TMI Blog2010 (11) TMI 944X X X X Extracts X X X X X X X X Extracts X X X X ..... sure proper administration of justice, the Auditor General to maintain the purity of the country's finances, expenditure and collection of taxes and lastly, the Federal Public Service Commission to maintain the purity and integrity of the country's services. 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. In re, Dr. Ram Ashray Yadav, Chairman Bihar PSC [(2000) 4 SCC 309], this Court observed as follows: 1. 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n turn, will affect effectiveness of administration of 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. 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 essent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Qualification Whether Past Date of Date of Date of . Chairman/ official or credentials Appointment normal premature Member non-official retirement/ resignation completion of term 1. Dr. Krishan Ph.D. Non- Vice 02-08-2000 1-08-2006 1.12.2004 Chander official Chancellor, Banger, G.J. 2. Sh. Narender Singh,BA (LLB) Non- Journalist (Member) 17.06.1998 16.06.2004 3. Sh. Dayal Singh, B.Sc. Engg. Official G.M. Industries, Haryana 03.07.1998 18.07.1998 - 4. Sh. Jagdish Rai, MAOfficial Lecturer (Member) 18.07.1998 17.07.2004 5. Sh. Mahender Singh Shastri, Shastri BA (LLB) Official Teacher O.T. (Member) 28.02.2000 27.02.2006 07.12.2004 6. Sh. Mehar Singh Saini BAMS Non- Private Official Practitioner (Member) 07.07.2000 06.07.2006 1.12.2004 7. Sh. Gulshan Bhardwaj LLB Non- Social Activist official (Member) 04.04.2001 09.08.2004 8. Sh. S.K. Gupta, B.A. Non- official (Member) 04.04.2001 03.04.2007 05.07.2004 9. Sh. Pardeep Chaudhary B.A. Non- Social Activist official(Member) 04.05.2002 03.05.2008 05.07.2004 The election to the Haryana Legislative Assembly was due in February, 2005 and the model code of conduct was imposed by the competent author ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Ex-Chairman) M.Sc. B.Ed. Non- School Teacher official 1.12.2004 30.11.2010 9. Sh.Ram Kumar Kashyap MA (Economics) (Member) LLB. Official Field Assistant in ESA Department 15/12/2004 14/12/2010 During its tenure, the Commission had made selections and recommended candidates for appointment to various posts in different cadres of the State. Subsequently, it came to the notice of the Government that various 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 claims 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. This resulted in the Chief Secretary, Government of Haryana, writing a letter dated 18th December, 2006, to the Secretary to the Governor of Haryana, requesting him to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reference prepared by the Government of Haryana it appears that S/Shri Mehar Singh Saini, Dungar Ram, O.P. Bishnoi and Chattar Singh, as members of the Selection Committee, recommended the name of Shri Pradeep Sangwan for the post of Drug Inspector on the basis of a bogus certificate for which an investigation was conducted by the State Vigilance Bureau, Chandigarh and subsequently an FIR was registered against these persons for various offences under the Indian Penal Code and the Prevention of Corruption Act, 1988 and for which these persons were arrested and challan has already been filed in the Trial Court, AND WHEREAS from the reference prepared by the Government of Haryana it appears that Shri Mehar Singh Saini, Chairman and S/Shri Dungar Ram, Chattar Singh, Yudhvir Singh, Satbir Singh, Om Prakash Bishnoi, Ranbir Singh Hooda, R.K. Kashyap and Smt. Santosh Singh as Members of the Haryana Public Service Commission refused to co-operate in the investigation being carried out by the State Vigilance Bureau in spite of the directions issued by the Hon'ble Supreme Court, in complaints regarding selections made by the Commission, AND WHEREAS I am satisfied from the above referred ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hich have 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 being Enquiry No.1 dated 16th May, 2005, Enquiry No.3 dated 21st April, 2005 and Enquiry No.4 dated 25th April, 2005. Enquiry Nos.1 and 3, related to allegations of corruption and irregularities in recommending candidates for appointment to different posts for the period 2000 to 2004, led to registration of FIR No.20 dated 18th October, 2005 under Sections 420, 468, 471, 120B IPC, read with Section 13(1)(c) and (d) of the Prevention of Corruption Act, 1988. For the investigations and enquiries above-referred, records were required by the investigating agencies and they wrote various letters to the authorities of the Commission to hand over the same for expeditious completion of inquiry. However, it is the case of the Government and the investigating agencies that the Commission did not cooperate at all and the records, despite repeated demands, had not been handed over to them. As a result of non- cooperation by the Chairman and Members of the Commission, proceedings in the Court were in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... attained finality. As a result of various enquiries being conducted by the Vigilance Bureau of State of Haryana and other investigating agencies in furtherance to FIR Nos.15 and 20 of 2005 dated 8th August, 2005 and 20th October, 2005 respectively, various documents/correspondence and other evidence came to light which, according to the State, pointed towards the involvement of the Chairman and Members of the Commission in mal practices, favoritism and even to some extent corruption in the functioning of the Commission in making selections and recommending names to the State Government for appointment to various posts. These documents, along with certain additional charges, were placed on record before this Court. Only three articles of charge were stated in the Presidential Reference. However, during the pendency of the matter before the Court and because of subsequent events the State Government filed additional articles of charge. Six charges were sought to be added to the charge-sheet, in all bringing the total to nine. From the record, it appears that the matter was heard at some length and on 22nd April, 2009, a Bench of this Court passed the following order: Heard Mr. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on committee, recommended the name of Shri Pradeep Sangwan for selection to the post of drug Inspector on the basis of the bogus certificate in which the charges of criminal conspiracy and indulgence in acts of corruption have been brought out against him. He has since been arrested and released on bail and the final investigation report has been placed before the criminal court for trial. His involvement in a case of criminal conspiracy, which is pending trial, constitutes misbehaviour under Article 317(1) of the Constitution. 3. That Shri Mehar Singh Saini refused to cooperate in the investigation being carried out by the State Vigilance Bureau, ins pite of the directions issued by the Hon'ble Supreme Court, in complaints regarding selections made by the Commission and his deliberate non-supply of documents needed in the inquiry and refusal to cooperate in the investigations. This constitutes misbehaviour within the meaning of Article 317(1). 4. That the bare reading of the contents of the additional documents placed on record, including inspection reports dated 24.1.2008/1.2.2008 and the interim order dated 14.1.2008, passed by the Hon'ble Punjab and Haryana High C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es committed during the selection process of Haryana Civil Services (Executive Allied), which was finalized by the Commission in 2002. 9. That Sh. Mehar Singh Saini, Chairman of Haryana Public Service Commission and the members S/Sh. Dungar Ram, Chattar Singh, Yudhvir Singh, Satbir Singh, Om Prakash Bishnoi, Ranbir Singh Hooda, Smt. Santosh Singh and R.K. Kashyap had taken a decision not to hand over the record to the investigating agency on the pretext that the State Public Service Commission, being a constitutional authority, enjoys a distinct status, despite the fact that the Hon'ble Punjab and Haryana High Court and Hon'ble Apex Court were pleased to direct the Commission to co-operate with the investigating agency. This deliberate act on their part clearly amounts to misbehaviour as envisaged under Article 317(1) of the Constitution of India for their removal. Thus, this Court has been called upon to examine whether the conduct of the Chairman/Members of the Commission amounts to misbehaviour in light of these approved articles of charge and the evidence produced on record, which would justify their removal in terms of Article 317(1) of the Constitution. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed to the Commission. The respondents are alleged to have managed their appointments to the Commission as its Chairman and Members. In support of these submissions, reference has been made to the qualification of the Chairman, who was a private practitioner with degree of BAMS, while some of the Members were graduates only. The wife of the former Chairman of the Commission, on his exit, was immediately appointed as a Member of the Commission; and Mehar Singh Saini was appointed as Chairman on 1st December, 2004, the very date on which his term as member was to expire. These appointments, thus, have been made only for gaining political mileage and to make selections on the basis of favouritism and other extraneous considerations. According to the learned counsel there is sufficient evidence, documentary and oral, on record to substantiate and prove the approved articles of charge in accordance with law. With reference to the charge of non- cooperation, it is contended that despite the order of the Punjab and Haryana High Court, the course of action adopted by the Chairman and Members of the Commission is not only misbehaviour but is contemptuous to the extent that it violates pruden ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. A bare 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. The object should be to provide the best persons from the available candidates for appointment in the State/Central ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... isbehaviour is made out. In light of the above provisions, it is obvious that normally this Court would follow the prescribed procedure and record its findings only on the articles of charge referred to by the President. However, in some cases, the Court may take cognizance and examine the articles of charge which are incidental/explanatory to the articles of charge mentioned in the Reference. In law, it may not be possible to examine charges which are entirely independent and unconnected with all or any of the articles of charge stated in the Presidential Reference. There has to be some link or inter-connection between the articles of charge subsequently suggested before this Court and the original articles of charge referred by the President. The question of any prejudice to the delinquent will not arise inasmuch as the concerned party is given full opportunity to challenge the articles of charge as well as the evidence led in support of charges by the Government, during the process of inquiry before this Court. Article 317(1) requires that the inquiry held by this Court is to be in accordance with the procedure prescribed in that behalf under Article 145 of the Constitutio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for the ends of justice, or to prevent abuse of the process of the Court. In the Matter of Reference under Article 317(1) of the Constitution of India [(1983) 4 SCC 258] (hereinafter referred to as `Reference 1 of 1983') this Court, while dealing with this aspect, clearly stated that the Court can appoint any officer of the Court, or direct an Additional/Sessions Judge or any other Judge, to record evidence. Evidence, as far as practicable, has to be recorded in accordance with the provisions of the Indian Evidence Act, 1872 and by way of filing affidavit, wherever directed, in view of the provisions of Order XIX of the Code of Civil Procedure, 1908. After recording of evidence, the matter is to be placed before the Court for regular hearing upon which, the Court is expected to make a report of its findings on the misbehaviour of the Chairman/Members of the Commission. Article 316 of the Constitution of India regulates appointment of Chairman and Members of a Public Service Commission. Proviso to Article 316(1) provides 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, h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Court. Such need may arise because of subsequent events, as a result of investigation or otherwise, and which have a direct connection to the matters in issue. Thus, the contention of the respondents that this Court can neither frame nor examine additional charges beyond, or in addition to, the articles of charge referred to in the Presidential Reference cannot be accepted as a proposition of law. The scope of inquiry by this Court is of a wide nature and has to be regulated by the procedure which may be prescribed by the Court in terms of the above stated provisions of law. In Reference 1 of 1983 referred by us supra, this Court also examined whether additional facts or grounds can be examined while holding an inquiry into the matters referred in the Presidential Reference and held as under: 7. ... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ated 5th October, 2005 in Reference No. 1 of 2004. The evidence was led by the parties and Smt. Joshi's conduct was found to be misbehaviour of the kind which would justify her removal from the office. While dealing with the Reference on these facts and discussing the scope of the inquiry to be conducted by the Court in terms of Article 317 (1) of the Constitution, the dictum of this Court as stated in para 5 of the judgment in Reference No. 1 of 1983 (supra) was reiterated with approval as follows: 5. The contours of enquiry when a reference is made by the President of India under Article 317(1) of the Constitution of India has been clearly drawn by this Court in Special Reference No. 1 of 1983 [1983] 3SCR639 . This Court therein has held that the President's prima facie satisfaction based on available materials was enough for making a reference to this Court under Article 317(1) of the Constitution of India and that there was no need for the President to obtain the opinion of any fact finding body before making a reference. The enquiry which this Court is required to hold is not into the limited question whether, on the basis of facts found by the President, the charg ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t too to the extent that the Court cannot examine any additional facts/subsequent events having a direct bearing, additional or supplementary articles of charge which are explanatory or intrinsically related with the charges specified in the Presidential Reference. Another facet of the same issue is the nomenclature of the proceedings before this Court while conducting an inquiry in terms of Article 317(1) of the Constitution. The proceedings prima impressionis may appear akin to the service jurisprudence as commonly understood. The basic requirements for the applicability of service jurisprudence are relationship of employer and employee, alleged misconduct being in breach of the rules/regulations controlling the conditions of service of such an employee and such charges then are to be proved in accordance with the specified procedure for imposition of minor and major penalties. The departmental proceedings have to be conducted in accordance with the specified rules and regulations. The concept of departmental enquiry under the service jurisprudence cannot be equated with the proceedings in an inquiry under Article 317(1) of the Constitution. This distinction is a marked one. K ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wered on the merits of the case with reference to the complaint and the respondent's defence. Therefore, principles of service jurisprudence may not be strictly applicable to the inquiry proceedings under Article 317(1) of the Constitution. Inter alia, it is for the reason that being constitutional body, the Chairman and Members of the Commission are to maintain much higher standards of performance and behaviour than the civil servants appointed to the state services. The next limb of the same argument is with regard to applicability of principles of criminal jurisprudence to the present proceedings in regard to opportunity of being heard, burden of proof and content of charges. 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. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... visions, governed by the law of master and servant, but the position in the case of a member of the Commission is different. The latter holds a constitutional post and is governed by the special provisions dealing with different aspects of his office as envisaged by Articles 315 to 323 of Chapter II of Part XIV of the Constitution. In our view the decisions dealing with service cases relied upon on behalf of the respondent have no application to the present matter and the reference will have to be answered on the merits of the case with reference to the complaint and the respondent's defence. Further in para 143, this Court held as under : 143...As we have indicated in the beginning, what we are concerned with is the appreciation of the evidence of PW 15 examined before us in the light of his cross-examination, the other evidence and in the light of his prior statement contained in Ext. 53. So viewed, it is really a question of believing or disbelieving the evidence of PW 15 given before us. We are not dealing with a prosecution and in that context the alleged confession of a co-accused. We are on a fact- finding enquiry based on the evidence before us and the probabili ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nce on these draft charges. This liberty was granted on the contention raised that the referred articles of charge are not complete and several facts have not been stated either in the Presidential Reference or in the Governor's letter of Reference. In face of this order, we are afraid that we cannot accept the contention now that charges 4 to 9 need be excluded from the zone of consideration by this Court. The approved articles of charge 1, 3, 5, 8 and 9 have been framed against all the nine private respondents. Charges 4, 6 and 7 have been framed only against respondent No.1. Lastly, Charge 2 has been framed against respondents No.1 to 4. While Charge 1 relates to lack of qualification and experience. Charges 3, 5 and 9 relate to non- cooperation by passing resolutions not to handover the records to the inquiring/investigating agencies. Charges 6 and 7 relate to influencing subordinates and abuse of public office by the respondent specifically named under these charges. Charge 2 attributes misbehaviour to respondent Nos. 1 to 4 in relation to irregular appointment of Pradeep Sangwan. Charge 3, as approved by this Court, relates to refusal on the part of all the responde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the Chairman and Members of the Commission in an unlawful manner to cover up their own mistakes. Further, Charge 8 is merely ancillary to Charge 4 which itself is not beyond the record which was placed before the President and, in any case, all these facts have come to light subsequently. We may also notice here that during the course of hearing, some of the original answer sheets were produced before us, however, the entire compilation was filed and accepted, during the recording of evidence in the present inquiry. Charges 6 and 7 of approved articles of charge are inter- connected. However, we may notice that these approved articles of charge are totally independent and are not incidental or explanatory to the articles of charge specified in the Presidential Reference. They do not even emerge directly from the record produced before us. The alleged malicious acts of influencing the subordinates to carry out the intended manipulations to favour desired persons and abuse of the public office and defending the illegal acts referred to in approved article 6 of the charges, therefore, cannot be gone into by this Court. We have already held that this Court can examine explanatory ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Court from office. To demonstrate this clear distinction, reference can usefully be made to Article 311 of the Constitution dealing with civil services. A civil servant such as Member of the All India Service or Civil Services of the State, though not a constitutional appointee in the sense understood under Articles 316 and 124, shall be dismissed or removed from office or reduced in rank only after holding an enquiry in which he has been informed of the charges against him and given a reasonable opportunity of being heard in respect of those charges. The concept of doctrine of pleasure, which is applicable to civil servants, is not attracted in the constitutional appointments under Articles 124 and 316. Removal is possible only when the conditions postulated under these Articles are satisfied. In order to clearly understand the fine distinction between misbehaviour and misconduct which at some places have even been treated synonymously, we may refer to some accepted definitions of these terms. In Law Lexicon 2nd Ed. 1997, the term `misbehaviour' is explained as under: ill-conduct: improper and unlawful behaviour. The term `misbehaviour', in a statute providing that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... misbehaviour nor misconduct has been defined in the Constitution or even in the Central Civil Services (Classification, Control and Appeal) Rules, 1965. Once an expression has not been defined, then it must be understood and explained in its common parlance, keeping in view the object sought to be achieved. In the case of R.P. Kapur v. S. Partap Singh Kairon [(1961) 63 Punj LR 780], the Court explained the term `misbehaviour' while dealing with the matter under the Public Servants (Inquiries) Act, 1850 and held that misbehaviour qua proceeding under that Act, in absence of definition, is a word of very wide import. `Misbehaviour', when employed in respect of holders of high offices, has a well understood and well defined meaning according to the tradition and standards maintained by the members of a particular service or office. This Court had the occasion to deal with the expression misconduct in the case of Narotanmal Chouraria v. M. R. Murli [(2004) 5 SCC 689] wherein the Court referred to its earlier judgment in the case of State of Punjab v. Ram Singh Ex- Constable [(1992) 4 SCC 54] and referred to paragraph 6 of that judgment with approval and held in paragraph 10 an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce or gross or habitual negligence in performance of duties. `Proved misbehaviour' is an expression clearly distinguishable from the above terms of `misbehaviour' and `misconduct' as is apparent from the language of Article 124(4) of the Constitution. Intent, gravity and onus are of a much higher degree. The prefix `proved' places an obligation of actually proving the misbehaviour before the parliamentary procedure for removal of a Judge can come into play. This Court in the case of Sub-Committee on Judicial Accountability v. Union of India [(1991) 4 SCC 699] held as under: 44. The Constitution intended a clear provision for the first part covered fully by enacted law, the validity of which and the process thereunder being subject to judicial review independent of any political colour and after proof it was intended to be a parliamentary process. It is this synthesis made in our Constitutional Scheme for removal of a Judge. If the motion for presenting an address for removal is envisaged by Articles 121 and 124(4) `on ground of proved misbehaviour or incapacity' it presupposes that misbehaviour or incapacity has been proved earlier. This is more so on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rchangeably in certain circumstances while in other they may have to be understood as clearly distinguishable. `Misbehaviour' may include behaviour that was not expected of the holder of the constitutional office but would not include `grave misconduct' or `proved misbehaviour'. This distinction has to be kept in mind by this Court where the constitutional mandate refers to `misbehaviour' which is an expression of very wide magnitude. As already held by this Court in the case of Reference No.1 of 2003 (supra), this term must be construed very liberally so as to bring within its ambit the behaviour of the Chairman/Member of the Commission which, as per settled norms, was not expected of him/her. The expression `misbehaviour' generally refers to a conduct which might erode the faith and confidence of the public at large in such constitutional office. Discussion on merits of the approved articles of charge Before we proceed to discuss the evidence on each approved article of charge, as well as record our findings in that regard, it is imperative to note, as already held, that we are only examining Charges 1 to 5, 8 and 9. Charges 6 and 7 do not require examinati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Article 316(1), one half of the members of the Commission shall be persons who, at the dates of their respective appointments, have held an office either under the Government of India or under the Government of a State for at least 10 years, implying that the remaining half of the Members of the Commission can be appointed by the Governor in accordance with law. `In accordance with law' means that they are to be appointed on the recommendation of the State Government as the Governor has to act on the advice of the Council of Ministers. The provisions of Article 316 of the Constitution do not lay down any qualification, educational or otherwise, for appointment to the Commission as Chairman/Member. One-half of the Members of the Commission, as nearly as may be, are expected to fulfil the requirement of holding appointments under the State or the Centre for a period of ten years. These Members are termed as `Official Members' while the others are `Non-official Members' as already indicated by us above. Even for the Official Members no specific academic qualification has been provided. In other words, there is no constitutional requirement of any particular academic quali ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... te vehemently argued that even if the constitutional provisions do not provide specific qualification and experience, still this Court should lay down such prescriptions keeping in view the high constitutional office that the private respondents hold. According to him, the Court should, at least, state clear guidelines in that regard for appointment to such office. We may refer to the judgment of this Court in Reference No.1 of 1997 In the Matter of Dr. Ram Ashray Yadav (supra), wherein the Court emphasized that keeping in line with the high expectations of their office and need to observe absolute integrity and impartiality in the exercise of their powers and duties, the Chairman and Members of the Public Service Commission are required to be selected on the basis of their merit, ability and suitability and they are expected to be role models for the persons whom they are going to select for Civil Services. The character and conduct of the Chairman and Members of the Commission, like Caesar's wife, must therefore, be above board. They occupy a unique place and position; utmost objectivity in the performance of their duties, integrity and detachment are essential requirements f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing to enter into such arena, we still feel constrained to observe that this is a matter which needs the attention of the Parliamentarians and concerned quarters 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 Government has led documentary and oral evidence and has opted to examine, as many as, 31 witnesses in support of the approved articles of charge. In regard to approved article of charge 1, we find that there is hardly any direct oral or documentary evidence. While this charge relates to lack of qualification, experience and stature, the Governor's letter to the President states that these persons influenced the Government in making their appointments. Of course, it is expected that persons being appointed to such high office should not use any influence or pressure or take favour from the Government in power but at the same time that f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aint against his selection was filed by one Rakesh Walia. Despite this, the candidate was not only selected but also recommended on the basis of the bogus experience certificate and subsequently appointed to the post of Drug Inspector by the State Government. The documents, which are on record and have been referred by the learned counsel in that behalf, are the application form and certificates submitted by the candidate, statements of witnesses including the witness from M/s. Zee Drugs, whose certificate was produced by the candidate for the purpose of satisfying the essential condition of experience before the Selection Committee. The counsel appearing for the Commission has not even attempted to deny these averments and the charge against these Members. However, on behalf of four private respondents, it is contended that it was not for the Members of the Selection Committee to verify the contents of the certificate. They have conducted the selection in accordance with law and no arbitrariness can be attributed to them. As many as 27 candidates were considered for the post and, ultimately, two names were recommended. Pradeep Sangwan, being at serial number 1, was then appoint ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e and a half years of experience in manufacturing of at least one of the substances specified in Schedule C appended to Drug and Cosmetic Rules, 1945 or one and a half years experience in testing of any such substance in a laboratory approved for the purpose by the Licensing Authority. Any application, which was incomplete and did not annex the required certificate of experience, was liable to be rejected straightaway. The last date of submission of application as well as for consideration of the eligibility criteria was 3rd September, 2004. Let us now examine the application that was submitted by Pradeep Sangwan. Pradeep Sangwan had submitted application No.25827, as per the endorsement made under receipt No. (??????? ?????? ) 713 dated (??????) 9th September, 2004. However, respondent No.5 had initialed the application with the date as 3rd September, 2004. This, obviously, means that the endorsement by respondent No.5 on the application was ante-dated to the actual date of receipt of the application. This application ought to have been rejected at the very threshold inasmuch as this was received after the prescribed last date of receipt of application i.e. 3rd September, 2004. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inant stated that he could file an affidavit to prove that the experience certificate was bogus and false. Copy of this complaint was sent to the Chairman of the Commission, Chief Secretary, Government of Haryana and Chief Minister of the State of Haryana. In response to the complaint, a note was put up to state that neither the complainant Rakesh Walia nor Pradeep Kumar was a candidate for the post and hence no action was required to be taken. It was put up for consideration, through the Superintendent, before Mr. Yudhvir Singh, Member of the Commission, who approved its filing and then it was also signed by the Chairman of the Commission. It needs to be noticed that this process adopted by the Commission and, particularly, by its Member and Chairman was not in consonance with the known canons of administrative jurisprudence. May be the names of Pradeep Sangwan and his father were stated incorrectly as Pradeep Kumar and Ram Singh in the complaint, but fact of the matter remains that Pradeep Sangwan was the selected candidate. Select list of only two persons had been prepared and approved by the Selection Committee. Thus it was expected that this complaint ought to have been examin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and oral evidence had been produced on record to show that the certificate annexed with the application of Pradeep Sangwan was not a genuine one and, in fact, he was never employed by M/s. Zee Drugs during the relevant period. It is, therefore, clear that he did not possess the requisite experience in terms of the advertisement. Another important aspect, which needs to be noticed, is that, in his affidavit, PW20, Hazari Lal, Deputy Superintendent of Police (since retired), has specifically stated that experts, invited by the Commission for this selection, were not provided the original record despite demand. PW20 had also recorded the statement of Dr. Mrs. Usha Batta, Senior Deputy Director, Health Department in that behalf. In other words, the members of the Selection Committee, namely, the private respondents, obviously favoured the selection of Pradeep Sangwan. PW2, Sajjan Kumar, who is Deputy Superintendent of Police had investigated the matter and also filed an affidavit, the relevant portion of which is stated as under : 1. That above noted case was registered following the Vigilance enquiry No.5 dated 16.5.2005, Chandigarh against Dr. K.C. Bangar, Chairman, Haryana ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ough these statements are inadmissible in evidence as far as a criminal trial is concerned, however, in the inquiry before this Court and even in a departmental proceeding, they can be considered to substantiate the facts which otherwise are being established by the concerned authority. We make it clear that it is not only the statements of the Investigating Officers and the witnesses which were recorded by him during the course of investigation are not the only basis for which we are drawing certain inferences. But they are certainly relevant considerations, which have to be kept in mind by the Court, while examining the matter in its entirety to see whether the misbehaviour complained of is attributable to and committed by the private respondents. Conclusion of misbehaviour of the private respondents shall further be substantiated by the fact that when the private respondents were cross-examining PW20, they did not even suggest that he had not recorded the statement of other witnesses including expert Dr. Mrs. Usha Batta correctly or not at all. On the contrary, the question was put suggesting that statement of this witness was recorded and a particular question was not put to th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rd of transparent and fair selection on merit. The application of Pradeep Sangwan was liable to be rejected at the very threshold in terms of condition No. 2 of the General Clarifications but the same was accepted and he was called for interview and selected. Despite the complaint, which subsequently was found to be correct, his name was also forwarded for appointment to the State Government. We are not holding that furnishing of the false certificate by Pradeep Sangwan was an act attributable to the Chairman/Members of the Commission but its acceptance, despite the complaint and the manner in which Pradeep Sangwan was selected and recommended for appointment to a very responsible post in the State Government, certainly is clothed in suspicion and favouritism. We are informed that Pradeep Sangwan is now no longer in service As a result of the above discussion, we are of the considered view that the conduct of the Members of the Commission, in processing the application of Pradeep Sangwan, endorsing and approving his name for the interview, selecting him and finally recommending his name for appointment to the post of Senior Drug Inspector, does not meet the standards of behaviour, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Chairman and Members of the Commission, only as an attempt to justify the manipulation and interpolations committed in the course of selection. Approved article of charge 9 is again extension of/explanatory to above approved articles of charge as it only refers to the resolution which were passed by the Chairman and Members of the Commission deciding not to hand over the records to the investigating agencies upon demand and despite directions. All these allegations of commissions and omissions according to the State Government amount to misbehaviour within the meaning of Article 317(1) of the Constitution and justify their removal from the office. We have already noticed that the contention raised, on behalf of the private respondents, is that the articles of charge are beyond the scope of Presidential Reference. There is no evidence to support them and, in any case, the alleged conduct does not amount to misbehaviour as it was a legitimate right of the Commission to claim privilege acting through its Chairman and Members. Thus, the decision not to furnish the records to the investigating agencies was justifiable. In the preceding paragraphs we have already held that t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to these complaints and the complaint made by 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. Favorite candidates were selected and it was also stated that there has been interpolation and manipulation of marks in the answer sheets of the selected as well as non-selected candidates. In furtherance to FIR No.15 dated 8th August, 2005, a charge-sheet, for the offences afore-stated, had been filed before the Court of competent jurisdiction on 30th August, 2006. Despite repeated demands, complete records were not given to the investigating agencies. It is clear from the record that during the period 25 th May, 2005 to 5th July, 2005, the Vigilance Bureau issued as many as 8 letters asking for the records in relation to different inquiries. 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. Var ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 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 it own course. XXX XXX XXX 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 c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... respondent to issue letters of appointment to them on the premise that they had duly been selected to the service. The High Court dismissed the Writ Petition noticing the fact that the elections in the State had been announced and model code of conduct had come into force, therefore, appointment letters were rightly not issued to them. The order of the High Court was challenged before this Court. While dismissing the appeal this Court in Jitendra Kumar v. State of Haryana [(2008) 2 SCC 161] noticed the disturbing feature of non-cooperation by the Commission in the Vigilance Enquiries and held as under: ...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 inquiry. 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 inquiry should be completed at an early date. It was argued that despite directions/observations of the Court still complete cooperation was not extended and there was conscious decision taken by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... clearly held that claim of privilege for non- production of documents with reference to Sections 123 and 124 of the Evidence Act, 1972 was not sustainable or justified. The Court further held that there was sufficient material on record to justify the issuance of search warrant under Section 93(1)(a) of the Code of Criminal Procedure and held that the State had the right to get the records from the Commission for the purpose of investigation and on latter's failure, the provisions of Section 93 of the Code of Criminal Procedure were rightly invoked. It observed that the Commission is a constitutional authority and it would not be in the fitness of things that a search is conducted in its office, but such a situation has been created by it. Liberty was granted to the Commission to produce documents, records before the Investigating Officer, Inspector of Police, Vigilance (Ambala Range). Despite such unambiguous and clear directions of the Court, the Commission, acting through the private respondents failed to hand over the records but chose to prefer an SLP before this Court being SLP (Crl.) No. 3649 of 2008. This Court on 16th May, 2008, granted stay of the operation of the Hig ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the part of the Chairman/Members of the Commission in furnishing record and documents to the investigating agencies; and 2. This attitude of the private respondents as well as the claim of privilege lacks bona fides, much less protects the constitutional stature of the Commission. PW6, P. Raghvendra Rao, in his detailed affidavit, at the very outset, denied the suggestion that FIRs were registered as a result of political vendetta. According to him, there were various complaints received by the Government which were examined and FIRs were registered in accordance with law. He has further stated that despite requests in writing and otherwise, records were not provided and when records were provided it has come to light that there has been manipulation and interpolation in the answer sheets and the entire selection process adopted by the Commission through private respondents for selection to various posts in the State cadre was arbitrary and contrary to rules. In the case of appointment to the post of Environmental Engineer and Assistant Environmental Engineer certain candidates were selected by the Commission, who admittedly were over age. The recruitment rules in question an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ates, which were produced. In the paper of Public Administration, the candidate with Sr. No. 1631 was originally awarded 84 marks in the paper for attempting five questions. The marks of this candidate thereafter had been scored out in a different ink and were reduced to 68. This candidate had got 16 marks for writing an answer to question No.7. The figure of 16 marks was scored out and instead the candidate was given `0' mark for the same. We have perused the answer to this question. Compared with answers given by other candidates, who have been awarded 16 or even more marks, the answer cannot be termed in any way inferior to the answer of the other candidates. Thus there appears to be no justification, whatsoever, for awarding 0 mark in place of 16 marks, which were originally awarded. Similarly, in the same paper a candidate with Sr. No. 1732 was original awarded, in all, 95 marks which were reduced to 84 by re-awarding marks in the answers to three different questions. Neither the figure of 84 in the tabulated statement for awarding marks nor any of the reduced marks in three questions are initialed by any examiner or appropriate authority. In Haryana Judicial Service Exami ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ding of record and non cooperative attitude adopted by the then Chairman/Members of the Commission, were not for bona fide reasons and, much less, to protect the constitutional stature of the Commission. On the contrary, the image of the Commission has been lowered in the eyes of the public and the rule of fairness and merit has been substantially ignored in processes of selection for different posts. It is true, and as argued on behalf of the private respondents, that there is no direct evidence before us to show that these manipulations have actually been carried out by the private respondents but it is equally true that they, being the Chairman and Members of the Commission, were duty bound to exercise proper administrative control to ensure judicious and fair selection and prevent any act of commission or omission which would diminish public confidence in the functioning of the constitutional body. The claim of privilege for non-production of documents lacks bona fide and was, primarily, intended to withhold the records from the Investigating Agencies to cover up the above misdeeds, irregularities and illegalities. Another pertinent document, which has been placed on record ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... signs on their answer sheets. Pramod Kumar had used a symbol of `Om' at the top of page No.1, 3 and 5 of General Knowledge paper and, thus, violated the instructions. The record of the judicial proceedings, which has been produced before this Court with affidavit or even without affidavit, has not caused any prejudice to the private respondents. First, they had full opportunity of defending themselves in the inquiry and second, they were parties in the proceedings before the High Court. The production of records, along with affidavit including the statements recorded by the Investigating Officer under Section 161 of the Criminal Procedure Code, can be taken note of in this inquiry. Of course, reference to these proceedings is limited to the purpose of examining the veracity of the evidence produced by the State in support of approved articles of charge other than charges 6 and 7 which are beyond the scope of Presidential Reference. We, certainly, are not expressing any view whether, on the basis of these statements, private respondents are even prima facie guilty of any offence in relation to those two charges. It is clear from the record that the private respondents chose ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rvices examination and a Member slapping the Chairperson of the Commission have been considered as misbehaviour within the meaning of Article 317 (1), then certainly, the present case discloses misbehaviour of graver nature. On a holistic view of the matter, it is apparent that irregularities and acts of irresponsibility committed by the private respondents delineate their misbehaviour in terms of Article 317(1) of the Constitution as it certainly lowers the dignity of the Commission. 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 th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t, are stated to be pending at different stages even to this day. In light of the above discussion now we may state our conclusions laconically and unambiguously as follows: 1. We hold that the State has failed to prove, even on the rule of reasonable preponderance of probabilities, Charge 1 of the articles of charge by leading any cogent evidence or on any legal principles. 2. We further hold that Charges 6 and 7 of the approved articles of charge is beyond the scope of Presidential Reference dated 31st July, 2008. Therefore, they are not required to be examined by us in the present inquiry. 3. Upon holding inquiry, in accordance with the procedure prescribed, we return the finding that private respondents, namely, Shri Mehar Singh Saini, Mrs. Santosh Singh and Shri Ram Kumar Kashyap, who are Chairman/Members of the Commission (presently under suspension) have failed to maintain the required standards of integrity and rectitude in performance of their constitutional duties, expected to be maintained by the holder of such coveted office. Hence approved articles of charge 2 to 5, 8 and 9 stand established. As such, the private respondents are guilty of misbehaviour on th ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
