Allahabad High Court
U.P. Public Service Commission Thru ... vs Union Of India And 3 Others on 28 February, 2018
Author: Suneet Kumar
Bench: Dilip B Bhosale, Suneet Kumar
HIGH COURT OF JUDICATURE AT ALLAHABAD RESERVED Writ-C No. 62997 of 2017 U.P. Public Service Commission through its Chairman & Members Vs. Union of India through Secretary, Department of Personnel and Training, Government of India, New Delhi & Ors.
Appearance:
For petitioners: Mr. Shashi Nandan, Senior Advocate, with Mr. Kashif Zaidi & Mr. Udyan Nandan, Advocates For respondents: Mr. Manish Goyal, Addl Advocate General, with Mr. A.K. Goyal, Additional Chief Standing Counsel, for respondent no.2-State Mr. Gyan Prakash, Assistant Solicitor General India, with Mr. Vinay K. Singh, Advocate, for respondent no. 1-Union of India For intervenors : Mr. Alok Mishra, Advocate Hon'ble Dilip B Bhosale, Chief Justice Hon'ble Suneet Kumar, J (Per Dilip B Bhosale, CJ) The Uttar Pradesh Public Service Commission, through its Chairman and Members, have instituted this writ petition under Article 226 of the Constitution of India, calling into question the order/notification dated 21.11.2017. By this order/notification, the Government of India, Ministry of Personnel, Public Grievance and Pensions (Department of Personnel and Training), in exercise of the powers conferred by sub-section (1) of Section 5, read with Section 6 of the Delhi Special Police Establishment Act, 1946 (Act No. 25 of 1946) (for short, 'Act, 1946'), with consent of the State Government, has extended the powers and jurisdiction of members of the Delhi Special Police Establishment in the whole of the State of Uttar Pradesh for conducting enquiry/investigation into serious allegations against the Uttar Pradesh Public Service Commission (for short, 'UPPSC') in respect of examinations and their results held/declared during the period between 01.04.2012 and 31.03.2017 (for short "relevant period"). Further, they have also prayed for a writ of mandamus, restraining respondent nos. 1 to 3 from interfering in any manner, with the functioning of UPPSC. By way of an amendment application, bearing No. 2/18, the petitioners also questioned the letters dated 31.07.2017 and 06.09.2017, and the order dated 31.07.2017 issued by the Principal Secretary (Home), Government of Uttar Pradesh. By the letters dated 31.07.2017 and 06.09.2017, the Principal Secretary requested the Government of India for CBI enquiry/investigation as per the State Government's order dated 31.07.2017 into the allegations levelled against UPPSC in respect of the examinations/results declared during the relevant period.
2. The factual matrix, sans unnecessary details, leading to this petition, is as follows:
2.1 The Chairman and Members of UPPSC, who are presently holding office, were appointed between June 2012 and November 2016, during the regime of previous 'Samajwadi Party' government. The Bhartiya Janta Party, after general elections, came into power on 19.03.2017. The present Chairman was appointed on 15.03.2016.
2.2 The selections made by UPPSC, during the relevant period, are subject matter of enquiry/investigation initiated on the basis of the impugned order dated 21.11.2017. The enquiry/investigation was sought by the Government of Uttar Pradesh on the basis of large number of complaints received through different sources, including the complaints forwarded by the Prime Minister office and the Governor office, not only during the regime of the present government but even during the regime of "Samajwadi Party" government. It was also on the basis of allegations made in large number of writ petitions filed by different persons, including Public Interest Litigation No. 51911 of 2015, filed by Shri Julio F. Ribeiro, Ex. D.G.P., Punjab & Ors. seeking CBI enquiry/investigation and Public Interest Litigation No. 29323 of 2015 filed by Satish Kumar Singh against Dr. Anil Kumar Yadav, the then Chairman, UPPSC, calling into question his appointment as Chairperson. To understand the nature of allegations and the backdrop against which CBI enquiry/investigation was sought, it would be advantageous to reproduce averments made in paragraphs 8, 9, 10 and 11 of the counter affidavit filed on behalf of the State Government. The relevant paragraphs read thus:
"8. That after the appointment of Dr. Anil Kumar Yadav as Chairperson of the Commission in April 2013, various complaints of all kind by examinees were received directly by the State Government or rooted through the office of the Prime Minister of India/Governor of the State in various department-wise selections. Apart from the students and examinees, even public representative have approached against the selections conducted by the Commission. Such complaints related to promoting candidates of a particular caste from a particular region in the name of scaling in the examination in various selections of PCS, Lower Sub-ordinate, Review Officers Examination, Assistant Prosecuting Officer Examination as well as make topper the son of Ex-D.G.P. in PCS-2015, changing of answer-book of Suhasini Bajpayee in PCS-2015 etc. There are large numbers of complaints of appointment of relatives of the members of the Commission. There is large scales protest also against selection being held by the Commission. More than 58 such complaints were received by the State Government, which shall be placed before this Hon'ble Court at the time of hearing of the case. In view of such large scale resentment and serious charges in the public examinations conducted by the Commission, the image of the Commission started eroding affecting the faith in such public examinations, so much so that several public interest litigations being PIL No. 51911 of 2015, Shri Julio F. Rebeiro, Ex-DGP, Punjab & others Vs. State of U.P. & others, PIL No. 29323 of 2015, Satish Kumar Singh Vs. Anil Kumar Yadav, Chairman, UPPSC, Allahabad & others were filed calling into the question of appointment of Dr. Anil Kumar Yadav as Chairperson of the Uttar Pradesh Public Service Commission. In the aforesaid petitions a writ of quo-warranto has been sought with consequential direction for setting aside the notification dated 02.04.2013 appointing him to the post of Chairperson. This Hon'ble Court vide judgment & order dated 14.10.2015 allowed the writ petitions by issuing a declaration that appointment of Dr. Anil Kumar Yadav as Chairperson of Uttar Pradesh Public Service Commission was ultra vires, arbitrary and in breach of the provisions of Article 316 of the Constitution of India. ...
9. That it is not out of place to mention here that aggrieved from the grave irregularities in public examinations being conducted by the Commission and other serious irregularities, several public interest litigations being PIL No. 67438 of 2015, Shri Julio F. Rebeiro Vs. Union of India & others, PIL No. 8643 of 2016, Pratiyogi Chhatra Sangharsh Samiti Vs. State of U.P. & others, PIL No. 64416 of 2015 Satya Prakash Bharti Advocate Vs. State of U.P. & others, PIL No. 1546 of 2016 Anand Prakash Pandey Vs. State of U.P. & others and PIL No. 1147 of 2016, Dr. Dhirendra Singh Vs. State of U.P. & others were filed before this Hon'ble Court of which last three were connected to each other. More than 78 writ petitions regarding irregularities in examination patterns and declaration of results filed before this Hon'ble Court.
10. That as the public faith in competitive examinations being conducted by the Commission started eroding, even detrimental to the role and image of the Commission, the Appointment & Personnel Department was constrained to forward a wide spread complaints before the State Government in respect to the examinations conducted between 01.04.2012 to 31.03.2017 for proposed enquiry through some independent agency, whereon a decision was taken for CBI enquiry/investigation into the serious allegations against Uttar Pradesh Public Service Commission, Allahabad, whose results were declared between 01.04.2012 to 31.03.2017. Accordingly, the Principal Secretary (Home) vide letter dated 31.07.2017 and 06.09.2017 requested the Government of India for CBI investigation as per the notified consent order of the State Government dated 31st July 2017. ....
11. That a bare perusal of the order of the State Government dated 31st July 2017 makes it apparent that it has sought enquiry/investigation only into the serious allegations against Public Service Commission, Uttar Pradesh in the examinations, whose results were declared between 01.04.2012 to 31.03.2017 in public interest....."
(emphasis supplied) 2.3 It would also be advantageous to have a glance at the order/notification dated 21.011.2017, issued by the Government of India, impugned in the present writ petition, which reads thus:
"NOTIFICATION In exercise of the powers conferred by sub section (1) of Section (5) read with Section 6 of the Delhi Special Police Establishment Act, 1946 (Act No. 25 of 1946), the Central Government with the consent of State Government of Uttar Pradesh, Home (Police) Section 11, Lucknow vide Notification No. 1611(1)6-P-17-288M/2017 dated 31.07.2017 hereby extends the powers and jurisdiction of members of the Delhi Special Police Establishment in the whole of the State of Uttar Pradesh for conducting enquiry/investigation into the serious allegations against the Public Service Commission, Uttar Pradesh, Allahabad in which the examinations whose results were declared between 01.04.2012 to 31.03.2017 will come in scope of enquiry.
[F. No. 228/38/2017-AVD-II] Sd/illegible (S.P.R. Tripathi) Under Secretary to the Government of India"
(emphasis supplied) 2.4 Similarly, we also would like to reproduce the order issued by the State Government, requesting the Government of India to entrust the enquiry/investigation to CBI into the allegations against UPPSC, dated 31 July 2017, which reads thus:
"In pursuance of the provisions of Section-6 of the Delhi Special Police Establishment Act-1946 (Act 25 of 1946) the Governor of State of Uttar Pradesh is pleased to accord the consent to the extension of powers and jurisdiction of the member of the Delhi Special Police Establishment in the whole of the State of Uttar Pradesh for enquiry/investigation into the serious allegations against the Public Service Commission, Uttar Pradesh, Allahabad in which the examinations whose results were declared between 01.04.2012 to 31.03.2017 will come in scope of enquiry."
(emphasis supplied) 2.4.1 The proforma for making reference to the Central Government for CBI enquiry/investigation, which was an enclosure to the order dated 31.03.2017, reads thus:
"Proforma for making reference to Central Government for CBI Inquiry/Investigation 1 Brief facts of the case to be enquired/investigated (Detail as regards the crime-what how, when, where and why, whom may invariably be indicated.) Complaints of serious irregularities by Public Service Commission, Uttar Pradesh, Allahabad in state/superior subordinate services examination as also selection in various government services were received by the Government. Grave allegations especially about irregularities in the name of scaling, irregularities in interview, changing of answer booklets, examination not being cancelled despite question paper being leaked, violation of rules relating to reservation, more marks given to candidates from a particular region and particular caste were made in the complaint letters. In light of the aforesaid serious allegations against the Public Service Commission, Uttar Pradesh, Allahabad the examinations whose results were declared between 01.04.2012 to 31.03.2017 will come in scope of enquiry. Hence with a view to have a fair, transparent and detailed enquiry in this matter the State Government has decided to entrust the enquiry/investigation into the serious allegations against the Public Service Commission, Uttar Pradesh, Allahabad in which the examinations whose results were declared between 01.04.2012 to 31.03.2017 will come in scope of enquiry to the CBI.2
Copy of FIR (if a case has already been registered by the local police) if FIR is in local language the English translation may be provided.
No F.I.R. has been lodged 3 Result of investigation done by the local police, including details of seizures/arrest made and the present status of arrested accused i.e. whether on bail or in custody.
No F.I.R has been lodged 4 Details of court case, if any, filed in matter.
N.A. 5 Justification for referring the matter to CBI including inter state or transnational ramifications.
The evidence collection in this case may involve more than one state.6
Reason regarding local/state police not being in a position to investigate the matter.
Some of the persons against whom allegations have been made may travel to other states and it will be difficult for the state police to effectively collect evidence of irregularities in this case.7
Whether the State Govt. will be ready to place resources man power and logistic support including camp office and vehicles at the disposal of CBI, in case required, in connection with the investigation of the case.
Yes.
2.5 The petitioners contend that the Chairman of the Uttar Pradesh State Staff Selection Commission alongwith Members resigned in April 2017 for unknown reasons. Similarly, the Chairman alongwith Members of the Uttar Pradesh Higher Education Services Commission also resigned for unknown reasons in the month of August 2017. Having so stated, the petitioners, i.e. the Chairman and Members of UPPSC, in the writ petition, have stated that since they did not resign as the others and having realised that they cannot be removed without taking recourse to the procedure contemplated under Article 317 of the Constitution of India, respondent no.4 - the then Chief Secretary of the Government of Uttar Pradesh, called the Chairman on 03.04.2017 and counseled him to resign alongwith other Members of UPPSC. They, however, declined do so, since, the request made by respondent no.4 was absolutely illegal and he had no authority in law to make such a request. It is further alleged that, being upset by the decision of the Chairman and the Members in not offering their resignations, respondent no.4 called the Secretary of UPPSC and directed him to stop all ongoing interviews and also to withhold all results. According to the Chairman, respondent no.4 also telephoned him and directed to stop all ongoing interviews. Though, initially the Chairman declined to accede to the request/command, in view of immense pressure in the nature of threat, they had to stall all ongoing selection process. The results were also put on hold. In this backdrop, the petitioners alleged, the Government evolved a novel method to pressurize the Chairman and Members of UPPSC to exit from the office. It is further alleged that in this design, the State Government got certain complaints generated and fabricated against the functioning of UPPSC. Respondent no.4, then called a meeting on 25.05.2017, which, according to the Chairman, he attended unwillingly alongwith the Secretary and Controller of Examinations of UPPSC. During the meeting, as stated in paragraph 27 of the petition, respondent no.4, assisted by the Principal Secretary (Karmik), mentioned about the allegations made against the Commission and asked them to submit a point wise report. It is specifically stated in this paragraph that though the allegations against the functioning of UPPSC were made by respondent no.4, he did not furnish any complaint or proof which formed the basis of allegations. Pursuant to the meeting dated 25.05.2017, the UPPSC prepared a report and sent it to the State Government, with its covering letter dated 01.06.2017, alongwith all relevant records.
2.6 The petitioners, in paragraph 31 of the writ petition, state that on 20.07.2017, the Special Secretary, Government of Uttar Pradesh, sent a fax message to the Secretary, UPPSC, requesting him to attend a meeting at 6.30 p.m. in his chamber on 21.07.2017. In pursuance thereof, the Secretary and the Controller of Examinations attended the meeting in which the Chief Secretary told them to resume interview process and also to declare results, if any.
2.7 In this backdrop and having realised that neither the Chairman nor Members of UPPSC were prepared to resign, according to the petitioners, the Government took a decision and in pursuance thereof, the Principal Secretary (Home), Government of Uttar Pradesh (Mr. Arvind Kumar) addressed a letter to the Secretary, Ministry of Personnel, Public Grievances & Pension, Government of India, New Delhi dated 31.07.2017, requesting to hold a detailed enquiry/investigation through CBI and accordingly the impugned notification dated 21.11.2017 came to be issued.
3. Two supplementary affidavits have been filed on behalf of the petitioners. The first is filed by the Chairman, wherein the letter dated 31.07.2017, issued by the State Government, requesting enquiry/investigation through CBI has been specifically referred to. In paragraph 4 of the supplementary affidavit, the Chairman has stated that on 11.08.2017, UPPSC, in its meeting, passed a resolution to file a writ petition before this Court against CBI enquiry. It is further stated that the Chairman was questioned by the Chief Secretary of the Government of Uttar Pradesh as to how he could file a writ petition without prior permission of the State Government. In the second supplementary affidavit, the Under Secretary of the petitioners stated that in none of the writ petitions filed so far against UPPSC, allegations of corruption are made against them and, therefore, there exist no justification for initiating CBI enquiry/investigation against UPPSC as a whole. He has also stated that the constitution of Commission has changed from time to time on various occasions and as many as two Chairmen and three Members had retired between the relevant period, and therefore, there is no justification in holding enquiry/investigation against the UPPSC as a whole.
4. Respondent no.2 - State, in their counter affidavit dated 18.01.2018 have not only denied all allegations made in the writ petition, including the allegation that the Chief Secretary held meeting with the Chairman and pressurized him and Members of UPPSC to resign, on 03.04.2017 and that they generated and fabricated complaints, but have also stated, in detail, the backdrop against which the State Government was left with no option but to seek CBI investigation/enquiry into affairs of UPPSC during the relevant period. We have already reproduced paragraphs 8, 9, 10 and 11 of their counter affidavit in which they have, in detail, stated the backdrop against which such a request was made to the Government of India for CBI enquiry/investigation.
5. The Chairman of UPPSC has filed rejoinder affidavit dated 31.01.2018 to the counter affidavit filed on behalf of respondent no.2, denying all allegations and justifying whatever has been stated in the writ petition. They have also made detailed reference to the communication dated 01.06.2017 addressed to the Chief Secretary, denying the allegations and stating their point wise reply to the allegations into scaling, irregularities in interview, changing of answer booklets, leaking of question papers, violation of rules relating to reservation and awarding more marks to candidates belonging to a particular region. Thereafter, in the rejoinder, the Chairman has also stated that there exist no material against the UPPSC to hold enquiry/investigation into the so called illegalities/irregularities committed by UPPSC during that period. He has also made reference to relevant Articles of the Constitution of India and also provisions of the Uttar Pradesh State Public Service Commission (Regulation of Procedure) Act, 1985 (for short 'Act, 1985').
6. Respondent nos. 1, 2 and 3 have also filed counter affidavits, supplementary affidavits and also reply affidavits, denying the allegations made against them and also justifying their decision to hold enquiry/investigation into the affairs of UPPSC regarding illegalities/irregularities committed during the relevant period.
7. Shri Julio F. Ribeiro, Ex. DGP, Punjab & Ors. had filed a public interest litigation, bearing PIL No. 51911 of 2015, seeking direction to the Central Bureau of Investigation or any other independent central investigating agency to conduct a thorough enquiry/investigation into the selections held during the tenure of the then Chairman of UPPSC Dr., Anil Kumar Yadav. That writ petition was disposed of as withdrawn vide order dated 03.01.2018, since the impugned notification had been issued, with liberty to seek intervention in the instant writ petition. Accordingly, intervention application has been filed, alleging rampant corruption and illegal selections in breach of the objective of Article 320 of the Constitution against the UPPSC. In the intervention application, it is alleged that, with effect from 2012, the UPPSC entered into wide scale illegal selections with nefarious objective to fulfill political manifesto as well as to promote parochial menace in the subordinate services of the State and thereby blatantly violating the fundamental rights. In the intervention application, they have quoted several instances of illegalities/irregularities committed by UPPSC. We would not like to make reference to all of them and suffice it to quote the relevant averments made in 6 sub-paragraphs of Paragraph 15 of the intervention application, which read thus:
"15(i) That the result for the post of Assistant Prosecution Officer (Special Recruitment) Examination 2007 was declared by the Commission on 22.4.2014. In the aforesaid result, one candidate namely Sri Phool Singh Yadav was declared successful under the category of Schedule Caste Candidates. When this illegality came to the notice grievance was raised before the Commission. Apart from Phool Singh Yadav another candidate Hari Dutt Singh was also selected in Schedule Caste Category though he belongs to the O.B.C. On the complaint being made and found correct Hari Dutt Singh was shifted to the O.B.C. category and last selected candidate in the O.B.C. category Bhram Murti Yadav was selected from the select list and lone candidate Manoj Kumar Gautam was included in the select list of S.C. category. The Commission had committed gross illegality in the selection process and it was manifest on the face of record. This information had been provided by the commission by means of press release dated 16.5.2014. No Revise result had been published or declared by the Commission while Phool Singh Yadav who had been shown in the select list as schedule caste candidate continued in the same category. It is also made clear that the cut off marks of the A.P.O. special Recruitment Examination have not been declared by the commission till date.
15(iv) That every step of the then Chairman was motivated to promote parochialism, favouritism and corruption in the selection for extraneous consideration and therefore the commission while calling for the interview in pursuant to the advertisement no. 3/12-13 dated 16.6.2012 for the post of Economics and Statistics Officer in the State Planning institute UP called 9.5 General Category Candidates against 1 post, 10 Schedule Caste candidates against 1 post, 7 Schedule Tribe Candidates against 1 post whereas in the O.B.C. category arbitrarily called 21.5 O.B.C. candidates against 1 post, thus enlarging the scope of selection of O.B.C. candidates. The arbitrary action of the commission was challenged by means of Writ Petition no. 58172 of 2013; entertaining this writ petition the Hon'ble Court was pleased to pass an interim order dated 23.10.2013. The most objectionable part committed by the Commission is that, it issued a press-release no. C4/01/S-2/D/2011-12 dated 21.10.2013 and tried to justify their action referring to the Resolution dated 27.05.2013 which they had already denounce by means of Resolution dated 26.07.2013 and had filed a Supplementary Affidavit before this Hon'ble Court itself. The Copy of the Hon'ble Court order dated 23.10.2013 and the press release of the Commission dated 21.10.2013 is being filed herewith and marked as Annexure No.6 to this affidavit.
15(viii) That the entire functioning of the Commission under the Chairmanship of Dr. Yadav as demonstrated above was arbitrary and in contravention to the Constitutional provisions, Act and the Rules and motivated to promote parochialism, favoritism and corruption in the selection for extraneous consideration. In fact, during the tenure of Dr. Yadav the Commission had functioned as a private limited, in the year 2013 the result of Provincial Combined Civil Services Examination 2011 were declared. Higher marks in interview were awarded selectively for extraneous considerations. As per the news item published in the news magazine namely India Today, the average marks awarded in the interview of P.C.S examination of 2011 are mentioned category wise as below:
Gen. Category OBC Category SC/ST category Yadav Community 115 110 105 138 15(xii) That it is alleged that a corruption of the magnitude approximately of Rs. 800 Crore had been involved in the selection made through direct Interview only during the period of 2-4-2013 to 31-7-2015; Dr. Yadav has conducted more than 236 examinations by way of only interview. The Hon'ble Apex Court in the case of Ajay Hasiya Vs. Union of India reported in 1981 (1) SCC 7 has been pleased to hold that the selection only on the basis of interview are vitiated, since interviews are highly subjective and impressionistic while the result is likely to be influenced by the predilections, prejudices, attitude (Preconceived Notions) and Approaches (Idiosyncrasies) of the Board members, furthermore the discrimination, parochialism, manipulations and corruptions of the interview Board (Selecting Body) is remain undetected under the cover of interview. It is submitted that the recruitment by means of interview for extraneous consideration during the Chairmanship of Dr. Yadav had reached its zenith.
15(xiii) That during the tenure of Dr. Yadav, the Commission had held a selection for the post of Lecturer Zoology. For the said post 43 candidates were called for interview wherein out of total 14 selected candidates 9 have been selected from the OBC category. It is pertinent to point out that out of said 9 selected candidates 4 candidates namely 1. Sanjeev Kumar Yadav 2. Satendra Kumar, 3. Brijesh Kumar Maurya and 4. Kamlesh Kumar Yadav are not having their name in the list of candidates called for interview. This alone is sufficient to demonstrate that the commission was functioning arbitrarily at the whims and fancy of the erstwhile Chairman of the Commission.
15(xvi) That in another case one candidate namely Suhasni Bajpai bearing Roll No. 164614 had appeared in the P.C.S. Examination 2015 in General Category, despite she had qualified mains examination but due to unknown reasons she has not been called for interview, however after interference of the media and the Prime Minister of India a fanciful process has been adopted by the Public Service Commission and she has been called for interview and declared her unsuccessful, the relevant papers pertaining to Suhasni Bajpai is enclosed as Annexure No.9 to this affidavit."
7.1 It is specifically contended by the intervenors that the process of selection adopted by UPPSC from 2012 - 17 had been such that the general public has lost faith in the Commission.
8. The petitioners have also filed exhaustive reply to the intervention application and denied allegations made therein and, insofar as the allegations reflected in para 15 (i) are concerned, they have stated that the discrepancies, as indicated in the said paragraph, arose on account of a human error on the part of clerical staff of UPPSC and no mala fide can be attached to such action. They have also made an attempt to explain the allegations in the afore-quoted paragraphs in the intervention application.
8.1 At this stage, we make it clear that we are not examining correctness of the allegations or the explanation offered by petitioners, nor are we making any direct or indirect observation about and against the past and present Members and Chairmen of UPPSC. We have made specific reference to the materials referred to above only to demonstrate the nature of allegations against the UPPSC during the period 2012-17, including the allegations against the erstwhile Chairman Dr. Anil Kumar Yadav, which seems to have prompted the State Government to seek CBI enquiry/investigation into their affairs.
9. We have heard learned counsel for the parties at considerable length and, with their assistance, gone through the entire materials placed before us, including the judgments of the Supreme Court, High Courts and also the provisions of the Constitution and other enactments.
10. Mr. Shashi Nandan, learned Senior Counsel appearing for the petitioners, at the outset, submitted that a Public Service Commission under the Constitution, enjoy absolute and special status and their functioning cannot be examined by the State Government in any manner, whatsoever. The State Government cannot exercise any jurisdiction or control over the Public Service Commission. If, at all, he submitted, the Government has any grievance against the working of UPPSC, the Governor, on the recommendation of the State Government, can approach the President of India to make reference to the Supreme Court under Article 317 of the Constitution. Holding an enquiry/investigation through CBI or any other agency for that matter, would amount to interference in the functioning of the Public Service Commission and also bypassing the procedure contemplated under Article 317 of the Constitution, for removal of its Chairman and Members. In other words, he submitted that CBI enquiry against UPPSC is actually an enquiry against the Chairman and its Members and, therefore, it is not sustainable in law in view of the scheme of Article 317 of the Constitution. He submitted that, in any case, there is absolutely no material against UPPSC to conduct a fishing enquiry into their functioning, either at the behest of the State Government or any other authority, in view of the peculiar status conferred on Public Service Commissions under the Constitution of India. The decision to hold an enquiry/investigation, he submitted, is an outcome of mala fides, on account of refusal of the Chairman and the Members to submit their resignation.
10.1 He also invited our attention to the judgment of this Court in Ram Sewak & Ors. Vs State of U.P. & Ors. (Civil Misc. Writ Petition No. 46110 of 2008), 2010 (6) ADJ 534, decided on 23.09.2010, and submitted that identical question arose for consideration of the Division Bench of this Court, which took a view that holding vigilance enquiry by the State Government against the Chairman and Members of UPPSC is impermissible and is colourable exercise of power, and it was initiated just to pressurize the Chairman and Members of the Commission to obey the command of the Government. He submitted that this judgment has attained finality and the view taken by the Division Bench is binding on this Court 10.2 Mr. Shashi Nandan also invited our attention to the term 'Commission' as defined by clause (b) of Section 2 of Act, 1985 and also to Section 3(1) alongwith Article 317 of the Constitution, to contend that no proceedings against the Chairman and Members of Public Service Commissions can be conducted by any authority, except the Supreme Court on a reference made to it by the President of India. He submitted that Article 317 is clear and in view of the scheme thereof, holding an enquiry into allegations of misbehavior of the Chairman/Members of the Public Service Commission is not permissible by any other authority, including the CBI. In other words, he submitted that holding an enquiry into the affairs of UPPSC, would also ultimately result into holding an enquiry into the conduct of the Chairman and Members of the Commission. He submitted that no enquiry/investigation of whatsoever nature can be conducted against the Chairman, including into the allegation of criminality, unless enquiry contemplated under Article 317 of the Constitution is held and concluded. Then, he also referred to the judgment of the Punjab & Haryana High Court in Haryana Public Service Commission Vs. State of Haryana, (2005) 141 PLR 486, and submitted that since the Special Leave Petition filed against the said judgment was dismissed as withdrawn, it cannot be stated that it attained finality inter se between the parties and in any case it cannot be said that the position of law, as stated in the said judgment, has been approved by the Supreme Court. He then submitted that the question as to whether CBI enquiry at the behest of the State Government can be conducted against the UPPSC has not been decided in the case of Mehar Singh Saini, Chairman, Haryana Public Service Commission, Reference No. 2 of 2008, decided on 12 November 2010, (2010) 13 SCC 586.
10.3 Mr. Shashi Nandan submitted, insofar as the present case is concerned, there is absolutely no material on record so as to justify initiation of CBI enquiry against UPPSC as such and every examination is always subject to allegations and counter allegations on behalf of candidates who fail to achieve minimum qualifying marks. It is clear from the facts of the present case that the Government has not applied its mind to the material on record, justifying CBI enquiry against UPPSC. He lastly submitted that the impugned enquiry is politically motivated and has been issued only after the present Government came into power, failed to coerce the Chairman and Members to resign from the posts. The notification in question has been issued to achieve political mileage out of the same. Lastly, he submitted that if the impugned notification is upheld, the same would form a bad precedent.
11. Mr. Manish Goyal, learned Additional Advocate General, on the other hand, submitted that, in view of very serious complaints received from different corners against the working of UPPSC and in view of a large number of petitions filed in this Court, making allegations against the Commission, and orders passed in those petitions, the State Government was left with no option but to order enquiry/investigation into their affairs through CBI. He submitted that the State has complete power to order enquiry/investigation with respect to the affairs of Public Service Commission which discharges its functions under Article 320 of the Constitution. No constitutional protection, he submitted, is afforded to the Chairman or the Members of Public Service Commissions against any such enquiry, either by the State or by an independent agency, like CBI or even for registration of criminal offence against the Chairman/Member(s) of the Commission or its any other official. He submitted that there is no constitutional protection as such available to the Chairman or Members of Public Service Commission from being investigated for criminal offence, if any, committed by them while holding the office of Chairman/Member. He submitted that no such immunity has been read by the Supreme Court under any of the provisions contained in the Constitution of India dealing with Public Service Commissions or dealing with references under Article 317 of the Constitution. He, after referring to few judgments of the Supreme Court, to which we propose to make reference in the course of this judgment a little later, submitted that those judgments would demonstrate that there is absolutely no bar in even registering an offence against the Chairman/Member(s) or against the Public Service Commission as a whole. He submitted that the scope of enquiry under Article 317 (1) of the Constitution is entirely different and does not have a consequence to oust enquiry into criminal offence, if any, committed by the Commission. In other words, he submitted that the enquiry contemplated under Article 317 is only into "misbehaviour" of the Chairman/Members of a Public Service Commission for the purpose of their removal, and so far as an enquiry of any other kind, including the enquiry/investigation contemplated by the impugned order, into the allegations of a criminal nature against any person concerned/connected with the Public Service Commission. He submitted that, in the present case, no investigation/enquiry is directed against the Chairman or Members of UPPSC but the enquiry is into the affairs of the Public Service Commission as a whole and, in the course of enquiry, if it is found that a criminal offence is made out even against the Chairman/Member, it is open to the CBI to register an offence and carry out further investigation and take it to its logical end. Insofar as the enquiry contemplated under Article 317 is concerned, while making reference to the Supreme Court, the President requires to record prima facie satisfaction on the basis of the material placed before him, and it may consist of the materials collected in the course of any enquiry, including the enquiry/investigation by CBI, as, in the present case, to get prima facie convinced and to make reference to the Supreme Court under Article 317 of the Constitution. In short, he submitted that there is absolutely no bar in conducting an enquiry into the allegations of criminal nature against the Chairman and Members of Public Service Commissions, involving their honesty and integrity, in discharging their functions entrusted under Article 320 of the Constitution. He made reference to several judgments in support of his contentions, to which we would make reference at appropriate stage in the course of this judgment. Insofar as the judgment of this Court in Ram Sewak (supra) is concerned, Mr. Goyal submitted that the said judgment is Per-Incuriam and it cannot be treated as binding precedent, since it was delivered without analysing the settled position of law and without noticing the difference between the enquiry under Article 317 and the enquiry into criminal offence allegedly committed by a Member of Public Service Commission or its officials.
12. In this backdrop, a short yet important question that falls for our consideration is whether CBI at the instance of the State Government, can conduct enquiry/investigation into the serious allegations/complaints against UPPSC as a whole, and whether the Chairman and/or Members of the Commission can claim complete immunity in the light of the scheme of Article 317 of the Constitution.
13. The Constitution, in Part XIV, provides for establishment of the Union and State Public Service Commissions with the primary object of providing equal opportunity to the people of India in matters relating to appointment. Establishment of these Commissions is one of the important facets of the constitutional scheme. Public Service Commissions are expected to adopt a fair and judicious process of selection to ensure that deserving and meritorious candidates are inducted to the services of the State. This should not only be done but also appear to have been done [see Mehar Singh Saini, (supra)]. The Supreme Court in Inderpreet Singh Kahlon Vs. State of Punjab, (2006) 11 SCC 356, observed that the Founding Fathers of the Constitution perhaps, in their wildest dreams, could not have visualised that the people, who are expected to strictly adhere to the constitutional values and guide the destiny of the nation, in times to come, would malign and denigrate the system to such an extent that for their grave misdeeds, the constitutional authority itself, in the larger public interest, would be required to be put behind the bars. The framers of the Constitution created some constitutional institutions to uphold the constitutional values, Public Service Commissions being one of them and, with a view to uphold the dignity and independence of the Public Service Commission, the salaries, allowances and pensions payable to the members or staff of the Commission, are directed to be charged on the Consolidated Fund of India and/or of the States. In Re Dr. Ram Ashray Yadav, Chairman, Bihar Public Service Commission (Special Reference No. 1 of 1997, decided on 29 March 2000), AIR 2000 SC 1448, the Supreme Court observed that the Founding Fathers of the Indian Constitution relying upon the experience in other countries wherever democratic institutions exist, intended to secure an efficient civil service. This is the genesis for setting up autonomous and independent bodies like the Public Service Commission at the Centre and in the States. The values of independence, impartiality and integrity are the basic determinants of the constitutional conception of Public Service Commissions and their role and functions.
14. Keeping the observations made by the Supreme Court in view, we would now like to look into the relevant Articles of the Constitution in Part XIV. The constitutional scheme contained in Articles 315 to 320 in Part XIV, noticeably demonstrates not only the complete independence of Public Service Commissions in discharge of their functions, but also ensures complete security and protection of tenure to its Chairman/Members. Article 315 provides for constitution of Public Service Commission for the Union and a Public Service Commission for each State or for two or more States, if they so agree and if a resolution to that effect is passed by the House of the legislature of each of those States. Further reference to this Article may not be necessary for our purpose. Article 316 provides for appointment and term of office of Members of Public Service Commissions. Article 317 provides for the procedure for removal and suspension of a Member of a Public Service Commission. It would be advantageous to reproduce Article 317 so as to examine the contentions raised before us by learned counsel for the parties and to understand the constitutional scheme contained in Articles 315 to 320 better. Article 317 reads thus:
"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 inquiry 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 member, as the case may be,-
(a) is 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, unfit to continue in office by reason of infirmity of mind or body.
(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 misbehaviour."
14.1 From bare perusal of Article 317, it is clear that it provides that, subject to the provisions of clause (3), (i) the Chairman or any other Member of a Public service Commission can be removed from his office only by the order of the President on the ground of misbehaviour and (ii) the order of removal can be passed after the Supreme Court has on inquiry reported to the President that the Chairman or the Member of a Public Service Commission is guilty of misbehaviour and ought to be removed from his office on that ground. This Article does not define misbehaviour or enumerate what acts would constitute misbehaviour, except that clause (4) thereof makes an improvement in specifying misbehaviour, namely being interested in any government contract. Outside clause (4), as observed by the Supreme Court in Reference No. 1 of 2003, decided on November 10, 2008, (2009) 1 SCC 337, it is left to the Supreme Court to determine whether any particular act or conduct is of such a nature as to warrant the removal of the Chairman or Member on the ground of misbehaviour. Ordinarily, bribery, corruption or the like should be regarded as misbehaviour. But, as observed by the Supreme Court in the said judgment, there is no limitation prescribed by the Constitution itself.
14.2 Thus, a plain reading of Article 317 shows that the constitutional protection for the term of office of Chairman and Members of the Commission is provided to ensure independent functioning of the Commission. The working of the Commission and its Members has to be of impeccable integrity and rectitude, as observed by the Supreme Court in Mehar Singh Saini (supra). The object of the Commission should be to provide the best persons from available candidates for appointment in the States/Central cadres. The Members of a Public Service Commission are expected to, in the process of selection, adopt a judicious, fair and transparent method of selection, free of influence from any quarter in the Government or otherwise. That is why a very cumbersome process has been provided under Article 317 of the Constitution for removal of the Chairman and Members of the Commission.
14.3 The Members of the Commission cannot be subjected to regular departmental inquiries and can only be removed from their office by strictly complying with the provisions of Article 317 of the Constitution. Article 317 contemplates removal of the Member, as is seen from its bare perusal, on two different grounds. First, where a Chairman or Member could be removed on the ground of "misbehaviour" by the President only after making a reference to the Supreme Court and where the Supreme Court has given a report, after holding inquiry in accordance with the prescribed procedure. Second, by reason of automatic disqualification as provided under Article 317 (3) and (4).
14.4 Making reference to the Supreme Court under Article 317 (1) of the Constitution invokes the Reference/Advisory jurisdiction of the Supreme Court. In the scheme of the Constitution relating to this aspect, it is clear that, before the reference can be made to the Supreme Court, certain procedure is required to be satisfied. The Governor, acting on the advice of the State Government, would request the President for taking steps for removal of a Member in accordance with the provisions of Article 317 (1) of the Constitution. There is a requirement of proper application of mind by the President while making a reference to the Supreme Court and that reference to the Supreme Court would be made only where the President is satisfied that a prima facie case of "misbehaviour" is made out. (See Mehar Singh Saini, in Reference No. 2 of 2008).
14.5 Article 317 (1) requires that the enquiry held by the Supreme Court should be in accordance with the procedure prescribed in that behalf under Article 145 of the Constitution. Article 145 specifically empowers the Supreme Court to frame rules, with the approval of the President of India, for regulating generally the practice and procedure of the Supreme Court. Article 145, in particular clause 1(j), specifically empowers the Supreme Court to frame rules, with the approval of the President of India, to regulate the procedure for enquiries referred to in clause (1) of Article 317 of the Constitution. Thus, from the scheme of Article 317, it appears to us that the procedure contemplated there under is only for the purposes of removal and suspension of the Chairman or any other Member of a Public Service Commission on the ground of "misbehaviour".
15. Article 319 provides for prohibition as to the holding of office by Members of Commission on ceasing to be such Members and Article 320 speaks about functions of Public Service Commissions. Further reference to these and to the remaining Articles in Part XIV may not be relevant for our purpose.
16. The United Provinces Public Service Commission, before the Constitution was brought into force, was constituted under the provisions of Pre-Independence Government of India Act, 1935. In exercise of the powers under sub-section (2) of Section 265 of the said Act, Regulations, namely, United Provinces Public Service Commission (Conditions of Service) Regulations were framed determining the number of Members of United Provinces Public Service Commission, their tenure of office, conditions of service etc. Though some of the provisions similar to the provisions in Part XIV of the Constitution find place in this Act, no provision akin to Article 317, providing procedure for the removal of the Chairman/Members of the Public Service Commission, find place in the said Act. After the Constitution, Public Service Commissions were constituted under Article 315 of the Constitution. The State legislature, in exercise of the powers under Article 200 and clause (3) of Article 348 of the Constitution enacted the Act, 1985, to provide for certain matters relating to the procedure of the Public Service Commission and the conduct of business. The Act, 1985 defines 'Commission' by clause (b) of Section 2 to mean 'the Chairman and all other Members collectively, of the Uttar Pradesh Public Service Commission'. Section 13 thereof provides for the protection of actions taken by the Chairman/Members and officers of the Public Service Commission in "in good faith" in exercise of any powers, duties or functions conferred or assigned by or under the Constitution or the Act, 1985 or the rules made thereunder.
17. Before we proceed further, we would like to have a glance at the judgments strongly relied upon by learned counsel for the parties.
17.1 The Supreme Court in Reference under Article 317(1) of the Constitution (Special Reference No. 1 of 1983), (1983) 4 SCC 258, considered the issue of removal of Gopal Krishna Saini, Member, Punjab Public Service Commission, who had assaulted Smt. Santosh Chowdhary, Chairman, Punjab Public Service Commission, inasmuch as he had slapped her on the face in the presence of three other Members of the Punjab Public Service Commission. It appears from the contents of the judgment, that the President of India, in order to prima facie satisfy that the allegations made require to be enquired into by the Supreme Court, had relied upon the statements of four persons, including three Members of the Commission, recorded before the reference, in order to justify that a prima facie case exists for an enquiry and report by the Supreme Court. The Supreme Court, while considering the reference, dealt with the arguments that under Article 317 (1), the Supreme Court ought not to embark upon an examination of facts and that its function is limited to determine whether the person concerned is guilty of misbehavior and whether the misbehaviour is of such a nature so as to justify his removal is in direct opposition to the plain words of this Article, and made following observations in paragraphs 7 and 8 of the judgment:
"7. The argument that in a reference under Article 317(1) this Court ought not to embark upon an examination of facts and that its function is limited to determining whether the person concerned is guilty of misbehaviour and whether the misbehaviour is of such a nature as to justify his removal is in direct opposition to the plain words of Article 317(1). That Article provides that, subject to the provisions of clause (3), (i) the Chairman or any other Member of a Public service Commission can be removed from his office only by the order of the President on the ground of misbehaviour and (ii) the order of removal can be passed after the Supreme Court has on inquiry reported to the President that the Chairman or the member of a Public Service Commission is guilty of misbehaviour and ought to be removed from his office on that ground. The inquiry which this Court is required to hold is not into the limited question whether, on the basis of facts found by the President, the charge of misbehaviour is made out and whether the misbehaviour is of such a nature as to warrant the removal of the person from his office. The inquiry contemplated by the article is into the facts themselves and facts also so as to enable this Court to pronounce upon the question whether the allegations made against the Chairman or Member are proved at all. The purpose of Article 317(1) is to ensure the independence of Members of the Public Service Commissions and to give them protection in the matter of their tenure. The Judges of the Supreme Court can be removed from their office only in accordance with the procedure prescribed by Article 124 (4) which is made applicable to the Judges of High Courts, the Comptroller and Auditor General of India and the Chief Election Commissioner by Articles 218, 148 and 324 (5) respectively. Members of Public Service Commissions are, in one sense, given a higher degree of protection by the elimination, as far as possible, of political pressures in the matter of their removal. Any allegation of misbehaviour made against them has to be examined by the Supreme Court on merits unlike the allegations made against those others whose removal on the ground of proved misbehaviour or incapacity depends upon the will of the Parliament. It is impossible to accept that the Supreme Court in one case and the Parliament in the case of those others are entrusted by the Constitution with the limited power of determining whether the facts found by some other body establish misbehaviour in one case and misbehaviour or incapacity in those others. Their function is to find upon facts and their duty is to pronounce whether the facts found by them establish the charge of misbehaviour or incapacity, as the case may be.
8. The apprehension expressed by the learned counsel that the finding recorded by this Court will automatically decide the fate of a prosecution or of a civil suit for damages is real but, that is as it ought to be. No grievance can legitimately be made that an examination and assessment of facts is made by this Court instead of being made by a Magistrate or a Munsif. If a full opportunity is given to the parties to prove and rebut the facts in issue as in a regular trial, it is an idle complaint that the evidence has been examined and found upon by the Supreme Court and not by a court of first instance. If, after giving a full opportunity to both the sides, the Supreme Court comes to the conclusion that the facts alleged are established, the conviction or a decree for damages may follow as a matter of course. But then, a contrary finding by this Court will equally seal the fate of those proceedings. There is, therefore, no unfair advantage to either side if the questions of fact are decided by this Court straightaway. If the essential safeguards of a fair adjudication are observed, no grievance can be made that the facts which establish the charge of misbehaviour are found by the highest Court of the land and not by the lowest."
(emphasis supplied) 17.2 While dealing with the reference, the Supreme Court also considered the questions as regards the procedure which the Supreme Court should adopt in a reference made by the President under Article 317 (1) of the Constitution; whether the Supreme Court should pronounce its opinion on the allegations made against the Member on the basis of the affidavit only; or whether the Supreme Court should permit the parties to cross-examine persons who have filed their affidavits; and the Supreme Court should have the evidence recorded in its presence or whether the Supreme Court can and should appoint some responsible delegate for doing so. We are not concerned with these questions and, therefore, not making any further reference to the findings recorded by the Supreme Court on these questions. The Supreme Court, thus, after answering the aforementioned questions, directed the parties to appear before the Additional District and Sessions Judge for recording of evidence, with further direction to remit the evidence to the Registrar (Judicial) of the Supreme Court immediately after the entire evidence was recorded.
17.2.1 After the evidence was remitted to the Supreme Court, in Special Reference No. 1 of 1983, the Supreme Court finally decided the same vide judgment dated 3 August 1990, [(1990) 4 SCC 262], holding that Shri Saini's conduct amounted to misbehaviour within the meaning of Article 317 (1) of the Constitution and it rendered him liable to be removed from the office of the Member of the Public Service Commission. The relevant observations in concluding paragraph of the judgment, read thus:
"31. Now the question is whether Sri Saini deserved to be removed on account of his conduct. Persons occupying high public offices should maintain irreproachable behaviour. A certain minimum standard of code of conduct is expected of them. What may be excusable for an uneducated young man cannot be tolerated if a Member of a Public Service Commission is involved. Besides, it has to be remembered that the respondent and the Chairman were not thrashing out a personal matter or a private dispute. ..."
(emphasis supplied) 17.2.2 In this judgment, the Supreme Court also dealt with the question whether, after the expiry of a Member's tenure, reference can be addressed and it was answered in the affirmative.
17.3 In Reference No. 1 of 2003 (supra), the Supreme Court held enquiry into the charges levelled against Dr. H.B. Mirdha, who was the Chairman of Orissa Public Service Commission. While dealing with the world "misbehaviour" as employed in Article 317 of the Constitution, in paragraphs 28 and 30, observed thus:
"28. Article 317, like Article 124(4) does not define misbehaviour or enumerate what acts would constitute misbehaviour except that clause (4) of Article 317 makes an improvement in specifying misbehaviour, namely, being interested in any government contract. Outside clause (4), it is left to the Supreme Court to determine whether any particular act or conduct is of such a nature as to warrant the removal of the Chairman or Member on the ground of "misbehaviour". Ordinarily bribery, corruption and the like should be regarded as such "misbehaviour". But there is no limitation prescribed by the Constitution itself.
30. In Article 124 (4) "misbehaviour" means wrong conduct or improper conduct. It has to be construed with reference to the subject-matter and the context wherein the term occurs, having regard to the scope of the Act or the statute under consideration. Every act or conduct or error of judgment or negligence by a constitutional authority per se does not amount to misbehaviour. Misconduct implies a creation of some degree of mens rea by the doer. Willful abuse of constitutional office, willful misconduct in the office, corruption, lack of integrity or any other offence involving moral turpitude would be misbehaviour. Judicial finding of guilt of grave crime is misconduct. Persistent failure to perform duties or willful abuse of the office would be misbehaviour. On the facts and in the circumstances of the case this Court is of the opinion that Charge 1 that Dr. Mirdha, who was the Chairman of OPSC, committed misbehaviour by not informing that his two married daughters were to appear in the examination is not proved." (emphasis supplied) 17.3.1 In this case, on the basis of a representation received, the Governor of Orissa had made an initial reference to the State Government to take appropriate action. After preliminary enquiry, the State Government, at the level of the Chief Minister, requested the Governor to recommend to the President of India to make reference to the Supreme Court under Article 317(1) of the Constitution. Thus the enquiry was held before making request to the Governor to recommend to His Excellency the President of India to make reference to the Supreme Court under Article 317(1) of the Constitution.
17.4 In Reference No. 1 of 2006, decided on July 8, 2009, (2009) 8 SCC 41, the Supreme Court considered whether Shri Ashok Darbari, Chairman of Chhattisgarh Public Service Commission ought to be removed from the office of Chairman of the Commission on the ground of misbehaviour. The Supreme Court considered Articles 315 and 317 of the Constitution and, in paragraphs 4, 5, 6 and 7, observed thus:
"4. The State PSC is constituted under Article 315 of the Constitution. The Constitution makers decided to have an independent body to recruit civil servants by open competition and with that object, an independent and impartial body was proposed to be constituted as the Public Service Commission. With a view to uphold the dignity and independence of the body, salaries, allowance and pension payable to the members of the staff of the Commission are to be charged on the Consolidated Fund of the State and the Chairman of the Public Service Commission is removable only by following the procedure laid down under the Constitution of India.
5. Under clause (1) of Article 317, the Chairman or any member of the 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 inquiry held in accordance with the procedure prescribed in that behalf under Article 145, on a report that the Chairman or such other member, ought to be removed from the office.
6. Article 317 of the Constitution does not define "misbehaviour" or enumerate what acts would constitute "misbehaviour". It is only after a fact-finding inquiry is held, it could be said whether the alleged acts committed by the Chairman amount to "misbehaviour".
7. The Chairman of the Public Service Commission is expected to show absolute integrity and impartiality in exercising the powers and duties as Chairman. His actions shall be transparent and he shall discharge his functions with utmost sincerity and integrity. If there is any failure on his part, or he commits any act which is not befitting the honour and prestige as a Chairman of the Public Service Commission, it would amount to misbehaviour as contemplated under the Constitution. If it is proved that he has shown any favour to the candidate during the selection process, that would certainly be an act of misbehaviour. The charges levelled against the Chairman of the Public Service Commission Shri Ashok Darbari are to be viewed in this background."
(emphasis supplied) 17.5 The observations made by the Supreme Court, while dealing with the Presidential Reference, in Mehar Singh Saini (supra), in paragraphs 7 and 8 are also relevant, which read thus:
"7. Great powers are vested in the Commission and therefore, it must ensure that there is no abuse of such powers. The principles of public accountability and transparency in the functioning of an institution are essential for its proper governance. The necessity of sustenance of public confidence in the functioning of the Commission may be compared to the functions of judiciary in administration of justice which was spelt out by Lord Denning in Metropolitan Properties Co. (FGC) Ltd. v. Lannon1 in the following words: (QB p. 599 F) "... Justice must be rooted in confidence; and confidence is destroyed when right-minded people go away thinking: `The Judge was biased."
8. The conduct of the Chairman and Members of the Commission, in discharge of their duties, has to be above board and beyond censure. The credibility of the institution of the Public Service Commission is founded upon faith of the common man on its proper functioning. Constant allegations of corruption and promotion of family interests at the cost of national interest resulting in invocation of constitutional mechanism for the removal of Chairman/Members of the Commission erode public confidence in the Commission. Prof. Brown and Prof. Garner's observation in their treatise French Administrative Law, 3rd Edn. (1983) in this regard can be usefully referred to. They said:
"The standard of behaviour of an administration depends in the last resort upon the quality and traditions of the public officials who compose it rather than upon such sanctions as may be exercised through a system of judicial control."
(emphasis supplied) We will further make reference to this judgment in detail little later.
17.6 In Jitendra Kumar & Ors. Vs. State of Haryana & Anr., (2008) 2 SCC 161, the Supreme Court dealt with the appeals arising out of a common judgment passed by a Division Bench of the Punjab & Haryana High Court, whereby and whereunder the writ petitions filed by the appellants praying, inter alia, for issuance of a writ of or in the nature of mandamus directing the respondents to issue letters of appointments to them on the premise that they had duly been selected in Haryana Civil Service and/or Allied Services pursuant to or in furtherance of the result declared by the Haryana Public Service Commission. The reliance was placed on behalf of the State on the observations made in the said judgment, in particular paragraph 37, to contend that an enquiry, even before reference, can be conducted by an agency, such as the Vigilance Bureau or CBI for that matter. The observations made in paragraph 37, read thus:
"37. It would be relevant to place on record that seven writ applications were filed by the unsuccessful candidates. Serious allegations had been levelled therein against the then Chief Minister Shri Om Prakash Chautala and the then Chairman of the Commission Shri K.C. Bangar. Some selected candidates have also been impleaded as party respondents therein. Purity of process of conducting of examination as an issue was raised threin. Even allegations of favouritism and use of political influence in favour of near and dear of the high-ups of the Government and the politicians were made. The matter indisputably is pending investigation by the Vigilance Bureau. The High Court, we are informed, has also directed to carry out an investigation. It may also be placed on record that the Commission was asked by the Vigilance Bureau to handover the records. Such an action on the part of the Vigilance Bureau was the subject matter of a writ petition filed by the Commission. The said writ petition has been disposed of by a judgment dated 12-8-2005, in which one of us (H.S. Bedi, J.) was a member. The said decision was reported in Haryana Public Service Commission v. State of Haryana2, paras 14 and 22 whereof read as under: (PLR pp. 491 & 494) "14. ...It is not in dispute that the enquiries now being conducted by the Vigilance Bureau pertain to certain past selections. From the communication received by the petitioner Commission, it appears that the action of the past Secretary, the past Chairman and certain other Officers/Officials of the Commission, are being probed with regard to the serious charges. Under any circumstances, the aforesaid enquiries cannot be taken to mean any erosion of the authority of the Commission or its independence. Even an expert and constitutional body like the Commission is supposed to perform its duties, fearlessly and carry out selections on the basis of the best merit available. However, if the aforesaid selections are alleged to be tainted and based upon consideration other than merit, the Commission cannot, in such circumstances, claim any immunity No body has a vested right to perpetuate illegality or hide a scandal. All selections made by public servants are supposed to be based upon competence, merit and integrity. The allegations to be contrary would not only erode the public confidence in the Commission but would also result in merit being a casualty. ...
* * *
22. ...It is, thus, apparent that an effort has been made by the Commission to protect its Chairman and the members, who for undisclosed reasons have chosen not to directly approach this Court. The Commission which is a constitutional body has unnecessarily filed the present petition to watch the interest of the Chairman and the member, who have chosen to remain behind the curtain. The Commission cannot equate itself, nor under the Constitution of India can it be so equated, with its Chairman and its members. The Commission has a distinct and a constitutional identity, independent of its Chairman and members. It is, thus apparent that the present petition has been filed at the instance of the Chairman and the members, although in the name of the Commission. We cannot put any seal of approval to this act of the Commission."
(emphasis supplied) 17.6.1 The observations made in paragraph 57 also may be relevant for our purpose, which read thus:
"67. We must before parting, notice a disturbing feature in this case. Whereas according to the Commission, the State has for all intent and purport made it a defunct body although no case therefor has been made out, the contention of the State, on the other hand, is that although in all the matters allegations made by the complainant have been found to be true but the enquiry cannot proceed as the Commission is not cooperating with the State Vigilance Bureau. Indisputably and as has been indicated hereinbefore, seven separate writ petitions were filed by unsuccessful candidates. Various complaints had also been received by the State. Four separate enquiries had been directed to be conducted by the State Vigilance Bureau. Allegations have also, rightly or wrongly, been made that the Commission had acted in undue haste. We although as at present advised do not intend to make any observations in regard to the allegations and counter-allegations made by the Commission and State against each other, we only hope and trust that a constitutional authority like the Commission should neither withhold any document nor refuse to cooperate with the State Vigilance Bureau in the matter of conduct of an enquiry. If the statements made by the Commission are correct, they have nothing to hide. It would be in the interest of all concerned including the appellants herein to see that the enquiry should be completed at an early date."
(emphasis supplied) 17.7 In Reference No. 1 of 2004, decided on May 17, 2007, (2007) 11 SCC 547, the Supreme Court considered the question whether a Member of Maharashtra Public Service Commission is liable to be removed from the office on the ground of misbehaviour. It appears, in that case, the concerned Member was arrested on 08.06.2003 in a crime registered in connection with a complaint relating to malpractices in respect of an examination conducted in the year 1999. Alongwith the Member, 21 others were also arrested. The concerned Member was also lodged in jail. That led to the Governor of Maharashtra to request the President of India to initiate action under Article 317 of the Constitution for her removal. She was also suspended from the office until an order had been passed by the President of India. In this backdrop, the Governor had made a request to the President by letter dated 05.08.2003 to initiate action under Article 317 and, in turn, the President of India had made reference to the Supreme Court by letter dated 13.12.2003. This sequence of events supports the submission made on behalf of the State that there could be an enquiry/investigation even against a Chairman/Member of Public Service Commission into the allegations involving criminal offence, even before making reference under Article 317(1) of the Constitution of India. The Supreme Court, while dealing with this reference in paragraph 17, observed thus:
"17. There is no doubt that the first respondent, Public Service Commission has clearly fallen from grace and the exalted status it enjoys under the Constitution. That one scam after another should erupt in respect of such a constitutional body is a very disturbing aspect. If constitutional institutions fail in their duties or stray from the straight and narrow path, it would be a great blow to democracy, a system of governance that we have given unto ourselves and the great vision our Constitution-framers had about the future of this country. During the course of our detailed enquiry, we also felt that it is possible that an attempt is also made not to expose everything in connection with the erupted scandal but to brush at least some of the aspects under the carpet. This is also an unhappy augury for the working of our institutions."
(emphasis supplied) 17.8 In U.P. Public Service Commission Vs. Suresh Chandra Tewari & Anr., [1987 UPLBEC 595], the Supreme Court considered the correctness of the order passed by this Court, and directed the Public Service Commission to comply with the order passed by the State Government on an appeal filed by Suresh Chandra Tewari against the order passed by the Commission in a disciplinary proceeding held against him. The relevant observations find place in paragraph 3 and paragraph 6 of the judgment, which read thus:
"3. Two contentions are urged before us on behalf of the Commission-(i) since the Commission, which is a constitutional authority, is not subordinate to the State Government, the State Government could not have heard the appeal filed against the order passed by the Commission in a disciplinary proceeding, and (ii) in any event the appeal should have been disposed of by the Governor himself and not by the Governor in accordance with the advice of the State Government.
6. .... On the facts and in the circumstances of the case we feel the contention of the Commission that an order passed by it in a disciplinary proceeding cannot be subject to an appeal, is untenable by virtue of Regulation 20 of the Uttar Pradesh Public Service Commission (Conditions of Service) Regulations, 1937 and Regulation 28 of the Uttar Pradesh Public Service Commission Staff Regulations, 1942. It may be that as held by this court in Hargovind Pant v. Dr. Raghukul Tilak and others, (1979) 3 SCR 972, the Commission may be a constitutional authority not subordinate to any other authority. But the orders passed by the Commission in disciplinary proceedings held against the members of its staff are subject to the appeal to the State Government under Rule 69 of the Civil Service (Classification, Control and Appeal) Rules read with Regulation 20 of the Uttar Pradesh Public Service Commission (Conditions of Service) Regulations, 1937. There is no ground for thinking that the independence of the Commission would be affected by the State Government exercising the appellate power in disciplinary matters as provided by Regulation 20. We, therefore, reject the first contention."
(emphasis supplied) 17.9 This Court, dealt with a public interest litigation in Satish Kumar Singh Vs. Dr. Anil Kumar Yadav, Chairman, UPPSC, Allahabad, 2016 (3) ALJ 8, calling into question the appointment of the Chairman of UPPSC (Dr. Anil Kumar Yadav). In writ petitions, a writ of quo warranto had been sought. While allowing the petitions, the Division Bench, presided over by Dr. D.Y. Chandrachud, CJ (as he then was), in paragraphs 17, 18 and 21, observed thus:
"17. These provisions particularly those which are contained in Article 320 emphasize the importance of the role which is performed by Public Service Commissions both at the Union and in the States. In the judgment in Ashok Kumar Yadav v. State of Haryana3, the Supreme Court emphasized the importance of the role which is ascribed to Public Service Commissions. While emphasizing the need to ensure that selections to the Commission of Chairperson and members must be of persons of eminence with a high degree of calibre, competence and integrity which would inspire confidence in the public about their objectivity and impartiality in making selection, the Supreme Court held as follows:
"30. ...It is absolutely essential that the best and finest talent should be drawn in the administration and administrative services must be composed of men who are honest, upright and independent and who are not swayed by the political winds blowing in the country. The selection of candidates for the administrative services must therefore be made strictly on merits, keeping in view various factors which go to make up a strong, efficient and people-oriented administrator. This can be achieved only if the Chairman and Members of the Public Service Commission are eminent men possessing a high degree of calibre, competence and integrity, who would inspire confidence in the public mind about the objectivity and impartiality of the selections to be made by them."
18. In a subsequent decision in re Ram Ashray Yadav4, the Supreme Court held that the position of the Chairperson of a Public Service Commission is in the nature of a constitutional trustee. The Supreme Court emphasized the unique position of the Chairperson as well as of members of Public Service Commissions and placed a high value on the importance of recruiting persons with integrity and detachment. The Supreme Court observed as follows:
"The Chairman of the Public Service Commission is in the position of a constitutional trustee and the morals of a constitutional trustee have to be tested in a much stricter sense than the morals of a common man in the marketplace. Most sensitive standard of behaviour is expected from such a constitutional trustee. His behaviour has to be exemplary, his actions transparent, his functioning has to be objective and in performance of all his duties he has to be fair, detached and impartial."
21. In Centre for PIL v. Union of India5, the Supreme Court considered the provisions of the Central Vigilance Commission Act, 2003 and the nature of the CVC as an institution, while defining the parameters which would have to be borne in mind to ensure compliance with the provisions of Article 14 of the Constitution. Since the law which has been laid down by the Bench of three learned Judges would have a significant bearing on the issues which have been raised in the present case, it would be necessary to summarize the principles which emerge from the judgment of the Supreme Court. The first principle which emerges from the judgment is that the Central Vigilance Commission is an "integrity institution" which is statutorily created to supervise vigilance administration6. This principle emphasizes the role and nature of the institution. The functions of a statutory or constitutional character, that are discharged by the institution have an important bearing on the process to be followed and in the nature of appointments to be made to the Commission. The second principle which finds recognition in the decision is that a person to be appointed to an august constitutional body must be without any "blemish whatsoever"7 and a person should not be considered for appointment merely because he or she is eligible to be considered for the post. The third principle which emerges from the decision is that while making recommendations, service conditions of a candidate, being a public or civil servant, are not the sole criterion and what is most important is "the question of institutional competence" and "institutional integrity"8 which must be borne in mind. The issue of integrity is not merely an aspect which is personal to the candidate who is proposed to be selected, but is intrinsically related to the integrity of the institution which is to be manned by the person appointed. The fourth precept which emerges from the judgment is that a decision in regard to the nomination of a person for appointment has to be "an informed decision"9. If the process leading up to the appointment has failed to look into relevant materials having a nexus to the object and purpose of the legislation or has taken into account irrelevant circumstances, the decision would stand vitiated on the ground of "official arbitrariness"10. The test is not what is good for the candidate but what is good for the institution and the touchstone has to be one of public interest. The fifth principle is that, there is a distinction, where an appointment is challenged, between "judicial review" and "merit review"11. The ambit of judicial review is confined to the integrity of the decision-making process."
(emphasis supplied)
18. Mr. Shashi Nandan, learned Senior Counsel appearing for the petitioners, placed heavy reliance upon the judgment of this Court in Ram Sewak (supra), to contend that the question raised in the instant writ petition is squarely covered by the said judgment. We have carefully gone through the said judgment of the Division Bench dated 23.09.2010, presided over by P.C. Verma, J. The petition was filed by the Chairman and a Member of UPPSC, challenging the order dated 27.06.2008 and the letters/orders issued by the Vigilance Establishment Department in pursuance thereof, contending that the State Government has no power to make any investigation regarding the conduct of the Chairman/Members of the Public Service Commission. The Division Bench considered the submissions advanced on behalf of the petitioners that, in view of a specific provision contained in Article 317 which speaks as to how an enquiry in respect of the act of misbehaviour of a Member of the Commission or Chairman would be conducted, even the President of India cannot hold a preliminary enquiry to satisfy as to whether the Members of the Commission should or should not be removed and that the power to hold an enquiry for their removal, exclusively vests in the Apex Court. We have also perused the arguments advanced on behalf of the State by learned Additional Advocate General, as quoted in the judgment, and find that the learned Additional Advocate General also focused his attention on the provisions of Article 317 and tried to distinguish the judgment relied upon by the petitioners. The learned Judges, after considering the provisions contained in Article 317 and the judgments of the Supreme Court in Special Reference No. 1 of 1983, (1983) 4 SCC 258; Lila Dhar Vs. State of Rajasthan, AIR 1981 SC 1777; Ram Ashray Yadav (supra) and Inderpreet Singh Hahlon (supra), observed thus:
"Thus the autonomy, independence and fearlessness has been secured under Article 317 of the Constitution of India as has been upheld by Hon'ble the Supreme Court in the cases referred (supra) in order to keep them away from the political influence or influence to make the appointment in violation of Article 16 of the Constitution of India.
Thus the holding of vigilance enquiry by the State Government against the Chairman and members is impermissible. It cannot be presumed that the Government which ordered for the vigilance enquiry is not aware of the law as contained in the Constitution of India and as such the holding of vigilance enquiry is colourable exercise of power and just to pressurise the Chairman and the members of the Commission to obey the command of the Government which being contrary to the provisions of the Constitution of India. Such action is highly deprecated."
19. On the other hand, Shri Manish Goyal, learned Additional Advocate General, apart from the other judgments, placed heavy reliance upon the judgment of the Punjab & Haryana High Court in Haryana Public Service Commission Vs. State of Haryana (supra). We have gone through the said judgment carefully, in which the Haryana Public Public Service Commission had challenged the action of holding vigilance enquiries and summoning of the record of the previous selections by the Vigilance Department, contending that it amounts to an encroachment upon the independence and the constitutional status of a Public Service Commission. The High Court, while dealing with the writ petition, observed against the Chairman and Members of the Commission and, therefore, claim of absolute immunity was not accepted. The observations made in paragraphs 15 and 18 are relevant. The observations made in paragraphs 14 and 22 are also relevant, which we are not quoting, since these two paragraphs have already been quoted in paragraphs 17.7 of this judgment. The relevant observations in paragraphs 15 and 18 read thus:
"15. Therefore, if a formal F.I.R. is registered, then even as per the learned counsel, the holding of the vigilance inquiries could be justified. In our considered view, it would embarrass the Commission, its Chairman and its members more rather than protect. Holding of the vigilance inquiry without registration of any formal F.I.R., in our view is in the nature of a fact finding exercise. If after the aforesaid exercise is undertaken, the commission of any criminal offence is made out, the law will take its own course. ...
18. We find that the aforesaid contention of the learned counsel is also without any merit. There is no dispute with the preposition (sic) of law that while exercising the power of judicial review this Court would be slow in making competitive comparison of the selected candidates vis-a-vis the unsuccessful candidates. To this extent reliance placed by the petitioner on the judgment of Jasjit Singh Sidhu case (supra) is wholly justified. However, we express our inability to extend the aforesaid analogy any further to hold that even in the case of corruption charges, tainted selections, or any illegality, no investigation in the matter of selection, could be made. Accepting the aforesaid argument would be perpetuating the tainted selections. ..."
(emphasis supplied) 19.1 The correctness and legality of the order of the High Court was challenged by the Commission before the Supreme Court by filing a Special Leave Petition. The same, however, was dismissed as withdrawn vide order dated 19.09.2005.
20. The Supreme Court in Mehar Singh Saini (supra), considered the judgment of Punjab & Haryana High Court and reproduced the relevant paragraphs extensively in the said judgment, on which Mr. Manish Goyal, learned Additional Advocate General placed a heavy reliance upon, in support of his contentions. The Supreme Court in the said judgment, after referring to relevant paragraphs extensively from the judgment of Punjab & Haryana High Court, observed that "it is useful to note a strange behaviour on the part of the Chairman and Members of the Commission that they chose to file a separate application along with the petition seeking leave of the Supreme Court to appeal against the order of the High Court dated 12.08.2005. The permission prayed for, by the Chairman and Members of the Commission, was declined vide order dated 28.10.2005. In other words, the order of the High Court and the observations made by it, inter se the parties have attained finality."
20.1 We would like to make reference to the relevant facts of the case in Mehar Singh Sainia (supra), which were also placed reliance upon, on behalf of the State in support of their contention that an enquiry/investigation can be conducted and an FIR can also be registered against the Member and Chairman of a Public Service Commission on the basis of the complaints and the materials relied upon by the complainants. In that case, the Government as well as the Commission had received various complaints in regard to the process of selection as well as the selections themselves, made by the Chairman and Members of the Commission to various appointments in the State services. In furtherance to these complaints and the complaint made by one Rakesh Walia in case of appointment of Pradeep Sangwan to the post of Senior Drug Inspector, five different vigilance enquiries and two different FIRs, being FIR Nos. 15 of 2005 and 20 of 2005 were registered. These cases were registered, primarily, on the ground that the Commission had adopted unfair method of selection. Favourite candidates were selected and it was also stated that there had been interpolation and manipulation of marks in the answer sheets of selected as well as non-selected candidates. Further, it appears, a charge sheet for the offences had been filed before the Court of competent jurisdiction on 30.08.2006. Despite repeated demands, complete records were not given to the investigating agencies. Instead of cooperating, the private respondents opted to file a writ petition, through the Commission, being Writ Petition No.12593 of 2005, which was contested by the State. Various complaints, reports and documents were produced before the High Court and ultimately in its judgment in Haryana Public Service Commission Vs. State of Haryana (supra), dated 12.08.2005, it was clearly observed that the Commission could not claim immunity from providing records, particularly when the investigations were in furtherance to the complaints of corruption against its office holders having received by the Government. Further, it appears that some selected candidates had also filed writ petitions before the High Court for issuance of a writ directing the respondents to issue letters of appointment to them on the premise that they had duly been selected to the service. The High Court, however, had dismissed all those petitions. The observations made by the Supreme Court in Mehar Singh Saini in paragraphs 5 to 9, in our opinion, are worth noticing even for our purpose, which read thus:
"5. The constitutional scheme contained in Articles 315 to 320 noticeably demonstrates not only the complete independence of the Public Service Commissions in discharge of their functions, but also ensures complete security and protection of tenure to its Chairman/members. A very cumbersome process has been provided by the Constitution for the removal of the Chairman and members of the Commission. This constitutional intent of ensuring autonomy is underscored by the fact that it is only where the Governor of the State makes a reference to the President of India, stating grounds of misbehaviour of Chairman/member of the State Commission that the President may remove such a Chairman/member but only after the Supreme Court of India, on a reference by the President under Article 317 (1) of the Constitution, reports that the Chairman/member ought to be removed on the ground of misbehaviour. Thus, the immunities enjoyed by the Chairman and members of the Commission under the Constitution are far greater and cannot be impinged upon by the normal procedure of service law for dismissal of a civil servant under the Civil Services Rules for an alleged misconduct.
6. Higher the public office, greater is the responsibility. The adverse impact of lack of probity in discharge of functions of the Commission can result in defects not only in the process of selection but also in the appointments to the public offices which, in turn, will affect effectiveness of administration of the State. Most of the democratic countries in the world have set up Public Services Commissions to make the matter of appointments free from nepotism and political patronage. For instance the Conseil d'Etat in France, which is composed of the cream of the French Civil Service, has acquired considerable veneration for its capacity to police intelligently the complex administration of the modern State. Justice J.C. Shah in his report on the excesses of the Emergency, struck by the "unhealthy factors governing the relationship between ministers and civil servants", recommended the adoption of droit administratif of the French model by the Government. He observed that the commitment of a public functionary should be to the duties of his office, their due performance with an emphasis on their ethical content and not to the ideologies, political or otherwise of the politicians, who administer the affairs of the State.
7. Great powers are vested in the Commission and therefore, it must ensure that there is no abuse of such powers. The principles of public accountability and transparency in the functioning of an institution are essential for its proper governance. The necessity of sustenance of public confidence in the functioning of the Commission may be compared to the functions of judiciary in administration of justice which was spelt out by Lord Denning in Metropolitan Properties Co. (FGC) Ltd. v. Lannon12 in following words: (QB p. 599 F) "...Justice must be rooted in confidence: and confidence is destroyed when right-minded people go away thinking: `The Judge was biased'."
8. The conduct of the Chairman and members of the Commission, in discharge of their duties, has to be above board and beyond censure. The credibility of the institution of Public Service Commission is founded upon faith of the common man on its proper functioning. Constant allegations of corruption and promotion of family interests at the cost of national interest resulting in invocation of constitutional mechanism for the removal of Chairman/members of the Commission erode public confidence in the Commission. Prof. Brown and Prof. Garner's observation in their treatise French Administrative Law, 3rd Edn. (1983) in this regard can be usefully referred to. They said:
"The standard of behaviour of an administration depends in the last resort upon the quality and traditions of the public officials who compose it rather than upon such sanctions as may be exercised through a system of judicial control."
9. Regrettably, the present case is one of many references made to this Court where serious allegations and imputations have been made against the Chairman and members of the Commission in regard to performance of their constitutional duties. The omissions and commissions amounting to misbehaviour, allegedly committed by the Chairman/members of the Haryana Public Service Commission have led to the Presidential Reference dated 31-7-2008 in exercise of the powers vested in the President under Article 317 of the Constitution of India to this Court."
(emphasis supplied) 20.1.1 When it came to the notice of the government that various complaints of irregularities and illegalities, such as acts of favouritism, discrimination and violation of rules/regulations had been committed by the Commission in the process of selection made by them, after conducting preliminary enquiries, the government claimed to have initiated vigilance enquiries as well as First Information Reports were registered for the alleged irregularities, illegalities and acts of commissions and omissions by the Chairman and Members of the Commission. That ultimately resulted in the Chief Secretary, Government of Haryana, writing a letter dated 18.12.2006 to the Secretary to the Governor of Haryana, requesting him to refer the matter to the President of India at the earliest, for removal of the Chairman and Members of the Commission in terms of Article 317 (1) of the Constitution of India. It was averred that the Chairman and Members of the Commission were guilty of misbehaviour, as mentioned under Article 317(1) of the Constitution. Further, it is also clear from the facts of the case that a complaint in the matter of appointment of Pradeep Sangwan as Drug Inspector was also received and an enquiry was conducted by the State Vigilance Bureau vide Enquiry No.5 dated 16.05.2005, Chandigarh and subsequently F.I.R. No.15 dated 08.08.2005 under Sections 420, 468, 471, 120B IPC and Section 13(1)(c) and (d) of the Prevention of Corruption Act, 1988 was registered. In the vigilance inquiry, Dr. K.C. Bangar, the then Chairman, Shri Mehar Singh Saini, former Member and the Chairman, Shri Dungar Ram, Shri Chattar Singh and Shri Om Prakash Bishnoi, Members of the Commission, were found to be involved in criminal conspiracy for selection of Pradeep Sangwan. With respect to other complaints, which had been received in relation to various selections made by the Commission in respect of various civil posts in the State Government, the State Vigilance Bureau initiated different enquiries relating to allegations of corruption and irregularities in recommending candidates for appointment to different posts for the period 2000 to 2004 which led to registration of FIR No.20 dated 18.10.2005 under Sections 420, 468, 471, 120B IPC read with Section 13(1)(c) and (d)of the Prevention of Corruption Act, 1988.
20.1.2 It is, thus, clear that even before the Chief Secretary addressed letter dated 18.12.2006 to the Secretary to the Governor of Haryana, requesting him to refer the matter to the President of India at the earliest, for removal of the Chairman and Members of the Commission in terms of Article 317(1) of the Constitution, the Vigilance enquiry was conducted and even the offences were registered against the Chairman and Members of the Commission. The Supreme Court, also noticed that in view of the alleged irregularities and favouritism on a mass scale and on suspicion of serious charges of corruption against the Chairman and Members of the Commission, the Governor of Haryana had passed an order dated 09.08.2008, suspending the Chairman and the Members of the Commission. The validity and legality of that order was questioned by the affected Chairman and Members of the Commission by filing a writ petition under Article 32 of the Constitution before the Supreme Court, which came to be dismissed by a detailed order dated 07.08.2009 reported in Ram Kumar Kashyap Vs. Union of India, (2009) 9 SCC 378. Paragraph 16 of the said judgment is relevant, which reads thus:
"16. 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 9-8-2008 are valid and not liable to be quashed. The writ petitions are dismissed."
20.2 The Supreme Court also considered in Mehar Singh Saini (supra) the argument with regard to the applicability of principles of criminal jurisprudence to the proceedings before it in regard to the opportunity of being heard, burden of proof and content of charges. It was observed that the principles of criminal jurisprudence contemplate different standards of proof, language of charge and protections available to a suspect/accused. It is neither practicable nor possible to apply the norms of criminal law to the proceedings under Article 317(1) of the Constitution of India. The Supreme Court after so observing, in paragraph 49 further observed thus:
"49. In criminal law, the charge should be proved beyond reasonable doubt and an accused cannot be convicted on the basis of probability. Under the service jurisprudence, a person may be found guilty even on the charge being proved on the basis of preponderance of probabilities while in the proceedings of the present kind, conduct of a person may amount to misbehaviour requiring his removal under Article 317 (1) of the Constitution on the basis of rule of reasonable preponderance of probabilities. This distinction is fully justified with reference to the constitutional scheme behind these provisions and the standards of performance and behaviour that the holders of such office are required to maintain. In other words, the proceedings before this Court are neither akin to proceedings under service law nor criminal law. In fact, they are sui generis. That may be one of the reasons that the Framers of the Constitution opted not to give power of removal of Chairman/member of the Commission to any other person except the President of India, and that too, on the basis of a report of this Court."
(emphasis supplied) 20.3 Further, the Supreme Court in paragraphs 147 and 148, observed thus:
"147. ...The burden of proof applicable to such cases is not that required under the criminal jurisprudence i.e. to prove the charge "beyond any reasonable doubt". Where the facts supported by record point a finger at the Chairman/member of the Commission with some certainty, it may amount to misbehaviour in the given facts and circumstances of a case. Rule of "reasonable preponderance of probabilities" would be the right standard to be applied to such cases. The Court is not called upon to record finding of guilt as if in a criminal case. The charge has to be construed in a liberal manner so as to ensure completion of inquiry in terms of Article 317(1) of the Constitution while keeping in mind the constitutional stature of the office. ...
148. ...Most appropriately the words of Shri H.V. Kamath, Member of the Constituent Assembly, can be referred at this stage: "Whenever democratic institutions exist, experience has shown that it is essential to protect the public service as far as possible from political and personal influences and to give it that position, stability and security which is vital to its successful working as an impartial and efficient instrument by which the Government, of whatever political complexion, may give effect to their policies." These were the expectations of the Framers of the Constitution from the Chairman and members of the Commission.
20.4 While parting, the Supreme Court also made it clear that findings recorded and conclusions arrived at, would, in no way, affect any proceedings or investigation pending before the Court of competent jurisdiction or agency, as the case may be. It was further observed that subject matter of those proceedings shall be taken to its logical end in accordance with law without being influenced by the said judgment.
21. In Jitendra Kumar (supra), the Supreme Court, after noticing non-cooperation by the Commission in the vigilance enquiries, in paragraph 67 observed thus:
"67. We must before parting, notice a disturbing feature in this case. Whereas according to the Commission, the State has for all intent and purport made it a defunct body although no case therefor has been made out, the contention of the State, on the other hand, is that although in all the maters allegations made by the complainant have been found to be true but the enquiry cannot proceed as the Commission is not cooperating with the State Vigilance Bureau. Indisputably and as has been indicated hereinbefore, seven separate writ petitions were filed by unsuccessful candidates. Various complaints had also been received by the State. Four separate enquiries had been directed to be conducted by the State Vigilance Bureau. Allegations have also, rightly or wrongly, been made that the Commission had acted in undue haste. We although as at present advised do not intend to make any observations in regard to the allegations and counter- allegations made by the Commission and the State against each other, we only hope and trust that a constitutional authority like the Commission should neither withhold any document nor refuse to cooperate with the State Vigilance Bureau in the matter of conduct of an enquiry. If the statements made by the Commission are correct, they have nothing to hide. It would be in the interest of all concerned including the appellants herein to see that the enquiry should be completed at an early date."
22. From the judgments of the Supreme Court referred to above, it is clear that there is a consensus of judicial opinion on a basis of principle that proceedings in a criminal case and enquiry under Article 317 can go simultaneously. Basis for this proposition is also that proceedings in a criminal case/complaint and enquiry under Article 317 operate in distinct and different jurisdictional areas, as we have seen earlier while dealing with all relevant provisions in the light of judgments of the Supreme Court. The conclusion which is deducible from various decisions/judicial pronouncements, is that an enquiry under Article 317 and proceedings starting with enquiry and/or investigation by an investigating agency in criminal case can proceed simultaneously or may be one after another even if both are based on identical and similar set of facts. If for any reason an enquiry under Article 317 is conducted first and if a finding of, for example, corruption is recorded by the Supreme Court in the course of an enquiry, there could conviction on the basis of such a finding by the competent criminal court, where criminal case is pending, based on same/identical set of facts and materials. In an enquiry under Article 317, factors prevailing in mind may be to find out whether a Member of Public Service Commission has committed "misbehaviour", whereas in criminal case what needs to be seen is whether a criminal offence has been committed.
22.1 The submission made on behalf of the petitioners that no enquiry of whatsoever nature can be conducted into the affairs of a Public Service Commission, which ultimately would reflect on the conduct/behaviour of the Chairman and Members of the Public Service Commission, and that such an enquiry is permissible only when reference to the Supreme Court is made under Article 317 (1) of the Constitution, in our opinion, does not find support from the judgments of the Supreme Court. The judgments referred to by us clearly demonstrate that the enquiry/investigation by an investigating agency into the allegations of criminal nature even against Public Service Commission is recognised and approved by the Supreme Court. The enquiry under Article 317 and the enquiry/investigation by any agency, such as CBI cannot be equated. The enquiry/investigation by CBI is to find out whether a "criminal offence" has been committed, whereas enquiry under Article 317, is only to find out whether Member of a Public Service Commission rendered him liable to be removed on the ground that his conduct amounted to "misbehaviour" within the meaning of this Article 317 of the Constitution.
23. At this stage, we would like to consider the submission of Mr. Shashi Nandan, learned Senior Advocate for the petitioners based on the judgment of the Division Bench of this Court in Ram Sewak (supra). He submitted, this Court while dealing with similar question has already taken a view that holding of vigilance enquiry by the State is impermissible and the view is binding on this Court. We have already made reference to the judgment in Ram Sewak in the earlier part of this judgment. From careful perusal of the said judgment, it is clear that the Division Bench did not notice the distinction between the enquiry/investigation by either Vigilance or by CBI for that matter, and the enquiry contemplated by Article 317 of the Constitution. The judgment referred to by us were not placed before the Division Bench while dealing with the challenge raised in the writ petition. In other words, the Division Bench failed to notice that the Supreme Court in several judgments has approved the action of holding enquiry/investigation even before the reference by the President of India under Article 317 (1) of the Constitution to the Supreme Court. In this backdrop, we find substance in the submission made on behalf of the State that the Division Bench dealt with the writ petition on the assumption that the vigilance enquiry directed by the State was for removal of the Chairman/Members of the UPPSC, as contemplated by Article 317 of the Constitution. In our opinion, the Division Bench committed an error of law in ignorance or forgetfulness of the law laid down by the Supreme Court of India. It is well settled that if there is an error of law occurring in a judgment, apparently committed by mistake or through inadvertence, such a judgment should not be misunderstood as declaration of law by the Court. Similarly, if the judgment is delivered in forgetfulness of some statutory provision, or a statement of law caused by inadvertence or conclusion that has been arrived at without any reasons, or rendered without analysing the relevant provisions of law or settled position of law, it cannot be treated as a binding precedent and, at the most, is to be considered as having been rendered per incuriam.
23.1 In Narmada Bachao Andolan Vs. State of Madhya Pradesh & Anr., AIR 2011 SC 1989, the Supreme Court considered the Doctrine of "Per Incuriam" in paragraph 60, which reads thus:
"PER INCURIAM - Doctrine:
'60. 'Incuria' literally means 'carelessness'. In practice per incuriam is taken to mean per ignoratium. The Courts have developed this principle in relaxation of the rule of stare decisis. Thus, the 'quotable in law' is avoided and ignored if it is rendered, in ignorance of a statute or other binding authority. While dealing with observations made by a seven Judges-Bench in India Cement Ltd. etc. etc. v. State of Tamil Nadu etc. etc., AIR 1990 SC 85, the five Judges-Bench in State of West Bengal v. Kesoram Industries Ltd. & Ors., (2004) 10 SCC 201: (AIR 2005 SC 1646: 2004 AIR SCW 5998), observed as under: -
'A doubtful expression occurring in a judgment, apparently by mistake or inadvertence, ought to be read by assuming that the Court had intended to say only that which is correct according to the settled position of law, and the apparent error should be ignored, far from making any capital out of it, giving way to the correct expression which ought to be implied or necessarily read in the context,.........A statement caused by an apparent typographical or inadvertent error in a judgment of the Court should not be misunderstood as declaration of such law by the Court.' 23.2 Thus, 'per incuriam' are those decisions which are given in ignorance or forgetfulness of some statutory provision or authority binding on the Court concerned, or a statement of law caused by inadvertence or conclusions that have been arrived at without application of mind or proceeded without any reason so that in such a case some part of the decision or some step in the reasoning on which it is based, is found, on that account to be demonstrably wrong. It is also well settled, if intricacies of relevant provisions are either not noticed or brought to the notice of the Court or if the view is expressed without analysing the said provision or the settled position of law, such a view cannot be treated as binding precedent. We find that the Division Bench in Ram Sewak (supra) did not notice the judgments of the Supreme Court approving the action of holding of an enquiry/investigation into the allegations of serious nature, such as corruption and that such enquiry is independent of the enquiry contemplated by the provisions of Article 317 of the Constitution of India. We have already referred to all such judgments of the Supreme Court in the earlier part of this judgment. There was no justification in reading into Article 317 a provision which is not found in it.
24. In the present case, during the relevant period, the UPPSC conducted several examinations for appointment to public services of the State. We have, in the foregoing paragraphs, detailed the nature of allegations, which prompted the State Government to seek CBI enquiry/investigation into the complaints against UPPSC. Prima facie, we are also satisfied, having perused the nature of allegations not only from the contents of the pleadings but even the complaints, copies of which were placed before us, that the State was justified in asking for CBI enquiry/investigation into those allegations against UPPSC as a whole. It is true that Constitution makers decided to have an independent body to recruit civil servants by open competition and with that object, an independent and impartial body was proposed to be constituted as the Public Service Commission and to uphold the dignity and independence thereof, salaries, allowance and pension payable to the members of the staff of the Commission are to be charged on the Consolidated Fund of the State. Moreover, the Chairman/Members of the Public Service Commission are removable only by following the procedure contemplated by Article 317 of the Constitution of India. It is also true that the Chairman/Members of the Public Service Commission, under the Constitution, enjoy immunities far greater than even the Judges of the Supreme Court and High Courts insofar as their removal on the ground of misbehaviour as contemplated by Article 317 of the Constitution is concerned. The Constitution or the laws, however, do not afford any protection to the Chairman or the Members of a Public Service Commission against any such enquiry by the State or an independent agency appointed by the State or for lodging an FIR involving criminal offence against them. In other words, no constitutional protection is available to the Chairman/Members of a Public Service Commission from being investigated/interrogated and even arrested while in the office, if an FIR is lodged against them, no immunity has been recognized by the Supreme Court under any of the provisions contained in the Constitution of India in Part XIV. We have already seen in several references, dealt with by the Supreme Court under Article 317 of the Constitution, the enquiries/investigations into the allegations of serious nature were conducted, FIRs were lodged and the Chairman/Members of the Commission were arrested. This all has been approved by the Supreme Court.
25. The CBI, in the present case, as seen from the impugned order/notification dated 21.011.2017, is expected to conduct enquiry/investigation into the serious allegations against the UPPSC and not against the "Commission" as defined by clause (b) of Section 2 of the Act, 1985. In other words, the CBI enquiry/investigation is directed to be conducted against UPPSC as a whole and not specifically against the Chairman/Members thereof. Bearing the distinction between the enquiry under Article 317 and by the CBI in mind, we have, as observed earlier, perused the relevant provisions of the Constitution and also judgments of the Supreme Court and the judgment of the Punjab & Haryana High Court. Insofar as the judgment of Punjab & Haryana High Court is concerned, we do not find any reason to disagree with the same or to take a view contrary to the view taken by that High Court. We entirely agree with the view taken by the Punjab & Haryana High Court.
26. Article 317 ensures complete security and protection of tenure to the Chairman/Members of a Public Service Commission. It, however, does not provide for complete immunity from enquiry/investigation into the allegations of serious nature being conducted by any agency, like CBI or Vigilance Department/Bureau. The protection for the term of office of the Chairman/Members of the Public Service Commission is provided to ensure its independent functioning. The Chairman/Members cannot be subjected to regular departmental enquiry, and can only be removed by strictly complying with the provisions of Article 317 of the Constitution.
27. The distinction between the enquiry under Article 317 and the enquiry by CBI needs to be understood in the light of the scheme of this provision (Article 317). Article 317 provides that, subject to the provisions of clause (3), (i) the Chairman or any other Member of a Public service Commission can be removed from his office only by the order of the President on the ground of misbehaviour and (ii) the order of removal can be passed after the Supreme Court has on inquiry reported to the President that the Chairman or the Member of a Public Service Commission, is guilty of misbehaviour and ought to be removed from his office on that ground. The enquiry which the Supreme Court is required to hold is into the limited question whether, on the basis of the facts found by the President, the charge of misbehaviour is made out and whether the misbehaviour is of such a nature as to warrant the removal of the person from his office (See Special Reference No. 1 of 1983 decided on 3 August 1990). The purpose of Article 317(1) is to ensure the independence of Members of Public Service Commissions and to give them protection in the matter of their tenure.
28. As against this, the enquiry/investigation to be conducted by an independent agency, like Vigilance or CBI is into the allegations involving criminal offence. It is well settled that in criminal law, the charge should be proved beyond reasonable doubt and an accused cannot be convicted on the basis of probability. As observed by the Supreme Court in Mehar Singh Saini, under the service jurisprudence, a person may be found guilty even on the charges being proved on the basis of preponderance of probabilities while in the proceedings under Article 317 (1) of the Constitution, conduct of a person may amount to misbehaviour, requiring his removal on the basis of rule of reasonable preponderance of probabilities. This distinction is noticed by the Supreme Court with reference to the constitutional scheme behind this provision and the standards of performance and behaviour that the holders of such office are required to maintain. In other words, the proceedings before the Supreme Court under Article 317 are neither akin to the proceedings in service law nor criminal law. The Supreme Court in Special Reference No. 1 of 1983 decided on 3 August 1990, while dealing with the apprehension expressed that finding recorded by the Supreme Court would automatically decide the fate of a prosecution or of a civil suit for damages, observed that "the apprehension is real but, that is as it ought to be." The Supreme Court further observed that there is no unfair advantage to either side if the questions of fact are decided by the Supreme Court straightaway after giving full opportunity to the parties to prove and represent the facts in issue as in a regular trial. If the essential safeguards of a fair adjudication are observed, no grievance can be made that the facts which establish the charge of misbehaviour are found by the highest Court of the land and not by the lowest, as observed by the Supreme Court in the said case.
29. Ordinarily, charges of bribery, corruption and the like are of criminal nature but they are also regarded as misbehaviour insofar as the enquiry under Article 317 of the Constitution is concerned. This by itself would not preclude in directing CBI enquiry/investigation into the affairs of a Public Service Commission, if there are complaints of corruption, lack of integrity or any other offence involving moral turpitude against its Members or officials. In the present case, the enquiry/investigation being conducted by the CBI pertains to the relevant period on the basis of a large number of complaints (58) and the seventy eight writ petitions, including four PILs filed in this Court, making serious allegations against the affairs of UPPSC. If, in the course of enquiry, it is found that selections made during the relevant period were tainted and were based upon considerations other than merit, neither UPPSC as a whole nor its Chairman or Members can claim any immunity. Neither the Constitution nor the laws preclude the State Government through appropriate agency from registering an FIR for the alleged irregularities, illegalities and acts of commissions or omissions either by UPPSC as a whole or by its Chairman or Members, involving criminal offence.
30. To make it further clear and to be more precise, let us have a look at the word misbehaviour once again. The expression "misbehaviour" means wrong conduct or improper conduct, as observed by the Supreme Court in Reference No. 1 of 2003 (supra). It has to be construed with the reference and context in which it appears or needs to be understood. Every act or conduct or error of judgment or negligence by a constitutional authority per se does not amount to misbehaviour. Misconduct/misbehaviour implies a creation of some degree of mens rea by the doer. Willful abuse of constitutional office, or misconduct in the office, corruption, lack of integrity or any other offence involving moral turpitude would be misbehaviour, as observed in the said judgment. Persistent failure to perform duties or willful abuse of office would also be misbehaviour. Thus, there is a very thin line between criminal offence and misbehaviour. Judicial finding of a guilt of grave crime by the competent court may also amount to misconduct/misbehaviour, attracting an action of removal under Article 317 of the Constitution. The enquiry, therefore, under Article 317(1) and the enquiry/investigation by an agency, such as CBI, operate in distinct and different jurisdictional areas. When an enquiry under Article 317 is conducted and if allegation of misbehaviour is proved, it culminates into only removal of a Member of Public Service Commission and on the other hand, if the guilt of criminal offence is recorded by competent Court, it ends into conviction, resulting into imprisonment.
31. Thus, the distinction between the enquiry under Article 317 of the Constitution and the enquiry/investigation by the CBI is clear. Indisputably and as has been indicated herein before, several writ petitions, including PILs were filed making serious allegations against the affairs of UPPSC, including the PIL against the erstwhile Chairman of UPPSC Dr. Anil Kumar Yadav. That apart, various complaints had also been received by the State from difference sources, including from the office of Prime Minister and Governor, not only during the regime of the present government but even during the regime of the earlier Samajwadi Party government.
32. We, although, as at present, do not intend to make any observations in regard to the allegations and counter-allegations made by the Commission and State against each other, we only hope and trust that a constitutional authority, like the Commission should neither withhold any document nor refuse to cooperate with the CBI in the matter of conducting enquiry/investigation. If the statements made by the Commission are correct, they have nothing to hide. It would be in the interest of all concerned, including the Chairman and its Members to see that the enquiry should be completed at an early date. The contention raised on behalf of the petitioners that no enquiry of whatsoever nature can be conducted before the enquiry contemplated under Article 317 of the Constitution, in our opinion, deserves to be rejected outright. The Chairman and Members of the Commission, though cannot be removed without following the procedure contemplated under Article 317, cannot claim immunity from being enquired/investigated into the allegations of serious nature, such as corruption in holding examinations, making selections and appointments. If, in the course of enquiry/investigation by the CBI, it is found that the Chairman/Members, past and present, during the relevant period, indulged into illegalities/irregularities amounting to criminal offence, the law will take its own course. In other words, if the selections made during the relevant period are ultimately, in the course of enquiry/investigation by the CBI, found to be tainted or based upon consideration other than merits, the law will take its own course. If the Chairman and Members have not done anything wrong, they need not either hide anything or be worried or anxious about the outcome. The Chairman/Members of UPPSC cannot, in our considered opinion, claim any immunity. They cannot be stated to have a vested right to perpetuate illegality or hide scandal, if any. In our opinion, the UPPSC, through its Chairman has unnecessarily filed the instant petition. In fact, it would be in the interest of all concerned including the Chairman and the Members of UPPSC to see that the enquiry should be completed at an early date. The enquiry/investigation would also ultimately help to inspire confidence in the public mind about the objectivity and impartiality of the selections made during the relevant period and so also the selections to be made in future. Neither the Constitution nor the laws preclude the State Government from holding CBI enquiry/investigation into the complaints of serious nature against the UPPSC as a whole. The enquiry/investigation cannot be stopped merely because it may ultimately reflect on the conduct/behaviour of the Members of the Public Service Commission.
33. Thus, in our opinion, the petition deserves to be dismissed and is, accordingly, dismissed. No order as to costs.
February 28, 2018 AHA (Dilip B Bhosale, CJ) (Suneet Kumar, J)