Jai Shankar
Prasad Vs. State of Bihar & Ors [1993] INSC 143 (19 March 1993)
Sawant,
P.B. Sawant, P.B. Venkatachala N. (J)
CITATION:
1993 AIR 1906 1993 SCR (2) 517 1993 SCC (2) 597 JT 1993 (2) 356 1993 SCALE
(2)137
ACT:
Constitution
of India : Articles 316(1) & 317(3) (c)-Bihar State Public Service
Commission composed of eleven members- Appointment of seventh non-service
member-Whether violative of proviso to Article 316(1)-Blind acknowledged
scholar of English appointed as member of Public Service Commission- Whether
unfit to continue in office by reason of infirmity of body.
Words
& phrases: "Expression as nearly as may be one half"- Meaning in
the context of Art. 316(1) Constitution of India.
HEAD NOTE:
The
proviso to clause (1) of Article 316 of the Constitution requires that 'as
nearly as may be', one-half of the members of the Public Service Commission
shall be from service category. Clause (2) of the Article entities a member of
a Public Service Commission to hold office for a term of six years from the
date on which he enters upon his office or he attains the age of superannuation
provided therein whichever is earlier. Subclause (c) of clause (3) of Article
317 provides for removal of a member of the Public Service Commission by reason
of infirmity of mind or body.
Respondent
No. 6, a blind, acknowledged scholar of English and Associate Professor in the Patna University, was appointed the seventh non-service member of the Bihar
State Public Service Commission on 4th March 1991. The total strength of the Public
Service Commission was eleven. The other four members belonged to the services
category. On 11th
September 1991,
respondent No.5, the Chairman of the said Commission, gave a certificate
stating that the respondent has been performing his duties with exceptional
excellence without letting his blindness hinder his work and strongly
recommended conferment of a national award in recognition of his excellence
despite his blindness. On 22nd October 1991
the State Government addressed a letter to the Union Ministry of Home Affairs
recommending him for the prestigious national award of 518 'Padamshree' for his
services as a member of the Public Service Commission. On 15th March 1992 the President of India conferred on
him the National Award.
On 14th January 1992 the appellant, in a public interest
ligigation, challenged the appointment of respondent No. 6 as a member of the
Bihar Public Service Commission. The High Court dismissed the writ petition.
In the
appeal by special leave it was contended that the appointment of the seventh
member from the non-service category was violative of the proviso to Article
316(1) of the Constitution. It was submitted that the expression 'as nearly as
may be one-half' occurring in the said proviso has been used to convey that a
fraction may be ignored if the total number of members cannot be exactly halved
between service and non-service categories. The argument was that if the
representation of the service members of the Commission fell short of 50% then
all persons to be appointed on the Commission till the said proportion was made
up, had to be from the service category, that being their necessary
qualification. It was further contended that respondent No. 6 was totally blind
even from a date prior to his appointment and was unfit to be appointed by
reason of the said physical infirmity. The argument was that the blindness was
an infirmity of body and if it was a ground for removal from office under
Article 317(3) (c), it was much more a disqualification for appointment and
hence respondent No. 6 should be prevented from continuing in his office.
In the
affidavit riled on behalf of the State Government on 23rd January 1993 it was stated that although the
proviso to Article 316(1) was not mandatory, that by itself was not a good
ground for departing from the suggestion of the Constitution and hence the
appointment of respondent No. 6 as the 7th non-Government member was not
justified. It was further stated that at the time of the appointment, the
aspect about his blindness was not specifically considered as the same was
stated in the bio-data of respondent No. 6 in very causal way and in such a
manner that it had escaped the attention of the constitutional authorities at
the time of recommending respondent No. 6 for appointment. The affidavit
further stated that while conducting the interviews, members of the Commission
had to visually interview each of the candidates to determine his suitability
and after the appointment of respondent No. 6 it had come to 519 the notice of
the respondent-State that the blindness of respondent No. 6 was clearly
hampering the effective discharge of official duties by him.
It was
contended for respondent No. 6 that it was on account of his academic
distinctions, and with the full knowledge that he was totally blind from
childhood that he was appointed as a member of the Public Service Commission;
that his blindness did not come in his way of discharging his duties
effectively-, that the only thing he could not do was to assess the individuals
external personality on the basis of the candidate's external appearance, which
was not a material requirement for the candidates for many posts; that his
dependence upon the opinion of the other members of the interview board for
this aspect was not of a kind which vitiated the assessment of the interview
board as a whole;
that
he had made a representation to the President of India, the Governor of Bihar
and others, against the serious misconduct, gross malpractices and wilful
violation of the constitutional mandate by the Chairman of the Commission, and
that it was this dispute with the Chairman, who was backed by the Chief
Minister of the State, which had led to the writ petition.
Dismissing
the appeal, the Court,
HELD:
1.1.
Merely because at the time of appointment of respondent No. 6, there were four
service members and six non- service members, it cannot be said that he was
disqualified for being appointed as the 7th member from the non-service
category. [531D]
1.2.
The reasonable interpretation of the proviso to Article 316(1) of the
Constitution requiring that as nearly as may be one half of the members of the
Public Service Commission shall be from service category, is to treat it not as
a strict rule to be enforced but as a binding guideline to be followed in
practice in spirit as far as possible and without deliberately flouting it.
[531D]
1.3.
The expression "as nearly as may be" used in the proviso itself
suggests that the proportion of 50% of the service members is not exact but
approximate and is meant not to, be mandatory but directory. The said proviso
does not, in terms, say that In no case and at no point of time, the said
proportion should either go above or fall below 50%. The fraction is and can be
taken care of without the aid of the expression "as nearly as may bell,
and a document like Constitution does not have to Incorporate 520 normal rules
of interpretation. The need to have 50% members from the service category also
cannot be said to be of such paramount importance to the composition of the
Commission that the breach of it at any particular point of time would defeat
the very object of constituting the Commission. [528F-G, 529F]
1.4.
Furthermore, when the members are appointed, they are bound to differ in age,
whether they belong to the service category, or the non-service category. In
the normal course, they would retire at different points of time. At that time,
a suitable person from the same category may not be available to be appointed
in their place. It is not always possible to make an advance list of persons of
either category who are suitable for such appointment. Hence the total strength
of the Commission as well as the number from each of the categories, are bound
to vary from time to time.
At any
given point of time, therefore, it may not be possible to maintain the
proportion between the two categories strictly in accordance with the direction
given in the Constitution. [529B-C]
1.5.
By providing the proportion between the service and non-service members of the
Commission, the framers of the Constitution sought to strike a balance amongst
the two categories. However, on that account, the framers of the Constitution
cannot be presumed to ensure that on all occasions there shall be an exact
balance of views between these two categories of members. It is unrealistic to
believe that individuals with different backgrounds always insist on the
acceptance of the outlook dictated by their background alone and refuse to
share the viewpoint of others. It is certainly not expected of the members of
such high ranking constitutional body as the Public Service Commission.
Furthermore, the Service Commissions mostly sit in Committees and are aided and
assisted by experts from the concerned faculties, disciplines and departments. The
Committees take their decision collectively after due deliberations and
discussion. It is, therefore, the composition of these Committees and not so
much the composition of the Commission at any particular point of time that
matters. [530C-E]
1.6.
The appointing authority, therefore, cannot be said to have no option, under
any circumstance whatever, to allow reduction of representation from the
service category and a breach of the requirement contained in the proviso to
Article 316(1) by reasons of appointment of a 521 member from non-service
category would vitiate such appointment or the duties performed by such
appointee as a member of the Public Service Commission. [530G]
2.
Respondent No. 6 cannot be said to be unfit to carry on his duties as a member
of the Commission because of his blindness. Nothing concrete has been brought
on record to show that he had failed to perform his duties as a member of the
Commission efficiently. Except the external appearance of the candidates
appearing before him, he is able to ascertain the required merits or demerits
of the candidates, as to the other members of the Commission. The Commission
operates through Committees. For selecting the candidates for almost all
disciplines and departments, the experts from the concerned departments sit in
these Committees and the opinion of the experts ordinarily prevails in such
appointments since the members of the Committees, who are the members of the Commission
do not have the expertise in the relevant fields. This shows that all members
of the Commission sitting on the interview Committees have also to be guided in
their opinion by the experts. If respondent No. 6 has to take guidance only in
the matter of external appearance of the candidates, all members of the
Commission have to be guided by the experts with regard to the most vital
equipment of the candidates, viz., the intellectual caliber and the proficiency
of the candidates in the relevant subjects. There is,, therefore, nothing wrong
if only for external appearance, for which only a small percentage of the total
marks is reserved, respondent No. 6 has to depend on the advice, opinion or
guidance of other members of the Committees and the Commission. [532B-E]
3.1.
By 'infirmity of body' what is spoken of in sub-clause (c) of clause (3) of
Article 317 of the Constitution is an infirmity which disables the member from
discharging his functions as such member effectively. It is not every infirmity
of body or every loss of use of every limb of the body. The defect or deficiency
must be such as would disable the member from carrying out his duties
satisfactorily and consistent with the trust reposed in him.
The
said infirmity further must necessarily be such as has arisen after the
appointment and not the one which existed at the time of the appointment,
unless of course, the Government was unaware of the same at the time of
appointment. [533A-B, D]
3.2.
In the instant case, not only the blindness of respondent No. 6 522 does not
prevent him from discharging his duties expected of him, but in fact the
services rendered by him as such member have been eulogised and commended for a
national award by no other than the State Government itself and the Chairman of
the Commission, who had first hand knowledge of his functioning. This is apart
from the fact that the Governor who appointed him on the advice of the Council
of Ministers is presumed to have done so after satisfying himself that the loss
of eyesight was not an infirmity which would impede him in the discharge of his
duties. [533C]
4.1.
No responsible public authority could have made the claim that none of the
constitutional functionaries concerned was aware that respondent No. 6 was
totally blind from his childhood, when that fact must have been widely known in
the State and in all probability the extra-ordinary Abilities exhibited by him
despite his blindness must have been the main reason for his appointment as a
member of the Public Service Commission. The State Government should not have
considered it compulsive to allow such blatantly rabid statements to be made on
oath with impunity. The affiant by making such statement has made the
constitutional authorities look ridiculous and their functioning a mockery.
[534H-G]
4.2.
Neither the certificate given by respondent No. 5, the Chairman of the Public
Service Commission, on 11th
September, 1991 nor
the letter of the State Government to the Union Home Ministry dated 22nd October 1991, has been controverted by the
Chairman and the State Government. The averment in the affidavit that the
blindness of respondent No. 6 is hampering his work, therefore, has no basis.
The belated claim of the State Government against respondent No. 6 has its
obvious roots in the strained relations between him on the one hand and the
Chairman and the State Government on the other. [535E-F]
5. The
appellant and the respondent-State is directed to pay the costs of the appeal
to respondent No. 6. [537C]
CIVIL
APPELLATE JURISDICTION: Civil Appeal No. 1359 of 1993.
From
the Judgment and Order dated 16.1.192 of the Patna High Court in C.W.J.C. No.
446 of 1992.
K.N. Chaubey,
K. Pandeya and Mohan Pandey for the Appellant.
523 Gobinda
Mukhoty, N.N. Goswami, S.K. Bhattacharya, C.V.S. Rao Ms. K.K. Manglam, L. R.
Singh, Vikas Singh, Yunus Malik, B.B. Singh Ms. Vimal Sinha and Ms Kumud L. Das
for the Respondents. The Judgment of the Court was delivered by SAWANT, J.
Leave granted.
The
appellant is a member of the Bar. He had field a petition in the nature of a
public interest litigation under Article 226 of the Constitution of India
before the High Court of Patna praying for a writ of quo warranto challenging
the appointment of respondent No. 6, Dr. Shiva Jatan Thakur as a Member of the
Bihar, State Public Service Commission. The High Court dismissed the writ petition.
Hence
the present appeal.
2. The
attack against the appointment of respondent No. 6 is based on, two grounds:
[a] on
the date of his appointment i.e., 4th March, 1991 respond No. 6 was the seventh
non- service member. The total strength of the Public Service Commission being
eleven [uncluding the Chairman] the appointment of the seventh member from the'
non-service category, was violative of the proviso to article 316[1] of the
Constitution which requires that as nearly as may be one half of the members
shall be persons who have held office for at least ten years either under the
Government of India or under a Government of the State.
[b] respondent
no.6 was totally blind even from a date prior to his appointment and was unfit
to be appointed by reason of the said physical infirmity.
We
are, accordingly, required to consider whether these two grounds were
sufficient to disqualify respondent no. 6 from being appointed as a member of
the, commission.
3. In
his counter-affidavit, respondent No. 6 has stated among other or things, that
he happens to be the son of a peon retired form the Railway We are informed by Shri
Mukhoty, the learned counsel appearing for him 524 that he belongs to the
backward community of barbers. He has been blind since the age of eight years.
In spite of his blindness, he was able to pursue his educational career
successfully, and he earned degrees and diplomas. He is a Ph.D. in English of
the Patna University. He has been a University college teacher in English and he
was promoted to the post of Reader in English on the completion of bare eight
years of service. He was the first teacher of the Patna University who was unanimously recommended for the award of D. Litt. on
account of the excellence of his thesis written for Ph.D. As a scholar in
English, he has submitted papers to national and international conferences. He
is a life-member of the organisations who sponsor these conferences. The
Government of Bihar vide its D.O. letter No. 2740 dated 22nd October, 1991 sent
to the Union Ministry of Home Affairs, had recommended him for the prestigious
national award of 'Padmashree' for his services as a Member of the Public
Service Commission. The President of India on 15th March, 1992 conferred on him National Award which reads: "this
national award is given to Dr. Shiva Jatan Thakur in public recognition of his
outstanding performance as the most efficient employee". He has also
referred to the circumstances under which his present appointment came to be
challenged nearly 9-1/2 months after it was made.
While
he was appointed on 4th
March, 1991, the writ
petition was filed in the High Court on 14th January, 1992.
According
to him, he had made a representation to the President of India, the Governor of
Bihar and others, against the serious misconduct, gross malpractice and wilful
violation of the constitutional mandate by the Chairman of the Commission. The
present writ petition was filed in the High Court 18 days after a copy of the
representation was received by the Chairman, among others. It is his dispute
with the Chairman who according to him is backed by the Chief Minister of the
State which has led to the present writ petition. He has also stated that the
Chief Minister in his press interview given to the local Urdu daily, viz., Qaumi
Tanzeem and published on 27th
March, 1992, had made
his intentions public to move this Court against his ap- pointment. Those
averments are not controverted.
According
to him further, it was on account of his academic distinctions, and with the
full knowledge that he was totally blind from childhood, that he was appointed
as a Member of the Public Service Commission. He has also stated that his
blindness never came in his way either in the pursuit of his studies or in his
service as a teacher. His experience in the public Commission also showed that
the said defect did not come in his way of 525 discharging his duties
effectively. In this connection, he points out that the only thing he cannot do
is to assess the individual's external personality on the basis of the candidates
external appearance which is not a material requirement for the candidates for
many posts. He has further added that the Commission sits in Committees or
interview boards and every Committee usually consists of four or five persons
including members of the Commission and experts from the respective
departments. The marks awarded to the candidates are agreed upon after due
discussions and deliberations in the interview board. The advice of the experts
is a determinative factor in such decisions. When the members of the interview
board with non- technical and non-professional qualifications interview
candidates for technical and professional posts, they do so with the aid and
advice of the experts from the concerned departments.
Hence,
if he is required to depend upon the opinion of the other members of the
interview board for the external appearance of the candidates, that is not a
dependence of a kind which vitiates the assessment of the interview board as a
whole. In any case, the dependence is not worse than the dependence of the
members of the board on the opinion of the experts when they are not qualified
to adjudge the candidates for posts requiring the relevant expertise.
4. The
State Government has lent a tragicomic touch to the controversy by filing its
affidavit, the relevant contents of which deserve reproduction here for reasons
more than one. The pathos is made poignant by the fact that the affiant Shri
R.C. Vaish, Resident Commissioner of the State at New Delhi in his letter, which is placed on
record, has stated that the draft affidavit was approved by Hon'ble the Chief
Minister of the State. He has also stated that he has been authorised by the
Secretary of the concerned department to swear the affidavit. The relevant
portion of the affidavit reads as follows:
"That
the respondent-State upon reconsideration of the entire matter under
controversy feels that the words of the Constitution have to be interpreted in
letter and spirit and any departure from the express words of the Constitution
wherever such departure seems to be permissible under the Constitution should
be done only for sound and good reasons. In the instant case, the departure
with regard to appointment of members of the Bihar Public 526 Service Commission
was made only because the proviso to Article 316 (1) of the Constitution is not
mandatory.
Accordingly,
while appointment the respondent no. 6 as the seventh non-government member of
the B.P.S.C. the mandate of proviso to Article'316 (1) was not followed. it is
felt that the fact that proviso to Article 316(1) not being mandatory is by
itself not a good ground for departing from the suggestion of the Constitution
and accordingly, the appointment of respondent no.
6 as
member of the State Public Service Commission cannot be justified., At the time
of appointment of respondent no. 6 as 'a member of the Bihar Public Service
Commission he was the seventh non government member when' at that time there
were only four government members in a 'total strength of eleven members in the
B.P.S.C.
That
with ragard to the infirmity of the respondent no. 6, it is submitted that at
the time of appointment of respondent no. 6,the aspect about his blindness was
not specifically considered the same was stated in the Bio-data of the
respondent no. 6 in a very casual way and in such a manner that in had escaped
the attention of the Constitutional authorities at the time of recommending the
respondent No.6 for appointment to the post of member the B.P.S.C. In this
regard, it is submitted that the respondent no. 6 in his Bio-data while
praising his achievements had only stated that he is the first blind person to
have been awarded Ph.D.' There was no mention whether such blindness was
subsequent to birth or whether such blindness was congenial There was also no
details in the Bio-data stating whether such blindness was complete or the some
was partial, temporary, curable or not curable.
In these,facts,
the aspect about the blindness of. the respondent no. 6 was not specifically
considered by any of the Constitutional Authorities who are involved in the
appointment of a member to the State Public Service Commission.
That
in this regard it is further submitted that the nature of duty of a member of a
Public Service Commis- 527 sion is primarily to make selections for
appointments the various Govt. jobs of the State and accordinly while making
such recommendations the member of the State Public Service Commission has to
interview the eligible candidates. While conducting such interview, the member
of the State Public Commission is to visually interview each candidate to
determine his suitable.After the appointment of the respondent of the
respondent no. 6 it has come to the notice of the respondent no. 6, it has come
to the respondent no. 6 is clearly hampering the effective discharge of
official duties by the respondent no. 6".
[Emphasis
supplied] To appreciate the first attack against the appointment it is
necessary to reproduce the provisions of Article 316[1] and [2] of the Constitution
which relate to the appointment and the term of office of the members of the
Public Service Commissions, "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 Government 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 at least ten years, either under the igovernnient of
India or under the Government of a State, and in, computing the said period of
ten years any period before the commencement of this Constitution during which
a person has held office under the Crown in India or under the Government of an
Indian State shall be included.
[1-A]
x x x x x [2] A member of a Public Service Commission shall hold 528 office for
a term of six years from the date on which he enters upon his office or until
he attains, in the case of the Union Commission, the age of sixty-five years,
and in the case of State Commission or a Joint Commission, the age of sixty-two
years, whichever is earlier:
Provided
that [a] a member of a Public Service Commission may, by writing under his hand
addressed, in 'he case of the Union Commission or a Joint Commission, to the
President, and in the case of a State Commission, to the Governor of the State,
resign his office;
[b] a
member of a Public Service Commission may, be removed from his office in the
manner provided in clause (1) or clause (3) of Article 317.
[3] x x
x x XI It is apparent from these provisions that the Chairman and other members
of the State Public Service Commission are appointed by the Governor of the
State. The appointments are obviously made on the advice of the Council of
Ministers of the State. The proviso to Clause 11 of the Article requires that
"as nearly as may be", one half of the members of the Commission
shall be persons who on the dates of their respective appointments have held
office for at least ten years either under the Government of India or under the
Government of a State. For brevity's sake we may refer to this category of
members as service members. The expression "as nearly as may be"
itself suggest that the proportion of 50% of the service members is not exact
but approximate and is meant not to be mandatory but directory.
The
said proviso does not, in terms, say that in no case and at no point of time,
the said proportion should either go above, or fall below 50%. In the very
nature of things, a strict adherence to the said direction is not practicable
at any particular point of time. In the first instance, the superannauation age
of the member of the Commission is 62 years and his total tenure as a member
cannot exceed six years. He has to vacate his office either when his tenure
comes to an end or when he attains the age of 62 years whichever is earlier.
When the members are appointed, they are bound to differ in age, whether they
belong to the service category 529 or the non-service category. In the normal
course, they would retire at different points of time. If it is insisted, as is
done on behalf of the appellant, that the said requirement must be followed
strictly at all times, it would be well-nigh impossible to do so. Every time a
member, whether belonging to the service or the non-service category, retires,
there should be available a suitable person from the same category to be appointed
in his place.
It is
not always possible to make an advance list of persons of either category who
are suitable for such appointments.
Hence,
the total strength of the Commission as well as the number from each of the
categories, are bound to vary from time to time. At any given point of time,
therefore, it may not be possible to maintain the proportion between the two
categories strictly in accordance with the direction given in the Constitution.
It appears that it is for this reason that the words "at least half' used
in the proviso to Section 265 [1] of the Government of India Act, 1935,
corresponding to the present proviso to Article 316 [11, have been substituted
by the words "as nearly as may be one half'.
The
learned counsel appearing for the appellant, however, submitted that the
expression "as nearly as may be one half' has been used to convey that a
fraction may be ignored if the total number of members cannot be exactly halved
between service and non-service categories. We are afraid that this argument is
too simplistic. The fraction is and ran be taken care of without the aid of
such expression and a document like the Constitution does not have to
incorporate the normal rules of interpretation. It is clear that the framers of
the Constitution realised that to make the provision rigid was both inadvisable
and unnecessary. We have already demonstrated its impracticability. It can
further hardly be suggested that the need to have 50% from the service category
is of such paramount importance to the composition of the Commission that the
breach of it at any particular point of time would defeat the very object of
constituting the Commission. The purpose for which the said provision is made
is obvious. It was realised by the framers of the Constitution that the
democratic system can be maintain only if civil servants are appointed solely
on the basis of their merit adjudged by open competition, and only if they can
carry of the administration according to law independently, instead of under
pressure of their political superiors. Hence they provided for Public Service
Commissions as both the Union and the State level as autonomous bodies to
enable then to carry on their functions independently, fairly and impartially.
Since the Commission's main task was to recruit administrative personnel it was
530 necessary to have on the Commission members with sufficient administrative
experience. To induct persons of experience, it was imperative to provide that
a certain proportion of the members of the Commission should have had an actual
experience of running the administration so that the Commission is better able
to adjudge the fairness of firness of persons to be recruited in the
administration. However the very fact that the Service Commission was not
proposed to be constituted of the members from the service category exclusively
also shows that the framers of the Constitution did not desire that the outlook
of the service members alone should prevail while recruiting the personnel. The
view of the persons from outside the administration was also considered to be
equally imperative in selecting the personnel. A balance was therefore sought
to be struck by providing the e, in Detecting the proportion between the two
categories of members. It would, however, be naive to suggest on that account
that the framers of the Constitution presumed to ensure that on all occasions
there shall be an exact balance of views. It is unrealistic to believe that
individuals with different backgrounds always insist on the acceptance of the
outlook dictated by their background alone and refuse to share the view- point
of others. It is certainly not expected of the members of such high ranking
Constitutional body as the Public Service Commission. We cannot also lose sight
of the fact that the Service Commissions mostly sit in Committees and are aided
and assisted by the experts from the concerned faculties, disciplines and
departments. The Committees take their decision collectively after due
deliberations and discussions. It is, therefore, the composition of these
Committees and not so much the composition of the Commission at any particular
point of time that matters.
Hence,
we are unable to subscribe to the view that the proviso to Article 316 [1]
requiring that as nearly as may be one-half of the members of the Public
Service Commission shall be from service category leaves no option to the
Appointing Authority under any circumstance whatever, to allow reduction of
representation from that category and a breach of the said requirement by
reason of appointment of a member from non-service category vitiates such
appointment or the duties performed by such appointee as a member of the Public
Service Commission.
The
learned counsel for the appellant went so far as to contend that the said
requirement constituted a qualification of the member to be appointed every
time a vacancy is to be filled. According to him depending 531 upon the
shortfall in the representation of the respective category the member to be
appointed has to be either form the service or non-service category as the case
may be and that is an essential qualification for his appointment. The argument
was that is an essential as in the present case, the representation of the
service members of the Commission fell short of 50% then all persons to the
appointed on the Commission till the said proposition was made up had to be
from the service ctegory that being their necessary qualification. It is not
possible to accept this contention for the simple reason that as pointed out earlier,
it may be possible to get a suitable person either from service or non-service
category over a period of time and for want of suitable candidates from the
concerned category, the vacancies on the Commission may remain unfilled during
that period. The persons from the other category are available during that
period. The reasonable interpretation of the said proviso therefore is to treat
it not as a strict rule to be enforced but as a binding gudeline to be followed
in practice in spirit as far as possible and without deliberately flouting it,
Hence it is not possible to hold that merely because at the time of appointment
of respondent no. 6 there were four service members and six non-service members
he was disqualified for being appointed as the 7th member from the non-service
category.
5.
The, second attack which is based upon the blindness of respondent No.6 is
equally myopic. As has been pointed out earlier respondent no.6 been blind from
his childhood. In spite of his blindness he acquired high educational
qualifications and in fact at the time of his appointment he was an Associate
Professor in the Patna University. He is an acknowledged scholar of English Although the
Government has now come forward to disown any knowledge about his complete blindness
from the childhood, with which we will deal instantly they must be presumed to
have known the said infirmity and should be deemed to have formed the opinion
that in spite of his blindness, he was fit to be a member of thel Commission.
We see no reason to hold otherwise in the circimstances pointed out by
respondent no. 6 in his affidavit to which we have already referred. Nothing
concrete has also been brought on record to show that he has failed ot perform
his duties as a member of the Commission efficiently because of his blindness.
On the other hand as has been pointed out earlier the State Government itself
had recommended him for 'Padmashree' for his efficient discharge of the work as
a member of the Commission and that too over a short span of few months. We are
also in agreement with the contentin advanced on his behalf that 532 except the
external appearance of the candidates appearing before him, he is able to
ascertain the required merits or demerits of the Candidates, as do the other
members of the Commission. The Commission, as it normally should, operates
through Committees, and as regards the external appearance, the other members
of the Committees give him the required information on the basis of which he is
able to assess the overall merit of the candidates. The external appearance of
the candidates is also not of importance in all ap- pointments. What is futher
necessary to note is that for selecting the candidates for almost all
disciplines and departments, the experts from the concerned departments do sit
in the Committees and the opinion of the experts ordinarily prevails in such
appointments since the members of the Committees, who are the members of the
Commission, do not have the expertise. in the relevant fields. This shows that
all members of the Commission sitting on the interview Committees have also to
be guided in their opinion by the experts. If respondent No. 6 has to take
guidance only in the matter of external appearance of the candidates, all
members of the Commission have to be guided by the experts with regard to the
most vital equipment of the candidates, viz., the intellectual calibre and the
proficiency of the candidates in the relevant subjects. There is, therefore,
nothing wrong if only for external appearance, for which only a small
percentage of the total marks is reserved, respondent No. 6 has to depend on
the advice, opinion or guidance of the other members of the Committees and the
Commission. The decision of the interview board is always a collective one and
is taken after deliberation on the merits and demerits of the candidates which
are evaluated on the basis of various factors. We are, therefore, unable to see
as to how, in the circumstances, respondent No. 6 is unfit to carry on his
duties as a member of the Commission because of his blindness.
6.-The
attack, however, was sought to be strengthened by relying on the provisions of
sub-clause [c] of Clause [3] of Article 317 of the Constitution which provides
for removal of a member of the Public Service Commission on the ground that he
is, in the opinion of the President, unfit to continue in office by reason of
infirmity of mind or body.
The
argument was that the blindness was infirmity of body and if it is a ground for
removal from office, it is much more a disqualification for appointment and
hence respondent No. 6 should be prevented from continuing in his office.
We are
afraid that the first premise on which this limb of the argument is based
misses the obvious fact, viz., that by "infirmity of body" 533 what
is spoken of in the sub-clause in question, is an infirmity which disables the
Member from discharging his functions as such member effectively. It is not
every infirmity of body or every loss of use of any limb of the body. The
defect or deficiency must be such as would disable the Member from carrying out
his duties satisfactorily and consistent with the trust reposed in him.
We
have already pointed out that not only the blandness of respondent No. 6 does
not prevent him from discharging his duties expected of him, but in fact the
services rendered by him as such member have been eulogised and commended for a
National Award by no other than the State Government itself and the Chairman of
the Commission who had the first-hand knowledge of his functioning. This is
apart from the fact that the Governor who appointed him on the advice of the
Council of Ministers is presumed to have done so after satisfying himself that
the loss of eye-sight was not an infirmity which would impede him in the
discharge of his duties. The infirmity of body or mind which is referred to in
the sub-clause, further must necessarily be such as has arisen after the
appointment and not the one which existed at the time of the appointment unless
of course, the Government was unaware of the same at the time of the
appointment.
7. We
may now turn to the affidavit filed on behalf of the State Government. A
reading of the said affidavit leaves no doubt in our mind that it has been
filed only to prejudice the case of respondent No. 6 before us because, for
some reasons, he has fallen foul some persons in power. As is evident from the
portions of the affidavit reproduced above, firstly, a case is sought to be
made out there that respondent No.6 was appointed as the 'non-Government
member' of the Commission only because the proviso of Article 316 11 is not
mandatory. That may be so. But the affidavit then proceeds to state almost in
relenting terms that although the said proviso is not mandatory, that by itself
is not a good ground for departing from the "suggestion of the
Constitution" and hence the appointment of respondent No. 6 "as the
7th non-Government member" was not justified. It is not clear as to when
this wisdom dawned on the Government for the first time. The record further
does not show as to who had suggested his name to the Governor and whether the
decision was taken by the Council of Ministers as a whole or by the Chief
Minister or any of his colleagues alone and what advice was received or
obtained by them, if at all, while making the appointment. We are however,
happy to know that 534 the State Government "upon reconsideration of the
entire matter under controversy feels that the words of the Constitution have
to be interpreted in letter and spirit and any departure from the express words
of Constitu- tion....... should be done only for sound and good reasons".
We only hope that the State Government keeps that solemn declaration in mind
for all purpose and for all times to come and does not forget it the moment the
ink in the present proceedings dries.
But
more breast-beating of the Government is on the second issue viz, the blindness
of respondent no.6 The affidavit states that at the time of the appointment
"the aspect about his blindness was not specifically considered as the same
was stated in the Bio-data of the respondent no. 6 in a very casual way and in
such a manner that it had escaped the attention of the Constitutional
authorities at the time of recommending the respondent no.6 for appointment
.........". not to be outdone by this ludicrous averment, the affidavit
proceeds to state "that respondent No. 6 in his bio-data while praising
his achievements, had only stated that he is the first blind person to have
been awarded Ph.D. There was no mention whether such blindness was subsequent
to birth or whether such blindness was congenital..... There was [sic] also no
details in the Bio- data stating whether such blindness was complete, or the
same was partial, temporary, curable or not curable. It is then the case of the
State Government that in the view of these facts the aspect above the blindness
of the respondent No. 6 was not specifically considered by any of the Constituitonal
authorities who are involved in the appointment of a member to state Public
Service Commission". Since the affiant himself has brought into picture
the "Constitutional Authorities who are involved in the appointment the
aspect of the blindness of respondent no.6 was not specifically of a member to
the State Public Service Commission and has Stated that considered by them, we
cannot help observing that the affiant by making such statement as made the
Constitution authorities look ridiculous and their functioning a mockery in the
eyes of the public. We are anguished more on account of the that state Government
should have considered it compulsive to allow such blatantly rabid statement s
to be made on the oath with impunity. No responsible public authority could
have aware the that respondent No.6 was totally blindly from his childhood,
when that made the client that none of the constitutional functionaries
concerned was fact must have been widely known in the State and in all
probability the extra-ordinary abilities exhibited by him despite his blindness
must have 535 been the main reason for his appointment as a member of the
Public Service Commission. Any statement seems to be good enough, whether true
or untrue, so long as it is considered serviceable for thee immediate purpose
in hand. We refrain from making more comments which certainly such affidavits
deserve, in ample measure, and let the affidavit speak for itself.
The
affidavit further states that while conducting the interviews, members of the
Commission have to visually interview each of the candidates to determine his
suitability and after the appointment of respondent No. 6 "it has come to
the notice of the respondent-State that the blindness of the respondent No. 6
is clearly hampering the effective discharge of official duties by him. It is
necessary to remember in this ' connection that this affidavit has been filled
on 23rd January 1993. Respondent No.6 had filed his affidavit on 7th October,
1992.In that affidavit, respondent No. 6 has, among other things referred to,the
certificate given by respondent No.5, Dr. Ram Ashray, Yadav, Chairma of the
Public Service Commission on 11th September 1991 where he has stated that
respondent No. 6 "has been performing his duties with exceptional excel- lence
without letting his blindness hinder his work. I strongly recommend that Dr. Thakur
be awarded National Award in recognition of his excellence despite his
blindness." He has also referred in his affidavit to the letter of 22nd
October, 1991 of the State Government to the Union Home Ministry recommending
him for,the award of "Padmashree" for his services as a Member of the
Public Service Commission.
Neither
the certificate nor the letter has been controverted by the Chairman and. the
Government. In the face of the certificate and the Said recommendatory letter,
it is difficult to understand the basis on which it is now stated in the
affidavit that the blindness of respondent No.6 is hampering his work. There
is, therefore, no doubt in our mind that the affidavit has been filed for the
only purpose of seeking somehow the removal of respondent no.6 .Respondent No.
6 in his affidavit has alleged that he has since fallen 'but the respondent No.
5, the Chairman of the Commission and the Chairman is bent upon ousting him
from the Commission. To shows the animosity of the Chairman towards him he has
given a list of events alongwith his affidavit. These events have not been in controverted.
The High Court has referred to some of these events in paragraph 6 of its
judgment. Since they have a bearing On the Governments comments on his
performance, we may reproduce the events catalogued by the High Court.
536
"1. His P.A. has been replaced;
2. His
chamber, which contains two almirahs containing documents, has been locked up;
3. The
service of the reader, who is to read to him documents and journals and other papers
is not being provided to him and his services have been terminated;
4. The
use of staff car by him has been stopped;
5. His
orderly has been transferred;
6. The
Chairman of the Commission has issued instructions not to receive any document
from him or to obey his orders;
7. His
telephone bill for the month of Oct. 1991, for Rs. 598 only has not been paid
though a sum of Rs. 18,154 on account of telephone bill of the Chairman's
residence has been paid.
8. The
newspaper allowance payable to him is not being paid;
9. He
has not been allowed to attend the meetings of the Commission held on 11th
December. 20th December and 31st December, 1991 and he is not aware when any
other meeting has been held thereafter or not in as much as he has not been
provided with any notice in respect of the same;
10. He
has been physically prevented from going to inside [sic.] the campus of the
Commission since 28th of November, 1991." In the list of events
accompanying his counter-affidavit he has also referred to other incidents such
as the attempted physical assault on him by the Chairman during a meeting of
the Commission, the threats of physical liquidation administered from the
telephonic line of the Chairman, the complaints made by him to the police, to
the Chief Minister and to the 537 Governor etc. We do not desire to burden this
judgement, with the said details.
it is
also not necessary to make any comment upon the aforesaid events since they
speak for themselves. They only reinforce the conclusion that the belated claim
of the State Government that the appointment of respondent No.6 is invalid and
that his blindness hampers the discharge of his duties has its obvious roots in
the strained relations between him on the one hand and the Chairman and the
State Government on the other.
8.
While, therefore, dismissing appeal in the special facts of the case,, we also
direct both the appellant and the respondent-State of pay the costs of this
appeal to respondent No.6, in the amounts of Rs. 5,000 and Rs., 10,000 respectively.
P.S.S.
Anneal dismissed.
Back