Kashyap & ANR. Vs. Union of India & ANR.  INSC 1417 (7 August
SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION Writ Petition (Civil) No.
431 of 2008 Ram Kumar Kashyap & Anr. .... Petitioner Versus Union of India
& Anr. .... Respondents With Writ Petition (Civil) No. 511 of 2008 And Writ
Petition (Civil) No. 512 of 2008
The Chairman and 8 members of the Haryana Public Service
Commission were placed under suspension on 09.08.2008 by Governor of the State
of Haryana. A Reference was made under Article 317(1) of the Constitution of
India by the Hon'ble President of India. In these Writ Petitions the
petitioners have sought for a writ of certiorari for quashing the Reference
made on 31.07.2008 by the Hon'ble President of India under Article 317(1) of
the Constitution of India and also for a direction that the order of suspension
dated 09.08.2008 passed by the Governor of State of Haryana be declared as
illegal and be quashed. When the matter came up for consideration, learned
Senior Counsel appearing for the petitioners submitted that the first prayer
for the writ of certiorari to quash the order of Reference under Article 317
(1) of the Constitution of India is not pressed. Therefore, the only question
that arises for consideration in these Writ Petitions is whether the suspension
of 8 Members and the Chairman of Public Service Commission by the Governor of
Haryana by order dated 09.08.2008 is liable to be set aside or not.
We heard the learned Senior Counsel for the petitioners and also
counsel for the respondents. The main grievance of the petitioners is that they
were neither given show cause notice nor an opportunity to be heard before the
order of suspension was issued and thereby the principle of natural justice has
been violated. Before examining their submissions, it is necessary to consider
the language of the constitutional provisions which deal with the removal and
suspension of the members of Public Service Commissions. Article 317 of the
Constitution reads as follows:
"317. Removal and suspension of a member of a Public Service Commission(1)
Subject to the provisions of clause (3), the Chairman or any other member of a
Public Service Commission shall only be removed from his office by order of the
President on the ground of mis-behaviour after the Supreme Court, on reference
being made to it by the President, has, on enquiry held in accordance with the
procedure prescribed in that behalf under article 145, reported that the Chairman
or such other member, as the case may be, ought on any such ground to be
President, in the case of the Union Commission or a Joint Commission, and the
Governor in the case of a State Commission, may suspend from office the
Chairman or any other member of the Commission in respect of whom a reference
has been made to the Supreme Court under clause (1) until the President has
passed orders on receipt of the report of the Supreme Court on such reference.
Notwithstanding anything in clause (1), the President may by order remove from
office the Chairman or any other member of a Public Service Commission if the
Chairman or such other members, as the case may be,-- (a) as 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.
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 there from
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
to be guilty of misbehaviour."
Article 317 makes it amply clear as to how the members of the
Public Service Commission are liable to be removed from office and the founding
fathers of our Constitution incorporated this procedure in order to give the
Chairman and Members security of tenure to safeguard them against motivated or
wrong charges of misbehavior. The obvious intent behind the same is to protect
them from undue political pressures or personal favoritism and vendetta thereby
enabling the Public Service Commissions to discharge their constitutional
obligations in full measure.
It has been argued on behalf of the petitioners that the passing
of the common order of suspension by the Hon'ble Governor of the State of
Haryana would cause adverse civil consequences, they deserved a notice and an
opportunity of being heard before such order was passed.
petitioners have cited several judgments of this court such as those delivered
in State of Orissa v. Dr. (Miss) Bina Pani Dei and others (AIR 1967 SC 1269);
Sayeedur Rehman v. The State of Bihar & others, (1973) 3 SCC 333; S.L.
Kapoor v. Jagmohan & others, (1980) 4 SCC 379; and Olga Tellis & others
v. Bombay Municipal Corporation & others, (1985) 3 SCC 545, all of which
affirm the principle that an adverse order cannot be passed at the back of the
It is not necessary that principles of `audi alterem partem'
rigorously followed in the domain of service law need to be applied with the
same degree of rigour in proceedings involving the removal and suspension of
the members of the State Public Service Commission. This exceptional treatment
is mandated by Article 317. Furthermore, the issuance of suspension orders is
as per the `procedure established by law' and not in derogation from the same.
It will be useful to refer to a judgment of this court in Special
Reference No. 1 of 1983, (1990) 4 SCC 262, wherein it was held that the
position of a Chairman or a Member of a Public Service Commission cannot be
equated with that of a public servant and hence the case law pertaining to the
suspension and removal of public employees has no relevance in the context of
the proceedings under Article 317.
The relevant observations were made at Para 9:
The case of a government servant is, subject to the special provisions,
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 government by the special provisions dealing with different aspects of
his office as envisaged by the Articles 315 to 323 of Chapter II of Part XIV of
the constitution. In our view the decisions dealing with service cases relied
upon behalf of the respondent have 5 no application to the present matter and
the reference will have to answered on the merits of the case with reference to
the complaint and the respondents' deference"
Furthermore this court in Reference No. 1 of 2003, (2005) 6 SCC
789, has held that no hearing or opportunity of showing cause against the
proposed reference under Article 317 (1) is necessary before making the actual
reference. The relevant observations are as follows (Para. 2):
We have heard the learned Additional Solicitor General for the Union of India,
as also the learned counsel for the respondent on the preliminary objections.
We are of the opinion that no hearing or opportunity of showing cause against
the proposed reference under Article 317(1) is necessary before making the
reference. The first objection is overruled."
In Sayalee Sanjeev Joshi, In Re, (2007) 11 SCC 547, which
concerned the removal of a member of the Maharashtra Public Service Commission
under Article 317 on grounds of misbehaviour, this court had observed (Para.
... Since a request was made to the President of India to act in terms of
Article 317(1) of the Constitution, the placing of the respondent under
suspension under Article 317(2) of the Constitution was proper."
It is clear from the perusal of the above cases that the
petitioners were not entitled to an opportunity to show cause or to be heard
before the point of time that the orders of suspension were passed by the 6
Hon'ble Governor of Haryana under Article 317(2) after the President had
referred the matter to the Supreme Court. The rationale behind empowering the
Governor of a State to issue such an order for suspension even before the
reference is actually decided by the Supreme Court is to maintain the public
trust and confidence in the impartial and honest working of the said Public
Service Commission. It is a prerogative given to the State Executive, but the
members so suspended are given the opportunity to present their cases when the
actual reference is decided upon by the Supreme Court. It is open to the
members so suspended to present their point of view at that stage. After all,
it is only after the merits of the case have been examined that the Supreme
Court arrives at an answer to the reference and communicates the same decision
to the President for further action.
The Public Service Commission is an institution of the utmost
importance created by the Constitution of India under Article 315. For the
efficient functioning of a democracy it is imperative that the Public Service
Commissions are manned by people of the highest skill and irreproachable
integrity, so that the selections to various public posts can be immunized from
all sorts of extraneous factors like political pressure or personal favoritism
and are made solely on considerations of merit.
In Special Reference No. 1 of 1997, (2000) 4 SCC 309, this Court
discussed the role of the members of the Public Service Commissions and made
the following observations with regard to their duties and qualifications
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 in turn
are expected to be models themselves in their functioning.
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 and utmost objectivity in the performance of their duties and
integrity and detachment are essential requirements expected from the Chairman
and members of the Public Service Commissions."
At Para 31 of the same opinion, this Court further stated:
credibility of the institution of Public Service Commission is founded upon
faith of the common man on its proper functioning. The faith would be eroded
and confidence destroyed if it appears that the Chairman or the Members of the
Commission act subjectively and not objectively or that their actions are
suspect. Society expects honesty, integrity and complete objectivity from the
Chairman and Members of the Commission. The Commission must act fairly, without
any pressure or influence from any quarter, unbiased and impartially, so that
the society does not lose confidence in the Commission. The high constitutional
trustees, like the Chairman and Members of the Public Service Commission must
for ever remain vigilant and conscious of these necessary adjuncts."
It is very clear that since the Public Service Commissions are a
constitutional creation, the principles of service law that are ordinarily
applicable in instances of dismissals of government employees cannot be
extended to the proceedings for the removal and suspension of the members of
the said Commissions. Hence, we are of the opinion that the en bloc suspension
of the 8 Members and Chairman of the Haryana Public Service Commission by the
Hon'ble Governor of Haryana by an order dated 09.08.2008 under Article 317(2)
of the Constitution and the impugned notification dated 09.08.2008 are valid
and not liable to be quashed.
Writ Petitions are dismissed.
...................................CJI [K.G. BALAKRISHNAN]
......................................J. [ P. SATHASIVAM ]
......................................J. [ J. M. PANCHAL ]
2009 New Delhi.
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