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Governor may frame rules & procedure for the appointment of chairman & members of the Public Service Commission in the absence of any rule: Himachal Pradesh HC

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Himachal Pradesh High Court dismissed the petition challenging the appointment of ‘Member’ of Himachal Pradesh Public Service Commission and seeking directions to State Government to frame guidelines and parameters for appointment of Chairman and Members of the Himachal Pradesh Public Service Commission.

Acting upon a plea bench of Chief Justice L Narayana Swamy and Justice Jyotsna Rawal Dua said, “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 by issuance of a writ of quo warranto. Therefore, assuming the appointment of the Chairperson or a member of a Commission as a ‘Service matter’, a third party or a complete stranger such as, the writ petitioner, cannot approach the Tribunal or High Court to challenge the appointment of Respondent No 3 (Member).”

The Petitioner, a law student, challenged the appointment of a member of Himachal Pradesh Public Service Commission and further prayed court to direct the government to frame the guidelines and parameters for the appointment of chairman and members of HPPSC. While stating the facts to the Court, the counsel for the Petitioner informed the court that the Chief Minster recommended the name of the Respondent number 3 (member of the HPPSC) followed by the assent by the Governor of the Himachal Pradesh without due consideration to the all necessary facts and constitution norms. It was informed to the court that the Respondent number 3 has been an accused in one of the matter of PMLA wherein the charge sheet has been field in the respective Court. The Respondents specifically the government of the Himachal Pradesh took a stand that while making the appointment necessary criteria was taken from the constitution and Respondent number 3 had fulfilled those set of criteria of serving to the Government for more than 10 years. It was further replied that the said FIR and subsequent charge sheet filed in the case of Prevention of Money Laundering Case has already discharged the respondent number 3. It was further held that the petition is not maintainable to the extent to provide the government to issue the guidelines for the appointment of the chairman and its members of the HPPSC.

The Hon’ble Court while analyzing the facts made some observation regarding the motive of the petitioner in approaching the court. The Court mentioned that the Petitioner did not come with the clean hand as he did not entail the details of the procurement of the various documents including FIRs and charge sheet against the respondent number 3. Further, they mentioned the various judgments including one Salil Sabhlok case,

“45. 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 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 Commission’s enumerated in Article 320 of the Constitution. Under clause (1) of Article 320 of the Constitution, the State Public   Service   Commission   has   the   duty   to   conduct examinations for appointments to the services of the State. Under  clause   (3)   of   Article  320,   the  State  Public  Service Commission has to be consulted by the State Government on matters relating to recruitment and appointment to the civil services and civil posts in the State, on disciplinary matters affecting a person serving under the Government of a State in a civil capacity, on claims by and in respect of a person who is serving under the State Government towards costs of defending a legal proceeding, on claims for award of pension in respect of injuries sustained by a person while serving under   the   State   Government   and   other   matters.   In   such 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.”

“46………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 power is merely   to   grant   or   refuse   a   license,   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 (Page282)”

The court finally observed that the said respondent has fulfilled the criteria given under the constitution and contended FIRs too have discharged her name and she is eligible to remain on her post. The Court, though, has suggested the State of Himachal Pradesh to step in and take urgent steps to frame memorandum of procedure and parameters fort the selection and appointment of the chairperson and member of the commission so that arbitrariness can be eliminated. The petition was dismissed without any cost.

-India Legal Bureau 

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