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2008 DIGILAW 573 (PAT)

Shiva Balak Choudhary v. State Of Bihar

2008-04-07

MRIDULA MISHRA

body2008
Judgment 1. Heard learned counsei for the petitioners and the counsei appearing for the State. 2. Petitioners Sheo Balak Chowdhury (petitioner No. 1) and Deo Nandan Sharma. (petitioner No. 2) were functioning as members of the Bihar Public Service Commission (BPSC). The tenure of petitioner No. 1 and petitioner No. 2 on the post of members is to expire on 19.8.2008 and 07.8.2008 respectively. In between the year, 2005-06, Cabinet Vigilance lodged three F.i.Rs. being Vigilance P.S. Case No. 19/05, 10/06 & 12/06 in which both these petitioners are named as accused and facing trial. On the basis of the F.I.Rs. instituted against the petitioner, His Excellency Governor of Bihar made a request to his Excellency Dr. A.P.J. Abdul Kalam, the President of India as he then was, proposing to make a reference to the Honbie Supreme Court under Article 317(1) of the Constitution of India for removal of the petitioners. The Hon ble President of India made a reference to the Honbie Supreme Court and the same has been numbered as Reference Case No. 01 of 2007. Date has been fixed in the second week of March, 2008 for consideration of Dr. R.S. Singhs application and also for preliminary hearing as well as for framing of charge. Dr. R.S. Singh, one of the members of the Bihar Public Service Commission has filed an interlocutory application stating that he had retired much earlier of the reference and therefore, reference does not survive so far he is concerned. 3. This application has been filed by the petitioners for quashing the Notification No. 1385 dated 5.2.2008 issued under the signature of Secretary, Department of Personnel and Administrative Reforms, Government of Bihar, Patna whereby both the petitioners have been suspended in view of the powers conferred under Article 317(2) of the Constitution of India. 4. The Notification has been challenged on the ground that it is unconstitutional and against the law settled by the judgment of the Supreme Court in Special Reference Case No. 01 of 1997 reported h 2000(4) S.C.C. 309 [: 2000(2) PLJR (SC)74]. 5. Counsei for the petitioners submits that the issue, relating to removal and suspension of a Chairman or Member of any Public. 5. Counsei for the petitioners submits that the issue, relating to removal and suspension of a Chairman or Member of any Public. Service Commission, no longer remains res Integra as the Honbie Supreme Court in Reference Case No. 01 of 1997 reported in 2000(4) S.C.C. 309 [:2000(2) PLJR (SC)74] has held that "strict judicial procedure contained in Article 317(1) and the requirement that the President must have the supporting report of the Supreme Court in order to suspend or remove the Chairman or the members of a Public Service Commission are undoubtedly intended to provide safeguard to the Chairman and members of the Commission against the motivated or wrong charges of misbehaviour in the large interest of the administration of the Civil Service in the country. Since there is no such direction or report from the Hon ble Supreme Court to suspend the petitioners, the impugned orders do not hold good ground within the parameters of law. The impugned Notification has been issued without any application of judicial mind. It has further been contended that a very purpose of Article 317(1) incorporated in the Constitution is to ensure the independence of the members of the Public Service Commission and to give them protection in the matter of their tenure. This protection has been given to restrain political pressure and influence in the matter of the removal of the Chairman, Member of the Public Service Commission. The Supreme Court in the order of Reference Case No. 01 of 1997 has held that the President must have supporting report of the Supreme Court in order to suspend or remove the Chairman or member of the Public Service Commission. Since there is neither any report nor any direction of the Supreme Court in favour of petitioners suspension, the order is completely illegal, without jurisdiction and fit to be quashed. 6. Counter affidavit has been filed on behalf of the Secretary, Department of Personnel and Administrative Reforms, Government of Bihar, Patna stating that the petitioners were suspended by the State Government after the registration of the Presidential Reference Case No. 01 of 2007. The State Government has exercised powers conferred under Article 317(2) of the Constitution of India. Section 317 of the Constitution of India manifests that a reference under Article 317(1) is made by the President to the Supreme Court. The State Government has exercised powers conferred under Article 317(2) of the Constitution of India. Section 317 of the Constitution of India manifests that a reference under Article 317(1) is made by the President to the Supreme Court. The Governor of the State in exercise of power under Article 317(2) in the case of State Commission, may suspend from office, the Ghairman or any other member of the Commission in respect of whom a reference has been made to the Supreme Court under Clause I, until the President has passed orders on receipt of the report of the Supreme Court on such reference. Since in the present case, the reference has already been made by the Hon ble President to the Hon ble Supreme Court, the Governor of the State is competent to place the Chairman and Members of the Commission under suspension as provided under Article 317(2) until the President has passed orders on the report of the Supreme Court on such reference. 7. Counsel for the petitioner has placed reliance on the decision reported in 2000(4) S.C.C. 309 [: 2000(2) PLJR (SC)74], specially in paragraph 3 which reads as follows: "To enable the Public Service Commissions to discharge their constitutional duties and obligations in full measure, the framers of the Constitution not only armed them with enhanced powers and increased functions, but also provided security of tenure for the Chairman and Members. Strict judicial procedure contained in. Article 317(1) and the Rules framed thereunder by this Court and the requirement that the President must have the supporting report of the Supreme Court in order to suspend or remove the Chairman or Member of a Public Service Commission are undoubtedly intended to also provide safeguard to the Chairman and Members of the Commission against motivated or wrong charges of misbehaviour, in the larger interest of the administration of the civil services in the country." 8. I find that this decision is confined to Article 317(1) of the Constitution of India. So far provision under Article 317(2) is concerned, there is no consideration or finding recorded by Supreme Court, Article 317(2) clearly mentions that in case of a reference made in relation to the Chairman/Members of the State Commission, Governor may suspend the Chairman or any other Member of the Commission from office, in respect of whom a reference has been made to the Supreme Court. In CIause-I, until the President has passed orders on receipt of the report of the Supreme Court on such reference. The Governor during the pendency of the reference before the Supreme Court may pass an order of suspension. So far as the report of the Supreme Court on such reference is concerned, that relates to removal of the Chairman and Member of a State Commission as provided under Article 317(1) of the Constitution of India. 9. I do not find that any error or illegality has been committed by the respondents-authorities by issuing the impugned Notification No. 1385 dated 5.2.2008 issued under the signature of respondent No. 2. The petitioners instead of filing writ application before this court challenging the impugned notification, should have filed an application before the Supreme Court in Reference Case No. 01 of 2007 as Dr. R.S. Singh has already filed so far his case is concerned. 10. This application is dismissed.