STATE OF PUNJAB v. SAUL SABHLOK AND ORS.

p. 69 Copy page pinpoint

Association, Ludhiana for seven terms and has been member A of the Legislative Assembly. These materials do not indicate that Shri Harish Dhanda had any knowledge or experience whatsoever either in administration or in recruitment nor do these materials indicate that Shri Harish Dhanda had the qualities to perform the duties as the Chairman of the State B Public Service Commission under Article 320 of the Constitution which I have discussed in this judgment. No other information through affidavit has also been placed on record before us to show that Shri Harish Dhanda has the positive qualities to perform the duties of the office of the Chairman of c the State Pubic Service Commission under Article 320 of the Constitution. The decision of the State Government to appoint Shri Harish Dhanda as the Chairman of the Punjab Public Service Commission was thus invalid for non-consideration of relevant factors implied from the very nature of the duties D entrusted to the Public Service Commissions under Article 320 of the Constitution.

36. In the result, I am not inclined to interfere with the impugned order of the Division Bench of the High Court dated 17 .08.2011 quashing the selection and appointment of Shri E Harish Dhanda as Chairman of the Punjab Public Service Commission, but I set aside the judgment dated 17.08.2011 of the Full Bench of the High Court. Considering, however, the fact that the State Government of Punjab has already selected and appointed Lt. Gen. R.A. Sujlana as the Chairman of the F Punjab Public Servic~ Commission, I am not inclined to disturb his appointment only on the ground that his appointment was consequential to the judgment dated 17 .08.2011 of the Full Bench of the High Court which I have set aside. The appeal of the State of Punjab is partly allowed and the appeal of the State G of Haryana is allowed, but the appeal of Shri Harish Dhanda is dismissed. The parties to bear their own costs.

MADAN B. LOKUR, J. 1. While I entirely agree with Brother Patnaik, but given the seminal importance of the issues H

. 70 SUPREME COURT REPORTS [2013] 5 S.C.R.

A raised, I think it appropriate to separately express my views in the case.

2. The facts have been stated in detail by Brother Patnaik and it is not necessary to repeat them. ,

B The issues:

3. The primary substantive issue that arises for consideration is whether the Higti Court could have - arid if it could have, whether it ought to have· - interfered in the c appointment, by a notification published on' 7th July 2011; of Mr. Harish Rai Dhanda as Chairperson of the Punjab Public Service Commission. In my opinion, the answer to both questions must be in the affirmative. ·

4. However, it must be clarified that even though a D notification was issued of his appointment, Mr. Dhanda did not actually assume office or occupy the post of Chairperson of the Punjab Public SeNice Commission. Before he could do so, his appointment was challenged by Salil Sabhlok through a writ petition being Writ Petition (Civil) No.11848 of 2011 filed in the E Punjab & Haryana High Court. When the writ.petition was taken up for ·consideration, a Division Bench of the High Court obseNed in its order of 13th July 2011 that his "oath ceremony" was fixed for the same day' but learned counsel appearing for the State cif Punjab stated that the ceremony would be' deferred F till the writ petition is decided. Thereafter, the statement was sought to be withdrawn on 1st August 2011. However, the Full Bench of the High Court, which had heard the matter· in' considerable detail; passed an order on that day retraining administering of the oath of office to Mr. Dhanda. As such, Mr. G Dhanda did not take the oath of allegiance; of office and of secrecy as the Chairperson of the Punjab Public Service Commission. Later, since his appointment was quashed by the High Court, the question of his taking the oaths as abov~ did not arise. · · · · · H

STATE OF PUNJABv.· SALIL.SABHLOK AND ORS. '.71 (MADAN B. LOKUR, J.]

5. Another substantive 'issue raised is whether-the High : .:i •.• A Court could nave· entertained a Public Interest Writ Petition in respect of a "service matter".; namely, the appointment of Mr. Harish Rai Dhanda as Chairperson of .the Punjab Public ·service.Commission.' In· opinion/the appointment of the my I Chairperson of the Punjab Public ·ser./ice Commission is not B I ·. :a·•se'niice matter" and so a Public Interest Litigation· could have been.entertained by .the High Court. · >. · I' 6. A few procedural issues have also arisen for ' .

COnsider(ltiO~n· and th~y rela.te to the desirability, Of making a -C J .reference by t~e D)visio.n _Bench to the Full Bench of the High · I Court of issues said to have been settled by this Court; the framing .. -· ' of questions - by the ... Full Bench 'of the High Court, over l ·,'. / ( ,

and· above the questions referred to it; the necessity of impleadrnent of the State'of Haryana in the proceedings before -

. the Full Bench;even though it had no concern with the appoiritment 'of the Chairperson of the Punjab Public Service ("' • ·~ t ,., ... • • • • • '-. '. ' • -

Commission; the validity of the direction given by the Full Bench t0 1produce the advlce·tendered by the Chief Minister of the State of Pi:injab to the -Governor of the State in respect of the appointment of the Chairperson of.the Punjab Public Service E Coi:nmission; the power of the Full Bench to frame guidelines :for. the appointment' of the Chairperson of the Punjab Public _Service Commission,arid 'of. the Haryana Public~Service Commission arid j,,,_ 'L, ·a.few' other incidental issues ,.,d ,,, , ' - '' .• , -.~t'~1 - O

~-. -· /__-, -·. . . ., . ( . , ~. - .. - .- -···- =~F Public'lnterest·WritPetition in respect of a "service "in-a1ter',:fi(] .._. ,-- ,-. · .. 1; ::·. . ··.1::: '.1: - : . • - ·~· .·_-. - ,, •' ,,: : .,... - r 7. 'At the outset, it is important to appreciate that the 'Chairperson. of a Public Service Commission holds a constitutional position and not a statutory post. The significance ' G of this is thatthe. eligibility parameters or selection indicators .for appointment to a statutory post are quite different and distinct 'trom the parameters and indicators for appointment to a _constitutional position. . · ·• · · .::-· l ,·. ,. , :....·<.:~ H

72 SUPREME COURT REPORTS [2013) 5 S.C.R.

A 8. The appointment of a Chairperson of a State Public . Service Commission is in terms of Article 316 of the Constitution, which reads as follows:

"316. Appointment and term of office of members.- (1) The Chairman and other members of a Public Service B Commission shall be appointed, in the case of the Union Commission or a Joint Commission, by the President, and ih the case of a State Commission, by the Governor of the State:

c 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 D 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) 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 person 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 G Commission, and the Governor of the 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

STATE OF PUNJAB v. SAUL SABHLOK AND ORS. 73

[MADAN 8. LOKUR, J.] 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 B 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; c (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 D - Service Commission shall, on the expiration of his term of office, be ineligible for re-appointment to that office."

9. Two features clearly stand out from a bare reading of Article 316 of the Constitution, and these are: (1) No E qualification has been laid down for the appointment of the Chairperson of a State 'Public Service Commission. Theoretically therefore, the Chief Minister of a State can recommend to the Governor of a State to appoint any person walking on the street as the Chairperson of the State Public F Service Commission. (2) The Chairperson of the State Public Service Commission is provided security of tenure since the term of office is fixed at six years or until the age of 62 years, whichever is earlier.

10. The security of tenure is confirmed by the provision for G removal of the. Chairperson of the State Public Service Commission from office as provided for in Article 317 of the Constitution. This reads as follows:

"317. Removal and suspension of a member of a H

/ • 74 . SUPREME COURT REPORTS . 12013) 5 S.C.R. STATE OF PUNJAB v. _SAUL SABHLOK AND ORS. 75 I. [MADAN B. LOKUR, J.) " ~ .......

A Public Service Commission.~(1) Subject to the State or participates in any way in the profit thereof or in A "provisions of clause (3).. the Chairm.an or any other any benefit or emolument arising therefrom othe!Wise than , member of a Public Service Commission shall only be as a member and in common with the other members of ' removed from his office by order of the President on the an incorporated company, Ile shall, for the purposes oi ·ground of misbeha'viour after the Supreme Court, on clause (1), be deemed to be guilty of misbehaviour." B reference being made to it by the President, has, on inquiry ·, .· ,- ':.. .. , ~- B . heldin-accordance with ihe procedure prescribed in that . 11. An aspect that clearly stands out from a reading of behalf under Article ·145, reported that the Chairman or Article 317 is that the Chairperson of the State Public Service such other member, as the case may be, ought on any Commission can be removed from office on the ground of -such ground to be removed. misbehaviour only after an inquiry is held by this Court on a .. I , . reference made by the President and that inquiry results in a C c (2) The President, in the case of the Union Commission report that he or she ought to be removed on such ground. The or a Joint Commission, and the Governor, in the case of Governor of. the State is not empowered to remove the a State Commission, may suspend from office the Chairperson of the State Public Service Commission even Chairman or any other_ member of the Commission in though he or she is the appointing authority.T There are, of respect of whom a reference has been made to the course, other gra'unds.mentioned in Article 317 of the 'D r Constitution. tiut none of them are of any concern for the D Supreme Court under clause (1) until the President has · passed orders on receipt of the report of the Supreme Court on such reference. , .. , purposes of. this case. 0 .... . 12: A reading of Article 316 and Article :311 of the II ,(, .· ·· (3) Notwithstanding anything in clause (1), the President Consiiiution makes it clear that io prevent the person walking E .·. · may by order r~move from 'office the Chairman· or any on the street from being'appointed as the Chairperson of a E · • ,.other member of a Public Service Commission if the State: Public Service Commission, the Constitution has . ·Chairman or such other member, as the. case may be,:- provided that the appointment is required tobe made by ·the .,, ' . ,., ' ' '. : '! ' t ,' ' Governor of the State, on advice. Additionally, the Chairperson' :; •.: i (a). is adjudged an insolvent; or . .. ' •: ,·:· •. : has security of tenure to the extent that that person cannot be . •• ·','. -,• ,'1' '" 1·· ~· !J -,,- 'JC,"."' "'' "' ("f' ,., . . . . · effortlessly removed from office even-by the President as long F F : .; (b) engages during his term pf office in any paid as he or she is not guilty of proven misbehaviour, or is insolvent, .. ·., ,;employment outside the duties of. his. office; or '. 'r ' '• . ' ' .,' - or does not take up any employment or is not bodily or mentally (c) is: iri the opini-;;n of the President, unfit tci infirm. There is, therefore, an in-built constitutional check on the continue in office by reason of infirmity of mind or ., arbitrary appointment' of a Chairperson of a State Public •. G body. . , • ·r· i. Serv~ce Co~mission: The flip side· is th~t if ~·;,:arbitrary G : appointment 1s made, removal of the appointee 1s·a difficult • (4) If the Chairman or any othe'r'member of a Public "- process. ·· ··· " · .. :" · " ••.. : .. ; . r ,... Service Commission is or becomes in any way concerned or interested in any contract or agreement made by or on 13. If the person walking on the street is appointed in a behalf of the Governmerit of India or the Government of a · God-forbid kind of situation,' as the Chairperson of a· State ·H 1· ;i .;c;;ul".' ,., • ,._ · · ·. Public Service Commission, what remedy does an aggrieved t-J

/ • 74 . SUPREME COURT REPORTS . 12013) 5 S.C.R. STATE OF PUNJAB v. _SAUL SABHLOK AND ORS. 75 I. [MADAN B. LOKUR, J.) " ~ .......

A Public Service Commission.~(1) Subject to the State or participates in any way in the profit thereof or in A "provisions of clause (3).. the Chairm.an or any other any benefit or emolument arising therefrom othe!Wise than , member of a Public Service Commission shall only be as a member and in common with the other members of ' removed from his office by order of the President on the an incorporated company, Ile shall, for the purposes oi ·ground of misbeha'viour after the Supreme Court, on clause (1), be deemed to be guilty of misbehaviour." B reference being made to it by the President, has, on inquiry ·, .· ,- ':.. .. , ~- B . heldin-accordance with ihe procedure prescribed in that . 11. An aspect that clearly stands out from a reading of behalf under Article ·145, reported that the Chairman or Article 317 is that the Chairperson of the State Public Service such other member, as the case may be, ought on any Commission can be removed from office on the ground of -such ground to be removed. misbehaviour only after an inquiry is held by this Court on a .. I , . reference made by the President and that inquiry results in a C c (2) The President, in the case of the Union Commission report that he or she ought to be removed on such ground. The or a Joint Commission, and the Governor, in the case of Governor of. the State is not empowered to remove the a State Commission, may suspend from office the Chairperson of the State Public Service Commission even Chairman or any other_ member of the Commission in though he or she is the appointing authority.T There are, of respect of whom a reference has been made to the course, other gra'unds.mentioned in Article 317 of the 'D r Constitution. tiut none of them are of any concern for the D Supreme Court under clause (1) until the President has · passed orders on receipt of the report of the Supreme Court on such reference. , .. , purposes of. this case. 0 .... . 12: A reading of Article 316 and Article :311 of the II ,(, .· ·· (3) Notwithstanding anything in clause (1), the President Consiiiution makes it clear that io prevent the person walking E .·. · may by order r~move from 'office the Chairman· or any on the street from being'appointed as the Chairperson of a E · • ,.other member of a Public Service Commission if the State: Public Service Commission, the Constitution has . ·Chairman or such other member, as the. case may be,:- provided that the appointment is required tobe made by ·the .,, ' . ,., ' ' '. : '! ' t ,' ' Governor of the State, on advice. Additionally, the Chairperson' :; •.: i (a). is adjudged an insolvent; or . .. ' •: ,·:· •. : has security of tenure to the extent that that person cannot be . •• ·','. -,• ,'1' '" 1·· ~· !J -,,- 'JC,"."' "'' "' ("f' ,., . . . . · effortlessly removed from office even-by the President as long F F : .; (b) engages during his term pf office in any paid as he or she is not guilty of proven misbehaviour, or is insolvent, .. ·., ,;employment outside the duties of. his. office; or '. 'r ' '• . ' ' .,' - or does not take up any employment or is not bodily or mentally (c) is: iri the opini-;;n of the President, unfit tci infirm. There is, therefore, an in-built constitutional check on the continue in office by reason of infirmity of mind or ., arbitrary appointment' of a Chairperson of a State Public •. G body. . , • ·r· i. Serv~ce Co~mission: The flip side· is th~t if ~·;,:arbitrary G : appointment 1s made, removal of the appointee 1s·a difficult • (4) If the Chairman or any othe'r'member of a Public "- process. ·· ··· " · .. :" · " ••.. : .. ; . r ,... Service Commission is or becomes in any way concerned or interested in any contract or agreement made by or on 13. If the person walking on the street is appointed in a behalf of the Governmerit of India or the Government of a · God-forbid kind of situation,' as the Chairperson of a· State ·H 1· ;i .;c;;ul".' ,., • ,._ · · ·. Public Service Commission, what remedy does an aggrieved t-J

76 SUPREME COURT REPORTS [2013] 5 S.C.R.

A citizen have? This question arises in a unique backdrop, in as much as no eligibility criterion has been prescribed for such an appointment and the suitability of a person to hold a post is subjective.

8 14. In this context, three submissions have been put forward by learned counsel supporting the appointment of Mr. Dhanda. If these submissions are accepted, then one would have to believe that a citizen aggrieved by such an appointment would have no remedy. The first submission is that a writ of quo warranto would not lie since there is no violation of a statute in the appointment - indeed, no statutory or other qualification or eligibility criterion has been laid down for the appointment. Therefore, a petition for a writ of quo waffanto would not be maintainable. The second submission is that the appointment to a post is a "service matter''. Therefore, a public interest litigation (or a PIL for short) would not be maintainable. The third submission is that the remedy in a "service matter'' would lie with the Administrative Tribunal, but an application before the Tribunal would not be maintainable since the aggrieved citizen is not a candidate for the post and, therefore, would have no locus standii in the matter. It is necessary to consider the correctness of these submissions and the availability of a remedy, if any, to an aggrieved citizen.

Maintainability of a PIL: F (i) A writ of quo warranto

15. Learned counsel supporting Mr. Dhanda are right that there is no violation of any statutory requirement in the appointment of Mr. Dhanda. This is because no statutory G criterion or parameters have been laid for the appointment of the Chairperson of a Public Service Commission. Therefore, a petition for a writ of quo warranto would clearly not lie.

16. A couple of years ago, in Hari Bansh Lal v. Sahodar H Prasad Mahto, (2010) 9 SCC 655 this Court considered the

STATE OF PUNJAB v. SAUL SABHLOK AND ORS. 77

[MADAN B. LOKUR, J.] position at law and, after referring to several earlier decisions, A including R.K. Jain v. Union of India, (1993) 4 SCC 119, Mor Modern Coop. Transport Society v. Govt. of Haryana, (2002) 6 SCC 269, High Court of Gujarat v. Gujarat Kishan Mazdoor Panchayat, (2003) 4 SCC 712 and 8. Srinivasa Reddy v. Karnataka Urban Wa'ter Supply & Drainage ·Board B Employees' Association, (2006) 11 SCC 731 (2) held that "even for issuance of a writ of quo warranto, the High Court has to satisfy that the appointment is contrary to the statutory rules."

17. This principle was framed positively in Mahesh C Chandra Gupta v. Union of India & Others, (2009) 8 SCC 273 wherein it was said: "In cases involving lack of "eligibility" writ of quo warranto would certainly lie."

(ii) Is it a service matter? D

18. Is the appointment of a person to a constitutional post a "service matter"? The expression "service matter'' is generic in nature and has been specifically defined (as far as I am aware) only in the Administrative Tribunals Act, 1985. Section 3(q) of the Administrative Tribunals Act is relevant in this regard E and it reads as follows:

"3. Definitions.-ln this Act, unless the context otherwise requires,-

(q) "service matters", in relation to a person, means all F · matters relating to the conditions of his service in connection· with the affairs of the Union or of any State or of any local or other authority within the territory of India or under the control of the Government of India, or, as the case may be, of any corporation or society owned or G controlled by the Government, as respects-

(1) remuneration (including allowances), pension and other retirement benefits;

(ii) tenure including confirmation, seniority, H

78 SUPREME COURT REPORTS [2013] 5 S.C.R.

A ·. prqmotion, . reversion, premature retirement and superannuation;. r'(iil) leave of any kind;

(iv) disciplinary matters; or B · (v) any other matter Whatsoever;" "

19. It cannot.be said that the.Ch!iirperson of the Public Service Commission holds a post in connection with the affairs of the Union or the State. He or she is not a Government servant, in the sense of there being a master and servant relations_hip between the Union or the State and Jhe Chairperson. In view of the constitutional provisions pertaining to the security of tenure and the removal procedure of the Chairperson and members of the Public Service Com'mission, it can only be concluded that he or she holds a constitutional post. In this context, in Reference under Article 3,17(1) of the Constitution of India, In re, (f990r4 SCC 262 it was held: . • ' •' ' i . ; ' . . ~

"The case of a government servant is, subject .to the special provisions, governed by· ttie law of master and servant, but the position in the case of a Membe·r of'the Commission is different. The latter holds a constitutional · post and is governed by the special provisions dealing with different aspects of his office as envisaged by Articles 315 F to 323 of Chapter II of.Part XIV of the Constitution." ~O. Similarly, in Bihar Public Service Commiss[on v. Shiv .~atan T..hakur, 1994 Supp, (3) SCC 220 the Public Service Commission is referred to" as a, "constitutional institution" and G its Chairperson . and members as "constitutional , functionaries". , .-.

21. In Ram Ashray Yadav (Dr.), Chairman; Bihar Public. S~rvice Commission, In Re, (2000) ,4 SCC 309 a reference was made to the "constitutional duties. and obligations" of the Public Service Commissions. It was also observed that the H

STATE OF PUNJAB v. SAUL SABHLOK AND ORS. 79

[MADAN B. LOKUR, J.] Chairperson of the Public Service Commission is in the position of a constitutional trustee.

22. In Ram Kumar Kashyap v. Union of India, (2009) 9 SCC 278 the obligations of the Public Service Commission were referred to as "constitutional obligations" and on a review of the case law, it was held 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 re.moval and suspension of the members of the said Commissions."

23. Finally, in Mehar Singh Saini, Chairman, Haryana Public Service Commission, In re, (2010) 13 ·sec 586 a o distinction was made between service under the Government of India or a State Government and a constitutional body like a Public Service Commission. It was observed that,

"A clear distinction has been drawn by the Framers [of our E Constitution] between ·service under the Centre or the States and services in the institutions which are creations of the Constitution itself. Article 315 of the Constitution commands that there shall be a Union Public Service Commission for the Centre and State Public Service Commissions for the respective States. This is not, in any manner, linked with the All-India Services contemplated under Article 312 of the Constitution to which, in fact, the selections are to be made by the Commission. The fact that the Constitution itself has not introduced any element of interdependence between the two, undoubtedly, points to the cause of Commission being free from any influence or limitation."

24Copy pinpoint24. A little later in the judgment, the Public Service Commission is described as a "constitutional body". H

80 SUPREME COURT REPORTS [2013) 5 S.C.R.

25Copy pinpoint25. This being the position, it is not possible to say that the Chairperson of the Public Service Commission does not occupy a constitutional position or a constitutional post. To describe the appointment to a constitutional post generically or even specifically as a "service matter" would be most s inappropriate, to say the least.

(iii) Functional test

26Copy pinpoint26. The employment embargo laid down in the Constitution and the functions of a Public Service Commission also indicate C that its Chairperson has a constitutional status.

27Copy pinpoint27. Article 319 of the Constitution provides that on ceasing to hold office, the Chairperson of a State Public Service Commission cannot take up any other employment either under 0 the Government of India or under the Government of a State, except as the Chairperson or member of the Union Public Service Commission or as the Chairperson of any other State Public Service Commission.

28Copy pinpoint28. Among other things; the functions of the State Public E Service Commission include, as mentioned in Article 320 of. the Constitution, conducting examinations for appointments to the services of the State. The State Public Service Commission may also be consulted by the President or the Governor of the State, subject to regulations that may be made in that behalf, on all matters relating inter alia to methods of recruitment to .civil services and for civil posts and on the principles to be followed in making appointments to civil services and posts.

29Copy pinpoint29. Article 322 of the Constitution provides that the expenses of the State Public Service Commission, including salaries, allowances. and pensions of_its members shall be charged on the Consolidated Fund of the State. Article 323 of the Constitution requires the Public Service Commission to annually present a report of the work done by it to the Governor H of the State.

STATE OF PUNJAB v. SAUL SABHLOK AND ORS. 81

[MADAN B. LOKUR, J.]

30Copy pinpoint30. All these are serious constitutional functions and A obligations cast on the Chairperson and members of the Public Service eommission and to equate their appointment with a statutory appointment and slotting their appointment in the category of a "service matter" would be reducing the Constitution into just another statute, which it is not. B

(iv) The remedy

31Copy pinpoint31. What then is the remedy to a person aggrieved by an appointment to a constitutional position like the Chairperson of a Public Service Commission? C

32Copy pinpoint32. About twenty years ago, in a case relating to the appointment of the President of a statutory tribunal, this Court held in R.K. Jain v. Union of India, (1993) 4 ·sec 119 that an aggrieved person - a "non-appointee" - would alone have the locus standii to challenge the offending action. A third party could seek a remedy only through a public law declaration. This is what was held:

"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." F

33Copy pinpoint33. This view was reiterated in B. Srinivasa Reddy. Therefore, assuming the appointment of the Chairperson of a Public Service Commission is a "service matter", a third party and a complete stranger such as the writ petitioner cannot approach an Administrative Tribunal to challenge the G appointment of Mr. Dhanda as Chairperson of the Punjab Public Service Commission

34Copy pinpoint34. However, as an aggrieved person he or she does have a public law remedy. But in a service matter the only available remedy is to ask for a writ of quo warranto. This is the opinion H

82 SUPREME COURT REPORTS [2013] 5 S.C.R.

A expressed by this Court in several cases. One of the more recent decisions in this context is Harl Bansh Lal wherein it was held that "... except for a writ of quo warranto, public interest litigation is not maintainable in service matters." This view was referred to (and not disagreed with) in Girjesh Shrivastava v. B State of Madhya Pradesh, (2010) 10 SCC 707 after referring to and relying on Duryodhan Sahu (Dr.) v. Jitendra Kumar Mishra (1998) 7 SCC 273, B. Srinivasa Reddy, Dattaraj Nathuji Thaware v. State of Maharashtra, (2005) 1 SCC 590, Ashok Kumar Pandey v. State of W.B (2004) 3 SCC 349 and c Hari Bansh Lal.

35Copy pinpoint35. 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 D 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.

36Copy pinpoint36. However, in a unique situation like the present, where a writ of quo warranto may not be issued, it becomes necessary to mould the relief so that an aggrieved person is not left without any remedy, in the public interest. This Court has, therefore, fashioned a writ of declaration to deal with such cases. Way back, in T. C. Basappa v. T. Nagappa [1955] 1 SCR 250 it was said:

"The language used in articles 32 and 226 of our Constitution is very wide and the powers of the Supreme Court as well as of all the High Courts in India extend to issuing of orders, writs or directions including writs in the nature of habeas corpus, mandamus, quo warranto, prohibition and certiorari as may be considered necessary for enforcement of the fundamental rights and in the case of the High Courts, for other purposes as well. In view of the express provisions of our Constitution we need not now

STATE OF PUNJAB v. SAUL SABHLOK AND ORS. 83

[MADAN B. LOKUR, J.) look back to the early history or the procedural technicalities of these writs in English law, nor feel oppressed by any difference or change of opinion expressed in particular cases by English Judges".

37Copy pinpoint37. More recently, such a writ was issued by this Court was 8 in Kumar Padma Prasad v. Union of India, (1992) 2 SCC 428 when this Court declared that Mr. K.N. Srivastava was not qualified to be appointed a Judge of the Gauhati High Court even after a warrant for his appointment was issued by the President under his hand and seal. This Court, therefore, C directed:

"As a consequence, we quash his appointment as a Judge of the Gauhati High-Court. We direct the Union of India and other respondents present before us not to administer oath or affirmation under Article 219 of the Constitution of India D to K.N. Srivastava. We further restrain K.N. Srivastava from making and subscribing an oath or affirmation in terms of Article 219 of the Constitution of India and assuming office of the Judge of the High Court." E

38Copy pinpoint38. Similarly, in N. Kannadasan v. Ajoy Khose, (2009) 7 SCC 1 this Court held that Justice N. Kannadasan (retired) was ineligible to hold the post of the President of the State Consumer Redressal Forum. It was then concluded:

"The superior courts may not only issue a writ of quo F warranto but also a writ in the nature of quo warranto. It is also entitled to issue a writ of declaration which would achieve the same purpose."

39Copy pinpoint39. Finally and even more recently, in Centre for PIL v. G Union of India, (2011) 4 SCC 1 the recommendation of a High Powered Committee recommending the appointment of Mr. P.J. Thomas as the Central Vigilance Commissioner under th~' proviso to Section 4(1) of the Central Vigilance Commissioli Act, 2003 was held to be non est in law and his appointment H

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·A as the Central Vigilance Commissioner was quashed. This Court opined:

"At the outset it may be stated that in the main writ petition the petitioner has prayed for issuance of any other writ, direction or order which this Court may deem fit and proper B in the facts and circumstances of this case. Thus, nothing prevents this Court, if so satisfied, from issuing a writ of declaration."

Who may be appointed - views of this Court: c

40Copy pinpoint40. Having come to a conclusion that an aggrieved citizen has only very limited options available to him or her, is there no redress if an arbitrary appointment is made, such as of the person walking on the street. Before answering this question, 0 it would be worth considering who may be appointed to a constitutional post such as the Chairperson of the Public Service Commission.

41Copy pinpoint41. In Ashok Kumar Yadav v. State of Haryana, (1985) 4 sec 417 th is Court looked at the appointment of the E Chairperson and members of the Public Service Commission from two different perspectives: firstly, from the perspective of the requirement to have able administrators in the country and secondly from the perspective of the requirement of the institution as such. In regard to the first requirement, it was said: F "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 G 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 H

STATE OF PUNJAB v. SAUL SABHLOK AND ORS. 85

[MADAN B. LOKUR, J.] eminent men possessing a high degree of calibre, A competence and integrity, who would inspire confidence in the public mind about the objectivity and impartiality of the selections to be made by them."

In regard to the second requirement, it was said: B "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 C who would not allow themselves to be deflected by any extraneous considerations from discharging their duty of making selections strictly on merit."

· 42. In In RIO Dr Ram Ashray Yadav, Chairman, Bihar 0 Public Service Commission, (2000) 4 SCC 309 this Court considered the functional requirements of the Public Service Commission and what is expected of its members and held:

"Keeping in line with the high expectations of their office and need to observe absolute· integrity and impartiality in the exercise of their powers and duties, the Chairman and members of the Public Service Commission are required to be selected on the basis of their merit, ability and suitability and they in turn are expected to be models themselves in their functioning. The character and conduct of the Chairman and members of the Commission, like Caesar's wife, must therefore be above board. They occupy a unique place and position and utmost objectivity in the performance of their duties and integrity and detachment are essential requirements expected from the G Chairman and members of the Public Service Commissions."

43Copy pinpoint43. With specific reference to the Chairperson of the Public

86 SUPREME COURT REPORTS [2013) 5 S.C.R.

A Service Commission who is in the position of a "constitutional trustee", this Court said:

"The Chairman of the Public Service Commission is in the position of a constitutional trustee and the morals of a constitutional trustee have to be tested in a much stricter B sense than the morals of a common man in the marketplace. Most sensitive standard of behaviour is expected from such a constitutional trustee. His behaviour has to be exemplary, his actions transparent, his functioning has to be objective and in performance of all c his duties he has to be fair, detached and impartial."

44Copy pinpoint44. lnderpreet Singh Kah/on v. State of Punjab, {2006) 11 SCC 356 was decided in the backdrop of a Chairperson of the Punjab Public Service Commission, "an important ·o constitutional authority", being put behind bars, inter alia, for being caught red-handed accepting a bribe.

45Copy pinpoint45. This Court asserted the necessity of transparency in the appointment to such constitutional positions. It was said:

E "This unfortunate episode teaches us an important lesson that before appointing the constitutional authorities, there should be a thorough and meticulous inquiry and scrutiny regarding their antecedents. Integrity and merit have to be properly considered and evaluated in the appointments to F such high positions. It is an urgent need of the hour that in such appointments absolute transparency is r.equired to be maintained and demonstrated. The impact of the deeds and misdeeds of the constitutional authorities {who are highly placed), affect a very large number of people for a G very long time, therefore, it is absolutely imperative that only people of high integrity, merit, rectitude and honesty are appointed to these constitutional positions."

46Copy pinpoint46. Subsequently, in State of Bihar v. Upendra Narayan Singh {2009) 5 SCC 65 this Court expressed its anguish with H

STATE OF PUNJAB v. SAUL SAl3HLOK AND ORS. 87 [MADAN B. LOKUR, J.] the appointments generally made to the Public Service A Commissions. It was observed:

"ThePublic Service Commissions which have been given the status of constitutional authorities and which are supposed to be totally independent and impartial while 8 discharging their function in terms of Article 320 have become victims of spoils system.

"In the beginning, people with the distinction in different fields of administration and social life were appointed as Chairman and members of the Public Service C Commissions but with the passage of time appointment to these high offices became personal prerogatives of the political head of the Government and men .with questionable background have been appointed to these coveted positions. Such appointees have, instead of making selections for appointment to higher echelons of services on merit, indulgechn exhibition of faithfulness to their mentors totally unmindful of their constitutional responsibility."

47Copy pinpoint47. While it is difficult to summarize the indicators laid down by this Court, it is possible to say that the two most important requirements are that personally the Chairperson of the Public Service Commission should be beyond reproach and his or her appointment should inspire confidence among the people in the institution. The first 'quality' can be ascertained through a meaningful deliberative process, while the second 'quality' can be determined by taking into account the constitutional, functional and institutional requirements necessary for the appointment. G Selection and appointment of Mr.· Dhanda:

48Copy pinpoint48. Given the views expressed by this Court from time to time, learned counsel for the writ petitioner submitted that Mr. Dhanda ought not to have been appointed as the Chairperson H

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A of the Public Service Commission. Three reasons were given in this regard and all of them have been refuted by learned counsel supporting the cause of Mr. Dhanda. They are: (1) There is a question mark about the character and conduct of Mr. Dhanda. (2) Mr. Dhanda lacks the qualifications and stature to hold a constitutional position of the Chairperson of a Public Service Commission. (3) The record shows that no meaningful and effective thought was given before appointing Mr. Dhanda as the Chairperson of the Public Service Commission.

49Copy pinpoint49. As regards the first reason, certain allegations were made against Mr. Dhanda in the writ petition filed in the High Court. However, in its order dated 13th July 2011 a Division Bench of the High Court held that: "As regards irregularities and illegalities pointed out in the petition, the same do not stand substantiated." This conclusion is strongly relied on by learned counsel supporting Mr. Dhanda.

50Copy pinpoint50. However, the judgment under appeal records that the writ petitioner had alleged that Mr. Dhanda had used his political influence to effect the transfer of an officer and that the transfer was set as.ide by the Central Administrative Tribuna.1 . as being ma/a fide. In this context, during the hearing of this appeal, we were handed over a copy of the decision rendered by the Central Administrative Tribunal (Chandigarh Bench) in Original Application No .. 495/PB/2007 decided on 15th F November 2007. We were informed that this decision was placed before the High Court and that this decision has attained finality, not having been challenged by anybody.

52Copy pinpoint52. A reading of the decision, particularly paragraph 12 thereof, does show that the applicant before the Central G Administrative Tribunal was subjected to a transfer contrary to the policy decision relating to mid-term transfers. The relevant portion of patagraph 12 of the decision reads as follows:

"Even though the Government decided not to allow use of the Rest house as a permanent residence of the Chief

STATE OF PUNJAB v. SAUL SABHLOK AND ORS. 89

[MADAN B. LOKUR, J.] Parliamentary Secretary, yet the applicant, being a junior officer became the victim of the annoyance of Respondent No.3 [Mr. Dhanda] and with his political influer:ice, the Forest Minister initiated the proposal for his transfer from Ropar, which was approved by the Chief Minister ..... . . . .But a transfer made in this manner when the work and conduct of the officer is not only being appreciated by the Secretary, but also by the Finance Minister is unwarranted and also demoralizing. These are the situations when the courts have to interfere to prevent injustice to employees who are doing their duty according to rules." c

53Copy pinpoint53. While it may be that Mr. Dhanda was given a clean chit by the Division Bench when the case was first before it, the fact is that information subsequently came to the notice of the High Court which indicated that Mr. Dhanda was not above using his political influence to get his way. That Mr. Dhanda D came in for an adverse comment in a judicial proceeding was certainly known to him, since he was a party to the case before the Central Administrative Tribunal. But he did not disclose this fact to the Chief Minister. In the deliberative process (or whatever little there was of it) the Chief Minister did not even bother to check whether or not Mr. Dhanda was an appropriate person to be appointed as the Chairperson of the Punjab Public Service Commission in the light of the adverse comment. The "thorough and meticulous inquiry and scrutiny" requirement mentioned in lnderpreet Singh Kah/on was not at all carried out.

54Copy pinpoint54. As regards the second reason, the qualifications of Mr. Dhanda are as mentioned in his bio-data contained in the offiCial file and reproduced by the High Court in the judgment under appeal. The bio-data reads as follows:

" - Harish Rai Dhanda son of Shri Kulbhushan Rai.

- Resident: The Retreat, Ferozepur Road, Ludhiana. H

90 SUPREME COURT REPORTS [2013] 5 S.C.R.

A - Date of Birth: 15th May, 1960.

- Attained Bachelor in Arts. from SCD Government College, Ludhiana, Panjab University, 1979.

- Attained Bachelor in Laws from Law College, Panjab B University (1982).

- Registered with Bar Council of Punjab and Haryana as Advocate in 1982.

- Practiced Law at District Courts, Ludhiana from 1982 c to 2007.

- Elected as President of District Bar Association, Ludhiana for seven terms.

55Copy pinpoint55. The High Court noted that the official file shows that Mr. Dhanda resigned from the membership of the Punjab Legislative Assembly on 6th July 2011. The resignation was accepted the same day.

56Copy pinpoint56. Mr. Dhanda had filed an affidavit in the High Court in which he disclosed that he was or had been the Vice President of the Shiromani Akali Dal and the President of its Legal Cell and its spokesperson.

57Copy pinpoint57. In fairness to Mr. Dhanda it must be noted that his affidavit clearly mentions that he did not apply for or otherwise seek the post of Chairperson of the Punjab Public Service Commission. He was invited by the Chief Minister to submit his bio-data and to accept the post. The question is that with these qualifications, could it be said that Mr. Dhanda was eminently suited to holding the post of the Chairperson of the Public Service Commission? The answer to this must be in the negative if one is to agree with the expectations of this Court declared in various decisions. This is not to say that Mr. Dhanda lacks integrity or competence, but that he clearly has no administrative experience for holding a crucial constitutional

STATE OF PUNJAB v. SALIL SABHLOK AND ORS. 91

[MADAN 8. LOKUR, J.] position. Merely because Mr. Dhanda is an advocate having had electoral successes does not make him eminently suitable for holding a constitutional position of considerable importance and significance. It is more than apparent that Mr. Dhanda's political affiliation weighed over everything else in his appointment as the Chairperson of the Punjab Public Service B Commission.

58Copy pinpoint58. But, as pointed out in Mahesh Chandra Gupta the · suitability of a person to hold a post is a matter of opinion and this is also a peg on which learned counsel supporting Mr. Dhanda rest their case. The "suitability test" is said to be C beyond the scope of judicial review.

59Copy pinpoint59. The third reason is ·supported by the writ petitioner through the finding given by the High Court that the official file relating to the appointment of Mr. Dhanda as the Chairperson o of the Punjab Public Service Commission contains only his bio- data, a certificate to the effect that he resigned from the membership of the Punjab Legislative Assembly on 6th July 2011 and his .resignation was accepted the same day and the advice of the Chief Minister to the Governor apparently to E 'appoint Mr. Dhanda as the Chairperson of the Punjab Public Service Commission. The advice was immediately acted upon and Mr. Dhanda was appointed as the Chairperson of the Punjab Public Service Commission by a notification published on 7th July 2011. In other words, the entire exercise relating F to the appointment of the Chairperson of the Public Service Commission was completed in a day.

60Copy pinpoint60. Learned counsel supporting the appointment of Mr. Dhanda submitted that no procedure is prescribed for the selection of the Chairperson of the Public Service G Commission. Therefore, no fault can be found in the procedure adopted by the State Government. It was submitted, relying on Mohinder Singh Gill v. Chief Election Commissioner, (1978) 1 sec 405 that there is an implied power to adopt any appropriate procedure for making the selection and the State H

92 SUPREME COURT REPORTS (2013) 5 S.C.R.

A Government and the Governor cannot be hamstrung in this regard.

61Copy pinpoint61. It is true that no parameters or guidelines have been laid down in Article 316 of the Constitution for selecting the Chairperson of the Public Service Commission and no law has 8 been enacted on the subject with reference to Entry 41 of List II of the 7th Schedule of the Constitution. It is equally true that the State Government and the Governor have a wide discretion in the procedure to be followed. But, it is also true that Mohinder Singh Gill refers to Lord Camden as having said C that wide discretion is fraught with tyrannical potential even in high personages. Therefore, the jurisprudence of prudence demands a fairly high degree of circumspection in the selection and appointment to a constitutional position having important and significant ramifications. D · 62. Two factors that need to be jointly taken into account for the exercise of the power of judicial review are: the deliberative process and consideration of the institutional requirements. E

63Copy pinpoint63. As far as the deliberative process is concerned (or lack of effective consultation, as described in Mahesh Chandra Gupta) it is quite apparent that the entire process of selection and appointment of Mr. Dhanda -took place in about a day. There is nothing to show the need for a tearing hurry, though there was some urgency, in filling up the post following the demise of the then Chairperson of the Punjab Public Service Commission in the first week of May 2011. But, it is important to ask, since the post was lying vacant for a couple of months, was the urgency such that the appointment was required to be made without considering anybody other than Mr. Dhanda. There is nothing to show that any consideration whatsoever was given to appointing a person with adequate administrative experience who could achieve the constitutional purpose for which the Public Service Commission was created. There is nothing to show that any background check was carried out to

STATE OF PUNJAB v. SAUL SABHLOK AND ORS. 93

[MADAN B. LOKUR, J.] ascertain whether Mr. Dhanda had come in for any adverse notice, either in a judicial proceeding or any police inquiry. It must be remembered that the appointment of Mr. Dhanda was to a constitutional post and the basis of deliberation before makirig the selection and appointment were imperative. In this ·case, clearly, there was no deliberative process, and if any semblance of it did exist, itwas irredeemably flawed. The in- built constitutional checks had, unfortunately, broken down.

64Copy pinpoint64. In Centre for PIL this Court struck down the appointment of the Central Vigilance Commissioner while reaffirming the distinction between merit review pertaining to the eligibility or suitability of a selected candidate and judicial review pertaining to the recommendation making process. In that case, the selection of the Central Vigilance Commissioner was made under Section 4(1) of the Central Vigilance Commission Act, 2003 (for short the Act) which reads as follows:

"4. Appointment of Central Vigilance Commissioner and Vigilance Commissioners.-(1) The Central Vigilance Commissipner and the Vigilance E Commissioners shall be appointed by the President by warrant under his hand and seal:

Provided that every appointment under this sub- section shall be made after obtaining the recommendation F of a Committee consisting of-

(a) the Prime Minister - Chairperson; ' ' + " (b) the Minister of Home Affairs - Member;

(c) the Leader of the Opposition in the House of the G People - Member.

Explanation.-For the purposes of this sub-section, 'the Leader of the Opposition in the House of the People' shall, when no such Leader has been so recognised, H

94 SUPREME COURT REPORTS [2013) 5 S.C.R.

A include the Leader of the single largest group in opposition of the Government in the House of the People."

65Copy pinpoint65. As can be seen, only the establishment of a High Powered Committee (HPC) for making a recommendation is 8 provided for - the procedure to be followed by the HPC is not detailed in the statute. This is not unusual since a statute cannot particularize every little procedure; otherwise it would become unmanageable and maybe unworkable. Moreover, some situations have to be dealt with in a common sense and pragmatic manner.

66Copy pinpoint66. Acknowledging this, this Court looked at the appointment of the Central Vigilance Commissioner not as a merit review of the integrity of the selected person, but as a judicial review of the. recommendation making process relating to the integrity of the institution. It was made clear that while the personal integrity of the candidate cannot be discounted, institutional integrity is the primary consideration to be kept in mind while recommending a candidate. It was observed that while this Court cannot sit in appeal over the opinion of the E HPC, it can certainly see whether relevant material and vital aspects having nexus with the objects of the Act are taken into account when a recommendation is made. This Court emphasized the overarching need to act for the good of the institution and in the public interest. Reference in this context F was made to N. Kannadasan.

67Copy pinpoint67. Keeping in mind the law laid down and the facts as they appear from the record, it does appear that the constitutional, functional and institutional requirements of the Punjab Public Service Commission were not kept in mind when G Mr. Dhanda was recommended for appointment as its Chairperson.

A suitable appointee:

68Copy pinpoint68. A submission was made by learned counsel supporting H

STATE OF PUNJAB v. SAUL SABHLOK AND ORS. 95

[MADAN B. LOKUR, J.] the appointment of Mr. Dhanda that ultimately it is for the State A Government to decide who would be the most suitable person to be appointed as the Chairperson of the Public Service Commission.

69Copy pinpoint69. In this regard, reliance was placed on three decisions. B In the first such decision, that is, E.P. Royappa v. State of Tamil Nadu, (1974) 4 SCC 3 the post of the Chief Secretary of the State was under consideration. This Court observed that the post is a sensitive one. The post is one of confidence and the Chief Secretary is a lynchpin in the administration of the C State. Therefore, the Chief Secretary and the Chief Minister of the State must have complete rapport and understanding between them. If the Chief Secretary forfeits the confidence of the Chief Minister, then he may be shifted to some other post in the larger interests of the administration, provided that no legal or constitutional right of the Chief Secretary is violated. D

70Copy pinpoint70. The second decision relied upon was State of WB. v. Manas Kumar Chakraborty, (2003) 2 SCC 604. That case concerned itself with the post of the Director General and Inspector General of Police (DG&IP) in a State. This Court E observed that ttie said post was of a very sensitive nature. It could only be filled up by a person in whom the State Government had confidence. Consequently, it was held that such a post need not be filled up only by seniority, but merit, credibility and confidence that the person can command with F the State Government "must play a predominant role in selection of an incumbent to such a post.··

71Copy pinpoint71. Finally, in Hari Bansh Lal, a case concerning an appointment to a statutory post of Chairperson of a State Electricity Board, reference was made to State of Mysore v. G Syed Mahmood, AIR 1968 SC 1113, Statesman (P) Ltd. v. H. R. Deb, Al R 1968 SC 1495 and State Bank of India v. Mohd. Mynuddin, (1987) 4 sec 486 and it was held:

"It is clear from the above decisions, suitability or otherwise H

96 SUPREME COURT REPORTS (2013) 5 S.C.R.

A of a candidate for appointment to a pas~ is the function of the appointing authority and not of the court unless the appointment is contrary to the statutory provisions/rules."

72Copy pinpoint72. These decisions are clearly distinguishable. First of all, none of tine cited decisions dealt with the appointment to a 8 constitutional position such as the one that we are concerned with. A constitutional position such as that of the Chairperson of a Public Service Commission cannot be equated with a purely administrative position - it would be rather facetious to do so. While the Chief Secretary and the Director General of · C Police are at the top of the ladder, yet they are essentially administrative functiol')aries. Their duties and responsibilities, however onerous, cannot be judged against the duties and responsibilities of an important constitutional authority or a constitutional trustee, whose very appointment is not only expected to inspire -confidence in the aspirational Indian but also project the credibility of the institution to which he or she belongs. I am, therefore, unable to accept the view that the suitability of an appointee to the post of Chairperson of a Public Service Commission should be evaluated on the same yardstick as . the appointment of a senior administrative functionary.

73Copy pinpoint73. Secondly, it may be necessary for a State Government or the Chief Minister of a State to appoint a "suitable" person as a Chief Secretary or the Director General of Police or perhaps to a statutory position, the connotation not being derogatory or disparaging,· but because both the State Government or the Chief Minister and the appointee share a similar vision of the administrative goals and requirements of the State. The underlying premise also is that the State G Government or the Chief Minister has confidence that the appointee will deliver the goods, as it were, and both are administratively quite compatible with each other. If there is a loss of confidence or the compatibility comes to an end, the appointee may simply be shifted out to some other assignment, H

STATE OF PUNJAB v. SAUL SABHLOK AND ORS. 97

[MADAN 8. LOKUR, J.] provided no legal or constitutional right of the appointee is A violated.

74Copy pinpoint74. The question of the Chief Minister or th,e State Government having "confidence" (in the sense .in which the word is used with reference to the <;;hief Secretary or the Director 8 General of Police ·et any important statutory post) in the Chairper.s,an of a State Public Service Commission simply does l')'Ot arise, nor does the issue of compatibility. The Chairperson of a Public Service Commission does not function at the p1easure of the Chief Minister or the State Government. C He·or she has a fixed tenure of six years or till the age of sixty 'two years, whichever is earlier. Security of tenure is provided through a mechanism in our Constitution. The Chairperson of a State Public Service Commission, even though appointed by the Governor, may be removed only by the President on the ground of misbehaviour after an inquiry by this Court, or on D other specified grounds of insolvency, or being engaged in any other paid employment or being unfit to continue in office by reason of infirmity of mind or body. There is no question of the Chairperson of a Public Service Commission being shifted out if his views are not in sync with the views of the Chief Minister E or the State Government. /

75Copy pinpoint75. The independence of the post of the Chairperson or the member of the Punjab Public Service Commission cannot be forgotten or overlooked. That independence is attached to F the post is apparent from a reading of the Punjab State Public Service Commission'(Conditions of Service) Regulations, 1958 framed by the Governor of Punjab in exercise of power conferred by Article 318 of the Constitution.

76Copy pinpoint76. Regulation 2(c) of the Punjab State Public Service G Commission (Conditions of Service) Regulations, 1958 defines "Member" as:

"Member" means a Member for the time being of the Commission and includes the Chairman thereof'; H

98 SUPREME COURT REPORTS (2013) 5 S.C.R.

· A 77. Regulation 4 of these Regulations provides that "Every Member shall on appointment be required to take the oaths in the form laid down in Appendix 'A' to these regulations."

78Copy pinpoint78. The oaths that a member (including the Chairperson) is required to take in the form laid down in Appendix 'A' are 8 oaths of allegiance, of office and of secrecy. A Note given in Appendix 'A' states: "These oaths will be administered by the Governor in person in the presence of the Chief Secretary." The oaths read as follows:

C "Form of Oath of Allegiance

_ _ _ _ _ _ _ , solemnly affirm that I will be faithful and bear true allegiance to India and to the Constitution of India as by law established and that I will loyally carry o out the duties of my office."

"Form of Oath of Office

I, , appointed a Member of the Punjab Public Service Commission do solemnly declare, that I will faithfully perform the duties of my office to the best of my ability, knowledge and judgment."

"Form of Oath of Secrecy

I, , solemnly affirm that I will not directly or indirectly communicate or reveal to any person or persons any matter which shall be brought under my consideration or shall become known to me as a Member of the Punjab Public Service Commission, except as may be required for due discharge of my duties as such G Member or as may be specially permitted by the Governor."

79Copy pinpoint79. There is, therefore, a great deal of solemnity attached to the post of the Chairperson of the Public Service H Commission. The Chairperson takes the oath of allegiance to

STATE OF PUNJAB v. SAUL SABHLOK AND ORS. 99

[MADAN B. LOKUR, J.] India and to the Constitution of India - not an oath of allegiance to the Chief Minister. An appointment to that position cannot be taken lightly or on considerations other than the public interest. Consequently, it is not possible to accept the contention that the Chief Minister or the State Government is entitled to act only on the perceived suitability of the appointee, over everything else, while advising the Governor to appoint the Chairperson of the Public Service Commission. If such a view is accepted, it will destroy the very fabric of the Public Service Commission.

Finding an appropriate Chairperson: c

80Copy pinpoint80. Taking all this into consideration, how can an appropriate person be searched out for appointment to the position of a Chairperson of a Public Service Commission? This ques~ion arises in the context of the guidelines framed by the High Court and which have been objected to by the State of Punjab and the State of Haryana. This Court found itself helpl.ess in resolving the dilemma in Mehar Singh Saini. This Court pointed out the importance of the Public Service Commission vis-a-vis good gov~rnance and the "common man". In this regard, it was obsen.ied that:

"The adverse impact of lack of probity in discharge of functions of the [Public Service] Commission can result in defects not only in the process of selection but also in the appointments to the public offices which, in turn, will affect effectiveness of administration of the State."

It was then noted that:

"The conduct of the Chairman and members of the G Commission, in discharge of their duties, has to be above board and beyond censure. The credibility of the institution of the Public Service Commission is founded upon faith of the common man on its proper functioning."

81Copy pinpoint81. In this background and in this perspective, this Court H

100 SUPREME COURT REPORTS [2013] 5 S.C.R.

·Adrew a distinction between the exercise of legislative power by Parliament and the executive power of the Government. It was held that laying down the qualifications and experience required for holding the office of Chairperson or member of the Public Service Commission is a legislative function. This is what this B Court said:

"Desirability, if any, of providing specific qualification or experience for appointment as Chairman/members of the Commission is a function of Parliament."

c 82. However, the necessary guidelines and parameters for holding such an office are within the executive power of the State. It was held by this Court:

"The guidelines or parameters, if any, including that of D · stature, if required to be specified are for the appropriate Government to frame. This requires expertise in the field, data study and adoption of the best methodology by the Government concerned to make appointments to the Commission on merit, ability and integrity."

83Copy pinpoint83. On the "legislative front", this Court found itself quite . helpless. This Court obviously could not read those qualifications into·Article 316 of the Constitution which were not there, nor could it direct Parliament ~o enact a law. All that could be done (arid which it did) was to draw the attention of F Parliament to the prevailing situation in the light of "the number of cases which have been referred to this Court by the ·President of India in terms of Article 317(1) of the Constitution in recent years." It was also noted that "A large number of · inquiries are pending before this Court which itself reflects that all is not well with the functioning of the Com!illissions."

84Copy pinpoint84. Apart from this Court's inability to read qualifications into Article 316 of the Constitution, it was submitted by learned counsel supporting the cause of Mr. Dhanda that this Court H cannot direct that legislation be enacted on the subject.

STATE OF PUNJAB v. SAUL SABHLOK AND ORS. 101

[MADAN B. LOKUR, J.] Reference was made to Supreme Court Employees' Welfare A Assn. v. Union of India, (1989) 4 SCC 187 wherein it was held:

"There can be no doubt that no court can direct a legislature to enact a particular law. Similarly, when an executive authority exercises a legislative power by way 8 of subordinate legislation pursuant to the delegated authority of a legislature, such executive authority cannot be asked to enact a law which he has been empowered to do under the delegated legislative authority."

A similar view was expressed in Asif Hameed v. State of C J & K, 1989 Supp (2) SCC 364. It was held in that decisi'on that:

"The .Constitution has laid down elaborate procedure for . the legislature to act thereunder. The legislature is supreme 0 in its own sphere under the Constitution. It is solely for the legislature to consider as to when and in respect of what subject-matter, the laws are to be enacted. No directions in this regard can be issued to the legislature by the courts." E

85Copy pinpoint85. In Suresh Seth v. Commissioner, Indore Municipal Corpn., (2005) 13 SCC 287 this Court referred to Supreme Court Employees' Welfare Assn.· and State of J&K v. A.R. Zakki, 1992 Supp (1) SCC 548 and held: F "..... this Court cannot issue any direction to the legislature to make any particular kind of enactment. Under our constitutional scheme Parliament and Legislative Assemblies exercise sovereign power to enact laws and no outside power or authority can issue a direction to G enact a particular piece of legislation,"

86Copy pinpoint86. There is, therefore, no doubt that this Court can neither legislate on the subject nor issue any direction to Parliament or the State Legislature to enact ·a law on the subject. H

102 SUPREME COURT REPORTS [2013] 5 S.C.R.

87Copy pinpoint87. On the "executive front", this Court expressed its helplessness in framing guidelines or parameters due to its lack of "expertise in the field, data study and adoption of the best methodology". Keeping this in mind, the High Court was in error in framing the guidelines that it did in the absence of any B expertise in the field, data study or knowledge of the best methodology for selecting the Chairperson of the Punjab Public Service Commission.

Options before this Court:

88Copy pinpoint88. But, is this Court really helpless, broadly, in the matter of laying down appropriate guidelines or parameters for the appointment of a Chairperson or members of the Public Service Commission? If Mehar Singh Saini is understood in its correct perspective, the answer to this question would be in the negative.

89Copy pinpoint89. First of all, this Court cannot overlook the administrative imperative. There was and still is a need for the Public Service Commission to deliver the goods, as it were. In this context, the Second Administrative Reform Commission in its 15th Report looked at the past, present and future of the Public Service Commission and observed:

"2.5.3. In the early years of Independence, State Public Service Commissions throughout the country functioned well primarily on account of the fact that:

(a) There was objectivity in selection of competent and experienced people as Chairman and Members of the Commission. The government treated the Public Service G Commission as a sacrosanct institution and the Chairman and Members were either very senior government servants (drawn usually from the ICS) or academicians of high standing in their field.

(b) The Commission enjoyed excellent reputation for objectivity, transparency and fairplay.

STATE OF PUNJAB v. SAUL SABHLOK AND ORS. 103

[MADAN B. LOKUR, J.] "2.5.4 But in recent years, this Constitutional body has suffered extensive loss of reputation in many States, mainly on account of (a) charges of corruption, favouritism and nepotism in matters of recruitment and (b) use of archaic processes and procedures in its functioning which leads to inordinate delays. For example, the civil services examinations conducted by a State Public Service Commission take a minimum time period of one and half year to complete. In some cases, it may take even longer.

"2.5.6.6 The Commission is of the view that the intention behind creation of an autonomous Public Service C Commission as a Constitutional authority was to create a body of achievers and ex-administrators who could select meritorious candidates for recruitment ahd promotion to various civil service positions under the State Government with utmost probity and transparency. There is need to take D steps to ensure that only persons of high standing, intellectual ability and reputation are selected as Chairman and Members of the Public Service Commission."

90Copy pinpoint90. In this context, the views of the Law Commission of E India as contained in its 14th Report, which are at variance with the views of the Second Administrative Reform Commission contained in its 15th Report are worth highlighting, one of the reasons being that the luminaries who assisted the Law Commission reads like a veritable Who's Who from the legal F firmament. This is what was said:

"Having regard to the important part played by the Public Service Commission in the selection of the subordinate judiciary, we took care to examine as far as possible the Chairman and some of the members of the Public Service G Commissions in the various States. We are constrained to state that the personnel of these Public Service Commissions in some of the States was not such as could inspire confidence, from the points of view of either efficiency or of impartiality. There appears to be little doubt H

104 SUPREME COURT REPORTS [2013] 5 S.C.R.

A that in some of the States appointments to these Commissions are made not on considerations of merit but . on grounds of party and political affiliations. The evidence given by members of the Public Service Commissions in some of the States does create the feeling that they do 18 not deserve to be in the responsible posts they occupy."

91Copy pinpoint91. Secondly, the constitutional and more important imperative is that of good governance for the benefit of the aspirational Indian. For this, an appropriate person should be selected to fill up the position of a constitutional trustee. c

92Copy pinpoint92. In the light of the various decisions of this Court adverted to above, the administrative and constitutional imperative can be met only if the Government frames guidelines or parameters for the appointment of the Chairperson and members of the Punjab Public Service Commission. That it has failed to do so does not preclude this Court or any superior Court from giving a direction to the State Government to conduct the necessary exercise within a specified period. Only .because it is left to the State Legislature to consider the desirability or otherwise of specifying the qualifications or experience for the appointment of a person to the position of Chairperson or member of the Punjab Public Service Commission, does not imply that this Court cannot direct the Executive to frame guidelines and set the parameters. This F Court can certainly issue appropriate directions in this regard, and in the light of the experience gained over the last several decades coupled with the views expressed by the Law Commission, the Second Administrative Reform Commission and the views expressed by this Court from time to time, it is G imperative for good governance and better administration to issue directions to the Executive to frame appropriate guidelines and parameters based on the indicators mentioned by this Court. These guidelines can and should be binding on the State of Punjab till the State Legislature exercises its power.

STATE OF PUNJAB v. SAUL SABHLOK AND ORS. 105

[MADAN B. LOKUR, J.] Additional questions framed by the Full Bench: A

93Copy pinpoint93. Learned counsel supporting the appointment of Mr. Dhanda submitted that the Full Bench could not expand the scope of the reference made to it by the Division Bench, nor could it frame additional questions. B

94Copy pinpoint94. Generally speaking, they are right in their contention, but it also depends on the reference made.

95Copy pinpoint95. The law on the subject has crystallized through a long line of decisions and it need not be reiterated again and again. C The decisions include Kesho Nath Khurana v. Union of India, 1981 Supp SCC 38 (The Division Bench ought to have sent the appeal back to the Single Judge with the answer rendered by them to the question referred by the Single Judge and left it to the Single Judge to dispose of the second appeal according to law.). Kera/a State Science & Technology Museum v. Rambal Co., (2006) 6 SCC 258 (It is fairly well settled that when reference is made on a specific issue either by a learned Single Judge or Division Bench to a larger Bench i.e. Division Bench or Full Bench or Constitution Bench, as the case may be, the larger Bench cannot adjudicate upon an issue which is not the question referred to.). T.A. Hameed v. M. Viswanathan, (2008) 3 sec 243 (Since, only reference was made to the Full Bench; the Full Bench should have answered the question referred to it and remitted the matter to the Division Bench for deciding the revision petition on merits.). And more recently, Saquib Abdul Hameed Nachan v. State of Maharashtra, (2010) 9 sec 93 (Normally, after answering the reference by the larger Bench, it is for the Reference Court to decide the issue on merits on the basis of the answers given by the larger Bench.). G

96Copy pinpoint96. There is no bar shown whereby a Bench is precluded from referring the entire case for decision by a larger Bench - it depends entirely on the reference made. In any event, that H

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A issue does not arise in this appeal and so nothing more need be said on the subject.

97Copy pinpoint97. What was the reference made by the Division Bench to the Full Bench and did that Bench frame additional B questions? The answer to this is to be found in the judgment of the High Court. The reference has not been artistically drafted, but it reads as follows:

"6. Even though, Article 316 of the Constitution does not prescribe any particular procedure, having regard to the c purpose and nature of appointment, it cannot be assumed that power of appointment need not be regulated by any procedure. It is undisputed that person to be appointed must have competence and integrity. Reference may be made to the judgments of the Hon'ble Supreme Court in D Rio Dr. Ram Ashray Yadav, Chairman, Bihar Public Service Commission, (2000) 4 SCC 309, Ram Kumar Kashyap and Anr. v. Union of India I and Anr., AIR 2010 SC 1151 and In re Mehar Singh Saini, Chairman, HPSC and Ors., (201 O) 13 sec 586. E

7. If it is so, question is how such persons are to be identified and selected and whether in the present case, procedure adopted is valid and if not, effect thereof. We are of the view that these questions need to be considered by a Bench of three Hon'ble Judges. Accordingly, we refer F the matter to a Bench of three Hon'ble Judges."

98Copy pinpoint98. On the basis of the submissions made, the Full Bench reformulated the questions referred to it in the following words:

G "1. Whether the ptesent petition is not mair.itainable as the questions raised are the concluded questions by the decisions of the Supreme Court?

2. Whether the present petition is public interest litigation in a service matter, and hence not maintainable on the said ground also?

STATE OF PUNJAB v. SAUL SABHLOK AND ORS. 107

[MADAN B. LOKUR, J.]

3. Whether this Court can issue directions in the nature of guidelines for a transparent, fair and objective procedure to ensure that the persons of impeccable personal integrity, caliber and qualifications alone are appointed as the members I Chairman of State Public Service Commission? B

4. Whether in exercise of power of judicial review, it could be stated that the decision making process leading to the appointment of Respondent No. 4 [Mr. Harish Rai Dhanda] as Chairman of Commission was arbitrary, capricious or violative of Article 14?" C

99Copy pinpoint99. The reformulation was explained by the Full Bench by stating that the first two questions were raised on behalf of the State of Punjab regarding the maintainability of the reference itself. In my opinion, the first two questions actually touch upon the maintainability of the writ petition itself. These issues should have been decided by the Division Bench and had it answered the questions in the negative, there would have been no need to make any ,reference to the Full Bench.

100Copy pinpoint100. Much was sought to-be made by learned counsel for the writ petitioner that the "matter" (that is the entire matter) was referred to the Full Bench. It is difficult to agree that the entire "matter'' was referred to the Full Bench. Firstly, the word "matter'' must take colour from the context in which it was used, which is with reference only to the two questions placed before the Full Bench. Secondly, even the Full Bench did not think that the entire matter was referred to it and that is why after answering the reference the "matter" was remitted to the Division Bench for disposal in accordance with law.

101Copy pinpoint101. To this extent, learned counsel supporting the cause of Mr. Dhanda are right that the Full Bench overstepped its mandate. But where does this discussion lead us to? The two questions were fully argued in this Court for the purposes of obtaining a decision on them, and no suggestion was made that the decision of the Full Bench on these questions be set H

108 SUPREME COURT REPORTS [2013] 5 S.C.R.

A aside because of a jurisdictional error and the Division Bench be asked to decide them quite independently. Therefore, this issue is only of academic interest so far as this appeal is concerned notwithstanding the law that a larger Bench should decide only the questions referred to it. Of course, if a B subsidiary question logically and unavoidably arises, the larger Bench cannot be dogmatic and refuse to answer it. A common sense approach must be taken on such occasions.

102Copy pinpoint102. So fa~ as questions 3 and 4 formulated by the Full Bench are concerned, I am of the opinion that they merely articulate and focus on the issues that wme nq_t quite attractively phrased by the Division Bench. I am not in agreement thaHhe Full Bench overstepped its jurisdiction in the reformulation of the issues before it.

103Copy pinpoint103. It was then submitted that there was really no occasion for the Division Bench to make any reference to the Full Bench of the High Court on the question of framing guidelines or parameters for the appointment of the Chairperson of the Punjab Public Service Commission. This . Court had already laid down the law in Mehar Singh Saini and the High Court was merely required to follow it. The argument puts the issue rather simplistically. The Division Bench was fully entitled to refer to the Full Bench the applicability of the decision of this Court to the facts of the case and for further follow up · action, if necessary. This argument is mentioned only because it was raised and nothing really turns on it, except to the extent that it is another way of questioning the maintainability of the writ petition filed in the High Court. lmpleadment of the State of Haryana by the Full Bench:

104Copy pinpoint104. The justification given by the Full Bench for suo motu impleading the State of Haryana and the Haryana Public Service Commission is because "issues common in respect of the States of Punjab and Haryana, were likely to arise." I think this is hardly a reason for impleadment. The case concerned the appointment of the Chairperson of the Punjab Public

STATE OF PUNJAB v. SAUL SABHLOK AND ORS. 109

[MADAN B. LOKUR, J.] Service Commission and it should have and could have been left at that without enlarging the scope of the controversy before it. Rroduction of the Chief Minister's advice:

105Copy pinpoint105. Learned counsel for the State of Punjab submitted that the High Court could not have directed production of the advice tendered by the Chief Minister to the Governor. The basis of this argument is the order dated 1st August 2011 passed by the Full Bench. The relevant portion of the order · reads as follows: c "Mr. Jindal, Addi. Advocate General shall also produce the record relating to the appointment process of respondent No.4 [Mr. Dhanda]."

106Copy pinpoint106. The grievance made by learned counsel in this regard is justified. It need only be pointed out that in State of Punjab D v. Sodhi Sukhdev Singh, (1961) 2 SCR 371 this Court clearly held that: "It is hardly necessary to recall that advice given by the Cabinet to the Rajpramukh or the Governor is expressly E saved by Article 163, sub-article (3) of the Constitution;· and in the case of such advice no further question need to be considered." It is not necessary to say anything more on this subject. Conclusion: F

107Copy pinpoint107. The appointment of the Chairperson of the Punjab Public Service Commission is an appointment to a constitutional position and is not a "service matter". A PIL challenging such an appointment is, therefore, maintainable G both for the issuance of a writ of quo warrahto and for a writ of declaration, as the case may be.

108Copy pinpoint108. In a case for the issuance of a writ of declaration. exercise of the power of judicial review is presently limited to examining the deliberative process for the appointment not H

110 SUPREME COURT REPORTS [2013) 5 S.C.R.

A meeting the constitutional, functional and institutional requirements of the institution whose integrity and commitment needs to be maintained or the appointment for these reasons not being in public interest.

109Copy pinpoint109. The circumstances of this case leave no room for B doubt that the notification dated 7th July 2011 appointing Mr. Harish Rai Dhanda was deservedly quashed by the High Court since there was no deliberative process worth the name in making the appointment and also since the constitutional, functional and institutional requirements of the Punjab Public C Service Commission were not met.

110Copy pinpoint110. In the view that I have taken, there is a need for a word of caution to the High Courts. There is a likelihood of comparable challenges being made by trigger-happy litigants to appointments made to constitutional positions where no eligibility criterion or procedure has been laid down. The High Courts will do well to be extremely circumspect in even entertaining such petitions. It is necessary to keep in mind that sufficient elbow room must be given to the Executive to make constitutional appointments as long as the constitutional, functional and institutional requirements are met and the appointrnents are in conformity with the indicators given by this Court from time to time.

111Copy pinpoint111. Given the experience in the making of such appointments, there is no doubt that until the State Legislature enacts an appropriate law, the State of Punjab must step in and take urgent steps to frame a memorandum of procedure and administrative guidelines for the selection and appointment of the Chairperson and members of the Punjab Public Service G Commission, so that the possibility of arbitrary appointments is eliminated.

112Copy pinpoint112. The Civil Appeals are disposed of as directed by Brother Patnaik. B.B.B. Appeals disposed of.