In Re.. Vs Mehar Singh Saini,chairman Hpsc & Ors.

IN THE SUPREME COURT OF INDIA

ADVISORY JURISDICTION

REFERENCE UNDER ARTICLE 317 (1) No.2 OF 2008

In re:

Mehar Singh Saini, Chairman, HPSC & Ors.

J U D G M E N T

Swatanter Kumar, J.

Historically, the constituent assembly debates reflect the desire of

the framers of the Constitution to ensure complete independence,

integrity and fairness in the country’s administration. Besides

discernibly stating the privileges, functions and responsibilities of the

three paramount pillars of the Indian Constitution, i.e. legislature,

executive and judiciary, the Constitution also provided three instruments

to ensure proper checks and balances in the functioning of the

Government. These organs are the Supreme Court to ensure proper

administration of justice, the Auditor General to maintain the purity of

the country’s finances, expenditure and collection of taxes and lastly,

the Federal Public Service Commission to maintain the purity and

integrity of the country’s services.

The Constitution, in Part XIV, provides for establishment of the

Union and State Public Service Commissions with the primary object of

providing equal opportunity to the people of India in matters relating to

appointment. Establishment of these Commissions is one of the

important facets of the constitutional scheme. Public Service

Commissions are expected to adopt a fair and judicious process of

selection to ensure that deserving and meritorious candidates are

inducted to the services of the State. This should not only be done but

also appear to have been done. In re, Dr. Ram Ashray Yadav,

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Chairman Bihar PSC [(2000) 4 SCC 309], this Court observed as

follows:

“1. Founding Fathers of the Indian Constitution relying upon the experience in other countries wherever democratic institutions exist, intended to secure an efficient civil service. This is the genesis for setting up autonomous and independent bodies like the Public Service Commission at the center and in the States. The values of independence, impartiality and integrity are the basic determinants of the constitutional conception of Public Service Commissions and their role and functions.”

A clear distinction has been drawn by the framers 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 inter-

dependence between the two, undoubtedly, points to the cause of

Commission being free from any influence or limitation. The

constitutional scheme contained in Articles 315 to 320 noticeably

demonstrates not only the complete independence of the Public Service

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Commissions in discharge of their functions, but also ensures complete

security and protection of tenure to its Chairman/Members. A very

cumbersome process has been provided by the Constitution for the

removal of the Chairman and Members of the Commission. This

constitutional intent of ensuring autonomy is underscored by the fact

that it is only where the Governor of the State makes a reference to the

President of India, stating grounds of misbehaviour of

Chairman/Member of the State Commission that the President may

remove such a Chairman/Member but only after the Supreme Court of

India, on a reference by the President under Article 317(1) of the

Constitution, reports that the Chairman/Member ought to be removed on

the ground of misbehaviour. Thus, the immunities enjoyed by the

Chairman and Members of the Commission under the Constitution are

far greater and cannot be impinged upon by the normal procedure of

service law for dismissal of a civil servant under the Civil Services Rules

for an alleged misconduct.

Higher the public office, greater is the responsibility. The adverse

impact of lack of probity in discharge of functions of the 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 State. Most of the democratic countries in the world

have set up Public Services Commissions to make the matter of

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appointments free from nepotism and political patronage. For instance

the Conseil d’Etat in France, which is composed of the cream of the

French Civil Service, has acquired considerable veneration for its

capacity to police intelligently the complex administration of the modern

state. Justice J.C. Shah in his report on the excesses of the Emergency,

struck by the “unhealthy factors governing the relationship between

ministers and civil servants”, recommended the adoption of droit

administratif of the French model by the Government. He observed that

the commitment of a public functionary should be to the duties of his

office, their due performance with an emphasis on their ethical content

and not to the ideologies, political or otherwise of the politicians, who

administer the affairs of the State.

Great powers are vested in the Commission and therefore, it must

ensure that there is no abuse of such powers. The principles of public

accountability and transparency in the functioning of an institution are

essential for its proper governance. The necessity of sustenance of

public confidence in the functioning of the Commission may be

compared to the functions of judiciary in administration of justice which

was spelt out by Lord Denning in Metropolitan Properties Co. vs.

Lannon (1968) 3 All ER 304) in following words:

“Justice must be rooted in confidence; and confidence is destroyed when right-minded people go away thinking: ‘The Judge was biased.’”

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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 Public Service Commission is founded

upon faith of the common man on its proper functioning. Constant

allegations of corruption and promotion of family interests at the cost of

national interest resulting in invocation of constitutional mechanism for

the removal of Chairman/Members of the Commission erode public

confidence in the Commission. Profs. Brown and Garner’s observation

in their treatise French Administrative Law, 3rd ed. (1983) in this regard

can be usefully referred to. They said “the standard of behaviour of an

administration depends in the last resort upon the quality and traditions

of the public officials who compose it rather than upon such sanctions

as may be exercised through a system of judicial control.” Regrettably,

the present case is one of many References made to this Court where

serious allegations and imputations have been made against the

Chairman and Members of the Commission in regard to performance of

their constitutional duties. The omissions and commissions amounting

to misbehaviour, allegedly committed by the Chairman/Members of the

Haryana Public Service Commission have led to the Presidential

Reference dated 31st July, 2008 in exercise of the powers vested in the

President under Article 317 of the Constitution of India to this Court.

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FACTS

The facts, as gleaned from the reference, are as under:

The Haryana Public Service Commission (for short, ‘the

Commission’) was constituted by the Governor of State of Haryana in

exercise of the powers vested under Article 316 of the Constitution by

appointing its Chairman and Members, on different dates, during the

period 7th June, 1998 to 4th May, 2002. The details of the appointees

including date of appointment and their credentials are as follows:

Sl.No .

Name of the Chairman/ Member

Qualification Whether official or

non-official

Past credentials

Date of Appointment

Date of normal

retirement/ completion of

term

Date of premature resignation

1. Dr. Krishan Chander Banger, (Chairman)

Ph.D. Non- official

Vice Chancellor, G.J. University

02-08-2000 1-08-2006 1.12.2004

2. Sh. Narender, Singh (Member)

BA (LLB) Non- Official

Journalist 17.06.1998 16.06.2004 -

3. Sh. Dayal Singh, (Member)

B.Sc. Engg. Official G.M. Industries, Haryana

03.07.1998 18.07.1998 -

4. Sh. Jagdish Rai, (Member)

MA Official Lecturer 18.07.1998 17.07.2004 -

5. Sh. Mahender Singh Shastri, (Member)

BA (LLB) Shastri O.T.

Official Teacher 28.02.2000 27.02.2006 07.12.2004

6. Sh. Mehar Singh Saini (Member)

BAMS Non- Official

Private Practitioner

07.07.2000 06.07.2006 1.12.2004

7. Sh. Gulshan Bhardwaj (Member)

LLB Non- official

Social Activist 04.04.2001 09.08.2004 -

8. Sh. S.K. Gupta, (Member)

B.A. Non- official

- 04.04.2001 03.04.2007 05.07.2004

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9. Sh. Pardeep Chaudhary, (Member)

B.A. Non- official

Social Activist 04.05.2002 03.05.2008 05.07.2004

The election to the Haryana Legislative Assembly was due in

February, 2005 and the model code of conduct was imposed by the

competent authority on 17th December, 2004. The Government started

taking steps for appointing the Chairman/Members of the Commission

just before the imposition of the model code of conduct and appointed

the Chairman and Members of the Commission, official/non-official,

between 5th July, 2004 and 15th December, 2004. Four Members were

appointed to the Commission on 5th July, 2004, while Shri Mehar Singh

Saini, erstwhile Member of the Commission, was appointed as

Chairman of the Commission on 1st December, 2004 and on the same

date wife of Dr. K.C. Bangar, erstwhile Chairman of the Commission,

was appointed as Member of the Commission. Thus, by 15th December,

2004, the Commission came to be reconstituted. Constitution of the

Commission with the dates of retirements and credentials of its

Chairman and Members respectively are as follows :

Sl.No .

Name of the Chairman/ Member

Qualification Whether official or

non-official

Past credentials Date of Appointment

Date of normal

retirement 1. Sh. Mehar Singh

Saini (Chairman) BAMS Non-

Official Private Practitioner 01.12.2004 30.11.2010

2. Sh. Dungar Ram, MA (Eng.) Official Lecturer Govt. 5.7.2004 9.6.2009

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(Member) National College, Sirsa

3. Sh.Chatter Singh, (Member)

BE (Elect.) Official District Transport Officer

5.7.2004 4.7.2010

4. Sh.Yudhvir Singh, (Member)

BA Non- official

District Marketing Enforcement Officer

5.7.2004 4.7.2010

5. Sh. Satbir Singh, Advocate (Member)

BA (Hons) LLB

Non- official

Advocate 5.7.2004 4.7.2010

6. Sh.Om Prakash (Member)

BA LLB

Official District Attorney 10.8.2004 9.8.2010

7. Dr. Ranbir Singh Hooda (Member)

B.Sc. (Agronomy, M.Sc. (Agronomy, Ph.d, LLB

Non- official

Associate Professor Haryana, Agriculture University

10.8.2004 9.8.2010

8. Mrs.Santosh Singh (Member) W/O Dr. K.C. Banger (Ex- Chairman)

M.Sc. B.Ed. Non- official

School Teacher 1.12.2004 30.11.2010

9. Sh.Ram Kumar Kashyap, (Member)

MA (Economics) LLB.

Official Field Assistant in ESA Department

15.12.2004 14.12.2010

During its tenure, the Commission had made selections and

recommended candidates for appointment to various posts in different

cadres of the State. Subsequently, it came to the notice of the

Government that various irregularities and illegalities, such as acts of

favouritism, discrimination and violation of rules/regulations had been

committed by the Commission in the process of selection made by

them. After conducting preliminary enquiries, the Government claims to

have initiated vigilance enquiries as well as First Information Reports

were registered for the alleged irregularities, illegalities and acts of

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commissions and omissions by the Chairman and Members of the

Commission. This resulted in the Chief Secretary, Government of

Haryana, writing a letter dated 18th December, 2006, to the Secretary to

the Governor of Haryana, requesting him to refer the matter to the

President of India at the earliest for removal of the Chairman and

Members of the Commission in terms of Article 317(1) of the

Constitution of India. It was averred that the Chairman and Members of

the Commission were guilty of misbehaviour, as mentioned under Article

317(1) of the Constitution. It was also averred that they do not possess

requisite qualification, experience and had been appointed to the

coveted offices only to achieve political ends. In this letter, detailed

facts were given about the qualifications, experience and credentials of

the Chairman and Members of the Commission with definite emphasis

on the fact that they had made appointments contrary to the rules and

with favouritism. Their conduct in making selection to different posts

was an exercise in subversion of the constitutional protections rather

than sub-serving, the interest of the Constitution.

After receiving this Reference, the Governor of Haryana, vide

letter dated 16th January, 2007, forwarded it to the President of India

with supporting documents and records for consideration. The

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President, after examining the records, referred the matter to this Court

under Article 317(1) of the Constitution for inquiry and report, as to

whether the existing Chairman and Members of the Commission ought

to be removed from the office on the alleged grounds of misbehaviour.

In order to fully appreciate the subject matter of the present

inquiry, it will be appropriate to reproduce the Reference dated 31st July,

2008 made by the President of India to this Court :

“WHEREAS the Governor of Haryana, vide letter dated 16th January, 2007 together with a reference from the Government of Haryana, has set out the grounds for the removal of the existing Chairman and Members of the Haryana Public Service Commission under Article 317(1) on grounds of misbehaviour (A copy of the letter dated 16.1.2007 along with the copy of reference with annexures mentioned therein is enclosed),

AND WHEREAS from the reference prepared by the Government of Haryana it appears that there were serious irregularities in the appointments made to the posts of Chairman and Members of the Haryana Public Service Commission, which were made without due regard to their qualifications, experience, status and accomplishments, required for appointment to the said constitutional posts,

AND WHEREAS from the reference prepared by the Government of Haryana it appears that S/Shri Mehar Singh Saini, Dungar Ram, O.P. Bishnoi and Chattar Singh, as members of the Selection Committee,

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recommended the name of Shri Pradeep Sangwan for the post of Drug Inspector on the basis of a bogus certificate for which an investigation was conducted by the State Vigilance Bureau, Chandigarh and subsequently an FIR was registered against these persons for various offences under the Indian Penal Code and the Prevention of Corruption Act, 1988 and for which these persons were arrested and challan has already been filed in the Trial Court,

AND WHEREAS from the reference prepared by the Government of Haryana it appears that Shri Mehar Singh Saini, Chairman and S/Shri Dungar Ram, Chattar Singh, Yudhvir Singh, Satbir Singh, Om Prakash Bishnoi, Ranbir Singh Hooda, R.K. Kashyap and Smt. Santosh Singh as Members of the Haryana Public Service Commission refused to co-operate in the investigation being carried out by the State Vigilance Bureau in spite of the directions issued by the Hon’ble Supreme Court, in complaints regarding selections made by the Commission,

AND WHEREAS I am satisfied from the above referred material before me that it is necessary that the said allegations be inquired into.

Now, therefore, in exercise of the powers conferred upon me by clause (1) of the Article 317 of the Constitution, I, Pratibha Devisingh Patil, President of India, do hereby refer to the Supreme Court of India for enquiry and report as to whether the existing Chairman and Members of the Haryana Public Service Commission, ought, on the grounds of misbehaviour, be removed from the office of the Chairman and Members of the Commission.”

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It is evident from the above-mentioned Reference that the

Chairman as well as all the eight Members are alleged to have

conducted themselves in a manner, which amounts to misbehaviour

within the meaning of Article 317(1) and, thus, are liable to be removed

from their office. We may notice from the second tabulated statement

afore-referred that out of the nine Members, six have already vacated

their office as their term of appointment to the Commission has ended

by efflux of time. Thus, out of the nine appointed Members, presently

only three Members are holding the office of the Chairman/Members in

the Commission. However, vide order dated 9th August, 2008, passed

by the Governor of State of Haryana, the Chairman and all the Members

of the Commission were placed under suspension. While Mr. Mehar

Singh Saini, Chairman, Mrs. Santosh Singh and Mr. Ram Kumar

Kashyap, Members of the Commission continued to be Chairman and

Members of the Commission under suspension respectively till date,

there other Members remained under suspension till expiry of their

respective terms.

Amongst other complaints, a complaint in the matter of the

appointment of Pradeep Sangwan as Drug Inspector was also received

and inquiry is stated to have been conducted by the State Vigilance

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Bureau vide Enquiry No.5 dated 16th May, 2005, Chandigarh and

subsequently FIR No.15 dated 8th August, 2005 under Sections 420,

468, 471, 120B IPC and Section 13(1)(c) & (d) of the Prevention of

Corruption Act, 1988 was registered at Police Station SVB, Rohtak. In

the vigilance inquiry, Dr. K.C. Bangar, the then Chairman, Shri Mehar

Singh Saini, former Member and present Chairman, Shri Dungar Ram,

Shri Chattar Singh and Shri Om Prakash Bishnoi, Members of the

Commission, were found to be involved in criminal conspiracy for

selection of Pradeep Sangwan. With respect to other complaints, which

have been received in relation to various selections, made by the

Commission in respect of various civil posts in the State Government,

the State Vigilance Bureau initiated different enquiries being Enquiry

No.1 dated 16th May, 2005, Enquiry No.3 dated 21st April, 2005 and

Enquiry No.4 dated 25th April, 2005. Enquiry Nos.1 and 3, related to

allegations of corruption and irregularities in recommending candidates

for appointment to different posts for the period 2000 to 2004, led to

registration of FIR No.20 dated 18th October, 2005 under Sections 420,

468, 471, 120B IPC, read with Section 13(1)(c) and (d) of the

Prevention of Corruption Act, 1988. For the investigations and enquiries

above-referred, records were required by the investigating agencies and

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they wrote various letters to the authorities of the Commission to hand

over the same for expeditious completion of inquiry. However, it is the

case of the Government and the investigating agencies that the

Commission did not cooperate at all and the records, despite repeated

demands, had not been handed over to them. As a result of non-

cooperation by the Chairman and Members of the Commission,

proceedings in the Court were initiated in which, ultimately, the High

Court of Punjab and Haryana in Haryana Public Service Commission v.

State of Haryana (Writ Petition no.12593 of 2005) [(2005)141 PLR 486],

passed an order dated 12th August, 2005 making certain observations

against the conduct of the Commission, its Chairman and Members.

We will be referring to this order in some detail shortly. Against this

order of the High Court, Special Leave Petition was preferred before this

Court, which came to be dismissed as withdrawn vide order dated 19th

September, 2005. Separate proceedings were also initiated by the

Member(s) of the Commission in their own right, who had prayed for

permission to file Special Leave Petition, against the order of the High

Court but the same was also declined by this Court vide order dated 28th

October, 2005.

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We have already mentioned that it is the case of the State

Government that after noticing the irregularities and favouritism on a

mass scale and on suspicion of serious charges of corruption against

the Chairman and Members of the Commission, the Governor of

Haryana had passed an order dated 9th August, 2008 suspending the

Chairman and the Members of the Commission. The validity and

legality of this order of suspension was questioned by the affected

Chairman and Members of the Commission by filing a petition under

Article 32 of the Constitution before this Court, which came to be

dismissed by a detailed order dated 7th August, 2009 reported as Ram

Kumar Kashyap v. Union of India [(2009) 9 SCC 378]. The relevant

extract of the order reads as under:

“16. It is very clear that since the Public Service Commissions are a constitutional creation, the principles of service law that are ordinarily applicable in instances of dismissals of government employees cannot be extended to the proceedings for the removal and suspension of the members of the said Commissions. Hence, we are of the opinion that the en bloc suspension of the 8 Members and Chairman of the Haryana Public Service Commission by the Hon'ble Governor of Haryana by an order dated 09.08.2008 under Article 317(2) of the Constitution and the impugned notification dated 09.08.2008 are valid and not liable to be quashed. The writ petitions are dismissed.”

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In view of the order of this Court, the order of suspension passed

against the Chairman/Members of the Commission, the respondents

herein, attained finality.

As a result of various enquiries being conducted by the Vigilance

Bureau of State of Haryana and other investigating agencies in

furtherance to FIR Nos.15 and 20 of 2005 dated 8th August, 2005 and

20th October, 2005 respectively, various documents/correspondence

and other evidence came to light which, according to the State, pointed

towards the involvement of the Chairman and Members of the

Commission in mal practices, favoritism and even to some extent

corruption in the functioning of the Commission in making selections

and recommending names to the State Government for appointment to

various posts. These documents, along with certain additional charges,

were placed on record before this Court. Only three articles of charge

were stated in the Presidential Reference. However, during the

pendency of the matter before the Court and because of subsequent

events the State Government filed additional articles of charge. Six

charges were sought to be added to the charge-sheet, in all bringing the

total to nine. From the record, it appears that the matter was heard at

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some length and on 22nd April, 2009, a Bench of this Court passed the

following order:

“Heard Mr. Shanti Bhushan, learned senior counsel appearing for the Chairman of the Haryana Public Service Commission, and also Mr. Harish N. Salve, learned senior counsel appearing for the State of Haryana.

Mr. Shanti Bhushan, learned senior counsel has objected to the draft charges Nos.1, 4, 7 and 8. The objections were regarding the very appointment of the Chairman as one of the grounds of misbehaviour under Article 317(1) of the Constitution of India. It was argued on behalf of the State that the very appointment itself requires consideration, therefore, these draft charges require to be looked into. As regards other charges, it was alleged by Mr. Shanti Bhushan that many of the facts are not stated either in the Presidential reference or in the Governor’s letter of reference in detail. However, State counsel replied that they have materials to substantiate all the charges. It is made clear that the Chairman of the Public Service Commission would be at liberty to raise legal objections at the time of adducing evidence on these draft charges. Draft charges are approved.

The State is directed to file list of witnesses and documents by 15th July, 2009. Post on 21st July for further orders.”

In light of the above order, the parties were given opportunity to

lead the evidence on all the nine articles of charge. The documentary

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and oral evidence was led by the State and, as many as, 31 witnesses

were examined. The Chairman and Members of the Commission did

not examine any witness. It will be useful to refer to the articles of

charge which were approved by this Court vide its order dated 22nd

April, 2009.

“1. That Shri Mehar Singh Saini is a beneficiary of favouritism and nepotism in the matter of his appointment as Chairman of the Haryana Public Service Commission. His qualifications, experience, status and accomplishments namely that of a private practitioner in Ayurveda (BAMS), were not of the stature required for appointment to the Constitutional position of Chairman of the Haryana Public Service Commission. His appointment, after obtaining resignation of then Chairman, was with a view to ensuring that he would further the objectives of the political party then in power. By, thus, conniving in the subversion of the constitution, he is guilty of misbehaviour under Article 317(1) of the Constitution.

2. That Sh. M.S. Saini, as a member of the selection committee, recommended the name of Shri Pradeep Sangwan for selection to the post of drug Inspector on the basis of the bogus certificate in which the charges of criminal conspiracy and indulgence in acts of corruption have been brought out against him. He has since been arrested and released on bail and the

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final investigation report has been placed before the criminal court for trial. His involvement in a case of criminal conspiracy, which is pending trial, constitutes misbehaviour under Article 317(1) of the Constitution.

3. That Shri Mehar Singh Saini refused to cooperate in the investigation being carried out by the State Vigilance Bureau, ins pite of the directions issued by the Hon’ble Supreme Court, in complaints regarding selections made by the Commission and his deliberate non-supply of documents needed in the inquiry and refusal to co- operate in the investigations. This constitutes misbehaviour within the meaning of Article 317(1).

4. That the bare reading of the contents of the additional documents placed on record, including inspection reports dated 24.1.2008/1.2.2008 and the interim order dated 14.1.2008, passed by the Hon’ble Punjab and Haryana High Court in CWP No.15,390 of 2002, clearly established that the acts of manipulations and interpolations in answer-sheets of favourite candidates was deliberate abuse of the process of selection by Sh. Mehar Singh Saini as Member of Haryana Public Service Commission, in the selection of 2002 for Haryana Civil Services (Executive and Allied) Examination in the year 2002 and the same constitute an act of grave misbehaviour, warranting the invocation of Article 317(1) of the Constitution of India, for his removal.

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5. That the acts of omission and commission of Sh. Mehar Singh Saini as Member of Haryana Public Service Commission and his subsequent act and conduct as Chairman of Haryana Public Service Commission in making deliberate efforts to with-hold the material record, which was required by the investigating agency to investigate the complaints received by the Government regarding serious illegalities and irregularities committed by the Chairman and Member of the Commission while making selections including the selection of 2002 for Haryana Civil Services (Executive and Allied), again clearly establish his grave misbehaviour as envisaged under Article 317(1) of the Constitution of India, warranting his removal.

6. That the malicious acts of influencing his subordinates to carry out intended manipulations to favour desired persons in selections and endorsement of such illegal selections as member of the Commission by Sh. Mehar Singh Saini constitute an act of grave misbehaviour warranting invocation of Article 317(1) of the Constitution of India for his removal.

7. That Sh. Mehar Singh Saini abused his public office and showed his dubious act and conduct by defending the above mentioned patently illegal acts which constitute an act of grave misbehaviour warranting invocation of Article 317(1) of the Constitution of India for his removal.

8. That Sh. Mehar Singh Saini, Chairman of Haryana Public Service Commission and

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S./Sh. Dungar Ram, Chattar Singh, Yudhvir Singh, Satbir Singh, Om Prakash Bishnoi, Ranbir Singh Hooda, Smt. Santosh Singh and R.K. Kashyap wrongly and unlawfully decided to file a written reply on behalf of the Haryana Public Service Commission to the inspection reports dated 24.1.2008/1.2.2008 vide reply dated 25/2/2008 in CWP No.15390 of 2002, attempting to justify the illegalities regarding the manipulations, interpolations and forgeries committed during the selection process of Haryana Civil Services (Executive & Allied), which was finalized by the Commission in 2002.

9. That Sh. Mehar Singh Saini, Chairman of Haryana Public Service Commission and the members S/Sh. Dungar Ram, Chattar Singh, Yudhvir Singh, Satbir Singh, Om Prakash Bishnoi, Ranbir Singh Hooda, Smt. Santosh Singh and R.K. Kashyap had taken a decision not to hand over the record to the investigating agency on the pretext that the State Public Service Commission, being a constitutional authority, enjoys a distinct status, despite the fact that the Hon’ble Punjab and Haryana High Court and Hon’ble Apex Court were pleased to direct the Commission to co-operate with the investigating agency. This deliberate act on their part clearly amounts to misbehaviour as envisaged under Article 317(1) of the Constitution of India for their removal.”

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Thus, this Court has been called upon to examine whether the

conduct of the Chairman/Members of the Commission amounts to

misbehaviour in light of these approved articles of charge and the

evidence produced on record, which would justify their removal in terms

of Article 317(1) of the Constitution.

The challenge by Mr. Shanti Bhushan, learned senior counsel

appearing on behalf of one of the respondents in the present Reference,

to the additional charges, which have been approved by the Court, is,

primarily, on the ground that the jurisdiction of this Court in terms of

Article 317(1) is a limited jurisdiction and the Court has to conduct its

inquiry and record its finding in the report only in relation to the articles

of charge referred to by the President in exercise of its powers under

Article 317(1). Thus, this Court has no jurisdiction to go into the merit or

otherwise of the said additional articles of charge. It is his submission

that it is not an omnibus Reference. It is also contended that Charges

4, 6, 7 and 8 are new articles of charge and have no link to the referred

charges and as such they are beyond the scope of Reference. Further,

it is argued that there is no evidence on record to substantiate any of

the approved articles of charge, even if it is assumed for the sake of

argument that the Court can examine all the approved articles of

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charge. Thus, it is stated that the Presidential Reference to this Court is

ex facie a case of no evidence but political vendetta alone. It was also

contended that the entire evidence produced in respect of the

allegations has not been tendered in accordance with law. A police

officer cannot prove the allegations merely by filing an affidavit. Thus, it

is no evidence in the eye of law. In regard to charge 1, relating to

qualification and status of the Chairman and Members of the

Commission, it is argued that this approved article of charge itself

suffers from infirmity of non-application of mind as no qualification or

status has been prescribed under Article 316 of the Constitution for

such appointment.

While refuting these arguments, Mr. Mishra, learned counsel

appearing for the State of Haryana, argued that all the articles of charge

can be gone into by this Court inasmuch as the charges are interlinked

as well as they were duly approved by the order of this Court dated 22nd

April, 2009. According to him, though no specific qualifications have

been provided under Article 316 of the Constitution, but keeping in view

the constitutional functions of public importance performed by the

Commission, it is expected that persons of adequate educational

qualification, experience and proper status should be appointed to the

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Commission. The respondents are alleged to have managed their

appointments to the Commission as its Chairman and Members. In

support of these submissions, reference has been made to the

qualification of the Chairman, who was a private practitioner with degree

of BAMS, while some of the Members were graduates only. The wife of

the former Chairman of the Commission, on his exit, was immediately

appointed as a Member of the Commission; and Mehar Singh Saini was

appointed as Chairman on 1st December, 2004, the very date on which

his term as member was to expire. These appointments, thus, have

been made only for gaining political mileage and to make selections on

the basis of favouritism and other extraneous considerations. According

to the learned counsel there is sufficient evidence, documentary and

oral, on record to substantiate and prove the approved articles of charge

in accordance with law. With reference to the charge of non-

cooperation, it is contended that despite the order of the Punjab and

Haryana High Court, the course of action adopted by the Chairman and

Members of the Commission is not only misbehaviour but is

contemptuous to the extent that it violates prudent norms of governance

in accordance with law. The acts of favouritism, manipulation of records

and the conduct of the Chairman and Members of the Commission are

25

unacceptable from constitutional functionaries and, therefore, they are

liable to be removed from their office. We may notice that the learned

counsel appearing for some of the other respondents principally

adopted the arguments advanced by Mr. Shanti Bhushan, but added

greater emphasis on the contention that exercise of right of privilege in

relation to records of the Commission, being affairs of the State, was a

justifiable claim. Further, the charge that the Chairman/Members of the

Commission do not possess requisite qualification and experience is no

charge in the eye of law that can be attributed to the private

respondents, as the Constitution itself does not provide for any such

qualification and experience. As such, both these charges cannot, in

law, amount to misbehaviour as contemplated under Article 317(1) of

the Constitution.

Before we proceed to examine the merit or otherwise of the

contentions raised before us as well as the evidence on each approved

article of charge, reference to Article 317 of the Constitution would be

proper. Article 317 reads as under:

“Article 317 - Removal and suspension of member of a Public Service Commission-(1) Subject to the provisions of clause (3), the Chairman or any other member of a Public

26

Service Commission shall only be removed from his office by order of the President on the ground of misbehaviour after the Supreme Court, on reference being made to it by the President, has, on inquiry held in accordance with the procedure prescribed in that behalf under article 145, reported that the Chairman or such other member, as the case may be, ought on any such ground to be removed.

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

(3) Notwithstanding anything in clause (1), the President may by order remove from office the Chairman or any other member of a Public Service Commission if the Chairman or such other member, as the case may be,--

(a) is adjudged an insolvent; or

(b) engages during his term of office in any paid employment outside the duties of his office; or

(c) is, in the opinion of the President, unfit to continue in office by reason of infirmity of mind or body.

(4) If the Chairman or any other member of a Public Service Commission is or becomes in any way concerned or interested in any contract or agreement made by or on behalf of the Government of India or the Government of a

27

State or participates in any way in the profit thereof or in any benefit or emolument arising therefrom otherwise than as a member and in common with the other members of an incorporated company, he shall, for the purposes of clause (1), be deemed to be guilty of misbehaviour.”

A bare reading of Article 317 shows that the constitutional

protection for the term of office of Chairman and Members of the

Commission is provided to ensure independent functioning of the

Commission. The working of the Commission and its Members has to

be of impeccable integrity and rectitude. The object should be to

provide the best persons from the available candidates for appointment

in the State/Central cadres. This has to be done by adopting a

judicious, fair and transparent method of selection, free of influence

from any quarter in the Government or otherwise. That is why the

framers of the Constitution clearly distinguished appointments to the

Commission from appointments to the State Services or All India

Services. The Members of the Commission cannot be subjected to

regular departmental enquiries and can only be removed from their

office by strictly complying with the provisions of Article 317 of the

Constitution. This provision contemplates removal of the Member on

two different grounds. First, where a Chairman or Member could be

28

removed on the ground of misbehaviour by the President only after

making a Reference to this Court and where this Court has given a

report, after holding inquiry in accordance with the prescribed

procedure, that the Chairman or the member ought to be removed on

the grounds stated in that report. Second, by reason of automatic

disqualification as provided under Article 317(3) and (4) of the

Constitution. The President of India can act without any report from this

Court in terms of Article 317 (3) and (4). Under Article 317(4), if the

Chairman or Member of the Public Service Commission becomes

interested or concerned in any agreement or in any profit thereof or

commits any of the stated defaultss, then such Chairman/Member shall

be deemed to be guilty of misbehaviour for the purpose of clause (1) of

Article 317. Article 317 thus provides for a complete and composite

procedure, which is to be adopted by the President of India, before a

Chairman/Member of the Commission can be removed from his office.

Making Reference to this Court under Article 317(1) of the Constitution

invokes the Reference/Advisory jurisdiction of this Court. In the

scheme of the Constitution relating to this aspect, it is clear that before

the Reference can be made to this Court, certain procedure is required

to be satisfied. The Governor, acting on the advice of the State

29

Government, would request the President for taking steps for removal of

a Member in accordance with the provisions of Article 317(1) of the

Constitution. There is requirement of proper application of mind by the

President while making a Reference to this Court and it is but natural

that Reference to this Court would be made only where the President is

satisfied that a prima facie case of misbehaviour is made out.

In light of the above provisions, it is obvious that normally this

Court would follow the prescribed procedure and record its findings only

on the articles of charge referred to by the President. However, in some

cases, the Court may take cognizance and examine the articles of

charge which are incidental/explanatory to the articles of charge

mentioned in the Reference. In law, it may not be possible to examine

charges which are entirely independent and unconnected with all or any

of the articles of charge stated in the Presidential Reference. There

has to be some link or inter-connection between the articles of charge

subsequently suggested before this Court and the original articles of

charge referred by the President. The question of any prejudice to the

delinquent will not arise inasmuch as the concerned party is given full

opportunity to challenge the articles of charge as well as the evidence

30

led in support of charges by the Government, during the process of

inquiry before this Court.

Article 317(1) requires that the inquiry held by this Court is to be in

accordance with the procedure prescribed in that behalf under Article

145 of the Constitution. Article 145 empowers the Supreme Court to

make rules, with the approval of the President, for regulating generally

the practice and procedure of this Court. In turn, Article 145(1)(j)

specifically empowers the Supreme Court to frame Rules, with the

approval of the President of India, to regulate the procedure for

enquiries referred to under clause (1) of Article 317 of the Constitution.

Of course, such rules have to be subject to any law that may be enacted

by the Parliament. The Supreme Court has framed the following rules

under Part VI, Order XXXVIII of Supreme Court Rules, 1966 for

conducting inquiry under Article 317(1) of the Constitution:-

“1. On receipt by the Registrar of the order of the President referring to the Court a case for inquiry under article 317(1) of the Constitution, the Registrar shall give notice to the Chairman or Member of the Public Service Commission concerned and to the Attorney-General for India or the Advocate-General of the particular State to appear before the Court on a day specified in the notice to take the directions of the Court in the matter of the inquiry. A copy of the charges

31

preferred against him shall be furnished to the respondent along with the notice. 2. The Court may summon such witnesses as it consider necessary. 3. After the hearing of the reference under article 317(1) of the Constitution, the Registrar shall transmit to the President the Report of the Court. 4. No Court-fees or process fees shall be payable in connection with any reference dealt with by the Court under this Order.”

A plain reading of these Rules clearly shows that no detailed

procedure has been provided so far, as to how and in what manner the

inquiry shall be conducted and what shall be the scope of the inquiry

and the manner in which the evidence shall be recorded. In other

words, it has been left to the discretion of this Court to follow a

procedure which is in consonance with the language of Article 317(1),

read with the above Rules and principles of natural justice. Inherent

power of this Court is wide enough to enunciate such a procedure, with

reference to the facts and circumstances of a given case, as Rule 6 of

Order XLVII of the Supreme Court Rules specifically provides that

nothing in these Rules shall be deemed to limit or otherwise affect the

inherent powers of the Court to make such orders, as may be necessary

for the ends of justice, or to prevent abuse of the process of the Court.

In the Matter of Reference under Article 317(1) of the Constitution of

India [(1983) 4 SCC 258] (hereinafter referred to as ‘Reference 1 of

32

1983’) this Court, while dealing with this aspect, clearly stated that the

Court can appoint any officer of the Court, or direct an

Additional/Sessions Judge or any other Judge, to record evidence.

Evidence, as far as practicable, has to be recorded in accordance with

the provisions of the Indian Evidence Act, 1872 and by way of filing

affidavit, wherever directed, in view of the provisions of Order XIX of the

Code of Civil Procedure, 1908. After recording of evidence, the matter

is to be placed before the Court for regular hearing upon which, the

Court is expected to make a report of its findings on the misbehaviour of

the Chairman/Members of the Commission.

Article 316 of the Constitution of India regulates appointment of

Chairman and Members of a Public Service Commission. Proviso to

Article 316(1) provides 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 the Government of a

State. In other words, one-half of the members of the Commission who

are to be appointed by the Governor, should have held ‘public office’ for

a period of ten years prior to their appointments and are normally

termed as ‘official members’. However, it is not necessary for the

33

remaining one-half of the members of the Commission to possess such

qualifications or experience for appointment and they are termed as

‘non-official members’.

The power to remove a Chairman/Member of the Public Service

Commission has been vested exclusively in the President. This power,

under the scheme of the constitutional provisions, is to be exercised by

the President only upon report of the Supreme Court that the conduct of

the member is tantamount to misbehavior of the kind that justifies his

removal from the office, except in cases specifically covered under

Clauses (3) and (4) of Article 317. Upon a Reference from the

President, the jurisdiction of the Court is, primarily, advisory inasmuch

as the Court, in its report to the President, has to record a finding that

the delinquent Chairman/Member is guilty of the misbehaviour

complained of, which would justify his removal from the office. The

articles of charge, which are referred to the Court by the President, are

the very foundation of the reference proceedings. Reference

jurisdiction, by its very nature, is jurisdiction of limited scope in

contradistinction to original or appellate jurisdiction of the Supreme

Court. For that reason, it may be difficult for the Court to hold that in

exercise of its limited jurisdiction, the Court can frame such entirely new

34

articles of charge which have no link, connection or are not even

explanatory to the original charges stated in the Presidential Reference

and try them as part of the inquiry being conducted by the Court under

Article 317(1) of the Constitution. This will not be true where the charges

are found to be linked, inter-dependent, explanatory or incidental to the

main articles of charge referred by the President to this Court. This

would depend upon the facts and circumstances of a given case, but it

can be stated with some certainty that this Court can examine articles of

charge, facts or evidence which were not before the President while

making a reference to this Court. Such need may arise because of

subsequent events, as a result of investigation or otherwise, and which

have a direct connection to the matters in issue. Thus, the contention of

the respondents that this Court can neither frame nor examine

additional charges beyond, or in addition to, the articles of charge

referred to in the Presidential Reference cannot be accepted as a

proposition of law. The scope of inquiry by this Court is of a wide nature

and has to be regulated by the procedure which may be prescribed by

the Court in terms of the above stated provisions of law.

In Reference 1 of 1983 referred by us supra, this Court also

examined whether additional facts or grounds can be examined while

35

holding an inquiry into the matters referred in the Presidential Reference

and held as under:

“7. … The inquiry which this Court is required to hold is not into the limited question whether, on the basis of facts found by the President, the charge of misbehaviour is made out and whether the misbehaviour is of such a nature as to warrant the removal of the person from his office. The inquiry contemplated by the article is into the facts themselves and facts also so as to enable this Court to pronounce upon the question whether the allegations made against the Chairman or member are proved at all. The purpose of Article 317(1) is to ensure the independence of members of the Public Service Commissions and to give them protection in the matter of their tenure. The Judges of the Supreme Court can be removed from their office only in accordance with the procedure prescribed by Article 124(4) which is made applicable to the Judges of High Courts, the Comptroller and Auditor-General of India and the Chief Election Commissioner by Articles 218, 148 and A 324(5) respectively. Members of Public Service Commissions are, in one sense, given a higher degree of protection by the elimination, as far as possible, of political pressures in the matter of their removal. Any allegation of misbehaviour made against them has to be examined by the Supreme Court on merits unlike the allegations made against those others whose removal on the ground of proved misbehaviour or incapacity depends upon the will of the Parliament. It is impossible to accept that the Supreme Court in one case and the Parliament in the case of those others are entrusted by the Constitution with the limited power of determining whether the facts found by

36

some other body establish misbehaviour in one case and misbehaviour or incapacity in those others. Their function is to find upon facts and their duty is to pronounce whether the facts found by them establish the charge of misbehaviour or incapacity, as the case may be.”

(emphasis supplied)

We may usefully refer to a recent judgment of this Court In Re:

Smt. Sayalee Sanjeev Joshi [(2007) 11 SCC 547]. In this case the

President had made a Reference under Article 317(1) of the

Constitution relating to various aspects of misbehaviour alleged to have

been committed by Smt. Joshi, Member of the Maharashtra Public

Service Commission. The preliminary steps were completed under the

directions of this Court and after issue of notice, the Court requested the

Attorney General for India to scrutinize the materials. Originally 22

charges were proposed, then they were reduced to 6 charges and finally

Charges 3 & 6 were dropped as they were not strictly within the purview

of the Presidential Reference and related to conduct entirely

subsequent to and independent of the misbehaviour complained of.

Thus, the charges were framed/approved by the Court vide order dated

5th October, 2005 in Reference No. 1 of 2004. The evidence was led by

the parties and Smt. Joshi’s conduct was found to be misbehaviour of

the kind which would justify her removal from the office. While dealing

37

with the Reference on these facts and discussing the scope of the

inquiry to be conducted by the Court in terms of Article 317 (1) of the

Constitution, the dictum of this Court as stated in para 5 of the judgment

in Reference No. 1 of 1983 (supra) was reiterated with approval as

follows:

“5. The contours of enquiry when a reference is made by the President of India under Article 317(1) of the Constitution of India has been clearly drawn by this Court in Special Reference No. 1 of 1983 [1983] 3SCR639 . This Court therein has held that the President's prima facie satisfaction based on available materials was enough for making a reference to this Court under Article 317(1) of the Constitution of India and that there was no need for the President to obtain the opinion of any fact finding body before making a reference. The enquiry which this Court is required to hold is not into the limited question whether, on the basis of facts found by the President, the charge of misbehavior is made out and whether the misbehavior is of such a nature as to warrant the removal of the person from his office. The inquiry contemplated by the Article is into the facts themselves so as to enable the Court to pronounce upon the question whether the allegations made against the member are proved. This Court also indicated the procedure that could be conveniently followed when this Court is called upon to answer a reference under Article 317(1) of the Constitution of India.”

38

To apply the rule of strict construction to the language of Article

317(1) of the Constitution to the extent that the Court cannot examine

any facts, records or extended charges, would defeat the object of this

provision and the constitutional intent. While it may be possible to

argue that Presidential Reference in such cases is not an omnibus

Reference which will include each and every misbehaviour of all time, it

will not be possible to accept the argument that the allegations stated in

the Presidential Reference stricto sensu can be examined by this Court

and nothing else. Keeping in view the stature of the Commission, it is

important to understand the message behind the provision and the

intendment of enacting Articles 316 to 318 of the Constitution. The

Constitution has assigned a definite stature to the Commission and has

provided special methodology and procedure for removal of its

Chairman/Member(s) from their respective offices. The message

behind this constitutional scheme may stand frustrated if the argument

advanced on behalf of the respondents is accepted. This Court, in the

case of Supreme Court Advocate-on-Record Association v. Union of

India [(1993) 4 SCC 441], held that the Supreme Court being the

highest Court of the land, its vitality is a national imperative. The

primary institutional task of this Court is to clearly understand the true

39

message that the Constitution intends to convey; second, to assert the

original meaning in that message in the light of the constitutional

provisions; and third, to pronounce what the law is, in harmony with

meaningful purpose, original intent and true spirit of the Constitution. As

a result of the above discussion, we are of the considered opinion that

the inquiry proceedings before the Supreme Court cannot be

circumscribed by the Presidential Reference under Article 317(1) of the

Constitution stricto sensu that too to the extent that the Court cannot

examine any additional facts/subsequent events having a direct bearing,

additional or supplementary articles of charge which are explanatory or

intrinsically related with the charges specified in the Presidential

Reference.

Another facet of the same issue is the nomenclature of the

proceedings before this Court while conducting an inquiry in terms of

Article 317(1) of the Constitution. The proceedings prima impressionis

may appear akin to the service jurisprudence as commonly understood.

The basic requirements for the applicability of service jurisprudence are

relationship of employer and employee, alleged misconduct being in

breach of the rules/regulations controlling the conditions of service of

such an employee and such charges then are to be proved in

40

accordance with the specified procedure for imposition of minor and

major penalties. The departmental proceedings have to be conducted

in accordance with the specified rules and regulations. The concept of

departmental enquiry under the service jurisprudence cannot be

equated with the proceedings in an inquiry under Article 317(1) of the

Constitution. This distinction is a marked one. Keeping in mind the

constitutional protections available to the Chairman and Members of the

Commission, the stature they enjoy and the duties that they are

expected to perform, the principles of service jurisprudence cannot be

strictly applied to these proceedings. As already noticed, the power to

remove the Chairman/Member of the Commission is exclusively vested

in the President and not even in their appointing authority. The

appointments to the State Commissions are made by the Governor but

still in the wisdom of the framers of the Constitution, the power to

remove them from office has not been vested in the Governor. This

reflects the kind of autonomy that the framers of the Constitution

bestowed on the Chairman/Member(s) of the Commission to ensure

proper and fair performance of the functions of the Commission. The

Chairman and Members of the Commission are not Government

servants, as commonly understood, though they may be holding a

41

public office. The standard of burden of proof as postulated under

service jurisprudence may, to some extent, be applicable to these

proceedings. In the case of Ram Kumar Kashyap (supra), this Court

while upholding the order of suspension of the very respondents in the

present case, passed by the Governor in exercise of the powers vested

under Article 317(2) of the Constitution, held as under:

“9. It will be useful to refer to a judgment of this Court in Reference under Article 317(1) of the Constitution of India, In re wherein it was held that the position of a Chairman or a member of a Public Service Commission cannot be equated with that of a public servant and hence the case law pertaining to the suspension and removal of public employees has no relevance in the context of the proceedings under Article 317. The relevant observations were made at para 9:

“9. The case of a government servant is, subject to the special provisions, governed by the law of master and servant, but the position in the case of a member of the Commission is different. The latter holds a constitutional post and is 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. In our view the decisions dealing with service cases relied upon on behalf of the respondent have no application to the present matter and the reference will have to be answered on the merits of the case with reference to the complaint and the respondent’s defence.”

Therefore, principles of service jurisprudence may not be strictly

applicable to the inquiry proceedings under Article 317(1) of the

42

Constitution. Inter alia, it is for the reason that being constitutional

body, the Chairman and Members of the Commission are to maintain

much higher standards of performance and behaviour than the civil

servants appointed to the state services.

The next limb of the same argument is with regard to applicability

of principles of criminal jurisprudence to the present proceedings in

regard to opportunity of being heard, burden of proof and content of

charges. The principles of criminal jurisprudence contemplate different

standards of proof, language of charge and protections available to a

suspect/accused. It is neither practicable nor possible to apply the

norms of criminal law to the proceedings under Article 317(1) of the

Constitution of India. In criminal law, the charge should be proved

beyond reasonable doubt and an accused cannot be convicted on the

basis of probability. Under the service jurisprudence, a person may be

found guilty even on the charge being proved on the basis of

preponderance of probabilities while in the proceedings of the present

kind, conduct of a person may amount to misbehaviour requiring his

removal under Article 317(1) of the Constitution on the basis of rule of

reasonable preponderance of probabilities. This distinction is fully

justified with reference to the constitutional scheme behind these

43

provisions and the standards of performance and behaviour that the

holders of such office are required to maintain. In other words, the

proceedings before this Court are neither akin to proceedings under

service law nor criminal law. In fact, they are sui generis. That may be

one of the reasons that the framers of the Constitution opted not to give

power of removal of Chairman/Member of the Commission to any other

person except the President of India, and that too, on the basis of a

report of this Court. Further, the procedure for removal has neither

been stated in the Constitution in detail nor has this Court framed any

elaborate rules in exercise of its power under Article 145 of the

Constitution. The nature of the proceeding is such that it may become

necessary for the Court to adopt a procedure befitting the facts and

circumstances of a given case. Thus, we also have no hesitation in

rejecting the contention of the respondents that the burden of proof

applied to such cases has to be ‘beyond reasonable doubt’. In fact, we

need not deliberate any further on this point in view of the fact that this

Court in the case of Smt. Joshi (supra) also took the same view, the

reasoning whereof we adopt with respect and refer to paragraph 15 of

the judgment which reads as under :

44

“15. Learned counsel for Respondent 3 argued as if this reference was a criminal trial and the charge against the respondent has to be proved beyond reasonable doubt. Learned counsel for the Public Service Commission submitted that these proceedings were neither in the nature of a criminal trial nor in the nature of the service dispute, but that it was a question of an inquiry into the conduct of a member of the Public Service Commission who was expected to maintain the highest standards of integrity. This Court in Reference under Article 317(1) of the Constitution of India, In re while answering Special Reference No. 1 of 1983 had noticed:

“9. The case of a government servant is, subject to the special provisions, governed by the law of master and servant, but the position in the case of a member of the Commission is different. The latter holds a constitutional post and is 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. In our view the decisions dealing with service cases relied upon on behalf of the respondent have no application to the present matter and the reference will have to be answered on the merits of the case with reference to the complaint and the respondent’s defence.”

Further in para 143, this Court held as under :

“143…As we have indicated in the beginning, what we are concerned with is the appreciation of the evidence of PW 15 examined before us in the light of his cross-examination, the other evidence and in the light of his prior statement contained in Ext. 53. So viewed, it is really a question of believing or disbelieving the evidence of PW 15 given before us. We are not dealing with a prosecution and in that context the alleged confession of a co-accused. We are on a fact- finding enquiry based on the evidence before us and the probabilities of the case.”

45

The above reasoning persuades us to follow the law enunciated in

the afore-referred cases and take the view that the content and nature

of the proceedings before this Court under Article 317(1) is sui generis

and the Court can evolve its own procedure in consonance with the

principles of natural justice to suit the facts of a given case and to

ensure that ends of justice are achieved and there is no abuse of the

process of Court.

Discussion on the scope of approved articles of charge

There is no doubt that in the Presidential Reference dated 31st

July, 2008, there were only three articles of charge attributing

misbehaviour to the Chairman and Members of the Commission. We

have reproduced them above. However, because of subsequent

investigation, certain additional facts, documentary evidence came to

the notice of the concerned authorities. On the strength of the

subsequent events and additional information thus acquired, it is stated

on behalf of the Government that attitude of complete non-cooperation

was adopted by the Chairman and Members of the Commission as a

result of which complete records could not be placed before the

46

Governor/President. It is also submitted that the newly nominated

Members of the Commission decided to hand over the records to the

inquiry/investigating agencies. As a result thereof it became possible

for the authorities and the State Government to place the same before

this Court in these proceedings. We do not wish to examine this issue

in any further elucidation at this stage as non-cooperation itself is a

separate charge against the respondents and it will be more appropriate

to discuss the entire issue at that stage.

Nine articles of charge were proposed to be framed and they were

termed as draft charges, which we have already referred to in the earlier

part of the judgment. They came to be placed for the consideration of

this Court. Arguments were heard and vide order dated 22nd April,

2009, the draft charges framed were approved by this Court. Once the

charges have been approved by the Court, the parties have gone to trial

on all the approved articles of charge and have led evidence in support

thereof. There can hardly be any bar for this Court to consider all the

approved articles of charge. Besides this, the respondents were given

liberty to raise legal objections at the time of adducing evidence on

these draft charges. This liberty was granted on the contention raised

that the referred articles of charge are not complete and several facts

47

have not been stated either in the Presidential Reference or in the

Governor’s letter of Reference. In face of this order, we are afraid that

we cannot accept the contention now that charges 4 to 9 need be

excluded from the zone of consideration by this Court.

The approved articles of charge 1, 3, 5, 8 and 9 have been framed

against all the nine private respondents. Charges 4, 6 and 7 have

been framed only against respondent No.1. Lastly, Charge 2 has been

framed against respondents No.1 to 4. While Charge 1 relates to lack

of qualification and experience. Charges 3, 5 and 9 relate to non-

cooperation by passing resolutions not to handover the records to the

inquiring/investigating agencies. Charges 6 and 7 relate to influencing

subordinates and abuse of public office by the respondent specifically

named under these charges. Charge 2 attributes misbehaviour to

respondent Nos. 1 to 4 in relation to irregular appointment of Pradeep

Sangwan.

Charge 3, as approved by this Court, relates to refusal on the part

of all the respondents to cooperate and to supply documents, as

required by the investigating agencies. Charge 5 of the approved

articles of charge also refers to withholding of the material records

48

which were required by the investigating agencies as well as by the

Government in face of the fact that the Government had received

complaints of serious irregularities and illegalities committed by the

Chairman and members of the Commission in various selections

including selection to the Haryana Civil Services (Executive Branch) and

Allied Services Examination, 2002. Charge 9, again, is a repetition and,

primarily, refers that there was direction to the Commission to cooperate

with the investigating agencies. Despite such orders, the Commission

did not cooperate and such conduct amounted to misbehaviour on their

part. All these three approved articles of charge have been framed

against all the nine respondents. In the letter of the Governor to the

President dated 16th January, 2007, it has been specifically mentioned

that several complaints were received against various selections made

by the Commission. Enquiries by the Vigilance Bureau as well as by

other investigating agencies, in furtherance to the FIRs registered, were

pending. The wrong and arbitrary selections had generated 139 Writ

Petitions and seven Special Leave Petitions during the tenure of the

Chairman/Members of the Commission, the respondents herein.

Specific reference was made to the High Court’s order directing the

Commission to fully cooperate. These charges are analogous to the

49

third charge mentioned in the Presidential Reference. Charges 5 and 9,

as approved by the Court, thus, are explanatory and intrinsically inter-

connected to Charge 3. Thus, these can be examined by the Court on

merits.

Charge 4 merely refers to the proceedings of Writ Petition No.

15390 of 2002 which had been specified in detail in the letter of the

Governor to the President which itself is the foundation for making of the

Reference by the President in the present case. Charge 4, in fact, is

repetition in a concise form of the paragraphs mentioned in the letter of

the Governor. The illegalities, manipulations and interpolations had

been referred to not only on the records of this case but even in the Writ

Petitions filed before the High Court. In terms of para 8 of Governor’s

letter, it is alleged that a reply had been filed by the Chairman and

Members of the Commission in an unlawful manner to cover up their

own mistakes. Further, Charge 8 is merely ancillary to Charge 4 which

itself is not beyond the record which was placed before the President

and, in any case, all these facts have come to light subsequently. We

may also notice here that during the course of hearing, some of the

original answer sheets were produced before us, however, the entire

50

compilation was filed and accepted, during the recording of evidence in

the present inquiry.

Charges 6 and 7 of approved articles of charge are inter-

connected. However, we may notice that these approved articles of

charge are totally independent and are not incidental or explanatory to

the articles of charge specified in the Presidential Reference. They do

not even emerge directly from the record produced before us. The

alleged malicious acts of influencing the subordinates to carry out the

intended manipulations to favour desired persons and abuse of the

public office and defending the illegal acts referred to in approved article

6 of the charges, therefore, cannot be gone into by this Court. We have

already held that this Court can examine explanatory, incidental or

intrinsically inter-connected charges to the charges mentioned in the

Reference and in that respect can take note of additional facts, take

evidence and examine the entire record before it. But where the

charges, apparently and in substance, are new and do not appear to be

justifiable on the basis of the record and there is no direct evidence to

substantiate them, it may not be in the ends of justice that this Court

should examine those articles of charge in the present inquiry. In the

event they are examined, the delinquent Chairman/Member of the

51

Commission may suffer prejudice to his right of defence and this may

offend the constitutional protection that is available to such

Chairman/Member which cannot be permitted. Therefore, we would

only proceed to examine Charges 1-5, 8 and 9.

‘Misbehaviour’ in contradistinction to ‘misconduct’ and ‘proved misbehaviour’

The condition precedent to an order being passed by the

President of India, removing the Chairman/Member of the Commission

from office, is a report of the Supreme Court to the President recording

a finding after inquiry that the Chairman/Member ought to be removed

from office on the ground of misbehaviour. The plain language of Article

317(1) indicates that the expression ‘on the ground of misbehaviour’ is

an expression of wide connotation and cannot be given a restricted

meaning. Normally, such term should be understood keeping in view

the nature of the misbehaviour complained of, the office in question and

the standards expected to be maintained by the constitutional body in

discharge of its functions. The framers of the Constitution opted to use

different expressions in other Articles relating to misconduct or

misbehaviour of other Constitutional institutions. Use of different

expressions in different Articles of the Constitution itself indicates the

52

clarion intent of the framers to correlate a misconduct or misbehaviour

to the constitutional status held by the person in terms of expected

standards of performance, functions, integrity and rectitude. While in

Article 317(1) of the Constitution the expression ‘on the ground of

misbehaviour’ has been used, which is to be established by report of

this Court, in Article 124(4) the expression ‘on the ground of proved

misbehaviour or incapacity’ indicates a condition precedent to removal

of a Judge of the Supreme Court from office. To demonstrate this clear

distinction, reference can usefully be made to Article 311 of the

Constitution dealing with civil services. A civil servant such as Member

of the All India Service or Civil Services of the State, though not a

constitutional appointee in the sense understood under Articles 316 and

124, shall be dismissed or removed from office or reduced in rank only

after holding an enquiry in which he has been informed of the charges

against him and given a reasonable opportunity of being heard in

respect of those charges. The concept of doctrine of pleasure, which is

applicable to civil servants, is not attracted in the constitutional

appointments under Articles 124 and 316. Removal is possible only

when the conditions postulated under these Articles are satisfied. In

order to clearly understand the fine distinction between misbehaviour

53

and misconduct which at some places have even been treated

synonymously, we may refer to some accepted definitions of these

terms. In Law Lexicon 2nd Ed. 1997, the term ‘misbehaviour’ is

explained as under:

“ill-conduct: improper and unlawful behaviour. The term ‘misbehaviour’, in a statute providing that the award of arbitrators may be vacated if the arbitrators were guilty of misbehaviour, is used to imply a wrongful intention, and not a mere error of judgment, on the part of the arbitrators.

In Reference No.1 of 2003 [(2009) 1 SCC 344] this Court noted

that the expression ‘misbehaviour’ has not been defined, but still

ventured to provide certain examples of such misbehaviour which would

constitute ‘misbehaviour’ as contemplated under Article 317(1) of the

Constitution held as under :

“28. Article 317, like Article 124(4) does not define misbehaviour or enumerate what acts would constitute misbehaviour except that clause (4) of Article 317 makes an improvement in specifying misbehaviour, namely, being interested in any government contract. Outside clause (4), it is left to the Supreme Court to determine whether any particular act or conduct is of such a nature as to warrant the removal of the Chairman or member on the ground of “misbehaviour”. Ordinarily bribery, corruption and the like should be regarded as such

54

“misbehaviour”. But there is no limitation prescribed by the Constitution itself.

30. In Article 124(4) “misbehaviour” means wrong conduct or improper conduct. It has to be construed with reference to the subject-matter and the context wherein the term occurs, having regard to the scope of the Act or the statute under consideration. Every act or conduct or error of judgment or negligence by a constitutional authority per se does not amount to misbehaviour. Misconduct implies a creation of some degree or mens rea by the doer. Willful abuse of constitutional office, willful misconduct in the office, corruption, lack of integrity or any other offence involving moral turpitude would be misbehaviour. Judicial finding of guilt of grave crime is misconduct. Persistent failure to perform duties or willful abuse of the office would be misbehaviour. On the facts and in the circumstances of the case this Court is of the opinion that Charge 1 that Dr. Mirdha, who was the Chairman of OPSC, committed misbehaviour by not informing that his two married daughters were to appear in the examination is not proved.”

The expression ‘misconduct’ has been explained in Law Lexicon

(2nd Edn.) as under :

“The term “misconduct” implies a wrongful intention, and not a mere error of judgment. Malfeasance; improper conduct.

Needless to notice neither misbehaviour nor misconduct has been

defined in the Constitution or even in the Central Civil Services

55

(Classification, Control and Appeal) Rules, 1965. Once an expression

has not been defined, then it must be understood and explained in its

common parlance, keeping in view the object sought to be achieved. In

the case of R.P. Kapur v. S. Partap Singh Kairon [(1961) 63 Punj LR

780], the Court explained the term ‘misbehaviour’ while dealing with the

matter under the Public Servants (Inquiries) Act, 1850 and held that

misbehaviour qua proceeding under that Act, in absence of definition, is

a word of very wide import. ‘Misbehaviour’, when employed in respect of

holders of high offices, has a well understood and well defined meaning

according to the tradition and standards maintained by the members of

a particular service or office. This Court had the occasion to deal with

the expression misconduct in the case of Narotanmal Chouraria v. M.

R. Murli [(2004) 5 SCC 689] wherein the Court referred to its earlier

judgment in the case of State of Punjab v. Ram Singh Ex-

Constable [(1992) 4 SCC 54] and referred to paragraph 6 of that

judgment with approval and held in paragraph 10 and 11 of the

judgment as under :

“10…

“6. Thus it could be seen that the word ‘misconduct’ though not capable of precise definition, on reflection receives its

56

connotation from the context, the delinquency in its performance and its effect on the discipline and the nature of the duty. It may involve moral turpitude, it must be improper or wrong behaviour; unlawful behaviour, willful in character; forbidden act, a transgression of established and definite rule of action or code of conduct but not mere error of judgment, carelessness or negligence in performance of the duty; the act complained of bears forbidden quality or character. Its ambit has to be construed with reference to the subject-matter and the context wherein the term occurs, regard being had to the scope of the statute and the public purpose it seeks to serve. The police service is a disciplined service and it requires to maintain strict discipline. Laxity in this behalf erodes discipline in the service causing serious effect in the maintenance of law and order.”

(See also Probodh Kumar Bhowmick v. University of Calcutta and B.C. Chaturvedi v. Union of India.)

11. Section 35 of the Advocates Act, however, refers to imposition of punishment for professional or other misconduct. A member of the legal profession which is a noble one is expected to maintain a standard in a dignified and determined manner. The standard required to be maintained by the member of the legal profession must be commensurate with the nobility thereof. A lawyer is obligated to observe those norms which make him worthy of the confidence of the community in him as an officer

57

of the court. This Court in Bar Council of Maharashtra v. M.V. Dabholkar observed :

“The high moral tone and the considerable public service the Bar is associated with and its key role in the developmental and dispute-processing activities and, above all, in the building up of a just society and constitutional order, has earned for it a monopoly to practise law and an autonomy to regulate its own internal discipline.”

This Court in the case of Union of India v. J. Ahmed [(1979) 2

SCC 286], while dealing with disciplinary proceedings, under the service

law, explained the term ‘misconduct’ to mean conduct not expected of a

member of service, conduct in a manner inconsistent with due and

faithful discharge of duties and service or gross or habitual negligence

in performance of duties.

‘Proved misbehaviour’ is an expression clearly distinguishable

from the above terms of ‘misbehaviour’ and ‘misconduct’ as is apparent

from the language of Article 124(4) of the Constitution. Intent, gravity

and onus are of a much higher degree. The prefix ‘proved’ places an

obligation of actually proving the misbehaviour before the parliamentary

procedure for removal of a Judge can come into play. This Court in the

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case of Sub-Committee on Judicial Accountability v. Union of India

[(1991) 4 SCC 699] held as under:

“44. The Constitution intended a clear provision for the first part covered fully by enacted law, the validity of which and the process thereunder being subject to judicial review independent of any political colour and after proof it was intended to be a parliamentary process. It is this synthesis made in our Constitutional Scheme for removal of a Judge.

If the motion for presenting an address for removal is envisaged by Articles 121 and 124(4) ‘on ground of proved misbehaviour or incapacity’ it presupposes that misbehaviour or incapacity has been proved earlier. This is more so on account of the expression ‘investigation and proof’ used in clause (5) with specific reference to clause (4). This indicates that ‘investigation and proof’ of misbehaviour or incapacity is not within clause (4) but within clause (5). Use of the expression ‘same session’ in clause (4) without any reference to session in clause (5) also indicates that session of House has no significance for clause (5) i.e., ‘investigation and proof’ which is to be entirely governed by the enacted law and not the parliamentary practice which may be altered by each Lok Sabha.

45. The significance of the word ‘proved’ before the expression ‘misbehaviour or incapacity’ in clause (4) of Article 124 is also indicated when the provision is compared with Article 317 providing for removal of a member of the Public Service Commission. The expression in clause (1) of Article 317 used for describing the ground of removal is ‘the ground of misbehaviour’ while

59

in clause (4) of Article 124, it is, ‘the ground of proved misbehaviour or incapacity’. The procedure for removal of a member of the Public Service Commission is also prescribed in clause (1) which provides for an inquiry by the Supreme Court on a reference made for this purpose. In the case of a Judge, the procedure for investigation and proof is to be in accordance with the law enacted by the Parliament under clause (5) of Article 124. In view of the fact that the adjudication of the ground of misbehaviour under Article 317(1) is to be by the Supreme Court, in the case of a Judge who is a higher constitutional functionary, the requirement of judicial determination of the ground is reinforced by the addition of the word ‘proved’ in Article 124(4) and the requirement of law for this purpose under Article 124(5).”

All these expressions fall under different domains of jurisdiction

and operate in distinct and different fields. The distinction, primarily, is

that of degree, intent and expected standard required to be maintained

in relation to the office that the delinquent holds. Onus of proof and

severity of misconduct will be relatable to the office one is holding.

Misconduct may relate to graver acts, deeds and omissions while

misbehaviour may relate to the standards expected to be maintained by

the holder of the constitutional office. In other words,

misbehaviour/misconduct could be used interchangeably in certain

circumstances while in other they may have to be understood as clearly

60

distinguishable. ‘Misbehaviour’ may include behaviour that was not

expected of the holder of the constitutional office but would not include

‘grave misconduct’ or ‘proved misbehaviour’. This distinction has to be

kept in mind by this Court where the constitutional mandate refers to

‘misbehaviour’ which is an expression of very wide magnitude. As

already held by this Court in the case of Reference No.1 of 2003

(supra), this term must be construed very liberally so as to bring within

its ambit the behaviour of the Chairman/Member of the Commission

which, as per settled norms, was not expected of him/her. The

expression ‘misbehaviour’ generally refers to a conduct which might

erode the faith and confidence of the public at large in such

constitutional office.

Discussion on merits of the approved articles of charge

Before we proceed to discuss the evidence on each approved

article of charge, as well as record our findings in that regard, it is

imperative to note, as already held, that we are only examining Charges

1 to 5, 8 and 9. Charges 6 and 7 do not require examination by this

Court as they are ex-facie beyond the permissible scope of the

Presidential Reference. The second aspect, which requires to be

61

noticed by the Court, is that though approved articles of charge have

been framed against all the private respondents, while the proceedings

were pending, private respondents, namely, Doonger Ram, Chattar

Singh, Yudhvir Singh, Satbir Singh, Om Prakash and Dr. Ranbir Singh

were suspended vide order dated 9th August, 2008 and, thereafter, they

have ceased to be the Members of the Commission as their terms of

appointment has come to an end by efflux of time during 9th June, 2009

to 9th August, 2010. The learned counsel, appearing for the State,

submitted that though in view of the judgment of this Court in the case

of Reference 1 of 1983 [(1990) 4 SCC 262, para 8], the Court may be

called upon to examine the misbehaviour even in respect of the

Chairman/Member whose term has already expired, still he has specific

instructions not to press for recording of findings in the inquiry against

these respondents. Consequently, while accepting this request which

was unopposed, we further declare that this Court would not be

examining the alleged misbehaviour of these private respondents.

Article of Charge 1

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Therefore, the Court has to examine the correctness or otherwise

of article 1 of the approved charges only qua Mehar Singh Saini,

Chairman, Mrs. Santosh Singh and Ram Kumar Kashyap, Members of

the Commission. It is alleged that their qualifications, experience and

stature were not of the required standard for appointment to their

respective constitutional offices. Their appointments have been made

with a view to ensure that they would further the objectives of the

political party, then in power. Thus, by conniving in the subversion of

the Constitution, they are guilty of misbehaviour under Article 317(1) of

the Constitution.

First, it needs to be noticed that the words ‘by conniving in the

subversion of the Constitution’ are introduced in the draft charges

which, of course, stand approved by this Court. In any case, this is only

an explanatory line and does not change the content and meaning of

this article of charge, as stated in the Presidential Reference. The

appointment to the office of Chairman and Members of the Commission

is made by the Governor of the State in terms of Article 316 of the

Constitution. Under proviso to Article 316(1), one half of the members

of the Commission shall be persons who, at the dates of their respective

appointments, have held an office either under the Government of India

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or under the Government of a State for at least 10 years, implying that

the remaining half of the Members of the Commission can be appointed

by the Governor in accordance with law. ‘In accordance with law’

means that they are to be appointed on the recommendation of the

State Government as the Governor has to act on the advice of the

Council of Ministers. The provisions of Article 316 of the Constitution do

not lay down any qualification, educational or otherwise, for appointment

to the Commission as Chairman/Member. One-half of the Members of

the Commission, as nearly as may be, are expected to fulfil the

requirement of holding appointments under the State or the Centre for a

period of ten years. These Members are termed as ‘Official Members’

while the others are ‘Non-official Members’ as already indicated by us

above. Even for the Official Members no specific academic qualification

has been provided. In other words, there is no constitutional

requirement of any particular academic qualification for appointment as

Official/Non-official Member of the Commission. Similarly, no specific

experience of any number of years is required for appointment as Non-

official Member. In the case of Jai Shankar Prasad v. State of Bihar

[(1993) 2 SCC 597], this Court stated that it is clear that framers of the

Constitution realized that to make the provision rigid was both

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inadvisable and unnecessary. The Court also demonstrated its

impracticability. It can further hardly be suggested that the need to have

50% from the service category is of such paramount importance to the

composition of the Commission that the breach of it, at any particular

point of time, would defeat the very object of constituting the

Commission. The purpose, for which the said provision is made, is

obvious. It was realized by the framers of the Constitution that the

democratic system can be maintained only if civil servants are

appointed solely on the basis of their merit adjudged by open

competition and only if they can carry on the administration according to

law independently, instead of under pressure of their political superiors.

Hence, they provided for Public Service Commissions at both the Union

and State levels. Charge 1 alleges improper qualifications, experience

and status against these private respondents. What is lacking has been

left to imagination? Whether they do not fulfil the prescribed

qualification or do not have adequate experience and stature, which

they ought to possess, is again a matter of guess work. Whenever a

charge of misbehaviour is framed, it needs to be specific in its content.

If only vague averments are made without giving any particulars or even

documentary evidence to support such a charge, the delinquent

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Member may not be able to respond to them properly. This may cause

serious prejudice to the concerned Chairman/Member. Once a

constitutional provision does not provide for any specific academic

qualification or experience of any particular cadre, official post or stature

in the private field that they ought to have held before their appointment

to this constitutional office, then any such allegation will stare the State

in face and it will be difficult for this Court to hold that these respondents

are guilty of misbehaviour and can be removed from their office in terms

of Article 317(1) of the Constitution. The learned counsel appearing for

the State vehemently argued that even if the constitutional provisions do

not provide specific qualification and experience, still this Court should

lay down such prescriptions keeping in view the high constitutional

office that the private respondents hold. According to him, the Court

should, at least, state clear guidelines in that regard for appointment to

such office. We may refer to the judgment of this Court in Reference

No.1 of 1997 In the Matter of Dr. Ram Ashray Yadav (supra), wherein

the Court emphasized that 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

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their merit, ability and suitability and they are expected to be role models

for the persons whom they are going to select for Civil Services. 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; utmost objectivity in the

performance of their duties, integrity and detachment are essential

requirements for holding these high constitutional offices. Similarly, in

the case of Inderpreet Singh Kahlon v. State of Punjab [(2006) 11 SCC

356], this Court in exercise of its appellate jurisdiction was concerned

with allegations against the Chairman of the Punjab Public Service

Commission that in discharge of his duties, he had selected persons for

extraneous as well as monetary considerations during 1996 to 2002.

For such conduct and selections, FIRs had been registered in that

behalf while the selection of the appointed candidates was also

challenged. While dealing with these allegations, the Court held as

under:

“102. 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

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appointments absolute transparency is required 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 very long time, therefore, it is absolutely imperative that only people of high integrity, merit, rectitude and honesty are appointed to these constitutional positions.”

In the above lines, this Court has explained the standards of

performance which are expected to be maintained by the

Chairman/Members of the Commission.

Desirability, if any, of providing specific qualification or experience

for appointment as Chairman/Members of the Commission is a function

of the Parliament. 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 methodology by the concerned Government to make

appointments to the Commission on merit, ability and integrity. Neither

such expertise is available with the Court nor will it be in consonance

with the constitutional scheme that this Court should venture into

reading such qualifications into Article 316 or provide any specific

guidelines controlling the academic qualification, experience and stature

of an individual who is proposed to be appointed to this coveted office.

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Of course, while declining to enter into such arena, we still feel

constrained to observe that this is a matter which needs the attention of

the Parliamentarians and concerned quarters 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 Government has led documentary and oral evidence and has

opted to examine, as many as, 31 witnesses in support of the approved

articles of charge. In regard to approved article of charge 1, we find that

there is hardly any direct oral or documentary evidence. While this

charge relates to lack of qualification, experience and stature, the

Governor’s letter to the President states that these persons influenced

the Government in making their appointments. Of course, it is expected

that persons being appointed to such high office should not use any

influence or pressure or take favour from the Government in power but

at the same time that fault would have to be traced to the processing

and the appointing authority rather than the candidate alone. It was

contended that the Chairman, Mehar Singh Saini, is a private

69

practitioner holding a BAMS degree only and, therefore,

ineligible/incompetent to be appointed to the post of Chairman of the

Commission. However, it was not disputed by any of the parties

appearing before us that he was from the Non-official category and, as

such, the experience of ten years as Government appointee would not

apply to him. Similar is the case with regard to respondent No. 8, Mrs.

Santosh Singh, a teacher. Respondent No.9, Mr. Ram Kumar Kashyap,

who has been appointed to the Commission as Official Member

possessed ten years experience of holding Government office, as he

had held the post of Field Assistant in ESA Department. It is contended

that experience of holding such a post, in terms of stature and

otherwise, is entirely inadequate for appointment to the Commission.

The constitutional provisions do not provide any qualification for

Official/Non-official Members. It also does not provide any experience

in any particular field or office for Non-official Members. In the case of

an Official Member, it is nowhere spelt out as to which cadre in the

official hierarchy, he should have experience of 10 years. In these

circumstances, we find that the Government has failed to prove Charge

1 and we hold the respondents not guilty of any misbehaviour as

contemplated under Article 317(1) on this count.

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Article of Charge 2

This charge has been framed against four of the nine private

respondents. It is alleged that Mehar Singh Saini along with Dunger

Ram, O.P. Bishnoi and Chattar Singh as members of the Selection

Committee recommended the name of Pradeep Sangwan for the post of

Drug Inspector on the basis of bogus experience certificate. It was

contended that selection of Pradeep Sangwan was, thus, arbitrary and

constituted misbehaviour under Article 317(1) of the Constitution. In

regard to the irregularities committed, an FIR being FIR No.15 of 2005

was lodged; during investigation and on further inquiry by the State

Vigilance Bureau, various documents have come to light which show

that selection of Pradeep Sangwan was arbitrary and was made in a

manner, which is not acceptable in law. Pradeep Sangwan did not

possess the requisite essential qualifications and experience. A

complaint against his selection was filed by one Rakesh Walia. Despite

this, the candidate was not only selected but also recommended on the

basis of the bogus experience certificate and subsequently appointed to

the post of Drug Inspector by the State Government. The documents,

which are on record and have been referred by the learned counsel in

that behalf, are the application form and certificates submitted by the

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candidate, statements of witnesses including the witness from M/s. Zee

Drugs, whose certificate was produced by the candidate for the purpose

of satisfying the essential condition of experience before the Selection

Committee.

The counsel appearing for the Commission has not even

attempted to deny these averments and the charge against these

Members. However, on behalf of four private respondents, it is

contended that it was not for the Members of the Selection Committee

to verify the contents of the certificate. They have conducted the

selection in accordance with law and no arbitrariness can be attributed

to them. As many as 27 candidates were considered for the post and,

ultimately, two names were recommended. Pradeep Sangwan, being at

serial number 1, was then appointed by the Government and as such no

fault could be attributed to the members of the Selection Committee. It

is also argued that if Pradeep Sangwan has obtained a bogus certificate

then, at best, he can be said to have committed some offence and that

cannot be understood as an instance of misbehaviour on the part of the

private respondents. Further, the contention is that there is no evidence

to support this charge.

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The charge is simpliciter relating to improper selection of Pradeep

Sangwan for the post of Drug Inspector for which he was recommended

at serial number 1 and was, subsequently, appointed by the concerned

Government. The approved article of charge may not spell out every

minute detail of the improper selection but, in substance and keeping in

view the dignity of the office of the Commission, it would be sufficient if

a serious suspicion is cast on the process of selection which is

attributable to and/or is result of commission or omission of the

members of the Selection Committee. We may scrutinize the merits of

this approved charge by examining the documents on the record. The

State Government had advertised various posts including two posts of

Drug Inspector and the essential qualification and experience for the

same were as follows :

“Essential Qualifications and Experience :

(a) Second Class Bachelor Degree in Pharmacy or Pharmaceutical Chemistry.

(b) 1 ½ years experience in manufacturing of at least one of the substances specified in schedule ‘C’ appended to the Drugs and Cosmetic Rules, 1945 OR 1 ½ years experience in testing of at least one of the substances specified in the said

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Schedule ‘C’ in a Laboratory approved for the purpose by the Licensing Authority OR three years experience in inspection of Firms manufacturing any of the substances specified in the said Schedule ‘C’.

(c) Adequate knowledge of Hindi.”

Condition No.2 of general clarifications, as published in the

advertisement, reads as under :

“General Clarifications

2. Incomplete application form i.e. without proof of age and the minimum required qualifications and experience will be straightway rejected without entering into any correspondence.”

From the bare reading of the above essential qualifications, it is

clear that these qualifications could not be relaxed at the discretion of

the Commission. Furthermore, a candidate has to have one and a half

years of experience in manufacturing of at least one of the substances

specified in Schedule C appended to Drug and Cosmetic Rules, 1945 or

one and a half years experience in testing of any such substance in a

laboratory approved for the purpose by the Licensing Authority. Any

application, which was incomplete and did not annex the required

certificate of experience, was liable to be rejected straightaway. The

last date of submission of application as well as for consideration of the

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eligibility criteria was 3rd September, 2004. Let us now examine the

application that was submitted by Pradeep Sangwan. Pradeep

Sangwan had submitted application No.25827, as per the endorsement

made under receipt No. (??????? ??????) 713 dated (??????) 9th September,

2004. However, respondent No.5 had initialed the application with the

date as 3rd September, 2004. This, obviously, means that the

endorsement by respondent No.5 on the application was ante-dated to

the actual date of receipt of the application. This application ought to

have been rejected at the very threshold inasmuch as this was received

after the prescribed last date of receipt of application i.e. 3rd September,

2004.

In his application, under column No.10, Pradeep Sangwan had

stated that he has done his B. Pharma from M.D. University, Rohtak in

2001. In column No.12 of the application, the applicant had not stated

that he had any experience of teaching on regular and/or voluntary

basis. However, he had annexed to the application a copy of the

certificate dated 16th August, 2004 stating that he had served in Janta

College of Pharmacy, Butana, Sonepat over the weekends on voluntary

basis for the period February 2001 to 15th May 2003 and worked as

Lecturer in the same from June 2003 till the date of issuance of the

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certificate. Another certificate of experience, which was annexed to the

application and which was mentioned in column No.12 of the

application, was the certificate issued by Zee Drugs, Agra. This

certificate is alleged to have been signed by authorized signatory of the

firm and it states that during the period 20th May 2001 to 20th May 2003,

Pradeep Sangwan worked as a Pharmacist in the company at a salary

of Rs.5,000/-. This application, despite the above defects, appears to

have been processed by the office of the Commission. From the

original records produced before the Court during the course of hearing,

it is clear that correct noting was not recorded. Still, the same was

approved by the Members of the Commission (private respondents) and

the candidate was called for the interview. The interview was held on

29th September, 2004 and despite the fact that there were more

competent and meritorious candidates available, he was selected and

placed at serial No.1.

It may be noticed that there were 76 applicants for the post, of

which 27 were called for the interview and finally a select list of two was

prepared. The recommendation of the selection committee was sent to

the Government on 2nd November, 2004. However, on 5th October,

2004, a complaint was received from Mr. Rakesh Walia about the

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selection of Pradeep Kumar, son of Ram Singh having residential

address, which was not that of this applicant as given in his application.

This complaint made a specific allegation that the experience certificate

furnished by Pradeep Kumar was bogus. The candidate had never

worked as a Manufacturing Chemist in Zee Drugs. In fact, he was

working as a Lecturer and, therefore, it was physically impossible for

him to have worked with Zee Drugs on a regular basis. Complainant

stated that he could file an affidavit to prove that the experience

certificate was bogus and false. Copy of this complaint was sent to the

Chairman of the Commission, Chief Secretary, Government of Haryana

and Chief Minister of the State of Haryana. In response to the

complaint, a note was put up to state that neither the complainant

Rakesh Walia nor Pradeep Kumar was a candidate for the post and

hence no action was required to be taken. It was put up for

consideration, through the Superintendent, before Mr. Yudhvir Singh,

Member of the Commission, who approved its filing and then it was also

signed by the Chairman of the Commission. It needs to be noticed that

this process adopted by the Commission and, particularly, by its

Member and Chairman was not in consonance with the known canons

of administrative jurisprudence. May be the names of Pradeep

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Sangwan and his father were stated incorrectly as Pradeep Kumar and

Ram Singh in the complaint, but fact of the matter remains that Pradeep

Sangwan was the selected candidate. Select list of only two persons

had been prepared and approved by the Selection Committee. Thus it

was expected that this complaint ought to have been examined in some

detail, particularly when the facts alleged in the complaint found due

support from the documents annexed to the application of the candidate

as well as the official records of the Commission. In the present day

when unemployment is one of the biggest problems faced by our

country, it is expected that the Commission will scrutinize the

antecedents of a candidate with utmost care before recommending him

for appointment that too for a responsible post such as Senior Drug

Inspector. Despite this complaint, the results were approved on 26th

and 27th October, 2004 by the Chairman and Members of the

Commission. The private respondents had signed those minutes and

forwarded the names to the Government on 2nd November, 2004. Such

conduct of the Chairman and members of the Commission not only

shows omissions and commissions on their part but administrative

lapses as well. This resulted in providing employment to an

undeserving candidate at the cost of more meritorious candidates.

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As already noticed, on the basis of the complaint received by the

State Government, inquiries were initiated by the State Vigilance Bureau

and some FIRs were also registered including FIR No.15 of 2005. In

this investigation, various documents and evidence came to the notice

of Vigilance Bureau and the investigating agencies, all of which were

collected and placed on record of this Court by way of affidavit, filed by

PW6, namely, P. Raghavendra Rao, Special Secretary, Govt. of

Haryana. These allegations were found to be correct as reflected in the

report of the Deputy Inspector General, M.S. Ahlawat which is on

record. In the affidavit of PW6, specific reference has been made to the

appointment of Pradeep Sangwan and the fact that his certificate of

experience was a forged certificate. PW26, M.S. Ahlawat, stated that

he had conducted an inquiry into the allegations levelled against Dr.

K.C. Bangar, the then Chairman of the Committee. It was noticed in the

inquiry that Pradeep Sangwan had produced a false certificate from

M/s. Zee Drugs and that he was given appointment as an undue favour.

During this investigation, the statement of PW30, Bangti Jha, Quality

Control Manager in Zee Drugs, was also recorded who stated that

Pradeep Sangwan had not worked as Assistant Chemist or

Manufacturing Chemist in Zee Drugs during his period of appointment.

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In other words, definite documentary and oral evidence had been

produced on record to show that the certificate annexed with the

application of Pradeep Sangwan was not a genuine one and, in fact, he

was never employed by M/s. Zee Drugs during the relevant period. It is,

therefore, clear that he did not possess the requisite experience in

terms of the advertisement.

Another important aspect, which needs to be noticed, is that, in

his affidavit, PW20, Hazari Lal, Deputy Superintendent of Police (since

retired), has specifically stated that experts, invited by the Commission

for this selection, were not provided the original record despite demand.

PW20 had also recorded the statement of Dr. Mrs. Usha Batta, Senior

Deputy Director, Health Department in that behalf. In other words, the

members of the Selection Committee, namely, the private respondents,

obviously favoured the selection of Pradeep Sangwan. PW2, Sajjan

Kumar, who is Deputy Superintendent of Police had investigated the

matter and also filed an affidavit, the relevant portion of which is stated

as under :

1. That above noted case was registered following the Vigilance enquiry No.5 dated 16.5.2005, Chandigarh against Dr. K.C. Bangar, Chairman, Haryana Public Service

80

Commission (hereinafter called as HPSC) and Sh. Pradeep Sangwan s/o Mohinder Singh Sangwan, Drug Inspector, Jhajjar r/o Vill. Kohla, Distt. Sonepat and others. In this enquiry, it was alleged that during August, 2004, Haryana Public Service Commission advertised the Post of Drug Inspectors in Health Department in Haryana. The said Pradeep Sangwan also applied for this post and submitted two different experience certificates along with his application form. While one of them was issued by Zee Drugs, Sikandara, Agra (U.P.), the other was issued by Janta Pharmacy College, Bhutana, Distt. Sonepat, for the same period (20.05.2001 to 20.05.2003 and 2001 to 2004 respectively). It was alleged that he had also drawn salary as Lecturer from Janta Pharmacy College, Butana, Distt. Sonepat. He was called for interview by Haryana Public Service Commission on 06.10.2004, whereas remaining candidates were interviewed on 28/29.09.2004. Dr. K.C. Bangar, Chairman, HPSC, who happened to be resident of village Kohla, the village of Sh. Pradeep Sangwan, deliberately ignored the forged experience certificate of Zee Drugs, Agra and influenced the selection process and at his instance, the selection committee i.e. Members of HPSC, selected Sh. Pradeep Sangwan by giving him undue advantage and ignoring the claim of other suitable candidates.

xxx xxx xxx xxx xxx

8. That during the course of investigation, Sh. Rohtash Singh, DSP, had recorded the statement of Dr. Isha w/o Dr. Hari Mohan r/o Rohtak on 09.08.05. She stated that she had

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attested the experience certificate of Pradeep Sangwan on the recommendation of Sh. Mahender Singh r/o Garhi Bohar. Mahender Singh had wrongly put the date as 28.08.04 on the experience certificate dated 02.09.04, after obtaining my signatures. Mahender Singh is father of Pradeep Sangwan, who was later appointed as Drug Inspector.”

The affidavits of PW2 and PW6, in addition to other records, are

the basic evidence, which has been produced by the State before this

Court, to establish the approved article of charge. It was contended on

behalf of the private respondents that these affidavits of the police

officers and the statements recorded under Section 161 of the Code of

Criminal Procedure are inconsequential in this inquiry and cannot be

taken into consideration by this Court. We are unable to accept this

contention. Though these statements are inadmissible in evidence as

far as a criminal trial is concerned, however, in the inquiry before this

Court and even in a departmental proceeding, they can be considered

to substantiate the facts which otherwise are being established by the

concerned authority. We make it clear that it is not only the statements

of the Investigating Officers and the witnesses which were recorded by

him during the course of investigation are not the only basis for which

we are drawing certain inferences. But they are certainly relevant

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considerations, which have to be kept in mind by the Court, while

examining the matter in its entirety to see whether the misbehaviour

complained of is attributable to and committed by the private

respondents. Conclusion of misbehaviour of the private respondents

shall further be substantiated by the fact that when the private

respondents were cross-examining PW20, they did not even suggest

that he had not recorded the statement of other witnesses including

expert Dr. Mrs. Usha Batta correctly or not at all. On the contrary, the

question was put suggesting that statement of this witness was

recorded and a particular question was not put to this witness. The

following question and answer in the cross-examination completely

demolishes the objection now sought to be raised before us :

Q. At the time of questioning of Dr. Usha Batta, did you ask her as to whether in the interview on 28th and 29th September, she had objected in writing that the relevant certificates were not shown to her?

R. I had recorded her statement, in her statement she had mentioned that she was not shown the documents.”

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The Chairman and Members of the Commission, particularly, the

Members, who have attested and approved the orders of summoning

Pradeep Sangwan for the interview, should have exercised greater

degree of care in scrutiny. Further, the matter ought to have been

examined by the private respondents when the complaint against the

selected candidate was made and copy thereof was sent to the highest

authority in the Commission and in the State Government. It is a

matter of common knowledge and, in fact, there is no dispute before us

that the application and record of the candidate are placed before the

members of the Selection Committee at the time of interview of the

candidate. We fail to understand as to why the members of the

Selection Committee did not notice that the application had not been

submitted before the last prescribed date, i.e., 3rd September, 2004 and

why respondent No.5 had put his initials with the date of 3rd September,

2004 when application was actually received on 9th September, 2004,

particularly, when this was apparent from the first glance on the very

opening sheet of the application form. It may be noticed from the record

that the receipt number and the date of receipt has been written by the

receiving clerk against the printed column on each application form and

on the application form of Pradeep Sangwan it was written as receipt

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No. 713 dated 9th September, 2004. Another factor, which would

substantiate that this application was received after the deadline, is that

the application of the other recommended candidate was received on

23rd August, 2004 against receipt No. 226 and the entries were made in

the normal course of business. All these facts and evidence, when

cumulatively examined, unambiguously show that these private

respondents have failed to act judiciously and in accordance with

principles of fairness. They have failed to maintain the expected

standard of transparent and fair selection on merit. The application of

Pradeep Sangwan was liable to be rejected at the very threshold in

terms of condition No. 2 of the General Clarifications but the same was

accepted and he was called for interview and selected. Despite the

complaint, which subsequently was found to be correct, his name was

also forwarded for appointment to the State Government. We are not

holding that furnishing of the false certificate by Pradeep Sangwan was

an act attributable to the Chairman/Members of the Commission but its

acceptance, despite the complaint and the manner in which Pradeep

Sangwan was selected and recommended for appointment to a very

responsible post in the State Government, certainly is clothed in

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suspicion and favouritism. We are informed that Pradeep Sangwan is

now no longer in service

As a result of the above discussion, we are of the considered view

that the conduct of the Members of the Commission, in processing the

application of Pradeep Sangwan, endorsing and approving his name for

the interview, selecting him and finally recommending his name for

appointment to the post of Senior Drug Inspector, does not meet the

standards of behaviour, integrity and rectitude required to be maintained

by the office they were holding. Thus, their behaviour with respect to

this article of charge would certainly fall within the ambit of misbehaviour

justifying their removal from office.

Articles of Charge 3 to 5, 8 and 9

Approved articles of charge 3, 5, 8 and 9 pertaining to alleged

acts, omissions and commissions amounting to misbehaviour have

been framed against all the respondents in the present inquiry.

However, article of charge 4 has been framed only against Mehar Singh

Saini, respondent No.1, who was earlier Member and later appointed as

Chairman of the Commission. These approved articles of charge can

be dealt with together inasmuch as they are based on common

86

allegations, common evidence and with reference to the same records

produced by the State Government in support of the allegations. In

terms of Charge 3, Mehar Singh Saini and other respondents refused to

cooperate in the investigation carried out by the State Vigilance Bureau

in spite of directions of the High Court and intentionally did not supply

the documents requested in furtherance to the complaints received by

the authorities in relation to selection made by the Commission. While

referring to the proceedings before the High Court of Punjab and

Haryana in Writ Petition No.15390 of 2002, to which all the parties

before us were parties, it has been stated that these acts of

manipulation and interpolations in the answer sheet were carried out

favouring certain candidates and, thus, there was deliberate abuse of

process of selection by Mehar Singh Saini as Member of the

Commission in selection for Haryana Civil Services (Executive Branch)

and Other Allied Services Examination, 2002. Approved article of

charge 5 only expands the scope of approved article of charge 3 as it

states that deliberate attempt was made by the private respondent to

withhold material records which were required by the investigating

agencies to investigate the matter in furtherance to the complaints

received by the Government in regard to the irregularities and illegalities

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committed by the then Chairman and Members of the Commission in

the selection for the year 2002. Approved article of charge 8, to some

extent, is repetitive and it refers to the proceedings before the Punjab

and Haryana High Court in Writ Petition No.15390 of 2002 wherein reply

was filed on behalf of the Chairman and Members of the Commission,

only as an attempt to justify the manipulation and interpolations

committed in the course of selection. Approved article of charge 9 is

again extension of/explanatory to above approved articles of charge as

it only refers to the resolution which were passed by the Chairman and

Members of the Commission deciding not to hand over the records to

the investigating agencies upon demand and despite directions. All

these allegations of commissions and omissions according to the State

Government amount to misbehaviour within the meaning of Article

317(1) of the Constitution and justify their removal from the office.

We have already noticed that the contention raised, on behalf of

the private respondents, is that the articles of charge are beyond the

scope of Presidential Reference. There is no evidence to support them

and, in any case, the alleged conduct does not amount to misbehaviour

as it was a legitimate right of the Commission to claim privilege acting

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through its Chairman and Members. Thus, the decision not to furnish

the records to the investigating agencies was justifiable.

In the preceding paragraphs we have already held that this Court

has jurisdiction to examine additional or explanatory charges, records,

documents, evidence and facts which may come to light even

subsequent to the Presidential Reference in exercise of its advisory

jurisdiction under Article 317(1) of the Constitution. They are not such

independent articles of charge to which there is no reference in the

entire record and/or are likely to cause prejudice to the delinquent

Chairman/Members of the Commission. The cumulative reading of

these articles of charge shows that emphasis is on non-cooperation of

the Chairman and Members of the Commission in not furnishing the

records, when it was demanded by the investigating agencies. Further

there has been an abuse of office of the Chairman and Members of the

Commission by withholding the material records, passing resolutions

contrary to law, filing incorrect replies in judicial proceedings and lastly

the manipulation and interpolations in regard to answer sheets of the

selected/non-selected candidates. More particularly, reference has

been made to the selections made in the year 2002. Before we

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examine the evidence on these charges, we may refer to the points

which emerge from these approved articles of charge :

a) Whether during their tenure as Chairman and Members of the

Commission, the private respondents adopted a non-

cooperative attitude and intentionally decided not to

furnish relevant records to the concerned

authorities/investigating agencies?

b) Whether the right of privilege in terms of Section 123 of the

Indian Evidence Act, 1872 was available to the

Commission acting through its Chairman and Members?

c) Whether non-furnishing of documents or records to the

inquiring/investigating agencies, under the pretext that the

Commission is a constitutional authority and thus not amenable

to investigation, was a bona fide decision/resolution or it was

an attempt to cover up the misdeeds, omissions and

interpolations made in the process of selection? Furthermore,

if the records were made available to the agencies would it

have exposed the misbehaviour of the private respondents?

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It is not in dispute that the Government as well as the Commission

had received various complaints in regard to the process of selection as

well as the selections themselves, made by the Chairman and Members

of the Commission to various appointments in the State services. In

furtherance to these complaints and the complaint made by Rakesh

Walia in case of appointment of Pradeep Sangwan to the post of Senior

Drug Inspector, five different vigilance enquiries and two different FIRs

being FIR Nos. 15 of 2005 and 20 of 2005 were registered. These

cases were registered, primarily, on the ground that the Commission

had adopted unfair method of selection. Favorite candidates were

selected and it was also stated that there has been interpolation and

manipulation of marks in the answer sheets of the selected as well as

non-selected candidates. In furtherance to FIR No.15 dated 8th August,

2005, a charge-sheet, for the offences afore-stated, had been filed

before the Court of competent jurisdiction on 30th August, 2006. Despite

repeated demands, complete records were not given to the investigating

agencies. It is clear from the record that during the period 25th May,

2005 to 5th July, 2005, the Vigilance Bureau issued as many as 8 letters

asking for the records in relation to different inquiries. Instead of

cooperating, the private respondents opted to file a writ petition, through

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the Commission, being Writ Petition No.12593 of 2005, which was

contested by the State. Various complaints, reports and documents

were produced before the High Court and ultimately in its judgment in

Haryana Public Service Commission (supra), dated 12th August, 2005,

the High Court clearly observed that the Commission could not claim

immunity from providing records, particularly, when the investigations

were in furtherance to the complaints of corruption against its office

holders having received by the Government. It will be useful to refer to

the relevant part of this order of the High Court wherein certain

observations were made against the Chairman and Members of the

Commission and their claim of absolute immunity was not accepted,

which reads as under:

“11. At the outset we may notice that the petitioner/Commission has tried to drag political considerations -by insinuations at least. It has been pleaded that the present Chairman and the Members of the Commission are appointees of the previous "Indian National Lok Dal" Government and that after the elections, a new "Congress Government" has assumed office. Although it has been asserted that all the .persons i.e. the Chairman and the Members of the Commission are non-political persons but the insinuations and the attempt to politicise the whole controversy is loud and clear. The aforesaid attempt cuts at the very root of the various arguments raised by the Commission.

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As a constitutional body, it is not expected of the Commission to bring in politics or rely upon the fact that the ruling party in the State had changed. We can only express our disapproval for the aforesaid attempt made by the Commission.

XXX XXX XXX

14. … It is not in dispute that the enquiries now being conducted by the Vigilance Bureau pertain to certain past selections. From the communication received by the petitioner- Commission, it appears that the action of the past Secretary, the past Chairman and certain other Officers/Officials of the Commission, are being probed with regard to the serious charges. Under any circumstances, the aforesaid enquiries cannot be taken to mean any erosion of the authority of the Commission or its independence. Even an expert and constitutional body like the Commission is supposed to perform its duties, fearlessly and carry out selections on the basis of the best merit available. However, if the aforesaid selections are alleged to be tainted and based upon consideration other than merit, the Commission cannot, in such circumstances, claim any immunity. No body has a vested right to perpetuate illegality or hide a scandal. All selections made by public servants are supposed to be based upon competence, merit and integrity. The allegations to be contrary would not only erode the public confidence in the Commission but would also result in merit being a casualty.

15. … Therefore, if a formal F.I.R. is registered, then even as per the learned Counsel, the holding of the vigilance inquiries

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could be justified. In our considered view, it would embarrass the Commission, its Chairman and its Members more rather than protect. Holding of the vigilance inquiry without registration of any formal F.I.R., in our view is in the nature of a fact finding exercise. If after the aforesaid exercise is undertaken, the commission of any criminal offence is made out, the law will take it own course.

XXX XXX XXX

18. We find that the aforesaid contention of the learned Counsel is also without any merit. There is no dispute with the preposition (sic) of law that while exercising the power of judicial review this Court would be slow in making competitive comparison of the selected candidates vis-a-vis the unsuccessful candidates. To this extent reliance placed by the petitioner on the judgment of Jasjit Singh Sidhu's case (supra) is wholly justified. However, we express our inability to extend the aforesaid analogy any further to hold that even in the case of corruption charges, tainted selections, or any illegality, no investigation in the matter of selection, could be made. Accepting the aforesaid argument would be perpetuating the tainted selections.

XXX XXX XXX

22. It is, thus, apparent that an effort has been made by the Commission to protect its Chairman and the members, who for undisclosed reasons have chosen not to directly approach this Court. The commission which is a constitutional body has unnecessarily filed the present petition to watch the interest of the Chairman and member, who have chosen to remain

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behind the curtain. The Commission cannot equate itself, nor under the Constitution of India can it be so equated, with its Chairman and its members. The Commission has a distinct and a constitutional identity, independent of its Chairman and members. It is, thus apparent that the present petition has been filed at the instance of the Chairman and members, although in the name of the Commission. We cannot put any seal of approval to this act of the Commission.”

The correctness and legality of the order of the High Court was

challenged by the Commission before the Supreme Court by filing a

Special Leave Petition being SLP (C) No.18726 of 2005. The same was

dismissed as withdrawn vide order dated 19th September, 2005. It is

useful to note a strange behaviour on the part of the Chairman and

Members of the Commission that they chose to file a separate

application along with the petition seeking leave of this Court to appeal

against the order of the High Court dated 12th August, 2005. The

permission prayed for, by the Chairman and Members of the

Commission, was declined vide order dated 28th October, 2005. In

other words, the order of the High Court and the observations made by

it, inter se the parties have attained finality.

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We may also notice that, in the meantime, the candidates

selected for the Haryana Civil and Allied Services (Executive Branch) in

the year 2004, had filed a Writ Petition before the High Court of Punjab

and Haryana praying for issuance of a writ directing the respondent to

issue letters of appointment to them on the premise that they had duly

been selected to the service. The High Court dismissed the Writ

Petition noticing the fact that the elections in the State had been

announced and model code of conduct had come into force, therefore,

appointment letters were rightly not issued to them. The order of the

High Court was challenged before this Court. While dismissing the

appeal this Court in Jitendra Kumar v. State of Haryana [(2008) 2 SCC

161] noticed the disturbing feature of non-cooperation by the

Commission in the Vigilance Enquiries and held as under:

“…we only hope and trust that a constitutional authority like the Commission should neither withhold any document nor refuse to cooperate with the State Vigilance Bureau in the matter of conduct of an inquiry. If the statements made by the Commission are correct, they have nothing to hide. It would be in the interest of all concerned including the appellants herein to see that the inquiry should be completed at an early date.”

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It was argued that despite directions/observations of the Court still

complete cooperation was not extended and there was conscious

decision taken by the private respondents, as the Chairman and

Members of the Commission, not to cooperate in the investigation which

can be inferred as an intention to cover up their own commissions and

omissions including mal practices in selections.

The other phase of non-cooperation appears to be when, during

the period 15th December, 2005 to 4th January, 2007, all the private

respondents in the present petition passed four different resolutions

declining to hand over the records for investigation to the concerned

authorities. The stand taken was that it is a constitutional body and its

record cannot be made available to the investigating agencies even if

such a demand was made in furtherance to the complaints, vigilance

inquiries and First Information Reports. These resolutions were passed

referring to certain Special Leave Petitions pending before this Court,

but strangely no reference was made to the Punjab & Haryana High

Court order dated 12th August, 2005 and/or that of this Court dated 19th

September, 2005. Bare reading of the resolutions, except resolution

dated 4th January, 2007, clearly show that there was non-application of

mind. The alleged claim of privilege did not find mention in them and

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the orders of the Courts including the highest Court of the land were

ignored. The investigating agencies had also demanded, by different

letters, the records in relation to FIR No.20 of 2005. While invoking the

provisions of Section 91 of the Code of Criminal Procedure, the

agencies issued notice to the Commission but to no avail. An

application had also been filed by the State Vigilance Bureau under

Section 93 of the Code of Criminal Procedure before the Court of Chief

Judicial Magistrate requesting production of relevant record and for

appropriate directions. However, this application was vehemently

contested by the Commission, at the behest and at the instance of the

Chairman and Members of the Commission. The Chief Judicial

Magistrate vide order dated 25th October, 2007 rejected the application

filed by the investigating agencies against which a revision was filed

before the learned Sessions Judge, who upheld the order of the Chief

Judicial Magistrate vide order dated 30th November, 2007. Against the

order of the Sessions Judge, revision was filed by State in the High

Court which came to be allowed vide order dated 1st April, 2008. In that

order, the High Court had clearly held that claim of privilege for non-

production of documents with reference to Sections 123 and 124 of the

Evidence Act, 1972 was not sustainable or justified. The Court further

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held that there was sufficient material on record to justify the issuance

of search warrant under Section 93(1)(a) of the Code of Criminal

Procedure and held that the State had the right to get the records from

the Commission for the purpose of investigation and on latter’s failure,

the provisions of Section 93 of the Code of Criminal Procedure were

rightly invoked. It observed that the Commission is a constitutional

authority and it would not be in the fitness of things that a search is

conducted in its office, but such a situation has been created by it.

Liberty was granted to the Commission to produce documents, records

before the Investigating Officer, Inspector of Police, Vigilance (Ambala

Range). Despite such unambiguous and clear directions of the Court,

the Commission, acting through the private respondents failed to hand

over the records but chose to prefer an SLP before this Court being SLP

(Crl.) No. 3649 of 2008. This Court on 16th May, 2008, granted stay of

the operation of the High Court’s order. However, the matter continued

to be pending for a considerable time before this Court and this SLP

was ultimately withdrawn vide order dated 14th December, 2009. In the

meanwhile, as already stated, four new Members had been appointed to

the Commission in place of the Members whose term had expired.

These newly nominated Members had taken a decision to hand over the

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record to the investigating agencies. Fact of the matter remains that for

a very considerable time investigations were delayed and the guilty

could not be brought to book. There was definite non-cooperation on

the part of the private respondents.

Pradeep Sangwan’s case is just one of the examples of improper

selection made by the private respondents. The Vigilance Bureau had

instituted different inquiries. Enquiry Nos. 1 and 3 resulted in

registration of FIR No.20 of 2005 and the notices dated 21st December,

2006 and 4th January, 2007 along with other letters issued to the

Commission for making available the records in question. Every

possible effort was made to spend public money, time and energy by

the Commission to withhold the records rather than to provide the same

to the investigating agencies to ensure expeditious completion of the

inquiry/investigation. Avoidable impediments, with the aid of law or

otherwise, were created to ensure that the notices issued by the

authorities and even observation of the Courts were not complied with.

As far as the claim of the Commission with regard to privilege over its

documents is concerned, it stood finally concluded by the order of the

High Court against which the SLP was withdrawn. It is not for us to re-

examine that issue, all over again, in the facts of the present case. It is

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impermissible to examine an order passed by the High Court or

Supreme Court which has attained finality inter-se the parties that too in

a collateral proceeding. This will be opposed to the doctrine estoppel

per rem judicatam.

We have examined in detail the evidence led in relation to non-

cooperation and the malo-animo of the Chairman/Members with

reference to the records before us, i.e., the documentary and ocular

evidence. PWs 6, 8, 13, 14, 20 and 27 have filed their affidavits. The

collective reading of this evidence along with documents which have

been placed on record establishes two facts:

1. That there was definite non-cooperation on the part of

the Chairman/Members of the Commission

in furnishing record and documents to the

investigating agencies; and

2. This attitude of the private respondents as well as the

claim of privilege lacks bona fides, much less protects

the constitutional stature of the Commission.

PW6, P. Raghvendra Rao, in his detailed affidavit, at the very

outset, denied the suggestion that FIRs were registered as a result of

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political vendetta. According to him, there were various complaints

received by the Government which were examined and FIRs were

registered in accordance with law. He has further stated that despite

requests in writing and otherwise, records were not provided and when

records were provided it has come to light that there has been

manipulation and interpolation in the answer sheets and the entire

selection process adopted by the Commission through private

respondents for selection to various posts in the State cadre was

arbitrary and contrary to rules. In the case of appointment to the post of

Environmental Engineer and Assistant Environmental Engineer certain

candidates were selected by the Commission, who admittedly were over

age. The recruitment rules in question and the advertisement had not

empowered the Commission to grant any relaxation in age limit.

Despite that the Commission, while recommending the names, issued a

corrigendum and made a reference for ex-post-facto approval for such

relaxation. In addition to this, the Chairman and Members of the

Commission appears to have exercised influence over its subordinates

to push through above noticed selections under all circumstances. It is

useful to notice that out of the four selected candidates, three were over

age but still were selected for that post. PW29, Smt. Chandra Kanta

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Gupta, who was Dealing Assistant in the Commission, stated that in

order to prepare and issue corrigendum to increase the age limit, in the

post of Environmental Engineer, she was called to the office by the PA

to the Chairman on a Saturday, which was a holiday. Such corrigendum

was issued despite the fact that there was no Government approval for

the same. Similar statement was also made by PW12, Lal Chand

Sharma who was Officer on Special Duty in the Commission. This may

not be the specific charge with which we are concerned but these are

relevant attendant circumstances which need to be noticed for

examining the genuineness of the reply filed by the private respondents

before the Court.

PW1, Patram Singh, Superintendent of Police, State Vigilance

Bureau had sworn an affidavit that he along with Deputy Superintendent

of Police, in furtherance of the order of the Court, not only issued

notices but also visited the office of the Commission with a request to

furnish the records but no records were provided to them. This witness

also produced, along with his affidavit, number of documents including

compilation of results for the year 2001 to 2004. As per the statement

of this witness, the marks of several candidates were either reduced or

increased, without specifying any reason, much less as a genuine

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necessity. Where such changes have been made there were no initials

in some cases while in others, the initials were in different ink and even

by different persons. The marks had been considerably varied and the

persons who had got higher marks in the written examination were

given very low marks in the interview and vice-versa. This obviously

disturbed the inter se merit of the candidates. During the course of

hearing we had asked for the production of the original answer sheets of

the candidates, which were produced. In the paper of Public

Administration, the candidate with Sr. No. 1631 was originally awarded

84 marks in the paper for attempting five questions. The marks of this

candidate thereafter had been scored out in a different ink and were

reduced to 68. This candidate had got 16 marks for writing an answer

to question No.7. The figure of 16 marks was scored out and instead

the candidate was given ‘0’ mark for the same. We have perused the

answer to this question. Compared with answers given by other

candidates, who have been awarded 16 or even more marks, the

answer cannot be termed in any way inferior to the answer of the other

candidates. Thus there appears to be no justification, whatsoever, for

awarding 0 mark in place of 16 marks, which were originally awarded.

Similarly, in the same paper a candidate with Sr. No. 1732 was original

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awarded, in all, 95 marks which were reduced to 84 by re-awarding

marks in the answers to three different questions. Neither the figure of

84 in the tabulated statement for awarding marks nor any of the reduced

marks in three questions are initialed by any examiner or appropriate

authority. In Haryana Judicial Service Examination the candidate

having Sr. No. 0150 had originally been awarded 58 marks which were

reduced to 48 without any revaluation of the answer sheet. A note was

written at the back of the first page of the answer sheet to say, “he has

used English language while writing essay which is against the

instruction as such Commission may kindly decide the penalty”. In a

most arbitrary manner 10 marks from the total marks were reduced. It

was expected that some responsible person in the Commission and/or

Examiner should have revaluated the answer-sheets to assess the

penalty for partial use of some English words in the essay, particularly,

when in all the remaining questions the candidate had not used any

English word, as is apparent from the answer sheet. These are some

of the circumstances which clearly show that if complete records were

produced in time before the investigating agencies/the State

Government, that would have exposed the malfeasances and

misdemeanours committed by the private respondents.

105

We may also notice that the investigating agencies have received

the reports of the forensic experts under Section 293 of the Code of

Criminal Procedure confirming that there are interpolations,

manipulations and alterations in the answer sheets at various places.

Interestingly, the candidates who had scored very high marks in

the written examination were awarded low marks in interview while the

candidates who had not faired so well in the written examination were

awarded very high marks in the interview. Ms. Mona Pruthi and Ms.

Sonia Narang are the candidates who got 544 and 537 marks,

respectively, in the written examination but were awarded 30 and 37

marks in the interview. In contrast to this Mr. Vatsal Vashisht, who got

507 marks in the written examination was awarded 92 marks in the

interview. Ms. Mona Pruthi and Ms.Sonia Narang, both were declared

unsuccessful in the Haryana Civil Services (Executive Branch) and

Allied Services Examination held by the Commission. But later Ms.

Mona Pruthi topped the IAS examination while Ms. Sonia Narang was

selected for IPS. This is certainly an indication of the arbitrary

standards adopted by the private respondents in the selection process

and the fact that the candidates were not dealt with equal hand and

uniform yardstick.

106

When all these facts are examined in their correct perspective, it

is obvious that withholding of record and non cooperative attitude

adopted by the then Chairman/Members of the Commission, were not

for bona fide reasons and, much less, to protect the constitutional

stature of the Commission. On the contrary, the image of the

Commission has been lowered in the eyes of the public and the rule of

fairness and merit has been substantially ignored in processes of

selection for different posts. It is true, and as argued on behalf of the

private respondents, that there is no direct evidence before us to show

that these manipulations have actually been carried out by the private

respondents but it is equally true that they, being the Chairman and

Members of the Commission, were duty bound to exercise proper

administrative control to ensure judicious and fair selection and prevent

any act of commission or omission which would diminish public

confidence in the functioning of the constitutional body. The claim of

privilege for non-production of documents lacks bona fide and was,

primarily, intended to withhold the records from the Investigating

Agencies to cover up the above misdeeds, irregularities and illegalities.

Another pertinent document, which has been placed on record of

this Court, is the report prepared by the counsel appearing in the case,

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under the interim order of the Court passed on 14th January, 2008 in

Civil Writ Petition No.15390 of 2002 in the case of Karan Singh Dalal &

Ors. vs. State of Haryana & Ors.. In this Writ Petition, the selection of

the candidates to the Haryana (Executive and Allied) Services was

challenged by the unsuccessful candidates on different grounds

including favouritism, discrimination and manipulations in results etc.

The relevant part of the said order reads as under :

“All these ten persons, whose names have been given above who got lesser marks in written examination had been awarded more than 80% marks in the interview, whereas the 13 persons named above, who had secured more marks in written examination were given 20-30% marks in the oral examination.

How the marks in oral test were given to bring some of the candidates who secured lesser marks in written examination over those who had secured more marks in the written examination, is a question which needs attention of this Court.

In view of the facts narrated above, we direct the total inspection of all the Roll numbers indicated above be allowed to the counsel for the State as well as to the petitioner. …,”

In furtherance to this order, the counsel had prepared inspection

the inspection reports dated 1st February, 2008 and 15th February, 2008

108

and submitted the same to the High Court. In addition to pointing out

the discrepancies, cuttings and manipulations done in the marking of

the answer sheets, other irregularities were also pointed out. It was

stated that some close relatives of then Chief Minister, former

Chairman, Dr. K.C. Bangar and daughter of the DGP, M.S. Mallik were

selected with disregard to merit. The most important aspect, which

would clearly depict the defect in the process of selection, was that the

candidates who took the competitive examination were given clear

instructions that no candidate was to disclose his identity in any form;

writing of serial number of script or putting any type of mark etc. would

amount to use of unfair means and the candidates could be penalized

even by cancelling the paper. Contrary to these instructions, it was

reported to the Court that Anjana Malik (Roll No.81083) and Pramod

Kumar (Roll No.9172) had disclosed their identity by writing their names

or depicting particular signs on their answer sheets. Pramod Kumar

had used a symbol of ‘Om’ at the top of page No.1, 3 and 5 of General

Knowledge paper and, thus, violated the instructions. The record of the

judicial proceedings, which has been produced before this Court with

affidavit or even without affidavit, has not caused any prejudice to the

private respondents. First, they had full opportunity of defending

109

themselves in the inquiry and second, they were parties in the

proceedings before the High Court. The production of records, along

with affidavit including the statements recorded by the Investigating

Officer under Section 161 of the Criminal Procedure Code, can be taken

note of in this inquiry. Of course, reference to these proceedings is

limited to the purpose of examining the veracity of the evidence

produced by the State in support of approved articles of charge other

than charges 6 and 7 which are beyond the scope of Presidential

Reference. We, certainly, are not expressing any view whether, on the

basis of these statements, private respondents are even prima facie

guilty of any offence in relation to those two charges.

It is clear from the record that the private respondents chose to

lead no evidence during the inquiry before this Court. It was expected

of the respondents to render some explanation in their defence in

respect of the allegations stated in the Presidential Reference and/or in

the charge-sheet approved by this Court. It is not that we are drawing

any adverse inference against the respondents for not leading evidence

during the enquiry but certainly it is a relevant consideration. The

factors, which could have been explained, were that who were

responsible and in what manner with regard to alleged attitude of non-

110

cooperation, manipulations and interpolations made in various

examinations, the reason for recommending Pradeep Sangwan for

appointment to the post of Drug Inspector despite complaints as well as

recommending overage candidates without any power or authority to

relax age restrictions. Detailed affidavits were filed by different

witnesses on behalf of the State Government but the private

respondents opted not to file even their own affidavits as evidence to

refute or rebut these allegations and contents of the evidence adduced

on behalf of the State. Obviously, this Court, vide order dated 22nd April,

2009 granted liberty to the Chairman and Members of the Commission

to rebut the evidence led against them. For reasons best known to

them, they maintained silence in this behalf. No effort was made by the

private respondents to demonstrate before this Court as to what steps

were taken by them, if at all, to find out the persons responsible for such

irregularities, misdeeds and what steps they had taken during their long

tenure as Chairman/Members of the Commission to remedy these

wrongs. The replies filed on behalf of these respondents have vaguely

denied the articles and have attempted to justify the acts of omissions

and commissions on the ground that they were in bona fide exercise of

111

power vested in them as Chairman and Members of the Commission.

Such explanation ex facie is unsatisfactory.

The above narrated instances clearly show that the expected

standards of performance and functions have clearly been infringed by

the private respondents. Objectivity has been the victim in the process

of selection as a result of the callous attitude adopted by the private

respondents. In view of the settled position of law, where instances of

non-disclosure of likelihood of the child of a Member appearing for the

civil services examination and a Member slapping the Chairperson of

the Commission have been considered as misbehaviour within the

meaning of Article 317 (1), then certainly, the present case discloses

misbehaviour of graver nature.

On a holistic view of the matter, it is apparent that irregularities

and acts of irresponsibility committed by the private respondents

delineate their misbehaviour in terms of Article 317(1) of the

Constitution as it certainly lowers the dignity of the Commission. The

burden of proof applicable to such cases is not that required under the

criminal jurisprudence, i.e., to prove the charge ‘beyond any reasonable

doubt’. Where the facts supported by record point a finger at the

Chairman/Member of the Commission with some certainty, it may

112

amount to misbehaviour in the given facts and circumstances of a case.

Rule of ‘reasonable preponderance of probabilities’ would be the right

standard to be applied to such cases. The Court is not called upon to

record finding of guilt as if in a criminal case. The charge has to be

construed in a liberal manner so as to ensure completion of inquiry in

terms of Article 317(1) of the Constitution while keeping in mind the

constitutional stature of the office. The private respondents were

certainly in a position to prevent most of the events which have occurred

in the present case and have tarnished the image of the Commission.

In our view the maxim Qui non prohibit quod prohibere potest facere

videtur would alter the equities against the private respondents. As

stated In Re Ram Ashray Yadav (supra), absolute integrity and

impartiality is required to be exercised by the Chairman and Members of

the Commission to maintain the dignity of their office. The Commission

has been entrusted with the task of selecting candidates to various

posts under the Government and, therefore, the function of the

Commission is of great importance. Most appropriately the words of

Shri H.V. Kamath, Member of the Constituent Assembly, can be

referred at this stage: “Whenever democratic institutions exist,

experience has shown that it is essential to protect the public service as

113

far as possible from political and personal influences and to give it that

position, stability and security which is vital to its successful working as

an impartial and efficient instrument by which the Government, of

whatever political complexion, may give effect to their policies.” These

were the expectations of the framers of the Constitution from the

Chairman and Members of the Commission.

We have dealt with all the above points in issue together for the

purposes of convenience and to maintain continuity. We have no doubt

in coming to the conclusion that the Chairman and Members of the

Commission (private respondents herein) adopted a non-cooperative

attitude and declined to furnish relevant records to the concerned

authorities/investigating agencies. Furthermore, passing of resolutions

and resistance despite directions/observations of the Court to comply

with the notices issued by the investigating agencies to furnish records

are acts which lack bona fides. The claim of privilege was sought to be

invoked as a ploy to prevent production of records, which would have

exposed the irregularities, illegalities and manipulations in the process

of selection. In the name of the constitutional authority, the Chairman

and Members of the Commission certainly violated the expected

standards of behaviour. They not only adopted a non-cooperative

114

attitude but also unduly delayed completion of the inquiry/investigations

which, in fact, are stated to be pending at different stages even to this

day.

In light of the above discussion now we may state our conclusions

laconically and unambiguously as follows:

1. We hold that the State has failed to prove, even on the rule of

reasonable preponderance of probabilities, Charge 1 of the

articles of charge by leading any cogent evidence or on any

legal principles.

2. We further hold that Charges 6 and 7 of the approved articles of

charge is beyond the scope of Presidential Reference dated

31st July, 2008. Therefore, they are not required to be

examined by us in the present inquiry.

3. Upon holding inquiry, in accordance with the procedure

prescribed, we return the finding that private respondents, namely,

Shri Mehar Singh Saini, Mrs. Santosh Singh and Shri Ram Kumar

Kashyap, who are Chairman/Members of the Commission

(presently under suspension) have failed to maintain the required

standards of integrity and rectitude in performance of their

115

constitutional duties, expected to be maintained by the holder of

such coveted office. Hence approved articles of charge 2 to 5, 8

and 9 stand established. As such, the private respondents are

guilty of misbehaviour on these counts.

Thus, there exist justifiable grounds for removal of the private

respondents from their respective offices in terms of Article 317 (1) of

the Constitution.

Resultantly, the Reference, made by the President of India to

this Court, is answered in the affirmative to the above extent.

Lastly, we make it clear that any observation made, findings

recorded and conclusions arrived at, would in no way affect any

proceedings or investigation pending before the Court of competent

jurisdiction or agency, as the case may be. Subject matter of those

proceedings shall be taken to its logical end in accordance with law

without being influenced by the present judgment. None of the issues

raised therein would be deemed to have been directly or indirectly

decided by this judgment. All the parties concerned are free to raise all

contentions and objections, which are available to them in law, in those

Courts/fora.

116

The Presidential Reference dated 31st July, 2008 is answered

accordingly in the above terms. This should be transmitted to the

President of India forthwith.

….…...............................CJI. [S.H. KAPADIA]

………................................J. [ K.S. RADHAKRISHNAN]

………................................J. [ SWATANTER KUMAR]

New Delhi November 12, 2010

117

IN RE.. Vs MEHAR SINGH SAINI,CHAIRMAN HPSC & ORS.

IN RE.. Vs MEHAR SINGH SAINI,CHAIRMAN HPSC & ORS.

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