# BIHAR PUBLIC SERVICE COMMISSION AND ANR. ETC v. DR. SHIV JATAN THAKUR AND ORS. ETC

- **Citation:** [1994] Supp. 2 S.C.R. 94
- **Court:** Supreme Court of India
- **Decided:** 1994-07-22
- **Case number:** Civil Appeal Nos. 4878-82 of 1994
- **Bench:** K. Ramaswamy, N. Venkatachala
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/bihar-public-service-commission-and-anr-etc-v-dr-shiv-jatan-thakur-and-ors-etc-12312
- **Pages:** 23

## Headnote

Constitution of lndia/Bihar Public Service Commission (Conditions of
service) Regulation, 1960:
C
Articles 226, 316 to 322/Regulations 2, 3, 4 and 17-Bihar Public
Service Commission-Member-Appointment of-<:onditions of service--
Protection of-Writ petition by member claiming facilities and amenities on
par with Chairman-Held member not entitled to similar type of facilities and
amenities which the Chairman has-<:hairman has power to withdraw
facilities provided by him to the member in order to cany out administration
D of the Commission-Withdrawal of such facilities cannot be van'ation of
service condition of the Member.
Publk Service Commission-Member challenging in writ petition the
Junctions peiformed by the Commission-High Court granting interim orE ders-Held discretionary remedy vested in High Court cannot be allowed to
be invoked by a Member to question validity of junctions peiformed by
Commission as a body-Member must be regarded to be a party to such
functions-Writ jurisdiction of High Court cannot be availed of to make
interim order inteifering with normal function of the Commission.
F
The petitioner in Transferred case No. 2/93 was appointed as a
member of the Bihar Public Service Commissior (BPSC). A writ petition
was liled in the High Court seeking his removal from the membership of
tbe BPSC on the ground that infirmity of blindness suffered by him had
made him unlit for tbe assignment. The High Court dismissed the writ
petition, but observed that as long as the petitioner was a member of the
G BPSC, he should be given all facilities and amenities as enjoyed by any
other member of the BPSC and in such matters there should not be any
dilTernce between a Chairman and an ordinary member. Later, the
petitioner tiled a Contempt Petition against the Chairman and the
Secretary of the BPSC alleging that they failed to provide him the facilities
H and amenities as directed by the High Court. Meanwhile, the petitioner
94
I
i
BIHAR PUBLIC SERVICE COMMISSION v. DR. S.J.1HAKUR
95
also tiled a writ petition (CWJC No. 1898/92) in the High Court with the A
prayers that (A) he was entitled to have a well furnished separate chamber
(such chamber having been .provided to him earlier) on par with the
Chairman as the Chairman was also a member of the BPSC within the
meening of proviso to clauses (1), (2) and (3) of Article 316 and proviso
to Article 318 of the Constitution as well as under Regulation 2(d) of the B
Bihar Public Service Commission (Condition of Service) Regulations,
1960; (B) in view of the protection to the service conditions of a Member
of a Public Service Commission under Article 318 of the Constitution, the
facilities given to him after his appointment could not have been denied to
him; (C) direction be issued to State Government to report to the Presi·
dent of India for taking penal action against the Chairman for alleged C
commission for ommissions; and (D) to pass orders for appropriate
punishment to respondents No. 3 and 4 for their wilful disobedience of the
directions passed by the High Court in the earlier writ petition in relation
to prividing facilities to the patitioner.
The High Court passed in quick succession live interim orders on
27.8.92, 1.9.92, 7.9.92, 8.9.92 and 16.9.92 respectively : (i) requiring the
BPSC to hold a meeting to take a decision as to how the litigation initiated
by the petitioner against the BPSC should be conducted; (ii) granting leave
D
to petitioner to join all members of BPSC, including BPSC through its
Chairman as party-respondents in the writ petition; (iii) directing the E
Chairman to appear in Court with all relevant records, and ordering issue
of non-bailable warrants against him if he failed to appear in Court; (iv)
directing BPSC to take a decision in regard to the stand to be taken by
BPSC in the writ petition tiled by the petitioner; and (v) appointing a
retired Jndge of the High Court to preside over the meeting of BPSC .order
F
to decide whether affidavits filed by t

## Text

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A
BIHAR PUBLIC SERVICE COMMISSION AND ANR. ETC.
v.
DR. SHIV JATAN THAKUR AND ORS. ETC.
JULY 22, 1994
B
[K. RAMASWAMY AND N. VENKATACHALA, JJ.)
Constitution of lndia/Bihar Public Service Commission (Conditions of
service) Regulation, 1960:
C
Articles 226, 316 to 322/Regulations 2, 3, 4 and 17-Bihar Public
Service Commission-Member-Appointment of-<:onditions of service--
Protection of-Writ petition by member claiming facilities and amenities on
par with Chairman-Held member not entitled to similar type of facilities and
amenities which the Chairman has-<:hairman has power to withdraw
facilities provided by him to the member in order to cany out administration
D of the Commission-Withdrawal of such facilities cannot be van'ation of
service condition of the Member.
Publk Service Commission-Member challenging in writ petition the
Junctions peiformed by the Commission-High Court granting interim orE ders-Held discretionary remedy vested in High Court cannot be allowed to
be invoked by a Member to question validity of junctions peiformed by
Commission as a body-Member must be regarded to be a party to such
functions-Writ jurisdiction of High Court cannot be availed of to make
interim order inteifering with normal function of the Commission.
F
The petitioner in Transferred case No. 2/93 was appointed as a
member of the Bihar Public Service Commissior (BPSC). A writ petition
was liled in the High Court seeking his removal from the membership of
tbe BPSC on the ground that infirmity of blindness suffered by him had
made him unlit for tbe assignment. The High Court dismissed the writ
petition, but observed that as long as the petitioner was a member of the
G BPSC, he should be given all facilities and amenities as enjoyed by any
other member of the BPSC and in such matters there should not be any
dilTernce between a Chairman and an ordinary member. Later, the
petitioner tiled a Contempt Petition against the Chairman and the
Secretary of the BPSC alleging that they failed to provide him the facilities
H and amenities as directed by the High Court. Meanwhile, the petitioner
94
I
i
BIHAR PUBLIC SERVICE COMMISSION v. DR. S.J.1HAKUR
95
also tiled a writ petition (CWJC No. 1898/92) in the High Court with the A
prayers that (A) he was entitled to have a well furnished separate chamber
(such chamber having been .provided to him earlier) on par with the
Chairman as the Chairman was also a member of the BPSC within the
meening of proviso to clauses (1), (2) and (3) of Article 316 and proviso
to Article 318 of the Constitution as well as under Regulation 2(d) of the B
Bihar Public Service Commission (Condition of Service) Regulations,
1960; (B) in view of the protection to the service conditions of a Member
of a Public Service Commission under Article 318 of the Constitution, the
facilities given to him after his appointment could not have been denied to
him; (C) direction be issued to State Government to report to the Presi·
dent of India for taking penal action against the Chairman for alleged C
commission for ommissions; and (D) to pass orders for appropriate
punishment to respondents No. 3 and 4 for their wilful disobedience of the
directions passed by the High Court in the earlier writ petition in relation
to prividing facilities to the patitioner.
The High Court passed in quick succession live interim orders on
27.8.92, 1.9.92, 7.9.92, 8.9.92 and 16.9.92 respectively : (i) requiring the
BPSC to hold a meeting to take a decision as to how the litigation initiated
by the petitioner against the BPSC should be conducted; (ii) granting leave
D
to petitioner to join all members of BPSC, including BPSC through its
Chairman as party-respondents in the writ petition; (iii) directing the E
Chairman to appear in Court with all relevant records, and ordering issue
of non-bailable warrants against him if he failed to appear in Court; (iv)
directing BPSC to take a decision in regard to the stand to be taken by
BPSC in the writ petition tiled by the petitioner; and (v) appointing a
retired Jndge of the High Court to preside over the meeting of BPSC .order
F
to decide whether affidavits filed by the Chairman in the writ petition conld
be rega_rded as those filed on behalf of the BPSC as also directing the
Chairman and the Member of the BPSC not to withdraw their salary,
pending disposal of the writ petiton. These interim order~ were challenged
in the appeals by special leave by the BPSC. This Court, besides staying
operation of the interim orders, made the writ petition (CWJC No. G
1898/92) withdrawn to it for disposal. The said writ petition, on transfer
to this Court, was registered as Transferred Case No. 2/'J3.
Dismissing the transferred case (CWJC 1898/92) and the appeals,
this court
H
A
B
c
96
SUPREME COURT REPORTS (1994) SUPP. 2 S.C.R.
HELD: I.I. It cannot be said that the petitioner, as a Member of the
Bihar Public Service Commission is entitled to get similar type of facilities
and amenities which the Chairman of the BPSC has. Though in the
matters relating to appointment, term or office, remo\'al and suspension
of a member, performance of functions and discharge of duties of the
Public Service Commission, as provided in Articles 316 to 321 of the
Constitution, the Chairman and a member are on a common footing and
are equal participants, but that does not mean that there is no difference
between the offices held by the two as regards functions to be performed
by each of them in respect of his respective office. (110-D to GI
1..2. The Chairman of a Public Service Commission is, life the Chief
Justice of a High Court, made the repository of duties to be performed in
respect of administration of the Public Service Commission under the
Constitution. He is entrusted with the discharge of the administrative
duti~s obviously for the reason that as high constitutional functionary he
D could be depended upon to discharge such functions justly and fairly.
Under the scheme of the provisions in the Constitution and the scheme of
the Bihar Public Service Commission (Condition of Service) Regulations,
1960, the Chairman of a Public Service Commission has an exclusive role
to play in discharge of administrative duties of his office as a Chairman
while a memb_er cannot have any role to play in that regard unless
E otherwise required. (111-C to El
2.1. The Regulations under Article 318 of the Constitution made with
respect to the conditions of service of Members of the Public Service
Commission cannot vary the conditions of service of a Member of the
p
Public Service Commission to his disadvantage after his appointment. A
Member of the Public Service Commission, as may be the case with the
Chairman, can make a grievance when any condition of hiii service is
varied to his disadvantage after his appointment by Regulations made in
that regard, and obtain relief from courts. (111-F, G]
G
2.2. When certain facilities or amenities are provided by the Chairman to a Member of the Public Service Commission after his appointment,
while carrying out the administration of the Commission, the Chairman
may withdraw any of such facilities or amenities if the administrative
exigencies so demand. Withdrawal of such facilities or amenities cannot
H amount, at any rate to variation of service conditions of a Member of the
BIHAR PUBLIC SERVICE COMMISSION v. DR. S.J. THAKUR
97
Public Service Commission envisaged under the proviso to Article 318.
A
(111-H, 112-A, 8)
2.3. The facilities of accommodation to be provided to the Members
of the BPSC for their office work has to necessarily depend upon the
accommodation available for its functioning. However, an institution like
the Public Service Commission should not be starved of the accommodaB
lion or any other facilities or amenities needed by its Members out of
necessity, by the State Government. (112-F, G]
2.4. Insofar as the compensatory allowance claimed by the petitioner
is concerned, it is open to the petitioner to seek grant of the same under
regulation 17 of the Regulations which if sought, would be considered and
decided on merits. (112-H]
c
3. No Member of a Public Service Commission could be allowed to
question the validity or correctness of the functions performed or duties
discharged by the Public Service Commission as a body, while he was its D
Member, for the simple reason that such Member must be regarded to be
a party to the function required to be performed or the duty required to
be discharged by the Public Service Commission as a body or institution
even though he might have been a dissenting Member or a Member in a
minority or a Member who had abstained from taking part in such
function performed or duty discharged. Discretionary remedy vested in the
High Court under Article 226 of the Constitution cannot, therefore, be
allowed to be invoked by a Member of the Public Service Commission to
question the correctness or validity of functions performed or duties
discharged by the Public Service Commission as a body or institution
according to well established procedures. (109-B to DJ
E
F
4. The contempt petition filed by the petitioner with reference to the
very allegations as made in the writ petition against the Chairman and the
Secretary of the BPSC having been rejected by the High Court earlier, the
question of seeking the same relief over again c8n neither arise nor be G
permitted to be raised in the writ petition. (109-E]
5.1. Article 226 of the Constitution empowers the High Court to
exercise its discretionary jurisdiction to issue directions, orders or writs
including those enumerated therein for enforcement of the right conferred
· under the Constitution or for any other purpose, but such discretion, being H
98
SUPREME COURT REPORTS (1994) SUPP. 2 S.C.R.
A a judicial discretion is to be exercised on the basis of well established
judicial norms, and cannot be used by the High Court to make interim
orders which can in no way help or aid the court in granting the main relief
sought in the writ petition. [llS·E·F]
5.2. The writ jurisdiction of the High Court could not have been
B availed of to make the interim orders which interferred with the normal
functioning of the BPSC. The interim orders indicatf that the High Court
has sought t.o take over the resi:onsibility of carrying on the functions of
BPSC by appointing its own Chairman for conducting a meeting of the
BPSC. [114-H, 115-B]
c
5.3. The interim orders passed by the High Court not being those
made to maintain the status quo or undo an order the review of which Is
sought so that the ultimate relief to be granted to the party approaching it
may not become futile, become wholly unsustainable. Such interim orders
are made by the High Court, to say the least, without realisation that they
D had the effect of putting the Chairman and its Members to ridicule in the
eyes of the general public and making a constitutional institution of the
BPSC a mockery. [115-G, HJ
E
CIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 4878-82
of 1994.
From the Judgment and Order dated 27.8.92, 1.9.92, 7.9.92, 8.9.92 &
16.9.92 of the Patna High Court in C.W.J.C. No. 1898 of 1992.
L.R. Singh for the Appellants.
F
S.B. Upadhyay, Gopal Singh, B.B. Singh and S.K. Bhattacharya for
the Appearing Parties.
The Judgment of the Court was delivered by
VENKATACHALA, J. SLP(C) Nos. 12593-97 of 1992 are the Special
G Leave Petitions filed by the Bihar Public Service Commission · the BPSC
and its Chairman. Dr. Ram Ashray Yadav, who are Respondent-4 and
Respondent-3 respectively in Writ Petition, C.W.J.C. No. 1898 of 1992 filed
by Dr. Shiv Jatan Thakur (Dr. Thakur) before the High Court of Judicature
at Patna impugning the interim orders made therein by the High Court on
several dates. Transferred Case No. 2 of 1993 is the very Writ Petition.
H C.W.J.C. No. 1898 of 1992 before the High Court, which has been
BIHAR PUBLIC SERV!CECOMM!SS!ON '·DR. SJ. THAKUR (VENKATACllAU,!.J
99
withdrawn to this Court according to an order made in that regard on 18th A
November, 1992 in the said SLPs. As the said SLPs as well as the said
Transferred Case were set down together for hearing, we have heard
learned counsel on all sides and are proceeding to dispose them of by this
common judgment.
Since a correct understanding of the factual backgraound of the
Special Leave Petitions and the Transferred Case, becomes necessary for
their proper disposal, such background calls for a brief mention.
B
Dr. Thakur was appointed as a Member of the BPSC on 4th March,
1991. By a Writ Petition, C.W.J.C. No. 446 of 1992 filed in the Patna High C
Court by an advocate, issuance of a writ of qua warranto for removal of
Dr. Thakur from his membership of the BPSC was sought on the ground
that the infirmity of blindness suffered by him, had made him unfit to
continue as a Member of the BPSC. The High Court, no doubt, dismissed
that writ petition by its judgment dated the 16th January, 1992, but ob- D
served therein thus : 'Dr. Thakur as long as was not removed form the
membership of the BPSC in accordance with law, was' entitled to and shall
be given by the BPSC and its Chairman and Officers/employees all the
facilities and amenities as enjoyed by any other Member of the BPSC and
in such matters there should not be any difference between a Chairman
and an ordinary Member like Dr. Thakur, who shall be entitled to enjoy E
all the facilities enjoyed by the Chairman.' That observation of the High
Court, it appears, prompted Dr. Thakur to file a Contempt Petition. MJC
No. 324 of 1992 before it against the Chairman as also the Secretary of the
BPSC. alleging that they had wilfully violated and disobeyed the directions
contained in the said observation and the same called for taking contempt F
action against them.
But, when the said contempt petition, was about to be rejected, Dr.
Thakur, it also appears, filed an independent Writ Petition in the same
High Court, being C.W.J.C. 1898 of 1992 seeking issuance of directions (i) G
to the Chairman of the BPSC, the State of Bihar and the Governor of Bihar
to rest6re to him the facilities which, it was said, he had enjoyed till 1st
October, 1991 and (ii) to the Government of Bihar and the Governor of
Bihar to report to the President of India of the omissions and commissions
of the Chairman, while he performed his functions or discharged his duties
as the Chairman of the BPSC, so as to make the President to take suitable H
100
SUPREME COURT REPORTS [1994] SUPP. 2 S.C.R.
A
punitive action against him according to law. In that writ petition he had
also sought from the High Court, award of punishment to the Chairman of
the BPSC and its Secretary for the alleged wilful disobedience of the
directions in the observation of the High Court's eairlier judgment in
C.W.J.C. 446 of 1992.
B
c
However, the High Court, wh~ch subsequently rejected the contempt
petition filed by Dr. Thakur by its order dated 21st May, 1992, did so
subject to the observation made therein to the effect that it was dismissing
the contempt petition without prejudice to the rights and contentions of
the parties in other proceedings.
The other proceeding in respect of which the rights and contentions
of parties were saved by the High Court as above while dismissing Dr.
Thakur's contempt petition, is the aforesaid Writ Petition No. 1898 of 1992
of Dr. Thakur in which the High Court subsequently made several succesD sive intrim orders. Interim Order dated the 27th August, 1992, is that made
upon an oral prayer of Dr. Thakur. By that interim order, the BPSC was
required to hold a meeting on 29th August, 1992 and take a decision as to
how litigation has to be conducted on behalf of the BPSC in respect of the
writ petition filed by Dr. Thakur. The second interim order made in that
Writ Petition by the High Court just two days later on 1st September, 1992,
E
as appears from that order itself, was made for the reasons that no one
appeared in Court on behalf of the BPSC on that day and that no one
produced the decision which should have been taken by the BPSC pursuant
to Court's earlier Order dated 27th August, 1992. The order further
discloses that leave was given to Dr. Thakur to join all the members of the
F
Commission including the BPSC through its Chairman as respondents in
the Writ Petition. Then follows the third interim order made in the Writ
Petiton by the High Court on 7th Spetember, 1992, which read :
G
"This matter would appear tomorrow when the Chairman,
Bihar Public Service CommissiOn, is directed to appear in Court
with all relevant records in connection with this matter, failing
which non-bailable warran.t of arrest shall be issued against him.
•·
Let it be recorded that no one appears on behalf of the
Chairman except for asking adjournment by a junior advocate. and
H
no record is produced.
BIHAR PUBLIC SER VICE COMMISSION '·DR SJ. THAKUR(VENKATACHALA,J.( 101
Let it appear tomorrow under the same heading.
This order be communicated by the Registrar of this Court to
the Chairman personally today."
A
There is made, on the heels of the said interim order, the fourth
interim order on 8th September, 1992. By that interim order a meeting of B
the Commission has been ordered to be held to ascertain the views of the
different members of the Commision regarding the various allegations
made by Dr. Thakur and answers given to the same by the Chairman of
the BPSC, making it clear that it will be open to each of the members to
record his individual opinion. That order further reads thus :
C
" ....... At the instance of any member of the Commission, both Dr.
Thakur and the Chairman can be called upon by other members·
of the Commission to submit any explanation or clarification.
However, the decision shall be taken in a meeting of the Commission but the petitioner or the Chairman shall not be entitled to D
vote or be present when the votes are being cast ..... "
Then comes the fifth interim order made on September 16, 1992. By
that order, the High Court appointed Mr. Justice L.P.N. Sahdeo, retired
Judge of the Patna High Court to preside over the meeting of the BPSC E
to decide whether the affidavits fJed by the Chairman of 'the BPSC in
opposition to the Writ Petition filed by Dr. Thakur could be regarded as
that filed on behalf of the Commission. Above all, the High Court, by that
interim order, directed that during the pendency of the Writ Petition in the
High Court neither the Chairman nor the Members of the BPSC shall draw
their salaries and allowances.
F
When the said interim orders of the High Court, were impugned in
the above S.L.P.s, this Court having regard to the nnwarranted situation
which had developed on account of the successive interim orders made in
the said writ petition pending before the High Court, did stay the operation G
of the said interim orders, as also, further proceedings in the Writ Petition,
by appropriate orders made in that behalf from time to time. Thereafter,
by consent of parties and at the instance of the Attorney General of India,
the very Writ Petition in which the said interim orders were made is
withdrawn to this Court, for disposal of the Writ Petition itself by this
Court, because of the important points involved therein. The factual back- H
102
SUPREME COURT REPORTS [1994] SUPP. 2 S.C.R.
A
ground of the special leave petitions and the Transferred Case being what
we have stated, we may now proceed to consider and dispose of the Special
Leave Petitions and the Writ Petition. C.W.J.C. No. 1898 fa 1992 (the
transferred case).
B
The reliefs sought for, by Dr Thakur, the member of the BPSC, in
his writ petition (the transferred case); filed invoking the jurisdiction of the
High Court under Article 226 of the Constitution were, these :
(A) To issue an appropriate writ/s, direction/s, order/s for the
retrieval of all the facilities unfailingly enjoyed by the petitioner till the 1st
C October, 1991 which inter a/ia, include
D
E
F
(i) the well furnished officer-chamber house in room No. 2 of the
administrative building containing telephone, cooler, one English
Typewriter, two steel alinirahs, ante-room for P.A. and the toilet
attached to the Chamber.
(ii) the service of reader, Mr. R.P. Verma, appointed under subregulation 2(b) of the Bihar Public Service Commission Regulation (called in short hereinafter Regulation) read with the Education Department letter No. J/M/-07/83 dated 30.4.1985, and the
Finance Department Circular No. 3/A-3-2/91/3985/F92) of
25.7.91.
(iii) PA. of confidence, Shri S.M. Das and the orderly of choice Shri
Abhinandan Prasad Badal in spirit of Rule l(iv)(g)(5) and 2.8(b)
respectively of _the Secretariat Instructions were attached with
the petitioner.
(B) to issue appropriate writ/s, order/s directing the respondents
No.1 and 2 to report the misbehaviour and omission or commission of
Respondent No.3 to His Excellency the President of India for suitable
action under Article 317(1) and (2) of the Constitution of India for his
G violation of Articles 14, 318 and 320(3) of the Ccnstitution for his contravention of Sections 176, 186, 189 and 504 of the Indian Penal Code, for
his gross misuse of official positiQn.
(C) To issue appropriate WriUs, order/s directing the res1Jondent No.
r
1 to take suitable action against respondent No. 4 for his wilful execution
H or illegal orders passed by respondent No. 3 in the omission or commission.
BIHARPUBLICSERVICECOMMISSION "·DR. SJ. TIIAKUR (VENKATACHALA, I.( 103
(D) To pass order/s for the appropriate punishment to the responA
dent No. 3 and respondent No. 4 for their wilful disobecience of the
direction passed by this Court by way of observation in the C.W.J .C. No.
446/92 ruling thereby the petitioner is entitled to and shall be given by the
Commission, its Chairman, officers/employees all the facilities as enjoyed
by any other member in respect of those matters where there is no B
difference between the Chairman and ordinary members in this regard, he
shall also be entitled to enjoy all the facilities enjoyed by the Chairman.
The said reliefs claimed by Dr. Thakur in his writ petition, are since
based .on his membership of the BPSC, it would be advantageous to notice
here itself, the provisions relating to Public Service Commissions found in C
the Constitution of India and the provisions in the Bihar Public Service
Commission (Conditions of Service) Regulations, 1960, for short 'the
Regulation', which would give out the institutional character of the BPSC,
functions to be performed and duties to be discharged by the BPSC in
respect of certain matters as a body comprised of Chairman and Members, D
administrative functions of the BPSC to be performed by the Chairman,
eligibility of persons to become Chairman or Member of the BPSC and the
duration of their offices, the rights and privileges of the Chairman and
Members, their service conditions, finances of the BPSC and the
Legislature's control over the BPSC.
Chapter II of Part XIV of the Constitution contains proV1S10ns
relating to Public Service Commissions. Article 315 in that Chapter relates
to establishment of Public Service Commissions for the Union and for the
State. Article 316 therein which refers to appointment and term of office
of Chairman and members of the Public Service Commissions, states that
such appointments of Chairman and members to a State Public Service
Commission are to be done by the Governor of the State concerned subject
to the eligibility criteria to be satisfied by the appointees as provided for
under the proviso to that Article. Article 316 (1-A) therein which specifically deals with the office of the Chairman of the Commission reads :
"If the office of the Chairman of the Commission becomes vacant
or if any such Chairman is by reason of absence or for any other
reason unable to perform the duties of his office, those duties shall,
until some person appointed under clause (i) to the vacant office
E
F
G
has entered on duties thereof or, as the case may be, until the H
A
B
• 104
SUPREME COURT REPORTS [1994) SUPP. 2 S.C.R.
Chairman has resumed his duties, be performed by such one of
the other members .of the Commission as the President, in the case
of the Union Commission or a Joint Commission and the Governor
of the State in the case of a Stat.e Commission, may appoint for
the purpose."
Article 316(2) therein while fixes the term of office of the member
of Public Service Commission, its proviso says that his memhership ceases
on resignation or removal. Article 316(3) therein makes such member, on
the expiration of term of his office, ineligible for re-appointment to that
office. Article 317(i) therein states that subject to the provisions in clause
C (3) thereof, the Chairman or any other member of the Public Service
Commission shall only be removed from his office by order of the President
on the ground of misbehaviour after the Supreme Court,' on reference
being made to it by the President, has, on inquiry held in accordance with
the procedure prescribed in that behalf under Article 145, reported that
the Chairman or such other member, as the case may be, ought on any
D such ground to be removed. Clause (2) of that Article ~mpower~ the
President in the case of Union Commission or a Joint Commission and the
Governor in the case of a State Commission to suspend from office the
Chairman or any other member of the Commission in respect of whom a
E
F
reference has been made to the Supreme Court under clause (i) until the
President has passed orders on receipt of the report of the Supreme Court
· on such reference. But clause (3) thereof enables the Presiden~ to remove
from office, the Chairman or any other ·member of a Public Service
• Commission if the Chairman or such other member, as the case inay be is
adjudged as insolvent : or engages during his term of office in any paid
employment outside the duties ofhis office : or is, in the opinion of the
President, unfit to continue in office by reason of infirmity of mind or body.
Clause ( 4) of that Article says as to when the Chairman or a member of
the Public Service Commission shall be deemed to be guilty of misbehaviour under clause (i) thereof.
G
Then, comes Article 318, which found in the same Chapter, empowers the President or the Governor, as the c.Se may be, by regulations-
(a) to determine the number of members of the Commission and
their conditions of service, and
H
(b) to make provision with respect to the number of members of the
BIHAR PUBLIC SERVICE COMMISSION v. DR. SJ. TIIAKUR !VENKATACHALA J.J 105
staff of the Commission and their conditions of service.
But proviso to that Article, protects the conditions of service of a member
of the Public Service Commission, by stating that the conditions of service
of a member shall not be varied to his disadvantage after his appointment.
A
However, Article 319 therein prohibits the holding of governmental B
offices by the Chairman and members of Commission on ceasing to I be
Chairman or members.
When it comes to Article 320 therein, it deals with functions of Public
Service Commissions. Clause (i) thereof states that it shall be the duty of C
the Union and the State Public Service Commissions to conduct examinations for appointments to the services of the Union and the services of the
State respectively. Clause {2) thereof refers to the duty to be performed by
the Union Public Service Commission in situtations mentioned therein.
Clause (3) thereof refers to duty of the Union Public Service Commission
or the State Public Service Commission, as the case may be, to advise on D
matters on which it shall be consulted, or referred for its advice. Article
321 therein empowers the Parliament and the Legislature of a State to
provide by legislation, for the exercise of additional functions by the
concerned Commission as respects the services of the Union or the State
and also as respects the services of any local authority or other body
E
corporate constituted by law or of any public institution.
Article 322 therein states that the expenses of the Union or a State
Public Service Commission, including any salaries, allowances and pensions
payable to or in respect of the members or staff of the Commission, shall
be charged on the Consolidated Fund of India or, as the case may be, the F
Consolidated Fund of the State. Clause (i) of Article 323 therein imposes
a duty on the Union to present annually to the President a report as to the
work done by the Commission and on receipt of such report the President
shall cause a copy thereby together with a memorandum explaining, as
respects the cases, if any, where the advice of the Commission was not G
accepted, the reasons for such non- acceptance to be laid before each
House of Parliament. Similarly the Governor is required to cause a copy
of the report together with a memorandum to be placed before the
Legislature of the State.
Coming to the regulations which are made under Article 318 of the H
106
SUPREME COURT REPORTS [1994] SUPP. 2 S.C.R.
A Constitution - Part I thereof contains preliminary provisions, Part II thereof
cor.tains provisions relating to composition of the Commission and pay of
members, Part-III contains provision~ relating to conditions of service of
members, and Part-IV contains provisions relating to staff of the Commission. Clause (b) and Clause ( d) of Regulation 2 in Part I of the Regulations,
B give the meaning of 'compensatory allowance' and 'member' thus :
"(b) "Compensatory Allowance" means an allowance granted in
cpnsideration of personal expenditure or loss of amenities or
private practice, necessitated by the special circumstances in which
duty is performed. It includes a travelling allowance but does not
C
include a ;umptuary allowance or the grant of a free passage by
sea to or from any place outside India :"
D
"( d) "Member" means a member of the Commission and includes
the Chairman;"
Out of the Regulations in Part II Regulation 3(i) declares that the
Commission shall consist of a Chairman and 10 other members, while
Regulation 4 thereof provides for a higher monthly pay of the Chairman
and a lower monthly pay for each of the members. Out of the Regulations
in Part III dealing with the conditions of service of members. Regulations
E SA to 7 thereof deal with the matters concerning leave of the Chairman
and the members of the Commission. Regulation 8 says, "when the Chairman is absent on leave or otherwise, the seniormost Member may hold
current charge of the admiμistrative duties of the Chairman and be allowed
a special pay of Rs. 200 per month d!lring such period." Then Reg-dations
p
9, 10, 11, 12, 13, 14 and 15 deal with pensions payable to the Chairman and
the members of the Commission. Regulation 16 deals with travelling and
halting allowances of the Chairman and members. Coming to Regulation
17 it empowers the Governor to grant special compensatory allowance as
may be fixed by him. Regulation 18 says that medical facilities admissible
to the All India Service officers and their family will be admissible to the
G Chairman and the members of the BPSC and their families. Regulation 19
thereof says that the Chairman and the members of the Commission may
recess at Ranchi on their own expense for a period not exceeding three
months in any calendar year subject to the following conditions :
H
(a) That the recess will be continuous : and
BJHARPU.BLICSERVICECOMMISSJON '·DRS.I. TIIAKUR(VENKATACHALA,J.I 107
(b) that the Chairman and other members may take one stenogA
rapher and two orderly peons each at Government expenses.
Regulation 20 thereof deals with the right of the member to subscribe
to the General Provident Fund. Regulation 21 thereof which deals with
residence, says, "if a residence owned or leased by Government is allotted
to a Member, his occupation of the residence shall be subject to the rules
which apply to an officer of the l.A.S. provided that if the residence is one
specially meant for a member, the member shall be liable to pay the
standard rent of the residence or r.ent at the rate equal to 10 per cent of
his monthly emoluments, whichever is less, irrespective of whether he
occupies the residence or not."
Regulation 21A enables the member to obtain house building advance and motor car purchase advance, as per appropriate rules applicable
to Government servants drawing comparable emoluments.
Part IV contains Regulations connected with the staff of the Commission, as may be determined by the Governor in consultation with the
Commission. In that part there is Regulation 31 which empowers the
Secretary to appoint the staff subject to the control of the Chairman. The
B
c
D
last Regulation i.e. Regulation 33 therein which is of a general nature, says
E
"if any question arises relating to the interpretation of these Regulations,
the decision of the Governor thereon shall be final."
From the said provisions of the Constitution and the Regulations, it
becomes clear that the BPSC is an independent institution, which has been
brought into existence with the avowed object of maintaining the integrity,
sanctity and efficiency of the civil services of the State of Bihar. The
Chairman and members to be appointed to the BPSC become constitutional functionaries. The provisons clearly indicate as to what are the functions
F
to be discharged by the Chairman and members of the Commission as a
body and as to what are the administrative functions to be discharged by G
the Chairman of the Commission. At the same time, the provisions indicate
as to what are the service conditions of members which are protected.
Thus, the provisions in the Constitution and the Regulations together
constitute an exhaustive Code for the BPSC within the frame work or
parameters of which its functionaries can function.
H
A
B
c
108
SUPREME COURT REPORTS [1994) SUPP. 2 S.C.R.
We shall now take up for our consideration the reliefs soug,ht by Dr.
Thakur in his writ petition (transferred case).
What is claimed in prayer paragraph (A) as relief of retrieval of
facilities, is founded mainly on two grounds : (i) Petitioner (Dr. Thakur),
who is a Member of the BPSC, is entitled to have a well furnished separate
chamber in the Administrative Building, when the Chairman of the BPSC,
who is also a member of the BPSC within the meaning of proviso of clauses
(1), (2) and (3) of Article 316 and Article 318 of the Constitution and
regulation 2(d) of the Regulations is having a well furnished separate
chamber in the Administrative Building, inasmuch as he was given such
separate chamber earlier. (ii} When the proviso to Article 318 of the
Constitution has protected the service conditions of a member by stating
that 'the conditions of service of a member of a Public Service Commission
shall not be varied to his disadvantage after his appointment', the facilities
which were given to the petitioner after his appointment could not have
D been denied to him.
Insofar as the relief as to direction to be given to the State Government for reporting to the President of India for taking penal action against
the Chairman sought by the petitioner in prayer paragraphs (B) and (C)
E is concerned, the same is founded on allegations of certain acts and
omissions attributed to the Chairman, while the BPSC discharged its
functions relating to conduct of certain examinations etc.
F
Then coming to the relief as to award of punishment by the Court
claimed in prayer paragraph (D), the same is founded on alleged violation
and disobedience of the direction by the Chairman as to the need to
provide all the facilities to Dr. Thakur said to have been contained in the
observation made in the order of the High Court, dismissing the C.W.J.C.
No. 446/92.
G
Shri R.K. Garg, Senior Advocate, who appeared for Dr. Thakur, the
petitioner in the writ petition, since did not make any submission in support
of the reliefs sought in paragraphs (B) and ( C) of the prayer in the writ
petition, we do not feel the need to consider them. Shri Garg, we are
inclined to think, did not make any submission in support of the reliefs
H sought in paragraphs (B) and (C) obviously realising that the allegations
BIHAR PUBLIC SERVICE COMMISSION v. DR. S.J. THAKUR (VENKATACHALA, J.( 109
on which those reliefs were founded, related to functions of the BPSC, A
which could not have been disowned by the BPSC's sitting member.
Whatever that be, no member of a Public Service Commission, in our
considered view, could be allowed to question the validity or correctness
of the functions performed or duties discharged by the Public Service
Commission as a body, while he was its member. It ought be so for the B
simple reason that, such member must be regarded to be a party to the
. function required to be performed or the duty required to be dischaged by
the Public Service Commission as a body or institution, even though he
might have been a dissenting member or a member in a minority or a
member who had abstained from taking part in such function performed C
or duty discharged. Discretionary remedy vested in the High Court under
Article 226 of the Constitution cannot, therefore, be allowed to be invoked
by a member of the Public Service Commission to question the correctness
or validity of functions performed or duties discharged by the Public
Service Commission as a body or institution, according to well established
procedures.
Again, Shri R.K. Garg did not make any submission as regards relief
(D) sought for in the prayer of the writ petition. He appears to have done
D
so and, in our view, very rightly, because the contempt petition which Dr.
Thakur had filed with reference to the very allegation now put forward, E
against the Chairman and the Secretary of the BPSC, when was rejected
by the High Court earlier, the question of seeking the same relief over
again can neither arise nor be permitted to be raised.
,·
Therefore, what now, remains for our consideration is the relief
sought by Dr. Thakur in prayer paragraph (A) of the writ petition (the F
Transferred Case).
The facilities, the retrieval of which is sought by way of relief here
by Dr. Thakur were those which he claimed to have enjoyed for a short
time after his appointment on 4th March, 1991 till 1st October, 1991. Those G
facilities, according to him comprised of, firstly, the well-furnished office
room in the administrative building containing telephone, cooler, one
English typewriter, two steel almirahs, anti-room for P.A. and the toilet
attached to the ro'om; secondly, the services of a reader, Mr. R.P. Verma,
who had been appointed for the petitioner's benefit; and thirdly, services H
110
SUPREME COURT REPORTS [1994] SUPP. 2 S.C.R.
A of Mr. S.N. Das, his P.A. of confidence, and orderly of his choice, Mr
Abhinandan Prasad Badal.
B
C
The contention of Shri R.K. Garg, the learned Senior counsel for the
petitioner, Dr. Thakur, was to put it in his own words. "Chairman was after
all, the first among the members, in that, Article 316 of the Constitution of
India relating to appointment and term of the Office of the Chairman and
other members and Article 317 relating to removal and suspension of
Chairman and members, make no distinction between the Chairman and
other members of the BPSC. If that be so, there was no reason why a
member should be denied the facilities which were available to the Chairman". The other contention urged by him was that Article 318 of the
Constitution which enables the making of regulations in respect of service
conditions of members of the Commission, when by its proviEo, declares
that the conditions of service of the member of the Public Service Commission shall not be varied to his disadvantage after his appointment, the
D facilities provided to the member (Dr. Thakur) after his a,ppointment
should not have been withdrawn by the Chairman of the BPSC. Both the
contentions of Shri Garg, in
our view, lack merit.