BIHAR PUBLIC SERVICE COMMISSION AND ANR. ETC.versusDR. SHIV JATAN THAKUR AND ORS. ETC.

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 or-
E   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
                                                                                   Ii
     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.
                                                                          D
      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
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
    96                    SUPREME COURT REPORTS (1994) SUPP. 2 S.C.R.

A         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
B 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

c         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 Chair-
    man 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 accommoda-          B
 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
                                                                                c
 decided on merits. (112-H]

       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
                                                                                E
 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                         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

          CIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 4878-82
    of 1994.
E
          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         B
Special Leave Petitions and the Transferred Case, becomes necessary for
their proper disposal, such background calls for a brief mention.

        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          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.
c
           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 succes-
D   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 :

                   "This matter would appear tomorrow when the Chairman,
                Bihar Public Service CommissiOn, is directed to appear in Court
G               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 SERVICE COMMISSION '·DR SJ. THAKUR(VENKATACHALA,J.(      101

            Let it appear tomorrow under the same heading.                       A

            This order be communicated by the Registrar of this Court to
         the Chairman personally today."

      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 Commis-
         sion 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).

           The reliefs sought for, by Dr Thakur, the member of the BPSC, in
B 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

           (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.
D
           (ii) the service of reader, Mr. R.P. Verma, appointed under sub-
                regulation 2(b) of the Bihar Public Service Commission Regula-
                tion (called in short hereinafter Regulation) read with the Educa-
                tion 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
E               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.
F
           (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 con-
    travention 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
                                                                        r
                                                                              No.
     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 respon- A
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.
                                                                                E
       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          F
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 specifi-
cally deals with the office of the Chairman of the Commission reads :
                                                                                G
        "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
        has entered on duties thereof or, as the case may be, until the H
    •104                  SUPREME COURT REPORTS [1994) SUPP. 2 S.C.R.

A            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."

B          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
    reference has been made to the Supreme Court under clause (i) until the
E 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
F 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 mis-
    behaviour under clause (i) thereof.

G         Then, comes Article 318, which found in the same Chapter, em-
     powers 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.                         A
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.

       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 examina-
tions 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 Commis-
    sion. Clause (b) and Clause (d) of Regulation 2 in Part I of the Regulations,
    give the meaning of 'compensatory allowance' and 'member' thus :
B
             "(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) "Member" means a member of the Commission and includes
             the Chairman;"
D
         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 Chair-
  man 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 stenog- A
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
                                                                                B
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."                                                 c
      Regulation 21A enables the member to obtain house building ad-
vance and motor car purchase advance, as per appropriate rules applicable
to Government servants drawing comparable emoluments.
                                                                                D
       Part IV contains Regulations connected with the staff of the Com-
mission, 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
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, F
sanctity and efficiency of the civil services of the State of Bihar. The
Chairman and members to be appointed to the BPSC become constitution-
al functionaries. The provisons clearly indicate as to what are the functions
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
    108                   SUPREME COURT REPORTS [1994) SUPP. 2 S.C.R.

A        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
B
    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
c   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 Govern-
    ment 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.

          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
F   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.                                                                D

      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
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.

          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
B
  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 Chair-
C man". 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 Com-
  mission 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. It is true that the
  provision in Article 316 of the Constitution relating to appointment and
  term of Office of a Member of the Public Service Commission and that the
E provision in Article 317 relating to removal and suspension of a Member
  of the Public Service Commission treat the Chairman of the Public Service
  Commission and the member of the Public Service Commission, on a
  common footing, as regards matters provided for therein. It 1nay also br.
  true that in the matter of performance of functions and in the matter of
F discharge of duties of the Public Service Commission, required to be
  performed or discharged under Article 320 or Article 321 of the Constitu-
  tion, the Public Service Commission's Chairman and every member are
  equal participants. But, that does not mean that there is no differnece
  between the office held by the Chairman and the office held by member
G of the Public Service C&mmission as regards functions to be perormed by
  each of them in respect of his respective office. When Article 316 (lA) of
  the Constitution, expressly recognises "the office of the Chairman" and
  specifically refers to the duties to be performed by him as the Chairman
   of the Public Service Commission, the Chairman of the Public Service
H Commission and the member of the Public Service Commission cannot be
   BIHAR PUBLIC SERVICE COMMISSION •.DR. S.J. TIIAKUR (VENKATACHALA, J.J 111


treated/on a common footing as urged. The Chairman cannot be treated           A
on par" with a member, becomes clear not only from regulation 4 of the
Regulations which provides for higher salary to the Chairman and lower
salary for the member, but also from regulation 8 thereof which provides
for payment of a special allowance to a senior member who holds current
charge of administrative duties of the Chairman. Further, the Chairman         B
and the member of the Public Service Commission cannot be treated as
persons standing on the same footing in respect to every matter, when the
Constitution in several of its Articles treats the Chairman and the members
alike for certain purposes and in several other Articles treats them dif-
ferently for certain other purposes by use of the words 'the Chairman and C
the member', and 'other than the Chairman'. Therefore, under the scheme
of the provisions in the Constitution and the scheme of the Regulations to
which we have already adverted. 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 member cannot have any role to play in that D
regard unless otherwise required. As the Chief Justice of a High Court is
made the repository of duties to be performed in respect of administration
of a High Court under the Constitution, the Chairman of a Public Service
Commission is made the repository of duties to be performed in respect
of administration of the Public Service Commission under the Constitution.
Chairman of a Public Service Commission is entrusted with the discharge E
of administrative duties of the Public Service Commission obviously for the
reason that as high constitutional functionary he could be depended upon
to discharge such functions justly and fairly. When Regulations under
Article 318 of the Constitution are made with respect to the conditions ·of
service of Members of the Public; Service Commission, it is true, such F
regulations cannot vary the conditions of service of the Member of the
Public Commission to its disadvantage after this appointment. Therefore,
what becomes obvious is that so far as the Member of the Public Service
Commission is concerned, as may be the case with the Chairman, he can
undoubtedly make a grievance thereof when any condition of his service is G
varied to his disadvantage after his appointment, by regulations made in
that regard and obtain relief from courts. But, when certain facilities for
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 nothing could come in the way of such Chairman of the H
                                                                  '
    l 12                  SUPREME COURT REPORTS [1994] SUPP. 2 S.C.R.

A   Public Ser\ice Commission, to withdraw any of such facilities or amenities
    given to a member in carrying out the administration of the same Commis-
    sion if the administrative exigencies so demand. Withdrawal of such
    facilities or amenities cannot amount, at any rate to variation of service
    conditions of a member of the Public Service Commission envisaged under
B   the proviso to Article 318. Hence, the contentions of the learned counsel
    for the petitioner based on equal status of member with the Chairman and
    on proviso to Article 318 of the Constitution. Lacks merits. From this it
    follows that the petitioner member of the Public Sernce Commission is
    entitled to get similar type of facilities and amenities which the Chairman
C   of the BPSC has, cannot be countenanced and is liable to be rejected.

            Though we have rejected the contentions of the learned counsel of
    the petitioner for retrieval of the facilities claimed by the petitioner as a
    matter of his constitutional or legal right, there should be no reason for the
    petitioner to feel, as urged by Shri R.K. Garg, that as a member of the
D   Public Service Commission, he is humiliated by withdrawal of the facilities
    of Public Service Commission provided to him earlier by the Chairman as
    we were told on behalf of the BPSC that almost all the facilities which he
    had earlier are restored and the same was not disputed. However, Shri
    R.K. Garg's insistence that a separate room with toilet facility shall be
E   ordered to be provided for the petitioner, in that, according to him such
    facility was required by him not only as a completely blind person but also
    for effective functioning as a member, cannot bear fruit since it was
    submitted on behalf of the BPSC that there were hardly three rooms in its
    Administrative Building available for the BPSC to function, one room
F   cannot be spared exclusively for use of the petitioner. We cannot say
    anything in this matter, in that the facilities of accommodation to be
    provided to the members of the BPSC for their office work has to neces-
    sarily depend upon the accommodation available for its functioning. All
    that could be said is that an institution like the Public Service Commission
G   should not be starved of the accommodation or any other facilities or
    amenities needed by its members out of necessity, by the State Government
    concerned. Insofar as the compensatory allowance claimed by the
    petitioner is COJ\Cerned, we clarify it is open to the petitioner to seek grant
    of the same under regulation 17 of the Regulations which we are sure, if
H   sought, would be considered and decided on merits.
    BJ HAR PUBLIC SERVICE CO~I~IISSIOS i·. DR. SJ. THAKL'R [VE SKATACHALA. 1.1   113

      For the foregoing reasons, question of granting any of the reliefs in            A
prayer 'A' of the Writ Petition (Transferred Case) does not arise.

       We now come to the Special Leave Petitions filed against the interim
orders made in the Writ petition. All the interim orders made in the Writ
Petition (Transferred case), are those made by the Hon'ble Chief Justice               B
B.C. Basak and Hon'ble Mr. Justice Ch. S.N. Mishra, as members compris-
ing of a Division Bench. When we see the interim orders none of them is
made on the basis of a written application made in that regard. We have
already pointed out that the first interim order under appeal, which is
dated 27.8.1992 is made requiring the BPSC to hold a meeting on 29.8.1992              C
to take a decision as to how the litigation initiated by Dr. Thakur, its
Member, against the BPSC by way of Writ Petition (Transferred Case)
should be conducted on behalf of the BPSC. That interim order itself,
insofar as it is material, could be excepted here for sake of facility:

         ' ..........A meeting of the Commission be held on 29.8.1992 for the          D
         purpose of taking a decision on behalf of the Commission regard-
         ing conduct of litigation: on behalf of the Commission. We make
         it clear that as such decisions is to be taken in respect of the
         petition filed by Dr. Thakur. Dr. Thakur Shall not participate in
         respect of such Agenda in such meeting."                                      E

       We are really unable to understand as to why the said order should
have been made by the Court requiring the holding of a meeting of the
BPSC to decide whether the BPSC could contest the Writ Petition (Trans-
ferred Case) filed by Dr. Thakur or not, inasmuch as, if it was not contested
                                                                              F
or the contest was untenable, the Court could have decided the writ
petition on merits. The second interim order dated 1.9.1992 which was
made by the Court granting leave to Dr. Thakur to join all the members
of the BPSC including the BPSC through its chairman as party- respon-
dents in the writ petition, appears to have been indeed made for the
reasons that no one appeared on behalf of the BPSC in the court and that G
no one produced the decision which was asked to be taken by the BPSC.
Then comes the third interim order dated 7.9.1992 which says that the
matter would appear the next day when the Chairman should appear in
the Court with all the records in connection with the matter, and a non-
bailable warrant for his arrest would be issued if he does not appear the H
    114                   SUPREME COURT REPORTS (1994) SUPP. 2 S.C.R.

A next day with the required records. The fourth interim order made there-
    after by the Court says that a decision was to be taken by the commission
    with regard to the petition of Dr. Thakur without allowing the Chairman
    and Dr. Thakur to vote on the decision. This interim order to which we
    have adverted to earlier, is reproduced in extenso for the sake of knowing
    its clear purport :
B
                "...............As the questions, which are being raised as to whether
            the decision taken by the Chairman regarding Dr. Thakur is the
            decision of the Commission or not, that was the whole purpose of
            our earlier orders. Accordingly, we direct that the meeting be held
c           as directed by us, to ascertain the views of the difforent members
            of the Commission regarding the various allegations made by the
            petitioner and answer to the same by the Chairman. We direct the
            Commission to take a decision in the matter, given it not unani':'
            mously, but a majority decision. It will be open to each one of
            them to consider the same and to record their opinion. Jn the
D
            discussions before the Commission. Dr. Thakur and the Chairman
            may take part. 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 clarifica-
            tion. However, the decision shall be taken in a meeting of the,
E           Commission but the petitioner or the Chairman shall not be
            entitled to vote or be present when the votes are being cast."

          This interim order also says that the senior-most of the Members
    shall preside over the meeting, but he shall not have any casting vote. Then
    comes the fifth and the last of the interim orders made on 16.9.1992. By
F
    that interim order appointment of Mr. Justice L.P.N. Sahdeo, a retired
    Judge of the Patna High Court is made to preside over the meeting of the·
    BSPC to decide whether the affidavit filed by the Chairman could be
    treated as affidavit of the Commission or not. That interim order does not
    stop there but proceeds to direct the Chairman and the Members of the
G   BPSC not to draw their salaries and allowances until the disposal of the
    writ petition.

         It is the said interim orders which are the impugned in the Special
    Leave Petitions. We are really unable to see how the Writ Jurisdiction of
H   the High Court under Article 226 of the Constitution of India could have
    BlllAR PUBLIC SERVICE COMMISSION '·DR. S.J. TIIAKUR {vENKATACHALA,J.]   115

been availed of to make the said interim orders which interferred 'with the A
normal functioning of the BPSC by the constitutional functionaries, even if
the High Court desired to have the views of the BPSC as regards the writ
petition filed by Dr. Thakur against the BPSC and the functioning of its
Chairman. We are indeed unable to understand now such interim orders
could be regarded as those which have been made in aid of the final relief, B
if any, required to be granted in the Writ Petition or required to maintain
status quo pending final disposal of the writ petition. When the nature of
the interim order is seen, it becomes obvious that the High ·Court has
sought to take over responsibility of carrying on the functions of the BPSC
by appointing its own chairman for conducting a meeting of the BPSC. It C
is no doubt open to the Court to reject the affidavit filed on behalf of the
BPSC by the Chairman on its view that it cannot be regarded as the opinion
of the BPSC. But, in a case, even where such decision of the Commission
as a body had been called for, the High Court was not enabled, in the
purported exercise of its jurisdiction under Article 226 of the Constitution, D
to make such interim orders which would have made the functioning of the
BPSC, a constitutional institution, a mockery in the eyes of the general
public and exposed its constitutional functionaries to ridicule. It is true that
Article 226 of the Constitution, empowers the High court to exercise it
discretionary jurisdiction to issue directions, orders or writs, including writs E
in the nature of habeas corpus, certiorari, quo warranto and mandamus or
any of them for the enforcement of the rights conferred under the Con-
stitution or for an other purpose, but such discretion to issue directions or
writs on· orders conferred on the High Court under Article 226 being a
judicial discretion to be exercised on the basis of well-established judicial
norms,could not have been used by the High Court to make the said F
interim orders which could not have any way helped or aided the Court in
granting the main relief sought in the writ petition. The said interim orders,
therefore, 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, they become wholly G
unsustamable. Such interim orders are made by the High Court, to say the
least, without realisation that they 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. For the said reasons,
the interim orders impugned in the S.L.P.s cannot be sustained and are H
    116                     SUPREME COURT REPORTS (1994] SUPP. 2 S.C.R.

A liable to be set aside.

          In the result we grant leave in the S.L.P.s allow the appeals, set aside
    the interim orders appealed against and dismiss the Writ Petition (Trans-
    ferred Case). However, in the Circumstances of these appeals and the
    transferred case, we make no order as to costs.

    R.P.                                                        Appeal allowed.