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2018 DIGILAW 235 (UTT)

Vinod Kumar Saxena v. State of Uttarakhand

2018-05-02

K.M.JOSEPH, SHARAD KUMAR SHARMA

body2018
JUDGMENT : K.M. Joseph, J. 1. Petitioner has approached this Court seeking the following reliefs: “(i) A writ, Order or Direction in the nature of Mandamus, directing and commanding the State Government to take suitable departmental as well as penal action against the erring officers connected with the office of Hon’ble Chief Minister for misplacing/loosing the original file no. 51 (5)/2001 [selection and appointment of member of state public service commission] and then lodge criminal prosecution against erring officers who are instrumental to this mischief and further the investigation in the present matter may be carried out by Central Bureau of Investigation. (ii) A writ, order or direction in the nature of mandamus, directing and commanding the state government/His Excellency Hon’ble Governor to frame regulations for selecting and appointing Chairman and members in State Public Service Commission as per the mandate of Article 318 of the Constitution of India for future appointments. (iii) A Writ, Order or direction in the nature of mandamus, directing and commanding the respondents to the effect that they shall pay compensation to the petitioner for not giving joining despite of his final selection or pleased to direct the State Government to give appointment to the petitioner in any other organization/tribunal/commission in which age limit is upto 65 years or more.” 2. Briefly put, the case of the petitioner is as follows: Petitioner has put in 37 years of State service and retired on 31.12.2014 on attaining the age of superannuation from his promotional post i.e. Member of Appellate Commercial Tax Tribunal, Uttarakhand. He completed his service as an honest officer. The State of Uttarakhand came into being on 09.11.2000. The Uttarakhand Public Service Commission came into existence on 15.05.2001. Reference is made to Articles 315, 316, 317, 318, 319 and 320 of the Constitution of India. Petitioner has a case that he went to the authorities with his bio-data and, thereafter, the Office of the Chief Secretary prepared a panel, in which he was placed in the first position. The Chief Secretary put up the file before the Chief Minister for approval. Thereafter, it is stated that the original file was again put up before the Chief Minister for giving his consent so that, thereafter, the same may be forwarded to His Excellency, the Governor for final decision. The Chief Secretary put up the file before the Chief Minister for approval. Thereafter, it is stated that the original file was again put up before the Chief Minister for giving his consent so that, thereafter, the same may be forwarded to His Excellency, the Governor for final decision. The Chief Minister granted his approval and then on the same day, the original file was dispatched for final decision to the Office of His Excellency, the Governor i.e. on 29.05.2015. The entry regarding dispatching of the file is mentioned at Serial No. 947 of the dispatch register. This fact came to the knowledge of the petitioner after receiving information under the Right to Information Act. The file was received in the Office of His Excellency, the Governor on 03.06.2015. Then, on the same day, His Excellency, the Governor accorded his approval and returned back the said file to the Office of the Chief Minister for further action, but since then the file could not be traced in the Office of the Chief Minister. Thereafter, it is the case of the petitioner that the file went missing in the Office of the Chief Minister and despite final selection, further action in the shape of issuance of appointment letter could not be taken. Petitioner has crossed age of 62 years and now he could not hold the said post. It appears that the petitioner has attained the age of 62 years (it is pointed out by the learned Chief Standing Counsel that he attained the age of 62 years on 01.01.2017). It is on the basis of this that the petitioner has, essentially, approached this Court. 3. We heard Mr. Jitendra Chaudhary, learned counsel on behalf of the petitioner, Mr. Paresh Tripathi, learned Chief Standing Counsel on behalf of the State of Uttarakhand/ respondent nos. 1 and 2, Mr. B.D. Kandpal, learned counsel on behalf of respondent no. 3. 4. After referring to the facts as above, what is pointed out is that the provisions relating to Article 318 of the Constitution of India have not received due attention of the Government and they are not issuing the regulations. According to Mr. Jitendra Chaudhary, learned counsel for the petitioner, the situation, as is presently projected in the writ petition, may be the product of non-issuance of Regulations, as required under Article 318 of the Constitution of India. 5. According to Mr. Jitendra Chaudhary, learned counsel for the petitioner, the situation, as is presently projected in the writ petition, may be the product of non-issuance of Regulations, as required under Article 318 of the Constitution of India. 5. Article 316 of the Constitution of India appears to provide the Constitutional framework for the purpose of appointment of members of the Union or the State Public Service Commission. It 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.” 6. A perusal of the same would show that there is no criteria, as such, laid down in the Constitution. The limitation on the power under sub-article 1 to Article 316 of the Constitution of India, if at all, is contained in the proviso thereto, which we have already adverted to. That apart, there is no provision, which casts a shadow on the powers of the State in the case of a State Public Service Commission to make appointments. 7. There can, however, be no doubt that all power is meant to be exercised bona-fide and in public interest. The power of appointment of members of the Public Service Commission, which is a high constitutional body entrusted with solemn and delicate task of making recruitments to public service and to perform other tasks, as may be assigned to it, is hedged in with the implied limitation that the power must be exercised with due care. This is to see that recruitments to public services are carried out under the aegis and supervision of men of the highest integrity and competence in the requisite walk of life from which they may be chosen. Any dilution of the exacting standards the founding fathers have envisaged will lower the confidence of the common man in the recruitment process and thereby bring it under a shadow and will certainly not conduce to public welfare. Any dilution of the exacting standards the founding fathers have envisaged will lower the confidence of the common man in the recruitment process and thereby bring it under a shadow and will certainly not conduce to public welfare. It is of the utmost importance that persons, who are recruited to public services, are the best among the lot who apply to be considered. If this is to be achieved, the persons, who are entrusted with the task of selecting them, should be persons of the highest integrity and competence. 8. We have made these observations only to highlight that though there is no provision in the Constitution of India (Article 316), which lays down the qualifications and the credentials of persons, who are to be appointed as Chairman and Members of the Commission, this consequence, which we have indicated above, must necessarily follow in a State, which is obliged to follow the constitutional ethos and also for facilitating the development of the country along the lines that were envisaged by the founding fathers. Passing on to Article 318 of the Constitution of India, the same reads as follows: “318. Power to make regulations as to conditions of service of members and staff of the Commission - In the case of the Union Commission or a Joint Commission, the President and in the case of a State Commission, the Governor of the State may by regulations: (a) determine the number of members of the Commission and their conditions of service. (b) make provision with respect to the number of members of the staff of the Commission and their conditions of service: Provided that the conditions of service of a member of a Public Service Commission shall not be varied to his disadvantage after his appointment.” 9. We may, in the first place, notice that Article 318 of the Constitution of India relates to the power to make Regulations for the purpose of determining the number of members of the Commission and their conditions of service. It uses the word ‘may’ and hence the learned Chief Standing Counsel would point out that it is discretionary. It is elementary that the employment of the word ‘may’ or ‘shall’ is not finally determinative of the question as to whether it is discretionary or mandatory. It uses the word ‘may’ and hence the learned Chief Standing Counsel would point out that it is discretionary. It is elementary that the employment of the word ‘may’ or ‘shall’ is not finally determinative of the question as to whether it is discretionary or mandatory. The Court faced with the employment of the either word, would still need to inquire into the context in which the word is to be found in the body of the Statute, the consequences of adopting either interpretation and the public interest that would either be served or not served. As far as Clause (b) of Article 318 of the Constitution of India is concerned, it relates to making provision with respect to the number of members of the staff and their conditions of service. In the context of this case, it is, however, also apposite that we advert to Article 309 of the Constitution of India. The same reads as follows: “309. Recruitment and conditions of service of persons serving the Union or a State - Subject to the provisions of this Constitution, Acts of the appropriate Legislature may regulate the recruitment and conditions of service of persons appointed, to public services and posts in connection with the affairs of the Union or of any State: Provided that it shall be competent for the President or such person as he may direct in the case of services and posts in connection with the affairs of the Union, and for the Governor of a State or such person as he may direct in the case of services and posts in connection with the affairs of the State, to make rules regulating the recruitment, and the conditions of service of persons appointed, to such services and posts until provision in that behalf is made by or under an Act of the appropriate Legislature under this article, and any rules so made shall have effect subject to the provisions of any such Act.” 10. The heading of Article 309 of the Constitution of India itself indicates that it is intended to provide for the recruitment and conditions of service of persons serving in the Union or a State. Unlike Article 318 of the Constitution of India, it contemplates acts of legislature regulating the recruitment and conditions of service. The heading of Article 309 of the Constitution of India itself indicates that it is intended to provide for the recruitment and conditions of service of persons serving in the Union or a State. Unlike Article 318 of the Constitution of India, it contemplates acts of legislature regulating the recruitment and conditions of service. Apart from conditions of service, what is present in the said Article, in addition to what is provided in Article 318 of the Constitution of India, is the word ‘recruitment’. The word ‘recruitment’ has been placed in Article 309 of the Constitution of India having regard to the need to regulate the recruitment process. Recruitment process ordinarily commences with the issuance of notification/advertisement calling for applications and finally concluding with an order of appointment being issued. The words ‘conditions of service’ would ordinarily attach itself more appropriately to a situation where the recruitment process is concluded. It is after a person is selected and appointed that the employer would be faced with the prospect of regulating the conditions of service. Therefore, the words ‘conditions of service’ mentioned in Article 318 of the Constitution of India, particularly, in the light of the fact that appointment is regulated by a separate Article, namely, Article 316 of the Constitution of India where no constitutional inhibitions are manifested, would also guide us. The complaint, which is projected by the petitioner in this case that the absence of Regulations are creating conditions, which are fertile for the actions, which are complained of in the writ petition, do not appeal to us. 11. In fact, the effect of the word ‘may’ as used in Article 318 of the Constitution of India may have to be viewed also in the light of the fact that under Article 316 of the Constitution of India, there are no limitations on the power except that is found in the proviso, as regards the appointment. 12. However it is true that framing of Regulations would impart certainty and bring about uniformity and also avoid the complaint of arbitrariness and caprice in the matters, which are the subject matter of Article 318 of the Constitution of India. It is not very clear whether Regulations have been made or not. It is certainly for the competent body to ponder over and contemplate whether they are required to be framed. It is not very clear whether Regulations have been made or not. It is certainly for the competent body to ponder over and contemplate whether they are required to be framed. Apart from making these observations, we do not think that any further relief is to be granted in this case. 13. Subject to the observations, which we have made, the writ petition will stand dismissed without any order as to cost.