9911796707
TMI Blog1957 (9) TMI 43X X X X Extracts X X X X X X X X Extracts X X X X ..... stava-as the respondent, in the course of this judgment which covers both the appeals. It is necessary to state the following facts : In 1920, the respondent was employed in the education department of the State of Uttar Pradesh, and in due course, was promoted to the United Provinces Education Service (Junior Scale). This took place in 1946. In the year 1948, the respondent was appointed an officer-on-special duty and managing editor of a quarterly journal issued by the education department, under the style " Shiksha ". While holding the post of officer-on-special-duty, the respondent was also appointed a member of the Book Selection Committee. He continued to function as such until 1951. The respondent's conduct as a member of that Committee was not found to be satisfactory and above board, inasmuch as it was discovered that he had allowed his private interests to come in conflict with his public duties. He was found to have shown favours in the selection of books on approved list, in respect of certain books said to have been written by a nephew of his, aged only 14 years, and by another relation of his, as also to a firm of publishers who had advanced certain sums of money ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... who would retire in due course on superannuation, that is to say, at the age of 55, and the corresponding dates of superannuation. The respondent is shown therein as one of those, and in the last column meant for showing the dates of retirement, September 15, 1953, is mentioned as against his name. On February 2, 1953, the respondent filed the first petition (Writ Petition No. 121 of 1953) challenging the validity of the order of the Government suspending him and calling upon him to show cause why he should not be reduced in rank with effect from the date of suspension, and also compulsorily retired. In that petition, he also challenged the legality of the entire proceedings and prayed for a writ of mandamus directing the Government to pay his full salary during the period of suspension until he attained the age of superannuation as aforesaid. PerhapRr realising that the show-cause-notice served upon the respondent as aforesaid, in November, 1952, would not fully satisfy the requirements of a reasonable opportunity as contemplated by the Constitution, the Director of Education forwarded to the respondent, along with a covering letter dated June 16, 1953, a copy of the report of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... im in rank and reducing his emoluments with effect from the date of suspension as aforesaid. It did not pass any order in respect of the compulsorys retirement because that had happened in due course before the judgment of the High Court. The appellant has filed appeal No. 27 from this part of the judgment and order of the High Court. The High Court refused the respondent's prayer in respect of the full salary for the period of suspension during which he had been deprived of it by the orders of the Government impugned by him. From this part of the judgment, the respondent has preferred appeal No. 28. It is manifest that if the State Government's appeal is well-founded and is allowed by this Court, the respondent's appeal must fail without any further consideration. Before dealing with the merits of the controversy raised in these appeals, it is necessary to state that Mr. Mathur appearing on behalf of the appellant, proposed to place before this Court, at the time of the argument, the original records and certain affidavits to show that, that as a matter of fact, all the relevant facts relating to consultation between the State Government and the Commission had not bee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ty of the order impugned in this case. In this connection, the High Court found that the Commission had been consulted some time in June, 1953. It has to be assumed as aforesaid, that the Commission had not before it the more elaborate explanation submitted in writing by the respondent on July 3, in answer to the second show-cause- notice. The High Court was further of the opinion that it may be that if that explanation had been placed before the Commission, its advice to the State Government may not have been in the same terms in which it actually gave its advice, and after considering which, along with other relevant matters, the State Government passed the order now in question. We shall assume for the purposes of this case that there was an irregularity in, though not complete absence of, consultation with the Commission. Now the question is: Did this irregularity afford a cause of action to the respondent to challenge the final order passed by the State Government on September 12, 1953 ? That part of the order which related to compulsory retirement may easily be passed over, because, in any case, three days litter, on September 15, the respondent retired in due course. Hence, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (3):" The Union Public Service Commission or the State Public Service Commission, as the case may be, shall be consulted- (a)......................................................... (b)......................................................... (c) on all disciplinary matters affecting a person serving under the Government of India or the Government of a State in a civil capacity, including memorials or petitions relating to such matters; ". Article 320 does not come under Chapter I headed Services " of Part XIV. It occurs in Chapter 11 of that part headed " Public Service Commissions." Articles 320 and 323 lay down the several duties of a Public Service Commission. Article 321 envisages such " additional functions " as may be provided for by Parliament or a State Legislature. Articles 320 and 323 begin with the words "It shall be the duty and then proceed to prescribe the various duties and functions of the Union or a State Public Service Commission, such as to conduct examinations for appointments; to assist in framing and operating schemes of joint recruitment; and of being consulted on all matters relating to methods of recruitment or principles in making appointments to Civ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the situation. Secondly, it is clear that the requirement of the consultation with the Commission does not extend to making the advice of the Commission on those matter,,;, binding on the Government. Of course, the Government, when it consults the Commission on matters like these, does it, not by way of a mere formality, but, with a view to getting proper assistance in assessing the guilt or otherwise of the person proceeded against and of the suitability and adequacy of the penalty proposed to be imposed. If the opinion of the Commission were binding on the Government, it may have been argued with greater force that non-compliance with the rule for consultation would have been-fatal to the validity of the order proposed to be passed against a public servant. In the absence of such a binding character, it is difficult to see how non-compliance with the provisions of Art. 320(3)(c) could have the effect of nullifying the final order passed by the Government. Thirdly, Art. 320 or the other articles in Chapter II of Part XIV of the Constitution deal with the constitution of the Commission and appointment and removal of the Chairman or other members of the Commission and their term ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the same time would not promote the main object of the Legislature, it has been the practice to hold such provisions to be directory only, the neglect of them, though punishable, not affecting the validity of the acts done." The principle laid down in this case was adopted by the Federal Court in the case of Biswanath Khemka v. The King Emperor ([1945] F.C.R. 99). In that case, the Federal Court had to consider the effect of non-compliance with the provisions of s. 256 of the Government of India Act, 1935, requiring consultation between public authorities before the conferment of magisterial powers or of enhanced magisterial powers, etc. The Court repelled the contention that the provisions of s. 256, aforesaid, were mandatory. It was further held that noncompliance with that section would not render the appointment otherwise regularly and validly made, invalid or inoperative. That decision is particularly important as the words of the section then before their Lordships of the Federal Court were very emphatic and of a prohibitory character. An examination of the terms of Art. 320 shows that the word " shall " appears in almost every paragraph and every clause or sub-clause ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
