 316 of the Constitution for selecting the Chairperson of the Public Service Commission and no law has been enacted on the subject with reference to Entry 41 of List II of the 7th Schedule of the Constitution. It is equally true that the State Government and the Governor have a wide discretion in the procedure to be followed. But, it is also true that Mohinder Singh Gill refers to Lord Camden as having said that wide discretion is fraught with tyrannical potential even in high personages. Therefore, the jurisprudence of prudence demands a fairly high degree of circumspection in the selection and appointment to a constitutional position having important and significant ramifications.
62.Two factors that need to be jointly taken into account for the exercise of the power of judicial review are: the deliberative process and consideration of the institutional requirements.
63.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 filling 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.
64.In Centre for PIL this Court struck down the appointment of the Central Vigilance Commissioner while reaffirming the distinction between merit review pertaining to the eligibility or suitability of a selected candidate and judicial review pertaining to the recommendation making process. In that case, the selection of the Central Vigilance Commissioner was made under Section 4(1) of the Central Vigilance Commission Act, 2003 (for short the Act) which reads as follows: “4. Appointment of Central Vigilance Commissioner and Vigilance Commissioners.—(1) The Central Vigilance Commissioner and the Vigilance Commissioners shall be appointed by the President by warrant under his hand and seal: Provided that every appointment under this sub-section shall be made after obtaining the recommendation of a Committee consisting of— (a) the Prime Minister — Chairperson; (b) the Minister of Home Affairs — Member; (c) the Leader of the Opposition in the House of the People — Member. Explanation.—For the purposes of this sub-section, ‘the Leader of the Opposition in the House of the People’ shall, when no such Leader has been so recognised, include the Leader of the single largest group in opposition of the Government in the House of the People.”
65.As can be seen, only the establishment of a High Powered Committee (HPC) for making a recommendation is provided for - the procedure to be followed by the HPC is not detailed in the statute. This is not unusual since a statute cannot particularize every little procedure; otherwise it would become unmanageable and maybe unworkable. Moreover, some situations have to be dealt with in a common sense and pragmatic manner.
66.Acknowledging this, this Court looked at the appointment of the Central Vigilance Commissioner not as a merit review of the integrity of the selected person, but as a judicial review of the recommendation making process relating to the integrity of the institution. It was made clear that while the personal JUDGMENT integrity of the candidate cannot be discounted, institutional integrity is the primary consideration to be kept in mind while recommending a candidate. It was observed that while this Court cannot sit in appeal over the opinion of the HPC, it can certainly see whether relevant material and vital aspects having nexus with the objects of the Act are taken into account when a recommendation is made. This Court emphasized the overarching need to act for the good of the institution and in the public interest. Reference in this context was made to N. Kannadasan.
67.Keeping in mind the law laid down and the facts as they appear from the record, it does appear that the constitutional, functional and institutional requirements of the Punjab Public Service Commission were not kept in mind when Mr. Dhanda was recommended for appointment as its Chairperson. A suitable appointee:
68.A submission was made by learned counsel supporting the appointment of Mr. Dhanda that ultimately it is for the State Government to decide who would be the most suitable person to be appointed as the Chairperson of the Public Service Commission. JUDGMENT
69.In this regard, reliance was placed on three decisions. In the first such decision, that is, E.P. Royappa v. State of Tamil Nadu, (1974) 4 SCC 3 the post of the Chief Secretary of the State was under consideration. This Court observed that the post is a sensitive one. The post is one of confidence and the Chief Secretary is a lynchpin in the administration of the State. Therefore, the Chief Secretary and the Chief Minister of the State must have complete rapport and understanding between them. If the Chief Secretary forfeits the confidence of the Chief Minister, then he may be shifted to some other post in the larger interests of the administration, provided that no legal or constitutional right of the Chief Secretary is violated.
70.The second decision relied upon was State of W.B. v. Manas Kumar Chakraborty, (2003) 2 SCC 604. That case concerned itself with the post of the Director General and Inspector General of Police (DG&IP) in a State. This Court observed that the said post was of a very sensitive nature. It could only be filled up by a person in whom the State Government had confidence. Consequently, it was held that such a post need not be filled up only by seniority, but merit, credibility and confidence that the person can command with the State Government “must play a predominant role in JUDGMENT selection of an incumbent to such a post.”
71.Finally, in Hari Bansh Lal, a case concerning an appointment to a statutory post of Chairperson of a State Electricity Board, reference was made to State of Mysore v. Syed Mahmood, AIR 1968 SC 1113, Statesman (P) Ltd. v. H.R. Deb, AIR 1968 SC 1495 and State Bank of India v. Mohd. Mynuddin, (1987) 4 SCC 486 and it was held: “It is clear from the above decisions, suitability or otherwise of a candidate for appointment to a post is the function of the appointing authority and not of the court unless the appointment is contrary to the statutory provisions/rules.”
72.These decisions are clearly distinguishable. First of all, none of the cited decisions dealt with the appointment to a constitutional position such as the one that we are concerned with. A constitutional position such as that of the Chairperson of a Public Service Commission cannot be equated with a purely administrative position – it would be rather facetious to do so. While the Chief Secretary and the Director General of Police are at the top of the ladder, yet they are essentially administrative functionaries. Their duties and responsibilities, however onerous, cannot be judged against the duties and responsibilities of an important constitutional authority or a constitutional trustee, whose very appointment is not only expected to inspire confidence in the aspirational Indian but also project the credibility of the institution to which he or she belongs. I am, therefore, unable to accept the view that the suitability of an appointee to the post of Chairperson of a Public Service Commission should be evaluated on the same yardstick as the appointment of a senior administrative functionary.
73.Secondly, it may be necessary for a State Government or the Chief Minister of a State to appoint a “suitable” person as a Chief Secretary or the Director General of Police or perhaps to a statutory position, the connotation not being derogatory or disparaging, but because both the State Government or the Chief Minister and the appointee share a similar vision of the administrative goals and requirements of the State. The underlying premise also is that the State Government or the Chief Minister has confidence that the appointee will deliver the goods, as it were, and both are administratively quite compatible with each other. If there is a loss of confidence or the compatibility comes to an end, the appointee may simply be shifted out to some other assignment, provided no legal or constitutional right of the appointee is violated.
74.The question of the Chief Minister or the State Government having “confidence” (in the sense in which the word is used with reference to the Chief Secretary or the Director General of Police or any important statutory post) in the Chairperson of a State Public Service Commission simply does not arise, nor does the issue of compatibility. The Chairperson of a Public Service Commission does not function at the pleasure of the Chief Minister or the State Government. He or she has a fixed tenure of six years or till the age of sixty two years, whichever is earlier. Security of tenure is provided through a mechanism in our Constitution. The 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.
75.The independence of the post of the Chairperson or the member of the Punjab Public Service Commission cannot be forgotten or overlooked. That independence is attached to the post is apparent from a reading of the Punjab State Public Service Commission (Conditions of Service) Regulations, 1958 framed by the Governor of Punjab in exercise of power conferred by Article 318 of the Constitution.
76.Regulation 2(c) of the Punjab State Public Service Commission (Conditions of Service) Regulations, 1958 defines “Member” as: “Member” means a Member for the time being of the Commission and includes the Chairman thereof”;
77.Regulation 4 of these Regulations provides that “Every Member shall on appointment be required to take the oaths in the form laid down in Appendix ‘A’ to these regulations.”
78.The oaths that a member (including the Chairperson) is required to take in the form laid down in Appendix ‘A’ are oaths of allegiance, of office and of secrecy. A Note given in Appendix ‘A’ states: “These oaths will be administered by the Governor in person in the presence of the Chief Secretary.” The oaths read as follows: JUDGMENT “Form of Oath of Allegiance I ________________, solemnly affirm that I will be faithful and bear true allegiance to India and to the Constitution of India as by law established and that I will loyally carry out the duties of my office.” “Form of Oath of Office I, _____________________, appointed a Member of the Punjab Public Service Commission do solemnly declare, that I will faithfully perform the duties of my office to the best of my ability, knowledge and judgment.” “Form of Oath of Secrecy I, ____________________, solemnly affirm that I will not directly or indirectly communicate or reveal to any person or persons any matter which shall be brought under my consideration or shall become known to me as a Member of the Punjab Public Service Commission, except as may be required for due discharge of my duties as such Member or as may be specially permitted by the Governor.”
79.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 JUDGMENT 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. Finding an appropriate Chairperson:
80.Taking all this into consideration, how can an appropriate person be searched out for appointment to the position of a Chairperson of a Public Service Commission? This question arises in the context of the guidelines framed by the High Court and which have been objected to by the State of Punjab and the State of Haryana. This Court found itself helpless in resolving the dilemma in Mehar Singh Saini. This Court pointed out the importance of the Public Service Commission vis-à-vis good governance and the “common man”. In this regard, it was observed that: “The adverse impact of lack of probity in discharge of functions of the [Public Service] Commission can result in defects not only in the process of selection but also in the appointments to the public offices which, in turn, will affect effectiveness of administration of the State.” It was then noted that: “The conduct JUDGMENTof the Chairman and members of the Commission, in discharge of their duties, has to be above board and beyond censure. The credibility of the institution of the Public Service Commission is founded upon faith of the common man on its proper functioning.”
81.In this background and in this perspective, this Court drew a distinction between the exercise of legislative power by Parliament and the executive power of the Government. It was held that laying down the qualifications and experience required for holding the office of Chairperson or member of the Public Service Commission is a legislative function. This is what this Court said: “Desirability, if any, of providing specific qualification or experience for appointment as Chairman/members of the Commission is a function of Parliament.”
82.However, the necessary guidelines and parameters for holding such an office are within the executive power of the State. It was held by this Court: “The guidelines or parameters, if any, including that of stature, if required to be specified are for the appropriate Government to frame. This requires expertise in the field, data study and adoption of the best methodology by the Government concerned to make appointments to the Commission on merit, ability and integrity.”
83.On the “legislative front”, this Court found itself quite helpless. This Court obviously could not read those qualifications into Article 316 of the Constitution which were not there, nor could it direct Parliament to enact a law. All that could be done (and which it did) was to draw the attention of Parliament to the prevailing situation in the light of “the number of cases which have been referred to this Court by the President of India in terms of Article 317(1) of the Constitution in recent years.” It was also noted that “A large number of inquiries are pending before this Court which itself reflects that all is not well with the functioning of the Commissions.”
84.Apart from this Court’s inability to read qualifications into Article 316 of the Constitution, it was submitted by learned counsel supporting the cause of Mr. Dhanda that this Court cannot direct that legislation be enacted on the subject. Reference was made to Supreme Court Employees' Welfare Assn. v. Union of India, (1989) 4 SCC 187 wherein it was held: “There can be no doubt that no court can direct a legislature to enact a particular law. Similarly, when an executive authority exercises a legislative power by way of subordinate legislation pursuant to the delegated authority of a legislature, such executive authority cannot be asked to enact a law which he has been empowered to do under the delegated legislative authority.” A similar view was expressed in Asif Hameed v. State of J & K, 1989 Supp (2) SCC 364. It was held in that decision that: “The Constitution has laid down elaborate procedure for the legislature to act thereunder. The legislature is supreme in its own sphere under the Constitution. It is solely for the legislature to consider as to when and in respect of what subject-matter, the laws are to be enacted. No directions in this regard can be issued to the legislature by the courts.”
85.In Suresh Seth v. Commissioner, Indore Municipal Corpn., (2005) 13 SCC 287 this Court referred to Supreme Court Employees' Welfare Assn. and State of J&K v. A.R. Zakki, 1992 Supp (1) SCC 548 and held: “….. this Court cannot issue any direction to the legislature to make any particular kind of enactment. Under our constitutional scheme Parliament and Legislative Assemblies exercise sovereign power to enact laws and no outside power or authority can issue a direction to enact a particular piece of legislation.”
86.There is, therefore, no doubt that this Court can neither legislate on the subject nor issue any direction to Parliament or the State Legislature to enact a law on the subject.
87.On the “executive front”, this Court expressed its helplessness in framing guidelines or parameters due to its lack of “expertise in the field, data study and adoption of the best methodology”. Keeping this in mind, the High Court was in error in framing the guidelines that it did in the absence of any expertise in the field, data study or knowledge of the best methodology for selecting the Chairperson of the Punjab Public Service Commission. Options before this Court:
88.But, is this Court really helpless, broadly, in the matter of laying down appropriate guidelines or parameters for the appointment of a Chairperson or members of the Public Service Commission? If Mehar Singh Saini is understood in its correct perspective, the answer to this question would be in the negative.
89.First of all, this Court cannot overlook the administrative imperative. There was and still is a need for the Public Service Commission to deliver the goods, as it were. In this context, the Second Administrative Reform Commission in its 15th Report looked at the past, present and future of the Public Service Commission and observed: “2.5.3. In the early years of Independence, State Public Service Commissions throughout the country functioned well primarily on account of the fact that: (a) There was objectivity in selection of competent and experienced people as Chairman and Members of the Commission. The government treated the Public Service Commission as a sacrosanct institution and the Chairman and Members were either very senior government servants (drawn usually from the ICS) or academicians of high standing in their field. (b) The Commission enjoyed excellent reputation for objectivity, transparency and fairplay. “2.5.4 But in recent years, this Constitutional body has suffered extensive loss of reputation in many States, mainly on account of (a) charges of corruption, favouritism and nepotism in matters of recruitment and (b) use of archaic processes and procedures in its functioning which leads to inordinate delays. For example, the civil services examinations conducted by a State Public Service Commission take a minimum time period of one and half year to complete. In some cases, it may take even longer. “2.5.6.6 The Commission is of the view that the intention behind creation of an autonomous Public Service Commission as a Constitutional authority was to create a body of achievers and ex-administrators who could select meritorious candidates for recruitment and promotion to various civil service positions under the State Government with utmost probity and transparency. There is need to take steps to ensure that only persons of high standing, intellectual ability and reputation are selected as Chairman and Members of the Public Service Commission.”
90.In this context, the views of the Law Commission of India JUDGMENT as contained in its 14th Report, which are at variance with the views of the Second Administrative Reform Commission contained in its 15th Report are worth highlighting, one of the reasons being that the luminaries who assisted the Law Commission reads like a veritable Who’s Who from the legal firmament. This is what was said: “Having regard to the important part played by the Public Service Commission in the selection of the subordinate judiciary, we took care to examine as far as possible the Chairman and some of the members of the Public Service Commissions in the various States. We are constrained to state that the personnel of these Public Service Commissions in some of the States was not such as could inspire confidence, from the points of view of either efficiency or of impartiality. There appears to be little doubt that in some of the States appointments to these Commissions are made not on considerations of merit but on grounds of party and political affiliations. The evidence given by members of the Public Service Commissions in some of the States does create the feeling that they do not deserve to be in the responsible posts they occupy.”
91.Secondly, the constitutional and more important imperative is that of good governance for the benefit of the aspirational Indian. For this, an appropriate person should be selected to fill up the position of a constitutional trustee.
92.In the light of the various decisions of this Court adverted to above, the administrative and constitutional imperative can be met only if the Government frames guidelines or parameters for the appointment of the Chairperson and members of the Punjab Public Service Commission. That it has failed to do so does not preclude this Court or any superior Court from giving a direction to the State Government to conduct the necessary exercise within a specified period. Only because it is left to the State Legislature to consider the desirability or otherwise of specifying the qualifications or experience for the appointment of a person to the position of Chairperson or member of the Punjab Public Service Commission, does not imply that this Court cannot direct the Executive to frame guidelines and set the parameters. This Court can certainly issue appropriate directions in this regard, and in the light of the experience gained over the last several decades coupled with the views expressed by the Law Commission, the Second Administrative Reform Commission and the views expressed by this Court from time to time, it is imperative for good governance and better administration to issue directions to the Executive to frame appropriate guidelines and parameters based on the indicators mentioned by this Court. These guidelines can and should be binding on the State of Punjab till the State Legislature JUDGMENT exercises its power. Additional questions framed by the Full Bench:
93.Learned counsel supporting the appointment of Mr. Dhanda submitted that the Full Bench could not expand the scope of the reference made to it by the Division Bench, nor could it frame additional questions.
94.Generally speaking, they are right in their contention, but it also depends on the reference made.
95.The law on the subject has crystallized through a long line of decisions and it need not be reiterated again and again. The decisions include Kesho Nath Khurana v. Union of India, 1981 Supp SCC 38 (The Division Bench ought to have sent the appeal back to the Single Judge with the answer rendered by them to the question referred by the Single Judge and left it to the Single Judge to dispose of the second appeal according to law.). Kerala State Science & Technology Museum v. Rambal Co., (2006) 6 SCC 258 (It is fairly well settled that when reference is made on a specific issue either by a learned Single Judge or Division Bench to a larger Bench i.e. Division Bench or Full Bench or Constitution Bench, as the case may be, the larger Bench cannot adjudicate upon an issue which is not the question referred to.). T.A. Hameed v. M. Viswanathan, (2008) 3 SCC 243 (Since, only reference was made to the Full Bench, the Full Bench should have answered the question referred to it and remitted the matter to the Division Bench for deciding the revision petition on merits.). And more recently, Saquib Abdul Hameed Nachan v. State of Maharashtra, (2010) 9 SCC 93 (Normally, after answering the reference by the larger Bench, it is for the Reference Court to decide the issue on merits on the basis of the answers given by the larger Bench.).
96.There is no bar shown whereby a Bench is precluded from referring the entire case for decision by a larger Bench - it depends entirely on the reference made. In any event, that issue does not arise in this appeal and so nothing more need be said on the subject.
97.What was the reference made by the Division Bench to the Full Bench and did that Bench frame additional questions? The answer to this is to be found in the judgment of the High Court. The reference has not been artistically drafted, but it reads as follows: JUDGMENT “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 Anr. v. Union of India and Anr., AIR 2010 SC 1151 and In re Mehar Singh Saini, Chairman, HPSC and Ors., (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.”
98.On the basis of the submissions made, the Full Bench reformulated the questions referred to it in the following words: “1. Whether the present petition is not maintainable as the questions raised are the concluded questions by the decisions of the Supreme Court? 2. Whether the present petition is public interest litigation in a service matter, and hence not maintainable on the said ground also? 3. Whether this 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?JUDGMENT 4. Whether in exercise of power of judicial review, it could be stated that the decision making process leading to the appointment of Respondent No. 4 [Mr. Harish Rai Dhanda] as Chairman of Commission was arbitrary, capricious or violative of Article 14?”
99.The reformulation was explained by the Full Bench by stating that the first two questions were raised on behalf of the State of Punjab regarding the maintainability of the reference itself. In my opinion, the first two questions actually touch upon the maintainability of the writ petition itself. These issues should have been decided by the Division Bench and had it answered the questions in the negative, there would have been no need to make any reference to the Full Bench.
100.Much was sought to be made by learned counsel for the writ petitioner that the “matter” (that is the entire matter) was referred to the Full Bench. It is difficult to agree that the entire “matter” was referred to the Full Bench. Firstly, the word “matter” must take colour from the context in which it was used, which is with reference only to the two questions placed before the Full Bench. Secondly, even the Full Bench did not think that the entire matter was referred to it and that is why after answering the reference the “matter” was remitted to the Division Bench for disposal in accordance with law.
101.To this extent, learned counsel supporting the cause of Mr. Dhanda are right that the Full Bench overstepped its mandate. But where does this discussion lead us to? The two questions were fully argued in this Court for the purposes of obtaining a decision on them, and no suggestion was made that the decision of the Full Bench on these questions be set aside because of a jurisdictional error and the Division Bench be asked to decide them quite independently. Therefore, this issue is only of academic interest so far as this appeal is concerned notwithstanding the law that a larger Bench should decide only the questions referred to it. Of course, if a subsidiary question logically and unavoidably arises, the larger Bench cannot be dogmatic and refuse to answer it. A common sense approach must be taken on such occasions.
102.So far as questions 3 and 4 formulated by the Full Bench are concerned, I am of the opinion that they merely articulate and focus on the issues that were not quite attractively phrased by the Division Bench. I am not in agreement that the Full Bench overstepped its jurisdiction in the reformulation of the issues before it.
103.It was then submitted that there was really no occasion for the Division Bench to make any reference to the Full Bench of the High Court on the question of framing guidelines or parameters for the appointment of the Chairperson of the Punjab Public Service Commission. This Court had already laid down the law in Mehar Singh Saini and the High Court was merely required to follow it. The argument puts the issue rather simplistically. The Division Bench was fully entitled to refer to the Full Bench the applicability of the decision of this Court to the facts of the case and for further follow up action, if necessary. This argument is mentioned only because it was raised and nothing really turns on it, except to the extent that it is another way of questioning the maintainability of the writ petition filed in the High Court. Impleadment of the State of Haryana by the Full Bench:
104.The justification given by the Full Bench for suo motu impleading the State of Haryana and the Haryana Public Service Commission is because “issues common in respect of the States of Punjab and Haryana, were likely to arise.” I think this is hardly a reason for impleadment. The case concerned the Commission and it should have and could have been left at that without enlarging the scope of the controversy before it. Production of the Chief Minister’s advice:
105.Learned counsel for the State of Punjab submitted that the High Court could not have directed production of the advice tendered by the Chief Minister to the Governor. The basis of this argument is the order dated 1st August 2011 passed by the Full Bench. The relevant portion of the order reads as follows: “Mr. Jindal, Addl. Advocate General shall also produce the record relating to the appointment process of respondent No.4 [Mr. Dhanda].”
106.The grievance made by learned counsel in this regard is justified. It need only be pointed out that in State of Punjab v. Sodhi Sukhdev Singh, (1961) 2 SCR 371 this Court clearly held that: “It is hardly necessary to recall that advice given by the Cabinet to the Rajpramukh or the Governor is expressly saved by Article 163, sub-article (3) of the Constitution; and in the case of such advice no further question need to be considered.” It is not necessary to say anything more on this subject. Conclusion:
107.The appointment of the Chairperson of the Punjab Public JUDGMENTService Commission is an appointment to a constitutional position and is not a “service matter”. A PIL challenging such an appointment is, therefore, maintainable both for the issuance of a writ of quo warranto and for a writ of declaration, as the case may be.
108.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.
109.The circumstances of this case leave no room for doubt that the notification dated 7th July 2011 appointing Mr. Harish Rai Dhanda was deservedly quashed by the High Court since there was no deliberative process worth the name in making the appointment and also since the constitutional, functional and institutional requirements of the Punjab Public Service Commission were not met.
110.In the view that I have taken, there is a need for a word JUDGMENT of caution to the High Courts. There is a likelihood of comparable challenges being made by trigger-happy litigants to appointments made to constitutional positions where no eligibility criterion or procedure has been laid down. The High Courts will do well to be extremely circumspect in even entertaining such petitions. It is necessary to keep in mind that sufficient elbow room must be given to the Executive to make constitutional appointments as long as the constitutional, functional and institutional requirements are met and the appointments are in conformity with the indicators given by this Court from time to time.
111.Given the experience in the making of such appointments, there is no doubt that until the State Legislature enacts an appropriate law, the State of Punjab must step in and take urgent steps to frame a memorandum of procedure and administrative guidelines for the selection and appointment of the Chairperson and members of the Punjab Public Service Commission, so that the possibility of arbitrary appointments is eliminated.
112.The Civil Appeals are disposed of as directed by Brother Patnaik. JUDGMENT (Madan B. Lokur) New Delhi, February 15, 2013