Citation Codes

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Case Number

CWP No. 1871/2017

Advocates

Mr. Rajnish Maniktala, Senior Advocate, with Mr. Naresh Verma, Advocate.
Mr. Ashok Sharma, Advocate General with M/s. J. K. Verma, Adarsh Sharma and Ritta Goswami, Additional Advocates General and Mr. Rajat Chauhan, Law Officer, for respondent No. 1.
Mr. D.K. Khanna and Mr. Deven Khanna, Advocates, No. 2.
Mr. Satyen Vaidya, Senior Advocate with Mr. Vivek Sharma, Advocate, No. 3.

Judges

Justice L. Narayana Swamy
Justice Jyotsna Rewal Dua

Acts

Public Service Commission.-(1) Subject to the provisions of clause (3),
provisions of Articles 316 and 317 of the Constitution of India
Section 13(1)(e) and 13(2) of Prevention of Corruption Act, 1988
provisions of Article 316(1) of the Constitution of India
ARTICLE 316 CONSTITUTION OF INDIA
PREVENTION OF CORRUPTION ACT
Information Act, 2005

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Smart Summary

Structured Summary of the Opinion (L. Narayana Swamy, C.J.)

Factual and Procedural Background

The petitioner, a law student, filed a writ petition challenging the appointment dated 5.5.2017 of respondent No. 3 (Smt. Meera Walia) as a Member of the Himachal Pradesh Public Service Commission (HPPSC). The petitioner sought quashing of respondent No. 3's appointment and also prayed for a direction to the State to frame guidelines and parameters for appointment of the Chairman and Members of the Commission. The petitioner alleged that the appointment violated constitutional provisions and settled Supreme Court law and relied on information obtained under the Right to Information Act, 2005 to show alleged violations.

The State filed a detailed reply defending the appointment as made under Article 316(1) of the Constitution and asserting that respondent No. 3 met the requirements of that Article by virtue of prior statutory and educational posts. The Commission stated it had no role in the appointment. Respondent No. 3 challenged maintainability and disputed the petitioner's motive, also pointing out that she had been discharged by the Special Judge (Forests), Shimla, in respect of earlier criminal allegations and that the discharge was not challenged.

The High Court recorded preliminary consideration on maintainability: an earlier order dated 22.8.2017 rejected respondent No. 3's contention on maintainability, and the Court proceeded to examine the merits. After hearing and analysis, the Court dismissed the writ petition and declined to impose costs, though it admonished the State to frame selection procedures and guidelines for future appointments.

Legal Issues Presented

Whether the appointment of respondent No. 3 as a Member of the Himachal Pradesh Public Service Commission dated 5.5.2017 violated the constitutional provisions governing such appointments (principally Article 316 and related provisions) and settled Supreme Court law referred to by the petitioner.
Whether respondent No. 3 fulfilled the constitutional requirements to be appointed as a Member of the Commission.
Whether the writ petition (a public interest challenge) seeking quashing of the appointment and directions for framing guidelines/parameters is maintainable in the circumstances pleaded, including whether a third party (the petitioner) can challenge such an appointment.
Whether the State should be directed to frame procedural guidelines and parameters for selection and appointment of the Chairman and Members of the Public Service Commission.

Arguments of the Parties

Petitioner's Arguments

The appointment of respondent No. 3 violated constitutional provisions and Supreme Court precedent concerning appointments to Public Service Commissions.
Respondent No. 3 did not fulfil the requisite constitutional requirements to be a Member of the Commission.
The petitioner relied on information obtained under the Right to Information Act, 2005, including a copy of an FIR and related records, to show antecedents and alleged misconduct (FIR No.6 of 2008 under sections of the Prevention of Corruption Act, 1988).
The petitioner prayed for quashing of the appointment and for directions to the State to frame guidelines/parameters for future appointments to the Commission.

Respondent No. 1 (State)'s Arguments

The appointment was made under Article 316(1) of the Constitution by the Governor with requisite approval and in accordance with constitutional provisions. The Governor is the appointing authority for State Commissions.
Respondent No. 3 met the requirements of Article 316(1), having previously served in statutory and educational posts (Member, HP Private Educational Institutions Regulatory Commission; Principal, Rajkiya Kanya Mahavidyalaya; Director/Principal, SCERT Solan).
The criminal allegations were addressed in proceedings in which respondent No. 3 was discharged by the Special Judge; the petitioner did not challenge the supplementary report or the discharge order.
Accordingly, the allegations under the Prevention of Corruption Act were not maintainable as a basis to invalidate the appointment.

Respondent No. 2 (Commission)'s Position

The Commission stated it had no role in the appointment of the Member.

Respondent No. 3's Arguments

Raised a preliminary objection as to maintainability and questioned the petitioner's motive, noting that the petitioner singled her out without challenging other appointments made by the same procedure.
Submitted that no statutory criteria existed for appointment and that in absence of prescribed criteria quo warranto is not maintainable as a matter of course.
Pointed out that she had been discharged by the Special Judge (Forests), Shimla, in the criminal matter and that the discharge was not challenged.
Argued that she was appointed in view of institutional requirements and her academic and professional background.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Ashok Kumar Yadav v. State of Haryana, (1985) 4 SCC 417	Explains that appointments must conform to constitutional and legal requirements; courts should be cautious in casting aspersions on high office holders; emphasis on integrity and competence but recognition that appointment will not be invalid solely because extraneous considerations played a role if constitutional requirements were met.	The Court relied on this authority to observe that constitutional and legal requirements must be satisfied for appointment validity and to underline the need for integrity and competence in Commission members; the judgment was used to support the proposition that mere allegations or political associations do not automatically invalidate an appointment where constitutional requirements are met.
B. Krishna Bhat v. Union Of India, (1990) 3 SCC 65	Holds that Article 32 is not available to every public-spirited person's grievance; cautions against misuse of public interest litigation for extraneous or improper purposes.	The Court invoked this authority to caution against misuse of public interest petitions and to note that Article 32 is not a remedy for every grievance of public-spirited persons — supporting the Court's scrutiny of the petitioner's motive and conduct.
State of Punjab v. Salil Sabhlok, (2013) 5 SCC 1	Clarifies that PIL in service matters is generally prohibited except for quo warranto; appointment to constitutional offices may not be treated as an ordinary service matter; the Governor may lay down appointment procedure but discretion is limited by the purposes of the Commission (Article 320); the High Court under Article 226 should not normally interfere but can do so in exceptional cases where relevant factors have been ignored.	The Court relied substantially on these principles to set out the limits of judicial interference, to distinguish service matters from constitutional appointments, and to explain when the High Court may quash an appointment. The Court used this precedent to assess whether the State had ignored relevant considerations and whether interference was warranted.
In R/o Dr. Ram Ashray Yadav, Chairman, Bihar Public Service Commission, Special Reference No. 1 of 1997	Emphasises that the credibility of a Public Service Commission depends on faith in its proper functioning and that Commissioners must exhibit honesty, integrity and objectivity.	The Court cited this authority to stress the high expectations of integrity and independence for members of Public Service Commissions and to frame the constitutional purpose limiting the appointing authority's discretion.
(2000) 4 SCC 309	Cited by the petitioner as part of settled Supreme Court law on appointments to commissions (as referred to in the petition).	The opinion records that the petitioner referred to this authority; the Court did not undertake a separate detailed analysis of this specific citation in the body of the judgment beyond noting it formed part of the petitioner's referenced body of Supreme Court decisions.
(2006) 11 SCC 356	Cited by the petitioner as part of settled Supreme Court law on appointments to commissions (as referred to in the petition).	The Court noted the citation as part of the petitioner's bundle of Supreme Court precedents; no distinct separate application of this single citation is set out in the reasoning beyond its inclusion in petitioner's submissions.
(2009) 5 SCC 65	Cited by the petitioner as part of settled Supreme Court law on appointments to commissions (as referred to in the petition).	Recorded among the authorities referred to by the petitioner; the Court's reasoning did not separately analyze this specific citation in detail in the text of the opinion beyond noting it was relied upon by the petitioner.
(2010) 13 SCC 586	Cited by the petitioner as part of settled Supreme Court law on appointments to commissions (as referred to in the petition).	Noted as one of the judicial decisions the petitioner relied upon; the Court did not otherwise extract a distinct rule from this citation in the written reasoning apart from its inclusion in the petitioner's submissions.

Court's Reasoning and Analysis

The Court's analysis proceeded in the following sequence, drawing on constitutional text and the cited authorities:

Maintainability: The Court first addressed the preliminary contention that the petitioner, as a third party (a law student), lacked locus to maintain the petition. The Court recorded that it had earlier rejected respondent No. 3's maintainability objection by order dated 22.8.2017 and therefore proceeded to examine other aspects of the case.
Petitioner's conduct and "clean hands": The Court scrutinised how the petitioner acquired the court records and the FIR (a substantial file of 50–60 pages). The petition did not disclose the source of those documents; from that the Court inferred possible concealment of material facts and that the petitioner might have been used by interested persons. The Court applied the equitable principle that a litigant must come with "clean hands" and invoked the maxim suppressio veri expressio falsi (suppression of truth equates to an expression of falsehood). This reasoning weighed against the petitioner and undermined the petitioner's credibility.
Locus and nature of relief: The Court reviewed governing principles on who may challenge appointments to constitutional offices, drawing on precedent (B. Krishna Bhat; Salil Sabhlok). It observed that third parties ordinarily lack locus in service matters but noted the distinct position of constitutional appointments and the limited circumstances in which courts may intervene. The Court explained that Article 316 confers appointment power on the Governor and that the Governor has the capacity to lay down appointment procedure (and the High Court cannot usurp that constitutional power), but the State's discretion is impliedly limited by the purposes of Public Service Commissions as evident from Article 320.
Application of constitutional provisions and precedent: Relying on Article 316 and Article 317 texts reproduced in the opinion, and jurisprudence such as Ashok Kumar Yadav and Salil Sabhlok, the Court set the legal boundary for judicial review. The Court emphasised that where the constitutional and legal requirements have been complied with, mere allegations or political associations do not automatically invalidate an appointment. It also reiterated the constitutional expectation that Commission members should possess integrity, competence and impartiality.
Assessment of facts in the instant case: On the facts, the Court found that (a) the appointment was made following the constitutional route (appointment by the Governor with the State's involvement); (b) respondent No. 3 had held prior statutory and educational posts demonstrating experience relevant to Article 316(1); and (c) the criminal allegations in respect of which an FIR had been filed resulted in discharge by the Special Judge (Forests), Shimla — a discharge not challenged by the petitioner. Taking these matters together, the Court concluded that the appointment process, as reflected in the record, was not shown to be constitutionally defective.
Conclusion on the petitioner's motives and relief: Given the perceived concealment regarding source of documents, the absence of challenge to the discharge order, and the constitutional framework and authorities limiting judicial interference, the Court held that the petitioner had not acted with clean hands and that the petition failed on the merits. The Court considered imposing costs but refrained because the petitioner was a law student.
Ancillary directions: Although the Court dismissed the petition, it urged the State to formulate a memorandum of procedure, administrative guidelines and parameters for selection and appointment of the Chairperson and Members of the Commission to minimize the possibility of arbitrary appointments in future.

Holding and Implications

Holding: The writ petition is dismissed.

Implications / Consequences:

Direct effect: The Court upheld (by dismissal of the challenge) the appointment of respondent No. 3 — the petition failed and the appointment was not quashed.
Costs: The Court considered imposing costs on the petitioner but refrained given that the petitioner is a law student; thus no costs were ordered.
Procedure and administrative guidance: The Court expressly urged that the State of Himachal Pradesh should frame a memorandum of procedure, administrative guidelines and parameters for selection and appointment of the Chairperson and Members of the Public Service Commission to reduce potential arbitrariness in future appointments.
Precedential effect: The opinion does not purport to lay down a new legal principle beyond applying and reconciling existing constitutional provisions and precedent. The Court applied established authorities on the limits of judicial interference in appointments to constitutional offices and the requirements of integrity and competence for Commission members.

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Hem Raj v. State Of H.P. And Others

L. Narayana Swamy, C.J.:— The petitioner, by the medium of this petition, challenges the order of appointment of respondent No. 3 as a Member of Himachal Pradesh Public Service Commission dated 5.5.2017 with a further prayer to direct the respondent/State to frame guidelines and parameters for appointment of Chairman and Members of the Himachal Pradesh Public Service Commission (hereinafter referred to as ‘the Commission’).

2. It is stated that the petitioner being a law student, went through the constitutional provisions pertaining to the appointment of Chairman and Members of the Commission and also the judgments rendered by the Hon'ble Supreme Court of India in this regard. The petitioner accordingly, applied for information under the Right to Information Act, 2005 and was shocked to see that the constitutional provisions as well as law laid down by the Hon'ble Supreme Court has been violated while making selection and appointment of respondent No. 3 as a Member of the Commission. It is submitted that respondent No. 3 does not fulfil requisite constitutional requirement for being appointed as Member of the Commission.

3. To substantiate his stand, the learned Senior Counsel for the petitioner refers to the constitutional provisions, i.e., Article 316, relating to appointment and terms of office of Member; Article 317, the removal and suspension of a Member of a Commission; Article 318 which empowers the State Government to determine number of members of the Commission and their conditions of service; Article 319 which contains the prohibition as to holding of office by the Members of Commission on seizing of such Member; and Article 320, which lays down functions of Commissions. The petitioner has also referred to law settled by the Supreme Court in (1985) 4 SCC 417, (2000) 4 SCC 309, (2006) 11 SCC 356, (2009) 5 SCC 65, (2010) 13 SCC 586 and (2013) 5 SCC 1.

4. In this background it has been averred in the petition that the Additional Chief Secretary (Personnel) placed the matter before the Hon'ble Chief Minister, Himachal Pradesh for taking a decision for appointment of a suitable person as a Member of the Commission. The file was then placed before the Hon'ble Chief Minister who made the following observation:

“Smt. Meera Walia may be appointed as a Member of the HPPSC as a women and an educationist.”.

5. Thereafter the matter was placed before His Excellency, the Governor of Himachal Pradesh and Smt. Meera Walia-respondent No. 3 was appointed as Member of the Commission. It is stated that no other person than respondent No. 3 was considered for appointment as Member of the Commission and no inquiry with respect to her integrity, honesty, credibility or qualities was ever undertaken. The decision to appoint respondent No. 3 as Member was taken only by Hon'ble Chief Minister and not by State Government and no deliberative process was ever undertaken by the State Government for such appointment. It is further stated that one FIR No. 6 of 2008 dated 22.5.2008 was registered against respondent No. 3 and her husband Sh. Subhash Ahluwalia in State Vigilance and Anti-Corruption Bureau, Police Station Shimla, under Section 13(1)(e) and 13(2) of Prevention of Corruption Act, 1988 and a challan under Section 173 of Cr.PC was filed before the Special Judge (Forests), Shimla. However, Shri. Subhash Ahluwalia, husband of respondent No. 3 who happened to be the Principal Private Secretary to Hon'ble the then Chief Minister, could not be charge-sheeted for want of prosecution sanction from the Government of India.

6. The gist of the charge-sheet was that respondent No. 3 and her husband have accumulated wealth disproportionate to their known sources of income. The children of respondent No. 3 are stated to be studying abroad and they have also purchased an orchard by way of benami transaction. It is stated that respondent No. 3 and her husband are frequently visiting abroad by spending huge money but the source of money has not been disclosed. The said case remained pending from the year 2008 for one reason or the other but on 25.12.2012, the Congress Government was sworn-in in the State of Himachal Pradesh and on 26.12.2012, the statement was made by the learned counsel for the accused that the State wanted to file another report in this case. Thereafter a supplementary report was filed in the Court below on 1.7.2013 which stated that no case of disproportionate assets was made out against the accused-respondent No. 3 herein and she was discharged vide order dated 9.9.2014.

7. It is contended that respondent No. 1-State while appointing respondent No. 3 as a Member of Commission has not taken into consideration the mandate of Article 316 of the Constitution. Therefore, the faith of a common man is shattered when the persons against whom some serious allegations are leveled, are appointed. It has also been averred that the deliberative process has not been done in the present case for appointment of respondent No. 3 as a Member, which means that thorough discussion preceded by an inquiry in the antecedents, credibility, honesty of the candidate(s) and other requirements as laid down by the Hon'ble Supreme Court has not been done.

8. On these grounds, learned Senior Counsel for the petitioner prays that the appointment of respondent No. 3 may be quashed and set aside. It is further prayed that in view of the directions issued by the Hon'ble Supreme Court, the State may be directed to frame guidelines or parameters for appointment of Chairman and Members of the Commission.

9. Respondent No. 2-Commission has filed statement/reply and stated that the respondent-Commission has no role in the appointment of Member of the Commission.

10. Respondent No. 1 has filed the detailed reply and it is stated that the appointments of Chairman and other Members of the Commission are made under the provisions of Article 316(1) of the Constitution of India with the approval of His Excellency the Governor of Himachal Pradesh which provides that the Chairman and other Members of a State Commission shall be appointed by the Governor of the State, provided that as nearly as may be one half of the Members shall be persons who at the dates of their respective appointments have held office for at least ten years either under the Govt. of India or under the Government of a State. It is further stated that respondent No. 3-Ms. Meera Walia, prior to her appointment as Member in the Commission was serving as Member, Himachal Pradesh Private Educational Institutions Regulatory Commission, which is a statutory body and her suitability and integrity was not disputed even by the present petitioner while holding the said position by her at that relevant point of time. It is stated that she also remained as Principal, Rajkiya Kanya Mahavidyalaya (RKMV) Shimla and Director/Principal, State Council of Education Research and Training (SCERT) Solan and meets the requirements prescribed under Article 316(1) of the Constitution. It is stated that the petitioner himself has admitted that the Special Judge (Forests) Shimla has discharged respondent No. 3 and he has also not questioned the supplementary report or discharge order by the Special Judge, as such, the averments with regard to serious charges/allegations under the provisions of Prevention and Corruption Act against the private respondent are not maintainable.

11. The contesting respondent No. 3 has also filed her reply and has taken a preliminary ground of maintainability of the writ petition and has disputed the motive of the petitioner. It is stated that the petitioner had singled out respondent No. 3 by challenging her appointment without challenging the appointment of other persons, who were appointed as Chairman and Members by adopting the same procedure. Respondent No. 3 in her reply has mentioned the names of Chairman and Members appointed w.e.f. 2013 to 2017 in para 1 of the preliminary submissions by following the same procedure by which respondent No. 3 has been appointed. It is stated that no statutory criteria or parameters have either been laid down or prescribed for appointment as Chairman or Member of the Commission, therefore, in absence of such criteria or parameters, the writ of quo warranto is not maintainable.

12. It is further submitted that respondent No. 3 has been appointed as Member keeping in view the institutional requirements and the mandate of the Constitution of India and also keeping in view the excellent academic career of respondent No. 3. In respect of charge sheet, it is stated that respondent No. 3 was discharged by the Special Judge, (Forests), Shimla which was not challenged by anybody and against Sh. Subhash Ahluwalia, prosecution sanction could not be obtained due to refusal by the Government of India. Therefore, the learned Senior Counsel for respondent No. 3 prays for dismissal of the writ petition.

13. The petitioner by filing the rejoinder has refuted the averments made in the reply filed by the respondents and reiterated the averments contained in the writ petition.

14. We have heard the learned counsel for the parties and have carefully gone through the record.

15. The first ground taken by the respondent is about the maintainability of the writ petition. It is stated that the petitioner cannot maintain the writ petition as he is a third party. On consideration of the ground so taken on maintainability, this Court vide order dated 22.8.2017 has rejected the prayer made by respondent No. 3 on maintainability. Therefore, we proceed further to examine the case of the parties on other perspective also.

16. The contention of the petitioner is that he is a law student and he read about the appointment of respondent No. 3 in the news papers and social media. It is also stated that the appointment of respondent No. 3 is contrary to the Constitutional provisions and also the judgments rendered by the Hon'ble Supreme Court of India. He thereafter filed application under the Right to Information Act, 2005 and collected the information regarding appointment of respondent No. 3. It has to be noticed here that petitioner was having full knowledge of appointment of respondent No. 3, still he has not stated as to how he had acquired the documents pertaining to registration of a criminal case against respondent No. 3. He has produced the copy of FIR running about 50-60 pages but it is not forthcoming in the petition as to how he got the said papers. Therefore, it is presumed that the petitioner has not come to the Court with clean hands and has suppressed the material facts with further presumption that the petitioner has been made to use by some interested persons against respondent No. 3.

17. The law requires that a person should come to the Court with clean hands, clean soul and clean mind. The legal maxim suppressio veri expressio falsi means the suppression of the truth is equivalent to an expression of falsehood. It is further stated that respondent No. 3 while filing reply stated that the petitioner has singled out respondent No. 3 only without challenging the appointments of Chairman and other Members of the Commission, but, it is not forthcoming as to why petitioner has done so.

18. The petitioner has also extracted the provisions of Articles 316 and 317 of the Constitution of India which show that the petitioner is/was aware about the procedure to be adopted by the Constitutional Machinery and also aware of the judgments rendered by the Hon'ble Supreme Court on the point. Still he has challenged the appointment of respondent No. 3 which shows that he is having ill will against respondent No. 3 or has been used by some interested person against respondent No. 3.

19. Filing a petition in public interest, though, is permissible in view of the judgments of the Hon'ble Supreme Court of India but the same shall not be used for fulfilling ill motive and for different purpose.

20. The Hon'ble Supreme Court in B. Krishna Bhat v. Union Of India ., (1990) 3 SCC 65 in para 5 held that Article 32 of the Indian Constitution is not the nest for all the bees in the bonnet of ‘public spirited persons’.

21. In service jurisprudence, it is settled law that it is for the aggrieved person, i.e., non-appointee, to assail the legality of the offending action. Third party has no locus standi to canvass the legality or correctness of the action. Only public law declaration would be made at the behest of the petitioner, a public-spirited person by issuance of a writ of quo warranto. Therefore, assuming the appointment of the Chairperson or a Member of a Commission as a “service matter”, a third party or a complete stranger such as, the writ petitioner, cannot approach the Tribunal or High Court to challenge the appointment of respondent No. 3. The Hon'ble Supreme Court in State of Punjab v. Salil Sabhlok, (2013) 5 SCC 1 in para 88 held as under:

“88. The significance of these decisions is that they prohibit a PIL in a service matter, except for the purposes of a writ of quo warranto. However, as I have concluded, the appointment of the Chairperson in a Public Service Commission does not fall in the category of a service matter. Therefore, a PIL for a writ of quo warranto in respect of an appointment to a constitutional position would not be barred on the basis of the judgments rendered by this Court and mentioned above.”

22. The petitioner himself has stated that the appointment of respondent No. 3 is under Article 316 of the Constitution of India. It is apt to reproduce Article 316 of the Constitution of India herein.

“316. Appointment and term of office of members.-

(1) The Chairman and other members of a Public Service Commission shall be appointed, in the case of the Union Commission or a Joint Commission, by the President, and in the case of a State Commission, by the Governor of the State: Provided that as nearly as may be one-half of the members of every Public Service Commission shall be persons who at the dates of their respective appointments have held office for at least ten years either under the Government of India or under the Government of a State, and in computing the said period of ten years any period before the commencement of this Constitution during which a person has held office under the Crown in India or under the Government of an Indian State shall be included. (1A) If the office of the Chairman of the Commission becomes vacant or if any such Chairman is by reason of absence or for any other reason unable to perform the duties of his office, those duties shall, until some persons appointed under clause (1) to the vacant office has entered on the duties thereof or, as the case may be, until the Chairman has resumed his duties, be performed by such one of the other members of the Commission as the President, in the case of the Union Commission or a Joint Commission, and the Governor of the State in the case of a State in the case of a State Commission, may appoint for the purpose.

(2) A member of a Public Service Commission shall hold 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 a 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 the 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) A person who holds office as a member of a Public Service Commission shall, on the expiration of his term of office, be ineligible for re-appointment to that office.”

23. A bare reading of Article 316 of the Constitution would show that it confers power on the Governor of the State to appoint the Chairman and other Members of a Commission. Under Article 316 of the Constitution, the Governor of a State has not only the express power of appointing the Chairman and other Members of Commission but also the implied powers to lay down the procedure for appointment of Chairman and Members of the Commission and the High Court cannot, under Article 226 of the Constitution, usurp this constitutional power of the Government and lay down the procedure for appointment of the Chairman and other Members of the Commission.

24. The security of tenure is confirmed by the provision for removal of the Chairperson of the Commission from office, as provided for, in Article 317 of the Constitution. This reads as follows:

“317. Removal and suspension of a member of a Public Service Commission.-(1) Subject to the provisions of clause (3), the Chairman or any other member of a Public Service Commission shall only be removed from his office by order of the President on the ground of misbehaviour after the Supreme Court, on reference being made to it by the President, has, on inquiry held in accordance with the procedure prescribed in that behalf under Article 145, reported that the Chairman or such other member, as the case may be, ought on any such ground to be removed.

(2) The President, in the case of the Union Commission or a Joint Commission, and the Governor, in the case of a State Commission, may suspend from office the Chairman or any other member of the Commission in respect of whom a reference has been made to the Supreme Court under clause (1) until the President has passed orders on receipt of the report of the Supreme Court on such reference.

(3) Notwithstanding anything in clause (1), the President may by order remove from office the Chairman or any other member of a Public Service Commission if the Chairman or such other member, as the case may be,- (a) is adjudged an insolvent; or (b) engages during his term of office in any paid employment outside the duties of his office; or (c) is, in the opinion of the President, unfit to continue in office by reason of infirmity of mind or body.

(4) If the Chairman or any other 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.”

25. In case titled as Ashok Kumar Yadav v. State of Haryana, (1985) 4 SCC 417, the Hon'ble Supreme Court has held as under:

“8……….It was nowhere alleged in any of these writ petitions that the Chairman and members of the Haryana Public Service Commission were lacking in integrity, calibre and qualification or that they were appointed on the Haryana Public Service Commission purely on account of caste considerations or political affiliations without any merit or competence.………..the petitioners in this writ petition proceeded to point out the relationship of the Chairman and members of the Haryana Public Service Commission to one or the other member of the political party ruling the State at the date of the respective appointments and sought to draw an inference from such relationship that their appointments were on account of caste considerations and political linkages and merit, competence and integrity were sacrificed. The relationship alleged in paragraph 9 was not disputed on behalf of the respondents but the inference sought to be drawn therefrom was stoutly resisted and it was contended that there was no material at all on the basis of which it could be said that the Chairman and members of the Haryana Public Service Commission were appointed solely “due to political and caste considerations” without taking into account calibre, competence or integrity………..It is a very serious matter to cast aspersions on the character, integrity and competence of men occupying the high office of Chairman and members of a Public Service Commission and we wish the Division Bench of the High Court had acted with care and circumspection in making such imputation against the Chairman and members of the Haryana Public Service Commission, when it was not even specifically alleged in paragraph 9 of Civil Writ Petition 3344 of 1983 that the Chairman and members of the Haryana Public Service Commission were unfit to hold the office to which they were appointed or were lacking in integrity, character and qualification. We may point out that even if the Chairman and members of the Haryana Public Service Commission were appointed on account of political and caste considerations, they could still be men of character, integrity and competence and the extraneous considerations which might have weighed with the appointing authority need not necessarily reflect upon their competence, character or fitness.

9……………It was a totally irrelevant inquiry, because even if they were men lacking in integrity, calibre and qualification, it would not make their appointments invalid, so long as the constitutional and legal requirements in regard to appointment were fulfilled. Article 316 of the Constitution makes provision for appointment and term of office of members of a State Public Service Commission. Clause (1) of this Article provides that the Chairman and members of a State Public Service Commission shall be appointed by the Governor of the State and the proviso to that clause enacts 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” under the Government of a State. Clause (2) of Article 316 declares that a member of a State Public Service Commission shall hold office for a term of six years from the date on which he enters upon his office or until he attains the age of sixty two years, whichever is earlier. Article 319 lays down inter alia that on ceasing to hold office, the Chairman of a State Public Service Commission shall not be eligible for any employment under the Government of India or the Government of a State, save and except that of Chairman or any other member of the Union Public Service Commission and similarly, a member of a State Public Service Commission. These are the only provisions in the Constitution bearing on the appointment of Chairman and members of a State Public Service Commission. Now concededly, none of these constitutional provisions was violated in making appointments of the Chairman and members of the Haryana Public Service Commission nor was any legal provision breached and the appointments of the Chairman and members of the Haryana Public Service Commission were made in conformity with the constitutional and legal requirements.

26. It is absolutely essential that the best and finest talent should be drawn in the administration and administrative services must be composed of persons who are honest, upright and independent and who are not swayed by the political winds blowing in the country. The selection of candidates for the administrative services must, therefore, be made strictly on merits, keeping in view various factors which go to make a strong, efficient and people oriented administrator. This can be achieved only if the Chairman and members of the Commission are eminent person possessing a high degree of calibre, competence and integrity, who would inspire confidence in the public mind about the objectivity and impartiality of the selections to be made by them.

27. The functions of the Executive in a democratic Country are to be done at various levels by various persons. In respect of State, the Chairman/Member(s) of the Commission is/are to be appointed by the Governor of the State on the recommendation of the Chief Minister/Government and in respect of Union, by the President. Therefore, it is to be presumed that the constitutional appointments have been made by the President and the Governors by following the proper constitutional procedure. Thus, once the appointment is over, it is to be presumed that the authorities have examined and found that the persons appointed as Members/Chairman is/are fit to be appointed as such.

28. The Hon'ble Supreme Court in In R/o Dr. Ram Ashray Yadav Chairman, Bihar Public Service Commission, Special Reference No. 1 of 1997 in para 34 has held as under:

“34. The 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 loose 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.”

29. The Hon'ble Supreme Court in Ashok Kumar Yadav case supra in para 30 has further held as under:

“30. Before we part with this judgment we would like to point out that the Public Service Commission occupies a pivotal place of importance in the State and the integrity and efficiency of its administrative apparatus depends considerably on the quality of the selections made by the Public Service Commission. It is absolutely essential that the best and finest talent should be drawn in the administration and administrative services must be composed of men who are honest, upright and independent and who are not swayed by the political winds blowing in the country. The selection of candidates for the administrative services must therefore be made strictly on merits, keeping in view various factors which go to make up a strong, efficient and people oriented administrator. This can be achieved only if the Chairman and members of the Public Service Commission are eminent men possessing a high degree of calibre, competence and integrity, who would inspire confidence in the public mind about the objectivity and impartiality of the selections to be made by them. We would therefore like to strongly impress upon every State Government to take care to see that its Public Service Commission is manned by competent, honest and independent persons of outstanding ability and high reputation who command the confidence of the people and who would not allow themselves to be deflected by any extraneous considerations from discharging their duty of making selections strictly on merits. Whilst making these observations we would like to make it clear that we do not for a moment wish to suggest that the Chairman and members of the Haryana Public Service Commission in the present case were lacking in calibre, competence or integrity.”

30. In Salil Sabhlok case supra, the Hon'ble Supreme Court in para 45 has held that even where a procedure has not been laid down by the Governor for appointment of Chairman and Members of the Commission, the State Government has to select only persons with integrity and competence for appointment as Chairman of the Commission, because the discretion vested in the State Government under Article 316 of the Constitution is impliedly limited by the purposes for which the discretion is vested and the purposes are discernible from the functions of the Commissions enumerated in Article 320 of the Constitution. It would be profitable to refer to paras 45 and 46 of the judgment supra, herein:

“45. I have already held that it is for the Governor who is the appointing authority under Article 316 of the Constitution to lay down the procedure for appointment of the Chairman and Members of the Public Service Commission, but this is not to say that in the absence of any procedure laid down by the Governor for appointment of Chairman and Members of the Public Service Commission under Article 316 of the Constitution, the State Government would have absolute discretion in selecting and appointing any person as the Chairman of the State Public Service Commission. Even where a procedure has not been laid down by the Governor for appointment of Chairman and Members of the Public Service Commission, the State Government has to select only persons with integrity and competence for appointment as Chairman of the Public Service Commission, because the discretion vested in the State Government under Article 316 of the Constitution is impliedly limited by the purposes for which the discretion is vested and the purposes are discernible from the functions of the Public Service Commissions enumerated in Article 320 of the Constitution. Under clause (1) of Article 320 of the Constitution, the State Public Service Commission has the duty to conduct examinations for appointments to the services of the State. Under clause (3) of Article 320, the State Public Service Commission has to be consulted by the State Government on matters relating to recruitment and appointment to the civil services and civil posts in the State, on disciplinary matters affecting a person serving under the Government of a State in a civil capacity, on claims by and in respect of a person who is serving under the State Government towards costs of defending a legal proceeding, on claims for award of pension in respect of injuries sustained by a person while serving under the State Government and other matters. In such matters, the State Public Service Commission is expected to act with independence from the State Government and with fairness, besides competence and maturity acquired through knowledge and experience of public administration.

“46………Accordingly, if these relevant factors are not taken into consideration by the State Government while selecting and appointing the Chairman of the Public Service Commission, the Court can hold the selection and appointment as not in accordance with the Constitution. To quote De Smith's Judicial Review, Sixth Edition:

“If the exercise of a discretionary power has been influenced by considerations that cannot lawfully be taken into account, or by the disregard of relevant considerations required to be taken into account (expressly or impliedly), a court will normally hold that the power has not been validly exercised. (Page 280)

If the relevant factors are not specified (e.g. if the power is merely to grant or refuse a licence, or to attach such conditions as the competent authority thinks fit), it is for the courts to determine whether the permissible considerations are impliedly restricted, and, if so, to what extent (Page 282)”

31. Article 226 of the Constitution vests in the High Court the power to issue to any person or authority, including in appropriate cases, any government within those territories, directions, orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto etc. It is apt to reproduce paras 50 and 52 of the judgment rendered in Salil Sabhlok case supra herein:

“50. I have already held that besides express restrictions in a statute or the Constitution, there can be implied restrictions in a statute and the Constitution and the statutory or the constitutional authority cannot in breach of such implied restrictions exercise its discretionary power. Moreover, Article 226 of the Constitution vests in the High Court the power to issue to any person or authority, including in appropriate cases, any Government, within those territories directions, orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, or any of them, for the enforcement of any of the rights conferred by Part III and for any other purpose. The power of the High Court under Article 226 of the Constitution is, thus, not confined to only writ of quo warranto but to other directions, orders or writs.

51……..

52. Therefore, I hold that the High Court should not normally, in exercise of its power under Article 226 of the Constitution, interfere with the discretion of the State Government in selecting and appointing the Chairman of the State Public Service Commission, but in an exceptional case if it is shown that relevant factors implied from the very nature of the duties entrusted to Public Service Commissions under Article 320 of the Constitution have not been considered by the State Government in selecting and appointing the Chairman of the State Public Service Commission, the High Court can invoke its wide and extraordinary powers under Article 226 of the Constitution and quash the selection and appointment to ensure that the discretion of the State Government is exercised within the bounds of the Constitution.”

32. It is true that no parameters or guidelines have been laid down in Article 316 of the Constitution for selecting the Chairperson of the Commission and no law has been enacted on the subject with reference to Entry 41 of List II of the 7 Schedule of the Constitution. It is equally true that the State Government and the Governor have a wide discretion in the procedure to be followed.

33. In the present case, the appointment of respondent No. 3 has been made by adopting and following the due procedure as mandated by the Constitution of India. In the FIR on the allegations of corruption registered against respondent No. 3, she has been discharged by the Special Judge. There is no challenge to the said order of the Special Judge. It appears that the petitioner has been used by some person to file petition against respondent No. 3 to challenge her appointment. The petitioner has also not been able to establish from where he collected the judicial papers/records in respect of respondent No. 3 and the copies of papers whereby she has been discharged. Thus, it is held that the petitioner has not come to the Court with clean hands, clean soul and clean mind. We are inclined to impose cost on the petitioner for filing such petition, but the petitioner being a law student and law abiding citizen, we refrain from doing so.

34. We hope and trust that the State of Himachal Pradesh must step in and take urgent steps to frame memorandum of procedure, administrative guidelines and parameters for the selection and appointment of the Chairperson and Members of the Commission, so that the possibility of arbitrary appointments is eliminated.

35. As a corollary, the writ petition fails and is accordingly dismissed alongwith pending applications, if any.

Hem Raj v. State Of H.P. And Others

Structured Summary of the Opinion (L. Narayana Swamy, C.J.)

Factual and Procedural Background

Legal Issues Presented

Arguments of the Parties

Petitioner's Arguments

Respondent No. 1 (State)'s Arguments

Respondent No. 2 (Commission)'s Position

Respondent No. 3's Arguments

Table of Precedents Cited

Court's Reasoning and Analysis

Holding and Implications

Hem Raj v. State Of H.P. And Others

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