Full Judgment Text
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PETITIONER:
JAI SHANKAR PRASAD
Vs.
RESPONDENT:
STATE OF BIHAR AND ORS.
DATE OF JUDGMENT19/03/1993
BENCH:
SAWANT, P.B.
BENCH:
SAWANT, P.B.
VENKATACHALA N. (J)
CITATION:
1993 AIR 1906 1993 SCR (2) 517
1993 SCC (2) 597 JT 1993 (2) 356
1993 SCALE (2)137
ACT:
Constitution of India : Articles 316(1) & 317(3) (c)-Bihar
State Public Service Commission composed of eleven members-
Appointment of seventh non-service member-Whether violative
of proviso to Article 316(1)-Blind acknowledged scholar of
English appointed as member of Public Service Commission-
Whether unfit to continue in office by reason of infirmity
of body.
Words & phrases: "Expression as nearly as may be one half"-
Meaning in the context of Art. 316(1) Constitution of India.
HEADNOTE:
The proviso to clause (1) of Article 316 of the Constitution
requires that ’as nearly as may be’, one-half of the members
of the Public Service Commission shall be from service
category. Clause (2) of the Article entities a member of a
Public Service Commission to hold office for a term of six
years from the date on which he enters upon his office or he
attains the age of superannuation provided therein whichever
is earlier. Subclause (c) of clause (3) of Article 317
provides for removal of a member of the Public Service
Commission by reason of infirmity of mind or body.
Respondent No. 6, a blind, acknowledged scholar of English
and Associate Professor in the Patna University, was
appointed the seventh non-service member of the Bihar State
Public Service Commission on 4th March 1991. The total
strength of the Public Service Commission was eleven. The
other four members belonged to the services category. On
11th September 1991, respondent No.5, the Chairman of the
said Commission, gave a certificate stating that the
respondent has been performing his duties with exceptional
excellence without letting his blindness hinder his work and
strongly recommended conferment of a national award in
recognition of his excellence despite his blindness. On
22nd October 1991 the State Government addressed a letter to
the Union Ministry of Home Affairs recommending him for the
prestigious national award of
518
’Padamshree’ for his services as a member of the Public
Service Commission. On 15th March 1992 the President of
India conferred on him the National Award.
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On 14th January 1992 the appellant, in a public interest
ligigation, challenged the appointment of respondent No. 6
as a member of the Bihar Public Service Commission. The
High Court dismissed the writ petition.
In the appeal by special leave it was contended that the
appointment of the seventh member from the non-service
category was violative of the proviso to Article 316(1) of
the Constitution. It was submitted that the expression ’as
nearly as may be one-half’ occurring in the said proviso has
been used to convey that a fraction may be ignored if the
total number of members cannot be exactly halved between
service and non-service categories. The argument was that
if the representation of the service members of the
Commission fell short of 50% then all persons to be
appointed on the Commission till the said proportion was
made up, had to be from the service category, that being
their necessary qualification. It was further contended
that respondent No. 6 was totally blind even from a date
prior to his appointment and was unfit to be appointed by
reason of the said physical infirmity. The argument was
that the blindness was an infirmity of body and if it was a
ground for removal from office under Article 317(3) (c), it
was much more a disqualification for appointment and hence
respondent No. 6 should be prevented from continuing in his
office.
In the affidavit riled on behalf of the State Government on
23rd January 1993 it was stated that although the proviso to
Article 316(1) was not mandatory, that by itself was not a
good ground for departing from the suggestion of the
Constitution and hence the appointment of respondent No. 6
as the 7th non-Government member was not justified. It was
further stated that at the time of the appointment, the
aspect about his blindness was not specifically considered
as the same was stated in the bio-data of respondent No. 6
in very causal way and in such a manner that it had escaped
the attention of the constitutional authorities at the time
of recommending respondent No. 6 for appointment. The
affidavit further stated that while conducting the
interviews, members of the Commission had to visually
interview each of the candidates to determine his
suitability and after the appointment of respondent No. 6 it
had come to
519
the notice of the respondent-State that the blindness of
respondent No. 6 was clearly hampering the effective
discharge of official duties by him.
It was contended for respondent No. 6 that it was on account
of his academic distinctions, and with the full knowledge
that he was totally blind from childhood that he was
appointed as a member of the Public Service Commission; that
his blindness did not come in his way of discharging his
duties effectively-, that the only thing he could not do was
to assess the individuals external personality on the basis
of the candidate’s external appearance, which was not a
material requirement for the candidates for many posts; that
his dependence upon the opinion of the other members of the
interview board for this aspect was not of a kind which
vitiated the assessment of the interview board as a whole;
that he had made a representation to the President of India,
the Governor of Bihar and others, against the serious
misconduct, gross malpractices and wilful violation of the
constitutional mandate by the Chairman of the Commission,
and that it was this dispute with the Chairman, who was
backed by the Chief Minister of the State, which had led to
the writ petition.
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Dismissing the appeal, the Court,
HELD: 1.1. Merely because at the time of appointment of
respondent No. 6, there were four service members and six
non- service members, it cannot be said that he was
disqualified for being appointed as the 7th member from the
non-service category. [531D]
1.2. The reasonable interpretation of the proviso to Article
316(1) of the Constitution requiring that as nearly as may
be one half of the members of the Public Service Commission
shall be from service category, is to treat it not as a
strict rule to be enforced but as a binding guideline to be
followed in practice in spirit as far as possible and
without deliberately flouting it. [531D]
1.3. The expression "as nearly as may be" used in the
proviso itself suggests that the proportion of 50% of the
service members is not exact but approximate and is meant
not to, be mandatory but directory. The said proviso does
not, in terms, say that In no case and at no point of time,
the said proportion should either go above or fall below
50%. The fraction is and can be taken care of without the
aid of the expression "as nearly as may bell, and a document
like Constitution does not have to Incorporate
520
normal rules of interpretation. The need to have 50%
members from the service category also cannot be said to be
of such paramount importance to the composition of the
Commission that the breach of it at any particular point of
time would defeat the very object of constituting the
Commission. [528F-G, 529F]
1.4. Furthermore, when the members are appointed, they are
bound to differ in age, whether they belong to the service
category, or the non-service category. In the normal
course, they would retire at different points of time. At
that time, a suitable person from the same category may not
be available to be appointed in their place. It is not
always possible to make an advance list of persons of either
category who are suitable for such appointment. Hence the
total strength of the Commission as well as the number from
each of the categories, are bound to vary from time to time.
At any given point of time, therefore, it may not be
possible to maintain the proportion between the two
categories strictly in accordance with the direction given
in the Constitution. [529B-C]
1.5. By providing the proportion between the service and
non-service members of the Commission, the framers of the
Constitution sought to strike a balance amongst the two
categories. However, on that account, the framers of the
Constitution cannot be presumed to ensure that on all
occasions there shall be an exact balance of views between
these two categories of members. It is unrealistic to
believe that individuals with different backgrounds always
insist on the acceptance of the outlook dictated by their
background alone and refuse to share the viewpoint of
others. It is certainly not expected of the members of such
high ranking constitutional body as the Public Service
Commission. Furthermore, the Service Commissions mostly sit
in Committees and are aided and assisted by experts from the
concerned faculties, disciplines and departments. The
Committees take their decision collectively after due
deliberations and discussion. It is, therefore, the
composition of these Committees and not so much the
composition of the Commission at any particular point of
time that matters. [530C-E]
1.6. The appointing authority, therefore, cannot be said to
have no option, under any circumstance whatever, to allow
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reduction of representation from the service category and a
breach of the requirement contained in the proviso to
Article 316(1) by reasons of appointment of a
521
member from non-service category would vitiate such
appointment or the duties performed by such appointee as a
member of the Public Service Commission. [530G]
2. Respondent No. 6 cannot be said to be unfit to carry on
his duties as a member of the Commission because of his
blindness. Nothing concrete has been brought on record to
show that he had failed to perform his duties as a member of
the Commission efficiently. Except the external appearance
of the candidates appearing before him, he is able to
ascertain the required merits or demerits of the candidates,
as to the other members of the Commission. The Commission
operates through Committees. For selecting the candidates
for almost all disciplines and departments, the experts from
the concerned departments sit in these Committees and the
opinion of the experts ordinarily prevails in such
appointments since the members of the Committees, who are
the members of the Commission do not have the expertise in
the relevant fields. This shows that all members of the
Commission sitting on the interview Committees have also to
be guided in their opinion by the experts. If respondent
No. 6 has to take guidance only in the matter of external
appearance of the candidates, all members of the Commission
have to be guided by the experts with regard to the most
vital equipment of the candidates, viz., the intellectual
caliber and the proficiency of the candidates in the
relevant subjects. There is,, therefore, nothing wrong if
only for external appearance, for which only a small
percentage of the total marks is reserved, respondent No. 6
has to depend on the advice, opinion or guidance of other
members of the Committees and the Commission. [532B-E]
3.1. By ’infirmity of body’ what is spoken of in sub-clause
(c) of clause (3) of Article 317 of the Constitution is an
infirmity which disables the member from discharging his
functions as such member effectively. It is not every
infirmity of body or every loss of use of every limb of the
body. The defect or deficiency must be such as would
disable the member from carrying out his duties
satisfactorily and consistent with the trust reposed in him.
The said infirmity further must necessarily be such as has
arisen after the appointment and not the one which existed
at the time of the appointment, unless of course, the
Government was unaware of the same at the time of
appointment. [533A-B, D]
3.2. In the instant case, not only the blindness of
respondent No. 6
522
does not prevent him from discharging his duties expected of
him, but in fact the services rendered by him as such member
have been eulogised and commended for a national award by no
other than the State Government itself and the Chairman of
the Commission, who had first hand knowledge of his
functioning. This is apart from the fact that the Governor
who appointed him on the advice of the Council of Ministers
is presumed to have done so after satisfying himself that
the loss of eyesight was not an infirmity which would impede
him in the discharge of his duties. [533C]
4.1. No responsible public authority could have made the
claim that none of the constitutional functionaries
concerned was aware that respondent No. 6 was totally blind
from his childhood, when that fact must have been widely
known in the State and in all probability the extra-ordinary
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Abilities exhibited by him despite his blindness must have
been the main reason for his appointment as a member of the
Public Service Commission. The State Government should not
have considered it compulsive to allow such blatantly rabid
statements to be made on oath with impunity. The affiant by
making such statement has made the constitutional
authorities look ridiculous and their functioning a mockery.
[534H-G]
4.2. Neither the certificate given by respondent No. 5, the
Chairman of the Public Service Commission, on 11th
September, 1991 nor the letter of the State Government to
the Union Home Ministry dated 22nd October 1991, has been
controverted by the Chairman and the State Government. The
averment in the affidavit that the blindness of respondent
No. 6 is hampering his work, therefore, has no basis. The
belated claim of the State Government against respondent No.
6 has its obvious roots in the strained relations between
him on the one hand and the Chairman and the State
Government on the other. [535E-F]
5. The appellant and the respondent-State is directed to
pay the costs of the appeal to respondent No. 6. [537C]
JUDGMENT:
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1359 of 1993.
From the Judgment and Order dated 16.1.192 of the Patna High
Court in C.W.J.C. No. 446 of 1992.
K.N. Chaubey, K. Pandeya and Mohan Pandey for the Appellant.
523
Gobinda Mukhoty, N.N. Goswami, S.K. Bhattacharya, C.V.S. Rao
Ms. K.K. Manglam, L. R. Singh, Vikas Singh, Yunus Malik,
B.B. Singh Ms. Vimal Sinha and Ms Kumud L. Das for the
Respondents. The Judgment of the Court was delivered by
SAWANT, J. Leave granted.
The appellant is a member of the Bar. He had field a
petition in the nature of a public interest litigation under
Article 226 of the Constitution of India before the High
Court of Patna praying for a writ of quo warranto
challenging the appointment of respondent No. 6, Dr. Shiva
Jatan Thakur as a Member of the Bihar, State Public Service
Commission. The High Court dismissed the writ petition.
Hence the present appeal.
2. The attack against the appointment of respondent No. 6
is based on, two grounds:
[a] on the date of his appointment i.e., 4th
March, 1991 respond No. 6 was the seventh non-
service member. The total strength of the
Public Service Commission being eleven
[uncluding the Chairman] the appointment of
the seventh member from the’ non-service
category, was violative of the proviso to
article 316[1] of the Constitution which
requires that as nearly as may be one half of
the members shall be persons who have held
office for at least ten years either under the
Government of India or under a Government of
the State.
[b] respondent no.6 was totally blind even
from a date prior to his appointment and was
unfit to be appointed by reason of the said
physical infirmity.
We are, accordingly, required to consider whether these two
grounds were sufficient to disqualify respondent no. 6 from
being appointed as a member of the, commission.
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3. In his counter-affidavit, respondent No. 6 has stated
among other or things, that he happens to be the son of a
peon retired form the Railway We are informed by Shri
Mukhoty, the learned counsel appearing for him
524
that he belongs to the backward community of barbers. He
has been blind since the age of eight years. In spite of
his blindness, he was able to pursue his educational career
successfully, and he earned degrees and diplomas. He is a
Ph.D. in English of the Patna University. He has been a
University college teacher in English and he was promoted to
the post of Reader in English on the completion of bare
eight years of service. He was the first teacher of the
Patna University who was unanimously recommended for the
award of D. Litt. on account of the excellence of his thesis
written for Ph.D. As a scholar in English, he has submitted
papers to national and international conferences. He is a
life-member of the organisations who sponsor these
conferences. The Government of Bihar vide its D.O. letter
No. 2740 dated 22nd October, 1991 sent to the Union Ministry
of Home Affairs, had recommended him for the prestigious
national award of ’Padmashree’ for his services as a Member
of the Public Service Commission. The President of India on
15th March, 1992 conferred on him National Award which
reads: "this national award is given to Dr. Shiva Jatan
Thakur in public recognition of his outstanding performance
as the most efficient employee". He has also referred to
the circumstances under which his present appointment came
to be challenged nearly 9-1/2 months after it was made.
While he was appointed on 4th March, 1991, the writ petition
was filed in the High Court on 14th January, 1992.
According to him, he had made a representation to the
President of India, the Governor of Bihar and others,
against the serious misconduct, gross malpractice and wilful
violation of the constitutional mandate by the Chairman of
the Commission. The present writ petition was filed in the
High Court 18 days after a copy of the representation was
received by the Chairman, among others. It is his dispute
with the Chairman who according to him is backed by the
Chief Minister of the State which has led to the present
writ petition. He has also stated that the Chief Minister
in his press interview given to the local Urdu daily, viz.,
Qaumi Tanzeem and published on 27th March, 1992, had made
his intentions public to move this Court against his ap-
pointment. Those averments are not controverted.
According to him further, it was on account of his academic
distinctions, and with the full knowledge that he was
totally blind from childhood, that he was appointed as a
Member of the Public Service Commission. He has also stated
that his blindness never came in his way either in the
pursuit of his studies or in his service as a teacher. His
experience in the public Commission also showed that the
said defect did not come in his way of
525
discharging his duties effectively. In this connection, he
points out that the only thing he cannot do is to assess the
individual’s external personality on the basis of the
candidates external appearance which is not a material
requirement for the candidates for many posts. He has
further added that the Commission sits in Committees or
interview boards and every Committee usually consists of
four or five persons including members of the Commission and
experts from the respective departments. The marks awarded
to the candidates are agreed upon after due discussions and
deliberations in the interview board. The advice of the
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experts is a determinative factor in such decisions. When
the members of the interview board with non- technical and
non-professional qualifications interview candidates for
technical and professional posts, they do so with the aid
and advice of the experts from the concerned departments.
Hence, if he is required to depend upon the opinion of the
other members of the interview board for the external
appearance of the candidates, that is not a dependence of a
kind which vitiates the assessment of the interview board as
a whole. In any case, the dependence is not worse than the
dependence of the members of the board on the opinion of the
experts when they are not qualified to adjudge the
candidates for posts requiring the relevant expertise.
4. The State Government has lent a tragicomic touch to the
controversy by filing its affidavit, the relevant contents
of which deserve reproduction here for reasons more than
one. The pathos is made poignant by the fact that the
affiant Shri R.C. Vaish, Resident Commissioner of the State
at New Delhi in his letter, which is placed on record, has
stated that the draft affidavit was approved by Hon’ble the
Chief Minister of the State. He has also stated that he has
been authorised by the Secretary of the concerned department
to swear the affidavit. The relevant portion of the
affidavit reads as follows:
"That the respondent-State upon
reconsideration of the entire matter under
controversy feels that the words of the
Constitution have to be interpreted in letter
and spirit and any departure from the express
words of the Constitution wherever such
departure seems to be permissible under the
Constitution should be done only for sound and
good reasons. In the instant case, the
departure with regard to appointment of
members of the Bihar Public
526
Service Commission was made only because the
proviso to Article 316 (1) of the Constitution
is not mandatory. Accordingly, while
appointment the respondent no. 6 as the
seventh non-government member of the B.P.S.C.
the mandate of proviso to Article’316 (1) was
not followed. it is felt that the fact that
proviso to Article 316(1) not being mandatory
is by itself not a good ground for departing
from the suggestion of the Constitution and
accordingly, the appointment of respondent no.
6 as member of the State Public Service
Commission cannot be justified., At the time
of appointment of respondent no. 6 as ’a
member of the Bihar Public Service Commission
he was the seventh nongovernment member when’
at that time there were only four government
members in a ’total strength of eleven members
in the B.P.S.C.
That with ragard to the infirmity of the
respondent no. 6, it is submitted that at the
time of appointment of respondent no. 6,the
aspect about his blindness was not
specifically considered the same was stated in
the Bio-data of the respondent no. 6 in a very
casual way and in such a manner that in had
escaped the attention of the Constitutional
authorities at the time of recommending the
respondent No.6 for appointment to the post of
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member the B.P.S.C. In this regard, it is
submitted that the respondent no. 6 in his
Bio-data while praising his achievements had
only stated that he is the first blind person
to have been awarded Ph.D.’ There was no
mention whether such blindness was subsequent
to birth or whether such blindness was
congenial There was also no details in the
Bio-data stating whether such blindness was
complete or the some was partial, temporary,
curable or not curable. In these,facts, the
aspect about the blindness of. the respondent
no. 6 was not specifically considered by any
of the Constitutional Authorities who are
involved in the appointment of a member to the
State Public Service Commission.
That in this regard it is further submitted
that the nature of duty of a member of a
Public Service Commis-
527
sion is primarily to make selections for
appointments the various Govt. jobs of the
State and accordinly while making such
recommendations the member of the State Public
Service Commission has to interview the
eligible candidates. While conducting such
interview, the member of the State Public
Commission is to visually interview each
candidate to determine his suitable.After the
appointment of the respondent of the
respondent no. 6 it has come to the notice of
the respondent no. 6, it has come to the
respondent no. 6 is clearly hampering the
effective discharge of official duties by the
respondent no. 6".
[Emphasis supplied]
To appreciate the first attack against the appointment it is
necessary to reproduce the provisions of Article 316[1] and
[2] of the Constitution which relate to the appointment and
the term of office of the members of the Public Service
Commissions,
"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
Government 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
igovernnient 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] x x x x x
[2] A member of a Public Service Commission
shall hold
528
office for a term of six years from the date
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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 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
’he 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] x x x x
XI
It is apparent from these provisions that the Chairman
and other members of the State Public Service Commission
are appointed by the Governor of the State. The
appointments are obviously made on the advice of the
Council of Ministers of the State. The proviso to Clause 11
of the Article requires that "as nearly as may be", one half
of the members of the Commission shall be persons who on 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. For brevity’s sake we may
refer to this category of members as service members. The
expression "as nearly as may be" itself suggest that the
proportion of 50% of the service members is not exact but
approximate and is meant not to be mandatory but directory.
The said proviso does not, in terms, say that in no case and
at no point of time, the said proportion should either go
above, or fall below 50%. In the very nature of things, a
strict adherence to the said direction is not practicable at
any particular point of time. In the first instance, the
superannauation age of the member of the Commission is 62
years and his total tenure as a member cannot exceed six
years. He has to vacate his office either when his tenure
comes to an end or when he attains the age of 62 years
whichever is earlier. When the members are appointed, they
are bound to differ in age, whether they belong to the
service category
529
or the non-service category. In the normal course, they
would retire at different points of time. If it is
insisted, as is done on behalf of the appellant, that the
said requirement must be followed strictly at all times, it
would be well-nigh impossible to do so. Every time a
member, whether belonging to the service or the non-service
category, retires, there should be available a suitable
person from the same category to be appointed in his place.
It is not always possible to make an advance list of persons
of either category who are suitable for such appointments.
Hence, the total strength of the Commission as well as the
number from each of the categories, are bound to vary from
time to time. At any given point of time, therefore, it may
not be possible to maintain the proportion between the two
categories strictly in accordance with the direction given
in the Constitution. It appears that it is for this reason
that the words "at least half’ used in the proviso to
Section 265 [1] of the Government of India Act, 1935,
corresponding to the present proviso to Article 316 [11,
have been substituted by the words "as nearly as may be one
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half’.
The learned counsel appearing for the appellant, however,
submitted that the expression "as nearly as may be one half’
has been used to convey that a fraction may be ignored if
the total number of members cannot be exactly halved between
service and non-service categories. We are afraid that this
argument is too simplistic. The fraction is and ran be
taken care of without the aid of such expression and a
document like the Constitution does not have to incorporate
the normal rules of interpretation. It is clear that the
framers of the Constitution realised that to make the
provision rigid was both inadvisable and unnecessary. We
have already demonstrated its impracticability. It can
further hardly be suggested that the need to have 50% from
the service category is of such paramount importance to the
composition of the Commission that the breach of it at any
particular point of time would defeat the very object of
constituting the Commission. The purpose for which the said
provision is made is obvious. It was realised by the
framers of the Constitution that the democratic system can
be maintain only if civil servants are appointed solely on
the basis of their merit adjudged by open competition, and
only if they can carry of the administration according to
law independently, instead of under pressure of their
political superiors. Hence they provided for Public Service
Commissions as both the Union and the State level as
autonomous bodies to enable then to carry on their functions
independently, fairly and impartially. Since the
Commission’s main task was to recruit administrative
personnel it was
530
necessary to have on the Commission members with sufficient
administrative experience. To induct persons of experience,
it was imperative to provide that a certain proportion of
the members of the Commission should have had an actual
experience of running the administration so that the
Commission is better able to adjudge the fairness of firness
of persons to be recruited in the administration. However
the very fact that the Service Commission was not proposed
to be constituted of the members from the service category
exclusively also shows that the framers of the Constitution
did not desire that the outlook of the service members
alone should prevail while recruiting the personnel. The
view of the persons from outside the administration was
also considered to be equally imperative in selecting the
personnel. A balance was therefore sought to be struck by
providing the e, in Detecting the proportion between the
two categories of members. It would, however, be naive to
suggest on that account that the framers of the Constitution
presumed to ensure that on all occasions there shall be an
exact balance of views. It is unrealistic to believe that
individuals with different backgrounds always insist on the
acceptance of the outlook dictated by their background alone
and refuse to share the view- point of others. It is
certainly not expected of the members of such high ranking
Constitutional body as the Public Service Commission. We
cannot also lose sight of the fact that the Service
Commissions mostly sit in Committees and are aided and
assisted by the experts from the concerned faculties,
disciplines and departments. The Committees take their
decision collectively after due deliberations and
discussions. It is, therefore, the composition of these
Committees and not so much the composition of the Commission
at any particular point of time that matters.
Hence, we are unable to subscribe to the view that the
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proviso to Article 316 [1] requiring that as nearly as may
be one-half of the members of the Public Service Commission
shall be from service category leaves no option to the
Appointing Authority under any circumstance whatever, to
allow reduction of representation from that category and a
breach of the said requirement by reason of appointment of
a member from non-service category vitiates such appointment
or the duties performed by such appointee as a member of the
Public Service Commission.
The learned counsel for the appellant went so far as to
contend that the said requirement constituted a
qualification of the member to be appointed every time a
vacancy is to be filled. According to him depending
531
upon the shortfall in the representation of the respective
category the member to be appointed has to be either form
the service or non-service category as the case may be and
that is an essential qualification for his appointment. The
argument was that is an essential as in the present case,
the representation of the service members of the Commission
fell short of 50% then all persons to the appointed on the
Commission till the said proposition was made up had to be
from the service ctegory that being their necessary
qualification. It is not possible to accept this contention
for the simple reason that as pointed out earlier, it may be
possible to get a suitable person either from service or
non-service category over a period of time and for want of
suitable candidates from the concerned category, the
vacancies on the Commission may remain unfilled during that
period. The persons from the other category are available
during that period. The reasonable interpretation of the
said proviso therefore is to treat it not as a strict
rule to be enforced but as a binding gudeline to be followed
in practice in spirit as far as possible and without
deliberately flouting it, Hence it is not possible to hold
that merely because at the time of appointment of
respondent no. 6 there were four service members and six
non-service members he was disqualified for being appointed
as the 7th member from the non-service category.
5. The, second attack which is based upon the blindness of
respondent No.6 is equally myopic. As has been pointed out
earlier respondent no.6 been blind from his childhood. In
spite of his blindness he acquired high educational
qualifications and in fact at the time of his appointment he
was an Associate Professor in the Patna University. He is an
acknowledged scholar of English Although the Government has
now come forward to disown any knowledge about his complete
blindness from the childhood, with which we will deal
instantly they must be presumed to have known the said
infirmity and should be deemed to have formed the opinion
that in spite of his blindness, he was fit to be a member of
thel Commission. We see no reason to hold otherwise in the
circimstances pointed out by respondent no. 6 in his
affidavit to which we have already referred. Nothing
concrete has also been brought on record to show that he
has failed ot perform his duties as a member of the
Commission efficiently because of his blindness. On the
other hand as has been pointed out earlier the State
Government itself had recommended him for ’Padmashree’ for
his efficient discharge of the work as a member of the
Commission and that too over a short span of few months. We
are also in agreement with the contentin advanced on his
behalf that
532
except the external appearance of the candidates appearing
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before him, he is able to ascertain the required merits or
demerits of the Candidates, as do the other members of the
Commission. The Commission, as it normally should, operates
through Committees, and as regards the external appearance,
the other members of the Committees give him the required
information on the basis of which he is able to assess the
overall merit of the candidates. The external appearance of
the candidates is also not of importance in all ap-
pointments. What is futher necessary to note is that for
selecting the candidates for almost all disciplines and
departments, the experts from the concerned departments do
sit in the Committees and the opinion of the experts
ordinarily prevails in such appointments since the members
of the Committees, who are the members of the Commission, do
not have the expertise. in the relevant fields. This shows
that all members of the Commission sitting on the interview
Committees have also to be guided in their opinion by the
experts. If respondent No. 6 has to take guidance only in
the matter of external appearance of the candidates, all
members of the Commission have to be guided by the experts
with regard to the most vital equipment of the candidates,
viz., the intellectual calibre and the proficiency of the
candidates in the relevant subjects. There is, therefore,
nothing wrong if only for external appearance, for which
only a small percentage of the total marks is reserved,
respondent No. 6 has to depend on the advice, opinion or
guidance of the other members of the Committees and the
Commission. The decision of the interview board is always a
collective one and is taken after deliberation on the merits
and demerits of the candidates which are evaluated on the
basis of various factors. We are, therefore, unable to see
as to how, in the circumstances, respondent No. 6 is unfit
to carry on his duties as a member of the Commission because
of his blindness.
6.-The attack, however, was sought to be strengthened by
relying on the provisions of sub-clause [c] of Clause [3] of
Article 317 of the Constitution which provides for removal
of a member of the Public Service Commission on the ground
that he is, in the opinion of the President, unfit to
continue in office by reason of infirmity of mind or body.
The argument was that the blindness was infirmity of body
and if it is a ground for removal from office, it is much
more a disqualification for appointment and hence respondent
No. 6 should be prevented from continuing in his office.
We are afraid that the first premise on which this limb of
the argument is based misses the obvious fact, viz., that by
"infirmity of body"
533
what is spoken of in the sub-clause in question, is an
infirmity which disables the Member from discharging his
functions as such member effectively. It is not every
infirmity of body or every loss of use of any limb of the
body. The defect or deficiency must be such as would
disable the Member from carrying out his duties
satisfactorily and consistent with the trust reposed in him.
We have already pointed out that not only the blandness of
respondent No. 6 does not prevent him from discharging his
duties expected of him, but in fact the services rendered by
him as such member have been eulogised and commended for a
National Award by no other than the State Government itself
and the Chairman of the Commission who had the first-hand
knowledge of his functioning. This is apart from the fact
that the Governor who appointed him on the advice of the
Council of Ministers is presumed to have done so after
satisfying himself that the loss of eye-sight was not an
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infirmity which would impede him in the discharge of his
duties. The infirmity of body or mind which is referred to
in the sub-clause, further must necessarily be such as has
arisen after the appointment and not the one which existed
at the time of the appointment unless of course, the
Government was unaware of the same at the time of the
appointment.
7. We may now turn to the affidavit filed on behalf of the
State Government. A reading of the said affidavit leaves no
doubt in our mind that it has been filed only to prejudice
the case of respondent No. 6 before us because, for some
reasons, he has fallen foul some persons in power. As is
evident from the portions of the affidavit reproduced above,
firstly, a case is sought to be made out there that
respondent No.6 was appointed as the ’non-Government member’
of the Commission only because the proviso of Article 316 11
is not mandatory. That may be so. But the affidavit then
proceeds to state almost in relenting terms that although
the said proviso is not mandatory, that by itself is not a
good ground for departing from the "suggestion of the
Constitution" and hence the appointment of respondent No. 6
"as the 7th non-Government member" was not justified. It is
not clear as to when this wisdom dawned on the Government
for the first time. The record further does not show as to
who had suggested his name to the Governor and whether the
decision was taken by the Council of Ministers as a whole or
by the Chief Minister or any of his colleagues alone and
what advice was received or obtained by them, if at all,
while making the appointment. We are however, happy to
know that
534
the State Government "upon reconsideration of the entire
matter under controversy feels that the words of the
Constitution have to be interpreted in letter and spirit and
any departure from the express words of Constitu-
tion....... should be done only for sound and good
reasons". We only hope that the State Government keeps
that solemn declaration in mind for all purpose and for all
times to come and does not forget it the moment the ink in
the present proceedings dries.
But more breast-beating of the Government is on the second
issue viz, the blindness of respondent no.6 The affidavit
states that at the time of the appointment "the aspect about
his blindness was not specifically considered as the same
was stated in the Bio-data of the respondent no. 6 in a very
casual way and in such a manner that it had escaped the
attention of the Constitutional authorities at the time of
recommending the respondent no.6 for
appointment .........". not to be outdone by this ludicrous
averment, the affidavit proceeds to state "that respondent
No. 6 in his bio-data while praising his achievements, had
only stated that he is the first blind person to have been
awarded Ph.D. There was no mention whether such blindness
was subsequent to birth or whether such blindness was
congenital..... There was [sic] also no details in the Bio-
data stating whether such blindness was complete, or the
same was partial, temporary, curable or not curable. It is
then the case of the State Government that in the view of
these facts the aspect above the blindness of the respondent
No. 6 was not specifically considered by any of the
Constituitonal authorities who are involved in the
appointment of a member to state Public Service
Commission". Since the affiant himself has brought into
picture the "Constitutional Authorities who are involved in
the appointment the aspect of the blindness of respondent
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no.6 was not specifically of a member to the State Public
Service Commission and has Stated that considered by them,
we cannot help observing that the affiant by making such
statement as made the Constitution authorities look
ridiculous and their functioning a mockery in the eyes of
the public. We are anguished more on account of the that
state Government should have considered it compulsive to
allow such blatantly rabid statement s to be made on the
oath with impunity. No responsible public authority could
have aware the that respondent No.6 was totally blindly
from his childhood, when that made the client that none of
the constitutional functionaries concerned was fact must
have been widely known in the State and in all probability
the extra-ordinary abilities exhibited by him despite his
blindness must have
535
been the main reason for his appointment as a member of the
Public Service Commission. Any statement seems to be good
enough, whether true or untrue, so long as it is considered
serviceable for thee immediate purpose in hand. We refrain
from making more comments which certainly such affidavits
deserve, in ample measure, and let the affidavit speak for
itself.
The affidavit further states that while conducting the
interviews, members of the Commission have to visually
interview each of the candidates to determine his
suitability and after the appointment of respondent No. 6
"it has come to the notice of the respondent-State that the
blindness of the respondent No. 6 is clearly hampering the
effective discharge of official duties by him. It is
necessary to remember in this ’ connection that this
affidavit has been filled on 23rd January 1993. Respondent
No.6 had filed his affidavit on 7th October, 1992.In that
affidavit, respondent No. 6 has, among other things referred
to,the certificate given by respondent No.5, Dr. Ram
Ashray, Yadav, Chairma of the Public Service Commission on
11th September 1991 where he has stated that respondent No.
6 "has been performing his duties with exceptional excel-
lence without letting his blindness hinder his work. I
strongly recommend that Dr. Thakur be awarded National Award
in recognition of his excellence despite his blindness." He
has also referred in his affidavit to the letter of 22nd
October, 1991 of the State Government to the Union Home
Ministry recommending him for,the award of "Padmashree" for
his services as a Member of the Public Service Commission.
Neither the certificate nor the letter has been controverted
by the Chairman and. the Government. In the face of the
certificate and the Said recommendatory letter, it is
difficult to understand the basis on which it is now stated
in the affidavit that the blindness of respondent No.6 is
hampering his work. There is, therefore, no doubt in our
mind that the affidavit has been filed for the only purpose
of seeking somehow the removal of respondent
no.6 .Respondent No. 6 in his affidavit has alleged that he
has since fallen ’but the respondent No. 5, the Chairman of
the Commission and the Chairman is bent upon ousting him
from the Commission. To shows the animosity of the Chairman
towards him he has given a list of events alongwith his
affidavit. These events have not been in controverted. The
High Court has referred to some of these events in
paragraph 6 of its judgment. Since they have a bearing On
the Governments comments on his performance, we may
reproduce the events catalogued by the High Court.
536
"1. His P.A. has been replaced;
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2. His chamber, which contains two almirahs
containing documents, has been locked up;
3. The service of the reader, who is to
read to him documents and journals and other
papers is not being provided to him and his
services have been terminated;
4. The use of staff car by him has been
stopped;
5. His orderly has been transferred;
6. The Chairman of the Commission has
issued instructions not to receive any
document from him or to obey his orders;
7. His telephone bill for the month of Oct.
1991, for Rs. 598 only has not been paid
though a sum of Rs. 18,154 on account of
telephone bill of the Chairman’s residence has
been paid.
8. The newspaper allowance payable to him
is not being paid;
9. He has not been allowed to attend the
meetings of the Commission held on 11th
December. 20th December and 31st December,
1991 and he is not aware when any other
meeting has been held thereafter or not in as
much as he has not been provided with any
notice in respect of the same;
10. He has been physically prevented from
going to inside [sic.] the campus of the
Commission since 28th of November, 1991."
In the list of events accompanying his counter-affidavit he
has also referred to other incidents such as the attempted
physical assault on him by the Chairman during a meeting of
the Commission, the threats of physical liquidation
administered from the telephonic line of the Chairman, the
complaints made by him to the police, to the Chief Minister
and to the
537
Governor etc. We do not desire to burden this judgement,
with the said details.
it is also not necessary to make any comment upon the
aforesaid events since they speak for themselves. They only
reinforce the conclusion that the belated claim of the State
Government that the appointment of respondent No.6 is
invalid and that his blindness hampers the discharge of his
duties has its obvious roots in the strained relations
between him on the one hand and the Chairman and the State
Government on the other.
8. While, therefore, dismissing appeal in the special
facts of the case,, we also direct both the appellant and
the respondent-State of pay the costs of this appeal to
respondent No.6, in the amounts of Rs. 5,000 and Rs., 10,000
respectively.
P.S.S. Anneal dismissed.
538