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Reportable

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 7640 OF 2011

State of Punjab                                                  …     Appellant

Versus

Salil Sabhlok & Ors.                                         … Respondents

WITH

CIVIL APPEAL NO. 2685 OF 2012,

CIVIL APPEAL NO. 3687 OF 2012

AND

CIVIL APPEAL NOs.   1365-1367  OF 2013 (Arising out of S.L.P. (CIVIL) NOs. 22010-22012 OF 2011)

J U D G M E N T

A. K. PATNAIK, J.

Leave granted in S.L.P. (C) Nos. 22010-22012 of 2011.

2. In these appeals against the judgment and orders of the Punjab  

and Haryana High Court, a very important question of law arises for our  

decision: whether the High Court in exercise of its writ jurisdiction under

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Article  226  of  the  Constitution  can  lay  down the  procedure  for  the  

selection and appointment of the Chairman of the State Public Service  

Commission and quash his appointment in appropriate cases.

Facts:

3. The  relevant  facts  very  briefly  are  that  by  notification  dated  

07.07.2011,  the  State  Government  of  Punjab  appointed  Mr.  Harish  

Dhanda as the Chairman of the Punjab Public Service Commission.  On  

10.07.2011, the respondent No.1 who was an Advocate practicing at the  

Punjab  and  Haryana  High  Court,  Chandigarh,  filed  a  public  interest  

litigation under Article 226 of the Constitution (Writ Petition No.11846 of  

2011) praying for a mandamus directing the State Government to frame  

regulations governing the conditions of service and appointment of the  

Chairman  and/or  the  Members  of  the  Public  Service  Commission  as  

envisaged in Article 318 of the Constitution of India.  The respondent  

No.1 also prayed for a direction restraining the State Government from  

appointing  Mr.  Harish  Dhanda as  the  Chairman  of  the  Punjab  Public  

Service Commission in view of the fact that his appointment does not  

fall within the parameters of integrity, impartiality and independence as  

reiterated time and again by this Court.

4. The Division Bench of the High Court, after hearing the learned  

counsel  for  the  writ  petitioner  and  the  learned  Additional  Advocate

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General for the State of Punjab, passed an order on 13.07.2011 holding  

that even though Article 316 of the Constitution does not prescribe any  

particular procedure for appointment of Chairman of the Public Service  

Commission,  having  regard  to  the  purpose  and  nature  of  the  

appointment, it cannot be assumed that the power of appointment need  

not be regulated by any procedure.  Relying on the judgments of this  

Court  in  the case of  In  R/O Dr. Ram Ashray Yadav,  Chairman,  Bihar   

Public Service Commission [(2000) 4 SCC 309],  Ram Kumar Kashyap  

and another vs. Union of India and another (AIR 2010 SC 1151) and In re  

Mehar Singh Singh Saini, Chairman, HPSC and others  [(2010) 13 SCC  

586], the Division Bench held that it is not disputed that the persons to  

be  appointed  as  Chairman  and  Members  of  the  Public  Service  

Commission must have competence and integrity.  The Division Bench  

of the High Court further held that a question, therefore, arises as to  

how such persons are to be identified and selected for appointment as  

Chairman of the Public Service Commission and whether, in the present  

case, the procedure adopted was valid and if not, the effect thereof.  

The Division Bench further observed that these questions need to be  

considered by a Bench of three Judges and referred the matter to the  

Bench of three Judges of the High Court.

5. Pursuant to the order dated 13.07.2011 of the Division Bench, the

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Chief Justice of the High Court constituted a Full Bench.  On 19.07.2011,  

the Full  Bench of the High Court  passed an order  calling for  certain  

information from the State Government of Punjab and the Punjab Public  

Service  Commission  on  the  number  of  posts  filled  up  by  the  Public  

Service Commission in the last five years, the number of posts taken out  

from the purview of the Public Service Commission in the last five years  

and  regulations,  if  any,  framed  by  the  State  Government.   On  

01.08.2011,  the  Full  Bench  of  the  High  Court  also  passed  orders  

requiring the Union of India to furnish information on three questions:  

(1)  Whether  there  were  any  criteria  or  guidelines  to  empanel  a  

candidate for consideration for appointment as a Member of the Union  

India Public Service Commission; (2) Which authority or officer prepares  

such panel; and (3) What methodology is kept in view by the authority  

while preparing the panel.  

6. Aggrieved by the order dated 13.07.2011 of the Division Bench of  

the High Court and the orders dated 19.07.2011 and 01.08.2011 of the  

Full Bench of the High Court, the State of Punjab filed Special  Leave  

Petitions  (C)  Nos.22010-22012  of  2011  before  this  Court.   On  

05.08.2011,  this  Court,  while  issuing   notice  in  the  Special  Leave  

Petitions,  made it  clear  that  issuance of notice in  the  Special  Leave  

Petitions will not come in the way of the High Court deciding the matter

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and the State of Punjab is at liberty to urge all contentions before the  

High Court.  Accordingly, the Full Bench of the High Court heard the  

matters on 08.08.2011 and directed the Chief Secretary of the State of  

Punjab to remain present at 2.00 P.M. along with the relevant files which  

contain the advice of the Chief Minister to the Government.  The Chief  

Secretary of the State of Punjab produced the original files containing  

the advice of the Chief Minister to the Governor of Punjab and after  

seeing the original files, the Full Bench of the High Court returned the  

same and reserved the matter for judgment.  

7. Thereafter,  the  Full  Bench  of  the  High  Court  delivered  the  

judgment and order dated 17.08.2011 directing that till such time a fair,  

rational, objective and transparent policy to meet the mandate of Article  

14 is made, both the State of Haryana and the State of Punjab shall   

follow the procedure detailed hereunder as part of the decision-making  

process for appointment as Members and Chairman of the Public Service  

Commission:-

1.  There  shall  be  Search  Committee  constituted  under  the  Chairmanship  of  the  Chief  Secretary  of  the  respective  State  Governments.

2.  The  Search  Committee  shall  consist  of  at  least  three  members.   One  of  the  members  shall  be  serving  Principal  Secretary i.e. not below the rank of Financial Commissioner and  the third member can be serving or retired Bureaucrat not below  the rank of Financial  Commissioner, or member of the Armed

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Forces not below the rank of Brigadier or of equivalent rank.

3.  The Search  Committee  shall  consider  all  the  names which  came to its notice or are forwarded by any person or by any  aspirant.  The Search Committee shall prepare panel of suitable  candidates equal to the three times the number of vacancies.

4. While preparation of the panel, it shall be specifically elicited  about  the  pendency  of  any  court  litigation,  civil  or  criminal,  conviction or otherwise in a criminal court or civil court decree or  any other proceedings that may have a bearing on the integrity  and character of the candidates.    5.  Such  panel  prepared  by  the  Search  Committee  shall  be  considered by a High Powered Committee consisting of Hon’ble  Chief Minister, Speaker of Assembly and Leader of Opposition.

6. It is thereafter, the recommendation shall be placed with all  relevant materials with relative merits of the candidates for the  approval of the Hon’ble Governor after completing the procedure  before such approval.

7. The proceedings of the Search Committee shall be conducted  keeping  in  view the  principles  laid  down in  Centre  for  Public  Interest Litigation’s case (supra).    

By the order dated 17.08.2011, the Full Bench of the High Court also  

ordered that the writ petition be listed before the Division Bench to be  

constituted by the Chief Justice of the High Court.

8. Pursuant to the judgment dated 17.08.2011, the Division Bench  

constituted  by  the  Chief  Justice  of  the  High  Court  quashed  the  

appointment  of Mr.  Harish  Dhanda as  Chairman of the  Punjab  Public  

Service Commission and disposed of the writ petition of respondent No.1  

in terms of the judgment  of the Full  Bench.  Aggrieved,  the State of

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Punjab, State of Haryana and Mr. H.R. Dhanda have filed these appeals  

against the judgment and orders dated 17.08.2011 of the Full Bench and  

the Division Bench of the High Court.

Contentions of the learned counsel for the parties:

9. Mr.  P.P.  Rao,  learned  senior  counsel  for  the  State  of  Punjab,  

submitted that  the writ  petition before the High Court  was a  service  

matter  and could not have been entertained by the High Court  as a  

Public Interest Litigation at the instance of the writ petitioner.  He cited  

the decisions of this Court in R.K. Jain v. Union of India & Ors. [(1993) 4  

SCC 119],  Dr. Duryodhan Sahu & Ors. v. Jitendra Kumar Mishra & Ors.  

[(1998) 7 SCC 273], Dattaraj Nathuji Thaware v. State of Maharashtra &  

Ors. [(2005) 1 SCC 590],  Ashok Kumar Pandey v. State of West Bengal  

[(2004)  3  SCC 349],  Hari  Bansh Lal  v.  Sahodar  Prasad Mahto & Ors.  

[(2010) 9 SCC 655] and Girjesh Mr.vastava & Ors. v. State of M.P. & Ors.  

[(2010)  10 SCC 707]  for  the  proposition that  a  dispute  relating  to  a  

service matter cannot be entertained as a Public Interest Litigation.   

10. Mr. Rao next submitted that the Division Bench has recorded a  

clear finding in its order dated 13.07.2011 that the allegations regarding  

irregularities  and  illegalities  against  Mr.  Harish  Dhanda  in  the  writ  

petition do not stand substantiated and there was, therefore, absolutely  

no need for the Division Bench of the High Court to make an academic

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reference to the Full Bench of the High Court.  He next submitted that  

this Court in the case of Mehar Singh Saini Chairman, HPSC In Re (supra)  

had already declared the law that it is for the legislature to frame the  

guidelines or parameters regarding the experience,  qualifications and  

stature  for  appointment  as  Chairman/Members  of  the  Public  Service  

Commission and this law declared by this Court was binding on all Courts  

in India and hence, there was no necessity whatsoever for the Division  

Bench to make a reference to a Full Bench on the very same questions of  

law.

11. Mr. Rao submitted that this Court has held in Kesho Nath Khurana  

v. Union of India & Ors. [(1981) Supp.1 SCC 38] that a Court to which a  

reference is made cannot adjudicate upon an issue which is not referred  

to it  and yet the Full  Bench of the High Court in this case has gone  

beyond the order of reference passed by the Division Bench and held  

that until a fair, rational, objective and transparent policy to meet the  

mandate of Article 14 of the Constitution is laid down, the procedure laid  

down by the Full  Bench must be followed and has also declared the  

appointment of Mr. Harish Dhanda as Chairman of the Public Service  

Commission to be invalid.  He also relied on the Punjab High Court Rules  

to argue that the Full Bench can be constituted only for answering the  

questions referred to it  by the Division Bench of the High Court.  He  

vehemently argued that these provisions of the Rules of the Punjab High

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Court have been violated and the judgment of the Full Bench of the High  

Court is clearly without jurisdiction.  He next submitted that the direction  

given by the Full Bench in its order dated 01.08.2011 to produce the file  

containing the advice tendered by the Chief Minister to the Governor is  

clearly  unconstitutional  and  ultra  vires of  Article  163(3)  of  the  

Constitution and relied  on the  decision of  this  Court  in  The State  of  

Punjab v. Sodhi Sukhdev Singh [(1961) 2 SCR 371] on this point.

12. Mr. Rao next submitted that Article 316 of the Constitution has left  

it to the discretion of the State Government to select and appoint the  

Chairman  and  Members  of  a  Public  Service  Commission  and  having  

regard to the doctrine of separation of powers which is part of the basic  

structure  of  the  Constitution,  the  High  Court  cannot  direct  the  

Government  to  exercise  its  discretion  by  following  a  procedure  

prescribed  by  the  High  Court.   He  cited  Supreme  Court  Employees  

Welfare Association v. Union of India & Anr. [(1989) 4 SCC 187], Suresh  

Seth v. Commissioner of Indore Municipal Corporation [(2005) 13 SCC  

287],  Divisional Manager, Aravali  Golf Club & Anr. v. Chander Hass &   

Anr. [(2008) 1 SCC 683] and Asif Hameed & Ors. v. State of J & K & Ors.  

[(1989) 2 Supp. SCC 364] in support of the aforesaid submission.  He  

submitted that the appointments to the constitutional offices, like the  

Attorney  General,  Advocate  General,  Comptroller  &  Auditor  General,

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Chief Election Commissioner, Chairman and Members of the Union Public  

Service Commission and appointments to the topmost Executive posts,  

like the Chief Secretary or Director General of Police, has to be made  

within the discretion of the Government inasmuch as persons in whom  

the Government has confidence are appointed to the posts.  He relied on  

E.P. Royappa v. State of Tamil Nadu & Anr. [(1974) 4 SCC 3] and State of  

West Bengal & Ors. v. Manas Kumar Chakraborty & Ors. [(2003) 2 SCC  

604] for this proposition.   

13. Mr. Rao argued that in the absence of clear violation of statutory  

provisions and regulations laying down the procedure for appointment,  

the High Court has no jurisdiction even to issue a writ of quo warranto.  

In support of this argument, he relied on the decision of this Court in B.  

Srinivasa Reddy v.  Karnataka  Urban Water  Supply & Drainage Board   

Employees Association & Ors. [(2006) 11 SCC 731].  He submitted that  

this a fit case in which the order of the Division Bench dated 13.07.2011  

and the interim orders as well as the judgment of the Full Bench dated  

17.08.2011 and the final order of the Division Bench dated 17.08.2011 of  

the High Court quashing the appointment of Mr. Harish Dhanda as well  

as consequential orders passed by the Government implementing the  

impugned judgment and order provisionally should be set aside by this  

Court.

14. Mr. U.U. Lalit, learned senior counsel appearing for the respondent

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No.1 who had filed the writ petition before the High Court, referred to the  

proclamation by the  Queen in  Council  on 1st November,  1858 to the  

Princes,  Chiefs  and the  People of India  to  show that  in  the  civil  and  

military  services  of  the  East  India  Company  persons  with  education,  

ability and integrity were to be recruited.  He also referred to the report  

on the Public Service Commission, 1886-87 wherein the object of Public  

Service Commission was broadly stated to be to devise a scheme which  

may reasonably be hoped to possess the necessary elements of finality,  

and to do full justice to the claims of natives of India to higher and more  

extensive employment in  the public  service.  He also referred to the  

report of the Royal Commission on the superior services in India dated  

27.03.1924 and in particular Chapter IV thereof on “The Public Service  

Commission” in which it is stated that wherever democratic institutions  

exist, experience has shown that to secure an efficient civil service it is  

essential to protect it from political or personal influences and to give it  

that  position of  stability  and security  which is  vital  to  its  successful  

working as the impartial and efficient instrument by which Governments,  

of whatever political complexion, may give effect to their policies and for  

this  reason Public  Service  Commission should  be  detached  so far  as  

practicable  from  all  political  associations.   He  also  referred  to  the  

speeches of Dr.  B.R. Ambedkar,  Mr. Jaspat Roy Kapoor, Pandit Hirday  

Nath Kunzru and Mr. H.V. Kamath in the Constitutional Assembly and

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argued that to perform this difficult job of finding the best talent for the  

State  Public  Services  without  any  political  influence  and  other  

extraneous considerations the Public Service Commission must have a  

Chairman of great ability, independence and integrity.   

15.    Mr. Lalit further submitted that this Court has also in a number  

of pronouncements emphasized on the need to appoint eminent persons  

possessing a high degree of competence and integrity as Chairman and  

Members of the Public Service Commission so as to inspire confidence in  

the public mind about the objectivity and impartiality of the selection to  

be made by the Public Service Commission.  In this context he referred  

to the judgments of this Court in Ashok Kumar Yadav & Ors. v. State of  

Haryana  &  Ors. [(1985)  4  SCC  417],  in  R/O  Dr.  Ram Ashray  Yadav,  

Chairman,  Bihar  Public  Service  Commission [(2000)  4  SCC  309],  

Inderpreet  Singh  Kahlon  and  Others v.  State  of  Punjab  and  Others  

[(2006) 11 SCC 356] and Mehar Singh Saini, Chairman, Haryana Public   

Service Commission and others In Re (supra).

16. Mr. Lalit  submitted that  Mr. Harish Dhanda may be eligible for  

appointment  as  Chairman  of  the  Public  Service  Commission  but  

eligibility is not enough to be the Chairman of the State Public Service  

Commission.  He submitted that the person who is eligible must also  

have some positive qualities such as experience, ability, character and

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integrity for being appointed as the Chairman of the State Public Service  

Commission.  He submitted that it is not only the personal integrity of  

the candidate who is to be appointed but also the integrity of the Pubic  

Service Commission as  an  institution which has to be borne in  mind  

while making the appointment.  He referred to the decisions of this Court  

in  Centre for PIL and Another v.  Union of India and Another [(2011) 4  

SCC 1] in which a distinction has been made between personal integrity  

of a candidate appointed as the Central Vigilance Commissioner and the  

integrity of the Central Vigilance Commission as an institution and it has  

been  held  that  while  recommending  a  name  of  the  candidate  for  

appointment as Central Vigilance Commissioner, the question that one  

has to ask is whether the candidate recommended to function as the  

Central  Vigilance Commissioner would be competent  to function as a  

Central  Vigilance  Commissioner.   He  submitted  that  in  the  aforesaid  

case,  this  Court  has  also  held  that  there  was  a  difference  between  

judicial review and merit review and has further held that the Courts,  

while exercising the power of judicial review, are not concerned with the  

final  decision  of  the  Government  taken  on  merit  but  are  entitled  to  

consider the integrity of the decision-making process.  

17. Mr.  Lalit  submitted  that  the  writ  petitioner  challenged  the  

decision-making process of the Government in selecting and appointing  

Mr. Harish Dhanda as Chairman of the Public Service Commission on the

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ground that  it  was not an informed process of decision-making in  as  

much  as  the  State  Government  has  not  collected  information  and  

materials  on  whether  Mr.  Dhanda  had  the  experience,  ability  and  

character  for  being  appointed as  the Chairman  of the  Public  Service  

Commission.   He  submitted  that  as  a  matter  of  fact  the  State  

Government  was also not even informed of the fact  that  the Central  

Administrative  Tribunal,  Chandigarh  Bench,  in  its  order  dated  

15.11.2007 in O.A. No.495/PB/2007 had adversely commented on the  

conduct of Mr. Harish Dhanda. He explained that in the aforesaid O.A.,  

Mr.  Amit  Misra,  who belonged  to  the  Indian  Forest  Service  and  was  

posted as Divisional Forest Officer, Ropar in Punjab, had alleged that he  

had been transferred out of Ropar and posted as Division Forest Officer,  

Ferozpur, because of an incident which had occurred on 21.06.2007 on  

account of which he incurred the displeasure of Mr. Harish Dhanda, who  

was  then  the  Chief  Parliamentary  Secretary,  Department  of  Local  

Government, Punjab.  He alleged that Mr. Dhanda had been given the  

permission  to  stay  at  the  Van  Chetna  Kendra/Forest  Rest  House  at  

Pallanpur, District Ropar, for a few days, but later on he wanted to make  

the Forest Rest House as his permanent residence to which Mr. Amit  

Misra objected as the same was not permitted under the Rules and Mr.  

Amit Misra had directed the official incharge of the Rest House not to  

allow anybody to use the Rest House without getting permission and

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accordingly when Mr. Dhanda wanted the keys of the Rest House on  

22.06.2007 he was not given the keys of the Rest House and Mr. Dhanda  

recorded a note addressed to the Principal Chief Conservator of Forests  

narrating the entire incident and ensured that Mr. Amit Misra was posted  

out  of Ropar  by an order  of transfer  dated 31.07.2007.  The Central  

Administrative Tribunal, Chandigarh Bench, called for the official noting  

which led to the passing of the transfer  order  dated 31.07.2007 and  

recorded the finding that even though the Government decided not to  

allow the use of the Rest House as a permanent residence of the Chief  

Parliamentary  Secretary,  yet  Mr.  Amit  Misra,  being  a  junior  officer,  

became the victim of the annoyance of Mr. Harish Dhanda and with his  

political  influence,  the  Forest  Minister  initiated  the  proposal  for  his  

transfer from Ropar, which was approved by the Chief Minister.  Mr. Lalit  

submitted  that  this  adverse  finding  of  the  Central  Administrative  

Tribunal  in  a  proceeding,  in  which  Mr.  Harish  Dhanda  was  also  a  

respondent,  was  not  brought  to  the  notice  of  the  State  Government  

when it took the decision to select and appoint Mr. Harish Dhanda as the  

Chairman of the Public Service Commission.  

18. In reply to the submission of Mr. Rao that the Full Bench had no  

jurisdiction to expand the scope of the reference and should have limited  

itself to the questions referred to by the Division Bench by the order  

dated 13.07.2011, Mr. Lalit submitted that the order dated 13.07.2011 of

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the Division Bench of the High Court would show that the entire case  

was referred to the Full Bench and, therefore, the Full Bench passed the  

order dated 17.08.2011 on all relevant aspects of the case.  He cited the  

decision of this Court in Kerala State Science & Technology Museum v.   

Rambal Co. & Ors. [2006) 6 SCC 258] to argue that a reference can also  

be made of the entire case to a larger Bench and in such a case, the  

larger  Bench has to decide the entire  case and its jurisdiction is  not  

limited to specific issues.  He also referred to the Rules of the Punjab  

High Court to show that the Full Bench of the High Court can also be  

constituted to decide the entire case in important matters.

19. On the jurisdiction of the High Court to issue a writ for quashing  

the appointment of a Chairman of the Public Service Commission, Mr.  

Lalit  cited the decision in  Dwarka Nath v. Income-tax Officer, Special   

Circle, D Ward, Kanpur & Anr. [AIR 1966 SC 81] in which a three-Judge  

Bench  of  this  Court  has  held  that  Article  226  of  the  Constitution  is  

couched  in  comprehensive  phraseology  and  it  ex  facie confers  wide  

power on the High Court to reach injustice wherever it  is found.  He  

submitted that in this decision this Court has also explained that the  

High Court under Article 226 of the Constitution can issue writs in the  

nature of prerogative writs as understood in England and can also issue  

other  directions,  orders  or  writs.   He  vehemently  submitted  that  the  

contention on behalf  of the appellants that  the High Court  could not

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have issued a writ/order quashing the selection and appointment of Mr.  

Harish Dhanda is, therefore, not correct.

20. Mr. Lalit finally submitted that pursuant to the impugned orders of  

the Full  Bench and the Division Bench of the High Court, the Search  

Committee  was  constituted  by  the  Government  for  selection  of  the  

Chairman  of  the  Punjab  Public  Service  Commission  and  the  Search  

Committee  invited  the  names  of  eminent  persons  of  impeccable  

integrity, caliber and administrative experience from all walks of life, to  

be  considered for  the  post  of  the  Chairman of  Punjab  Public  Service  

Commission and thereafter the High Power Committee selected Lt. Gen.  

R.A. Sujlana (Retd.) who has been appointed by the State Government  

as the Chairman of the Punjab Public Service Commission in December,  

2011 and he has been functioning as such since then.   He submitted  

that the appointment of Lt. Gen. R.A. Sujlana is also not subject to orders  

passed by this Court and the news reports indicate that Lt. Gen. R.A.  

Sujlana has been an upright officer of the Indian Army and has wide  

administrative experience.  He submitted that this is not a fit case in  

which this Court should interfere with the appointment of Lt. Gen. R.A.  

Sujlana as the Chairman of the Punjab Public Service Commission even if  

this Court finds infirmities in the impugned orders passed by the Full  

Bench and the Division Bench of the High Court.  

21. Learned counsel for Mr. Harish Dhanda, adopted the arguments of

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Mr.  P.P.  Rao  and  also  submitted  that  the  order  of  the  Central  

Administrative Tribunal in O.A. No.495/PB/2007 was filed before the Full  

Bench  of  the  High  Court  on  01.08.2011  which  was  the  last  date  of  

hearing.  He submitted that Mr. Harish Dhanda, therefore, did not have  

any opportunity to reply before the Full  Bench on the findings in the  

order of the Central Administrative Tribunal.   

22. Mr.  P.N.  Misra,  learned  counsel  appearing  for  the  State  of  

Haryana, adopted the arguments of Mr. P.P. Rao and further submitted  

that the Full Bench should not have added the State of Haryana as a  

party.  He also submitted that the Full Bench should not have issued the  

directions in its order dated 17.08.2011 to the State of Haryana to adopt  

the same procedure for selection and appointment of the Chairman and  

Members of the Haryana Public Service Commission when the State of  

Haryana had nothing to do with the appointment of Mr. Harish Dhanda  

as Chairman of the Punjab Public Service Commission.   

Findings of the Court:  

23. The first question that I have to decide is whether the High Court  

was right in entertaining the writ petition as a public interest litigation at  

the instance of the respondent No.1.  I have perused the writ petition  

CWP No.11846 of 2011, which was filed before the High Court by the  

respondent No.1, and I find that in the first paragraph of the writ petition  

the respondent No.1 has stated that he was a public spirited person and

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that he had filed the writ petition for espousing the public interest and  

for the betterment of citizens of the State of Punjab.  In the writ petition,  

the respondent No.1 has relied on the provisions of Articles 315, 316,  

317,  318,  319 and 320 of  the  Constitution relating  to  Public  Service  

Commissions  to  contend  that  the  functions  of  the  Public  Service  

Commission are sensitive and important and it is very essential that a  

person,  who  is  appointed  as  the  Chairman  of  the  Public  Service  

Commission,  must  possess  outstanding  and  high  degree  educational  

qualifications and a great amount of experience in the field of selection,  

administration and recruitment and he must also be a man of integrity  

and impartiality.  The respondent No.1 has alleged in the writ petition  

that  the  State  Government  has  not  laid  down  any  qualification  for  

appointment  to  the  post  of  Chairman  of  the  Punjab  Public  Service  

Commission  and  is  continuing  to  appoint  persons  to  the  post  of  

Chairman  of  Public  Service  Commission  on  the  basis  of  political  

affiliation.  In the writ petition, the respondent No.1 has also given the  

example  of  Mr.  Ravi  Pal  Singh  Sidhu,  who  was  appointed  as  the  

Chairman,  Punjab Public  Service Commission on the basis  of political  

affiliation and the result was that during his period as the Chairman of  

the  Punjab  Public  Service  Commission,  several  cases  of  undeserving  

candidates  being  selected  and  appointed  to  the  Public  Service  

Commission in the State of Punjab came to light and investigations were

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carried out leading to filing of various criminal cases against the officials  

of the Public Service Commission as well Mr. Sidhu.  The respondent No.1  

has further stated in the writ petition that he has filed the writ petition  

after  he  read  a  news  report  titled:  “MLA  Dhanda  to  be  new  PPSC  

Chairperson”.  He has stated in the writ petition that Mr. Harish Dhanda  

was an Advocate at Ludhiana before he ventured into politics and had  

unsuccessfully  contested  the  Vidhan  Sabha  election  before  he  was  

elected as MLA on the Shiromani Akali Dal ticket and that he had close  

political affiliation and affinity with high ups of the ruling party and that  

the  ruling  party  in  the  State  of  Punjab  has  cleared  his  name  for  

appointment as the Chairman of the Punjab Public Service Commission  

shortly.  The respondent No.1 has also alleged in the writ petition various  

irregularities and illegalities committed by Mr. Harish Dhanda.  He has  

further stated in the writ  petition that his colleague has even sent a  

representation  to  the  Governor  of  Punjab  and  the  Chief  Minister  of  

Punjab against the proposed appointment of Mr. Harish Dhanda.  He has  

accordingly prayed in the writ petition for a mandamus to the State of  

Punjab  to  frame  regulations  governing  the  conditions  of  service  and  

appointment of the Chairman and Members of the Punjab Public Service  

Commission  and  for  an  order  restraining  the  State  of  Punjab  from  

appointing Mr. Harish Dhanda as Chairman of the Punjab Public Service  

Commission.   On  a  reading  of  the  entire  writ  petition  filed  by  the

Page 21

respondent  No.1  before  the  High  Court,  I  have  no  doubt  that  the  

respondent No.1 has filed this writ petition for espousing the cause of  

the general public of the State of Punjab with a view to ensure that a  

person  appointed  as  the  Chairman  of  the  Punjab  Public  Service  

Commission is a man of ability and integrity so that recruitment to public  

services in the State of Punjab are from the best available talents and  

are fair and is not influenced by politics and extraneous considerations.  

Considering the averments in the writ petition, I cannot hold that the writ  

petition is just a service matter in which only the aggrieved party has the  

locus to initiate a legal action in the court of law.  The writ petition is a  

matter affecting interest of the general pubic in the State of Punjab and  

any member of the public could espouse the cause of the general public  

so long as his bonafides are not in doubt.  Therefore, I do not accept the  

submission of Mr.  P.P.  Rao,  learned senior  counsel  appearing  for  the  

State of Punjab, that the writ petition was a service matter and the High  

Court was not right in entertaining the writ petition as a Public Interest  

Litigation at the instance of the respondent No.1.  The decisions cited by  

Mr. Rao were in cases where this Court found that the nature of the  

matter before the Court was essentially a service matter and this Court  

accordingly held that in such service matters, the aggrieved party and  

not any third party can only initiate a legal action.

24. The next question that I have to decide is whether the Division

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Bench of the High Court,  after  having recorded a finding in its  order  

dated  13.07.2011 that  the  allegations  of  irregularities  and illegalities  

against  Mr.  Harish  Dhanda  in  the  writ  petition  do  not  stand  

substantiated,  should  have  made  an  academic  reference  to  the  Full  

Bench of the High Court.  As I have noticed, the respondent No.1 had, in  

the writ petition, relied on the constitutional provisions in Articles 315,  

316,  317,  318,  319  and  320  of  the  Constitution  to  plead  that  the  

functions  of  the  Public  Service  Commissions were  of  a  sensitive  and  

critical nature and hence the Chairman of the Public Service Commission  

must  possess  outstanding  and  high  educational  qualifications  and  a  

great amount of experience in the field of selection, administration and  

recruitment.   The  respondent  No.1  has  further  pleaded  in  the  writ  

petition that the State Government had on an earlier occasion made an  

appointment of a Chairman of the Punjab Public Service Commission on  

the basis  of political  affiliation and this  has resulted in  selection and  

appointment  of  undeserving  persons to  public  service  for  extraneous  

considerations.  Though respondent No.1 had alleged in the writ petition  

some irregularities and illegalities on the part of Mr. Harish Dhanda, who  

was  proposed  to  be  appointed  as  Chairman  of  the  Public  Service  

Commission by the State Government, the writ petition was not founded  

only  on  such  irregularities  and  illegalities  alleged  against  Mr.  Harish  

Dhanda.  In addition, the respondent No.1 had also alleged in the writ

Page 23

petition that  Mr.  Harish Dhanda was politically affiliated to the ruling  

party and was not selected for appointment as Chairman of the Public  

Service  Commission  on  the  basis  of  his  qualifications,  experience  or  

ability which are necessary for the post of the Chairman of the Public  

Service Commission.  Thus, even if the Division Bench had recorded a  

finding  in  the  order  dated  13.07.2011  that  the  irregularities  and  

illegalities pointed out in the writ petition against Mr. Harish Dhanda do  

not stand substantiated, the writ petition could not be disposed of with  

the said finding only.  The Division Bench of the High Court, therefore,  

thought it  necessary to make a reference to the Full  Bench and has  

given its reasons for the reference to the Full Bench in Paragraphs 6 and  

7 of its order dated 13.07.2011, which are quoted hereinbelow:

“6. Even though, Article 316 of the Constitution does not  prescribe  any particular  procedure,  having  regard  to the  purpose and nature of appointment, it cannot be assumed  that power of appointment need not be regulated by any  procedure.  It  is undisputed that person to be appointed  must have competence and integrity.  Reference may be  made to judgments of the Hon’ble Supreme Court in In R/o  Dr.  Ram  Ashray  Yadav,  Chairman,  Bihar  Public  Service  Commission (2000) 4 SCC 309, Ram Kumar Kashyap and  another v. Union of India and another, AIR 2010 SC 1151  and in re v. Mehar Singh Saini, Chairman, HPSC and others  (2010) 13 SCC 586 : (2010) 6 SLR 717.  

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

Page 24

Accordingly, we refer the matter to a Bench of three  Hon’ble Judges.”

25.    It will be clear from the Paragraphs 6 and 7 of the order dated  

13.07.2011  quoted  above  that  the  Division  Bench  of  the  High  Court  

found  that  Article  316  of  the  Constitution,  which  provides  for  

appointment of the Chairman and other Members of the Public Service  

Commission  by  the  Governor,  does  not  prescribe  any  particular  

procedure and took the view that,  having regard to the purpose and  

nature of appointment, it cannot be assumed that power of appointment  

need not be regulated by any procedure.  The Division Bench of the High  

Court was of the further view that the persons to be appointed must  

have  competence  and  integrity,  but  how  such  persons  are  to  be  

identified and selected must be considered by a Bench of three Judges  

and accordingly referred the matter to the three Judges.  The Division  

Bench also referred the question to the larger Bench of three Judges as  

to whether the procedure adopted in the present case for appointing Mr.  

Harish Dhanda as the Chairman of the Punjab Public Service Commission  

was valid and if not, what is the effect of not following the procedure.  I  

do not, therefore, find any merit in the submission of Mr. Rao that the  

Division  Bench  of  the  High  Court  having  found  in  its  order  dated  

13.07.2011 that the irregularities and illegalities pointed out in the writ  

petition against Mr. Harish Dhanda are unsubstantiated, should not have

Page 25

made an academic reference to the larger Bench of the High Court.

26.   I may now consider the submission of Mr. Rao that this Court in the  

case of  Mehar Singh Saini, Chairman, HPSC In Re (supra) had already  

declared  the  law that  it  is  for  Parliament  to  frame the guidelines  or  

parameters  regarding  the  qualifications,  experience  or  stature  for  

appointment  as Chairman/Members  of the Public  Service Commission  

and  hence  it  was  not  necessary  for  the  Division  Bench  to  make  a  

reference to a Full Bench on the very same question of law. In  Mehar  

Singh Saini Chairman, HPSC In Re (supra), this Court noticed that the  

provisions  of  Article  316  of  the  Constitution  do  not  lay  down  any  

qualification,  educational  or  otherwise,  for  appointment  to  the  

Commission  as  Chairman  and  Members  and  made  the  following  

observations in Para 85 of the judgment as reported in the SCC:

“Desirability, if any, of providing specific qualification or  experience  for  appointment  as  Chairman/members  of  the  Commission  is  a  function  of  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  Government  concerned  to  make  appointments  to  the  Commission on merit,  ability  and  integrity.  Neither  is  such  expertise  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. Of course, while

Page 26

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  quarters  concerned in the Governments. One of the factors, which  has  persuaded  us  to  make  this  observation,  is  the  number of cases which have been referred to this Court  by the President of India in terms of Article 317(1) of the  Constitution in recent years. A large number of inquiries  are pending before this Court which itself reflects that all  is not well with the functioning of the Commissions.”

The observations of this Court in the aforesaid case of Mehar Singh Saini   

Chairman, HPSC In Re (supra) relate to qualification and experience for  

appointment as Chairman/Members of the Commission and have nothing  

to do with the questions relating to the procedure for identifying persons  

of integrity and competence to be appointed as Chairman of the Public  

Service Commission, which were referred by the Division Bench of the  

High Court to the Full Bench by the order dated 13.07.2011.  Mr. Rao is,  

therefore, not right in his submission that in view of the law declared by  

this Court in Mehar Singh Saini, Chairman, HPSC In Re (supra), there was  

no necessity  for  the  Division Bench  to  make  a  reference  to  the  Full  

Bench by the order dated 13.07.2011.

27.      I may next deal with the contention of Mr. Rao that the Full Bench  

exceeded  its  jurisdiction  by  enlarging  the  scope  of  reference  and  

deciding  matters  which  were  not  referred  to  it  by  the  order  dated  

13.07.2011 of the Division Bench.  Rule 4 of the Punjab High Court Rules  

reads as follows:

Page 27

“Save as provided by law or by these rules or by special  order  of the Chief  Justice,  all  cases shall  be heard and  disposed of by a Bench of two Judges.”   

I have perused Rules 6, 7, 8 and 9 of the Punjab High Court Rules which  

relate  to  Full  Bench  and  I  do  not  find  therein  any  provision  which  

provides what matters a Full Bench comprising three Judges of the High  

Court will decide.  Hence, the Division Bench of the High Court has the  

jurisdiction to decide a case, unless otherwise provided by law or by a  

special order of the Chief Justice and the jurisdiction of a Full Bench to  

decide matters will flow either from the order of the Chief Justice of the  

High  Court  or  from the  order  of  the  Division  Bench  which  makes  a  

reference to the Full Bench.  In the present case, there is no order of the  

Chief Justice making a reference but only the order dated 13.07.2011 of  

the Division Bench of the High Court  making a  reference to the Full  

Bench of three Judges of the High Court.  Thus, I have to look at the  

order dated 13.07.2011 of the Division Bench to find out whether the  

Division  Bench  referred  only  specific  questions  to  the  Full  Bench  as  

contended by Mr. Rao or referred the entire case to the Full Bench as  

contended by Mr. Lalit.

28.     On a close scrutiny of Paragraphs 6 and 7 of the order dated  

13.07.2011 of the Division Bench of the High Court which are extracted  

above, I find that the Division Bench of the High Court has referred only

Page 28

specific questions to the Full Bench: how persons of competence and  

integrity are to be identified and selected for appointment as Chairman  

of the Public Service Commission and if the procedure adopted for such  

appointment in the present case was not valid, the effect thereof.  The  

Division Bench of the High Court has made it clear in Para 7 of its order  

dated  13.07.2001 that  “these  questions need  to be  considered by a  

Bench of three Hon’ble Judges”.  I, therefore, do not agree with Mr. Lalit  

that the Division Bench referred the entire case to the Full Bench by the  

order  dated  13.07.2011.    I  further  find  that  although  the  aforesaid  

specific  questions relating to the procedure for identifying persons of  

competence and integrity for appointment as the Chairman of the Public  

Service Commission only were referred by the Division Bench of the High  

Court,  the  Full  Bench,  instead  of  deciding  these  specific  questions  

referred to it, has given directions to the State of Punjab and the State of  

Haryana to follow a particular procedure for appointment of Members  

and Chairman of the Public  Service Commission till  such time a  fair,  

rational, objective and transparent policy to meet the mandate of Article  

14 of the Constitution is made.  I, therefore, agree with Mr. Rao that the  

Full Bench of the High Court has decided issues which were not referred  

to it by the Division Bench of the High Court and the judgment dated  

17.08.2011 of the Full Bench of the High Court was without jurisdiction.

Page 29

29.       I  may next  consider  the  contention of  Mr.  Rao that  as  the  

Constitution has  left  it  to  the  discretion of  the  State  Government  to  

select  and  appoint  the  Chairman  and  Members  of  a  State  Public  

Commission, the High Court cannot direct the Government to exercise  

its discretion by following a procedure prescribed by the High Court.  Mr.  

Rao has relied on Article 316 of the Constitution and the decision of this  

Court in Mohinder Singh Gill & Anr. v. The Chief Election Commissioner,   

New Delhi & Ors. [(1978) 1 SCC 405].  Article 316 of the Constitution of  

India is quoted hereinbelow:

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

(1) The Chairman and other members of a Public Service  Commission shall  be appointed, in the case of the Union  Commission or a Joint Commission, by the President, and in  the case of a  State Commission, by the Governor of the  State:  

Provided that as nearly as may be one-half of the members  of every Public Service Commission shall be persons who at  the dates of their respective appointments have held office  for at least ten years either under the Government of India  or under the Government of a State, and in computing the  said  period  of  ten  years  any  period  before  the  commencement of this Constitution during which a person  has  held  office  under  the  Crown  in  India  or  under  the  Government of an Indian State shall be included.  

(1A)  If  the  office  of  the  Chairman  of  the  Commission  becomes vacant or if any such Chairman is by reason of  absence  or  for  any  other  reason  unable  to  perform the  duties of his office, those duties shall, until some persons  appointed under clause (1) to the vacant office has entered  on the  duties  thereof  or,  as  the  case  may  be,  until  the  Chairman has resumed his duties, be performed by such

Page 30

one  of  the  other  members  of  the  Commission  as  the  President, in the case of the Union Commission or a Joint  Commission, and the Governor of the State in the case of a  State in the case of a State Commission, may appoint for  the purpose.

(2)  A member  of a  Public  Service Commission shall  hold  office for a term of six years from the date on which he  enters upon his office or until he attains, in the case of the  Union Commission, the age of sixty-five years, and in the  case of a State Commission or a Joint Commission, the age  of sixty-two years, whichever is earlier:  

Provided that -  

(a)  a member of a Public Service Commission   may, by  writing under his hand addressed, in the case of the  Union  Commission  or  a  Joint  Commission,  to  the  President, and in the case of a State Commission, to the  Governor of the State, resign his office;  

(b)   a  member  of  a  Public  Service  Commission  may  be  removed  from  his  office  in  the  manner  provided  in  clause (1) or clause (3) of Article 317.

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

A reading of Article 316 of the Constitution would show that it confers  

power on the Governor of the State to appoint the Chairman and other  

Members of a Public Service Commission.       It has been held by this  

Court in Mohinder Singh Gill & Anr. v. The Chief Election Commissioner,   

New Delhi & Ors. (supra) that an authority has implied powers to make  

available and carry into effect powers expressly conferred on it. Thus,  

under Article 316 of the Constitution, the Governor of a State has not

Page 31

only the express power of appointing the Chairman and other Members  

of Public Service Commission but also the implied powers to lay down  

the procedure for appointment of Chairman and Members of the Public  

Service Commission  and the High Court cannot under Article 226 of the  

Constitution usurp this constitutional power of the Government and lay  

down  the  procedure  for  appointment  of  the  Chairman  and  other  

Members of the Public Service Commission.  The Full Bench of the High  

Court,  therefore,  could  not  have  laid  down  the  procedure  for  

appointment of the Chairman and Members of the Punjab Public Service  

Commission  and  the  Haryana  Public  Service  Commission  by  the  

impugned judgment dated 17.08.2011.

30. Having  held  that  the  Full  Bench  of  the  High  Court  has  in  its  

judgment  dated  17.08.2011  acted  beyond  its  jurisdiction  and  has  

usurped the constitutional  power of the Governor in  laying down the  

procedure for appointment of the Chairman and Members of the Public  

Service Commission, I have to set aside the judgment dated 17.08.2011  

of the Full Bench of the High Court.  Thereafter, either of the two courses  

are open to me:  remand the matter to the High Court for disposal of the  

writ petition in accordance with law or decide the writ petition on merits.  

To cut short the litigation, I proceed to decide the writ petition on merits  

instead of remanding the matter to the High Court.  

Page 32

31. This Court has had the occasion to consider the qualities which a  

person should have for being appointed as Chairman and Member of  

Public Service Commission and has made observations after considering  

the nature of the functions entrusted to the Public Service Commissions  

under Article 320 of the Constitution.  In  Ashok Kumar Yadav & Ors. v.  

State  of  Haryana  &  Ors.  (supra),  a  Constitution  Bench  of  this  Court  

speaking through P.N. Bhagwati, J, observed:

“We  would  therefore  like  to  strongly  impress  upon  every State Government to take care to see that its  Public Service Commission is manned by competent,  honest and independent persons of outstanding ability  and high reputation who command the confidence of  the people and who would not allow themselves to be  deflected  by  any  extraneous  considerations  from  discharging their duty of making selections strictly on  merit.”

In  R/O  Dr.  Ram  Ashray  Yadav,  Chairman,  Bihar  Public  Service   

Commission (supra),  Dr.  A.S.  Anand,  C.J.  speaking  for  a  three  Judge  

Bench, cautioned:  

“The credibility of the institution of a  Public  Service  Commission is founded upon the faith of the common  man  in  its  proper  functioning.   The  faith  would  be  eroded and confidence destroyed if it appears that the  Chairman  or  the  members  of  the  Commission  act  subjectively and not objectively or that their actions  are suspect.  Society expects honesty, integrity and  complete objectivity from the Chairman and members  of the Commission.  The Commission must act fairly,  without any pressure or influence from any quarter,  unbiased and impartially, so that he society does not  lose  confidence  in  the  Commission.   The  high

Page 33

constitutional  trustees,  like  the  Chairman  and  members  of  the  Public  Service  Commission  must  forever  remain  vigilant  and  conscious  of  these  necessary adjuncts.”  

Despite  these  observations  of  this  Court,  the  State  Government  of  

Punjab  appointed  Mr.  Ravi  Pal  Singh  Sidhu  as  the  Chairman  of  the  

Punjab Public Service Commission between 1996 to 2002 and as has  

been noted in the judgment of S.B. Sinha, J. of this Court in Inderpreet  

Singh  Kahlon  and  Others v.  State  of  Punjab  and  Others (supra),  

allegations  were  made  against  him  that  he  got  a  large  number  of  

persons  appointed  on  extraneous  considerations  including  monetary  

consideration during the period 1998 to 2001 and raids were conducted  

in his house on more that one occasion and a large sum of money was  

recovered from his custody and his relatives and FIRs were lodged and  

criminal cases initiated by the Vigilance Bureau of the State of Punjab.  

Writing a separate judgment in the aforesaid case, Dalveer Bhandari, J,  

had to comment:

“This  unfortunate  episode  teaches  us  an  important  lesson  that  before  appointing  the  constitutional  authorities,  there  should  be  a  thorough  and  meticulous  inquiry  and  scrutiny  regarding  their  antecedents.  Integrity and merit have to be properly  considered and evaluated in the appointments to such  high positions.  It is an urgent need of the hour that in  such appointments absolute transparency is required  to be maintained and demonstrated.  The impact of  the  deeds  and  misdeeds  of  the  constitutional  authorities (who are highly placed), affect a very large

Page 34

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.”

Considering  this  experience  of  the  damage  to  recruitment  to  public  

services  caused  by  appointing  a  person  lacking  in  character  as  the  

Chairman of the Public Service Commission in the State of Punjab, when  

the respondent No.1 brought to the notice of the High Court through the  

writ petition that the State Government of Punjab proposed to appoint  

Mr. Harish Dhanda as the Chairman of the Public Service Commission,  

only because of his political affiliation, the Division Bench of the High  

Court rightly entertained the writ petition as a public interest litigation.  

The Division Bench of the High Court, however, found that no procedure  

for  appointment  of  Chairman  and  Members  of  the  Public  Service  

Commission has been laid down in Article 316 of the Constitution and  

therefore posed the question in Paragraphs 6 and 7 of its order dated  

13.07.2011  as  to  what  should  be  the  procedure  for  identifying  and  

selecting  persons  of  integrity  and  competence  for  appointment  of  

Chairman of the Public Service Commission and referred the question to  

a larger Bench of three Judges.  I have already held that it is for the  

Governor  who  is  the  appointing  authority  under  Article  316  of  the  

Constitution to lay down the procedure for appointment of the Chairman  

and Members of the Public Service Commission, but this is not to say

Page 35

that  in the absence of any procedure laid down by the Governor for  

appointment  of  Chairman  and  Members  of  the  Public  Service  

Commission under Article 316 of the Constitution, the State Government  

would have absolute discretion in selecting and appointing any person  

as the Chairman of the State Public Service Commission.  Even where a  

procedure has not been laid down by the Governor for appointment of  

Chairman  and  Members  of  the  Public  Service  Commission,  the  State  

Government has to select only persons with integrity and competence  

for appointment as Chairman of the Public Service Commission, because  

the discretion vested in the State Government under Article 316 of the  

Constitution is impliedly limited by the purposes for which the discretion  

is vested and the purposes are discernible from  the functions of the  

Public  Service  Commissions  enumerated  in  Article  320  of  the  

Constitution.  Under clause (1) of Article 320 of the Constitution, the  

State Public Service Commission has the duty to conduct examinations  

for appointments to the services of the State.  Under clause (3) of Article  

320, the State Public Service Commission has to be consulted by the  

State Government on matters relating to recruitment and appointment  

to the civil services and civil posts in the State, on disciplinary matters  

affecting a person serving under the Government of a State in a civil  

capacity, on claims by and in respect of a person who is serving under  

the State Government towards costs of defending a legal proceeding, on

Page 36

claims for award of pension in respect of injuries sustained by a person  

while serving under the State Government and other matters.  In such  

matters, the State Public Service Commission is expected to act with  

independence from the State  Government  and with  fairness,  besides  

competence and maturity acquired through knowledge and experience  

of public administration.   

32.   I, therefore, hold that even though Article 316 does not specify the  

aforesaid  qualities  of  the  Chairman  of  a  Public  Service  Commission,  

these qualities are amongst the implied relevant factors which have to  

be taken into consideration by the Government while determining the  

competency of the person to be selected and appointed as Chairman of  

the  Public  Service  Commission under  Article  316  of  the  Constitution.  

Accordingly, if these relevant factors are not taken into consideration by  

the State Government while selecting and appointing the Chairman of  

the  Public  Service Commission,  the  Court  can hold the selection and  

appointment as not in accordance with the Constitution.  To quote De  

Smith’s Judicial Review, Sixth Edition:  

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

If  the  relevant  factors  are  not  specified  (e.g.  if  the

Page 37

power  is  merely  to  grant  or  refuse  a  licence,  or  to  attach  such  conditions  as  the  competent  authority  thinks fit), it is for the courts to determine whether the  permissible  considerations  are  impliedly  restricted,  and, if so, to what extent (Page 282)”

In  M/s Hochtief Gammon v. State of Orissa and Others  (AIR 1975 SC  

2226), A. Alagiriswamy writing the judgment for a three Judge Bench of  

this Court explained this limitation on the power of the Executive in the  

following words:

“The Executive have to reach their decisions by taking  into account relevant considerations. They should not  refuse to consider relevant matter nor should take into  account wholly irrelevant or extraneous consideration.  They should not misdirect  themselves on a  point  of  law.  Only such a decision will be lawful. The Courts  have power to see that the Executive acts lawfully”.  

33.   Mr. Rao, however, relied on a decision of the Constitution Bench  

of this Court in  E.P. Royappa v. State of Tamil Nadu & Anr.  (supra) in  

which it was held that the post of Chief Secretary is a highly sensitive  

post and the Chief Secretary is a lynchpin in the administration and for  

smooth  functioning  of  the  administration,  there  should  be  complete  

rapport and understanding between the Chief Secretary and the Chief  

Minister and, therefore, it is only the person in whom the Chief Minister  

has complete confidence who can be appointed as Chief Secretary of the  

State and  hence the Chief Secretary of a State cannot be displaced  

from his  post  on the  ground that  his  appointment  was arbitrary and

Page 38

violative of Articles 14 and 16 of the Constitution.  Mr. Rao also relied on  

the decision of a two-Judge Bench of this Court in State of West Bengal &  

Ors. v. Manas Kumar Chakraborty & Ors. (supra) in which it was similarly  

observed that the post of DG and IG Police was a selection post and it is  

not  open  to  the  courts  to  sit  in  appeal  over  the  view taken  by  the  

appointing  authority  with  regard  to  the  choice  of  the  officer  to  be  

appointed as DG and IG Police and for such selection, the Government of  

the State must play a predominant role.  I am of the considered opinion  

that the Chairman of the Public Service Commission, who along with its  

other  members  has  to  perform  his  duties  under  Article  320  of  the  

Constitution with independence from the State Government cannot be  

equated  with  the  Chief  Secretary  or  the  DG and  IG  Police,  who are  

concerned  solely  with  the  administrative  functions and have to work  

under  the  State  Government.   To  ensure  this  independence  of  the  

Chairman and Members of the Public Service Commission, clause (3) of  

Article 316 of the Constitution provides that a person shall, on expiration  

of his term of office be ineligible for reappointment to that office.  

34. Mr. Rao has also relied on the decision of this Court in B. Srinivasa  

Reddy v. Karnataka Urban Water Supply & Drainage Board Employees   

Association & Ors. (supra) to argue that the High Court’s jurisdiction to  

issue  a  writ  of  quo  warranto is   limited  to  only  cases  where  the

Page 39

appointment  to  an  office  is  contrary  to  the  statutory rules.   He  also  

distinguished the decision of this Court in Centre for PIL and Another v.  

Union of India and Another (supra) cited by Mr. Lalit and submitted that  

in that case the Court had found that the appointment of the Central  

Vigilance Commissioner was in contravention of the statutory provisions  

of the Central Vigilance Commission Act, 2003 and for this reason, this  

Court quashed the appointment of the Central Vigilance Commissioner.  I  

have already held that besides express restrictions in a statute or the  

Constitution,  there  can  be  implied  restrictions  in  a  statute  and  the  

Constitution and the statutory or the constitutional authority cannot in  

breach  of  such  implied  restrictions  exercise  its  discretionary  power.  

Moreover,  Article 226 of the Constitution vests in  the High Court  the  

power to issue to any person or authority, including in appropriate cases,  

any  Government,  within  those  territories  directions,  orders  or  writs,  

including writs in the nature of  habeas corpus, mandamus, prohibition,  

quo warranto and certiorari, or any of them, for the enforcement of any  

of the rights conferred by Part III and for any other purpose.  The power  

of  the  High  Court  under  Article  226  of  the  Constitution  is,  thus,  not  

confined to only writ of  quo warranto but to other directions, orders or  

writs.   In  Dwarka Nath v.  Income-tax Officer,  Special  Circle,  D Ward,   

Kanpur & Anr. (supra), K. Subba Rao, J. speaking for a three-Judge Bench,  

has explained the wide scope of the powers of the High Court under

Page 40

Article 226 of the Constitution thus:

“This article is couched in comprehensive phraseology and it  ex facie confers a wide power on the High Courts to reach  injustice wherever  it  is  found.  The Constitution designedly  used a wide language in describing the nature of the power,  the purpose for which and the person or authority against  whom it can be exercised. It can issue writs in the nature of  prerogative writs as understood in England; but the scope of  those  writs  also  is  widened  by  the  use  of  the  expression  “nature”, for the said expression does not equate the writs  that can be issued in India with those in England, but only  draws an analogy from them. That apart, High Courts can  also  issue  directions,  orders  or  writs  other  than  the  prerogative writs. It  enables the High Courts to mould the  reliefs to meet the peculiar and complicated requirements of  this country. Any attempt to equate the scope of the power  of the High Court under Article 226 of the Constitution with  that  of the  English Courts  to  issue prerogative writs  is  to  introduce  the  unnecessary  procedural  restrictions  grown  over the years in a comparatively small country like England  with  a  unitary  form of  government  to  a  vast  country  like  India  functioning  under  a  federal  structure.  Such  a  construction defeats the purpose of the article itself. To say  this is not to say that the High Courts can function arbitrarily  under this Article. Some limitations are implicit in the article  and  others  may  be  evolved  to  direct  the  article  through  defined channels. This interpretation has been accepted by  this Court in T.C. Basappa v. Nagappa, 1955-1 SCR 250: (AIR  1954 SC 440) and Irani v. State of Madras, 1962 (2) SCR 169:  (AIR 1961 SC 1731).”  

Therefore, I hold that the High Court should not normally, in exercise of  

its  power  under  Article  226  of  the  Constitution,  interfere  with  the  

discretion  of  the  State  Government  in  selecting  and  appointing  the  

Chairman of the State Public Service Commission, but in an exceptional  

case if it is shown that relevant factors implied from the very nature of

Page 41

the duties entrusted to Public Service Commissions under Article 320 of  

the Constitution have not been considered by the State Government in  

selecting  and  appointing  the  Chairman  of  the  State  Public  Service  

Commission,  the  High  Court  can  invoke  its  wide  and  extra-ordinary  

powers under Article 226 of the Constitution and quash the selection and  

appointment to ensure that the discretion of the State Government is  

exercised within the bounds of the Constitution.  

35.  Coming now to the  facts  of  the  present  case,  I  find that  the  

Division  Bench  of  the  High  Court  in  its  order  dated  13.07.2011  has  

already held that the irregularities and illegalities alleged against Mr.  

Harish Dhanda have not been substantiated.  I must, however, enquire  

whether  the  State  Government  took  into  consideration  the  relevant  

factors relating to his competency to act as the Chairman of the State  

Public  Service  Commission.   We  had,  therefore,  passed  orders  on  

01.08.2012 calling upon the State of Punjab to produce before us the  

material referred to in para 69 of the judgment of the Full Bench of the  

High Court on the basis of which Mr. Harish Dhanda was selected for  

appointment  as  Chairman  of  the  Punjab  Public  Service  Commission.  

Pursuant  to  the  order  dated  01.08.2012,  the  State  Government  has  

produced the files in which the selection and appointment of Mr. Harish  

Dhanda was processed by the State Government.  At page 26 of the file

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on the subject “Appointment of Chairman of P.P.S.C. – Mr. S.K. Sinha,   

IAS, Mr. Harish Rai Dhanda”, I find that a bio-data in one sheet has been  

placed at page 41 of the file, which reads as under:

“BIO DATA

Harish Rai Dhanda S/o Sh. Kulbhushan Rai

Resident: The Retreat, Ferozepur Road, Ludhiana  

Date of Birth: 15th May, 1960

Attained  Bachelor  in  Arts  from  SCD  Government  College, Ludhiana, Punjab University, (1979).

Attained Bachelor in Laws from Law College, Punjab  University (1982).

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

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

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

Besides the aforesaid bio-data, there is a certificate dated 06.07.2011  

given by the Speaker, Punjab Vidhan Sabha, certifying that Mr. Harish  

Rai Dhanda, MLA, has resigned from the membership of the 13th Punjab  

Legislative  Assembly  with  effect  from  06.07.2011  and  that  his  

resignation has been accepted by the Speaker.  The aforesaid materials  

indicate that  Mr.  Harish Dhanda had B.A. and LL.B Degrees and was  

practicing as an Advocate at the District  Courts in Ludhiana and had

Page 43

been elected as the President of the District Bar Association, Ludhiana  

for  seven  terms  and  has  been  member  of  the  Legislative  Assembly.  

These  materials  do  not  indicate  that  Mr.  Harish  Dhanda  had  any  

knowledge  or  experience  whatsoever  either  in  administration  or  in  

recruitment nor do these materials indicate that Mr. Harish Dhanda had  

the qualities to perform the duties as the Chairman of the State Public  

Service Commission under Article 320 of the Constitution which I have  

discussed in this judgment.  No other information through affidavit has  

also been placed on record before us to show that Mr. Harish Dhanda  

has  the  positive  qualities  to  perform the  duties  of  the  office  of  the  

Chairman of the State Pubic Service Commission under Article 320 of the  

Constitution.   The  decision  of  the  State  Government  to  appoint  Mr.  

Harish Dhanda as the Chairman of the Punjab Public Service Commission  

was thus invalid for non-consideration of relevant factors implied from  

the  very  nature  of  the  duties  entrusted  to  the  Public  Service  

Commissions under Article 320 of the Constitution.  

36.   In the result, I am not inclined to interfere with the impugned  

order of the Division Bench of the High Court dated 17.08.2011 quashing  

the selection and appointment of Mr. Harish Dhanda as Chairman of the  

Punjab Public Service Commission, but I set aside the judgment dated  

17.08.2011 of the Full Bench of the High Court.  Considering, however,

Page 44

the fact that the State Government of Punjab has already selected and  

appointed Lt. Gen. R.A. Sujlana as the Chairman of the Punjab Public  

Service Commission, I am not inclined to disturb his appointment only on  

the  ground that  his  appointment  was consequential  to  the  judgment  

dated 17.08.2011 of the Full Bench of the High Court which I have set  

aside.  The appeal of the State of Punjab is partly allowed and the appeal  

of the State of Haryana is allowed, but the appeal of Mr. Harish Dhanda  

is dismissed.  The parties to bear their own costs.

.……………………….J.                                                             (A. K. Patnaik)

New Delhi, February 15, 2013.

Page 45

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 7640 OF 2011

State of Punjab ...     Appellant  Versus

Salil Sabhlok & Ors. ... Respondents WITH

CIVIL APPEAL NO. 2685 OF 2012,  CIVIL APPEAL NO. 3687 OF 2012

AND CIVIL APPEAL NOs.  1365-1367  OF 2013

[Arising out of SLP (Civil) Nos. 22010-22012 OF 2011]

J U D G M E N T Madan B. Lokur, J.

1. While  I  entirely  agree  with  Brother  Patnaik,  but  given  the  

seminal importance of the issues raised, I think it appropriate  

to separately express my views in the case.  

2. The facts have been stated in detail by Brother Patnaik and it  

is not necessary to repeat them.  

The issues:

3. The primary substantive issue that arises for consideration is  

whether the High Court could have – and if it  could have,  

whether it ought to have - interfered in the appointment, by a  Page 45 of 103

C.A. No. 7640 of 2011

Page 46

notification  published  on  7th July  2011,  of  Mr.  Harish  Rai  

Dhanda  as  Chairperson  of  the  Punjab  Public  Service  

Commission.  In  my  opinion,  the  answer  to  both  questions  

must be in the affirmative.  

4. However, it must be clarified that even though a notification  

was issued of his appointment, Mr. Dhanda did not actually  

assume  office  or  occupy  the  post  of  Chairperson  of  the  

Punjab Public Service Commission. Before he could do so, his  

appointment was challenged by Salil Sabhlok through a writ  

petition being Writ Petition (Civil) No.11848 of 2011 filed in  

the Punjab & Haryana High Court. When the writ petition was  

taken up for consideration, a Division Bench of the High Court  

observed  in  its  order  of  13th  July  2011  that  his  “oath  

ceremony” was fixed for the same day but learned counsel  

appearing for the State of Punjab stated that the ceremony  

would be deferred till the writ petition is decided. Thereafter,  

the statement  was sought to be withdrawn on 1st  August  

2011. However, the Full Bench of the High Court, which had  

heard the matter in considerable detail, passed an order on  

that day retraining administering of the oath of office to Mr.  

Dhanda.  As  such,  Mr.  Dhanda  did  not  take  the  oath  of  

Page 46 of 103 C.A. No. 7640 of 2011

Page 47

allegiance, of office and of secrecy as the Chairperson of the  

Punjab  Public  Service  Commission.  Later,  since  his  

appointment was quashed by the High Court, the question of  

his taking the oaths as above did not arise.

5. Another  substantive  issue  raised  is  whether  the  High  

Court could have entertained a Public Interest Writ Petition in  

respect of a “service matter”, namely, the appointment of Mr.  

Harish Rai Dhanda as Chairperson of the Punjab Public Service  

Commission. In my opinion, the appointment of the Chairperson  

of  the  Punjab  Public  Service  Commission  is  not  a  “service  

matter”  and  so  a  Public  Interest  Litigation  could  have  been  

entertained by the High Court.  

6. A  few  procedural  issues  have  also  arisen  for  

consideration and they relate to the desirability of making a  

reference by the Division Bench to the Full Bench of the High  

Court  of issues said  to have been settled  by this  Court;  the  

framing of questions by the Full Bench of the High Court, over  

and  above  the  questions  referred  to  it;  the  necessity  of  

impleadment of the State of Haryana in the proceedings before  

the  Full  Bench,  even  though  it  had  no  concern  with  the  

appointment  of the  Chairperson of the Punjab Public  Service  

Page 47 of 103 C.A. No. 7640 of 2011

Page 48

Commission; the validity of the direction given by the Full Bench  

to produce the advice tendered by the  Chief  Minister  of the  

State of Punjab to the Governor of the State in respect of the  

appointment  of the  Chairperson of the Punjab Public  Service  

Commission; the power of the Full Bench to frame guidelines for  

the appointment of the Chairperson of the Punjab Public Service  

Commission and of the Haryana Public Service Commission and  

a few other incidental issues.  

Public  Interest  Writ  Petition  in  respect  of  a  “service  matter”:

7. At  the  outset,  it  is  important  to  appreciate  that  the  

Chairperson  of  a  Public  Service  Commission  holds  a  

constitutional position and not a statutory post. The significance  

of this is that the eligibility parameters or selection indicators  

for  appointment  to  a  statutory  post  are  quite  different  and  

distinct from the parameters and indicators for appointment to  

a constitutional position.

8. The  appointment  of  a  Chairperson  of  a  State  Public  

Service  Commission  is  in  terms  of  Article  316  of  the  

Constitution, which reads as follows:

“316. Appointment and term of office of members.— (1) The Chairman and other members of a Public Service  Commission shall be appointed, in the case of the Union  

Page 48 of 103 C.A. No. 7640 of 2011

Page 49

Commission or a Joint Commission, by the President, and  in the case of a State Commission, by the Governor of the  State:

Provided that  as  nearly  as  may be one-half  of  the  members of every Public Service Commission shall be  persons  who  at  the  dates  of  their  respective  appointments have held office for at least ten years  either under the Government of India or under the  Government  of a  State,  and in  computing the said  period  of  ten  years  any  period  before  the  commencement  of this  Constitution during which a  person has held office under the Crown in India or  under  the  Government  of  an  Indian  State  shall  be  included.

(1-A)  If  the  office  of  the  Chairman  of  the  Commission  becomes vacant or if any such Chairman is by reason of  absence or  for  any other  reason unable  to  perform the  duties of his office, those duties shall, until some person  appointed  under  clause  (1)  to  the  vacant  office  has  entered on the duties thereof or, as the case may be, until  the Chairman has resumed his  duties,  be performed by  such one of the other members of the Commission as the  President, in the case of the Union Commission or a Joint  Commission, and the Governor of the State in the case of a  State Commission, may appoint for the purpose.

(2) A member of a Public Service Commission shall  hold  office for a term of six years from the date on which he  enters upon his office or until he attains, in the case of the  Union Commission, the age of sixty-five years, and in the  case of a State Commission or a Joint Commission, the age  of sixty-two years, whichever is earlier:

Provided that— (a) a member of a Public Service Commission may, by  writing under his hand addressed, in the case of the  Union  Commission  or  a  Joint  Commission,  to  the  President, and in the case of a State Commission, to  the Governor of the State, resign his office; (b) a member of a Public Service Commission may be  removed from his office in  the manner  provided in  

Page 49 of 103 C.A. No. 7640 of 2011

Page 50

clause (1) or clause (3) of Article 317.

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

9. Two features  clearly stand out  from a bare reading of  

Article  316  of  the  Constitution,  and  these  are:  (1)  No  

qualification  has  been  laid  down for  the  appointment  of  the  

Chairperson of a State Public Service Commission. Theoretically  

therefore, the Chief Minister of a State can recommend to the  

Governor of a State to appoint any person walking on the street  

as the Chairperson of the State Public Service Commission. (2)  

The  Chairperson  of  the  State  Public  Service  Commission  is  

provided security of tenure since the term of office is fixed at  

six years or until the age of 62 years, whichever is earlier.

10. The security of tenure is confirmed by the provision for  

removal  of  the  Chairperson  of  the  State  Public  Service  

Commission from office as  provided for  in  Article  317 of the  

Constitution. This reads as follows:

“317.  Removal  and  suspension  of  a  member  of  a  Public  Service  Commission.—(1)  Subject  to  the  provisions  of  clause  (3),  the  Chairman  or  any  other  member  of  a  Public  Service  Commission  shall  only  be  removed from his office by order of the President on the  ground  of  misbehaviour  after  the  Supreme  Court,  on  reference  being  made  to  it  by  the  President,  has,  on  

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inquiry held in accordance with the procedure prescribed  in  that  behalf  under  Article  145,  reported  that  the  Chairman  or  such  other  member,  as  the  case  may  be,  ought on any such ground to be removed.

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

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

(a) is adjudged an insolvent; or (b)  engages  during  his  term  of  office  in  any  paid  employment outside the duties of his office; or (c) is, in the opinion of the President, unfit to continue in  office by reason of infirmity of mind or body.

(4)  If  the  Chairman  or  any  other  member  of  a  Public  Service Commission is or becomes in any way concerned  or interested in any contract or agreement made by or on  behalf of the Government of India or the Government of a  State or participates in any way in the profit thereof or in  any  benefit  or  emolument  arising  therefrom  otherwise  than as a member and in common with the other members  of an incorporated company, he shall, for the purposes of  clause (1), be deemed to be guilty of misbehaviour.”

11. An  aspect  that  clearly  stands  out  from  a  reading  of  

Article 317 is that the Chairperson of the State Public Service  

Commission  can  be  removed  from  office  on  the  ground  of  

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misbehaviour only after an inquiry is held by this Court on a  

reference made by the President and that inquiry results in a  

report that he or she ought to be removed on such ground. The  

Governor  of  the  State  is  not  empowered  to  remove  the  

Chairperson  of  the  State  Public  Service  Commission  even  

though  he  or  she  is  the  appointing  authority.  There  are,  of  

course,  other  grounds  mentioned  in  Article  317  of  the  

Constitution  but  none  of  them  are  of  any  concern  for  the  

purposes of this case.

12. A  reading  of  Article  316  and  Article  317  of  the  

Constitution makes it clear that to prevent the person walking  

on the  street  from being  appointed  as  the  Chairperson of  a  

State Public Service Commission, the Constitution has provided  

that the appointment is required to be made by the Governor of  

the State, on advice. Additionally, the Chairperson has security  

of tenure to the extent that that person cannot be effortlessly  

removed from office even by the President as long as he or she  

is not guilty of proven misbehaviour, or is insolvent, or does not  

take up any employment  or is  not  bodily or  mentally infirm.  

There  is,  therefore,  an  in-built  constitutional  check  on  the  

arbitrary appointment of a Chairperson of a State Public Service  

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Commission. The flip side is that if an arbitrary appointment is  

made, removal of the appointee is a difficult process.   

13. If the person walking on the street is appointed in a God-

forbid kind of situation,  as  the Chairperson of a  State  Public  

Service Commission,  what  remedy does an aggrieved citizen  

have? This question arises in a unique backdrop, in as much as  

no  eligibility  criterion  has  been  prescribed  for  such  an  

appointment and the suitability of a person to hold a post is  

subjective.  

14. In this context, three submissions have been put forward  

by learned counsel supporting the appointment of Mr. Dhanda.  

If  these  submissions  are  accepted,  then  one  would  have  to  

believe that a citizen aggrieved by such an appointment would  

have  no  remedy.  The  first  submission  is  that  a  writ  of  quo  

warranto would not lie since there is no violation of a statute in  

the appointment – indeed, no statutory or other qualification or  

eligibility  criterion  has  been  laid  down  for  the  appointment.  

Therefore, a petition for a writ of  quo warranto would not be  

maintainable. The second submission is that the appointment to  

a  post  is  a  “service  matter”.  Therefore,  a  public  interest  

litigation (or  a  PIL  for short)  would not  be maintainable.  The  

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third submission is that the remedy in a “service matter” would  

lie with the Administrative Tribunal, but an application before  

the  Tribunal  would  not  be  maintainable  since  the  aggrieved  

citizen  is  not  a  candidate  for  the  post  and,  therefore,  would  

have no locus standii in the matter. It is necessary to consider  

the correctness of these submissions and the availability of a  

remedy, if any, to an aggrieved citizen.

Maintainability of a PIL:

(i) A writ of quo warranto

15. Learned  counsel  supporting  Mr.  Dhanda  are  right  that  

there  is  no  violation  of  any  statutory  requirement  in  the  

appointment  of  Mr.  Dhanda.  This  is  because  no  statutory  

criterion or parameters have been laid for the appointment of  

the Chairperson of a Public Service Commission. Therefore, a  

petition for a writ of quo warranto would clearly not lie.

16. A couple of years ago, in  Hari Bansh Lal v. Sahodar  

Prasad Mahto, (2010) 9 SCC 655 this Court considered the  

position at law and, after referring to several earlier decisions,  

including  R.K. Jain v. Union of India, (1993) 4 SCC 119,  

Mor  Modern  Coop.  Transport  Society  v.  Govt.  of  

Haryana,  (2002)  6  SCC  269,  High  Court  of  Gujarat  v.   

Gujarat  Kishan Mazdoor  Panchayat,  (2003)  4 SCC 712  Page 54 of 103

C.A. No. 7640 of 2011

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and B. Srinivasa Reddy v. Karnataka Urban Water Supply  

&  Drainage  Board  Employees’  Association,  (2006)  11  

SCC 731 (2)  held  that  “even  for  issuance  of  a  writ  of  quo  

warranto, the High Court has to satisfy that the appointment is  

contrary to the statutory rules.”

17. This principle was framed positively in Mahesh Chandra  

Gupta  v.  Union  of  India  &  Others,  (2009)  8  SCC  273  

wherein it was said: “In cases involving lack of “eligibility” writ  

of quo warranto would certainly lie.”

(ii) Is it a service matter?

18. Is the appointment of a person to a constitutional post a  

“service matter”? The expression “service matter” is generic in  

nature and has been specifically defined (as far as I am aware)  

only in the Administrative Tribunals Act, 1985. Section 3(q) of  

the Administrative Tribunals Act is relevant in this regard and it  

reads as follows:

“3. Definitions.—In this Act, unless the context otherwise  requires,—

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

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(i) remuneration (including allowances), pension and  other retirement benefits; (ii)  tenure  including  confirmation,  seniority,  promotion,  reversion,  premature  retirement  and  superannuation; (iii) leave of any kind; (iv) disciplinary matters; or (v) any other matter whatsoever;”

19. It  cannot  be  said  that  the  Chairperson  of  the  Public  

Service Commission holds a post in connection with the affairs  

of  the  Union  or  the  State.  He  or  she  is  not  a  Government  

servant,  in  the  sense  of  there  being  a  master  and  servant  

relationship  between  the  Union  or  the  State  and  the  

Chairperson. In view of the constitutional provisions pertaining  

to  the  security  of  tenure  and  the  removal  procedure  of  the  

Chairperson and members of the Public Service Commission, it  

can  only be  concluded that  he  or  she holds a  constitutional  

post. In this context, in  Reference under Article 317(1) of  

the Constitution of India, In re, (1990) 4 SCC 262 it was  

held:

“The  case  of  a  government  servant  is,  subject  to  the  special  provisions,  governed  by  the  law  of  master  and  servant, but the position in the case of a Member of the  Commission is different. The latter holds a constitutional  post and is governed by the special provisions dealing with  different aspects of his office as envisaged by Articles 315  to 323 of Chapter II of Part XIV of the Constitution.”

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20. Similarly, in Bihar Public Service Commission v. Shiv  

Jatan Thakur, 1994 Supp. (3) SCC 220  the Public Service  

Commission is referred to as a “constitutional institution” and  

its Chairperson and members as “constitutional functionaries”.   

21. In Ram Ashray Yadav (Dr.), Chairman, Bihar Public  

Service Commission, In Re, (2000) 4 SCC 309 a reference  

was made to the “constitutional duties and obligations” of the  

Public  Service  Commissions.  It  was  also  observed  that  the  

Chairperson of the Public Service Commission is in the position  

of a constitutional trustee.  

22. In Ram Kumar Kashyap v. Union of India, (2009) 9  

SCC 278 the obligations of the Public Service Commission were  

referred to as “constitutional obligations” and on a review of the  

case law, it was held that:

“…  since  the  Public  Service  Commissions  are  a  constitutional  creation, the principles of service law that  are  ordinarily  applicable  in  instances  of  dismissals  of  government  employees  cannot  be  extended  to  the  proceedings  for  the  removal  and  suspension  of  the  members of the said Commissions.”  

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23. Finally,  in  Mehar  Singh  Saini,  Chairman,  Haryana  

Public Service Commission, In re, (2010) 13 SCC 586  a  

distinction was made between service under the Government of  

India or a State Government and a constitutional body like a  

Public Service Commission. It was observed that,  

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

24. A  little  later  in  the  judgment,  the  Public  Service  

Commission is described as a “constitutional body”.

25. This being the position, it is not possible to say that the  

Chairperson of the Public Service Commission does not occupy  

a constitutional position or a constitutional post. To describe the  

appointment  to  a  constitutional  post  generically  or  even  

specifically as a “service matter” would be most inappropriate,  

to say the least.  Page 58 of 103

C.A. No. 7640 of 2011

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(iii) Functional test

26. The employment embargo laid down in the Constitution  

and the functions of a Public Service Commission also indicate  

that its Chairperson has a constitutional status.  

27. Article 319 of the Constitution provides that on ceasing to  

hold  office,  the  Chairperson  of  a  State  Public  Service  

Commission cannot take up any other employment either under  

the Government of India or under the Government of a State,  

except  as  the  Chairperson  or  member  of  the  Union  Public  

Service Commission or as the Chairperson of any other State  

Public Service Commission.

28. Among  other  things,  the  functions  of  the  State  Public  

Service Commission include, as mentioned in Article 320 of the  

Constitution, conducting examinations for appointments to the  

services of the State. The State Public Service Commission may  

also be consulted by the President or the Governor of the State,  

subject to regulations that may be made in that behalf, on all  

matters  relating  inter  alia to  methods of recruitment  to  civil  

services and for civil posts and on the principles to be followed  

in making appointments to civil services and posts.

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29. Article 322 of the Constitution provides that the expenses  

of  the  State  Public  Service  Commission,  including  salaries,  

allowances and pensions of its members shall  be charged on  

the  Consolidated  Fund  of  the  State.  Article  323  of  the  

Constitution requires the Public Service Commission to annually  

present a report of the work done by it to the Governor of the  

State.

30. All  these  are  serious  constitutional  functions  and  

obligations cast on the Chairperson and members of the Public  

Service  Commission and to  equate  their  appointment  with  a  

statutory  appointment  and  slotting  their  appointment  in  the  

category  of  a  “service  matter”  would  be  reducing  the  

Constitution into just another statute, which it is not.  

(iv) The remedy

31. What then is the remedy to a person aggrieved by an  

appointment to a constitutional position like the Chairperson of  

a Public Service Commission?

32. About  twenty  years  ago,  in  a  case  relating  to  the  

appointment of the President of a statutory tribunal, this Court  

held in  R.K. Jain v. Union of India, (1993) 4 SCC 119 that  

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an aggrieved person – a “non-appointee” – would alone have  

the locus standii to challenge the offending action. A third party  

could seek a remedy only through a public law declaration. This  

is what was held:  

“In service jurisprudence it is settled law that it is for the  aggrieved person i.e. non-appointee to assail the legality  of the offending action. Third party has no locus standi to  canvass  the  legality  or  correctness  of  the  action.  Only  public law declaration would be made at the behest of the  petitioner, a public-spirited person.”

33. This  view  was  reiterated  in  B.  Srinivasa  Reddy.  

Therefore, assuming the appointment of the Chairperson of a  

Public Service Commission is a “service matter”, a third party  

and  a  complete  stranger  such  as  the  writ  petitioner  cannot  

approach  an  Administrative  Tribunal  to  challenge  the  

appointment of Mr. Dhanda as Chairperson of the Punjab Public  

Service Commission

34. However, as an aggrieved person he or she does have a  

public law remedy. But in a service matter the only available  

remedy is to ask for a writ of quo warranto. This is the opinion  

expressed  by  this  Court  in  several  cases.  One  of  the  more  

recent decisions in this context is  Hari Bansh Lal  wherein it  

was  held  that  “…except  for  a  writ  of  quo  warranto,  public  

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interest litigation is not maintainable in service matters.” This  

view  was  referred  to  (and  not  disagreed  with)  in  Girjesh  

Shrivastava v. State of Madhya Pradesh, (2010) 10 SCC  

707 after referring to and relying on  Duryodhan Sahu (Dr.)  

v. Jitendra Kumar Mishra (1998) 7 SCC 273, B. Srinivasa  

Reddy,  Dattaraj  Nathuji  Thaware v.  State  of  

Maharashtra, (2005) 1 SCC 590, Ashok Kumar Pandey v.  

State of W.B (2004) 3 SCC 349 and Hari Bansh Lal.

35. The significance of these decisions is that they prohibit a  

PIL in a service matter, except for the purposes of a writ of quo  

warranto. However, as I have concluded, the appointment of the  

Chairperson in a Public Service Commission does not fall in the  

category of a service matter. Therefore, a PIL for a writ of quo  

warranto  in  respect  of  an  appointment  to  a  constitutional  

position would  not  be  barred  on the  basis  of  the  judgments  

rendered by this Court and mentioned above.  

36. However, in a unique situation like the present, where a  

writ of quo warranto may not be issued, it becomes necessary  

to mould the relief  so that  an aggrieved person is  not  left  

without any remedy, in  the public  interest.  This  Court  has,  

therefore, fashioned a writ  of declaration to deal  with such  Page 62 of 103

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cases. Way back, in T. C. Basappa v. T. Nagappa [1955] 1  

SCR 250 it was said:

"The  language  used  in  articles 32 and 226 of  our  Constitution is very wide and the powers of the Supreme  Court as well as of all the High Courts in India extend to  issuing of orders, writs or directions including writs in the  nature  of  habeas  corpus,  mandamus,  quo  warranto,  prohibition  and  certiorari  as  may  be  considered  necessary for enforcement of the fundamental rights and  in the case of the High Courts, for other purposes as well.  In view of the express provisions of our Constitution we  need  not  now  look  back  to  the  early  history  or  the  procedural technicalities of these writs in English law, nor  feel  oppressed by any difference or change of opinion  expressed in particular cases by English Judges".

37. More recently, such a writ was issued by this Court was  

in Kumar Padma Prasad v. Union of India, (1992) 2 SCC  

428 when this Court declared that Mr. K.N. Srivastava was not  

qualified to be appointed a Judge of the Gauhati High Court  

even after a warrant for his appointment was issued by the  

President  under  his  hand  and  seal.  This  Court,  therefore,  

directed:

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

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38. Similarly, in N. Kannadasan v. Ajoy Khose, (2009) 7  

SCC 1 this Court held that Justice N. Kannadasan (retired) was  

ineligible  to  hold  the  post  of  the  President  of  the  State  

Consumer Redressal Forum. It was then concluded:

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

39. Finally and even more recently,  in  Centre for PIL v.  

Union of India, (2011) 4 SCC 1 the recommendation of a  

High  Powered  Committee  recommending  the  appointment  of  

Mr. P.J.  Thomas as the Central Vigilance Commissioner under  

the proviso to Section 4(1) of the Central Vigilance Commission  

Act, 2003 was held to be non est in law and his appointment as  

the  Central  Vigilance Commissioner  was quashed.  This  Court  

opined:

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

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Who may be appointed - views of this Court:

40. Having come to a conclusion that an aggrieved citizen  

has only very limited options available to him or her, is there no  

redress  if  an  arbitrary  appointment  is  made,  such  as  of  the  

person walking on the street. Before answering this question, it  

would  be  worth  considering  who  may  be  appointed  to  a  

constitutional post such as the Chairperson of the Public Service  

Commission.    

41. In Ashok Kumar Yadav v. State of Haryana, (1985)  

4  SCC  417  this  Court  looked  at  the  appointment  of  the  

Chairperson  and  members  of  the  Public  Service  Commission  

from two different perspectives: firstly, from the perspective of  

the requirement to have able administrators in the country and  

secondly  from  the  perspective  of  the  requirement  of  the  

institution as such. In  regard to the first  requirement,  it  was  

said:

“It is absolutely essential that the best and finest talent  should be drawn in the administration and administrative  services  must  be  composed  of  men  who  are  honest,  upright and independent and who are not swayed by the  political  winds  blowing  in  the  country.  The  selection  of  candidates for the administrative services must therefore  be made strictly on merits, keeping in view various factors  which  go  to  make  up  a  strong,  efficient  and  people  oriented administrator.  This can be achieved only if  the  

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Chairman and members of the Public Service Commission  are  eminent  men  possessing  a  high  degree  of  calibre,  competence and integrity, who would inspire confidence in  the public mind about the objectivity and impartiality of  the selections to be made by them.”

In regard to the second requirement, it was said:

“We would therefore like to strongly impress upon every  State  Government  to  take  care  to  see  that  its  Public  Service Commission is manned by competent, honest and  independent  persons  of  outstanding  ability  and  high  reputation who command the confidence of the people and  who would not allow themselves to be deflected by any  extraneous considerations from discharging their duty of  making selections strictly on merit.”

42. In  In R/O Dr Ram Ashray Yadav, Chairman, Bihar  

Public Service Commission, (2000) 4 SCC 309  this Court  

considered  the  functional  requirements  of  the  Public  Service  

Commission and what is expected of its members and held:

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

43. With specific reference to the Chairperson of the Public  

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Service Commission who is in the position of a “constitutional  

trustee”, this Court said:

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

44. Inderpreet Singh Kahlon v. State of Punjab, (2006)  

11 SCC 356 was decided in the backdrop of a Chairperson of  

the  Punjab  Public  Service  Commission,  “an  important  

constitutional authority”, being put behind bars,  inter alia, for  

being caught red-handed accepting a bribe.

45. This Court asserted the necessity of transparency in the  

appointment to such constitutional positions. It was said:

“This unfortunate episode teaches us an important lesson  that before appointing the constitutional authorities, there  should be a thorough and meticulous inquiry and scrutiny  regarding their antecedents. Integrity and merit have to  be properly considered and evaluated in the appointments  to such high positions. It is an urgent need of the hour that  in such appointments absolute transparency is required to  be maintained and demonstrated. The impact of the deeds  and  misdeeds  of  the  constitutional  authorities  (who are  highly placed), affect a very large number of people for a  

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

46. Subsequently, in  State of Bihar v. Upendra Narayan  

Singh (2009) 5 SCC 65 this Court expressed its anguish with  

the  appointments  generally  made  to  the  Public  Service  

Commissions. It was observed:

“The Public Service Commissions which have been given  the  status  of  constitutional  authorities  and  which  are  supposed  to  be  totally  independent  and  impartial  while  discharging  their  function  in  terms  of  Article  320  have  become victims of spoils system. “In the beginning, people with the distinction in different  fields of administration and social life were appointed as  Chairman and members of the Public Service Commissions  but with the passage of time appointment to these high  offices became personal prerogatives of the political head  of the Government and men with questionable background  have  been  appointed  to  these  coveted  positions.  Such  appointees  have,  instead  of  making  selections  for  appointment  to  higher  echelons  of  services  on  merit,  indulged  in  exhibition  of  faithfulness  to  their  mentors  totally unmindful of their constitutional responsibility.”  

47. While  it is difficult  to summarize  the  indicators  laid  

down by  this  Court,  it  is  possible  to  say  that  the  two most  

important requirements are that personally the Chairperson of  

the Public Service Commission should be beyond reproach and  

his  or  her  appointment  should inspire  confidence among the  

people in the institution. The first ‘quality’ can be ascertained  Page 68 of 103

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through a  meaningful  deliberative  process,  while  the  second  

‘quality’  can  be  determined  by  taking  into  account  the  

constitutional,  functional  and  institutional  requirements  

necessary for the appointment.

Selection and appointment of Mr. Dhanda:

48. Given the views expressed by this  Court  from time to  

time, learned counsel for the writ petitioner submitted that Mr.  

Dhanda ought not to have been appointed as the Chairperson  

of the Public Service Commission. Three reasons were given in  

this  regard  and  all  of  them  have  been  refuted  by  learned  

counsel  supporting  the  cause  of  Mr.  Dhanda.  They  are:  (1)  

There is a question mark about the character and conduct of  

Mr. Dhanda. (2) Mr. Dhanda lacks the qualifications and stature  

to hold a constitutional position of the Chairperson of a Public  

Service Commission. (3) The record shows that no meaningful  

and effective thought was given before appointing Mr. Dhanda  

as the Chairperson of the Public Service Commission.

49. As  regards  the  first  reason,  certain  allegations  were  

made against Mr. Dhanda in the writ petition filed in the High  

Court.  However,  in  its  order  dated  13th July  2011  a  Division  

Bench of the High Court held that: “As regards irregularities and  Page 69 of 103

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illegalities pointed out in the petition, the same do not stand  

substantiated.” This conclusion is strongly relied on by learned  

counsel supporting Mr. Dhanda.  

50. However,  the judgment  under  appeal  records that  the  

writ  petitioner  had  alleged  that  Mr.  Dhanda  had  used  his  

political influence to effect the transfer of an officer and that the  

transfer was set aside by the Central Administrative Tribunal as  

being  mala  fide.  In  this  context,  during  the  hearing  of  this  

appeal, we were handed over a copy of the decision rendered  

by the Central  Administrative Tribunal  (Chandigarh Bench) in  

Original Application No. 495/PB/2007 decided on 15th November  

2007. We were informed that this decision was placed before  

the High Court and that this decision has attained finality, not  

having been challenged by anybody.  

52. A  reading  of  the  decision,  particularly  paragraph  12  

thereof,  does  show  that  the  applicant  before  the  Central  

Administrative Tribunal was subjected to a transfer contrary to  

the policy decision relating to mid-term transfers. The relevant  

portion of paragraph 12 of the decision reads as follows:

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

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

53. While it may be that Mr. Dhanda was given a clean chit  

by the Division Bench when the case was first before it, the fact  

is that information subsequently came to the notice of the High  

Court which indicated that Mr. Dhanda was not above using his  

political influence to get his way. That Mr. Dhanda came in for  

an  adverse  comment  in  a  judicial  proceeding  was  certainly  

known to  him,  since  he was a  party  to  the  case before the  

Central Administrative Tribunal. But he did not disclose this fact  

to the Chief Minister. In the deliberative process (or whatever  

little there was of it) the Chief Minister did not even bother to  

check whether or not Mr. Dhanda was an appropriate person to  

be appointed as the Chairperson of the Punjab Public Service  

Commission in the light of the adverse comment. The “thorough  

and meticulous inquiry and scrutiny” requirement mentioned in  

Inderpreet Singh Kahlon was not at all carried out. Page 71 of 103

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54. As regards the second reason, the qualifications of Mr.  

Dhanda  are  as  mentioned  in  his  bio-data  contained  in  the  

official file and reproduced by the High Court in the judgment  

under appeal. The bio-data reads as follows:

“ - Harish Rai Dhanda son of Shri Kulbhushan Rai. - Resident: The Retreat, Ferozepur Road, Ludhiana. - Date of Birth: 15th May, 1960. -  Attained  Bachelor  in  Arts  from  SCD  Government  College, Ludhiana, Panjab University, 1979. -  Attained  Bachelor  in  Laws from Law College,  Panjab  University (1982). - Registered with Bar Council of Punjab and Haryana as  Advocate in 1982. - Practiced Law at District Courts, Ludhiana from 1982 to  2007. -  Elected  as  President  of  District  Bar  Association,  Ludhiana for seven terms.

55. The High Court noted that the official file shows that Mr.  

Dhanda  resigned  from  the  membership  of  the  Punjab  

Legislative  Assembly  on 6th July  2011.  The resignation  was  

accepted the same day.  

56. Mr. Dhanda had filed an affidavit in the High Court in  

which he disclosed that he was or had been the Vice President  

of the Shiromani Akali Dal and the President of its Legal Cell  

and its spokesperson.  

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57. In  fairness  to  Mr.  Dhanda  it  must  be  noted  that  his  

affidavit  clearly  mentions  that  he  did  not  apply  for  or  

otherwise seek the post of  Chairperson of the Punjab Public  

Service Commission. He was invited by the Chief Minister to  

submit his bio-data and to accept the post. The question is  

that with these qualifications, could it be said that Mr. Dhanda  

was eminently suited to holding the post of the Chairperson of  

the Public Service Commission? The answer to this must be in  

the negative if one is to agree with the expectations of this  

Court declared in various decisions. This is not to say that Mr.  

Dhanda lacks integrity or competence, but that he clearly has  

no  administrative  experience  for  holding  a  crucial  

constitutional  position.  Merely  because  Mr.  Dhanda  is  an  

advocate having had electoral successes does not make him  

eminently  suitable  for  holding  a  constitutional  position  of  

considerable  importance  and  significance.  It  is  more  than  

apparent that Mr. Dhanda’s political affiliation weighed over  

everything else in his appointment as the Chairperson of the  

Punjab Public Service Commission.

58. But,  as  pointed out in  Mahesh Chandra Gupta  the  

suitability of a person to hold a post is a matter of opinion and  

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this  is  also a  peg on which learned counsel  supporting Mr.  

Dhanda  rest  their  case.  The “suitability  test”  is  said  to  be  

beyond the scope of judicial review.  

59. The  third  reason  is  supported  by  the  writ  petitioner  

through the finding given by the High Court that the official file  

relating to the appointment of Mr. Dhanda as the Chairperson of  

the  Punjab  Public  Service  Commission  contains  only  his  bio-

data,  a  certificate  to  the  effect  that  he  resigned  from  the  

membership of the Punjab Legislative Assembly on 6th July 2011  

and his resignation was accepted the same day and the advice  

of the Chief Minister to the Governor apparently to appoint Mr.  

Dhanda  as  the  Chairperson  of  the  Punjab  Public  Service  

Commission. The advice was immediately acted upon and  Mr.  

Dhanda was appointed as the Chairperson of the Punjab Public  

Service Commission by a notification published on 7th July 2011.  

In other words, the entire exercise relating to the appointment  

of  the  Chairperson  of  the  Public  Service  Commission  was  

completed in a day.  

60. Learned  counsel  supporting  the  appointment  of  Mr.  

Dhanda  submitted  that  no  procedure  is  prescribed  for  the  

selection of the Chairperson of the  Public Service Commission.  Page 74 of 103

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Therefore, no fault can be found in the procedure adopted by  

the State Government. It was submitted, relying on Mohinder  

Singh Gill v. Chief Election Commissioner, (1978) 1 SCC  

405 that there is an implied power to adopt any appropriate  

procedure for making the selection and the State Government  

and the Governor cannot be hamstrung in this regard.  

61. It is true that no parameters or guidelines have been laid  

down  in  Article  316  of  the  Constitution  for  selecting  the  

Chairperson of the  Public Service Commission and no law has  

been enacted on the subject with reference to Entry 41 of List II  

of the 7th Schedule of the Constitution. It is equally true that the  

State Government and the Governor have a wide discretion in  

the procedure to be followed. But, it is also true that Mohinder  

Singh Gill refers  to Lord Camden  as  having  said  that wide  

discretion  is  fraught  with  tyrannical  potential  even  in  high  

personages. Therefore, the jurisprudence of prudence demands  

a  fairly  high  degree  of  circumspection  in  the  selection  and  

appointment to a constitutional position having important and  

significant ramifications.  

62. Two factors that need to be jointly taken into account for  

the exercise of the power of judicial review are: the deliberative  Page 75 of 103

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process and consideration of the institutional requirements.  

63. As far as the deliberative process is concerned (or lack of  

effective  consultation,  as  described  in  Mahesh  Chandra  

Gupta) it is quite apparent that the entire process of selection  

and  appointment  of  Mr.  Dhanda  took  place  in  about  a  day.  

There is nothing to show the need for a tearing hurry, though  

there  was some urgency,  in  filling up  the  post  following the  

demise  of the then Chairperson of the Punjab Public  Service  

Commission in the first week of May 2011. But, it is important to  

ask, since the post was lying vacant for a couple of months, was  

the  urgency  such  that  the  appointment  was  required  to  be  

made  without  considering  anybody  other  than  Mr.  Dhanda.  

There is nothing to show that any consideration whatsoever was  

given  to  appointing  a  person  with  adequate  administrative  

experience  who could  achieve  the  constitutional  purpose  for  

which  the  Public  Service  Commission  was  created.  There  is  

nothing to show that any background check was carried out to  

ascertain  whether  Mr.  Dhanda  had  come in  for  any  adverse  

notice, either in a judicial proceeding or any police inquiry. It  

must be remembered that the appointment of Mr. Dhanda was  

to a constitutional  post and the basics of deliberation before  

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making the selection and appointment were imperative. In this  

case,  clearly,  there  was  no  deliberative  process,  and  if  any  

semblance of it did exist, it was irredeemably flawed. The in-

built constitutional checks had, unfortunately, broken down.  

64. In  Centre  for  PIL  this  Court  struck  down  the  

appointment  of  the  Central  Vigilance  Commissioner  while  

reaffirming the distinction between merit review pertaining to  

the eligibility or suitability of a selected candidate and judicial  

review pertaining to the recommendation making process. In  

that case, the selection of the Central Vigilance Commissioner  

was  made  under  Section  4(1)  of  the  Central  Vigilance  

Commission Act, 2003 (for short the Act) which reads as follows:

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

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

(a) the Prime Minister — Chairperson; (b) the Minister of Home Affairs — Member; (c)  the  Leader  of the  Opposition in  the  House of the  

People — Member. Explanation.—For the purposes of this sub-section, ‘the  

Leader of the Opposition in the House of the People’ shall,  when no such Leader has been so recognised, include the  Leader  of  the  single  largest  group  in  opposition  of  the  

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Government in the House of the People.”

65. As  can  be  seen,  only  the  establishment  of  a  High  

Powered  Committee  (HPC)  for  making  a  recommendation  is  

provided for - the procedure to be followed by the HPC is not  

detailed  in  the  statute.  This  is  not  unusual  since  a  statute  

cannot particularize every little procedure; otherwise it would  

become  unmanageable  and  maybe  unworkable.  Moreover,  

some situations have to be dealt with in a common sense and  

pragmatic manner.

66. Acknowledging this, this Court looked at the appointment  

of the Central Vigilance Commissioner not as a merit review of  

the integrity of the selected person, but as a judicial review of  

the recommendation making process relating to the integrity of  

the  institution.  It  was  made  clear  that  while  the  personal  

integrity  of  the  candidate  cannot  be  discounted,  institutional  

integrity is the primary consideration to be kept in mind while  

recommending  a  candidate.  It  was  observed  that  while  this  

Court cannot sit in appeal over the opinion of the HPC, it can  

certainly  see  whether  relevant  material  and  vital  aspects  

having nexus with the objects of the Act are taken into account  

when a recommendation is made. This Court emphasized the  Page 78 of 103

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overarching need to act for the good of the institution and in  

the public interest. Reference in this context was made to  N.  

Kannadasan.

67. Keeping in mind the law laid down and the facts as they  

appear from the record, it does appear that the constitutional,  

functional  and institutional requirements of the  Punjab Public  

Service Commission were not kept in mind when Mr. Dhanda  

was recommended for appointment as its Chairperson.

A suitable appointee:

68. A submission was made by learned counsel supporting  

the appointment of Mr. Dhanda that ultimately it is for the State  

Government to decide who would be the most suitable person  

to  be  appointed  as  the  Chairperson  of  the  Public  Service  

Commission.  

69. In this regard, reliance was placed on three decisions. In  

the  first  such  decision,  that  is,  E.P.  Royappa  v.  State  of  

Tamil Nadu, (1974) 4 SCC 3 the post of the Chief Secretary  

of the State was under consideration. This Court observed that  

the post is a sensitive one.  The post is one of confidence and  

the Chief Secretary is a lynchpin in the administration of the  

State.  Therefore, the  Chief Secretary and the Chief Minister of  Page 79 of 103

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the  State  must  have  complete  rapport  and  understanding  

between them. If the Chief Secretary forfeits the confidence of  

the Chief Minister, then he may be shifted to some other post in  

the larger interests of the administration, provided that no legal  

or constitutional right of the Chief Secretary is violated.  

70. The second decision relied upon was  State of W.B. v.  

Manas Kumar Chakraborty, (2003) 2 SCC 604. That case  

concerned  itself  with  the  post  of  the  Director  General  and  

Inspector  General  of  Police  (DG&IP)  in  a  State.  This  Court  

observed that the said post was  of a very sensitive nature. It  

could  only  be  filled  up  by  a  person  in  whom  the  State  

Government  had  confidence.  Consequently,  it  was  held  that  

such a post need not be filled up only by seniority, but merit,  

credibility and confidence that the person can command with  

the  State  Government  “must  play  a  predominant  role  in  

selection of an incumbent to such a post.”

71. Finally,  in  Hari  Bansh  Lal,  a  case  concerning  an  

appointment  to  a  statutory  post  of  Chairperson  of  a  State  

Electricity Board, reference was made to  State of Mysore v.  

Syed Mahmood, AIR 1968 SC 1113, Statesman (P) Ltd. v.  

H.R. Deb, AIR 1968 SC 1495  and State Bank of India v.  

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Mohd. Mynuddin, (1987) 4 SCC 486 and it was held:

“It  is  clear  from  the  above  decisions,  suitability  or  otherwise of a candidate for appointment to a post is the  function of the appointing authority and not of the court  unless  the  appointment  is  contrary  to  the  statutory  provisions/rules.”

72. These decisions are clearly  distinguishable.  First  of all,  

none of the  cited  decisions dealt  with  the  appointment  to  a  

constitutional position such as the one that we are concerned  

with. A constitutional position such as that of the Chairperson of  

a Public Service Commission cannot be equated with a purely  

administrative position – it would be rather facetious to do so.  

While the Chief Secretary and the Director General of Police are  

at the top of the ladder, yet they are essentially administrative  

functionaries.  Their  duties  and  responsibilities,  however  

onerous,  cannot  be  judged  against  the  duties  and  

responsibilities  of  an  important  constitutional  authority  or  a  

constitutional  trustee,  whose  very  appointment  is  not  only  

expected to inspire  confidence in  the  aspirational  Indian but  

also project the credibility of the institution to which he or she  

belongs. I  am, therefore, unable to accept the view that  the  

suitability of an appointee to the post of Chairperson of a Public  

Service Commission should be evaluated on the same yardstick  

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as the appointment of a senior administrative functionary.

73. Secondly, it may be necessary for a State Government or  

the Chief Minister of a State to appoint a “suitable” person as a  

Chief Secretary or the Director General of Police or perhaps to a  

statutory  position,  the  connotation  not  being  derogatory  or  

disparaging,  but  because  both  the  State  Government  or  the  

Chief Minister and the appointee share a similar vision of the  

administrative  goals  and  requirements  of  the  State.  The  

underlying premise also is that the State Government or the  

Chief Minister has confidence that the appointee will deliver the  

goods,  as  it  were,  and  both  are  administratively  quite  

compatible with each other. If there is a loss of confidence or  

the compatibility comes to an end, the appointee may simply  

be shifted out to some other assignment,  provided no legal or  

constitutional right of the appointee is violated.  

74. The  question  of  the  Chief  Minister  or  the  State  

Government  having  “confidence”  (in  the  sense  in  which  the  

word  is  used  with  reference  to  the  Chief  Secretary  or  the  

Director General of Police or any important statutory post) in  

the Chairperson of a State Public Service Commission simply  

does  not  arise,  nor  does  the  issue  of  compatibility.  The  Page 82 of 103

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Chairperson of a Public Service Commission does not function at  

the pleasure of the Chief Minister or the State Government. He  

or she has a fixed tenure of six years or till the age of sixty two  

years,  whichever  is  earlier.  Security  of  tenure  is  provided  

through a mechanism in our Constitution. The Chairperson of a  

State Public Service Commission, even though appointed by the  

Governor, may be removed only by the President on the ground  

of  misbehaviour  after  an  inquiry  by  this  Court,  or  on  other  

specified grounds of insolvency, or being engaged in any other  

paid employment or being unfit to continue in office by reason  

of  infirmity  of  mind  or  body.  There  is  no  question  of  the  

Chairperson of a Public Service Commission being shifted out if  

his views are not in sync with the views of the Chief Minister or  

the State Government.  

75. The independence of the post of the Chairperson or the  

member  of the  Punjab Public  Service  Commission cannot  be  

forgotten or overlooked. That independence is attached to the  

post  is  apparent  from a  reading  of  the  Punjab  State  Public  

Service Commission (Conditions of Service) Regulations, 1958  

framed  by  the  Governor  of  Punjab  in  exercise  of  power  

conferred by Article 318 of the Constitution.  

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76. Regulation  2(c)  of  the  Punjab  State  Public  Service  

Commission (Conditions of Service) Regulations, 1958 defines  

“Member” as:

“Member”  means  a  Member  for  the  time  being  of  the  Commission and includes the Chairman thereof”;

77. Regulation 4 of these Regulations provides that “Every  

Member shall on appointment be required to take the oaths in  

the form laid down in Appendix ‘A’ to these regulations.”

78. The oaths that a member (including the Chairperson) is  

required to take in the form laid down in Appendix ‘A’ are oaths  

of allegiance, of office and of secrecy. A Note given in Appendix  

‘A’ states: “These oaths will be administered by the Governor in  

person in the presence of the Chief Secretary.” The oaths read  

as follows:

“Form of Oath of Allegiance

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

“Form of Oath of Office

I,  _____________________,  appointed a  Member  of the  Punjab  Public  Service  Commission  do  solemnly  declare,  that I will faithfully perform the duties of my office to the  

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best of my ability, knowledge and judgment.”  

“Form of Oath of Secrecy

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

79. There is, therefore, a great deal of solemnity attached to  

the post of the Chairperson of the Public Service Commission.  

The Chairperson takes the oath of allegiance to India and to the  

Constitution of India – not an oath of allegiance to the Chief  

Minister.  An  appointment  to  that  position  cannot  be  taken  

lightly  or  on  considerations  other  than  the  public  interest.  

Consequently, it is not possible to accept the contention that  

the Chief Minister or the State Government is entitled to act  

only  on  the  perceived  suitability  of  the  appointee,  over  

everything  else,  while  advising  the  Governor  to  appoint  the  

Chairperson of the Public Service Commission. If such a view is  

accepted, it  will  destroy the very fabric of the Public Service  

Commission.

Finding an appropriate Chairperson:

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80. Taking all this into consideration, how can an appropriate  

person be searched out for appointment to the position of  a  

Chairperson  of  a  Public  Service  Commission?  This  question  

arises in the context of the guidelines framed by the High Court  

and which have been objected to by the State of Punjab and the  

State of Haryana. This Court found itself helpless in resolving  

the dilemma in Mehar Singh Saini. This Court pointed out the  

importance  of  the  Public  Service  Commission  vis-à-vis  good  

governance  and  the  “common  man”.  In  this  regard,  it  was  

observed that:

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

It was then noted that:

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

81. In  this  background  and  in  this  perspective,  this  Court  

drew a distinction between the exercise of legislative power by  

Parliament and the executive power of the Government. It was  

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held  that  laying  down  the  qualifications  and  experience  

required for holding the office of Chairperson or member of the  

Public Service Commission is a legislative function. This is what  

this Court said:

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

82. However,  the necessary guidelines and parameters  for  

holding such an office are within the executive power of the  

State. It was held by this Court:

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

83. On  the  “legislative  front”,  this  Court  found itself  quite  

helpless.  This  Court  obviously  could  not  read  those  

qualifications into Article 316 of the Constitution which were not  

there,  nor could it  direct  Parliament  to  enact  a  law. All  that  

could be done (and which it did) was to draw the attention of  

Parliament to the prevailing situation in the light of “the number  

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of cases which have been referred to this Court by the President  

of India in terms of Article 317(1) of the Constitution in recent  

years.” It was also noted that “A large number of inquiries are  

pending before this Court which itself reflects that all is not well  

with the functioning of the Commissions.”

84. Apart from this Court’s inability to read qualifications into  

Article  316  of  the  Constitution,  it  was  submitted  by  learned  

counsel  supporting  the  cause  of  Mr.  Dhanda  that  this  Court  

cannot  direct  that  legislation  be  enacted  on  the  subject.  

Reference was made to Supreme Court Employees' Welfare  

Assn. v. Union of India, (1989) 4 SCC 187 wherein it was  

held:  

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

A similar view was expressed in Asif Hameed v. State  

of J & K, 1989 Supp (2) SCC 364. It was held in that decision  

that:  

“The Constitution has laid down elaborate procedure for  the  legislature  to  act  thereunder.  The  legislature  is  

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supreme in  its  own sphere  under  the  Constitution.  It  is  solely for  the legislature to consider  as to when and in  respect  of  what  subject-matter,  the  laws  are  to  be  enacted. No directions in this regard can be issued to the  legislature by the courts.”

85. In  Suresh Seth v. Commissioner, Indore Municipal  

Corpn., (2005) 13 SCC 287 this Court referred to Supreme  

Court Employees' Welfare Assn. and State of J&K v. A.R.  

Zakki, 1992 Supp (1) SCC 548 and held:

“….. this Court cannot issue any direction to the legislature  to  make  any  particular  kind  of  enactment.  Under  our  constitutional  scheme  Parliament  and  Legislative  Assemblies exercise sovereign power to enact laws and no  outside power or authority can issue a direction to enact a  particular piece of legislation.”

86. There is, therefore, no doubt that this Court can neither  

legislate on the subject nor issue any direction to Parliament or  

the State Legislature to enact a law on the subject.

87. On  the  “executive  front”,  this  Court  expressed  its  

helplessness in framing guidelines or parameters due to its lack  

of “expertise in the field, data study and adoption of the best  

methodology”. Keeping this in mind, the High Court was in error  

in  framing  the  guidelines  that  it  did  in  the  absence  of  any  

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expertise  in  the  field,  data  study  or  knowledge  of  the  best  

methodology for selecting the Chairperson of the Punjab Public  

Service Commission.  

Options before this Court:

88. But, is this Court really helpless, broadly, in the matter of  

laying  down  appropriate  guidelines  or  parameters  for  the  

appointment of a Chairperson or members of the Public Service  

Commission? If Mehar Singh Saini is understood in its correct  

perspective,  the  answer  to  this  question  would  be  in  the  

negative.  

89. First  of  all,  this  Court  cannot  overlook  the  

administrative imperative. There was and still is a need for the  

Public Service Commission to deliver the goods, as it were. In  

this context, the Second Administrative Reform Commission in  

its 15th Report looked at the past, present and future of the  

Public Service Commission and observed:

“2.5.3. In the early years of Independence, State Public  Service Commissions throughout the country functioned  well primarily on account of the fact that: (a) There was objectivity in selection of competent and  experienced  people  as  Chairman  and  Members  of  the  Commission. The government treated the Public Service  Commission as a sacrosanct institution and the Chairman  and  Members  were  either  very  senior  government  

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servants (drawn usually from the ICS) or academicians of  high standing in their field. (b)  The  Commission  enjoyed  excellent  reputation  for  objectivity, transparency and fairplay. “2.5.4 But in recent years, this Constitutional body has  suffered  extensive  loss  of  reputation  in  many  States,  mainly  on  account  of  (a)  charges  of  corruption,  favouritism and nepotism in matters of recruitment and  (b)  use  of  archaic  processes  and  procedures  in  its  functioning  which  leads  to  inordinate  delays.  For  example, the civil services examinations conducted by a  State Public Service Commission take a minimum time  period of one and half year to complete. In some cases, it  may take even longer. “2.5.6.6 The Commission is of the view that the intention  behind  creation  of  an  autonomous  Public  Service  Commission as a Constitutional authority was to create a  body of achievers and ex-administrators who could select  meritorious candidates for recruitment and promotion to  various  civil  service  positions  under  the  State  Government  with  utmost  probity  and  transparency.  There is need to take steps to ensure that only persons  of high standing, intellectual ability and reputation are  selected as Chairman and Members of the Public Service  Commission.”

90. In this context, the views of the Law Commission of India  

as contained in its 14th Report, which are at variance with the  

views  of  the  Second  Administrative  Reform  Commission  

contained in its 15th Report are worth highlighting, one of the  

reasons  being  that  the  luminaries  who  assisted  the  Law  

Commission reads like a veritable Who’s Who from the legal  

firmament. This is what was said:

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“Having regard to the important part played by the Public  Service  Commission  in  the  selection  of  the  subordinate  judiciary, we took care to examine as far as possible the  Chairman and some of the members of the Public Service  Commissions in the various States.  We are constrained to  state  that  the  personnel  of  these  Public  Service  Commissions in some of the States was not such as could  inspire  confidence,  from  the  points  of  view  of  either  efficiency  or  of  impartiality.   There  appears  to  be  little  doubt that in some of the States appointments to these  Commissions are made not on considerations of merit but  on grounds of party and political affiliations.  The evidence  given by members of the Public Service Commissions in  some of the States does create the feeling that they do not  deserve to be in the responsible posts they occupy.”  

91. Secondly,  the  constitutional  and  more  important  

imperative is  that  of good governance for  the benefit  of  the  

aspirational Indian. For this, an appropriate person should be  

selected to fill up the position of a constitutional trustee.  

92. In the light of the various decisions of this Court adverted  

to above, the administrative and constitutional imperative can  

be met only if the Government frames guidelines or parameters  

for  the appointment of the Chairperson and members of the  

Punjab Public Service Commission. That it has failed to do so  

does not preclude this Court or any superior Court from giving a  

direction to the  State  Government  to  conduct  the  necessary  

exercise within a specified period. Only because it is left to the  

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State  Legislature  to  consider  the  desirability  or  otherwise  of  

specifying the qualifications or experience for the appointment  

of a person to the position of Chairperson or member of the  

Punjab  Public  Service  Commission,  does  not  imply  that  this  

Court cannot direct the Executive to frame guidelines and set  

the  parameters.  This  Court  can  certainly  issue  appropriate  

directions  in  this  regard,  and  in  the  light  of  the  experience  

gained over the last several  decades coupled with the views  

expressed by the Law Commission, the Second  Administrative  

Reform Commission and the views expressed by this Court from  

time to time, it is imperative for good governance and better  

administration  to  issue  directions  to  the  Executive  to  frame  

appropriate guidelines and parameters based on the indicators  

mentioned by this Court. These guidelines can and should be  

binding  on  the  State  of  Punjab  till  the  State  Legislature  

exercises its power.    

Additional questions framed by the Full Bench:

93. Learned  counsel  supporting  the  appointment  of  Mr.  

Dhanda submitted that  the Full  Bench could not expand the  

scope of the reference made to it by the Division Bench, nor  

could it frame additional questions.  

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94. Generally speaking, they are right in their contention, but  

it also depends on the reference made.  

95. The law on the subject has crystallized through a long  

line of decisions and it need not be reiterated again and again.  

The  decisions  include  Kesho  Nath  Khurana  v.  Union  of  

India, 1981 Supp SCC 38 (The Division Bench ought to have  

sent  the  appeal  back  to  the  Single  Judge  with  the  answer  

rendered by them to the question referred by the Single Judge  

and left it to the Single Judge to dispose of the second appeal  

according  to  law.). Kerala  State  Science  &  Technology  

Museum v. Rambal Co., (2006) 6 SCC 258 (It is fairly well  

settled that when reference is made on a specific issue either  

by a learned Single Judge or Division Bench to a larger Bench  

i.e. Division Bench or Full Bench or Constitution Bench, as the  

case may be, the larger Bench cannot adjudicate upon an issue  

which is not the question referred to.). T.A. Hameed v. M.  

Viswanathan, (2008) 3 SCC 243 (Since, only reference was  

made to the Full Bench, the Full Bench should have answered  

the  question  referred  to  it  and  remitted  the  matter  to  the  

Division Bench for deciding the revision petition on merits.). And  

more recently,  Saquib Abdul Hameed Nachan v. State of  

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Maharashtra, (2010) 9 SCC 93  (Normally,  after  answering  

the reference by the larger Bench, it is for the Reference Court  

to decide the issue on merits on the basis of the answers given  

by the larger Bench.).

96. There  is  no bar  shown whereby  a  Bench  is  precluded  

from referring the entire case for decision by a larger Bench - it  

depends  entirely  on the  reference  made.  In  any  event,  that  

issue does not arise in this appeal and so nothing more need be  

said on the subject.

97. What was the reference made by the Division Bench to  

the Full Bench and did that Bench frame additional questions?  

The answer to this is to be found in the judgment of the High  

Court.  The reference has not  been artistically  drafted,  but  it  

reads as follows:

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

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

98. On the basis of the submissions made,  the Full  Bench  

reformulated the questions referred to it in the following words:

“1. Whether the present petition is not maintainable as  the questions raised are the concluded questions by the  decisions of the Supreme Court? 2.  Whether  the  present  petition  is  public  interest  litigation in a service matter, and hence not maintainable  on the said ground also? 3. Whether this Court can issue directions in the nature  of  guidelines  for  a  transparent,  fair  and  objective  procedure  to  ensure  that  the  persons  of  impeccable  personal  integrity,  caliber  and  qualifications  alone  are  appointed as the members  /  Chairman of State Public  Service Commission? 4.  Whether  in  exercise  of  power  of  judicial  review,  it  could be stated that the decision making process leading  to the appointment of Respondent No. 4 [Mr. Harish Rai  Dhanda]  as  Chairman  of  Commission  was  arbitrary,  capricious or violative of Article 14?”

99. The reformulation was explained by the  Full  Bench by  

stating that the first two questions were raised on behalf of the  

State of Punjab regarding the maintainability of the reference  

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itself. In my opinion, the first two questions actually touch upon  

the  maintainability  of  the  writ  petition  itself.  These  issues  

should have been decided by the  Division Bench and had it  

answered the questions in the negative, there would have been  

no need to make any reference to the Full Bench.  

100. Much was sought to be made by learned counsel for the  

writ petitioner that the “matter” (that is the entire matter) was  

referred to the Full Bench. It is difficult to agree that the entire  

“matter”  was  referred  to  the  Full  Bench.  Firstly,  the  word  

“matter”  must  take  colour  from the context  in  which it  was  

used, which is with reference only to the two questions placed  

before the Full Bench. Secondly, even the Full Bench did not  

think that the entire matter was referred to it and that is why  

after answering the reference the “matter” was remitted to the  

Division Bench for disposal in accordance with law.

101. To this extent, learned counsel supporting the cause of  

Mr.  Dhanda  are  right  that  the  Full  Bench  overstepped  its  

mandate. But where does this discussion lead us to? The two  

questions were fully argued in this Court for the purposes of  

obtaining a decision on them, and no suggestion was made that  

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because  of  a  jurisdictional  error  and  the  Division  Bench  be  

asked to decide them quite independently. Therefore, this issue  

is only of academic interest so far as this appeal is concerned  

notwithstanding the law that a larger Bench should decide only  

the questions referred to it. Of course, if a subsidiary question  

logically and unavoidably arises,  the larger  Bench cannot be  

dogmatic and refuse to answer it. A common sense approach  

must be taken on such occasions.  

102. So far as questions 3 and 4 formulated by the Full Bench  

are concerned, I am of the opinion that they merely articulate  

and focus on the issues that were not quite attractively phrased  

by  the  Division  Bench.  I  am not  in  agreement  that  the  Full  

Bench overstepped its jurisdiction in the reformulation of the  

issues before it.  

103. It was then submitted that there was really no occasion  

for the Division Bench to make any reference to the Full Bench  

of  the  High  Court  on  the  question  of  framing  guidelines  or  

parameters  for  the  appointment  of  the  Chairperson  of  the  

Punjab Public Service Commission. This Court had already laid  

down the law in  Mehar Singh Saini  and the High Court was  

merely required to follow it. The argument puts the issue rather  Page 98 of 103

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simplistically. The Division Bench was fully entitled to refer to  

the Full Bench the applicability of the decision of this Court to  

the  facts  of  the  case  and  for  further  follow  up  action,  if  

necessary.  This  argument  is  mentioned  only  because  it  was  

raised and nothing really turns on it, except to the extent that it  

is  another  way of questioning the maintainability  of the  writ  

petition filed in the High Court.     

Impleadment of the State of Haryana by the Full Bench:

104. The justification given by the  Full  Bench for  suo motu  

impleading  the  State  of  Haryana  and  the  Haryana  Public  

Service Commission is because “issues common in respect of  

the States of Punjab and Haryana, were likely to arise.” I think  

this is hardly a reason for impleadment. The case concerned the  

appointment  of the  Chairperson of the Punjab Public  Service  

Commission and it should have and could have been left at that  

without enlarging the scope of the controversy before it.  

Production of the Chief Minister’s advice:

105. Learned counsel for the State of Punjab submitted that  

the High Court could not have directed production of the advice  

tendered by the Chief Minister to the Governor. The basis of this  

argument is the order dated 1st August 2011 passed by the Full  

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Bench. The relevant portion of the order reads as follows:

“Mr. Jindal, Addl. Advocate General shall also produce the  record relating to the appointment process of respondent  No.4 [Mr. Dhanda].”

106. The grievance made by learned counsel in this regard is  

justified. It need only be pointed out that in State of Punjab v.  

Sodhi Sukhdev Singh, (1961) 2 SCR 371 this Court clearly  

held that:

“It is hardly necessary to recall that advice given by the  Cabinet to the Rajpramukh or the Governor is expressly  saved by Article 163, sub-article (3)  of the Constitution;  and in the case of such advice no further question need to  be considered.”  

It is not necessary to say anything more on this subject.

Conclusion:

107. The appointment of the Chairperson of the Punjab Public  

Service  Commission  is  an  appointment  to  a  constitutional  

position and is not a “service matter”. A PIL challenging such an  

appointment is, therefore, maintainable both for the issuance of  

a writ of quo warranto and for a writ of declaration, as the case  

may be.

108. In  a  case  for  the  issuance  of  a  writ  of  declaration,  

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exercise of the power of judicial review is presently limited to  

examining  the  deliberative  process  for  the  appointment  not  

meeting  the  constitutional,  functional  and  institutional  

requirements of the institution whose integrity and commitment  

needs to be maintained or the appointment for these reasons  

not being in public interest.   

109. The circumstances of this case leave no room for doubt  

that the notification dated 7th July 2011 appointing Mr. Harish  

Rai Dhanda was deservedly quashed by the High Court since  

there was no deliberative process worth the name in making  

the  appointment  and also since the constitutional,  functional  

and  institutional  requirements  of  the  Punjab  Public  Service  

Commission were not met.

110. In the view that I have taken, there is a need for a word  

of  caution  to  the  High  Courts.  There  is  a  likelihood  of  

comparable challenges being made by trigger-happy litigants to  

appointments  made  to  constitutional  positions  where  no  

eligibility criterion or procedure has been laid down. The High  

Courts  will  do  well  to  be  extremely  circumspect  in  even  

entertaining such petitions. It is necessary to keep in mind that  

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constitutional  appointments  as  long  as  the  constitutional,  

functional  and  institutional  requirements  are  met  and  the  

appointments are in conformity with the indicators given by this  

Court from time to time.   

111. Given  the  experience  in  the  making  of  such  

appointments, there is no doubt that until the State Legislature  

enacts an appropriate law, the State of Punjab must step in and  

take urgent steps to frame a memorandum of procedure and  

administrative guidelines for the selection and appointment of  

the  Chairperson  and  members  of  the  Punjab  Public  Service  

Commission, so that the possibility of arbitrary appointments is  

eliminated.  

112. The Civil Appeals are disposed of as directed by Brother  

Patnaik.  

….…….…………………….. J.     (Madan B. Lokur)

New Delhi,  February 15, 2013

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