Allahabad High Court
Ram Sewak And Others vs State Of U.P. And Others on 23 September, 2010
Author: P.C.Verma
Bench: P.C.Verma, Jayashree Tiwari
HIGH COURT OF JUDICATURE AT ALLAHABAD A.F.R. Reserved Court No.34 Civil Misc.Writ Petition No.46110 of 2008 Ram Sewak and others v. State of U.P. and others. .............
Hon'ble P.C.Verma,J Hon'ble Jayashree Tiwari,J (Delivered by Hon'ble P. C. Verma,J) By means of instant writ petition petitioners have prayed for a writ of certiorari quashing the order dated 27.6.2008 and the letters/orders issued by the Vigilance Establishment Department in pursuance thereof dated 8.8.2008 19,9,2008, 20.8.2008 and 22.8.2008 copy of which has been annexed as Annexure-1,2,5,6,7,8,9 and 10 to the writ petition.
The case of the petitioner in nut shell is that the petitioner no.1 was at the relevant time Chairman of the Public Service Commission since 17th May, 2004 and petitioner no.2 is a member of the Public Service Commission so are petitioner nos. 3 and 4. On 27th June, 2008 the State Government passed an order initiating an inquiry against the functioning of the Commission and vigilance was to hold an open inquiry. The petitioners challenged the order, copy of which was not given to them, and they came to know about the vigilance inquiry through a letter of the S.P. Vigilance dated 20th August, 2008. The petitioners challenged the order of the State Government inter alia on the ground that the State Government has got no power to make any investigation regarding the conduct of the Chairman or the members of the Commission.
We have heard learned counsel for the petitioners and learned Addl. Advocate General, U.P. for the State.
Learned counsel for the petitioners Sri R.N.Singh Sr.Advocate, Sri P.S.Bhagel Sr.Advocate submitted that in the Constitution there is a specific provision which is contained in Part- XIV Chapter II with regard to Public Service Commissions. Articles 315 and 323 deals with various powers of the Commission. There is a specific provision, which is contained in Article 317 which speaks about how misbehaviour of a member of the commission or chairman will be conducted. The question as to how the inquiry will be held is provided in the aforesaid Article and this question has also been subject matter of various decisions of the Apex Court. The leading case on the point is reported in 1983 Supreme Court Case (4) Page 258. It has been clearly held that even the president cannot hold a preliminary inquiry to satisfy himself as to whether the members of the Commission should or should not be proceeded with. The powers to hold an inquiry exclusively vest in the Apex Court. Paragraphs 6 and 7 of the judgment clinches the issue, which is involved. The Apex Court has emphasized that these provisions and procedures have been made for holding an inquiry against the members of the Commission to prevent from any political interference. It has further been observed by the Apex Court that the members of the Public Service Commissions are in one sense given a higher degree of protection by elimination as far as possible, of political pressures in the matter of their removal. Any allegation of mis-behaviour 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 mis-behaviour or incapacity depends upon the will of the parliament. The terms mis-behaviour is very wide term. It includes in itself every thing that in the garb of vigilance inquiry, the State Government is intending to do.
It is further, submitted that in the counter affidavit the complaints received by the State Government have been forwarded to the U.P. Vigilance Establishment for making an open inquiry. The stand of the State Government is wholly untenable. As stated above the Apex Court has held that even the President cannot hold a preliminary inquiry for satisfying itself for making a reference to the Apex Court for holding an inquiry. It is the Supreme Court alone which has been given exclusive jurisdiction to conduct an inquiry according to Rules framed under Article 145 of the Constitution of India against the members of the Commission and its Chairman. If the stand of the State is accepted, it will make the Public Service Commission as one of the department of the State Government. By this round about method they want to coerce the members of the Commission to suit their purpose. It is well settled principles of law that if a procedure had been provided by law then that procedure has to be followed and all other procedures are forbidden by law. In this connection reliance has been placed on the Apex Court judgment reported in AIR 1975 Supreme Court Page 915 -paragraph 25. It has been held in the aforesaid case relying on an English decision in Taylor vs. Taylor that where power is given to do a certain thing in a certain way, the thing must be done in that way or not at all and other methods of performance are necessarily forbidden. This rule has stood the test of time and was accepted by the Privy Council in Nazir Ahmad v. Emperor AIR 1936 Privy Council Page 253. If that is not done the whole purpose of the legislature could be defeated.
Learned counsel for the petitioners further submitted that in the instant case there is a specific provision in the Constitution for holding an inquiry and taking proceedings against the members of the Commission and its Chairman that cannot be defeated by taking recourse to certain provision made by the State Government. The sole object for doing this was to embarrass the Chairman and the member and to humiliate them. It is not known as to what is the object of holding an open inquiry which has been described by the State Government as fact finding inquiry. If under the Constitution the State Government has no role in the removal of the Chairman or the members of the Commission, then it is not understood as to what purpose the so called inquiry is proposed to achieve. If somebody is aggrieved by the selections carried on by the Commission he has got a remedy to challenge the same before the Hon'ble Supreme Court or the High Court. The State Government is not an appellate authority against the selections made by the Commission. Indirectly by this method they want to influence the decision of the Commission for which there is no justification. It is also pointed out that Ram Sewak Yadav Chairman has retired, but on the basis of this so called inquiry his retiral benefits have not been given so far. There are nine members of the Commission and the said inquiry is proposed to be held against only six persons i.e. Chairman and five members. All the action of the State government is for a oblique purpose and only with a view to malign and humiliate the members of the Commission and the Chairman. Hence this writ petition.
Learned Addl. Advocate General, U.P. Sri Zafar Naiyer submitted that the Chairman or member of State Public Service Commission is a public servant and the state Government has unfettered power to make enquiry into the allegation made by public or any other individual to test the veracity of the complaint of corruption. The fact finding enquiry was eminently required and necessary for administration of justice and limited only to the complaints which have been received. The U.P. Vigilance Establishment constituted under section 2 of the U.P. Vigilance Establishment Act, 1965 Section 2(c) of the U.P. Vigilance Establishment Act, 1965 provides that the Vigilance Establishment shall make enquiries, secret or open, and investigations into cases of corruption, bribery, misconduct, misbehaviour or other malpractices, that may be referred to it from time to time by the Government in the Vigilance Department.
It is submitted that U.P. Legislature enacted U.P. Act No. VII of 1965, known as U.P. Vigilance Establishment Act, 1965. The aforesaid Act was enforced with effect from 18th March,1965 . The Act of 1965 was passed by the U.P. Legislature with the intention to make provision for the constitution, superintendence and administration of the U.P. Vigilance Establishment as a special force. Section 3 of the Act of 1965 empowers the State government to specify the offences which may be investigated by the U.P. Vigilance Establishment, by way of notification in the Gazette. It is also stated that by Notification No. 592 XXXIV-VGL-1965, dated February,1965 many offences and classes of offences were notified, which included offences punishable under the Prevention of Corruption Act, 1947. Since aforesaid Prevention of Corruption Act, 1947 was replaced by another Act known as Prevention of Corruption Act, 1988 ( hereinafter referred as the Act of 1988). Another notification No. 291XXXIX-4-91-4/4(30)-81 dated 18th September,1991 (Annexure No. CA-2 of the counter affidavit) was issued under section 3 of the Act of 1965 making offences punishable under the Act of 1988, to be investigated by the U.P. Vigilance Establishment. It is further submitted that the specific provisions of Article 317 of the Constitution of India deals with the misbehaviour of a member of Commission or Chairman and enquiry can always be conducted. Since the petitioner admittedly stood retired, the relationship with State stood snapped and therefore, protection of Article 317 of the Constitution of India is not available. Reliance has been placed upon the judgment of the Hon'ble Apex Court rendered Inre: Ravindra Pal Singh Sidhu, Chairman, Punjab Public Service Commission reported in (2002)2 SCC 147. The inquiry which was initiated against the petitioner while he was in office was not directed towards the removal. It was only a preliminary enquiry with a view to find out whether there was some substance in the allegations made in the compliant or not. Therefore, the enquiry which was initiated by the State Government did not fall within the purview of Article 317 of the Constitution of India. However, the question is academic in view of retirement of the petitioner.
It is, further submitted that after the passage of the Prevention of Corruption Act, the State Government vide notification dated 18th September,1991 has specified the offences punishable under the Prevention of Corruption Act, 1988 (Act No. 49 of 1988) and thereby hold the enquiry. There is no expressed or implied power for holding an enquiry to judge the authenticity and testifying the veracity of the complaints which have been filed against a person holding the August office. This is also necessary to imbibe the confidence of the people on the suffrage of which the Government has been elected. This mechanism has been introduced to make the State machinery transparent and ensure the impartiality and fairness, remove blindness of vision and uphold the integrity and independence of State Public Service Commission.
In reply the learned Addl. Advocate General tried to distinguish the judgement reported in 1983 (4) SCC 258 referred by the learned counsel for the petitioner, and submitted that the law was declared by Hon'ble the Apex Court in the context of reference made by Hon'ble President to the Hon'ble Supreme Court under Article 317 of the Constitution of India for removal/suspension of Chairman of State Public Service Commission. The law relied upon by the petitioner reported in AIR 1975 SCC 915 is also not relevant to the matter and relied upon under some mis-conception.
Now we proceed to examine the contention of the parties in the light of the provisions made in the Constitution of India. Statutory basis of framing our Constitution is the Government of India Act 1935 (hereinafter referred to as an Act) Section 264 contained Chapter III in the Government of India Act deals with the Public Service Commissions. The institution of Public Service Commissions are established for the protection of Public Services from political and personal influences of the Ministry by placing the regulation of service matters in the hands of an authority independent of the Ministry. The Royal Commission on Superior Services in India observed in its report, 1924, as follows :
"Wherever democratic institutions exist, experience has shown that to secure an efficient civil service, it is essential to protect it as far as possible from political or personal influences, and to give it that position of stability and security which is vital to its successful working as the impartial and efficient instrument by which Government of whatever political complexions may give effect to their policies."
The section 265 of the Act deals with the Chairman and other members of a Public Service Commission in an amendment sought to be introduced in Section 265 of the Act, during the debate the Secretary of State observed that a Judge gets his pension at the end of eleven and a half years "and a Judge is very often just the type of man that we want to retain for this service in India before he returns to England." Sir S.Hoare expressed this opinion and the leader of the opposition, Mr. Lansbury, agreed with him that, following in this respect the English practice, it would be better to put on the Public Service Commissions persons who are out of politics. As regards ex-ministers, he said, "Let me make it clear that it is not our intention that ex-ministers should be eligible for these posts."
In the Act the service conditions were to be determined by the regulations but there was no provision for like a provision we have under Article 317 of our Constitution.
The framers of our Constitution in order to ensure democratic character of the institution made it more autonomous, fearless, independent from the Governments of whatever political complexions and made a provisions contained under Article 317 of the Constitution of India.
Article 315 of the Constitution of India provides that there shall be a Public Service Commissions for the Union and a Public Service Commission for each State. Two or more States may agree there being one Public Service Commission for that group of States. The Public Service Commission for the Union, if requested so to do by the Governor of State, may, with the approval of the President, agree to serve all or any of the needs of the State.
The Chairman and members of the Union and the State Public Service Commission ought to be appointed by the President and the Governor respectively provided that as nearly as may be one-half of the members of every Public Service Commission shall be persons who at the dates of their respective appointments have held office for at least ten years either under the Government of India or under the Government of a State, and in computing the said period of ten years any period before the commencement of this Constitution during which a person has held office under the Crown in India or under the Government of an Indian State. The expression as nearly as may be one-half of the members of every Public Service Commission indicates only an approximation and cannot be read as equivalent to not more than half.
The members of the Public Service Commission hold office for the term of six years or till he attains the age of sixty-five years in the case of Union Commission, and the age is now sixty-two years in the case of State or a Joint Commission whichever is earlier. The Chairman and members of the Union Commission or the State Commission may resign or be removed as provided in Article 317 of the Constitution of India. Article 317 of the Constitution of India reads as under :-
"317. Removal and suspension of a member of 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 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 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."
Provision of Article 317 of the Constitution of India clearly provides that the Chairman or any member of the Public Service Commission can only be removed on the ground of misbehaviour after the reference has been made to the Supreme Court until the President has passed orders on receipt of the report of the Supreme Court on such reference in accordance with the procedure under Article 145 (j) of the Constitution of India. Article 145 of the Constitution of India empowers the Supreme Court to make the Rules and sub-clause (j) of Clause (1) of Article 145 provides for making the Rule as to the procedure for inquiries referred to in clause (1) of Article 317 of the Constitution. Provisions of Article 317 of the Constitution also provides that pending such Reference the President, or the Governor, as the case may be, can suspend a member until the President has passed orders on the report of the Supreme Court. However , the President may by order remove a chairman or member of a Public Service Commission if (a) he is adjudged an insolvent or (b) he engages in any paid employment outside the duties of his office or ( c ) he is unfit to continue in office by reason of infirmity of mind or body.
In order to secure the complete independence the Chairman and the members of the Public Service Commission on ceasing to hold office, they are debarred from holding any office under the Government of India or the Government of a State subject to the exceptions given below :-
"(a) the Chairman of a State Public Service Commission can be appointed a member or Chairman of the Union Public Service Commission or the Chairman of any other State Public Service Commission (b) a member of the Union Public Service Commission can be appointed Chairman of the Union Commission or the Chairman of a State Public Service Commission, ( c )a member other than a Chairman of a State Commission can be appointed a member or Chairman of the Union Commission or as the Chairman of that or any other State Commission."
Thus as stated above the framers of the Constitution of India created constitutional institutions to uphold the constitutional values, and the Public Service Commission being one of them. With a view uphold the dignity and independence of the Public Service Commission,the salaries, allowances and pensions payable to the members of staff of the Commission are directed to be charged on the Consolidated Fund of India and/or the Consolidated Funds of the States as the case may be.
Article 317 of the Constitution has been considered and interpreted by Hon'ble the Supreme Court in the case of Special Reference No. 1 of (1983) 1 SCC 258 the Hon'ble Supreme Court has held as follows:-
"That the power of the President to make a reference to this Court under Article 317 (1) is not subject to the condition precedent that he must first have the facts examined by some other body or authority. That Article provides that the Chairman or any other Member of a Public Service Commission can only be removed from his office on the ground of misbehaviour after the Supreme Court on a Reference made to it by the President reports that the Chairman or such other person ought to be removed on any such ground. There is no justification for reading into the Article a provision which is plainly not to be found in it, especially a provision in the nature of a condition precedent. Besides, the documents annexed to the Reference and indeed the fact that those documents are so annexed would show that the President was satisfied prima facie that the allegations made against the member of the Public Service Commission required to be inquired into. .........................
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 object of Article 317(1) is to give a better protection to a Chairman or other Member of a Public Service Commission than other constitutional dignitaries, in the matter of removal on the ground of 'misbehaviour'. While in the case of a Judge of the Supreme Court or of a High Court or the Comptroller and Auditor - General or the Chief Election Commissioner if an allegation of mis-behaviour is established, according to Parliament, in the case of the Chairman or Member of the Public Service Commission, the function of such determination is vested in the highest tribunal of the land, i.e. the Supreme Court , so that the Public Service Commission may be immune from political pressure.
In the case of Lila Dhar v. State of Rajasthan, AIR 1981 SC 1777(paras 4-6) Hon'ble the Supreme Court has observed that the fathers of the Indian Constitution rejected the 'spoils system', under which the administration is carried on by civil servants appointed in consideration of their political service to the party in power. They realised that the democratic system could be maintained only if the civil servants were appointed solely on the basis of merit, by open competition and only if they could carry on the administration independently, instead of blindly carrying out the orders of their political superiors. The values of independence, impartiality and integrity are the basis determinants of the constitutional conception of Public Service Commission as held in Ram Ashray Yadav, Chairman, Bihar Public Service Commission, (2000) 4 SCC 309.
The latest case of Inderpreet Singh Kahlon v. State of Punjab (2206) 11 SCC 356,370 (para 1) has dealt with Article 317 of the Constitution of India and by Hon'ble two Judges separately and the ratio of the judgement is as under :
"A Chairman of the Public Service Commission is removable only by following the procedure laid down under the Constitution of India. 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 instant case involving corruption of a Chairman of the Public Service Commission, teaches us an important lesson that before appointing the constitutional authorities, there should be a thorough and meticulous inquiry and scrutiny regarding their antecedent. Integrity and merit have to be properly considered and evaluated in the appointments to such high positions. It is an urgent need of the hour that in such appointments absolute transparency is required to be maintained and demonstrated. The impact of the deeds and misdeeds of the constitutional authorities (who are highly placed) , affect a very large number of people for a very long time, therefore, it is absolutely imperative that only people of high integrity, merit, rectitude and honesty are appointed to these constitutional positions."
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.
During the course of argument it was pointed out and requested that the post retiral dues of the petitioner no.1 has not been paid as yet. Therefore, Government is directed to pay all the post retiral dues to the petitioner no.1 within a period of two months from today.
Thus the decision to hold the enquiry, letter dated 27.6.2008 and further steps taken in the vigilance enquiry and the vigilance enquiry itself are hereby quashed.
With the aforesaid directions/observations the writ petition is allowed.
No orders as to cost.
(Justice Jayashree Tiwari) (Justice P.C.Verma)
Dated: 23.9.2010
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