R. v. BIDAP VS STATE OF MYSORE — 1973 DIGILAW 82 (KAR)

( 1 ) THE question that arises for decision in these writ petitions is, when a member of a State Public Service Commission or Union Public Service commission is subsequently appointed as the Chairman of that Commission, whether the term of six years during which he shall hold his office commences from the date on which he enters upon the office of the Chairman or from the date on which he entered office as a Member? ( 2 ) SRI R. V. Bidap petitioner in WP. No. 774 of 1973 who is respondent no. 2 in WP. No. 893 of 1973 having been appointed as a Member of the mysore Public Srivice Commission, hereinafter referred to as 'the Commission' by the Governor of Mysore assumed his office on 20th March 1967. Subsequently he was appointed as the Chairman of that Commission by the Governor by a Notification No. GAD. 60 SSC. 68-1 dated 10-2-1969 in exercise of the powers conferred under Art. 316 (1) of the Constitution. The said notification stated that 'the Governor of Mysore is pleased to appoint Sri R. V. Bidap, as Chairman, of the Mysore Public Commission with effect from 15th February, 1969 (Forenoon)'. The appointment of Sri bidap as the Chairman of the Commission was made consequent on the expiry of the term of office of Sri R. Chinnigaramiah, who was holding the said office from 15-2-1963. If the term of the office of the Chairman of Sri bidap has to be computed from 15-2-1969 then he is entitled to hold that office till 14-2-1975; but if the said term has to be reckoned from 20-3-1967 when he assumed office as Member of the Commission, then, he is not entitled to hold the office of the Chairman beyond 19-3-1973. The question has to be decided on an interpretation of Arts. 316 and 319 of the Constitution. So far as this Court is concerned the question is concluded by the decision of this Court in Mariswamy v. State of Mysore WP. 6492 of 1969 WP. 5031 and 3758 of 1966 in three writ petitions filed by H. M. Mariswamy and two others challenging the selection of Respondents 3 to 15 in WP. Nos. So far as this Court is concerned the question is concluded by the decision of this Court in Mariswamy v. State of Mysore WP. 6492 of 1969 WP. 5031 and 3758 of 1966 in three writ petitions filed by H. M. Mariswamy and two others challenging the selection of Respondents 3 to 15 in WP. Nos. 8492 of 1989 made by the Commission and appointed by the Government as District Educational Officers, on the ground that Sri R. Chinnigaramiah who functioned as the Chairman of the commission at the relevant time was not entitled to do so and that his participation in the selection had vitiated the 'entire selection. Sri R. Chinnigaramiah was first appointed as Member of the Commission by a notification dated 4-7-1962 and he assumed office on 6-7-1962. On 11th february, 1963 he addressed a letter to the Governor tendering his resignation as a Member with effect from 14-2-1963. On 13-2-1963 the Secretary to the Government wrote a letter to Sri R. Chinnigaramiah informing him that his resignaton has been accepted by the Government with effect from 14th February, 1963. On the same day, a Notification was issued in exercise of the powers conferred under Cl. (1) of Art. 316 of the Constitution under which the Governor appointed Sri R. Chinnigaramiah as Chairman of the Commission with effect from the fere noon of 15-2-63. He continued to function as such until he vacated office on 14-2-1969. The candidates for selection to the posts of District Educational Officers were interviewed by the Commission during the time when Sri R. Chinnigaramiah was functioning as Chairman. If the term of his office of six years was required to be counted from the date of the assumption of office as Member he would have ceased as Chairman on 5-7-1968 and he could not have continued as the Chairman beyond that date. The State took the stand that Sri Chinnagaramiah was entitled to hold the office of the Chairman of the Commission for a term of six years commencing from the date of assumption of his office viz. 15-2-1963. The petitioners who had challenged the selections made by the Commission when Sri Channigaramiah was functioning as the Chairman, relied on the majority decision of the Calcutta High Court in dhirendra Krishna Viswas v. Corporation of Calcutta AIR, 1966 Cal. 290 (FB ). 15-2-1963. The petitioners who had challenged the selections made by the Commission when Sri Channigaramiah was functioning as the Chairman, relied on the majority decision of the Calcutta High Court in dhirendra Krishna Viswas v. Corporation of Calcutta AIR, 1966 Cal. 290 (FB ). This Court on an exhaustive consideration of the relevant provisions of the Constitution disagreed With the majority view in Dhirendra Krishna's case (2) and held that Sri Chennigaramiah was entitled to continue to function as chairman for the full period of six years from 15-2-1963 till 14-2-1969 and therefore, the selections were valid. The judgment of this Court was delivered by the Chief Justice. According to the said judgment which is yet unreported, although the Chairman is also a member of the Commission, the two offices the office of the Chairman and the office of a Member are distinct and separate and that when full effect is given to the provisions of clause (2) of Art. 316 and cl (d) of Art. 319, as one is not controlled by the other, the term of office of the Chairman of a commission of six years provided under cl. (2) of Art. 316 of the Constitution commences from the date of assumption of the office of Chairman, although before his appointment as Chairman, he was a member of that Commission. ( 3 ) THERE is no decision of the Supreme Court taking a contrary view and therefore, the decision of this Court in Mariswamy's case (1) has settled the law so far as this Court is concerned. Notwithstanding the clear decision of this Court according to which Sri Bidap should be entitled to hold office of the Chairman of the Commission for the full period of six years commencing from 15-2-1969, the Hon'ble Chief Minister of Mysore answering a short notice question by a member of the Legislative Council stated that Sri Bidap's term w,ould expire on 20-3-1973. When the attention of the chief Minister was drawn to the aforesaid ruling of this Court and also to the opinion of the Attorney General of India circulated to the State Governments to the same effect, he stated that as there are conflicting opinions on the same issue, it has become difficult for him to accept the ruling of this court. Vide Annexure 'f' to the WP, No: 774 of 1973 which is a Press Report of the proceedings of the Mysore Legislative Council dated 17-3-1973. Reference has been made to the said report in the pleadings and has not been denied by the respondent State. From the answers given by the Chief minister in the State Legislature, it became evident that the State Government wanted to treat Sri Bidap's term of office as coming to an end on 20-3-1973. Apprehending that another person would be appointed to the office of the Chairman with effect from the said date and a constitutional deadlock would be created, Sri Bidap has preferred WP. No. 774 of 1973 praying for a declaration that the tenure of his office of Chairman of the commission is for a period of six years from 15th February, 1969 and for issue of a writ in the nature of an injunction restraining the State Government from making any appointment to the office of the Chairman of the commission till the expiry of the term of his office or in any other manner interfering with his duties as Chairman of the Commission. Sri Bidap's writ petition was admitted by this Court on 19-3-1973 and an ad interim order was made restraining the Respondent from making any appointment to the office of the Chairman of the Commission. ( 4 ) WHEN Sri Bidap's writ petition was pending, 28 persons including 20 members of the Mysore Legsilalure filed WP. No. 893 of 1973 for issue of a writ of quo warranto against Sri Bidap. The 'said writ petition was filed on 30-3-1973. It is alleged by Sri Kagodu Thimmappa, MLA. , in the affidavit filed in support of the writ petition that the petitioners were constrained to file the writ petition as the State Government is likely to collude with sri Bidap and that the continuance of Sri Bidap in the office of the Chairman of the Commission beyond 20th March 1973 is unconstitutional. It is further alleged that the decision of this Court in Mariswamy's case (1) does not lay down the correct law and requires reconsideration by a larger Bench. ( 5 ) SINCE both the writ petitions raise a common question, they were heard together. It is further alleged that the decision of this Court in Mariswamy's case (1) does not lay down the correct law and requires reconsideration by a larger Bench. ( 5 ) SINCE both the writ petitions raise a common question, they were heard together. The learned Advocate General was heard in support of the contentions of the State and Sri Havanur was heard in support of the petitioners in WP. No. 893 of 1973. When there is an earlier Bench decision of this Court, it is binding on this Bench. If this Bench differs from the view taken by an earlier Bench on the same question then the question has to be referred to a Full Bench under S. 7 of the Mysore High Court, Act, 1961. Neither the Advocate general nor Sri Havanur disputed the fact that there is a direct decision of this Court concluding the question in issue before us and that if we decide the cases before us following this Court's earlier ruling Sri Bidap is entitled to succeed. But the learned Advocate General and Sri Havanur argued that the earlier decision of this Court in Mariswamy's case (1) requires reconsideration that the majority view of the Calcutta High Court in dhirendra Krishna's case (2) lays down the correct law. The learnec. counsel did not urge any fresh grounds than what were urged and considered by this Court in Mariswamy's case (1 ). It would have been sufficient for us to follow the earlier Bench decision of this Court and dispose of both these writ petitions in accordance with the law laid down already. However out of deference for the learned Advocate General, we shall independently deal with the contentions urged by him and state the reasons for our decision. ( 6 ) CHAPTER II of Part XIV of 'the Constitution contains the provisions regarding the constitution, tenure of office and other matters pertaining to public Sevice Commission. The Articles that are relevant for our purpose are Arts. 316 and 319. They read: "316. Appointment and term of office of members. ( 6 ) CHAPTER II of Part XIV of 'the Constitution contains the provisions regarding the constitution, tenure of office and other matters pertaining to public Sevice Commission. The Articles that are relevant for our purpose are Arts. 316 and 319. They read: "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. (1a) 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 the 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 65 years, and in the case of a. State Commission or a Joint Commission the age of sixty 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 art. 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 reappointment to that office. 319. Prohibition as to the holding of offices by members of Commission on ceasing to be such members-On ceasing to hold office- (a) the Chairman of the Union Public Service Commission shall be ineligible for further employment either under the Government of of India or under the Government of a State (b) the Chairman of a State Public Service Commission shall be eligible for appointment as the Chairman or any other member of the union Public Service Commission or as the Chairman of any other state Public Service Commission, but not for any other employment either under the Government of India or under the Government of a state. (c) a member other than the Chairman of the Union Public Service commission shall be eligible for appointment as the Chairman of the Union Public Service Commission or as the Chairman of a State public Service Commission, but not for any other employment either under the Government of India or under the Government of a State; (d) a member other than the Chairman of a State Public Service commission shall be eligible for appointment as the Chairman or any other member of the Union Public Service Commission or as the Chair- man of that or any other State Public Service Commission, but not for any other employment either under the Government of India or under the Government of a State. ( 7 ) THE two Articles read together provide for the following matters:- (1) Appointment of the Chairman and other Members of a Public service Commission. In the case of the Unionpublic Service Commission or a Joint Commission, they shall be appointed by the President. In the case of a State Commission, they shall be appointed by the Governor of the State. (2) The tenure of a Member is a term of six years from the date on which he enters on his office or until he attains in the case of the Union commission the age of 65 years and in the case of a State Commission, the age of 60 years whichever is earlier However, a Member of a Commission may resign his office or he may be removed from his office in the manner provided in Clause (1) or Clause (3) of Article 317. (3) A total bar is imposed by clause (3) of Article 316 for reappointment of a Member on the expiration of his term of office (4) The Chairman and other Members of Commissions are rendered ineligible for further employment either under the Government of India or the Government of a State The exceptions thereto are provided by clause (b), (c) and (d) of Article 319 and they are: (i) The Chairman of a State Public Service Commission is eligible to be a Chairman or a Member of the Union Commission or a Chairman in any other State Commission, (ii) A member other than the Chairman of the Union Commission shall be eligible for appointment as Chairman of the Union Commission or as the chairman of a State Commission. (iii) A member other than the Chairman of a State Public Service commission is eligible to become, a Chairman or a member of the Union commission or a Chairman of a State Commission including the Commission of which he was a member. ( 8 ) THE object of the above restrictions is not to permit the Union Government or the State Government to exercise any patronage in the matter of giving continued employment in the same post or in any other post. Speaking on the relevant draft provisions of the Constitution in the constituent Assembly, this is what Dr. 8. R. Ambedkar stated:- the first point is with regard to the tenure of the Public Service commission. That is dealt with in Article 285. Speaking on the relevant draft provisions of the Constitution in the constituent Assembly, this is what Dr. 8. R. Ambedkar stated:- the first point is with regard to the tenure of the Public Service commission. That is dealt with in Article 285. According to the provisions contained in that Article, the term of office of a Member of the public Service Commission is fixed at six years or in the case of the union Commission until he reaches the age of 65 and in the case of a state Commission until he reaches the age of 60. That is with regard to the term of the office. Now I come to the other important matter relating to the employment or eligibility for employment of the members of the Public Services commission both the Union and State Public Services Commissions. Members will see that according to Article 285, Clause (3), we have made both the Chairman and the Members of the Central Public services Commission as well as the Chairman of the State Commission and the members of the State Commission ineligible for reappointment to the same posts; that is to say once a term of office of a chairman and member is over, whether he is a chairman of the Union Commission or the Chairman of a State Commission, we have said that he shall not be reappointed. I think that is a very salutary provision, because any hope that might be held out for reappointment, or continuation in the same appointment, may act as a sort of temptation which may induce the member not to act with the same impartiality that he is expected to act in discharging his duties. Therefore, that is a fundamental bar which has been provided in the draft article. ( 9 ) THEN the second thing is that according to article 285-C, there is also a provision that neither of these shall be eligible for employment in any other posts. There is therefore a double disqualification. There is' no permission to continue them in their office, nor is there provision for 'their appointment in any other posts. Now, the only exceptions, that is to say, cases where they could be appointed are these: - the Chairman of a State Public Services Commission is permitted to be a Chairman or a Member of the Union Commission, or a Chairman of any other State Commission. Now, the only exceptions, that is to say, cases where they could be appointed are these: - the Chairman of a State Public Services Commission is permitted to be a Chairman or a Member of the Union Commission, or a Chairman of any other State Commission. Secondly, the Members of the Union Commission can become chairman of the Union Commission or any other' State Commission. Thirdly, the Members of the State Commission can become a chairman or a Member of the Union Commission, or the Chairman of a State Commission. ( 10 ) IN other words, the exceptions are namely, that one man, who is a member of the Union Public Services Commission may become a chairman of the State Public Services Commission or a Member of the State Public Services Commission can become a Chairman of the union Public Service Commission or become a Member of the Union public Services Commission. The principal point to be noted is this, that neither the Chairman nor the Member of a State Commission can have employment under the same State He can be appointed by another State as a Chairman or he can be appointed by the Central government as the Chairman of the Union public service Commission or a Member of the Union Public Services Commission the object being not to permit the State to exercise any patronage in the matter either of giving continued employment in the same post, or in any other post, so that it is hoped that with these provisions, the members of the Commission will be as independent as they are expected to be. ( 11 ) THE argument of the learned Advocate General and Sri Havanur was that the Chairman of a Commission is a Member of the Commission that the term of six years provided by clause (2) of Art. 316 governs the Chairman as well as there is no separate provision providing for the term of office of the Chairman and therefore when Clause (2) of Art. 316 states that a member of a Commission shall hold office for a term of six years from the date on which he enters upon his office, it means that where a member is subsequently appointed as a Chairman, he cannot claim a fresh tenure of six years from the date of his appointment as Chairman; the policy underlying art. 316 is that no person whether as Member or as Chairman shall hold office in the same Commission for a period exceeding six years. This Court has held in Mariswamy's case (1) that for the purpose of cl. (2) of Art. 316 the word 'member' includes the 'chairman' of a Commission; but the two offices are distinct and separate. Clause (1) of Art. 316 states that '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 The proviso to the said Clause states that as nearly as one half of every Public Service Commission shall be persons who at the dates of their respective appointments have held office for atleast ten years either under the Government of India or under the Government of a State. The proviso to clause (2) of Article 316 states that a. Member of a Commission may resign the office or he may be removed from his office. Clause (3) of Article 316 imposes a bar on rearppointment on the expiration of the term of office of a Member. ( 12 ) IT is clear on a perusal of the scheme of Art. 316 that the Chairman of a commission is a Member of that Commission and therefore no express provision is made under Clause (2) for fixing the term of his office or for providing for his resignation or renioval. But saying that the Chairman of a Commission is a Member of that Commission does not mean that the two offices are one and the same. The Prime Minister is a Member of the cabinet but all Ministers are not Prime Ministers. The Chief Justice of a high Court is a Judge of the High Court but all judges are not Chief Justices. The Prime Minister is a Member of the cabinet but all Ministers are not Prime Ministers. The Chief Justice of a high Court is a Judge of the High Court but all judges are not Chief Justices. Clause (1a) of Art. 316 provides as to who shall perform the duties of the office of the Chairman of the Commission if that office becomes vacant or if any Chairman by reason of absence or for any other reason is unable to perform the duties of his office, only the person appointed by the president in the case of the Union Service Commission or by the Governor in the case of a State Commission is entitled to perform the duties of the chairman. That clearly means that the office of the Chairman of a Commission is distinct and separate from that of a Member of a Commission. Art. 319 also maintains the 'distinction between the two offices as stated earlier the constitutional bar, for reappointment of a Member inclusive of a Chairman is contained in clause (3) of Art. 316. That bar is for reappointment to the office already held. If he was the Chairman of a Commission he is barred for reappointment to the office of the Chairman if he was a mere Member, he is barred for reappointment as a Member. In the absence of Clause (3) of Art. 316 and Art. 319, there would have been no constitutional bar for reappointment of a member including a chairman of a Commission for a second or further term, the provisions of Art. 316 may be compared With Art A224 of the Constitution under which'an Additional Judge of a High Court can be appointed by the President for a term not exceeding two years Since there is no provision in Art. 224 corresponding to Clause (3) of Art. 316 barring his reappointment for a further term, an additional Judge can be reappointed by the President for a further term. ( 13 ) THE expression 'on ceasing to hold office' with which Art. 319 opens, governs cls. (a) to (d) of the said Article. The Chairman of a Public service Commission or a Member thereof caase to hold office on the expiration of the term provided by clause (2) of Art. 316 or where he resigns his office or is removed from office. (a) to (d) of the said Article. The Chairman of a Public service Commission or a Member thereof caase to hold office on the expiration of the term provided by clause (2) of Art. 316 or where he resigns his office or is removed from office. It was not contended by the learned Advocate General that the duration of the new appointment for which express provision is made by clauses (b), (c) and (d) except where a member of a Service Commission is appointed as Chairman of that Commission, is not six years from the date on which he enters upon his office or until he attains the age specified in clause (2) of Art. 316. It was conceded that where a Member other than the Chairman of a State Public service Commission is appointed as the Chairman or as any other member of the Union Public Service Commission or as the Chairman of any other State Public Service Commission, he will hold that office for the full term of six years as provided by clause (2) of Article 316. The only argument was, that it is only where a Member of a commission is appointed as the Chairman of that Commission, his term has to be counted from the date on which he assumes office of a Member. If that interpretation is accepted as correct, then, clause (d) of Art. 319 in so far as it makes a Member of a State Public Service Commission eligible for appointment as the Chairman of that Commission, would be applicable only where a Member of a Commission resigns his office or is removed from his office before the expiration of his term of six years. It is only in such rare cases that a Member could be appointed as the Chairman of that Commission after he has ceased to hold the office of a Member. In order to give such an interpretation, we have to add words not found in Arts. 316 and 319. There is no reason to hold that in case where a Member on ceasing to be a Member of a State Public Service Commission is appointed as Chairman of that Commission, his term should be different from what his term would otherwise be if he were appointed as the Chairman of any other State Public Service Commission or the Chairman of the Union Public Service Commission. ( 14 ) IN our judgment, clause (2) of Art. 316 merely fixed the term of office of a Member including the Chairman of a Commission. It has nothing to do with the bar to re appointment of a Member or Chairman or their ineligibility to hold posts under the Government of India pr the State Governments. That bar is contained in clause (3) of Art 816 and Art. 319 subject to the exceptions mentioned in clauses (b), (c) and (d) of Art. 319. Whenever the question of the duration of the office of a Member or chairman of a Commission arises, all that has to be looked into is the date on which he entered upon his office as Member or Chairman. On a member being appointed as Chairman of the Commission, he ceases to hold the office of a Member and he enters upon a new office for a separate term fixed by clause (2) of Article 316. In the instant case, Sri Bidap entered upon the office of the Chairman of the Mysore Public Service Commission on 15-2-1969. By virtue of clause (2) of Art. 316 he has a right to hold that office for a term of six years from 15-2-1969. It is not contended that Sri Bidap has attained the age of 60 years. ( 15 ) THE view we take also finds support from the decisions of the High courts of Patna arid Assam. Before the Patna High Court, a similar question arose in Ram Ishwar Singh v. Jagtnand Sahai CWJC. 1997/70 dt. 21-12-70 (Pat. H. C. ). . A typed copy of the judgment of the Patna High Court was furnished to us in the paper Book. The Patna High Court accepted the minority opinion of G. K. Mitter J. in preference to the majority opinion in Dhirendra Krishna's case (2 ). Against the said decision the petitioners therein preferred a Special Leave petition before the Supreme Court in S. L. A. (Civil) No. 2278/1971. After hearing the counsel for the parties, the Supreme Court dismissed the special Leave Petition. The Assam High Court in Solaiman Ali Ahmed v. Assam Public Service commission (4) (copy of which judgment was furnished to us) has preferred the minority opinion of G. K. Mitter J. in Dhirendra Krishna's ease (2 ). After hearing the counsel for the parties, the Supreme Court dismissed the special Leave Petition. The Assam High Court in Solaiman Ali Ahmed v. Assam Public Service commission (4) (copy of which judgment was furnished to us) has preferred the minority opinion of G. K. Mitter J. in Dhirendra Krishna's ease (2 ). Apart from the decision of the Calcutta High Court in Dhirendra krishna's case (2) no other decision has been brought to our notice either by the learned Advocate General or Sri Havanur in support of their interpretation of Arts. 316 and 319. ( 16 ) SRI K. R. Karanth learned Counsel for Sri Bidap has given in Annexure 'g' to the Writ Petition specific instances where members of Public service Commissions were subsequently appointed as Chairman of the same commission and the total period during which they served in the same commission exceeded six years. Particular reference has been made to the case of the Union Public Service Commission where Sri R. C. Sarkar was appointed as a Member of that Commission on 31-1-1966 and he was appointed as its Chairman on 11-5-1971. He retired on 31-1-973. The total period during which he served as a Member and Chairman of the Union public Service Commission was seven years. Other instances have also been given of the Service Commissions of Andhra Pradesh, Assam, Haryana, maharashtra, Rajasthan and Uttar Pradesh. ( 17 ) BEFORE we conclude, we must observe that there is no foundation laid for the apprehension of the petitioners in Writ Petition. No. 893 of 1973 that the State Government is colluding with Sri Bidap and would not contest his writ petition. In the result, for the reasons stated above, we allow with costs Writ petition No. 774 of 1973 and declare that Sri R. V. Bidap is entitled to hold the office of the Chairman of the Mysore Public Service Commission for the full term of six years from 15-2-1969 and the Respondent-State is directed to forbear from making any appointment to the said office of the chairman of the Commission till the expiry of his term. Writ Petition No. 893 of 1973 is dismissed with costs of respondent no. 2 in that petition. Advocate's fee Rg. 250 in each. --- *** --- .