# [2010] 14 S.C.R. 647

- **Citation:** [2010] 14 S.C.R. 647
- **Court:** Supreme Court of India
- **Decided:** 2010-11-12
- **Bench:** S.H. Kapadia, K.S. Panicker B Radhak~Ishnan, Swatanter Kumar
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/2010-14-s-c-r-647-26502
- **Pages:** 105

## Headnote

Constitution of India, 1950:
Article 317(1)- Reference to Supreme Court for inquiry c
into allegations of misbehaviour against Chairman/Members
.of a Public· Service Commission - Nature of the proceedings
:... Standard of proof- HELD: The proceedings are neither akin
to those under service law nor to those under criminal law -
The nature of such proceedings is sui generis and the Court 0
can evolve its own procedure in consonance with the language
of Article 317 (1) read with the provisions of the Supreme
Court Rules and the principles of natural justice -
The
standard of proof applicable to such cases is not that required
under the criminal jurisprudence, i.e., to prove the charge E
'beyond any reasonable doubt'- The Court is not called upon
to record finding of guilt as if in a criminal case - The charge
has to be construed in a liberal manner so as to ensure
completion of inquiry in terms of Article 317(1) while keeping .
in mind the constitutional stature of the office - Where the
facts supported by record point a finger at the Chairman/ F
Member of the Commission with some certainty, it may
amount to misbehaviour in the given facts and circumstances
of a case -
Rule of 'reasonable preponderance of
probabilities' would be the right standard to be applied to such G
cases - Doctrines - Rule of 'reasonable preponderance of
probabilities' - Ma?<im 'Qui non prohibit quod prohibere potest
facere videtur' - Supreme Court Rules, 1966 - Or. 38, Part
i':f, Or. 47, r 6 - lnhere.nt powers of Supreme Court.
647
H
648
SUPREME COURT REPORTS [2010) 14 (ADDL.) S.C.R.
A
Article 317(1) - Reference to Supreme Court - Framing
of articles of charge - HELD: The jurisdiction being of limited
scope, Supreme Court cannot frame such entirely new articles
of charge which have no link, connection or are not
explanatory to the original charges stated in the Reference -
B
However, the Court can examine additional facts/subsequent
events having a direct bearing, as well as additional or
supplementary articles of charge which are explanatory or
intrinsically related to the charges specified in the Reference.
Article 317(1) - Removal of Chairman/Member of a
C Public Service Commission 'on the ground of misbehavior'
- Allegations against the Chairman/Members of improper
selection of a candidate on the basis of bogus certificate
which led to their arrest and prosecution for various offences
under /PC and Prevention of Corruption Act -
The
D expressions 'misbehaviour' (Art.
317(1)),
'proved
misbehaviour' (Article 124) and 'misconduct' (Article 311) -
Explained -
HELD: The expression 'on the ground of
misbehaviour' is an expression of wide connotation and cannot
be given a restricted meaning - It should be understood
E
keeping in view the nature of the misbehaviour complained
of, the office in question and the standard expected to be
maintained by the constitutional body in discharge of its
functions - The term must be construed very liberally so as
to bring within its ambit the behaviour of the Chairman/
F
Membf!Jr of the Commission, which, as per settled norms, was
not expected of him/her - The expression 'misbehaviour'
generally refers to a conduct which might erQde the faith and
confidence of the public at large in such constitutional office
- In the instant case, the conduct of the Chairman/Members
G of the Commission in processing the application of the
. candidate concerned and selecting him does not meet the
standards of behaviour, integrity and rectitude required to be
· maintained by the office they were holding - Their behaviour
in this regard would certainly fall within the ambit of
H misbehaviour justifying their removal from service.
IN RE: MEHAR SINGH SAINI, CHAIRMAN, HPSC
649
Article 317(1) -Allegations against Chairman/Members
A
of a Public Service Commission of withholding the information
required in the investigation into the charges of illegal and
improper selections made by the Commission, and despite
directions by courts, refusing to coo

## Text

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[2010)14 (ADDL.) S.C.R. 647
REFERENCE UNDER ARTICLE 317 (1) N0.2 OF 2008
A
IN RE: MEHAR SINGH SAINI, CHAIRMAN, HPSC AND
ORS.
NOVEMBER 12, 2010
[S.H. KAPADIA, CJI, K.S. PANICKER
B
RADHAK~ISHNAN AND SWATANTER KUMAR, JJ.]
Constitution of India, 1950:
Article 317(1)- Reference to Supreme Court for inquiry c
into allegations of misbehaviour against Chairman/Members
.of a Public· Service Commission - Nature of the proceedings
:... Standard of proof- HELD: The proceedings are neither akin
to those under service law nor to those under criminal law -
The nature of such proceedings is sui generis and the Court 0
can evolve its own procedure in consonance with the language
of Article 317 (1) read with the provisions of the Supreme
Court Rules and the principles of natural justice -
The
standard of proof applicable to such cases is not that required
under the criminal jurisprudence, i.e., to prove the charge E
'beyond any reasonable doubt'- The Court is not called upon
to record finding of guilt as if in a criminal case - The charge
has to be construed in a liberal manner so as to ensure
completion of inquiry in terms of Article 317(1) while keeping .
in mind the constitutional stature of the office - Where the
facts supported by record point a finger at the Chairman/ F
Member of the Commission with some certainty, it may
amount to misbehaviour in the given facts and circumstances
of a case -
Rule of 'reasonable preponderance of
probabilities' would be the right standard to be applied to such G
cases - Doctrines - Rule of 'reasonable preponderance of
probabilities' - Ma?<im 'Qui non prohibit quod prohibere potest
facere videtur' - Supreme Court Rules, 1966 - Or. 38, Part
i':f, Or. 47, r 6 - lnhere.nt powers of Supreme Court.
647
H
648
SUPREME COURT REPORTS [2010) 14 (ADDL.) S.C.R.
A
Article 317(1) - Reference to Supreme Court - Framing
of articles of charge - HELD: The jurisdiction being of limited
scope, Supreme Court cannot frame such entirely new articles
of charge which have no link, connection or are not
explanatory to the original charges stated in the Reference -
B
However, the Court can examine additional facts/subsequent
events having a direct bearing, as well as additional or
supplementary articles of charge which are explanatory or
intrinsically related to the charges specified in the Reference.
Article 317(1) - Removal of Chairman/Member of a
C Public Service Commission 'on the ground of misbehavior'
- Allegations against the Chairman/Members of improper
selection of a candidate on the basis of bogus certificate
which led to their arrest and prosecution for various offences
under /PC and Prevention of Corruption Act -
The
D expressions 'misbehaviour' (Art.
317(1)),
'proved
misbehaviour' (Article 124) and 'misconduct' (Article 311) -
Explained -
HELD: The expression 'on the ground of
misbehaviour' is an expression of wide connotation and cannot
be given a restricted meaning - It should be understood
E
keeping in view the nature of the misbehaviour complained
of, the office in question and the standard expected to be
maintained by the constitutional body in discharge of its
functions - The term must be construed very liberally so as
to bring within its ambit the behaviour of the Chairman/
F
Membf!Jr of the Commission, which, as per settled norms, was
not expected of him/her - The expression 'misbehaviour'
generally refers to a conduct which might erQde the faith and
confidence of the public at large in such constitutional office
- In the instant case, the conduct of the Chairman/Members
G of the Commission in processing the application of the
. candidate concerned and selecting him does not meet the
standards of behaviour, integrity and rectitude required to be
· maintained by the office they were holding - Their behaviour
in this regard would certainly fall within the ambit of
H misbehaviour justifying their removal from service.
IN RE: MEHAR SINGH SAINI, CHAIRMAN, HPSC
649
Article 317(1) -Allegations against Chairman/Members
A
of a Public Service Commission of withholding the information
required in the investigation into the charges of illegal and
improper selections made by the Commission, and despite
directions by courts, refusing to cooperate in the investigation
- Claim of privilege and immunity - HELD: It has been
B
established that there was definite non·cooperation on the part
of the Chairman/Members of the Commission in furnishing
records and documents to the investigating agencies and this
attitude of the persons concerned and claim of privilege lacks
·bona fides - High Court has clearly heid that the claim of c
privilege for non-production of documents with reference to
ss. 123 and 124 of the Evidence Act was not sustainable -
State had the right to get the records from the Commission
for the purpose of investigation and on latter's failure,
provisions of s.93 CrPC were rightly invoked- The SLP 0
challenging the order of High Court naving been dismissed,
the order inter se the parties had attained finality and, keeping
in view the doctrine, 'estoppel per rem judicatum', it is
impermissible to examine such an order- Further, there has
been an abuse of the office of Chairman and Members of the
Commission, by the respondents, by withholding the material
E
records, passing resolutions contrary to law, filing incorrect
replies in judicial proceedings and committing manipuiations/
interpolations in regard to answer·sheets of the candidates -
They are guilty of misbehaviour on this count as well -
Doctrine, 'estoppel per rem judicatum' - Judicial propriety -
Evidence Act 1872- ss.123 and 124.
F
Articles 317(1) rlw Article 316- Reference for removal
of Chairman/Members of a Public Service Commission on
the ground that their qualifications, experience and stature
G
were not of the required standard and their appointments were
made with a view to ensure that they would. further the
objectives of the party in power - HELD: There is no
constitutional requirement of any particular academic
qualification for appointment as Officiai!Nor;·official Member H
650 SUPREME COURT REPORTS [2010] 14 (ADDL.) S.C.R.
A of the Commission - On facts, it cannot be said t~at the
incumbents were guilty of misbehaviour on this count.
Article 316 - Appointment of Chairman/Members of a
Public Service Commission -
Desirability of providing
8 qualification or experience -
HELD · /s a function of
Parliament and it would not be in consonance with the
constitutional scheme that Supreme Courl should venture into
reading any specific qualifications in Article 316 or provide
any specific guidelines in this regard - However, keeping in
view the number of cases referred to Supreme Court in terms
C of Article 317(1) in recent years itself needs the attention of
Parliamentarians and the quarters concerned to this aspect.
Evidence:
0
Proceedings under Arlicle 317(1) of the Constitution -
Record of judicial proceedings, to which the respondents were
parlies, produced before Supreme Courl - HELD: Production
of such material has not caused any prejudice to the
respondents - They had full opporlunity to defend themselves
E in the inquiry- They were granted liberty to rebut the evidence
led against them but they did not do so - The reply filed by
them is vague and ex facie unsatisfactory.
Administrative Law:
F
Public functionaries - Chairman/Members of a Public
Service Commission - Accepting of application after the last
date - Manipulation in the date of its receipt - Selecti0n of
the candidate on the basis of bogus certificate - HELD: Public
Service Commissions are expected to adopt a fair and
G judicious process of selection to ensure that deserving and
meritorious candidates are inducted in State services - In the
instant case, the process adopted by the Commission, its
Chairman and Members was not in consonance with the
known canons of administrative jurisprudence - The conduct
H of Chairman and Members not Of!IY shows omissions and
IN RE: MEHAR SINGH SAINI, CHAIRMAN, HPSC
651
commissions on their part, but administrative lapses as wellA
Constitution of India, 1950- Article 317(1).
The Haryana Public Service Commission was
reconstituted with the appointments of its Chairman and
Members between 5.7.2004 and 15.12.2004. It came to the
notice of the subsequent Government that various
irregularities and illegalities, such as acts of favouritism,
discrimination and violation of rules/regulations had been
committed by the Commission in the process of
selection. Vigilance enquiries were initiated. First
Information Reports were registered for the alleged
C
irregularities, illegalities and acts of commissions and
omissions by the Chairman and the Members of the
Commission. For the investigations and enquiries,
records were. required by the investigating agencies, -but
the Commission did not furnish the same nor did it D
cooperate at all in tt.e investigation. Ultimately, the
Governor of the State made a reference to the President
B
of India who, in turn referred the matter to the Supreme
Court under Article 31_7 (1) of the Constitution of India,
1950 for enquiry and report "as to whether the existing
Chairman and Members of the Haryana Public Service
Commission, ought, on the grounds of misbehaviour, be
removed from the office of the Chairman and Members
of the Commission."
In the Presidential Reference, the charges against
E
F
the Chairman and the Members were: (i) that there were
.serious irregularities in the appointments made to the
posts of Chairman .and Members of the Commission;
which .were made without due regard to their G
qualifications, experieJ:lce, status and accomplishments,
required. f9r the said constitutional posts; (ii) that four
Members of the Selection Committee (one of whom later
became the Chairman of. the· Commission) recommended
the name of one 'PS' for the post of Drug Inspector on
H
652
SUPREME COURT REPORTS [2010] 14 (ADDL.) S.C.R.
A the basis of a bogus certificate for which an investigation
was conducted by the State Vigilance Bureau and, ·
subsequently, an FIR was registered against these
persons for various offences under the Penal Code and
the Prevention of Corruption Act, 1988 and for which
8
these persons were arrested and the challan was filed in
the trial court; and (iii) that the Chairman and eight
Members of the Commission, in spite of the directions
issued by the Supreme Court, refused to co~operate in
the investigation being carried out by the State Vigilance
c Bureau in the complaints regarding selections made by
the Commission.
By order dated 9.8.2008 passed by the Governor of
the State, the Chairman and all the Members were placed
under suspension. Meanwhile six Members vacated the
D office as their term ended by effiux of time, and the
Chairman ('MSS') and two Members ('SS' and 'RK'), the
respondents, continued as the Chairman and the
Members under suspension. The legality of the order of
suspension was challenged before the Supreme Court in
E a writ petition, which was dismissed and, as such, the
su~pension order attained finality1•
~
During the pendency of the matter before the
Supreme Court and because of subsequent events, the
F State Government filed additional articles of charge and,
ultimately, nine articles of charge (including Articles 9f
charges 1 to 3 as mentioned in the reference) were
approved by the Court for consideration.
It was contended for the respondents that the
G jurisdiction of the Court in terms of Article 317(1) of the
Constitution was a limited one and the Court had to
conduct i~ inquiry and record its findings in the report
only in. relation to the articles of charge referred to by the
1. Ram Kumar Kashyap v. Union of India [2009] 12 SCR 601=(2009) 9 SCC
H
378
IN RE: MEHAR SINGH SAINI, CHAIRMAN, HPSC
653
President in exercise of its powers under Article 317(1),
A
and it had no jurisdiction to go into the merits or
otherwise of the additional articles of charge; that there
was no evidence on record to substantiate any of the
approved articles of charge.
The question for consideration before the Court
was: whether the conduct of the Chairman/Members of
the Commission amounted to misbehaviour in the light
B
of the approved articles of charge and the evidence.
produced on record, which would justify their removal· in C
terms of Article 317 (1) of the Constitution?
Answering the reference in the affirmative, the Court
HELD:
1.1 The proceedings before this Court under Article 0
173(1) of the Constitution of India, 1950 are neither akin
to proceedings under service law nor criminal law. The
procedure for removal has neither been stated in the
Constitution in detail nor has this ~ Court framed an.y
';:elaborate rules in exercise of its power under Article 145 E
of the Constitution. The nature of the proceeding is such
that it may become necessary for the Court to adopt a
procedure befitting the facts and circumstances of a
given case. The burden of pr~of applicable to such cases
is not that required under the criminal jurisprudence, i.e.,
F
to prove the charge 'beyond any _reasonable doubt'. Rule
of *reasonable preponderance of probabilities' would be
the right standard to be applied to ·such cases. The Court
is not called upon to record finding of guilt as if in a
criminal case. The charge has to ~e construed in a liberal G
manner so as to ensure completion of inquiry In terms
of Article 317(1) of the Constitution while keeping in mind
the constitutional stature of the office. The content and
nature of the proceedings before this Court under Article
317(1) is sui generis and the Court can evolve its own
H
654 .SUPREME COURT REPORTS [2010) 14 (ADDL.) S.C.R.
A procedure in consonance with the principles of natural
justice to suit the facts of a given case and to ensure that
ends of justice are achieved and there is no abuse of the
process of Court. [para 33,35 and 86] [703-G-H; 704-A-C;
7 48-E-G; 705-D]
B
1.2 The Supreme Court, in exercise of its power
under Article 145 of the Constitution of India, 1950, has,
with the approval of the President, framed Supreme Court
Rules, 1966 for regulating generally the practice and
procedure of this Court and has provided rules under
C Part VI, Order XXXVIII thereof for conducting inquiry
under Article 317(1) of the Constitution. But a plain
reading of the Rules clearly shows that no detailed
procedure has been provided so far, as to how and in
what manner the inquiry shall be conducted and what
D shall be the scope of the inquiry and the manner in which
the evidence shall be recorded. Thus, it has been left to·
the discretion of this Court to follow a procedure which
is in consonance with the language of Article 317(1), read
with the Rules and principles of natural justice. Inherent
E power of this Court is wide enough to enunciate such a
procedure, with reference to the facts and circumstances
of a given case, as Rule 6 of Order XLVII of the Supreme
Court Rules specifically provides that nothing in these
Rules shalf be deemed to limit or otherwise affect the
F inherent powers of the Court to make such orders, as
may be necessary for the ends of justice, or to prevent
abuse of the process of the Court. [para 24,25 and 27]
[694-H; 695-A-B; G-H; 696-A-B]
G
2.1 The articles of charge, which are referred to the
Supreme Court by the President, are the very foundation
of the reference proceedings. The reference jurisdiction,
being advisory in nature and, as such, being the
jurisdiction of limited scope in contradistinction to the
H original or the appellate jurisdiction, the Supreme Court,
IN RE: MEHAR SINGH SAINI, CHAIRMAN, HPSC
655
in exercise of its limited jurisdiction, cannot frame such
A
entirely new articles of charge which have no link,
connection or are not even explanatory to the original
charges stated in the Presidential Reference, nor can it
try them as part of the inquiry being conducted under
Article 317(1) of the Constitution. However, the inquiry s
proceedings before the Supreme Court cannot be
circumscribed by the Presidential Reference under Article
317(1) stricto sensu that too to the extent that the Court
canrtot examine any additional facts/subsequent events
having a direct bearing, additional or supplementary c
articles of charge which are explanatory or intrinsically
related to the charges specified in the Presidential
Reference. The Supreme Court has jurisdiction to
examine additional or explanatory charges, records,
documents, evidence and facts which may come to light 0
even subsequent to the Presidential Reference in
exercise of its advisory jurisdiction under Article 317(1)
of the Constitution. [para 27, 30 and 69] [697 -D-E; 701-BC; 733-B]
Reference under Article 317(1) of the Constitution of India
E
[1983] 3 SCR 639 = (1983) 4 SCC 258; and Supreme Court
Advocate-on-Record Association v. Union of India 1993 (2)
Suppl. SCR 659 = (1993) 4 SCC 441 - relied on.
Reference under Article 317 ( 1) of the Constitution of India
F
[1983] 3 SCR 639=(1983) 4 SCC 258; andRe: Smt. Sayalee
Sanjeev Joshi 2001 {7) SCR 116 = (2007) 11 SCC 547 -
referred to.
Re: Smt. Sayalee Sanjeev Joshi 2007 (7) SCR 116 =
(2007) 11 SCC 547; Ram Kumar Kashyap v. Union of India
G
[2009] 12 SCR 601=(2009) 9 sec 378- relied on.
2.2 Charges 3, 5 and 9, relate to refusal on the part
of all the respondents to cooperate and to supply
documents withholding of the material records which
H
656
SUPREME COURT REPORTS [2010) 14 (ADDL.) S.C.R.
A were required by the investigating agencies as well as by
the Government. Charges 5 and 9, as approved by the
Court, thus, are explanatory and intrinsically interconnected to Charge 3 as was mentioned in the
Presidential Reference Thus, these can be examined by
8 the Court on merits. Charge 4, in fact, is repetition in a
concise form of the paragraphs mentioned in the letter ,
of the Governor addressed to the President of India,
which itself is the foundation for making of the Reference
by the President. The illegalities, ma.nipulations and
c interpolations had been · referred to not only on the
records of this case but even in the writ petitions filed
before the High Court. In terms of para 8 of Governor's
letter, it is alleged that a reply had been ·filed by the
Chairman and Members of the Commission in an unlawful
0 manner to cover up their own mistakes. Further, Charge
8 is merely ancillary to Charge 4 which its.elf is not beyond
the record which was placed before the President and,
in any case, all these facts have come to light
subsequently. [para 39-40] [707-A, F-G; 708-A-B]
E
2.3 Charges 6 and 7 of approved articles of charge
are inter-connected. These pertain to the alleged
malicious acts of influencing the subordinates to carry
out intended manipulations to favour desired persons in
selectiqns, and the alleged conduct of the Chairman in
F defending such patently iUegal acts. However, it may be
noted that these approved articles of charge are totally
independent and are not incidental or explanatory to the
articles of charge specifjed in the Presidential Reference.
They do not even emerge directly from the record
G produced before this Court. Charges 6 and 7, therefore,
do not require examination by this Court as they are exfacie beyond the permissible scope of the Presidential
Reference. Further, though approved articles of charge
have been framed against all the private respondents,
H
IN RE: MEHAR SINGH SAINI, CHAIRMAN, HPSC
657
pending the proceedings, six of them have ceased to be
A
the Members of the Commission as their terms of
appointment have come to an end by efflux of time and,
accepting the request on behalf of the State Government,
this Court would not be examining the alleged
misbehaviour of these private respondents. [para 41 and
B
49] [708-0, 715-G-H; 716-A-0]
Reference 1 of 1983 (1990) 4 SCC 262- referred to.
3.1 Higher .the public office, greater is the
responsibility. The adverse impact of lack of probity in C
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 State.
The working of the Public Service Commission and its D
Members has to be of impeccable int~grity and rectitude.
The object should be to provide the best persons from
the available candidates for appointment in the State/
Central cadres. This has to be done by adopt'ing a
judicious, fair and transparent method of selection, free
E
of influence from any quarter in the Government or
otherwise. [para 2-4 and 22] [673-0; 693-C]
Re: Dr. Ram Ashray Yadav, Chairman Bihar PSC 2000
(2) SCR 688 = (2000) 4 sec 309 - relied on
Metropolitan Properties Co. vs. Lannon (1968) 3 All ER
304 - referred to
French Administrative Law by Profs. Brown and
Garner's, 3rd ed. (1983) - referred to.
G
3.2 'Misbehaviour' in contradistinction to 'misconduct'
and 'proved misbehaviour'
The condition precedent to an order being passed by
H
658 SUPREME COURT REPORTS [2010] 14 (ADDL.) S.C.R.
A the President of India, removing the Chairman/Member of
the Commission from office, is a report of the Supreme
Court to the President recording a finding after inquiry
that the Chairman/Member ought to be removed from
office on the ground of misbehaviour. The plain language
s of Article 317(1) indicates that the expression 'on the
ground of misbehaviour' is an expression of wide
connotation and cannot be given a restricted meaning.
Normally, such term should be understood keeping in
view the nature of the misbehaviour complained of, the
c office in question and the standards expected to be
maintained by the constitutional body in discharge of its
functions. [para 42] [709-C-D]
3.3 The framers of the Constitution opted to use
different expressions in other Articles relating to
D misconduct or misbehaviour of other Constitutional
institutions. This itself indicates the clarion intent of the
framers to correlate a misconduct or misbehaviour to the
constitutional status held by the person in terms of
expected standards of performance, functions, integrity
E and rectitude. While in Article 317(1) of the Constitution
the expression 'on the ground of misbehaviour' has been ·
used, which is to be established by the report of this
Court, in Article 124{4) the expression 'on the ground of
proved misbehaviour or incapacity' indicates a condition
F precedent to removal of a Judge of the Supreme Court
from office. To demonstrate this clear distinction,
reference can usefully be made to Article 311 of the
Constitution dealing with civil services. The concept of
doctrine of pleasure, which is applicable to civil servants,
G Is not attracted in the constitutional appointments under
Articles 124 and 316. Removal is possible only when the
conditions postulated under these Articles are satisfied.
[para 42] [709-E-G; 71 0-B]
H
IN RE: MEHAR SINGH SAINI, CHAIRMAN, HPSC
659
Law Lexicon 2nd Ed. 1997 - referred to.
A
Reference No.1 of 2003 (2009) 1 SCC 344 - referred
to.
3.4 Neither 'misbehaviour' nor 'misconduct' has been
defined in the Constitution or even in the Central Civil .8
Services (Classification, Control and Appeal) Rules, 1965.
Once an expression has not been defined, then it must
be understood and explained in its common parlance,
keeping in view the object sought to be achieved.
'Misbehaviour', when employed in respect of holders of C
high offices, has a well understood and well defined
meaning according to the tradition and standards
maintained b:,t the members of a particular service or
office. [para 45] [711-F-H; 712-A]
R.P. Kapurv. S. Partap Singh Kairon [(1961) 63 Punj LR
780- referred to. Narotanmal Chouraria v. M. R. ·Murli 2004
D
(1 ) Suppl. SCR 266 = (2004) 5 sec 689; and State of
Punjab v. Ram Singh Ex-Constable 1992 ( 3 ) SCR 634 =
(1992) 4 SCC 54; and Union of India v. J. Ahmed 1979 ( 3) E
SCR 504 = [(1979) 2 SCC 286 - referred to.
3.5 All these expressions, namely, 'misbehaviour',
'proved misbehaviour' and 'misconduct', fall under
different domains of jurisdiction and operate in distinct
and different fields. The distinction, primarily, is that of P
degree, intent and expected standard required to be
maintained in relation to the office that the delinquent
holds. Onus of proof and severjty of misconduct will be
relatable to the office one is holding. Misconduct may
relate to graver acts, deeds and omissions while G
misbehaviour may relate to the standards expected to be
maintained by the holder of the constitutional office.
Thus, misbehaviour/misconduct could be used
interchangeably in certain circumstances while in other
H
660
SUPREME COURT REPORTS [2010] 14 (ADDL.) S.C.R.
A they may have to be understood as clearly
distinguishable. [para 48] [715-A-C]
Sub-Committee on Judicial Accountability v. Union of
India 1991 (2) Suppl. SCR 1 = (1991) 4 SCC 699 - relied
8 on.
3.6 'Misbehaviour' may include behaviour that was
not expected of the holder of the constitutional office but
would not include 'grave misconduct' or 'proved
misbehaviour'. This distinction has to be kept in mind by
C this Court where the constitutional mandate refers to
'misbehaviour' which is an expression of very wide
magnitude. This term must be construed very liberally so
as to bring within its ambit the behaviour of the
Chairman/Member of the Commission which, as per
D settled norms, was not expected of him/her. The
expression 'misbehaviour' generally refers to a conduct
which might erode the faith and confidence of the public
at large in such constitutional office.
Where the facts
supported by record point a finger at the Chairman/
E Member of the Commission with some certainty, it may
amount to misbehav!our in the given facts and
circumstances of a case. [para 48 and 86] [715-0-E]
Reference No. ·J of 2003 - referred to.
F
4.1 Article of Charge 1
It is alleged that the qualifications, experience and
stature of the Chairman and Members (respondents 1,8
and 9) were not of the required standard for appointment
G to their respective constitutional offices and their
appointments were made with a view to ensure that they
would further the objectives of the political party, then in
power; and thus, by conniving in the subversion of the
Constitution, they are guilty of misbehaviour under Article
H
IN RE: MEHAR SINGH SAINI, CHAIRMAN, HPSC
661
317(1) of the Constitution. It needs to be noticed that the A
words 'by conniving in the subversion of the
Constitution' are introduced in the draft charges which,
of course, stand approved by this Court. In any case, this
is only an explanatory line and does not change the
content and meaning of this article of charge, as stated B
in the Presidential Reference. [para 50 and 51] [716-E-G)
4.2 Appointment to the offices of Chairman and
Members of the Commission are made by the Governor
of the State in terms of Article 316 of the Constitution.
Under the proviso to Article 316(1 ), one half of the C
members of the Commission shall be persons who, at the
dates of their respective appointments, have held an
office either under the Government of India or under the
Government of a State for at least 10 years; these
members are termed as 'Official Members'. The remaining D
half of the 'Non-official Members' of the Commission can
be appointed by the Governor in accordance with law. 'In
accordance with law' means that the appointments are to
be made on the recommendation of the State
Government, as the Governor has to act on the advice of E
the Council of Ministers. The provisions of Article 316 do
not lay down any qualification, educational or otherwise,
for appointment to the Commission as Chairman/Member.
Even for the Official Members no specific academic
qualification has been provided. Thus, there is no F
constitutio.nal requirement of any particular ac~demic
qualification for appointment as Official/Non-official
Member of the Commission. Therefore, it cannot be held
that the respondents are guilty of misbehaviour and can
be removed from their office in terms of Article 317(1) of G
the Constitution nor can it be said 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
662
SUPREME COURT REPORTS (2010] 14 (ADDL.) S.C.R.
A
defeat the very object of constituting the Commission.
[para 51] [716-H; 717-A-H]
*Jai Shankar Prasad v. State of Bihar 1993 (2)
SCR 517 = (1993) 2 SCC 597 -referred to.
B
Re: Dr. Ram Ashray Yadav, Chairman Bihar PSC 2000
( 2 ) SCR 688 = (2000) 4 SCC 309; lnderpreet Singh
Kahlon v. State of Punjab 2006 (1 ) Sup pl. SCR 772 = (2006)
11 sec 356 - referred to.
c
4.3 In the instant case, the Chairman was a private
practitioner holding a BAMS degree. He was from the
Non-official category and, as such, the experience of ten
years as Government appointee would not apply to him.
Similar is the case with regard to respondent No. 8, a
0
teacher. Respondent No.9, who has been appointed to
the Commission as Official Member, possessed ten· years
experience of holding Government office. In the case of
an Official Member, it is nowhere spelt out as to which
cadre in the official hierarchy, he should have experience
E
of 10 years. In these circumstances, the Government has
failed to prove Charge 1 and it is held, that the three
respondents, namely, the Chairman and two Members,
are not guilty of any misbehaviour as contemplated
u·nder Article 317(1) on this count. [para 54] [720-G-H; 721F
A-D]
4.4 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
G stature, if required to be specified are for the appropriate
Government to frame. It will not be in consonance with
the constitutional scheme that this Court should venture
into reading any specific qualifications into Article 316 or
provide any specific guidelines controlling the academic
H qualification, experience and stature of an individual who
IN RE: MEHAR SINGH SAINI, CHAIRMAN, HPSC
663
is proposed to be appointed to this coveted office. A
However, this Court still feels constrained to observe that
this is a matter which needs the attention of
Parliamentarians and quarters concerned in the
Governments. One of the factors, which has persuaded
this Court to make this observation, is the number of B
cases which have been refer..-ed 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 t~is Court which itself reflects that all
is not well with the functioning of the Commissions. [para c
53] [719-H; 720-A-0]
5.1 Article of Charge 2 is simpliciter relating to
improper selection of one 'PS' for the post of Drug
Inspector for. which he was recommended at serial
number 1 and was, subsequently, appointed by the D
Government. The approved article of charge may not
spell out every minute detail of the improper selection ·
but, in substance and keeping in view the dignity of the
office of the Com.mission, it would be sufficient if a
serious suspicion is cast on the process of selection E
which is attributable to and/or is the result of commission
or omission of the members of the Selection Committee.
[para 55 and 57] [722-G-H]
5.2 The State Government had advertised various . F
posts including two posts of Drug Inspectors with the
essential qualification and experience for the same. The
qualifications could not be relaxed at the discretion of the ·
Commission. 'PS' submitted his application dated
9.9.2004, after the last date, i.e., 3.9.2004. However, G
respondent No.5 initialled the application with the date as
3rd September, 2004. This, obviously, means that the
endorsement by respondent No. 5 on the application was
ante-dated to the actual date of receipt of the application.
H
664
SUPREME COURT REPORTS [2010] 14 (ADDL.) S.C.R.
A
This application having been received after the
prescribed last date ought to have been rejected at the
very threshold. Further, in column No.12 of the
application, the applicant had not stated that he had any
experience of teaching on regular and/or voluntary basis.
B
However, he had annexed to the application copies of
two experience certificates from two institutions situate
in two states, which indicated that he was shown to have
worked at two places during the same period. A
complaint was received making a specific allegation that
c the experience certificate furnished by 'PS' was bogus.
Despite these -defects, the application was processed.
Further, despite the fact that there were more competent
and meritorious candidates available, he was selected
and placed at serial No.1. In response to the complaint,
0
a note was put up to state that neither the complainant
nor 'PS' was a candidate for the post and, therefore, no
action was required to be taken. It was put up for
consideration of a Member of the Commission, who
approved its filing and then it was also signed by the
Chairman of the Commission. It needs to be noticed that
E this process adopted by the Commission and,
partic.ularly, by its Member and Chairman was not in
consonance with the known canons of administrative
jurisprudence. Despite the complaint, the results were
approved by the Chairman and Members of the
F
Commission. The private respondents had signed those
minutes and forwarded the names to the Government.
Such conduct of the Chairman and the Members of the
Commission
not only shows
omissions
and
commissions on their part but administrative lapses as
G well. This resulted in providing employme_nt to an
undeserving candidate at the cost of more meritOrious
candidates. [para 5.7,59 and 61] [725 ~F~H; 726~0]
5.3 Definite documenta,.Y and oral evidence had been.
H
IN RE: MEHAR SINGH SAINI, CHAIRMAN, HPSC
665
produced on record to show that the certificate annexed
A
with the application of ' PS' was not genuine. It is,
therefore, clear that he did not possess the requisite
experience in terms · of the advertisement. Besides, PW20, in his affidavit, has specifically stated that experts,
invited by the. Commission for the selection, were not 8
provided the original record despite demand. Thus, the
members of the Selection Committee, namely, the
respondents, obviously favoured the selection of 'PS'.
Therefore, this Court is of the considered view that the
conduct of the Chairman and the ·Members of the c
Commission, in processing the application of 'PS',
endorsing and aoproving his name for the interview,
selecting him and finally recommending his name for
appointment to the post of Drug Inspector, does not meet
the standards of behaviour, integrity and rectitude 0
required to be maintained by the office they were holding.
Thus, their behaviour with respect to this article of charge
would certainly fall within the ambit of misbehaviour
justifying their removal from office. [para 62, 63, 65 and
66] [727 -B-E; 731-C-E]
6.1 In terms of Charge 3, the Chairman and the
Members of the Commission, in spite of directions of the
High Court, refused to cooperate in the investigation
carried out by the State Vigilance Bureau and
intentionally did not supply the documents requested in
F
furtherance to the complaints received by the authorities
in relation to selections made by the Commission.
Approved article of charge 5, 8 and 9 are explanatory to
or extension/repetitive of Article 3. The cumuiative
reading of these articles of charge shows that emphasis G
is on non-cooperation of the Chairman and the Members
of the Commission in not furnishing the records, when it
was demanded by the investigating agencies. Further,
there has been an abuse of office of the Chairman and
H
I
666 SUPREME COURT REPORTS [2010] 14 (ADDL) S.C.R
A Members of the Commission by withholding the material
records, passing resolutions contrary to law, filing
incorrect replies in judicial proceedings and lastly the
manipulation and interpolations in regard to answer _
sheets of the selected/non-selected candidates. [para 67 •
B 69] [731-G-H; 732-A-8; 733-8-E]
6.2 It is not in dispute that the Government as well
as the Commission had received various complaints in
regard to the process of selection as well as the
selections themselves, made by the Chairman and
C Members of the Commission to various appointments in
the State services. In furtherance to these complaints and
the complaint made regarding appointment of 'PS' to the
post of Drug Inspector, five different vigilance enquiries
and two different FIRs were registered, primarily, on the
0 ground that the Commission had adopted unfair method
of selection. It was also stated that there has been
interpolation and manipulation of marks in the answer
sheets of the selected as well as non-selected
candidates·. Despite repeated demands, complete records
E were not given to the investigating agencies. Instead, the
respondents opted to file a writ petition, through the
Commission, wherein the High Court clearly observed
that the Commission could not claim immunity from
providing records, particularly, when the investigations
F were in furtherance to the complaints of corruption
against its office holders. This Court declined• to interfere
with the orders and observations of the High Court,
which inter se the parties, have attained finality. It is
impermissible to examine an order passed by the High
G Court or the Supreme Court which has attained finality
inter-se the parties .that too in a collateral proceeding.
This will be opposed to the doctrine, 'estoppel per rem
judicatam'. [para 70 ·and 75] [734-0-G; 735-8; 741-A-B]
H
IN RE: MEHAR SINGH SAINI, CHAIRMAN, HPSC
667
*Jitendra Kumar v. State of Haryana (2008) 2 SCC 161
A
- referred to.
6.3 The other phase of non-cooperation appears to
B
be when, during the period 15.12.2005 to 4.1 .2007, all the
private respondents passed four different resolutions
declining to hand over the records to the investigating
authorities. The stand taken was that the Commission
was a constitutional body and its record could not be
made available to the investigating agencies. A bare
reading of the resolutions, except resolution dated
4.1.2007, clearly shows that there was non-application of C
mind. The alleged claim of privilege did not find mention
in them and the orders of the c.ourts including the
highest Court of the land were ignored. The High Court
clearly held that the claim of privilege for non-production
of documents with reference to ss.123 and 124 of the
Evidence Act, 1872 was not sustainable or justified. It
further held that the provisions of s.93 of the Code of
Criminal Procedure, 1973 were rightly invoked as there
was sufficient material on record to justify the issuance
o ·
of search warrant u/s 93(1 )(a) of the Code of Criminal
E
Procedure and that the State had the right to get the
records from the Commission for the purpos~ of
investigation. Despite such unambiguous and clear
directions of the High Court, the Commission, acting
through the private respondents failed to hand over the
F
records, and for a very considerable time investigations
were delayed and the guilty could not be brought to
book. (para 74] [738-G-H; 739-8-H]
6.4 The collective reading of the evidence along with
G
documents which have been placed on record
establishes two facts: (1) That there was definite noncooperation on the part of the Chairman/Members of the
Commission in furnishing record and documents to the
H
668
SUPREME COURT REPORTS [2010]14 (AODL.) S.C.R.
A investigating agencies; and (2) This attitude of the private
respondents as well as the claim of privilege lacks bona
fides, much less protects the constitutional stature of the
Commission, and was, primarily, intended to withhold the
records from the Investigating Agencies to cover up the
8 misdeeds, irregularities and illegalities.