TMI Blog2013 (2) TMI 772X X X X Extracts X X X X X X X X Extracts X X X X ..... 07.07.2011, the State Government of Punjab appointed Mr. Harish Dhanda as the Chairman of the Punjab Public Service Commission. On 10.07.2011, the respondent No.1 who was an Advocate practicing at the Punjab and Haryana High Court, Chandigarh, filed a public interest litigation under Article 226 of the Constitution (Writ Petition No.11846 of 2011) praying for a mandamus directing the State Government to frame regulations governing the conditions of service and appointment of the Chairman and/or the Members of the Public Service Commission as envisaged in Article 318 of the Constitution of India. The respondent No.1 also prayed for a direction restraining the State Government from appointing Mr. Harish Dhanda as the Chairman of the Punjab Public Service Commission in view of the fact that his appointment does not fall within the parameters of integrity, impartiality and independence as reiterated time and again by this Court. 4. The Division Bench of the High Court, after hearing the learned counsel for the writ petitioner and the learned Additional Advocate General for the State of Punjab, passed an order on 13.07.2011 holding that even though Article 316 of the Constitution doe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... led Special Leave Petitions (C) Nos.22010-22012 of 2011 before this Court. On 05.08.2011, this Court, while issuing notice in the Special Leave Petitions, made it clear that issuance of notice in the Special Leave Petitions will not come in the way of the High Court deciding the matter and the State of Punjab is at liberty to urge all contentions before the High Court. Accordingly, the Full Bench of the High Court heard the matters on 08.08.2011 and directed the Chief Secretary of the State of Punjab to remain present at 2.00 P.M. along with the relevant files which contain the advice of the Chief Minister to the Government. The Chief Secretary of the State of Punjab produced the original files containing the advice of the Chief Minister to the Governor of Punjab and after seeing the original files, the Full Bench of the High Court returned the same and reserved the matter for judgment. 7. Thereafter, the Full Bench of the High Court delivered the judgment and order dated 17.08.2011 directing that till such time a fair, rational, objective and transparent policy to meet the mandate of Article 14 is made, both the State of Haryana and the State of Punjab shall follow the procedur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Full Bench and the Division Bench of the High Court. Contentions of the learned counsel for the parties: 9. Mr. P.P. Rao, learned senior counsel for the State of Punjab, submitted that the writ petition before the High Court was a service matter and could not have been entertained by the High Court as a Public Interest Litigation at the instance of the writ petitioner. He cited the decisions of this Court in R.K. Jain v. Union of India Ors. [(1993) 4 SCC 119], Dr. Duryodhan Sahu Ors. v. Jitendra Kumar Mishra Ors. [(1998) 7 SCC 273], Dattaraj Nathuji Thaware v. State of Maharashtra Ors. [(2005) 1 SCC 590], Ashok Kumar Pandey v. State of West Bengal [(2004) 3 SCC 349], Hari Bansh Lal v. Sahodar Prasad Mahto Ors. [(2010) 9 SCC 655] and Girjesh Mr.vastava Ors. v. State of M.P. Ors. [(2010) 10 SCC 707] for the proposition that a dispute relating to a service matter cannot be entertained as a Public Interest Litigation. 10. Mr. Rao next submitted that the Division Bench has recorded a clear finding in its order dated 13.07.2011 that the allegations regarding irregularities and illegalities against Mr. Harish Dhanda in the writ petition do not stand substantiated ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ution, the High Court cannot direct the Government to exercise its discretion by following a procedure prescribed by the High Court. He cited Supreme Court Employees Welfare Association v. Union of India Anr. [(1989) 4 SCC 187], Suresh Seth v. Commissioner of Indore Municipal Corporation [(2005) 13 SCC 287], Divisional Manager, Aravali Golf Club Anr. v. Chander Hass Anr. [(2008) 1 SCC 683] and Asif Hameed Ors. v. State of J K Ors. [(1989) 2 Supp. SCC 364] in support of the aforesaid submission. He submitted that the appointments to the constitutional offices, like the Attorney General, Advocate General, Comptroller Auditor General, Chief Election Commissioner, Chairman and Members of the Union Public Service Commission and appointments to the topmost Executive posts, like the Chief Secretary or Director General of Police, has to be made within the discretion of the Government inasmuch as persons in whom the Government has confidence are appointed to the posts. He relied on E.P. Royappa v. State of Tamil Nadu Anr. [(1974) 4 SCC 3] and State of West Bengal Ors. v. Manas Kumar Chakraborty Ors. [(2003) 2 SCC 604] for this proposition. 13. Mr. Rao argued that in t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Nath Kunzru and Mr. H.V. Kamath in the Constitutional Assembly and argued that to perform this difficult job of finding the best talent for the State Public Services without any political influence and other extraneous considerations the Public Service Commission must have a Chairman of great ability, independence and integrity. 15. Mr. Lalit further submitted that this Court has also in a number of pronouncements emphasized on the need to appoint eminent persons possessing a high degree of competence and integrity as Chairman and Members of the Public Service Commission so as to inspire confidence in the public mind about the objectivity and impartiality of the selection to be made by the Public Service Commission. In this context he referred to the judgments of this Court in Ashok Kumar Yadav Ors. v. State of Haryana Ors. [(1985) 4 SCC 417], in R/O Dr. Ram Ashray Yadav, Chairman, Bihar Public Service Commission [(2000) 4 SCC 309], Inderpreet Singh Kahlon and Others v. State of Punjab and Others [(2006) 11 SCC 356] and Mehar Singh Saini, Chairman, Haryana Public Service Commission and others In Re (supra). 16. Mr. Lalit submitted that Mr. Harish Dhanda may be eligible f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ho belonged to the Indian Forest Service and was posted as Divisional Forest Officer, Ropar in Punjab, had alleged that he had been transferred out of Ropar and posted as Division Forest Officer, Ferozpur, because of an incident which had occurred on 21.06.2007 on account of which he incurred the displeasure of Mr. Harish Dhanda, who was then the Chief Parliamentary Secretary, Department of Local Government, Punjab. He alleged that Mr. Dhanda had been given the permission to stay at the Van Chetna Kendra/Forest Rest House at Pallanpur, District Ropar, for a few days, but later on he wanted to make the Forest Rest House as his permanent residence to which Mr. Amit Misra objected as the same was not permitted under the Rules and Mr. Amit Misra had directed the official incharge of the Rest House not to allow anybody to use the Rest House without getting permission and accordingly when Mr. Dhanda wanted the keys of the Rest House on 22.06.2007 he was not given the keys of the Rest House and Mr. Dhanda recorded a note addressed to the Principal Chief Conservator of Forests narrating the entire incident and ensured that Mr. Amit Misra was posted out of Ropar by an order of transfer date ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ision this Court has also explained that the High Court under Article 226 of the Constitution can issue writs in the nature of prerogative writs as understood in England and can also issue other directions, orders or writs. He vehemently submitted that the contention on behalf of the appellants that the High Court could not have issued a writ/order quashing the selection and appointment of Mr. Harish Dhanda is, therefore, not correct. 20. Mr. Lalit finally submitted that pursuant to the impugned orders of the Full Bench and the Division Bench of the High Court, the Search Committee was constituted by the Government for selection of the Chairman of the Punjab Public Service Commission and the Search Committee invited the names of eminent persons of impeccable integrity, caliber and administrative experience from all walks of life, to be considered for the post of the Chairman of Punjab Public Service Commission and thereafter the High Power Committee selected Lt. Gen. R.A. Sujlana (Retd.) who has been appointed by the State Government as the Chairman of the Punjab Public Service Commission in December, 2011 and he has been functioning as such since then. He submitted that the app ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Public Service Commission are sensitive and important and it is very essential that a person, who is appointed as the Chairman of the Public Service Commission, must possess outstanding and high degree educational qualifications and a great amount of experience in the field of selection, administration and recruitment and he must also be a man of integrity and impartiality. The respondent No.1 has alleged in the writ petition that the State Government has not laid down any qualification for appointment to the post of Chairman of the Punjab Public Service Commission and is continuing to appoint persons to the post of Chairman of Public Service Commission on the basis of political affiliation. In the writ petition, the respondent No.1 has also given the example of Mr. Ravi Pal Singh Sidhu, who was appointed as the Chairman, Punjab Public Service Commission on the basis of political affiliation and the result was that during his period as the Chairman of the Punjab Public Service Commission, several cases of undeserving candidates being selected and appointed to the Public Service Commission in the State of Punjab came to light and investigations were carried out leading to filing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re not in doubt. Therefore, I do not accept the submission of Mr. P.P. Rao, learned senior counsel appearing for the State of Punjab, that the writ petition was a service matter and the High Court was not right in entertaining the writ petition as a Public Interest Litigation at the instance of the respondent No.1. The decisions cited by Mr. Rao were in cases where this Court found that the nature of the matter before the Court was essentially a service matter and this Court accordingly held that in such service matters, the aggrieved party and not any third party can only initiate a legal action. 24. The next question that I have to decide is whether the Division Bench of the High Court, after having recorded a finding in its order dated 13.07.2011 that the allegations of irregularities and illegalities against Mr. Harish Dhanda in the writ petition do not stand substantiated, should have made an academic reference to the Full Bench of the High Court. As I have noticed, the respondent No.1 had, in the writ petition, relied on the constitutional provisions in Articles 315, 316, 317, 318, 319 and 320 of the Constitution to plead that the functions of the Public Service Commission ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and in re v. Mehar Singh Saini, Chairman, HPSC and others (2010) 13 SCC 586 : (2010) 6 SLR 717. 7. If it is so, question is how such persons are to be identified and selected and whether in the present case, procedure adopted is valid and if not, effect thereof. We are of the view that these questions need to be considered by a Bench of three Hon ble Judges. Accordingly, we refer the matter to a Bench of three Hon ble Judges. 25. It will be clear from the Paragraphs 6 and 7 of the order dated 13.07.2011 quoted above that the Division Bench of the High Court found that Article 316 of the Constitution, which provides for appointment of the Chairman and other Members of the Public Service Commission by the Governor, does not prescribe any particular procedure and took the view that, having regard to the purpose and nature of appointment, it cannot be assumed that power of appointment need not be regulated by any procedure. The Division Bench of the High Court was of the further view that the persons to be appointed must have competence and integrity, but how such persons are to be identified and selected must be considered by a Bench of three Judges and accordingly referred th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... strained to observe that this is a matter which needs the attention of the Parliamentarians and quarters concerned in the Governments. One of the factors, which has persuaded us to make this observation, is the number of cases which have been referred to this Court by the President of India in terms of Article 317(1) of the Constitution in recent years. A large number of inquiries are pending before this Court which itself reflects that all is not well with the functioning of the Commissions. The observations of this Court in the aforesaid case of Mehar Singh Saini Chairman, HPSC In Re (supra) relate to qualification and experience for appointment as Chairman/Members of the Commission and have nothing to do with the questions relating to the procedure for identifying persons of integrity and competence to be appointed as Chairman of the Public Service Commission, which were referred by the Division Bench of the High Court to the Full Bench by the order dated 13.07.2011. Mr. Rao is, therefore, not right in his submission that in view of the law declared by this Court in Mehar Singh Saini, Chairman, HPSC In Re (supra), there was no necessity for the Division Bench to make a referenc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... her find that although the aforesaid specific questions relating to the procedure for identifying persons of competence and integrity for appointment as the Chairman of the Public Service Commission only were referred by the Division Bench of the High Court, the Full Bench, instead of deciding these specific questions referred to it, has given directions to the State of Punjab and the State of Haryana to follow a particular procedure for appointment of Members and Chairman of the Public Service Commission till such time a fair, rational, objective and transparent policy to meet the mandate of Article 14 of the Constitution is made. I, therefore, agree with Mr. Rao that the Full Bench of the High Court has decided issues which were not referred to it by the Division Bench of the High Court and the judgment dated 17.08.2011 of the Full Bench of the High Court was without jurisdiction. 29. I may next consider the contention of Mr. Rao that as the Constitution has left it to the discretion of the State Government to select and appoint the Chairman and Members of a State Public Commission, the High Court cannot direct the Government to exercise its discretion by following a procedure ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... manner provided in clause (1) or clause (3) of Article 317. (3) A person who holds office as a member of a Public Service Commission shall, on the expiration of his term of office, be ineligible for re-appointment to that office. A reading of Article 316 of the Constitution would show that it confers power on the Governor of the State to appoint the Chairman and other Members of a Public Service Commission. It has been held by this Court in Mohinder Singh Gill Anr. v. The Chief Election Commissioner, New Delhi Ors. (supra) that an authority has implied powers to make available and carry into effect powers expressly conferred on it. Thus, under Article 316 of the Constitution, the Governor of a State has not only the express power of appointing the Chairman and other Members of Public Service Commission but also the implied powers to lay down the procedure for appointment of Chairman and Members of the Public Service Commission and the High Court cannot under Article 226 of the Constitution usurp this constitutional power of the Government and lay down the procedure for appointment of the Chairman and other Members of the Public Service Commission. The Full Bench of the Hig ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n must act fairly, without any pressure or influence from any quarter, unbiased and impartially, so that he society does not lose confidence in the Commission. The high constitutional trustees, like the Chairman and members of the Public Service Commission must forever remain vigilant and conscious of these necessary adjuncts. Despite these observations of this Court, the State Government of Punjab appointed Mr. Ravi Pal Singh Sidhu as the Chairman of the Punjab Public Service Commission between 1996 to 2002 and as has been noted in the judgment of S.B. Sinha, J. of this Court in Inderpreet Singh Kahlon and Others v. State of Punjab and Others (supra), allegations were made against him that he got a large number of persons appointed on extraneous considerations including monetary consideration during the period 1998 to 2001 and raids were conducted in his house on more that one occasion and a large sum of money was recovered from his custody and his relatives and FIRs were lodged and criminal cases initiated by the Vigilance Bureau of the State of Punjab. Writing a separate judgment in the aforesaid case, Dalveer Bhandari, J, had to comment: This unfortunate episode teaches us ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Governor for appointment of Chairman and Members of the Public Service Commission, the State Government has to select only persons with integrity and competence for appointment as Chairman of the Public Service Commission, because the discretion vested in the State Government under Article 316 of the Constitution is impliedly limited by the purposes for which the discretion is vested and the purposes are discernible from the functions of the Public Service Commissions enumerated in Article 320 of the Constitution. Under clause (1) of Article 320 of the Constitution, the State Public Service Commission has the duty to conduct examinations for appointments to the services of the State. Under clause (3) of Article 320, the State Public Service Commission has to be consulted by the State Government on matters relating to recruitment and appointment to the civil services and civil posts in the State, on disciplinary matters affecting a person serving under the Government of a State in a civil capacity, on claims by and in respect of a person who is serving under the State Government towards costs of defending a legal proceeding, on claims for award of pension in respect of injuries ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... State of Tamil Nadu Anr. (supra) in which it was held that the post of Chief Secretary is a highly sensitive post and the Chief Secretary is a lynchpin in the administration and for smooth functioning of the administration, there should be complete rapport and understanding between the Chief Secretary and the Chief Minister and, therefore, it is only the person in whom the Chief Minister has complete confidence who can be appointed as Chief Secretary of the State and hence the Chief Secretary of a State cannot be displaced from his post on the ground that his appointment was arbitrary and violative of Articles 14 and 16 of the Constitution. Mr. Rao also relied on the decision of a two-Judge Bench of this Court in State of West Bengal Ors. v. Manas Kumar Chakraborty Ors. (supra) in which it was similarly observed that the post of DG and IG Police was a selection post and it is not open to the courts to sit in appeal over the view taken by the appointing authority with regard to the choice of the officer to be appointed as DG and IG Police and for such selection, the Government of the State must play a predominant role. I am of the considered opinion that the Chairman of the P ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the powers of the High Court under Article 226 of the Constitution thus: This article is couched in comprehensive phraseology and it ex facie confers a wide power on the High Courts to reach injustice wherever it is found. The Constitution designedly used a wide language in describing the nature of the power, the purpose for which and the person or authority against whom it can be exercised. It can issue writs in the nature of prerogative writs as understood in England; but the scope of those writs also is widened by the use of the expression nature , for the said expression does not equate the writs that can be issued in India with those in England, but only draws an analogy from them. That apart, High Courts can also issue directions, orders or writs other than the prerogative writs. It enables the High Courts to mould the reliefs to meet the peculiar and complicated requirements of this country. Any attempt to equate the scope of the power of the High Court under Article 226 of the Constitution with that of the English Courts to issue prerogative writs is to introduce the unnecessary procedural restrictions grown over the years in a comparatively small country like Englan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Sinha, IAS, Mr. Harish Rai Dhanda , I find that a bio-data in one sheet has been placed at page 41 of the file, which reads as under: BIO DATA Harish Rai Dhanda S/o Sh. Kulbhushan Rai Resident: The Retreat, Ferozepur Road, Ludhiana Date of Birth: 15th May, 1960 Attained Bachelor in Arts from SCD Government College, Ludhiana, Punjab University, (1979). Attained Bachelor in Laws from Law College, Punjab University (1982). Registered with Bar Council of Punjab and Haryana as Advocate in 1982. Practiced Law at District Courts, Ludhiana from 1982 to 2007. Elected as President of District Bar Association, Ludhiana for seven terms. Besides the aforesaid bio-data, there is a certificate dated 06.07.2011 given by the Speaker, Punjab Vidhan Sabha, certifying that Mr. Harish Rai Dhanda, MLA, has resigned from the membership of the 13th Punjab Legislative Assembly with effect from 06.07.2011 and that his resignation has been accepted by the Speaker. The aforesaid materials indicate that Mr. Harish Dhanda had B.A. and LL.B Degrees and was practicing as an Advocate at the District Courts in Ludhiana and had been elected as the President of the District Bar Association, Ludhiana ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts WITH CIVIL APPEAL NO. 2685 OF 2012, CIVIL APPEAL NO. 3687 OF 2012 AND CIVIL APPEAL NOs. 1365-1367 OF 2013 [Arising out of SLP (Civil) Nos. 22010-22012 OF 2011] J U D G M E N T Madan B. Lokur, J. 1. While I entirely agree with Brother Patnaik, but given the seminal importance of the issues raised, I think it appropriate to separately express my views in the case. 2. The facts have been stated in detail by Brother Patnaik and it is not necessary to repeat them. The issues: 3. The primary substantive issue that arises for consideration is whether the High Court could have - and if it could have, whether it ought to have - interfered in the appointment, by a notification published on 7th July 2011, of Mr. Harish Rai Dhanda as Chairperson of the Punjab Public Service Commission. In my opinion, the answer to both questions must be in the affirmative. 4. However, it must be clarified that even though a notification was issued of his appointment, Mr. Dhanda did not actually assume office or occupy the post of Chair ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on of the Punjab Public Service Commission and of the Haryana Public Service Commission and a few other incidental issues. Public Interest Writ Petition in respect of a service matter : 7. At the outset, it is important to appreciate that the Chairperson of a Public Service Commission holds a constitutional position and not a statutory post. The significance of this is that the eligibility parameters or selection indicators for appointment to a statutory post are quite different and distinct from the parameters and indicators for appointment to a constitutional position. 8. The appointment of a Chairperson of a State Public Service Commission is in terms of Article 316 of the Constitution, which reads as follows: 316. Appointment and term of office of members.-(1) The Chairman and other members of a Public Service Commission shall be appointed, in the case of the Union Commission or a Joint Commission, by the President, and in the case of a State Commission, by the Governor of the State: Provided that as nearly as may be one-half of the members of every Public Service Commission shall be persons who at the dates of their respective appointments have held office for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ixed at six years or until the age of 62 years, whichever is earlier. 10. The security of tenure is confirmed by the provision for removal of the Chairperson of the State Public Service Commission from office as provided for in Article 317 of the Constitution. This reads as follows: 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 repor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f a State Public Service Commission. The flip side is that if an arbitrary appointment is made, removal of the appointee is a difficult process. 13. If the person walking on the street is appointed in a God-forbid kind of situation, as the Chairperson of a State Public Service Commission, what remedy does an aggrieved citizen have? This question arises in a unique backdrop, in as much as no eligibility criterion has been prescribed for such an appointment and the suitability of a person to hold a post is subjective. 14. In this context, three submissions have been put forward by learned counsel supporting the appointment of Mr. Dhanda. If these submissions are accepted, then one would have to believe that a citizen aggrieved by such an appointment would have no remedy. The first submission is that a writ of quo warranto would not lie since there is no violation of a statute in the appointment - indeed, no statutory or other qualification or eligibility criterion has been laid down for the appointment. Therefore, a petition for a writ of quo warranto would not be maintainable. The second submission is that the appointment to a post is a service matter . Therefore, a public in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al or other authority within the territory of India or under the control of the Government of India, or, as the case may be, of any corporation or society owned or controlled by the Government, as respects- (i) remuneration (including allowances), pension and other retirement benefits; (ii) tenure including confirmation, seniority, promotion, reversion, premature retirement and superannuation; (iii) leave of any kind; (iv) disciplinary matters; or (v) any other matter whatsoever; 19. It cannot be said that the Chairperson of the Public Service Commission holds a post in connection with the affairs of the Union or the State. He or she is not a Government servant, in the sense of there being a master and servant relationship between the Union or the State and the Chairperson. In view of the constitutional provisions pertaining to the security of tenure and the removal procedure of the Chairperson and members of the Public Service Commission, it can only be concluded that he or she holds a constitutional post. In this context, in Reference under Article 317(1) of the Constitution of India, In re, (1990) 4 SCC 262 it was held: The case of a government servant is, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ints to the cause of Commission being free from any influence or limitation. 24. A little later in the judgment, the Public Service Commission is described as a constitutional body . 25. This being the position, it is not possible to say that the Chairperson of the Public Service Commission does not occupy a constitutional position or a constitutional post. To describe the appointment to a constitutional post generically or even specifically as a service matter would be most inappropriate, to say the least. iii) Functional test 26. The employment embargo laid down in the Constitution and the functions of a Public Service Commission also indicate that its Chairperson has a constitutional status. 27. Article 319 of the Constitution provides that on ceasing to hold office, the Chairperson of a State Public Service Commission cannot take up any other employment either under the Government of India or under the Government of a State, except as the Chairperson or member of the Union Public Service Commission or as the Chairperson of any other State Public Service Commission. 28. Among other things, the functions of the State Public Service Commission include, as men ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as Chairperson of the Punjab Public Service Commission 34. However, as an aggrieved person he or she does have a public law remedy. But in a service matter the only available remedy is to ask for a writ of quo warranto. This is the opinion expressed by this Court in several cases. One of the more recent decisions in this context is Hari Bansh Lal wherein it was held that except for a writ of quo warranto, public interest litigation is not maintainable in service matters. This view was referred to (and not disagreed with) in Girjesh Shrivastava v. State of Madhya Pradesh, (2010) 10 SCC 707 after referring to and relying on Duryodhan Sahu (Dr.) v. Jitendra Kumar Mishra (1998) 7 SCC 273, B. Srinivasa Reddy, Dattaraj Nathuji Thaware v. State of Maharashtra, (2005) 1 SCC 590, Ashok Kumar Pandey v. State of W.B (2004) 3 SCC 349 and Hari Bansh Lal. 35. The significance of these decisions is that they prohibit a PIL in a service matter, except for the purposes of a writ of quo warranto. However, as I have concluded, the appointment of the Chairperson in a Public Service Commission does not fall in the category of a service matter. Therefore, a PIL for a writ of quo warranto in res ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nto. It is also entitled to issue a writ of declaration which would achieve the same purpose. 39. Finally and even more recently, in Centre for PIL v. Union of India, (2011) 4 SCC 1 the recommendation of a High Powered Committee recommending the appointment of Mr. P.J. Thomas as the Central Vigilance Commissioner under the proviso to Section 4(1) of the Central Vigilance Commission Act, 2003 was held to be non est in law and his appointment as the Central Vigilance Commissioner was quashed. This Court opined: At the outset it may be stated that in the main writ petition the petitioner has prayed for issuance of any other writ, direction or order which this Court may deem fit and proper in the facts and circumstances of this case. Thus, nothing prevents this Court, if so satisfied, from issuing a writ of declaration. Who may be appointed - views of this Court: 40. Having come to a conclusion that an aggrieved citizen has only very limited options available to him or her, is there no redress if an arbitrary appointment is made, such as of the person walking on the street. Before answering this question, it would be worth considering who may be appointed to a constitutiona ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n, like Caesar's wife, must therefore be above board. They occupy a unique place and position and utmost objectivity in the performance of their duties and integrity and detachment are essential requirements expected from the Chairman and members of the Public Service Commissions. 43. With specific reference to the Chairperson of the Public Service Commission who is in the position of a constitutional trustee , this Court said: 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. 44. Inderpreet Singh Kahlon v. State of Punjab, (2006) 11 SCC 356 was decided in the backdrop of a Chairperson of the Punjab Public Service Commission, an important constitutional authority , being put behind bars, inter alia, for being caught red-handed acc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y can be determined by taking into account the constitutional, functional and institutional requirements necessary for the appointment. Selection and appointment of Mr. Dhanda: 48. Given the views expressed by this Court from time to time, learned counsel for the writ petitioner submitted that Mr. Dhanda ought not to have been appointed as the Chairperson of the Public Service Commission. Three reasons were given in this regard and all of them have been refuted by learned counsel supporting the cause of Mr. Dhanda. They are: (1) There is a question mark about the character and conduct of Mr. Dhanda. (2) Mr. Dhanda lacks the qualifications and stature to hold a constitutional position of the Chairperson of a Public Service Commission. (3) The record shows that no meaningful and effective thought was given before appointing Mr. Dhanda as the Chairperson of the Public Service Commission. 49. As regards the first reason, certain allegations were made against Mr. Dhanda in the writ petition filed in the High Court. However, in its order dated 13th July 2011 a Division Bench of the High Court held that: As regards irregularities and illegalities pointed out in the petition, th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Chief Minister did not even bother to check whether or not Mr. Dhanda was an appropriate person to be appointed as the Chairperson of the Punjab Public Service Commission in the light of the adverse comment. The thorough and meticulous inquiry and scrutiny requirement mentioned in Inderpreet Singh Kahlon was not at all carried out. 54. As regards the second reason, the qualifications of Mr. Dhanda are as mentioned in his bio-data contained in the official file and reproduced by the High Court in the judgment under appeal. The bio-data reads as follows: - Harish Rai Dhanda son of Shri Kulbhushan Rai. - Resident: The Retreat, Ferozepur Road, Ludhiana. - Date of Birth: 15th May, 1960. - Attained Bachelor in Arts from SCD Government College, Ludhiana, Panjab University, 1979. - Attained Bachelor in Laws from Law College, Panjab University (1982). - Registered with Bar Council of Punjab and Haryana as Advocate in 1982. - Practiced Law at District Courts, Ludhiana from 1982 to 2007. - Elected as President of District Bar Association, Ludhiana for seven terms. 55. The High Court noted that the official file shows that Mr. Dhanda resigned from the members ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ification published on 7th July 2011. In other words, the entire exercise relating to the appointment of the Chairperson of the Public Service Commission was completed in a day. 60. Learned counsel supporting the appointment of Mr. Dhanda submitted that no procedure is prescribed for the selection of the Chairperson of the Public Service Commission. Therefore, no fault can be found in the procedure adopted by the State Government. It was submitted, relying on Mohinder Singh Gill v. Chief Election Commissioner, (1978) 1 SCC 405 that there is an implied power to adopt any appropriate procedure for making the selection and the State Government and the Governor cannot be hamstrung in this regard. 61. It is true that no parameters or guidelines have been laid down in Article 316 of the Constitution for selecting the Chairperson of the Public Service Commission and no law has been enacted on the subject with reference to Entry 41 of List II of the 7th Schedule of the Constitution. It is equally true that the State Government and the Governor have a wide discretion in the procedure to be followed. But, it is also true that Mohinder Singh Gill refers to Lord Camden as having said tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as follows: 4. Appointment of Central Vigilance Commissioner and Vigilance Commissioners.-(1) The Central Vigilance Commissioner and the Vigilance Commissioners shall be appointed by the President by warrant under his hand and seal: Provided that every appointment under this sub-section shall be made after obtaining the recommendation of a Committee consisting of- (a) the Prime Minister - Chairperson; (b) the Minister of Home Affairs - Member; (c) the Leader of the Opposition in the House of the People - Member. Explanation.-For the purposes of this sub-section, the Leader of the Opposition in the House of the People shall, when no such Leader has been so recognised, include the Leader of the single largest group in opposition of the Government in the House of the People. 65. As can be seen, only the establishment of a High Powered Committee (HPC) for making a recommendation is provided for - the procedure to be followed by the HPC is not detailed in the statute. This is not unusual since a statute cannot particularize every little procedure; otherwise it would become unmanageable and maybe unworkable. Moreover, some situations have to be dealt with in a c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... neral and Inspector General of Police (DG IP) in a State. This Court observed that the said post was of a very sensitive nature. It could only be filled up by a person in whom the State Government had confidence. Consequently, it was held that such a post need not be filled up only by seniority, but merit, credibility and confidence that the person can command with the State Government must play a predominant role in selection of an incumbent to such a post. 71. Finally, in Hari Bansh Lal, a case concerning an appointment to a statutory post of Chairperson of a State Electricity Board, reference was made to State of Mysore v. Syed Mahmood, AIR 1968 SC 1113, Statesman (P) Ltd. v. H.R. Deb, AIR 1968 SC 1495 and State Bank of India v. Mohd. Mynuddin, (1987) 4 SCC 486 and it was held: It is clear from the above decisions, suitability or otherwise of a candidate for appointment to a post is the function of the appointing authority and not of the court unless the appointment is contrary to the statutory provisions/rules. 72. These decisions are clearly distinguishable. First of all, none of the cited decisions dealt with the appointment to a constitutional position such as t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e is provided through a mechanism in our Constitution. The Chairperson of a State Public Service Commission, even though appointed by the Governor, may be removed only by the President on the ground of misbehaviour after an inquiry by this Court, or on other specified grounds of insolvency, or being engaged in any other paid employment or being unfit to continue in office by reason of infirmity of mind or body. There is no question of the Chairperson of a Public Service Commission being shifted out if his views are not in sync with the views of the Chief Minister or the State Government. 75. The independence of the post of the Chairperson or the member of the Punjab Public Service Commission cannot be forgotten or overlooked. That independence is attached to the post is apparent from a reading of the Punjab State Public Service Commission (Conditions of Service) Regulations, 1958 framed by the Governor of Punjab in exercise of power conferred by Article 318 of the Constitution. 76. Regulation 2(c) of the Punjab State Public Service Commission (Conditions of Service) Regulations, 1958 defines Member as: Member means a Member for the time being of the Commission and incl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is question arises in the context of the guidelines framed by the High Court and which have been objected to by the State of Punjab and the State of Haryana. This Court found itself helpless in resolving the dilemma in Mehar Singh Saini. This Court pointed out the importance of the Public Service Commission vis- -vis good governance and the common man . In this regard, it was observed that: The adverse impact of lack of probity in discharge of functions of the [Public Service] 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. It was then noted that: 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. 81. In this background and in this perspective, this Court drew a distinction between the exercise of legislative power by Parliament and the executive power of the Government. It was held that laying down the qualifica ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n elaborate procedure for the legislature to act thereunder. The legislature is supreme in its own sphere under the Constitution. It is solely for the legislature to consider as to when and in respect of what subject-matter, the laws are to be enacted. No directions in this regard can be issued to the legislature by the courts. 85. In Suresh Seth v. Commissioner, Indore Municipal Corpn., (2005) 13 SCC 287 this Court referred to Supreme Court Employees' Welfare Assn. and State of J K v. A.R. Zakki, 1992 Supp (1) SCC 548 and held: .. this Court cannot issue any direction to the legislature to make any particular kind of enactment. Under our constitutional scheme Parliament and Legislative Assemblies exercise sovereign power to enact laws and no outside power or authority can issue a direction to enact a particular piece of legislation. 86. There is, therefore, no doubt that this Court can neither legislate on the subject nor issue any direction to Parliament or the State Legislature to enact a law on the subject. 87. On the executive front , this Court expressed its helplessness in framing guidelines or parameters due to its lack of expertise in the field, data ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce positions under the State Government with utmost probity and transparency. There is need to take steps to ensure that only persons of high standing, intellectual ability and reputation are selected as Chairman and Members of the Public Service Commission. 90. In this context, the views of the Law Commission of India as contained in its 14th Report, which are at variance with the views of the Second Administrative Reform Commission contained in its 15th Report are worth highlighting, one of the reasons being that the luminaries who assisted the Law Commission reads like a veritable Who s Who from the legal firmament. This is what was said: Having regard to the important part played by the Public Service Commission in the selection of the subordinate judiciary, we took care to examine as far as possible the Chairman and some of the members of the Public Service Commissions in the various States. We are constrained to state that the personnel of these Public Service Commissions in some of the States was not such as could inspire confidence, from the points of view of either efficiency or of impartiality. There appears to be little doubt that in some of the States appointmen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... long line of decisions and it need not be reiterated again and again. The decisions include Kesho Nath Khurana v. Union of India, 1981 Supp SCC 38 (The Division Bench ought to have sent the appeal back to the Single Judge with the answer rendered by them to the question referred by the Single Judge and left it to the Single Judge to dispose of the second appeal according to law.). Kerala State Science Technology Museum v. Rambal Co., (2006) 6 SCC 258 (It is fairly well settled that when reference is made on a specific issue either by a learned Single Judge or Division Bench to a larger Bench i.e. Division Bench or Full Bench or Constitution Bench, as the case may be, the larger Bench cannot adjudicate upon an issue which is not the question referred to.). T.A. Hameed v. M. Viswanathan, (2008) 3 SCC 243 (Since, only reference was made to the Full Bench, the Full Bench should have answered the question referred to it and remitted the matter to the Division Bench for deciding the revision petition on merits.). And more recently, Saquib Abdul Hameed Nachan v. State of Maharashtra, (2010) 9 SCC 93 (Normally, after answering the reference by the larger Bench, it is for the Reference Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... process leading to the appointment of Respondent No. 4 [Mr. Harish Rai Dhanda] as Chairman of Commission was arbitrary, capricious or violative of Article 14? 99. The reformulation was explained by the Full Bench by stating that the first two questions were raised on behalf of the State of Punjab regarding the maintainability of the reference itself. In my opinion, the first two questions actually touch upon the maintainability of the writ petition itself. These issues should have been decided by the Division Bench and had it answered the questions in the negative, there would have been no need to make any reference to the Full Bench. 100. Much was sought to be made by learned counsel for the writ petitioner that the matter (that is the entire matter) was referred to the Full Bench. It is difficult to agree that the entire matter was referred to the Full Bench. Firstly, the word matter must take colour from the context in which it was used, which is with reference only to the two questions placed before the Full Bench. Secondly, even the Full Bench did not think that the entire matter was referred to it and that is why after answering the reference the matter was re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for impleadment. The case concerned the appointment of the Chairperson of the Punjab Public Service Commission and it should have and could have been left at that without enlarging the scope of the controversy before it. Production of the Chief Minister s advice: 105. Learned counsel for the State of Punjab submitted that the High Court could not have directed production of the advice tendered by the Chief Minister to the Governor. The basis of this argument is the order dated 1st August 2011 passed by the Full Bench. The relevant portion of the order reads as follows: Mr. Jindal, Addl. Advocate General shall also produce the record relating to the appointment process of respondent No.4 [Mr. Dhanda]. 106. The grievance made by learned counsel in this regard is justified. It need only be pointed out that in State of Punjab v. Sodhi Sukhdev Singh, (1961) 2 SCR 371 this Court clearly held that: It is hardly necessary to recall that advice given by the Cabinet to the Rajpramukh or the Governor is expressly saved by Article 163, sub- article (3) of the Constitution; and in the case of such advice no further question need to be considered. It is not necessary to say an ..... X X X X Extracts X X X X X X X X Extracts X X X X
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