Ram Kumar Kashyap & Anr vs Union Of India & Anr

Ram Kumar Kashyap & Anr. .... Petitioner

Versus

Union of India & Anr. .... Respondents

With

Writ Petition (Civil) No. 511 of 2008

And

Writ Petition (Civil) No. 512 of 2008

JUDGMENT

K.G. BALAKRISHNAN, CJI

1. The Chairman and 8 members of the Haryana Public Service

Commission were placed under suspension on 09.08.2008 by Governor

of the State of Haryana. A Reference was made under Article 317(1) of

the Constitution of India by the Hon'ble President of India. In these Writ

Petitions the petitioners have sought for a writ of certiorari for quashing

the Reference made on 31.07.2008 by the Hon'ble President of India under Article 317(1) of the Constitution of India and also for a direction

that the order of suspension dated 09.08.2008 passed by the Governor of

State of Haryana be declared as illegal and be quashed. When the

matter came up for consideration, learned Senior Counsel appearing for

the petitioners submitted that the first prayer for the writ of certiorari to

quash the order of Reference under Article 317 (1) of the Constitution of

India is not pressed. Therefore, the only question that arises for

consideration in these Writ Petitions is whether the suspension of 8

Members and the Chairman of Public Service Commission by the

Governor of Haryana by order dated 09.08.2008 is liable to be set aside

or not.

2. We heard the learned Senior Counsel for the petitioners and also

counsel for the respondents. The main grievance of the petitioners is

that they were neither given show cause notice nor an opportunity to be

heard before the order of suspension was issued and thereby the

principle of natural justice has been violated. Before examining their

submissions, it is necessary to consider the language of the constitutional

provisions which deal with the removal and suspension of the members

of Public Service Commissions. Article 317 of the Constitution reads as

follows:

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"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 enquiry 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 members, as the case may be,--

(a) as 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.

(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 to be guilty of misbehaviour."

[emphasis supplied]

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3. Article 317 makes it amply clear as to how the members of the Public

Service Commission are liable to be removed from office and the

founding fathers of our Constitution incorporated this procedure in order

to give the Chairman and Members security of tenure to safeguard them

against motivated or wrong charges of misbehavior. The obvious intent

behind the same is to protect them from undue political pressures or

personal favoritism and vendetta thereby enabling the Public Service

Commissions to discharge their constitutional obligations in full measure.

4. It has been argued on behalf of the petitioners that the passing of the

common order of suspension by the Hon'ble Governor of the State of

Haryana would cause adverse civil consequences, they deserved a

notice and an opportunity of being heard before such order was passed.

The petitioners have cited several judgments of this court such as those

delivered in State of Orissa v. Dr. (Miss) Bina Pani Dei and others

(AIR 1967 SC 1269); Sayeedur Rehman v. The State of Bihar &

others, (1973) 3 SCC 333; S.L. Kapoor v. Jagmohan & others, (1980)

4 SCC 379; and Olga Tellis & others v. Bombay Municipal

Corporation & others, (1985) 3 SCC 545, all of which affirm the

principle that an adverse order cannot be passed at the back of the

affected party.

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5. It is not necessary that principles of `audi alterem partem' rigorously

followed in the domain of service law need to be applied with the same

degree of rigour in proceedings involving the removal and suspension of

the members of the State Public Service Commission. This exceptional

treatment is mandated by Article 317. Furthermore, the issuance of

suspension orders is as per the `procedure established by law' and not in

derogation from the same.

6. It will be useful to refer to a judgment of this court in Special

Reference No. 1 of 1983, (1990) 4 SCC 262, wherein it was held that

the position of a Chairman or a Member of a Public Service Commission

cannot be equated with that of a public servant and hence the case law

pertaining to the suspension and removal of public employees has no

relevance in the context of the proceedings under Article 317.

7. The relevant observations were made at Para 9:

"9. 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 government by the special provisions dealing with different aspects of his office as envisaged by the Articles 315 to 323 of Chapter II of Part XIV of the constitution. In our view the decisions dealing with service cases relied upon behalf of the respondent have

5 no application to the present matter and the reference will have to answered on the merits of the case with reference to the complaint and the respondents' deference"

8. Furthermore this court in Reference No. 1 of 2003, (2005) 6 SCC 789,

has held that no hearing or opportunity of showing cause against the

proposed reference under Article 317 (1) is necessary before making the

actual reference. The relevant observations are as follows (Para. 2):

"2. We have heard the learned Additional Solicitor General for the Union of India, as also the learned counsel for the respondent on the preliminary objections. We are of the opinion that no hearing or opportunity of showing cause against the proposed reference under Article 317(1) is necessary before making the reference. The first objection is overruled."

9. In Sayalee Sanjeev Joshi, In Re, (2007) 11 SCC 547, which

concerned the removal of a member of the Maharashtra Public Service

Commission under Article 317 on grounds of misbehaviour, this court

had observed (Para. 1):

"1. ... Since a request was made to the President of India to act in terms of Article 317(1) of the Constitution, the placing of the respondent under suspension under Article 317(2) of the Constitution was proper."

10. It is clear from the perusal of the above cases that the petitioners

were not entitled to an opportunity to show cause or to be heard before

the point of time that the orders of suspension were passed by the

6 Hon'ble Governor of Haryana under Article 317(2) after the President had

referred the matter to the Supreme Court. The rationale behind

empowering the Governor of a State to issue such an order for

suspension even before the reference is actually decided by the

Supreme Court is to maintain the public trust and confidence in the

impartial and honest working of the said Public Service Commission. It is

a prerogative given to the State Executive, but the members so

suspended are given the opportunity to present their cases when the

actual reference is decided upon by the Supreme Court. It is open to the

members so suspended to present their point of view at that stage. After

all, it is only after the merits of the case have been examined that the

Supreme Court arrives at an answer to the reference and communicates

the same decision to the President for further action.

11. The Public Service Commission is an institution of the utmost

importance created by the Constitution of India under Article 315. For the

efficient functioning of a democracy it is imperative that the Public

Service Commissions are manned by people of the highest skill and

irreproachable integrity, so that the selections to various public posts can

be immunized from all sorts of extraneous factors like political pressure

or personal favoritism and are made solely on considerations of merit.

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12. In Special Reference No. 1 of 1997, (2000) 4 SCC 309, this Court

discussed the role of the members of the Public Service Commissions

and made the following observations with regard to their duties and

qualifications (Para. 4):

"4.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 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."

13. At Para 31 of the same opinion, this Court further stated:

"31.The credibility of the institution of Public Service Commission is founded upon faith of the common man on 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 the society does not loose confidence in the Commission. The high constitutional trustees, like the Chairman and Members of the Public Service Commission must for ever remain vigilant and conscious of these necessary adjuncts."

8 14. It is very clear 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. Hence, we are of the opinion that the

en bloc suspension of the 8 Members and Chairman of the Haryana

Public Service Commission by the Hon'ble Governor of Haryana by an

order dated 09.08.2008 under Article 317(2) of the Constitution and the

impugned notification dated 09.08.2008 are valid and not liable to be

quashed.

15. The Writ Petitions are dismissed.

...................................CJI [ K.G. BALAKRISHNAN ]

......................................J. [ P. SATHASIVAM ]

......................................J. [ J. M. PANCHAL ] August 07, 2009 New Delhi.

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