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Uttarakhand High Court · body

2018 DIGILAW 22 (UTT)

Kripal Singh v. State of Uttarakhand

2018-01-09

K.M.JOSEPH, U.C.DHYANI

body2018
JUDGMENT : K.M. JOSEPH, J. Petitioner has filed this writ petition invoking Public Interest jurisdiction seeking the following reliefs: “I - Issue a writ, rule, order or direction of the appropriate nature directing the appropriate authority, who so ever is competent directing to initiate an enquiry against the respondent no.5 or direct the Chairman of Uttarakhand Public Service Commission i.e. Respondent no.4 to refer the matter to President of India so that he may remove the respondent no.5 from the office of Member, Uttarakhand Public Service Commission. II - Issue a writ, rule, order or direction in the nature of Mandamus commanding and directing the respondent authorities to suspend the respondent no.5 during the pendency of enquiry. III - Issue a writ, rule, order or direction in the nature of Mandamus commanding and directing the respondent no.6 to take appropriate legal action against the respondent no 5 to not depositing the entire rent of residential accommodation and get vacate the residential premises occupied by respondent no.5 and also recover the arrears of rent as arrears of land revenue with exceptional interest.” 2. We heard Mr. Yogesh Pacholia, learned counsel appearing on behalf of the petitioner, Mr. Vikas Pande, learned Standing Counsel appearing on behalf of the State of Uttarakhand/respondent no. 1, Mr. B.D. Kandpal, learned counsel appearing on behalf of the Uttarakhand Public Service Commission/respondent nos. 3 and 4 and Mr. Rajendra Dobhal, learned senior counsel appearing on behalf of the University/respondent no. 6. 3. It is submitted that the fifth respondent, who is shown as a member of the Public Service Commission, was selected, even though it is in violation of Article 316 of the Constitution of India. According to the petitioner, the fifth respondent is working as an Assistant Professor in the sixth respondent-University, and yet she has been made a member of the Public Service Commission. The appointment of the fifth respondent took place by order dated 27.08.2013. It is submitted that this appointment falls foul of the requirement under Article 316 of the Constitution of India. There is a further case that amounts are due from the fifth respondent to the sixth respondent-University by way of rent. Rent is due for occupying the quarters belonging to the sixth respondent-University. We have already noticed the reliefs which are sought in this writ petition. 4. Mr. There is a further case that amounts are due from the fifth respondent to the sixth respondent-University by way of rent. Rent is due for occupying the quarters belonging to the sixth respondent-University. We have already noticed the reliefs which are sought in this writ petition. 4. Mr. Yogesh Pacholia, learned counsel for the petitioner would expatiate and submit that Article 316 of the Constitution of India contemplates that at least one-half of the members of the Commission should be persons who have held office for a period of ten years either under the Central Government or under the State Government. Insofar as there is no indication as to what should be the criteria in regard to the rest of the members, he would submit that the criteria which provides for ten years service as a Central Government or State Government employee should be applicable to the rest of the members also. Next, he would also draw our attention to Article 317(4) of the Constitution of India and would submit that insofar as the fifth respondent is having a contract with the sixth respondent-University, she has incurred the liability to be proceeded against for misconduct. He would further draw our attention to Article 317(3)(b) of the Constitution of India and would submit that having regard to the nature of the appointment of the fifth respondent as an Assistant Professor in the sixth respondent-University, he can successfully invoke Sub Article (3)(b) of Article 317 of the Constitution of India. 5. Per contra Mr. B.D. Kandpal, learned counsel for the Public Service Commission/respondent nos. 3 and 4 would point out that this is actually a sponsored Public Interest Litigation and another member has, in fact, sponsored this litigation. He reminds the Court that the appointment of the fifth respondent took place in the year 2013; the matter is brought to the Court in the year 2017 and this has got more to do with the filling up of the vacancy for the post of the Chairman in the Public Service Commission, which fell due, and there was a tussle for the said post and this litigation must be traced to the same. As far as the fifth respondent is concerned, Mr. As far as the fifth respondent is concerned, Mr. B.D. Kandpal, learned counsel for the Commission would submit that while working as an Associate Professor, the fifth respondent was selected on the basis that she was on extraordinary leave and being on extraordinary leave, there is no legal or constitutional impediment in her being appointed. The provisions relating to Articles 316 and 317 of the Constitution of India, which have been relied on, are sought to be rebutted. As far as the amount due by way of rent is concerned, according to him, the fifth respondent was on leave and it was while so that she was given the appointment and she was allowed to occupy the building by the sixth respondent-University and there arose some confusion as to whether the penal rent should be recovered from her, and the sixth respondent-University was under the impression that she was liable to pay the penal rent on the basis that she has already retired, but this is not a case of retirement and this is a case where she was appointed as a member of the Public Service Commission while she was on extraordinary leave. In fact, he would also point out that the petitioner has about 11 cases pending against him. 6. Mr. Vikas Pande, learned Standing Counsel for the State would also submit that there is no illegality in the appointment of the fifth respondent. 7. Mr. Rajendra Dobhal, learned senior counsel appearing on behalf of the sixth respondent-University would submit that at the time when the fifth respondent was appointed as a member of the Commission, the order itself would show that she was actually working as an Associate Professor and not as an Assistant Professor. Secondly, he would submit that as far as the recovery of rent is concerned, according to him, the proceedings have already been initiated. 8. Appointment to a Public Service Commission, undoubtedly, is a matter of pivotal importance. This is for the reason that this is a Constitutional body entrusted with the delicate, difficult and challenging task of selecting persons to various public services and also to perform various other duties as may be entrusted to it under the Constitution and under the laws. 8. Appointment to a Public Service Commission, undoubtedly, is a matter of pivotal importance. This is for the reason that this is a Constitutional body entrusted with the delicate, difficult and challenging task of selecting persons to various public services and also to perform various other duties as may be entrusted to it under the Constitution and under the laws. There cannot be the slightest doubt that the persons, who are selected to occupy the post of Chairman and members, must possess the highest character and must be totally unblemished. That apart, they must possess competence; they must, apparently, be the persons, who occupy high moral ground and this will go a long way in ensuring complete transparency in the matter of public employment. Public employment today constitutes new wealth in the hands of the citizenry as traditional form of wealth in the form of property has long given way to wealth created in the form of jobs, which are to be filled up by the persons on the basis of principles of competition and equality of opportunity. The selection of the very best to occupy the public offices is a constitutional duty, therefore, of the State, which it seeks to discharge through the mechanism of the Public Service Commission. We may, in this regard, notice a judgment of the Hon’ble Apex Court in the case of State of Punjab Vs. Salil Sabhlok and others reported in (2013) 5 SCC 1 , wherein the Hon’ble Apex Court, inter alia, held as follows: “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. 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. Therefore, 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 the Public Service Commission, the Court can hold the selection and appointment as not being in accordance with the Constitution, and set them aside, as was rightly done by the High Court in the present case.” 9. Coming to the specific contentions of the petitioner, the learned counsel would submit that Article 316 of the Constitution of India is violated. Article 316 of the Constitution of India reads as follows: “316. Coming to the specific contentions of the petitioner, the learned counsel would submit that Article 316 of the Constitution of India is violated. Article 316 of the Constitution of India 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. (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 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.” 10. A perusal of the proviso makes it very clear that what the founding fathers contemplated was 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. As far as the other half is concerned, even proceeding on the basis that the proviso attempts of exactitude, which it does not, in fact, it is clear that the requirement relating to ten years service either under the Government of India or under the Government of a State is not applicable. It is, in fact, the situation, which has been referred to by the Hon’ble Apex Court as creating an area of discretion as observed by the Hon’ble Apex Court. It is, in fact, the situation, which has been referred to by the Hon’ble Apex Court as creating an area of discretion as observed by the Hon’ble Apex Court. Even though there is silence in the Constitution, the scheme of the Constitution provides eloquence to the values, which should animate the mind of the decision-maker in the matter of appointments of this nature; that is to say there can be no doubt that though there is no specific provision and being a high constitutional body, the intention appears to be that the Constitution expects the decision-maker to appoint persons of the highest character and also competence in regard to the post of Chairman and the members of the Commission. Farther than that, we do not think that there is any warrant for accepting the case of Mr. Yogesh Pacholia, learned counsel for the petitioner that since the Constitution does not lay down any other criteria in regard to the other half also they should possess the qualification of having ten years experience with the Central Government or the State Government and we have no hesitation in rejecting the same. 11. As far as the case of the petitioner that this is a case, which attracts Article 317(3)(b) of the Constitution of India, we would think that there is no basis for the same. Article 317(3)(b) reads as follows: “317. Removal and suspension of a member of a Public Service Commission.— (1)………. (2)………. (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)…… (b) engages during his term of office in any paid employment outside the duties of his office; or.” 12. The fifth respondent while working as an Associate Professor entered on leave and it is while so that she was appointed as a member of the Commission. It is brought to our notice that she is not being paid anything from the coffers of the University while she is a member of the Commission. Therefore, we do not see warrant for invoking the provisions of Article 317(3)(b), which contemplates removal of a member engaged during the term of his office in any paid employment outside the duties of his office. Therefore, we do not see warrant for invoking the provisions of Article 317(3)(b), which contemplates removal of a member engaged during the term of his office in any paid employment outside the duties of his office. Since the fifth respondent was appointed while she was on leave without any entitlement to any monetary benefit during that period, we see no warrant for invoking Article 317(3)(b). 13. In similar vein would be the attempt made to draw support from Article 317(4) of the Constitution of India. The same reads as follows: “(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 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 misbehavior.” 14. There is no specific contract or agreement or participation by way of profit thereof alleged as against the fifth respondent. Apparently, the only basis for relying on the said provision is the fact that the fifth respondent was an Associate Professor and, therefore, Article 317(4) is sought to be relied on. We do not see any reason for invoking Article 317(4). As noted, the fifth respondent is on leave without any entitlement to any benefit during the time when she is a member of the Commission. There is no case that the fifth respondent is receiving any profit from any contract or any emolument as such. 15. There is also reference to Article 319(d) of the Constitution of India. The same reads as follows: “319. Prohibition as to the holding of offices by members of Commission on ceasing to be such members.— On ceasing to hold office— (a)………. (b)………. (c)………. (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 Chairman 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.” 16. As far as Article 319(d) is concerned, it, no doubt, provides for a prohibition for a member of the Commission getting any other employment either under the Government of India or under the Government of a State. We do not see any basis at all for projecting ourselves into the future and making any observation in this regard. The complaint of the petitioner appears to be completely premature and we do not see any reason at all to permit the petitioner to invoke Article 319(d) of the Constitution of India. 17. In such circumstances of the case, even if we entertain this writ petition, it is found to be without any basis and merit at all. In fact, we are not oblivious to the principle that a writ of quo warranto to be issued would require demonstration of violation of a statute pertaining to the appointment. No statute is demonstrated to be violated. No doubt, it is true that in the case of State of Punjab Vs. Salil Sabhlok and others reported in (2013) 5 SCC 1 , the Court could, in appropriate cases, issue a writ of declaration. Certainly, this is not a case where any such case is made out. We notice, in fact, that the petitioner has approached this Court when the lion’s share of the term of the fifth respondent is already over, namely, 4½ years out of 6 years have already expired. 18. As far as recovery of rent from the fifth respondent is concerned, we are at a loss to, in fact, appreciate how such matters should appeal to us as matters, which require interference in a Public Interest jurisdiction. We must remind ourselves that Public Interest Litigation had its origin in far four sublime noble objectives and it was, undoubtedly, devised by the Hon’ble Apex Court, which was followed by various High Courts as a device to reach justice to the poorest of the poor and to help the weaker sections and others to have access to the constitutional and other legal rights. We would think that, at any rate, this is a matter, which is between the fifth respondent and the sixth respondent-University. Therefore, we need not go into the said aspect. 19. Accordingly, no case is made out for interference. We would think that, at any rate, this is a matter, which is between the fifth respondent and the sixth respondent-University. Therefore, we need not go into the said aspect. 19. Accordingly, no case is made out for interference. However, while we are not inclined to interfere with the matter, we only hope that the authorities will bear in mind the principles, which have been laid down in the case of State of Punjab Vs. Salil Sabhlok and others reported in (2013) 5 SCC 1 that in the matter of appointment to the post of Chairman and members of the Commission, great care is exercised, so that the best men/women are selected. 20. Subject to the above observations, the writ petition will stand dismissed.