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TMI Blog2013 (2) TMI 772X X X X Extracts X X X X X X X X Extracts X X X X ..... otification dated 07.07.2011, the State Government of Punjab appointed Mr. Harish Dhanda as the Chairman of the Punjab Public Service Commission. On 10.07.2011, the respondent No.1 who was an Advocate practicing at the Punjab and Haryana High Court, Chandigarh, filed a public interest litigation under Article 226 of the Constitution (Writ Petition No.11846 of 2011) praying for a mandamus directing the State Government to frame regulations governing the conditions of service and appointment of the Chairman and/or the Members of the Public Service Commission as envisaged in Article 318 of the Constitution of India. The respondent No.1 also prayed for a direction restraining the State Government from appointing Mr. Harish Dhanda as the Chairman of the Punjab Public Service Commission in view of the fact that his appointment does not fall within the parameters of integrity, impartiality and independence as reiterated time and again by this Court. 4. The Division Bench of the High Court, after hearing the learned counsel for the writ petitioner and the learned Additional Advocate General for the State of Punjab, passed an order on 13.07.2011 holding that even though Article 316 of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Punjab filed Special Leave Petitions (C) Nos.22010-22012 of 2011 before this Court. On 05.08.2011, this Court, while issuing notice in the Special Leave Petitions, made it clear that issuance of notice in the Special Leave Petitions will not come in the way of the High Court deciding the matter and the State of Punjab is at liberty to urge all contentions before the High Court. Accordingly, the Full Bench of the High Court heard the matters on 08.08.2011 and directed the Chief Secretary of the State of Punjab to remain present at 2.00 P.M. along with the relevant files which contain the advice of the Chief Minister to the Government. The Chief Secretary of the State of Punjab produced the original files containing the advice of the Chief Minister to the Governor of Punjab and after seeing the original files, the Full Bench of the High Court returned the same and reserved the matter for judgment. 7. Thereafter, the Full Bench of the High Court delivered the judgment and order dated 17.08.2011 directing that till such time a fair, rational, objective and transparent policy to meet the mandate of Article 14 is made, both the State of Haryana and the State of Punjab shall follow th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ench and the Division Bench of the High Court. Contentions of the learned counsel for the parties: 9. Mr. P.P. Rao, learned senior counsel for the State of Punjab, submitted that the writ petition before the High Court was a service matter and could not have been entertained by the High Court as a Public Interest Litigation at the instance of the writ petitioner. He cited the decisions of this Court in R.K. Jain v. Union of India & Ors. [(1993) 4 SCC 119], Dr. Duryodhan Sahu & Ors. v. Jitendra Kumar Mishra & Ors. [(1998) 7 SCC 273], Dattaraj Nathuji Thaware v. State of Maharashtra & Ors. [(2005) 1 SCC 590], Ashok Kumar Pandey v. State of West Bengal [(2004) 3 SCC 349], Hari Bansh Lal v. Sahodar Prasad Mahto & Ors. [(2010) 9 SCC 655] and Girjesh Mr.vastava & Ors. v. State of M.P. & Ors. [(2010) 10 SCC 707] for the proposition that a dispute relating to a service matter cannot be entertained as a Public Interest Litigation. 10. Mr. Rao next submitted that the Division Bench has recorded a clear finding in its order dated 13.07.2011 that the allegations regarding irregularities and illegalities against Mr. Harish Dhanda in the writ petition do not stand substantiated and there was, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urt cannot direct the Government to exercise its discretion by following a procedure prescribed by the High Court. He cited Supreme Court Employees Welfare Association v. Union of India & Anr. [(1989) 4 SCC 187], Suresh Seth v. Commissioner of Indore Municipal Corporation [(2005) 13 SCC 287], Divisional Manager, Aravali Golf Club & Anr. v. Chander Hass & Anr. [(2008) 1 SCC 683] and Asif Hameed & Ors. v. State of J & K & Ors. [(1989) 2 Supp. SCC 364] in support of the aforesaid submission. He submitted that the appointments to the constitutional offices, like the Attorney General, Advocate General, Comptroller & Auditor General, Chief Election Commissioner, Chairman and Members of the Union Public Service Commission and appointments to the topmost Executive posts, like the Chief Secretary or Director General of Police, has to be made within the discretion of the Government inasmuch as persons in whom the Government has confidence are appointed to the posts. He relied on E.P. Royappa v. State of Tamil Nadu & Anr. [(1974) 4 SCC 3] and State of West Bengal & Ors. v. Manas Kumar Chakraborty & Ors. [(2003) 2 SCC 604] for this proposition. 13. Mr. Rao argued that in the absence of clear ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .V. Kamath in the Constitutional Assembly and argued that to perform this difficult job of finding the best talent for the State Public Services without any political influence and other extraneous considerations the Public Service Commission must have a Chairman of great ability, independence and integrity. 15. Mr. Lalit further submitted that this Court has also in a number of pronouncements emphasized on the need to appoint eminent persons possessing a high degree of competence and integrity as Chairman and Members of the Public Service Commission so as to inspire confidence in the public mind about the objectivity and impartiality of the selection to be made by the Public Service Commission. In this context he referred to the judgments of this Court in Ashok Kumar Yadav & Ors. v. State of Haryana & Ors. [(1985) 4 SCC 417], in R/O Dr. Ram Ashray Yadav, Chairman, Bihar Public Service Commission [(2000) 4 SCC 309], Inderpreet Singh Kahlon and Others v. State of Punjab and Others [(2006) 11 SCC 356] and Mehar Singh Saini, Chairman, Haryana Public Service Commission and others In Re (supra). 16. Mr. Lalit submitted that Mr. Harish Dhanda may be eligible for appointment as Chairman ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rest Service and was posted as Divisional Forest Officer, Ropar in Punjab, had alleged that he had been transferred out of Ropar and posted as Division Forest Officer, Ferozpur, because of an incident which had occurred on 21.06.2007 on account of which he incurred the displeasure of Mr. Harish Dhanda, who was then the Chief Parliamentary Secretary, Department of Local Government, Punjab. He alleged that Mr. Dhanda had been given the permission to stay at the Van Chetna Kendra/Forest Rest House at Pallanpur, District Ropar, for a few days, but later on he wanted to make the Forest Rest House as his permanent residence to which Mr. Amit Misra objected as the same was not permitted under the Rules and Mr. Amit Misra had directed the official incharge of the Rest House not to allow anybody to use the Rest House without getting permission and accordingly when Mr. Dhanda wanted the keys of the Rest House on 22.06.2007 he was not given the keys of the Rest House and Mr. Dhanda recorded a note addressed to the Principal Chief Conservator of Forests narrating the entire incident and ensured that Mr. Amit Misra was posted out of Ropar by an order of transfer dated 31.07.2007. The Central Ad ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ned that the High Court under Article 226 of the Constitution can issue writs in the nature of prerogative writs as understood in England and can also issue other directions, orders or writs. He vehemently submitted that the contention on behalf of the appellants that the High Court could not have issued a writ/order quashing the selection and appointment of Mr. Harish Dhanda is, therefore, not correct. 20. Mr. Lalit finally submitted that pursuant to the impugned orders of the Full Bench and the Division Bench of the High Court, the Search Committee was constituted by the Government for selection of the Chairman of the Punjab Public Service Commission and the Search Committee invited the names of eminent persons of impeccable integrity, caliber and administrative experience from all walks of life, to be considered for the post of the Chairman of Punjab Public Service Commission and thereafter the High Power Committee selected Lt. Gen. R.A. Sujlana (Retd.) who has been appointed by the State Government as the Chairman of the Punjab Public Service Commission in December, 2011 and he has been functioning as such since then. He submitted that the appointment of Lt. Gen. R.A. Sujlana ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e and important and it is very essential that a person, who is appointed as the Chairman of the Public Service Commission, must possess outstanding and high degree educational qualifications and a great amount of experience in the field of selection, administration and recruitment and he must also be a man of integrity and impartiality. The respondent No.1 has alleged in the writ petition that the State Government has not laid down any qualification for appointment to the post of Chairman of the Punjab Public Service Commission and is continuing to appoint persons to the post of Chairman of Public Service Commission on the basis of political affiliation. In the writ petition, the respondent No.1 has also given the example of Mr. Ravi Pal Singh Sidhu, who was appointed as the Chairman, Punjab Public Service Commission on the basis of political affiliation and the result was that during his period as the Chairman of the Punjab Public Service Commission, several cases of undeserving candidates being selected and appointed to the Public Service Commission in the State of Punjab came to light and investigations were carried out leading to filing of various criminal cases against the off ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t the submission of Mr. P.P. Rao, learned senior counsel appearing for the State of Punjab, that the writ petition was a service matter and the High Court was not right in entertaining the writ petition as a Public Interest Litigation at the instance of the respondent No.1. The decisions cited by Mr. Rao were in cases where this Court found that the nature of the matter before the Court was essentially a service matter and this Court accordingly held that in such service matters, the aggrieved party and not any third party can only initiate a legal action. 24. The next question that I have to decide is whether the Division Bench of the High Court, after having recorded a finding in its order dated 13.07.2011 that the allegations of irregularities and illegalities against Mr. Harish Dhanda in the writ petition do not stand substantiated, should have made an academic reference to the Full Bench of the High Court. As I have noticed, the respondent No.1 had, in the writ petition, relied on the constitutional provisions in Articles 315, 316, 317, 318, 319 and 320 of the Constitution to plead that the functions of the Public Service Commissions were of a sensitive and critical nature an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... C and others (2010) 13 SCC 586 : (2010) 6 SLR 717. 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 the matter to a Bench of three Hon'ble Judges." 25. It will be clear from the Paragraphs 6 and 7 of the order dated 13.07.2011 quoted above that the Division Bench of the High Court found that Article 316 of the Constitution, which provides for appointment of the Chairman and other Members of the Public Service Commission by the Governor, does not prescribe any particular procedure and took the view that, having regard to the purpose and nature of appointment, it cannot be assumed that power of appointment need not be regulated by any procedure. The Division Bench of the High Court was of the further view that the persons to be appointed must have competence and integrity, but how such persons are to be identified and selected must be considered by a Bench of three Judges and accordingly referred the matter to the three Judges. The Division Bench a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the attention of the Parliamentarians and quarters concerned in the Governments. One of the factors, which has persuaded us to make this observation, is 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. A large number of inquiries are pending before this Court which itself reflects that all is not well with the functioning of the Commissions." The observations of this Court in the aforesaid case of Mehar Singh Saini Chairman, HPSC In Re (supra) relate to qualification and experience for appointment as Chairman/Members of the Commission and have nothing to do with the questions relating to the procedure for identifying persons of integrity and competence to be appointed as Chairman of the Public Service Commission, which were referred by the Division Bench of the High Court to the Full Bench by the order dated 13.07.2011. Mr. Rao is, therefore, not right in his submission that in view of the law declared by this Court in Mehar Singh Saini, Chairman, HPSC In Re (supra), there was no necessity for the Division Bench to make a reference to the Full Bench by the order dated 13.07.2011. 27 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ting to the procedure for identifying persons of competence and integrity for appointment as the Chairman of the Public Service Commission only were referred by the Division Bench of the High Court, the Full Bench, instead of deciding these specific questions referred to it, has given directions to the State of Punjab and the State of Haryana to follow a particular procedure for appointment of Members and Chairman of the Public Service Commission till such time a fair, rational, objective and transparent policy to meet the mandate of Article 14 of the Constitution is made. I, therefore, agree with Mr. Rao that the Full Bench of the High Court has decided issues which were not referred to it by the Division Bench of the High Court and the judgment dated 17.08.2011 of the Full Bench of the High Court was without jurisdiction. 29. I may next consider the contention of Mr. Rao that as the Constitution has left it to the discretion of the State Government to select and appoint the Chairman and Members of a State Public Commission, the High Court cannot direct the Government to exercise its discretion by following a procedure prescribed by the High Court. Mr. Rao has relied on Article 3 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... holds office as a member of a Public Service Commission shall, on the expiration of his term of office, be ineligible for re-appointment to that office." A reading of Article 316 of the Constitution would show that it confers power on the Governor of the State to appoint the Chairman and other Members of a Public Service Commission. It has been held by this Court in Mohinder Singh Gill & Anr. v. The Chief Election Commissioner, New Delhi & Ors. (supra) that an authority has implied powers to make available and carry into effect powers expressly conferred on it. Thus, under Article 316 of the Constitution, the Governor of a State has not only the express power of appointing the Chairman and other Members of Public Service Commission but also the implied powers to lay down the procedure for appointment of Chairman and Members of the Public Service Commission and the High Court cannot under Article 226 of the Constitution usurp this constitutional power of the Government and lay down the procedure for appointment of the Chairman and other Members of the Public Service Commission. The Full Bench of the High Court, therefore, could not have laid down the procedure for appointment of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rtially, so that he society does not lose confidence in the Commission. The high constitutional trustees, like the Chairman and members of the Public Service Commission must forever remain vigilant and conscious of these necessary adjuncts." Despite these observations of this Court, the State Government of Punjab appointed Mr. Ravi Pal Singh Sidhu as the Chairman of the Punjab Public Service Commission between 1996 to 2002 and as has been noted in the judgment of S.B. Sinha, J. of this Court in Inderpreet Singh Kahlon and Others v. State of Punjab and Others (supra), allegations were made against him that he got a large number of persons appointed on extraneous considerations including monetary consideration during the period 1998 to 2001 and raids were conducted in his house on more that one occasion and a large sum of money was recovered from his custody and his relatives and FIRs were lodged and criminal cases initiated by the Vigilance Bureau of the State of Punjab. Writing a separate judgment in the aforesaid case, Dalveer Bhandari, J, had to comment: "This unfortunate episode teaches us an important lesson that before appointing the constitutional authorities, there should b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e State Government has to select only persons with integrity and competence for appointment as Chairman of the Public Service Commission, because the discretion vested in the State Government under Article 316 of the Constitution is impliedly limited by the purposes for which the discretion is vested and the purposes are discernible from the functions of the Public Service Commissions enumerated in Article 320 of the Constitution. Under clause (1) of Article 320 of the Constitution, the State Public Service Commission has the duty to conduct examinations for appointments to the services of the State. Under clause (3) of Article 320, the State Public Service Commission has to be consulted by the State Government on matters relating to recruitment and appointment to the civil services and civil posts in the State, on disciplinary matters affecting a person serving under the Government of a State in a civil capacity, on claims by and in respect of a person who is serving under the State Government towards costs of defending a legal proceeding, on claims for award of pension in respect of injuries sustained by a person while serving under the State Government and other matters. In such ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y sensitive post and the Chief Secretary is a lynchpin in the administration and for smooth functioning of the administration, there should be complete rapport and understanding between the Chief Secretary and the Chief Minister and, therefore, it is only the person in whom the Chief Minister has complete confidence who can be appointed as Chief Secretary of the State and hence the Chief Secretary of a State cannot be displaced from his post on the ground that his appointment was arbitrary and violative of Articles 14 and 16 of the Constitution. Mr. Rao also relied on the decision of a two-Judge Bench of this Court in State of West Bengal & Ors. v. Manas Kumar Chakraborty & Ors. (supra) in which it was similarly observed that the post of DG and IG Police was a selection post and it is not open to the courts to sit in appeal over the view taken by the appointing authority with regard to the choice of the officer to be appointed as DG and IG Police and for such selection, the Government of the State must play a predominant role. I am of the considered opinion that the Chairman of the Public Service Commission, who along with its other members has to perform his duties under Article 3 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n comprehensive phraseology and it ex facie confers a wide power on the High Courts to reach injustice wherever it is found. The Constitution designedly used a wide language in describing the nature of the power, the purpose for which and the person or authority against whom it can be exercised. It can issue writs in the nature of prerogative writs as understood in England; but the scope of those writs also is widened by the use of the expression "nature", for the said expression does not equate the writs that can be issued in India with those in England, but only draws an analogy from them. That apart, High Courts can also issue directions, orders or writs other than the prerogative writs. It enables the High Courts to mould the reliefs to meet the peculiar and complicated requirements of this country. Any attempt to equate the scope of the power of the High Court under Article 226 of the Constitution with that of the English Courts to issue prerogative writs is to introduce the unnecessary procedural restrictions grown over the years in a comparatively small country like England with a unitary form of government to a vast country like India functioning under a federal structure. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... file, which reads as under: "BIO DATA Harish Rai Dhanda S/o Sh. Kulbhushan Rai Resident: The Retreat, Ferozepur Road, Ludhiana Date of Birth: 15th May, 1960 Attained Bachelor in Arts from SCD Government College, Ludhiana, Punjab University, (1979). Attained Bachelor in Laws from Law College, Punjab University (1982). Registered with Bar Council of Punjab and Haryana as Advocate in 1982. Practiced Law at District Courts, Ludhiana from 1982 to 2007. Elected as President of District Bar Association, Ludhiana for seven terms." Besides the aforesaid bio-data, there is a certificate dated 06.07.2011 given by the Speaker, Punjab Vidhan Sabha, certifying that Mr. Harish Rai Dhanda, MLA, has resigned from the membership of the 13th Punjab Legislative Assembly with effect from 06.07.2011 and that his resignation has been accepted by the Speaker. The aforesaid materials indicate that Mr. Harish Dhanda had B.A. and LL.B Degrees and was practicing as an Advocate at the District Courts in Ludhiana and had been elected as the President of the District Bar Association, Ludhiana for seven terms and has been member of the Legislative Assembly. These materials do not indicate that Mr. Harish Dha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. The issues: 3. The primary substantive issue that arises for consideration is whether the High Court could have - and if it could have, whether it ought to have - interfered in the 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 notification was issued of his appointment, Mr. Dhanda did not actually assume office or occupy the post of Chairperson of the Punjab Public Service 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 Punjab & Haryana High Court. When the writ petition was taken up for consideration, a Division Bench of the High Court observed in its order of 13th July 2011 that his "oath ceremony" was fixed for the same day but learned counsel appearing for the State of Punj ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... are quite different and distinct from the parameters and indicators for appointment to a constitutional position. 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 Commission shall be appointed, in the case of the Union Commission or a Joint Commission, by the President, and in the case of a State Commission, by the Governor of the State: Provided that as nearly as may be one-half of the members of every Public Service Commission shall be persons who at the dates of their respective appointments have held office for at least ten years either under the Government of India or under the Government of a State, and in computing the said period of ten years any period before the commencement of this Constitution during which a person has held office under the Crown in India or under the Government of an Indian State shall be included. (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 perfo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rom his office by order of the President on the ground of misbehaviour after the Supreme Court, on reference being made to it by the President, has, on inquiry held in accordance with the procedure prescribed in that behalf under Article 145, reported that the Chairman or such other member, as the case may be, ought on any such ground to be removed. (2) The President, in the case of the Union Commission or a Joint Commission, and the Governor, in the case of a State Commission, may suspend from office the Chairman or any other member of the Commission in respect of whom a reference has been made to the Supreme Court under clause (1) until the President has passed orders on receipt of the report of the Supreme Court on such reference. (3) Notwithstanding anything in clause (1), the President may by order remove from office the Chairman or any other member of a Public Service Commission if the Chairman or such other member, as the case may be,- (a) is adjudged an insolvent; or (b) engages during his term of office in any paid employment outside the duties of his office; or (c) is, in the opinion of the President, unfit to continue in office by reason of infirmity of mind or body ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... subjective. 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 warranto 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: ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... son 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 relationship between the Union or the State and the 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 Commission, it can only be concluded that he or she holds a constitutional post. In this context, in Reference under Article 317(1) of the Constitution of India, In re, (1990) 4 SCC 262 it was held: "The case of a government servant is, subject to the special provisions, governed by the law of master and servant, but the position in the case of a Member of the Commission is different. The latter holds a constitutional post and is governed by the special provisions dealing with different aspects of his office as envisaged by Articles 315 to 323 of Chapter II of Part XIV of the Constitution." 20. Similarly, in Bihar Public Service Commission v. Shiv Jatan Thakur, 1994 Supp. (3) SCC 220 the Public Service Commission is referred to as a "constitutional institution" and its ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e employment embargo laid down in the Constitution and the functions of a Public Service Commission also indicate that its Chairperson has a constitutional status. 27. 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 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. 28. Among other things, the functions of the State Public 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. 29. Article 322 of the Constitution provides that the expenses of the State Public Service Commi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... adhya 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 Hari Bansh Lal. 35. The significance of these decisions is that they prohibit a PIL in a service matter, except for the purposes of a writ of quo warranto. However, as I have concluded, the appointment of the Chairperson in a Public Service Commission does not fall in the category of a service matter. Therefore, a PIL for a writ of quo warranto in respect of an appointment to a constitutional position would not be barred on the basis of the judgments rendered by this Court and mentioned above. 36. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... etition the petitioner has prayed for issuance of any other writ, direction or order which this Court may deem fit and proper 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: 40. 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, it would be worth considering who may be appointed to a constitutional post such as the Chairperson of the Public Service Commission. 41. In Ashok Kumar Yadav v. State of Haryana, (1985) 4 SCC 417 this Court looked at the appointment of the 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: "It is absolutely essential that the best and finest talent should be drawn in the administra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ested in a much stricter 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 his duties he has to be fair, detached and impartial." 44. Inderpreet Singh Kahlon v. State of Punjab, (2006) 11 SCC 356 was decided in the backdrop of a Chairperson of the Punjab Public Service Commission, "an important constitutional authority", being put behind bars, inter alia, for being caught red-handed accepting a bribe. 45. This Court asserted the necessity of transparency in the appointment to such constitutional positions. It was said: "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 such high positions. It is an urgent need of the hour that in such appointments absolute transparency is required to be maintained and demonstrated. The impact of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nda. (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. 49. 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. 50. 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 aside by the Central Administrative Tribunal as being mala 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 November 20 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... han Rai. - Resident: The Retreat, Ferozepur Road, Ludhiana. - 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 University (1982). - Registered with Bar Council of Punjab and Haryana as Advocate in 1982. - Practiced Law at District Courts, Ludhiana from 1982 to 2007. - Elected as President of District Bar Association, Ludhiana for seven terms. 55. 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. 56. 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. 57. 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 qualifica ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... State Government and the Governor cannot be hamstrung in this regard. 61. 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 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 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. 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. 63. 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 pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hen no such Leader has been so recognised, include the Leader of the single largest group in opposition of the Government in the House of the People." 65. As can be seen, only the establishment of a High Powered Committee (HPC) for making a recommendation is 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. 66. 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 HPC, it can certainly see whether relevant material and vital aspects havi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Statesman (P) Ltd. v. H.R. Deb, AIR 1968 SC 1495 and State Bank of India v. Mohd. Mynuddin, (1987) 4 SCC 486 and it was held: "It is clear from the above decisions, suitability or otherwise of a candidate for appointment to a post is the function of the appointing authority and not of the court unless the appointment is contrary to the statutory provisions/rules." 72. These decisions are clearly distinguishable. First of all, none of the cited decisions dealt with the appointment to a 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 Police are at the top of the ladder, yet they are essentially administrative functionaries. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lic Service Commission cannot be forgotten or overlooked. That independence is attached to 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. 76. Regulation 2(c) of the Punjab State Public Service 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"; 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." 78. The oaths that a member (including the Chairperson) is required to take in the form laid down in Appendix 'A' are 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: "Form of Oath of Allegiance I ________________, solemnly affirm that I will be faithful and bear true allegiance to India and to the Constitution ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en noted that: "The conduct of the Chairman and members of the 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." 81. In this background and in this perspective, this Court drew 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 Court said: "Desirability, if any, of providing specific qualification or experience for appointment as Chairman/members of the Commission is a function of Parliament." 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 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 met ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Assemblies exercise sovereign power to enact laws and no outside power or authority can issue a direction to enact a particular piece of legislation." 86. 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. 87. 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 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: 88. 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. 89. First of all, this Court cannot overlook the administrative imper ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on 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 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 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 not deserve to be in the responsible posts they occupy." 91. 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. 92. 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... question referred to.). T.A. Hameed v. M. Viswanathan, (2008) 3 SCC 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 SCC 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.). 96. 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 issue does not arise in this appeal and so nothing more need be said on the subject. 97. What was the reference made by the Division Bench to the Full Bench and did that Bench frame additional 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 purpos ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... atter) 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. 101. 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 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 subsidiary question logically and un ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s justified. It need only be pointed out that in State of Punjab 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 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: 107. 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 both for the issuance of a writ of quo warranto and for a writ of declaration, as the case may be. 108. 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 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. 109. The circumstances of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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