Holding

A High Court may intervene in an appointment to a State Public Service Commission when the State fails to consider implied factors of integrity and competence, but it cannot usurp the Governor’s constitutional power by prescribing a detailed selection procedure; consequently, the Full Bench’s procedural order was set aside while the Division Bench’s quashing of the appointment was affirmed.

Summary

The State of Punjab appointed Harish Dhanda as Chairman of the Punjab Public Service Commission, prompting a public‑interest writ petition under Article 226 alleging lack of integrity, political affiliation and absence of requisite administrative experience. The Punjab & Haryana High Court Division Bench referred specific procedural questions to a Full Bench, which then issued detailed guidelines for future appointments and quashed Dhanda's appointment. On appeal, the Supreme Court held that while High Courts may intervene in exceptional cases where the State’s discretion under Article 316 ignores implied factors such as competence and integrity, the Full Bench had exceeded its jurisdiction by prescribing a procedure, and therefore set aside its judgment but upheld the Division Bench’s quashing of Dhanda’s appointment. The Court directed the Punjab government to frame appropriate guidelines and affirmed that appointments to constitutional posts are not mere service matters and can be challenged via PIL.

Issues considered

The writ petition under Article 226 is maintainable as a public‑interest litigation despite involving a service‑related appointment.
Whether a High Court may lay down the procedure for selecting and appointing the Chairman of a State Public Service Commission and quash the appointment under Article 226.
Whether the Full Bench of the High Court acted beyond its jurisdiction in framing detailed procedural guidelines.
The extent of the Governor’s discretion under Article 316 and its implied limitation by the functions of the Commission under Article 320.
The appropriate remedy (quo warranto, declaration, or other writ) for an allegedly improper appointment to a constitutional post.

Legislation cited

Administrative Tribunals Act, 1985s. 3(q)
Central Vigilance Commission Act, 2003s. 4(1)
Constitution of Indias. 163(3), s. 226, s. 315, s. 316, s. 317, s. 318, s. 319, s. 320, s. 322, s. 323

Subjects

Public Service CommissionAppointmentArticle 226Article 316Constitutional postPublic interest litigationJudicial reviewQuo warrantoWrit of declarationDiscretionIntegrityCompetenceHigh Court jurisdiction

Judgment

[2013] 5 S.C.R. 18

A STATE OF PUNJAB
v.
SAUL SABHLOK AND ORS.
(Civil Appeal No.7640 of 2011)

B FEBRUARY 15, 2013
[A.K. PATNAIK AND MADAN B. LOKUR, JJ.]

Constitution of India, 1950 - Arts.226, 316 and 320 -
State Public Service Commission - Appointment of
C Chairman - Interference u/Art.226 of the Constitution- Scope
- Held: High Court should not normally, in exercise of its
power u!Art.226, interfere with the discretion of the State
Government in selecting and appointing the Chairman of the
State Public Service Commission - But in an exceptional
D case, if'it is shown- that relevan,.t factors implied from the very
nature of the duties entrusted to Public Service Commissions
u!Art.320 have not been considered by the State Governmen't
in selecting and appointing the Chairman of the State Public
Service Commission, the High Court can invoke its wide and
E extra-ordinary powers u!Art.226 and quash the selection and
appointment to ensure that the discretion of the State
Government is exercised within the bounds of the Constitution
-On facts, where appointment of 'H' as Chairman of the
Punjab Public Service Commission was quashed by the High
F Court while exercising jurisdiction u!Art.226, the materials on
record do not indicate that 'H' had any knowledge or
experience whatsoever· either in administration or in
recruitment nor do the materials indicate that he had the
qualities to perform the duties as the Chairman of the State
G Public Service Commission u/Art.320 - Decision of the State
Government to appoint 'H' as the Chairman of the Punjab
Public Service Commission was invalid for non-consideration
of relevant factors implied from the very nature of the duties
entrusted to Public Service Commissions u!Art.320 -
H Impugned order of High Court accordingly not interfered with.
18
STATE OF PUNJAB v. SAUL SABHLOK AND ORS. 19

Constitution of India, 1950 - Art.226 - Power under - A
Exercise of- Scope - Held: Art.226 vests in the High Court
the power to issue to any person or authority, including in
appropriate cases, any Government, within those territories
directions, orders or writs, including writs in the nature of
habeas corpus, mandamus, prohibition, quo warranto and B
certiorari, or any of them, for the enforcement of any of the
rights conferred by Part Ill and for any other purpose.

Public Service Commisison - State Public Service
Commission - Appointment of Chairman - Procedure -
Implied relevant factors - Held: It is for the Governor who is C
the appointing authority u/Art.316 to lay down the procedure
- But in absence of any pro9edure laid down by the Governor,
the State Government would not have absolute discretion -
The State Government has to select only persons with
integrity and competence for appointment, because the D
discretion vested in the State Government u!Art.316 is
impliedly limited by the purposes for which the discretion is
vested and the purposes are discernible from the functions
of the Public Service Commission enumerated in Art. 320 -
The State Public Service Commission is expected to act with E
independence from the State Government and with fairness,
besides competence and maturity acquired through
knowledge and experience of public administration - Even "'
though Art.316 does not specify the aforesaid qualities of the
Chairman of a Public Service Commission, these qualities F
are amongst the. implied relevant factors which have to f?e
taken into consideration by the Government while determining
the competency of the person to be selected and appointed
as Chairman of the Public Service Commission u/Art.316 -
Constitution of India, 1950 - Articles 316 and 320. G

Public Interest Litigation - Selection of 'H' for appointment.
as Chairman of the Punjab Public Service Commission -Wljt
petition challenging such appointment - Maintainability:-
. Held: Respondent No. 1 filed the writ petition for espousing the
H
20 SUPREME COURT REPORTS [2013) 5 S.C.R.

A cause of the general public of the State of Punjab with a view
to ensure that a person appointed as the Chairman of the
Punjab Public Service Commission is a man of ability and
integrity so that recruitment to public services in the State of
Punjab are from the best available talents and are fair and is
B not influenced by politics and extraneous considerations -
Considering the averments in the writ petition, it cannot be ·
held that the writ petition was just a service matter in which
only the aggrieved party had the locus to initiate a legal action
in the court of law - The writ petition was a matter affecting
c interest of the general public in the State of Punjab and any
member of the public could espouse the cause of the general
public so long as his bonafides were not in doubt - When
respondent No. 1 brought to the notice of the High Court
through the writ petition that the State Government of Punjab
0 proposed to appoint 'H' as Chairman of the Public Service
Commission, only because of his political affiliation, the High
Court rightly entertained the writ petition as a public interest
litigation.

Pr.aetice & Procedure - Reference to larger Bench - Writ
E petition challenging appointment of 'H' ·as Chairman of the
Punjab Public Service Commission - Division Bench of the
High Court made academic reference· to Full Bench of three
Judges of the High Court on specific questions of law -
Justification - Held: On facts, justified - No merit in the
F submission that the Division Bench of the High Court having
found in its order that the irregularities and illegalities pointed
out in the writ petition against 'H' were unsubstantiated, should
not have made an academic reference to the larger Bench
of the High Court - The Division Bench of the High Court was
G of the view that the persons to be appointed must have
competence· and integrity, but how such persons are to be
identified and selected must be considered by a Bench of
three Judges and accordingly made the reference - Punjab
High Court Rules - rr. 6, 7, 8 and 9.
H
STATE OF PUNJAB v. SAUL SABHLOK AND ORS. 21

Practice & Procedure - Reference to larger Bench - A
Scope of reference - Writ petition challenging appointment
of Chairman of the Punjab Public Service Commission -
Division Bench of the High Court made reference to Full
Bench of three Judges of the High Court on specific questions
of law relating to procedure for identifying persons of B
competence and integrity for such appointment - Full Bench,
instead of deciding the specific questions, gave directions to
the State of Punjab and the State of Haryana to follow a
particular procedure for appointment of Members and
Chairman of the Public Service Commission till such time a C
fair, rational, objective and transparent policy to meet the
mandate of Art.14 of the Constitution was made- Justification
- Held: Not justified - The Full Bench of the High Court
decided issues which were not referred to it by the Division
Bench of the High Court - It acted beyond its jurisdiction and
0
usurped the-constitutional power of the Governor in laying
down the procedure for appointment of the Chairman and
Members of the Public Service Commission - Constitution
of India, 1950 - Art.316.

The State Government of Punjab appointed Shri E
Harish Chanda as the Chairman of the Punjab Public
Service Commission. Respondent No.1, an Advocate
practicing at the Punjab and Haryana High Court,
Chandigarh, filed a public interest litigation under Article
226 of the Constitution praying for a mandamus directing F
the State Government to frame regulations g~verning the
conditions of service and appointment of the Chairman
and/or the Members of the Public Service Commission as
envisaged in Article 318 of the Constitution. Respondent
no.1 also prayed. for a direction restraining the State G
Government from appointing Shri Harish Chanda as the
Chairman of the Punjab Public Service Commission in
view of the fact that his appointment does not fall within
the parameters of integrity, impartiality and independence
as reiterated time and again by this Court:
H
22 SUPREME COURT REPORTS [2013] 5 S.C.R.

A The Division Bench of the High Court referred the
matter to the Bench of three Judges of the High Court.
Thereafter, the Chief Justice of the High Court
constituted a Full Bench. The Full Bench of the High
Court delivered a judgment and passed an order on
B 17 .08.2011 directing both the State of Haryana and the
State of Punjab to follow a particular procedure as part
of the decision-making process for appointment as
Members and Chairman of the Public Service
Commission, till such time a fair, rational, objective and
c transparent policy to meet the mandate of Article 14 was
made. By the order dated 17.08.2011, the Full Bench of
the High Court also ordered that the writ petition be listed
before the Division Bench to be constituted by the Chief
Justice of the High Court. Pursuant to the order dated
17.08.2011, the Division Bench constituted by the Chief
0
Justice of the High Court quashed the appointment of
Shri Harish Dhanda as Chairman of the Punjab Public
Service Commission and disposed of the writ petition of
respondent No.1 in terms of the judgment of the Full
Bench. Aggrieved, the State of Punjab, State of Haryana
E and Shri H.R. Dhanda filed the instant appeals against the
judgment and orders dated 17.08.2011 of the Full Bench
and the Division Bench of the High Court.
The question which arose for decision of this Court
F was whether the High Court in exercise of its writ
jurisdiction under Article 226 of the Constitution can lay
down the procedure for the selection and appointment
of the Chairman of the State Public Service Commission
and quash his appointment in appropriate cases.
G Disposing of the appeals, the Court
HELD:
Per Patnaik, J.

1. On a reading of the entire writ petition filed by
STATE OF PUNJAB v. SAUL SABHLOK AND ORS. 23

respondent No.1 before the High Court, it is clear that A
respondent no.1 filed this writ petition for espousing the
cause of the general public of the State of Punjab with a
view to ensure that a person appointed as the Chairman
of the Punjab Public Service Commission is a man of
ability and integrity so that recruitment to public services B
in the State of Punjab are from the best available talents
and are fair and is not influenced by politics and
extraneous considerations. Considering the averments in
the writ petition, it cannot be held that the writ petition is
Just a service matter in which only the aggrieved party c
has the locus to initiate a legal action in the court of law.
The writ petition is a matter affecting interest of the
general public in the State of Punjab and any member of
the public could espouse the. cause of the general public
so long as his bonafides are not in doubt. Considering D
the past experience of the damage to recruitment to
public services caused by appointing a person lacking
in character as the Chairman of the Public Service
Commission in the State of Punjab during the period 1996
to 2002 [as noted in the judgment of this Court in
lnderpreet Singh Kah/on case] when respondent No.1 · E
brought to the notice of the High Court through the writ
petition that the State Government of Punjab proposed
to appoint Shri Harish Dhanda as the Chairman of the
Public Service Commission, only because of his political
affiliation, the High Court rightly entertained the writ F
petition as a public interest litigation. [Paras 23, 31) [51-
E-H; 62-A-C]
2.1. Though respondent No.1 had alleged in the writ
petition some irregularities and illegalities on the part of G
Shri Harish Dhanda, who was proposed to be appointed
· as Chairman of the Public Service Commission by the
State Government, the writ petition was not founded only
on such irregularities and illegalities alleged against Shri
Harish Chanda. In addition, the respondent No.1 had
also alleged in the writ petition that Shri Harish Dhanda H
24 SUPREME COURT REPORTS [2013) 5 S.C.R.

A was politically affiliated to the ruling party and was not
selected for appointment as Chairman of the Public
Service Commission on the basis of his qualifications,
experience or ability which are necessary for the post of
the Chairman of the Public Service Commission. Thus,
B even if the Division Bench had recorded a finding in the
order dated 13.07 .2011 that the irregularities and
illegalities pointed. out in the writ petition against Shri
Harish Dhanda do not stand substantiated, the writ
petition could not be disposed of with the said finding
c only. The Division Bench of the High Court, therefore,
thought it necessary to make a reference to the Full
Bench and has given its reasons for the reference to the
Full Bench in its order dated 13.07.2011. [Para 24] [52-H;
53-A-C]

D 2.2. It is clear from the order dated 13.07.2011 that the
Division Bench of the High Court found that Article 316
of the Constitution, which provides for appointment of
the Chairman and other Members of the Public Service
Commission by the Governor, does not prescribe any
E particular procedure and took the view that, having.
regard to the purpose and nature of appointment, it
cannot be assumed that power of appointment need not
be regulated by any procedure. The Division Bench of
the High Court was of the further view that the persons
F to be appointed must have competence and integrity, but
how such persons are to be identified and selected must
be considered by a Bench of three Judges and
accordingly referred the matter to the three Judges. The
Division Bench also referred the question to the larger
G Bench of three Judges as to whether the procedure
adopted in the present case for appointing Shri Harish
Chanda as the Chairman of the Punjab Public Service
Commission was valid and if not, what is the effect of not
following the procedure. There is, therefore, no rrlerit in
H the submission that the Division Bench of the High Court
STATE OF PUNJAB v. SAUL SABHLOK AND ORS. 25

having found in its order dated 13.07 .2011 that the A
irregularities and illegalities pointed out in the writ petition
against Shri ·Harish Dhanda are unsubstantiated, should
not have made an academic reference to the larger Bench
of the High Court. [Para 25] [53-H; 54-A-E]
B
3.1. However, it cannot be said that the Division
Bench referred the entire case to the Full Bench by the
order dated 13.07.2011. It is further found that although
specific questions relating to the procedure for identifying •
persons of competence and integrity for appointment as· C
the. Chairman of the Public Service Commission only
were referred by the Division Bench of the High Court,
the Full Bench, instead of deciding these specific
questions referred to it, has given directions to the State
of Punjab and the State of Haryana to follow a particular
procedure for. appointment of Members and Chairman of D
the Public Service Commission till such time a fair,
rational, objective and transparent. policy to meet the
mandate of Article 14 of the Constitution is made. The Full
Bench of the High Court has decided issues which
were not referred to it by the Division Bench of the High E
Court and the judgment dated 17 ~08.2011 of the Full
Bench of the High Court was without jurisdiction. [Para
28) [57 -8-E]

3.2. Under Article 316 of the Constitution, the F
Governor of a State has not only the· express power of
appointing the Chairman and other Members of Public
Service Commission but also the implied powers to lay
down the procedure for appointment of Chairman and
Members of the Public Service Commission and the High G
Court cannot under Article 226 of the Constitution usurp
this constitutional power of the Government and lay
down the procedure for appointment of the Chairman
and. other Members of the Public Service Commission.
The Full Bench of the High Court, therefore, could not H
26 SUPREME COURT REPORTS [2013] 5 S.C.R.

A have laid down the procedure for appointment of the
Chairman and Members of the Punjab Public Service
Commission and the Haryana public Service Commission
by the impugned judgment dated 17 .08.2011. Inasmuch
as the Full Bench of the High Court has in its judgment
B dated 17.08.2011 acted beyond its jurisdiction and has
usurped the constitutional power of the Governor in
laying down the procedure for appointment of the
Chairman and Members of the Public Service
Commission, the said judgment dated 17.08.2011 of the
c Full Bench of the High Court is being set aside. [Paras
29, 30) (59-E-H; 60-A-B]
4.1. Nevertheless to cut short the litigation, the writ
petition is now being decided on merits instead of
remanding the matter to the High Court. (Para 30) (60-8]
D 4.2. It is for the Governor who is the appointing
authority under Article 316 of the Constitution to lay down
the procedure for appointment of the Chairman and
Members of the Public Service Commission, but this is
not to say that in the absence of any procedure laid down
E by the Governor for appointment of Chairman and
Members of the Public Service Commission under Article
316 of the Constitution, the State Government would have
absolute discretion in selecting and appointing any
person as the Chairman of the State Public Service
F Commission. Even where a procedure has not been laid
down by the Govern.or for appointment of Chairman and
Members of the Public Service Commission, the State
Government has to select only persons with integrity and
competence for appointment as Chairman of the Public
G Service Commission, because the discretion vested in
the State Government under Article 316 of the
Constitution is impliedly limited by the purposes for
which the discretion is vested and the purposes are
discernible from the functions of the Public Service
H Commissions enumerated in Article 320 of the
STATE OF PUNJAB v. SAUL SABHLOK AND ORS. 27

Constitution. Under clause (1) of Article 320 of the A
Constitution, the State Public Service Commission has
the duty to conduct examinations for appointments to the
services of the State. Under clause (3) of Article 320, the
State Public Service Commission has to be consulted by
the State Government on matters relating to recruitment B
and appointment to the civil services and civil posts in
the State, on disciplinary matters affecting a person
serving under the Government of a State in a civil
capacity, on claims by and in respect of a person who is
serving under the State Government towards costs of c
defending a legal proceeding, on claims for award of
pension in respect of injuries sustained by a person while
serving under the State Government and other matters.
In such matters, the State Public Service Commission is
expected to act with independence from the State 0
Government and with fairness, besides competence and
maturity acquired through knowledge and experience of
public administration. [Para 31] [62-E-H; 63-A-D]
4.3. Even though Article 316 does not specify the
aforesaid qualities of the Chairman of a Public Service E
Commission, these qualities are amongst the implied
relevant factors which have to be taken into
consideration by the Government while determining the
competency of the person to be selected and appointed
as Chairman of the Public Service Commission under
Article 316 of the Constitution. Accordingly, if these F
relevant factors are not taken into consideration by the
State Government while selecting and appointing the
Chairman of the Public. Service Commission, the Court
can hold the selection and appointment as not in
accordance with the Constitution. To ensure this G
independence of the Chairman and Members of the
Public Service Commission, clause (3) of Article 316 of
the Constitution provides that a person shall, on
expiration of his term of office be ineligible for
H
28 SUPREME COURT REPORTS [2013] 5 S.C.R.

A reappointment to that office. [Paras 32, 33] [63-E-G; 65-
C-D]

4.4. Besides express restrictions in a statute or the
Constitution, there can be implied restrictions in a statute
8 and the Constitution and the statutory or the
constitutional authority cannot in breach of such implied
restrictions exercise its discretionary power. Moreover,
Article 226 of the Constitution vests in the High Court the
power to issue to any person or authority, including in
C appropriate cases; any Government, within those
territories directions, orders or writs, including writs in the
nature of habeas corpus, mandamus, prohibition, quo
warranto and certiorari, or any of them, for the
enforcement of any of the rights conferred by Part Ill and
for any other purpose. The power of the High Court
D under Article 226 of the Constitution is, thus, not confined
to only writ of quo warranto but to other directions,
orders or writs. [Para 34] [65-G-H; 66-A-C]

4.5. The High Court should not normally, in exercise
E of its power under Article 226 of ttie Constitution, interfere
with the discretion of the State Government in selecting
and appointing the Chairman of the State Public Service
Commission, but in an exceptional case if it is shown that
relevant factors implied from the very nature of the duties ·
F entrusted to Public Service Commissions under Article
320 of the Constitution have not been considered by the
State Government in selecting and appointing the
Chairman of the State Public Service Commission, the
High Court can invoke its wide and extra-ordinary powers
G under Article 226 of the Constitution and quash the
selection and appointment to ensure that the discretion
of the State Government is exercised within the bounds
of the Constitution. [Para 34] [67-C-E]
5. In the present case, the High Court in its order
H dated 13.07 .2011 had held that the irregularities and
STATE OF PUNJAB v. SAUL SABHLOK AND ORS. 29

illegalities alleged against Shri Harish Dhanda have not A
been substantiated. This Court had passed orders on
01.08.2012 calling upon the State of Punjab to produce
the material referred to in para 69 of the judgment of the
Full Bench of the High Court on the basis of which Shri
"Harish Dhanda was selected for appointment as B
·chairman of the Punjab Public Service Commission.
Pursuant to the order dated 01.08.2012, the State
Government produced the files in which the selection and
appointment of Shri Harish Dhanda was processed by
the State Government. The materials indicate that Shri c
Harish Dhanda had B.A. and LLB Degrees and was
practicing as an Advocate at the District Courts in
. Ludhiana and had been elected as the President of the
District Bar Association, Ludhiana for seven terms and
has been member of the Legislative Assembly. These D
materials do not indicate that Shri Harish Dhanda had any
knowledge or experience whatsoever either in
administration or in recruitment nor do these materials
indicate that Shri Harish Dhanda had the qualities to
perform the.duties as the Chairman of the State Public
·Service Commission under Article 320 of the Constitution. E
No other information through affidavit has also been
placed on record to show that Shri Harish Dhanda has
the positive qualities to perform the duties of the office
of the Chairman of the State Pubic Service Commission
under Article 320 of the.Constitution. The decision of the F
State Government to appoint Shri Harish Dhanda as the
Chairman of the Punjab Public Service Commission was
thus invalid for non-consideration of relevant factors
implied from the very nature of the duties entrusted to the
Public Service Commissions under Article 320 of the G
Constitution. [Para 35] [67-F-H; 68"G-H; 69-A-D]

6. In the result, the impugned order of the Division
Bench of the High Court dated 17.08.2011 quashing the
selection and appointment of Shri Harish Dhanda as H
30 SUPREME COURT REPORTS [2013) 5 S.C.R.

A Chairman of the Punjab Public Service Commission, is
not interfered with, but the judgment dated 17.08.2011 of
the Full Bench of the High Court is set aside. [Para 36]
(69-E]

8 E.P. Royappa v. State of Tamil Nadu & Anr. (1974) 4
SCC 3: 1974 (2) SCR 348; State of West Bengal & Ors. v.
Manas Kumar Chakraborly & Ors. (2003) 2 SCC 604: 2002
(5) Suppl. SCR 72 - distinguished.

In re Mehar Singh Singh Saini, Chairman, HPSC and
c others (2010) 13 sec 586 - explained.

In Rio Or. Ram Ashray Yadav, Chairman, Bihar Public
Service Commission (2000) 4 SCC 309: 2000 (2) SCR 688;
Ram Kumar Kashyap and another vs. Union of India and
D another AIR 2010 SC 1151: 2009 (12) SCR 601; R.K. Jain
v. Union of India & Ors. (1993) 4 SCC 119: 1993 (3) SCR
802; Dr. Duryodhan Sahu & Ors. v. Jitendra Kumar Mishra
& Ors. (1998) 7 SCC 273: 1998 (1) Suppl. SCR 77; Oattaraj
Nathuji Thaware v. State of Maharashtra & Ors. (2005) 1 SCC
E 590: 2004 (6) Suppl. SCR 900; Ashok Kumar Pandey v.
State of West Bengal (2004) 3 SCC 349: 2003 (5) Suppl.
SCR 716; Hari Bansh Lal v. Sahodar Prasad Mahto & Ors.
(2010) 9 SCC 655: 2010 (10) SCR 561; Girjesh Shrivastava
& Ors. v. State of M.P. & Ors. (2010) 10 SCC 707: 2010 (12)
F SCR 839; Kesho Nath Khurana v. Union of India & Ors. (1981)
Supp.1 SCC 38; The State of Punjab v. Sodhi Sukhdev
Singh (1961) 2 SCR 371; Supreme Court Employees
Welfare Association v. Union of India & Anr. (1989) 4 SCC
187: 1989 (3) SCR 488; Suresh Seth v. Commissioner of
Indore Municipal Corporation (2005) 13 SCC 287; Divisional
G Manager, Aravali Golf Club & Anr. v. Chander Hass & Anr.
(2008) 1 SCC 683: 2007 (12) SCR 1084; Asif Hameed &
Ors. v. State of J & K & Ors. (1989) 2 Supp. SCC 364: 1989
(3) SCR 19; B. Srinivasa Reddy v. Karnataka Urban Water
Supply & Drainage Board Employees Association & Ors.
H (2006) 11 SCC 731: 2006 (5) Suppl. SCR 462; Ashok Kumar
STATE OF PUNJAB v. SAUL SABHLOK AND ORS. 31

Yadav & Ors. v. State of Haryana & Ors. (1985) 4 SCC 417: A
1985 (1) Suppl. SCR 657; lnderpreet Singh Kah/on and
Others v. State of Punjab and Others (2006) 11 SCC 356:
2006 (1) Suppl. SCR 772; Centre for PIL and Another v.
Union of India and Another (2011) 4 SCC 1; Kera/a State
Science & ,Technology Museum v. Rambal Co. & Ors. (2006) B
6 SCC 258: 2006 (4) Suppl. SCR 243; Dwarka Nath v.
Income-tax Officer, Special Circle, D Ward, Kanpur & Anr.
AIR 1966 SC 81: 1965 SCR 536; Mohinder Singh Gill &. Anr.
v. The Chief Election Commissioner, New Delhi & Ors.
(1978) 1 SCC 405: 1978 (2) SCR 272; Mis Hochtief c
Gammon v. State of Orissa and Others AIR 1975 SC 2226:
1976 (1) SCR 667 - referred to.

De Smith's Judicial Review, Sixth Edition - referred to.
Case Law Reference: D
2000 (2) SCR 688 referred to Para 4, 31
2009 (12) SCR 601 referred to Para 4
(201 O) 13 sec 586 explained Para 4, 26
E
1993 (3) SCR 802 referred to Para 9
1998 (1) Suppl. SCR 77 referred to Para 9
2004 (6) Suppl. SCR 900 referred to Para 9.
F
2003 (5) Suppl. SCR 716 referred to Para 9, 31
2010 (10) SCR 561 referred to Para 9
2010 (12) SCR 839 referred to . Para 9
(1981) Supp.1 sec 38 referred to Para 11 G
(1961) 2 SCR 371 referred to Para 11
1989 (3) SCR 488 referred to Para 12
(2005) 13 sec 201 referred to Para 12 H
32 SUPREME COURT REPORTS [2013] 5 S.C.R.

A 2007 (12) SCR 1084 referred to Para 12
1989 (3) SCR 19 referred to Para 12
1974 (2) SCR 348 distinguished Para 12

B 2002 (5) Suppl. SCR 72 distinguished Para 12
2006 (5) Suppl. SCR 462 referred to Para 13
1985 (1) Suppl. SCR 657 referred to Para 15
2000 (2) SCR 688 referred to Para 15
c
2006 (1) Suppl. SCR 772 referred to Para 15, 32
(2011) 4 sec 1 . referred to Para 16
2006 (4) Suppl. SCR 243 referred to Para 18
D 1965 SCR 536 referred to Para 19
1978 (2) SCR 272 referred to Para 29,
1976 SCR 667 referred to Para 32
E Per Lokur, J. [Concurring]

1.1. The appointment of the Chairpetson of the
Punjab Public Service Commission is an appointment to
a constitutional position and is not a "service matter". A
F PIL challenging such an appointment is, therefore,
maintainable both for the issuance of a writ of quo
warranto and for a writ of' declaration, as the case may
be. [Para 107] [109-F-G]
1.2. In a case for the issuance of a writ of declaration,
G exercise of the power of judicial review is presently limited
to examining the deliberative process for the
appointment not meeting the constitutional, functional
and institutional requirements of the institution whose
integrity and commitment needs to be maintained or the
H
STATE OF PUNJAB v. SAUL SABHLOK AND ORS. 33

appointment for these reasons not being in public A
interest. [Para 109-H; 110-A]
1.3. The circumstances of this case leave no room for
doubt that the notification dated 7th July 2011 appointing
Mr. Harish Rai Dhanda was deservedly quashed by the B
High Court since there was no deliberative process
worth the name in making the appointment and also
since the constitutional, functional and institutional
requirements of the Punjab Public Service Commission
were not met. [Para 109] [110-8-C]
c
1.4. There is a need for a word of caution to the High
Courts. There is a likelihood of comparable challenges
being made by trigger-happy litigants to appointments
made to constitutional positions where no eligibility
criterion or procedure has been laid down. The High D
Courts will do well to be extremely circl!mspect in even
entertaining such petitions. It is necessary to keep in
mind that sufficient elbow room must be given to the
Executive to make constitutional appointments as long
as the constitutional, functional and institutional E
requirements are met and the appointments are in
conformity with the indicators given by this Court from
time to time. [Para 11 O] [110-C-E]

1.5. Given _the experience in the making of such
appointments, there is no doubt that until the State F
Legislature enacts an appropriate law, the State of Punjab
must step in and take urgent steps to frame a
memorandum of procedure and administrative guidelines
for the selection and appointment of the Chairperson and
members of the Punjab Public Service Commission, so G
that the possibility of arbitrary appointments is eliminated.
[Para 111] [110-F-G]

Hari Bansh Lalv. Sahodar Prasad Mahto, (2010) 9 SCC
655; E.P. Royappa v. State of Tamil Nadu, (1974) 4 SCC 3; · H
34 SUPREME COURT REPORTS [2013] 5 S.C.R.

A State of W.B. v. Manas Kumar Chakraborty, (2003) 2 SCC
604; State of Mysore v. Syed Mahmood, AIR 1968 SC 1113,
Statesman (P) Ltd. v. H.R. Deb, AIR 1968 SC 1495 and State
Bank of India v. Mohd. Mynuddin, (1987) 4 SCC 486 -
distinguished. ·
B
R.K. Jain v. Union of India, (1993) 4 SCC 119, Mor
Modern Coop. Transport Society v. Govt. of Haryana, (2002)
6 SCC 269, High Court of Gujarat v. Gujarat Kishan Mazdoor
Panchayat, (2003) 4 SCC 712 and B. Srinivasa Reddy v.
Karnataka Urban Water Supply & Drainage Board
C Employees' Association, (2006) 11 SCC 731 (2); Mahesh
Chandra Gupta v. Union of India & Others, (2009) 8 SCC
273; Reference under Article 317(1) of the Constitution of
India, In re, (1990) 4 SCC 262; Bihar Public Service
Commission v. Shiv Jatan Thakur, 1994 Supp. (3) SCC 220;
D Ram Ashray Yadav (Dr.), Chairrn.an, Bihar Public Service
Commission, In Re, (2000) 4 SCC 309; Ram Kumar
Kashyap v. Union of India, (2009) 9 SCC 278; Mehar Singh
Saini, Chairman, Haryana Public Service Commission, In re,
(2010) 13 SCC 586; R.K. Jain v. Union of India, (1993) 4 SCC
E 119; Girjesh Shrivastava v. State of Madhya Pradesh, (2010)
10 SCC 707; Duryodhan Sahu (Dr.) v. Jitendra Kumar
Mishra (1998) 7 SCC 273, B. Srinivasa Reddy, Dattaraj
Nathuji Thaware v. State of Maharashtra, (2005) 1 SCC 590,
Ashok Kumar Pandey v. State of WB (2004) 3 SCC 349; T.
F C. Basappa v. T. Nagappa [1955) 1 SCR 250; Kumar
Padma Prasad v, Union of India, (1992) 2 SCC 428; N.
Kannadasan v. Ajoy Khose, (2009) 7 SCC 1; Centre for PIL
v. Union of India, (2011) 4 SCC 1; Ashok Kumar Yadav v.
State of Haryana, (1985) 4 SCC 417; In RIO Dr Ram Ashray
G Yadav, Chairman, Bihar Public Service Commission,
(2000) 4 SCC 309; lnderpreet Singh Kah/on v. State of
Punjab, (2006) 11 SCC 356; State of Bihar v. Upendra
Narayan Singh (2009) 5 SCC 65; ·Mohinder Singh Gill v.
Chief Election Commissione1~ (1978) 1 SCC 405; Supreme
H Court Employees' Welfare Assn. v. Union of India, (1989) 4
STATE OF PUNJAB v. SAUL SABHLOK AND ORS. 35

SCC 187; Asif Hameed v. State of J & K, 1989 Supp (2) SCC A
364; Suresh Seth v. Commissioner, Indore Municipal Corpn.,
(2005) 13 SCC 287; Supreme Court Employees' Welfare
Assn. and State of J&K v. A.R. Zakki, 1992 Supp (1) SCC
548; Kesho Nath Khurana v. Union of India, 1981 Supp SCC
38; Kera/a State Science & Technology Museum v. Rambal B
Co., (2006) 6 SCC 258; T.A. Hameed v. M. Viswanathan,
(2008) 3 SCC 243; Saquib Abdul Hameed Nachan v. State
of Maharashtra, (2010) 9 SCC 93; State of Punjab v. Sodhi
Sukhdev Singh, (1961) 2 SCR 371 - referred to.

Case Law Reference: c
(201 O) 9 sec 655 distinguished Para 16
(1993) 4 sec 119 referred to Para 16
(2002) 6 sec 269 referred to Para 16 D
(2003) 4 sec 112 referred to Para 16
(2006) 11 sec 731 (2) referred to Para 16
(2009) 8 sec 273 referred to Para 17
E
In re, (1990) 4 sec 262 referred to Para 19
1994 Supp. (3) SCC 220 referred to Para 20
In Re, (2000) 4 SCC 309 referred to Para 21
F
(2009) 9 sec 278 referred to Para 22
In re, (2010) 13 SCC 586 referred to Para 23
(1993) 4 sec 119 referred to Para 32
(2010) 10 sec 101 referred to Para 34 G
(1998) 1 sec 213 referred to Para 34
(2005) 1 sec 590 referred to Para 34
(2004) 3 sec 349 referred to Para 34 H
36 SUPREME COURT REPORTS [2013] 5 S.C.R.

A [1955] 1 SCR 250 referred to Para 36
(1992) 2 sec 428 referred to Para 37
(2009) 7 sec 1 referred to Para 38
(2011) 4 sec 1 referred to Para 39
B
(1985) 4 sec 417 referred to Para 41
(2000) 4 sec 309 referred to Para 42
(2006) 11 sec 356 referred to Para 44
c (2009) 5 sec 65 referred to Para 46
(1978) 1 sec 405 referred to Para 60
(1974) 4 sec 3 distinguished Para 69
D (2003) 2 sec 604 distinguished Para 70
AIR 1968 SC 1113 distinguished Para 71
AIR 1968 SC 1495 distinguished Para 71

E (1987) 4 sec 486 distinguished Para 71
(1989) 4 sec 187 referred to Para 84
1989 Supp (2) sec 364 referred to Para 84
(2005) 13 sec 287 referred to Para 85
F
1992 Supp (1) sec 548 referred to Para 85
1981 Supp sec 38 referred to Para 95
(2006) 6 sec 258 referred to Para 95
G
(2008) 3 sec 243 referred to Para 95
(2010) 9 sec 93 referred to Para 95
(1961) 2 SCR 371 referred to Para 106
H
STATE OF PUNJAB v. SAUL SABHLOK AND ORS. 37

CIVIL APPELLATE JURISDICTION : Civil Appeal No. A
7640 of 2011.

From the Judgment & Order dated 17.08.2011 of the High
Court of Punjab & Haryana at Chandigarh in CWP No, 11846
of 2011 (0 & M).
B
WITH

C.A. Nos. 2685, 3687 of 2012 & 1365-1367 of 2013.

P.P. Rao, P.N. Misra, Sarvesh Bisaria, P.C. Sharma, C
Abhimanyu Tiwari, Apeksha Sharan, S. Usha Reddy, Manjit
Singh, Kamal Mohan Gupta, R.S. Hegde, Rajeev Singh for the
Appellant.

U.U. Lalit, Law Associates & Co., Kiran Bhardwaj, J.
Wasim A. Quadri, B.V. Balramdass, Anil Katiyar, D.S. Chauhan D
Rajan Bharti, P.P. Singh for the Respondents.

The Judgments of the Court were delivered by

A. K. PATNAIK, J. 1. Leave granted in S.L.P. (C) Nos.
22010-22012. of 2011.· E

2. In these appeals against the judgment and orders of the
Punjab and Haryana High Court, a very important question of
law arises for our decision: whether the High Court in exercise
of its writ jurisdiction under Article 226 of the Constitution can F
lay down the procedure for the selectiqn and appointment of
the Chairman of the State Public SeNice Commission and
quash his appointment in appropriate cases.

Facts:
G
3. The relevant facts very briefly are that by notification
dated 07.07.2011, the State Government of Punjab appointed'
Shri Harish · Dhanda as the Chairman of the Punjab Pubfic
Service Commission. On 10.07.2011, the respondent No.1 who
was an Advocate practicing at the Punjab and Haryana High H
38 SUPREME COURT REPORTS [2013] 5 S.C.R.

A Court, Chandigarh, filed a public interest litigation under Article
226 of the Constitution (Writ Petition No.11846 of 2011) praying
for a mandamus directing the State Government to frame
regulations governing the conditions of service and
appointment of the Chairman and/or the Members of the Public
B Service Commission as envisaged in Article 318 of the
Constitution of India. The respondent No.1 also prayed for a
direction restraining the State Government from appointing Shri
Harish Dhanda as the Chairman of the Punjab Public Service
Commission in view of the fact that his appointment does not
c fall within the parameters of integrity, impartiality and
independence as reiterated time and again by this Court.

4. The Division Bench of the High Court, after hearing the
learned counsel for the writ petitioner and the learned Additional
Advocate General for the State of Punjab, passed an order on
D 13.07.2011 holding that even though Article 316 of the
Constitution does not prescribe any particular procedure for
appointment of Chairman of the Public Service Commission,
having regard to the purpose and nature of the appointment, it
cannot be assumed that the power of appointment need not
E be regulated by any procedure. Relying on the judgments of this.
Court iri the case of In RIO Dr. Ram Ashray Yadav, Chairman, ·
Bihar Public Service Commission [(2000) 4 SCC 309], Ram
Kumar Kashyap and another vs. Union of India and another
(AIR 201 O SC 1151) and In re Mehar Singh Singh Saini,
F Chairman, HPSC and others [(2010) 13 SCC 586], the
Division Bench held that it is not disputed that the persons to
be appointed as Chairman and Members of the Public Service
Commission must have competence and integrity. The Division
Bench of the High Court further held that a question, therefore,
G arises as to how such persons are to be identified and selected
for appointment as Chairman of the Public Service
Commission and whether, in the present case, the procedure
adopted was valid and if not, the effect thereof. The Division
Bench further observed that these questions need to be
H
STATE OF PUNJAB v. SAUL SABHLOK AND ORS. 39
[A.K. PATNAIK, J.]
considered by a Bench of three Judges and referred the matter A
to the Bench of three Judges of the High Court.

5. Pursuant to the order dated 13.07.2011 of the Division
Bench, the Chief Justice of the High Court constituted a Full
Bench. On 19.07.2011, the Full Bench of the High Court passed B
an order calling for certain information from the State
Government of Punjab and the Punjab Public Service
Commission on the number of posts filled up by the Public
Service Commission in the last five years, the number of posts
taken out from the purview of the Public Service Commission
in the last five years and regulations, if any, framed by the State C
Government. On 01.08.2011, the Full Bench of the High Court
also passed orders requiring the Union of India to furnish
information on three questions: (1) Whether there were any
criteria or guidelines to empanel a candidate for consideration
for appointment as a Member of the Union India Public Service D
Commission; (2) Which authority or officer prepares such panel;
and (3) What methodology is kept in view by the authority while
preparing the panel.

6. Aggrieved by the order dated 13.07.2011 of the E
Division Bench of the High Court and the orders dated
19.07.2011 and 01.08.2011 of the Full Bench of the High Court,
the State of Punjab filed Special Leave Petitions (C)
Nos.22010-22012 of 2011 before this Court. On 05.08.2011,
this Court, while issuing a notice in the Special Leave Petitions, F
made it clear that issuance of notice in the Special Leave
Petitions will not come in the way of the High Court deciding
the matter and the State of Punjab is at liberty to urge all
contentions before the High Court. Accordingly, the Full Bench
of the High Court heard the matters on 08.08.2011 and directed G
the Chief Secretary of the State of Punjab to remain present
at 2.00 P.M. along with the relevant files which contain the
advice of the Chief Minister to the Government. The Chief
Secretary of the State of Punjab produced the original files
containing the advice of the Chief Minister to the Governor of
H
40 SUPREME COURT REPORTS [2013] 5 S.C.R.

A Punjab and after seeing the original files, the Full Bench of the
High Court returned the same and reserved the matter for
judgment.

7. Thereafter, the Full Bench of the High Court delivered
B the judgment and order dated 17.08.2011 directing that till such
time a fair, rational, objective and transparent policy to meet
the mandate of Article 14 is made, both the State of Haryana
and the State of Punjab shall follow the procedure detailed
hereunder as part of the decision-making process for
C appointment as Members and Chairman of the Public Service
Commission:-

1. There shall be Search Committee constituted under the
Chairmanship of the Chief Secretary of the respective
State Governments.
D
2. The Search Committee shall consist of at least three
members. One of the members shall be serving Principal
Secretary i.e. not below the rank of Financial
Commissioner and the third member can be serving or
retired Bureaucrat not below the rank of Financial
E
Commissioner, or member of the Armed Forces not below
the rank of Brigadier or of equivalent rank.

3. The Search Committee shall consider all the names
which came to its notice or are forwarded by any person
F or by any aspirant. The Search Committee shall prepare
panel of suitable candidates equal to the three times the
number of vacancies.

4. While preparation of the panel, it shall be specifically
G elicited about the pendency of any court litigation, civil or
criminal, conviction or otherwise in a criminal court or civil
court decree or any other proceedings that may have a
bearing on the integrity and character of the candidates.

5. Such panel prepared by the Search Committee shall be
H considered by a High Powered Committee consisting of
STATE OF PUNJAB v. SALIL SABHLOK AND ORS. 41
[A.K. PATNAIK, J.]
Hon'ble Chief Minister, Speaker of Assembly and Leader A
of Opposition.

6. It is thereafter, the recommendation shall be placed with
all relevant materials with relative merits of the candidates
for the approval of the Hon'ble Governor after completing B
the procedure before such approval.

7. The proceedings of the Search Committee shall be
conducted keeping in view the principles laid down in
Centre for Public Interest Litigation's case (supra).
c
By the order dated 17 .08.2011, the Full Bench of the High
Court also ordered that the writ petition be listed before the
Division Bench to be constituted by the Chief Justice of the
High Court.

8. Pursuant to the judgment dated 17.08.2011, the Division D
Bench constituted by the Chief Justice of the High Court
quashed the appointment of Shri Harish Dhanda as Chairman
of the Punjab Public Service Commission and disposed of the
writ petition of respondent No.1 in terms of the judgment of the
·Full Bench. Aggrieved, the State of Punjab, State of Haryana E
and Shri H.R. Dhanda have filed these appeals against the
judgment and orders dated 17.08.2011 of the Full Bench and
the Division Bench of the High Court.

Contentions of the learned counsel for the parties: F

9. Mr. P.P.· Rao, learned senior counsel for the State of
Punjab, submitted that the writ petition before the High Court
was a service matter and could not have been entertained by
the High Court as a Public Interest Litigation at the instance of
the writ petitioner. He cited the decisions of this Court in R.K. G
Jain v. Union of India & Ors. [(1993) 4 SCC 119], Dr.
Duryodhan Sahu & Ors. v. Jitendra Kumar Mishra & Ors.
[(1998) 7 SCC 273], Dattaraj Nathuji Thaware v. State of
Maharashtra & Ors. [(2005) 1 SCC 590], Ashok Kumar
H
42 SUPREME COURT REPORTS [2013) 5 S.C.R.

A Pandey v. State of West Bengal [(2004) 3 SCC 349), Hari
Bansh Lal v. Sahodar Prasad Mahto & Ors. [(2010) 9 SCC
655) and Girjesh Shrivastava & Ors. v. State of M.P. & Ors.
[(2010) 10 sec 707] for the proposition that a dispute relating
to a service matter cannot be entertained as a Public Interest
B Litigation.

10. Mr. Rao next submitted that the Division Bench has
recorded a clear finding in its order dated 13.07.2011 that the
allegations regarding irregularities and illegalities against Shri
Harish Dhanda in the writ petition do not stand substantiated
c and there,..was, therefore, absolutely no need for the Division
Bench of the High Court to make an academic reference to the
Full Bench of the High Court. He next submitted that this Court
in the case of Mehar Singh Saini Chairman, HPSC In Re
(supra) had already declared the law that it is for the legislature
D to frame the guidelines or parameters regarding the
experience, qualifications and stature for appointment as
Chairman/Members of the Public Service Commission and this
law declared by this Court was. binding on .all Courts in India
and hence, there was no necessity whatsoever for the Division
E Bench to make a reference to a Full Bench on the very same
questions of law.

11. Mr. Rao submitted that this Court has held in Kesho
Nath Khurana v. Union of India & Ors. [(1981) Supp.1 SCC
38) that a Court to which a reference is made cannot adjudicate
F upon an issue which is not referred to it and yet the Full Bench
of the High Court in this case has gone beyond the order of
reference passed by the Division Bench and held that until a
fair, rational, objective and transparent policy to meet the
mandate of Article 14 of the Constitution is laid down, the
G procedure laid down by the Full Bench must be followed and
has also declared the appointment of Shri Harish Dhanda as
Chairman of the Public Service Gommission to be invalid. He
also relied on the Punjab High Court Rules to argue that the
Full Bench can be constituted only for answering the questions
H referred to it by the Division Bench of the High Court. He
STATE OF PUNJAB v. SAUL SABHLOK AND ORS. 43
[A.K. PATNAIK, J.]

vehemently argued that these provisions of the Rules of the A
Punjab High Court have been violated and the judgment of the
Full Bench of the High Court is clearly without jurisdiction. He
next submitted that the direction given by the Full Bench in its
order dated 01.08.2011 to produce the file containing the
advice tendered by the Chief Minister to the Governor is clearly B
unconstitutional and ultra vires of Article 163(3) of the
Constitution and relied on the decision of this Court in The State
of Punjab v. Sodhi Sukhdev Singh [(1961) 2 SCR 371] on this
point.
c
12. Mr. Rao next submitted that Article 316 of the
Constitution has left it to the discretion of the State Government
to select and appoint the Chairman and Members of a Public
Service Commission and having regard to the doctrine of
separation of powers which is part of the basic structure of the D
Constitution, the High Court cannot direct the Government to
exercise its discretion by following a procedure prescribed by
the High Court. He cited Supreme Court Employees Welfare
Association v. Union of India & Anr. [(1989) 4 SCC 187),
Suresh Seth v. Commissioner of Indore Municipal
Corporation [(2005) 13 SCC 287], Divisional Manager, Aravali E
Golf Club & Anr. v. Chander Hass & Anr. [(2008) 1 SCC 683)
and Asif Hameed & Ors. v. State of J & K & Ors. [(1989) 2
Supp. SCC 364) in support of the aforesaid submission. He
submitted that the appointments to the constitutional offices, like
the Attorney General, Advocate General, Comptroller & Auditor F
General, Chief Election Commissioner, Chairman and
Members of the Union Public Service Commission and
appointments to the topmost Executive posts, like the Chief
Secretary or Director General of Police, has to be made within
the discretion of the Government inasmuch as persons in whom G
the Government has confidence are appointed to the posts. He
relied on E.P. Royappa v. State of Tamil Nadu & Anr. [(1974)
4 SCC 3) and State of West Bengal & Ors. v. Manas Kumar
Chakraborty & Ors. [(2003) 2 SCC 604) for this proposition.
H
44 SUPREME COURT REPORTS [2013] 5 S.C.R.

A 13. Mr. Rao argued that in the absence of clear violation
of statutory provisions and regulations laying down the
procedure for appointment, the High Court has no jurisdiction
even to issue a writ of quo warranto. In support of this argument,
he relied on the decision of this Court in B. Srinivasa Reddy
B v. Karnataka Urban Water Supply & Drainage Board
Employees Association & Ors. [(2006) 11 SCC 731]. He
submitted that this a fit case in which the order of the Division
Bench dated 13.07.2011 and the interim orders as well as the
judgment of the Full Bench dated 17.08.2011 and the final order
c of the Division Bench dated 17.08.2011 of the High Court
quashing the appointment of Shri Harish Dhanda as well as
consequential orders passed by the Government implementing
the impugned judgment and order provisionally should be set
aside by this Court.
D 14. Mr. U.U. Lalit, learned senior counsel appearing for the
respondent No.1 who had filed the writ petition before the High
Court, referred to the proclamation by the Queen in Council on
1st November, 1858 to the Princes, Chiefs and the People of
India to show that in the civil and military services of the East
E India Company persons with education, ability and integrity
were to be recruited. He also referred to the report on the Public
Service Commission, 1886-87 wherein the object of Public
Service Commission was broadly stated to be to devise a
scheme which may reasonably be hoped to possess the
F necessary elements of finality, and to do full justice to the claims
of natives of India to higher and more exterisive employment
in the public service. He also referred to the report of the Royal
.Commission on the superior services in India dated 27.03.1924
and in particular Chapter IV thereof on "The Public Service
G Commission" in which it is stated that wherever democratic
institutions exist, experience has shown that to secure an
efficient civil service it is essential to protect it from political or
personal influences and to give it that position of stability and
security which is vital to its successful working as the impartial
H and efficient instrument by which Governments, of whatever
STATE OF PUNJAB v. SAUL SABHLOK AND ORS. 45
[A.K. PATNAIK, J.]

political complexion, may give effect to their policies and for A
this reason Public Service Commission should be detached so
far as practicable from all political associations. He also
referred to the speeches of Dr. B.R. Ambedkar, Shri Jaspat
Roy Kapoor, Pandit Hirday Nath Kunzru and Shri H.V. Karnath
in the Constitutional Assembly and argued that to perform this B
difficult job of finding the best talent for the State Public Services
without any political influence and other extraneous
considerations the Public Service Commission must have a
Chairman of great ability, independence and integrity.

15. Mr. Lalit further submitted that this Court has also in a C
number of pronouncements emphasized on the need to appoint
eminent persons possessing a high degree of competence and
integrity as Chairman and Members of the Public Service
Commission so as to inspire confidence in the public mind
about the objectivity and impartiality of the selection to be made D
by the Public Service Commission. In this context he referred
to the judgments of this Court in Ashok Kumar Yadav & Ors. _
v. State ofHaryana & Ors. [(1985) 4 SCC 417], in RIO Dr. Ram
Ashray Yadav, Chairman, Bihar Public Service Commission
[(2000) 4 SCC 309], lnderpreet Singh Kah/on and Others . v. E
State of Punjab and Others [(2006) 11 SCC 356] and Mehar
Singh Saini, Chairman, Haryana Public Service Commission
and others In Re (supra).

16. Mr. Lalit submitted that Shri Harish Dhanda may be F
eligible for appointment. as Chairman of the Public Service
Commission but eligibility is not enough to be the Chairman of
the State Public Service Commission. He submitted that the
person who is eligible must also have some positive qualities
such as experience, ability, character and integrity for being G
appointed as the Chairman of the State Public Service
Commission. He submitted that it is not only the personal
integrity of the candidate who is to be appointed but also the
integrity of the Pubic Service Commission as an institution
which has to be borne in mind while making the appointment.
H
46 SUPREME COURT REPORTS [2013] 5 S.C.R.

A He referred to the decisions of this Court in Centre for PIL and
Another v. Union of India and Another [(2011) 4 SCC 1] in
which a distinction has been made between personal integrity
of a candidate appointed as the Central Vigilance
Commissioner and the integrity of the Central Vigilance
B Commission as an institution and it has been held that while
recommending a name of ·the candidate for appointment as
Central Vigilance Commissioner, the question that one has to
ask is whether the candidate recommended to function as the
Central Vigilance Commissioner would be competent to
c function as a Central Vigilance Commissioner. He submitted
that in the aforesaid case, this Court has also held that there
was a difference between judicial review and merit review and
has further held that the Courts, while exercising the power of
judicial review, are not concerned with the final decision of the
0 Government taken on merit but are entitled to consider the
integrity of the decision-making process.

17. Mr. Lalit submitted that the writ petitioner challenged
the decision-making process of the Government in selecting
and appointing Shri Harish Dhanda as Chairman of the Public
E Service Commission on the ground that it was not an informed
process of decision-making in as much as the State
Government has not collected information and materials on
whether Shri Dhanda had the experience, ability and character
for being appointed as the Chairman of the Public Service
F Commission. He submitted that as a matter of fact the State
Government was also not even informed of the fact that the
Central Administrative Tribunal, Chandigarh Bench, in its order
dated 15.11.2007 in O.A. No.495/PB/2007 had adversely
commented on the conduct of Shri Harish Dhanda. He
G explained that in the aforesaid O.A., Shri Amit Misra, who
belonged to the Indian Forest Service and was posted as
Divisional Forest Officer, Ropar in Punjab, had alleged that he
had been transferred out of Ropar and posted as Division
Forest Officer, Ferozpur, because of an incident which had
H occurred on 21.06.2007 on account of which he incurred the
STATE OF PUNJAB v. SAUL SABHLOK AND ORS. 47
[A.K. PATNAIK, J.]
displeasure of Shri Harish Dhanda, who was then the Chief A
Parliamentary Secretary, Department of Local Government,
Punjab. He alleged that Shri Dhanda had been given the
permission to stay at the Van Chetna Kendra/Forest Rest
House at Pallanpur, District Ropar, for a few days, but later on
he wanted to make the Forest Rest House as his permanent B
residence to which Shri Amit Misra objected as the same was
not permitted under the Rules and Shri Amit Misra had directed
the official incharge of the Rest House not to allow anybody to
use tl)e Rest House without getting permission and accordingly
when Shri Dhanda wanted the keys of the Rest House on C
22.06.2007 he was not given the keys of the Rest House and
Shri Dhanda recorded a note addressed to the Principal Chief
Conservator of Forests narrating the entire incident and
ensured that Shri Amit Misra was posted out of Ropar by an
order of transfer dated 31.07.2007. The Central Administrative
Tribunal, Chandigarh Bench, called for the official noting which D
led to the passing of the transfer order dated 31.07.2007 and
recorded the finding that even though the Government decided
not to allow the· use of the Rest House as a permanent
residence of the Chief Parliamentary Secretary, yet Shri Amit
Misra, being a junior officer, became the victim of the E
annoyance of Shri Harish Dhanda and with his political
influence, the Forest Minister initiated the proposal for his
transfer from Ropar, which was approved by the Chief Minister.
Mr. Lalit submitted that this adverse finding of the Central
Administrative Tribunal in a proceeding, in which Shri Harish F
Dhanda was also a respondent, was not brought to the notice
of the State Government when it took the decision to select and
appoint Shri Harish Dhanda as the Chairman of the Public
Service Commission.
G
18. In reply to the submission of Mr. Rao that the Full Bench
had no jurisdiction to expand the scope of the reference and
should have limited itself to the questions referred to by the
Division Bench by the order dated 13.07.2011, Mr,'Lalit
submitted that the order dated 13.07 .2011 of the Division H
48 SUPREME COURT REPORTS [2013] 5 S.C.R.

A Bench of the High Court would show that the entire case was
referred to the Full Bench and, therefore, the Full Bench passed
the order dated 17.08.2011 on all relevant aspects of the case.
He cited the decision of this Court in Kera/a State Science &
Technology Museum v. Rambal Co. & Ors. [2006) 6 SCC
B 258] to argue that a reference can also be made of the entire
case to a larger Bench and in such a case, the larger Bench
has to decide the entire case and its jurisdiction is not limited
to specific issues. He also referred to the Rules of the Punjab
High Court to show that the Full Bench of the High Court can
c also be constituted to decide the entire case in important
matters.

19. On the jurisdiction of the High Court to issue a writ for
quashing the appointment of a Chairman of the Public Service
Commission, Mr. Lalit cited the decision in Dwarka Nath v.
D Income-tax Officer, Special Circle, D Ward, Kanpur & Anr.
[AIR 1966 SC 81] in which a three-Judge Bench of this Court
has held that Article 226 of the Constitution is couched in
comprehensive phraseology and it ex facie confers wide power
on the High Court to reach injustice wherever it is found. He
E submitted that in this decision this Court has also explained that
the High Court under Article 226 of the Constitution can issue
writs in the nature of prerogative writs as understood in England
and can also issue other directions, orders or writs. He
vehemently submitted that the contention on behalf of the
F appellants that the High Court could not have issued a writ/order
quashing the selection and appointment of Shri Harish Dhanda
is, therefore, not correct.

20. Mr. La!it finally submitted that pursuant to the impugned
G orders of the Full Bench and the Division Bench of the High
Court, the Search Committee was constituted by the
Government for selection of the Chairman of the Punjab Public
Service Commission and the Search Committee invited the
names of eminent persons of impeccable integrity, caliber and
administrative experience from all walks of life, to be
H
STATE OF PUNJAB v. SAUL SABHLOK AND ORS. 49
[A.K. PATNAIK, J.]

considered for the post of the Chairman of Punjab Public A
Service Commission and thereafter the High Power
Committee selected Lt. Gen. R.A. Sujlana (Retd.) who has
been appointed by the State Government as the Chairman of
the Punjab Public Service Commission in December, 2011
and he has been functioning as such: since then. He submitted B
that the appointment of Lt. Gen. R.A. Sujlana is also not subject
to orders pas$ed by this Court and the news reports indicate
that Lt. Gen. R.A. Sujlana has been an upright officer of the
Indian Army and has wide administrative experience. He
submitted that this is not a fit case in which this Court should c
interfere with the appointment of Lt. Gen. R.A. Sujlana as the
Chairman of the Punjab Public Service Commission even if this
Court finds infirmities in the impugned orders passed by the
Full Bench and the Division Bench of the High Court.

21. Learned counsel for Shri Harish Dhanda, adopted the D
arguments of Mr. P .P. Rao and also submitted that the order
of the Central Administrative Tribunal in O.A. No.495/PB/2007
was filed before the Full Bench of the High Court on 01.08.2011
which was the last date of hearing. He submitted that Shri Harish
Dhanda, therefore, did not have any opportunity to reply before E
the Full Bench on the findings in the order of the Central
Administrative Tribunal.

22. Shri P.N. Misra, learned counsel appearing for the
State of Haryana, adopted the arguments of Mr. P.P. Rao and F
further submitted that the Full Bench should not have added the
State of Haryana as a party. He also submitted that' the Full
Bench should not have issued the directions in its order dated
17.08.2011 to the State of Haryana to adopt the same
procedure for selection and appointment of the Chairman and
G
Members of the Haryana Public Service Commission when the
State of Haryana had nothing to do with the appointment of Shri
Harish Dhanda as Chairman of the Punjab Public Service
Commission.

H
50 SUPREME COURT REPORTS [2013) 5 S.C.R.

A Findings of the Court:

23. The first question that I have to decide is whether the
High Court was right in entertaining the writ petition as a public
interest litigation at the instance of the respondent No.1. I have
perused the writ petition CWP No.11846 of 2011, which was
8
filed before the High Court by the respondent No.1, and I find
that in the first paragraph of the writ petition the respondent
No.1 has stated that he was a public spirited person and that
he had filed the writ petition for espousing the public interest
and for the betterment of citizens of the State of Punjab. In the
C writ petition, the respondent No.1 has relied on the provisions
of Articles 315, 316, 317, 318, 319 and 320 of the Constitution
relating to Public Service Commissions to contend that the
functions of the Public Service Commission are sensitive and
important and it is very essential that a person, who is appointed
D as the Chairman of the Public Service Commission, must
possess outstanding and high degree educational
qualifications and a great amount of experience in the field of
selection, administration and recruitment and he must also be
.a man of integrity and impartiality. The respondent No.1 has
E alleged in the writ petition that the State Government has not
laid down any qualification for appointment to the post of
Chairman of the Punjab Public Service Commission and is
continuing to appoint persons to the post of Chairman of Public
Service Commission on the basis of political affiliation. In the
F writ petition, the respondent No.1 has also given the example
of Shri Ravi Pal Singh Sidhu, who was appoin.ted as the
·Chairman, Punjab Public Service Commission on the basis of ·
political affiliation and the result was that during his period as
the Chairman of the Punjab Public Service Commission,
G several cases of undeserving candidates being selected and
appointed to the Public Service Commission in the State of
Punjab came to light and investigations were carried out
leading to filing of various criminal cases against the officials
of the Public Service Commission as well Shri Sidhu. The
H respondent No.1 has further stated in the writ petition that he
STATE OF PUNJAB v. SAUL SABHLOK AND ORS. 51
[A.K. PATNAIK, J.]
has filed the writ petition after he read a news report titled: "MLA A
Dhanda to be new PPSC Chairperson". He has stated in the
writ petition that Shri Harish Dhanda was an Advocate at
Ludhiana before he ventured into politics and had
unsuccessfully contested the Vidhan Sabha election before he
was elected as MLA on the Shiromani Akali Dal ticket and that B
he had close political affiliation and affinity with high ups of the
ruling party and that the ruling party in the State of Punjab has
cleared his name for appointment as the Chairman of the
Punjab Public Service Commission shortly. The respondent
No.1 has also alleged in the writ petition various irregularities c
and illegalities committed by Shri Harish Dhanda. He has
further stated in the writ petition that his colleague has even
sent a representation to the Governor of Punjab and the Chief
Minister of Punjab against the proposed appointment of Shri
Harish Dhanda. He has accordingly prayed in the writ petition D
for a mandamus to the State of Punjab to frame regulations
governing the conditions of service and appointment of the
Chairman and Members of the Punjab Public Service
Commission and for an order restraining the State of Punjab
from appointing Shri Harish Dhanda as Chairman of the Punjab
Public Service Commission. On a readin_g of the entire writ E
petition filed by the respondent No.1 before the High Court, I
have no doubt that the respondent No.1 has filed this writ
petition for espousing the cause of the general public of the
State of Punjab with a view to ensure that a person appointed
as the Chairman of the Punjab Public Service Commission is F
a man of ability and integrity so that recruitment to public
services in the State of Punjab are from the best available
talents and are fair and is not influenced by politics and
extraneous considerations. Considering the averments in the
writ petition, I cannot hold that the writ petition is just a service G
matter in which only the aggrieved party has the locus to initiate
a legal action in the court of law. The writ petition is a matter
affecting interest of the general pubic in the State of Punjab :
and any member of the public could espouse the cause of the,·
general public so long as his bonafides are not in doubt. H
52 SUPREME COURT REPORTS (2013] 5 S.C.R.

A Therefore, I do not accept the submission of Shri P.P. Rao,
learned senior counsel appearing for the State of Punjab, that
the writ petition was a service matter and the High Court was
not right in entertaining the writ petition as a Public Interest
Litigation at the instance of the respondent No.1. The decisions
B cited by Shri Rao were in cases where this Court found that
the nature of the matter before the Court was essentially a
service matter and this Court accordingly held that in such
service matters, the aggrieved party and not any third party can
only initiate a legal action.
c 24. The next question that I have to decide is whether the
Division Bench of the High Court, after having recorded a
finding in its order dated 13.07.2011 that the allegations of
irregularities and illegalities aga.inst Shri Harish Dhanda in the
writ petition do not stand substantiated, should have made an
D academic reference to the Full Bench of the High Court. As I
have noticed, the respondent No.1 had, in the writ petition, relied
on the constitutional provisions in Articles 315, 316, 317, 318,
319 and 320 of the Constitution to plead that the functions of
the Public Service Commissions were of a sensitive and critical
E nature and hence the Chairman of the Public Service
Commission must possess outstanding and high educational
qualifications and a great amount of experience in the field of
selection, administration and recruitment. The respondent No.1
has further pleaded in the writ petition that the State
F Government had on an earlier occasion made an appointment
of a Chairman of the Punjab Public Service Commission on
the basis of political affiliation and this has resulted in selection
and appointment of undeserving persons to public service for
extraneous considerations. Though respondent No.1 had
G alleged in the writ petition some irregularities and illegalities
on the part of Shri Harish Dhanda, who was proposed to be
appointed as Chairman of the Public Service Commission by
the State Government, the writ petition was not founded only
on such irregularities and illegalities alleged against Shri
H Harish Dhanda. In addition, the respondent No.1 had also
STATE OF PUNJAB v. SAUL SABHLOK AND ORS. 53
[A.K. PATNAIK, J.]

alleged in the writ petition that Shri Harish Dhanda was A
politically affiliated to the ruling party and was not selected for
appointment as Chairman of the Public Service Commission
on the basis of his qualifications, experience or ability which
are necessary for the post of the Chairman of the Public Service
Commission. Thus, even if the Division Bench had recorded a B
finding in the order dated 13.07.2011 that the irregularities and
illegalities pointed out in the writ petition against Shri Harish
Dha~da do not st~nd subs!an!iat~gi; the writ peti!i~n. could not
be disposed of with the said fmdi/lg only. The D1v1s1on Bench
of the High Court, therefore, thotfght it necessary to make a c
reference to the Full Bench and has given its reasons for the
reference to the Full Bench in Paragraphs 6 and 7 of its order
dated 13.07.2011, which are quoted hereinbelow:

"6. Even though, Article 316 of the Constitution does not
prescribe any particular procedure, having regard to the D
purpose and nature of appointment, it cannot be assumed
that power of appointment need not be regulated by any
procedure. It is undisputed that person to be appointed
~ust have competence and integrity. Reference may be
made to judgments of the Hon'ble Supreme Court in In RI E •·
o Dr. Ram Ashray Yadav, Chairman, Bihar Public
Service Commission (2000) 4 SCC 309, Ram Kumar
Kashyap and another v. Union of India and another, AIR
2010 SC 1151 and in rev. MeharSingh Saini, Chairman,
HPSC and others (2010) 13 SCC 586 : (2010) 6 SLR F
717.

7. If it is so, question is how such persons are to be
identified and selected and whether in the present case,
procedure adopted is valid and if not, effect thereof. We G .
are of the view that these questions need to be considered
by a Bench of three Hon'ble Judges. Accordingly, we refer
the matter to a Bench of three Hon'ble Judges."
!.-..
25. It will be clear from the Paragraphs 6 and 7 of the orcl,er
dated 13.07.2011 quoted above that the Division Bench of the H
54 SUPREME COURT REPORTS
.
[2013) 5 S.C.R.

A High Court found that. Article 316 of the Constitution, which
provides for appointment of the Chairman and other Members
of the Public Service Commission by the Governor, does not
prescribe any particular procedure and took the view that,
having regard to the purpose and nature of appointment, it
B cannot be assumed that power of appointment need not be
regulated by any procedure. The Division Bench of the High
Court was of the further view that the persons to be appointed
must have competence and integrity, but how such persons are
to be identified and selected must be considered by a Bench
c of three Judges and accordingly referred the matter to the three
Judges. The Division Bench also referred the question to the
larger Bench of three Judges as to whether the procedure
adopted in the present case for appointing Shri Harish Dhanda
as the Chairman of the Punjab Public Service Commission was
D valid and if not, what is the effect of not following the procedure.
I do not, therefore, find any merit in the submission of Shri Rao
that the Division Bench of the High Court having found in its
order dated 13.07.2011 that the irregularities and illegalities
pointed out in the writ petition against Shri Harish Dhanda are
· unsubstantiated, should not have made an academic reference
E to the larger Bench of the High Court.

26. I may now consider the submission of Mr. Rao that this
Court in the case of Mehar Singh Saini, Chairman, HPSC In
Re (supra) had already declared the law that it is for Parliament
F to frame the guidelines or parameters regarding the
qualifications, experience. or stature for appointment as
Chairman/Members of the Public Service Commission and
hence it was not necessary for the Division Bench to make a
reference to a Full Bench on the very same question of law. In
G Mehar Singh Saini Chairman, HPSC In Re (supra), this Court
noticed that the provisions of Article 316 of the Constitution do
not lay down any qualification, educational or otherwise, for
appointment to the Commission as Chairman and Members
and made the following observations in Para 85 of the judgment
H as reported in the SCC:
STATE OF PUNJAB v. SAUL SABHLOK AND ORS. 55
[A.K. PATNAIK, J.]
"Desirability, if any, of providing specific qualification or A
experience for appointment as Chairman/members of the
Commission is a function of Parliament. The guidelines or
parameters, if any, including that of stature, if required to
be specified, are for the appropriate Government to frame.
This requires expertise in the field, data study and adoption B
of the best methodology by the Government concerned to
make appointments to the Commission on merit, ability
and integrity. Neither is such expertise available with the
Court nor will it be in consonance with the constitutional
scheme that this Court should venture into reading such c
1
qualifications into Article 316 or provide any specific
guidelines controlling the academic qualification,
experience and stature of an individual who is proposed
to be appointed to this coveted office. Of course, while
.declining to enter into such arena, we still feel constrained D
to observe that this is a matter which needs the attention
of the Parliamentarians and quarters concerned in the
Governments. One of the factors, which has persuaded us
to make this observation, is the number of cases which
have been referred to this Court by the President of India
in terms of Article 317(1) of the Constitution in recent years. E
A large number of inquiries are pending before this Court
which itself reflects that all is not well with the functioning
of the Commissions."

The observations of this Court in the aforesaid case of Mehar F
Singh Saini Ch~irman, HPSC In Re (supra) relate t.o
qualification and experience for appointment as Chairman/
Members of the Commission and have nothing to do with the
questions relating to the procedure for identifying persons of
integrity and competence to be appointed as Chairman of the G
Public Service Commission, which were referred by the
Division Bench of the High Court to the Full Bench by the order
dated 13.07.2011. Mr. Rao is, therefore, not right in his
submission that in view of the law declared by this Court in
Mehar Singh Saini, Chairman, HPSC In Re (supra), there was H
56 SUPREME COURT REPORTS [2013] 5 S.C.R.

A no necessity for the Division Bench to make a reference to the
Full Bench by the order dated 13.07.2011.

27. I may next deal with the contention of Mr. Rao that the
Full Bench exceeded its jurisdiction by enlarging the scope of
B reference and deciding matters which were not referred to it
by the order dated 13.07.2011 of the Division Bench. Rule 4
of the Punjab High Court Rules reads as follows:

"Save as provided by law or by these rules or by special
order of the Chief Justice, all cases shall be heard and
C disposed of by a Bench of two Judges."

I have perused Rules 6, 7, 8 and 9 of the Punjab High Court
Rules which relate to Full Bench and I do not find therein any
provision which provides what matters a Full Bench comprising
D three Judges of the High Court will decide. Hence, the Division
Bench of the High Court has the jurisdiction to decide a case,
·unless otherwise provided by law or by a special order of the
Chief Justice and the jurisdiction of a Full Bench to decide
matters will flow either from the order of the Chief Justice of
the High Court or from the order of the Division Bench which
E ·makes a reference to the Full Bench. In the present case, there
is no order of the Chief Justice making a reference but only the
order dated 13.07.2011 of the Division Bench of the High Court
making a reference to the Full Bench of three Judges of the
High Court. Thus, I have to look at the order dated 13.07.2011
F of the Division Bench to find out whether the Division Bench
referred only specific questions to the Full Bench as contended
by Mr. Rao or referred the entire case to the Full Bench as
contended by Mr. Lalit.

G 28. On a close scrutiny of Paragraphs 6 and 7 of the order
dated 13.07.2011 of the Division Bench of the High Court which
are extracted above, I find that the Division Bench of the High
Court has ref.erred only specific questions to the Full Bench:
how persons of competence and integrity are to be identified
H and selected for appointment as Chairman of the Public
STATE OF PUNJAB v. SAUL SABHLOK AND ORS. 57
[A.K. PATNAIK, J.]
Service Commission and if the procedure adopted for such A
appointment in the present case was not valid, the effect
thereof. The Division Bench of the High Court has made it clear
in Para 7 of its order dated 13.07.2001 that "these questions
need to be considered by a Bench of three Hon'ble Judges". I,
therefore, do not agree with Mr. Lalit that the Division Bench B
0

referred the entire case to the Full Bench by the order dated
13.07 .2011. I further find that although the aforesaid specific
questions relating to the procedure for identifying persons of
competence and integrity for appointment as the Chairman of
the Public Service Commission only were referred by the c
Division Bench of the High Court, the Full Bench, instead of
deciding these specific questions referred to it, has given
directions to the State of Punjab and the State of Haryana to
follow a particular procedure for appointme!'lt of Members and
Chairman of the Public Service Commission till such time a fair, D
rational, objective and transparent policy to meet the mandate
of Article 14 of the Constitution is made. I, therefore, agree with
Mr. Rao that the Full Bench of the High Court has decided
issues which were not referred to it by the Division Bench of
the High Court and the judgment dated 17.08.2011 of the Full E
Bench of the High Court was without jurisdiction.

29. I may next consider the contention of Mr. Rao that as
the Constitution has left it to the discretion of the State
Government to select and appoint the Chairman and Members
of a State Public Commission, the High Court cannot direct the F
Goverr:iment to exercise its discretion by following a procedure
prescribed by the High Court. Mr. Rao has relied on Article 316
of the Constitution and the decision of this Court in Mohinder ·
Singh Gill & Anr. v. The Chief Election Commissioner, New
Delhi & Ors. [(1978) 1 SCC 405]. Article 316 of the Constitution G
of India is quoted hereinbelow:

"316. Appointment and term of office of members.-

(1) The Chairman and other members of a Public Service
Commission shall _be appointed, in the case of the Union H
58 SUPREME COURT REPORTS (2013) 5 S.C.R.

A Commission or a Joint Commission, by the President, and
in the case of a State Commission, by the Governor of the
State:

Provided that as nearly as may be one-half of the members
B
of every Public Service Commission shall be persons who
at the dates of their respective appointments have held
office for at least ten years either under the Government
of India or under the Government of a State, and in
computing the said period of ten years any period before
the commencement of this Constitution during which a
c person has held office under the Crown in India or under
the Government of an Indian State shall be included.

(1A) If the office of the Chairman of the Commission
becomes vacant or if any such Chairman is by reason of
D absence or for any other reason unable to perform the
duties of his office, those duties shall, until some persons
appointed under clause (1) to the vacant office has entered
on the duties ·thereof or, as the case may be, until the
Chairman has resumed his duties, be performed by such
E 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 State in the case of a State Commission, may appoint
for the purpose.
F (2) A member of a Public Service Commission shall hold
·office for a term of six years from the date on which he
·enters upon his office or until he attains, in the case of the
Union Commission, the age of sixty-five years, and in the
case of a State Commission or a Joint Commission, the
G age of sixty-two years, whichever is earlier:

Provided that -

(a) a member of a Public Service Commist>ion
may, by writing under his hand addressed, in
H
STATE OF PUNJAB v. SAUL SABHLOK AND ORS. 59
[A.K. PATNAIK, J.]
the case of the Union Commission or a Joint A
Commission, to the President, and in the
case of a State Commission, to the
Governor of the State, resign his office;

(b) a member of a Public Service Commission 8
may be removed from his office in the
manner provided in clause (1) or clause (3)
of Article 317.

(3) A person who holds office as a member of a Public
Service Commission shall, on the expiration of his term of C
office, be ineligible for re-appointment to that office."

A reading of Article 316 of the Constitution would show that it
confers power on the Governor of the State to appoint the
Chairman and other Members of a Public Service Commission. o
It has been held by this Court in Mohinder Sihgh Gill & Anr. v.
The Chief Election Commissioner, New Delhi & Ors. (supra)
that an authority has implied powers to make available and
carry into effect powers expressly conferred on it. Thus, under
Article 316 of the Constitution, the Governor of a State has not E
only the express power of appointing the Chairman and other
Members of Public Service Commission but also the implied
powers to lay down the procedure for appointment of Chairman
and Members of the Public Service Commission and the High
Court cannot under Article 226 of the Constitution usurp this F
constitutional power of the Government and lay down the
procedure for appointment of the Chairman and other Members
of the Public Service Commission. The Full Bench of the High
Court, therefore, could not have laid down the procedure for
appointment of the Chairman and Members· of the Punjab
Public Service Commission and the Haryana Public Service G
Commission by the impugned judgment dated 17.08.2011.

30. Having held that the Full Bench of the High Court has
in its judgment dated 17 .08.2011 acted beyond its jurisdiction
and has usurped the constitutional power of the Governor in H
60 SUPREME COURT REPORTS [2013) 5 S.C.R.

A laying down the procedure for appointment of the Chairman and
Members of the Public Service Commission, I have to set aside
the judgment dated 17.08.2011 of the Full Bench of the High
Court. Thereafter, either of the two courses are open to me:
remand the matter to the High Court for disposal of the writ
B petition in accordance with law or decide the writ petition on
merits. To cut short the litigation, I proceed to decide the writ
petition on merits instead of remanding the matter to the High
Court.

31. This Court has had the occasion to consider the
C qualities which a person should have for being appointed as
Chairman and Member of Public Service Commission and has
made observations after considering the nature of the functions
entrusted to the Public Service Commissions under Article 320
of the Constitution. In Ashok Kumar Yadav & Ors. v. State of
D 1-faryana & Ors .. (supra), a Constitution Bench of this Court
speaking through P.N. Bhagwati, J, observed:

"We would therefore like to strongly impress upon every
State Government to take care to see that its Public
E Service Commission is manned by competent, honest an.d
independent persons of outstanding ability and high
reputation who command the confidence of the people and
who would not allow themselves to be deflected by any
extraneous considerations from discharging their duty of
F making selections strictly on merit."

In RIO Dr. Ram Ashray Yadav; Chairman, Bihar Public
Service Commission (supra), Dr. A.S. Anand, C.J. speaking
for a three Judge Bench, cautioned:

G "The credibility of the institution of a Public Service
Commission is founded upon the faith of the common man
in its proper functioning. The faith would be eroded and
confidence destroyed if it appears that the Chairman or
the members of the Commission act subjectively and not
H objectively or that their actions are suspect. Society
STATE OF PUNJAB v. SALIL SABHLOK AND ORS. 61
[A.K. PATNAIK, J.]

expects honesty, integrity and complete objectivity from the A
Chairman and members of the Commission. The
Commission must act fairly, without any pressure or
influence from any quarter, unbiased and impartially, so that
he society does not lose confidence in the Commission.
The high constitutional trustees, like the Chairman and B
members of the Public Service Commission must forever
remain vigilant and conscious of these necessary adjuncts."

Despite these observations of this Court, the State Government
of Punjab appointed Shri Ravi Pal Singh Sidhu as the Chairman C
of the Punjab Public Service Commission between 1996 to
2002 and as has been noted in the judgment of S.B. Sinha, J.
of this Court in lnderpreet Singh Kah/on and Others v. State
of Punjab and Others (supra), allegations were made against
him that he got a large number of persons appointed on
extraneous considerations including monetary consideration D
during the period 1998 to 2001 and raids were conducted in
his house on more that one occasion and a large sum of money
was recovered from his custody and his relatives and FIRs were
lodged and criminal cases initiated by the Vigilance Bureau of
the State. of Punjab. Writing a separate judgment in the E
aforesaid case, Dalveer Bhandari, J, had to comment:

"This unfortunate episode teaches us an important lesson
that before appointing the constitutional authorities, there
·should be a thorough and meticulous inquiry and scrutiny F
regarding their antecedents. Integrity and merit have to be
properly considered and evaluated in the appointments to
such high positions. It is an urgent need of the hour that in
such appointments absolute transparency is required to be
maintained and demonstrated. The impact of the deeds G
and misdeeds of the constitutional authorities (who are
highly placed), affect a very large number of people for a
very long time, therefore, it is absolutely imperative that only
people of high integrity, merit rectitude and honesty are

H
62 SUPREME COURT REPORTS [2013] 5 S.C.R.

A appointed to these constitutional positions."

Considering this experience of the damage to recruitment to
public services caused by appointing a person lacking in
character as the Chairman· of the Public Service Commission
in the State of Punjab, when the respondent No.1 brought to
8
the notice of the High Court through the writ petition that the
State Government of Punjab proposed to appoint Shri Harish
Dhanda as the Chairman of the Public Service Commission,
only because of his political affiliation, the Division Bench of
C the High Court rightly entertained the writ petition as ·a public
interest litigation. The Division Bench of the High Court,
however, found that no procedure for appointment of Chairman
and Members of the Public Service Commission has been laid
down in Article 316 of the Constitution and therefore posed the
question in Paragraphs 6 and 7 of its order dated 13.07.2011
D as to what should be the procedure for identifying and selecting
persons of integrity and competence for appointment of
Chairman of the Public Service Commission and referred the
question to a larger Bench of three Judges. I have already held
that it is for the Governor who is the appointing authority under
E Article 316 of the Constitution to lay down the procedure for
appointment of the Chairman and Members of the Public
Service Commission, but this is not to say that in the absence
of any procedure laid down by the Governor for appointment
of Chairman and Members of the Public Service Commission
F under Article 316 of the Constitution, the State Government ·
would have absolute disc,:retion in selecting and appointing any
person as the Chairman of the State Public Service
Commission. Even where a procedure has not been laid down
by the Governor for appointment of Chairman and Members of
G the Public Service Commission, the State Government has to
select-only persons with integrity and competence for
appointment as Chairman of the Public Service Commission,
because the discretion vested in the State Government !.J.nder
Article 316 of the Constitution is impliedly limited 1bY the
. H purposes for which the discretion is vested and the purposes
STATE OF PUNJAB v. SAUL SABHLOK AND ORS. 63
[A.K. PATNAIK, J.]
are .discernible from the.functions of the Public Service A
Commissions enumerated in Article 320 of the· Constitution.
Under clause (1) of Article 320 of the Constitution, the State
Public Service Commission has the duty to conduct
examinations for appointments to the !ervices of the State.
Under clause (3) of Article· 320; the State Public Service B
Comniission'has to be consulted by the State Government on
matters' relating to recruitment and appointment to the civil
services and civil posts in the State, on disciplinary matters
affecting a person serving under the Government of a State in
a civil capacity, on claims by and in respect of a person who is c
serving under'the ~tate Government towards costs of defending
a legal proceedi~g. on Claims for award of pension in respect
of injuries sustained by .a person while serving under the State
Government and other matters. In such matter$, the State Public
Service Commission is expected to act with independence
from ~the State Government and with fairness, besides D
competence _and maturity acquired_ through knowledge and
experience of public administration.

' . ~ 32.1." therefo're, hold,that even though Arti~le 316 does not
. specify the aforesaid qualities· of the Chairman of a Public E
Service Commission, these qualities 'are amongst the implied
relevant f~c.tors which have to be taken into _consideration by
the G,overnment while qetermining the competency of the
person to be,selected and appoirited as Chairman of the Public
Service Commission under Article 316 of the Constitution.
' . . F
Accordingly, if these .relevant factors are ·not'.taken. into
consideration by the State Gov_ernment ~hile selecting and
appointing the Chairman of the Public Service Commission, the
Court can hold t_he selection and appointment as not in
accorda[,lCe with the Constitution. To quote De Smith's.Judicial G
Review, Si><!h' Edition: ·

-
· "If the exercise of ·a discretionary power has been
' t, ;..~,...; : ' . ' ~+ • ~ ' .

influenced by considerations that cannot li')wfully be taken
into account, or by the disregard of relevant considerations
H
64 SUPREME COURT REPORTS· [2013) 5 S.C.R.

A required to be taken into account (expressly or impliedly),
a court will normally hold that the power has not been
validly exercised. (Page 280)

If the relevant factors are not specified (e.g. if the power
is merely to grant or refuse a licence, or to attach such
8
conditions as the competent authority thinks fit), it is for the
courts to determine whether the permissible
considerations are impliedly restricted, and, if so, to what
extent (Page 282)"

C In Mis Hochtief Gammon v. State of Orissa and Others (AIR
1975 SC 2226), A. Alagiriswamy writing the judgment for a
three Judge Bench of this Court explained this limitation on the
power of the Executive in the following words:

D ''The Executive have to reach their decisions by taking into
account relevant considerations. They should not refuse to
consider relevant matter nor should take into account wholly
irrelevant or extraneous consideration. They should not
misdirect themselves on a point of law. Only such a
decision will be lawful. The Courts have power to see that
E
the Executive acts lawfully".

33. Mr. Rao, however, relied on a decision of the
Constitution Bench of this Court in E.P. Royappa v. State of
Tamil Nadu &Anr. (supra) in which it was held that the post of
F Chief Secretary is a highly sensitive post and the Chief
Secretary is.a lynchpin in the administration and for smooth
functioning of the administration, there should be complete
rapport and understanding between the Chief Secretary and the
Chief Minister and, therefore, it is only the person in whom the
G Chief Minister has complete confidence who can be appointed
as Chief Secretary of the State and hence the Chief Secretary
of a State cannot be displaced from his post on the ground that
his appointment was arbitrary and violative of Articles 14 and •
16 of the Constitution. Mr. Rao also relied on the decision of a
H two-Judge Bench of this Court in State of West Bengal & Ors.
STATE OF PUNJAB v. SAUL SABHLOK AND ORS. 65
[A.K. PATNAIK, J.]
v. Manas Kumar Chakraborty & Ors. (supra) in which it was A
similarly observed that the post of DG and IG Police was a
selection post and it is not open to the courts to sit in appeal
over the view taken by the appointing authority with regard to
the choice of the officer to be appointed as DG and IG Police
and for such selection, the Government of the State must play B
a predominant role. I am of the considered opinion that the
Chairman of the 'Public Service Commission, who ,along with
its other members has to perform his duties under Article 320
of the Constitution with independence from the State
Government cannot be equated with the Chief Secretary or the c
DG and IG Police, who are concerned solely with the
administrative functions and have to work u.nder the State
Government. To ensure this independence of the Chairman and
Members of the Public Service Commission, clause (3) of
Article 316 of the Constitution provides that a person shall, on
0
expiration of his term of office be ineligibie for reappointment
to that office.

34. Mr. Rao has also relied on the decision of this Court
in B. Srinivasa Reddy v. Karnataka Urban Water Supply &
Drainage Board Employees Association & Ors. (supra) to E
argue that the High Court's jurisdiction to issue a writ of quo
warranto is limited to only cases where the appointment to an
office is contrary to the statutory rules. He also distinguished
the decision of this Court in Centre for PIL and Another v.
Union of India and Another (supra) cited by Mr. Lalit and F
submitted that in that case the Court had found that the
appointment of the Central Vigilance Commissioner was in
contravention of the statutory provisions of the Central Vigilance
Commission Act, 2003 and for this reason, this Court quashed
the appointment of the Central Vigilance Commissioner. I have G
already held that besides· express restrictions in a statute or
the Constitution, there can be implied restrictions in a statute
and the Constitution and the statutory or the constitutional
authority cannot in breach of such implied restrictions exercise
its discretionary power. Moreover, Article 226 of the H
66 SUPREME COURT REPORTS [2013] 5 S.C:R.

,A Constitution vests in,the High Court the power to issue to any
per~on or authority, including_;in -appropriate cases, any
:Government, within those territories directions,. orders or. writs;
inci'~ding ~rits in the-nature.-of habeas:corpus,.mµndamus,
.prohibitioQ, quo warranto and certiorari, or any of them; for the
B enf?rc::ement of any of the rights. conferred by t:art 111 and ·for any
other purpose. The power of the High Court._under Article 226
of.the C~mstitution is, thus; not confined .to only·writ of quo
wa_rranto but to other directions, orders or, writs, lnDwarl<a Nath
v. Jnc;ome-tax Officer, Special Circle, D Ward; 1Kanpur & Anr.
c (supra},_K; Subba Rao, J. speaking for a three-Judge Bench,
has e?<plained.the wide scope of the powers of the High Court
under [\rticle 226 oUhe Constitution thus: ·,_ · , ·1 ,
• - L ' __ . . - ,,. ~. ~ -· .j...:', I~. ; r . _... . •• ~ r 'r .

"This article' lis couched
{ '0. -
.in comprehensive phraseology and
·~I, ,.J
. ......,,.,'\..-•.._ ' : ..} ~ .,..··· ., ,• . . . t'I

jt ex'facie confers a· wide power on the High_,Courts to
·D ,, I ·4, "reach injustice wherever
T - ~ • :: .,r
~ ·
it' is found. The
1.,j ' I t, ,
Constitution
.i , ' "• '' .. 1.,.. • '~ j. I•,~'- -

designedly used a wide language .
m descnbmg .the
'
nature
,c, • v ..
of the power, the purpose for which and the person or
, authority-against whom it can be exercised; lt1can issue
, writs in-the nature of prerogative writs.as.understood in
E England; but.the scope of.those writs'.also is widened by
, the use of the expression ;·nature", for ,the said expression
, does not equate the writs that can.be issued in India with
.those in England, but only draws an an~logy from them,
Th.at apart, High Courts can also issue directions, orders
F or,writs other than the prerogative writs .. It enables the High
, C~urts .to mould the reliefs to me~t the peculiar and
. complicated requirements,of this,country.1Any attempt.to
.-, equate the scope of the 'power ofJhe)High Court under
,. ,. Aiticle~ 226 of the Consti~ution with: that: of the ,English
·G ,. Courts .to issue preroga,tive.,writs ,is ..to introduce, t-he
,1unnec_essary,procedural:restrictionsgrown over.th~:years
in a comparatively small country like England with a unitary
form of government to a vast country like India functioning
under ci_ federal structure. Such a construction defeats the
H purpose of the article itself. To say this is not ,to say that
STATE OF PUNJAB v. SALIL SABHLOK AND ORS. 67
[A.K. PATNAIK, J.]
• _the High1Courts·can function arbitrarily under this 'Article. A
: · -~Some limitations are implicit in the article and othe'rs n1ay
~-~ .: be evolved to· direct the article through•defined channels.
:; '"' rThis interpretation has been accepted by this" Court in T. C.
"'' Basappa v. ·Nagappa, .1955-1 SCW250: (AIR'1954 SC
440) and Irani v. State of Madras, 1962 (2)'SCR'169: (AIR B
1961 SC 1731 )."

Therefore, I hold that the
"",, """., .
High
. '
Court
. ~
should
- , .. ,
not
L "
normally,
' ,~
'. •
in
exercise of its rpower·under Article 226 of the Constitution,
interfere with the discretion of the State Government in selecting
and appdintfng the Cha·i~man of the State PubiiC Service ·C
Commission, but in an exceptional case if it is showh that
relevant factors implied frqm the very nature of the duties
entrusted totPublic Service Commissions under-ArtiCle 320 of
the Constitution have;' not been considered by the· State
Government in selecting and appointing the Chairm~r:i pf the 'D
State'Publfc·servicei Commission, the High .C'ourt"can· invoke
its wide and extra-ordinary powers under Article. 226 of the
Constitution and .quash the selection and. appointment to
ensureu that the discretion of the State Government is exercised
within the bounds of the Constitution. E
' .. ~ ~ ("~ .... '1} L.~ ~ f I • J

35. Coming now to the facts of the present case, -1 find that
the Division Bench of the High Court in its order dated
13;·07.2011chas already heldCthat the'irregularities and
illegalities alleged against Shri Harish Dhanda have not been F
substantiated. I must, however, enquire whether the State
Government fook intci"consid'eration the refevan-t fact~rs re'lating
1

to hiS competenc~ho act as
the cha1rriian of the-. State Pubiic
Service ·commission. We'h'ad, therefore,· passed ordefs" on
1

01.08.2012 calling 'upori ttie Sfate' of Purijal:> fo' produce' before
Lis the material referred to in pa.ra 69 of tlie'judgm.eniof the' Full G
Efe'n'ch'!cif the' High ·Court cl'n' the basis "of which' Shri Harish
Dlianda 'was ·selected for: appointment as. Chairmar{ the·bf
PunjabLPublic"servicei Commission'.' Pursuant tO the· ordeP
dated 01.08.2012. the· State Go\/'ernrrienf has ·pfo'duced th~·
H
68 SUPREME COURT REPORTS [2013] 5 S.C.R.

A fifes in which the selection and appointment of Shri Harish
Dhanda was processed by the State Government. At page 26
of the file on the subject "Appointment of Chairman of P.P.S.C.
- Shri S.K. Sinha, /AS, Shri Harish Rai Dhanda'', I find that a
bio-data in one sheet has been placed at page 41 of the file,
B which reads as under:

"BIO DATA

Harish Rai Dhanda S/o Sh. Kulbhushan Rai

c Resident: The Retreat, Ferozepur Road, Ludhiana

Date of Birth: 15th May, 1960

Attained Bachelor in Arts from SCD Government College,
Ludhiana, Punjab University, (1979).
D
Attained Bachelor in Laws from Law College, Punjab
University (1982).

Registered with Bar Council of Punjab and Haryana as
Advocate in 1982.
E
Practiced Law at District Courts, Ludhiana from 1982 to
2007.

Elected as President of District Bar Association, Ludhiana
F for seven terms."

Besides the aforesaid bio-data, there is a certificate dated
06.07.2011 given by the Speaker, Punjab Vidhan Sabha,
certifying that Shri Harish Rai Dhanda, MLA, has resigned from
the membership of the 13th Punjab Legislative Assembly with
G effect from 06.07 .2011 and that his resignation has been
accepted by the Speaker. The aforesaid materials indicate that
Shri Harish Dhanda had B.A. and LLB Degrees and was
practicing as an Advocate at the District Courts in Ludhiana
and had been elected as the President of the District Bar
H
STATE OF PUNJAB v. SAUL SABHLOK AND ORS. 69

Association, Ludhiana for seven terms and has been member A
of the Legislative Assembly. These materials do not indicate
that Shri Harish Dhanda had any knowledge or experience
whatsoever either in administration or in recruitment nor do
these materials indicate that Shri Harish Dhanda had the
qualities to perform the duties as the Chairman of the State B
Public Service Commission under Article 320 of the
Constitution which I have discussed in this judgment. No other
information through affidavit has also been placed on record
before us to show that Shri Harish Dhanda has the positive
qualities to perform the duties of the office of the Chairman of c
the State Pubic Service Commission under Article 320 of the
Constitution. The decision of the State Government to appoint
Shri Harish Dhanda as the Chairman of the Punjab Public
Service Commission was thus invalid for non-consideration of
relevant factors implied from the very nature of the duties D
entrusted to the Public Service Commissions under Article 320
of the Constitution.

36. In the result, I am not inclined to interfere with the
impugned order of the Division Bench of the High Court dated
17 .08.2011 quashing the selection and appointment of Shri E
Harish Dhanda as Chairman of the Punjab Public Service
Commission, but I set aside the judgment dated 17.08.2011
of the Full Bench of the High Court. Considering, however, the
fact that the State Government of Punjab has already selected
and appointed Lt. Gen. R.A. Sujlana as the Chairman of the F
Punjab Public Servic~ Commission, I am not inclined to disturb
his appointment only on the ground that his appointment was
consequential to the judgment dated 17 .08.2011 of the Full
Bench of the High Court which I have set aside. The appeal of
the State of Punjab is partly allowed and the appeal of the State G
of Haryana is allowed, but the appeal of Shri Harish Dhanda
is dismissed. The parties to bear their own costs.

MADAN B. LOKUR, J. 1. While I entirely agree with
Brother Patnaik, but given the seminal importance of the issues
H
. 70 SUPREME COURT REPORTS [2013] 5 S.C.R.

A raised, I think it appropriate to separately express my views in
the case.

2. The facts have been stated in detail by Brother Patnaik
and it is not necessary to repeat them. ,

B The issues:

3. The primary substantive issue that arises for
consideration is whether the Higti Court could have - arid if it
could have, whether it ought to have· - interfered in the
c appointment, by a notification published on' 7th July 2011; of
Mr. Harish Rai Dhanda as Chairperson of the Punjab Public
Service Commission. In my opinion, the answer to both
questions must be in the affirmative. ·

4. However, it must be clarified that even though a
D notification was issued of his appointment, Mr. Dhanda did not
actually assume office or occupy the post of Chairperson of the
Punjab Public SeNice Commission. Before he could do so, his
appointment was challenged by Salil Sabhlok through a writ
petition being Writ Petition (Civil) No.11848 of 2011 filed in the
E Punjab & Haryana High Court. When the writ.petition was taken
up for ·consideration, a Division Bench of the High Court
obseNed in its order of 13th July 2011 that his "oath ceremony"
was fixed for the same day' but learned counsel appearing for
the State cif Punjab stated that the ceremony would be' deferred
F till the writ petition is decided. Thereafter, the statement was
sought to be withdrawn on 1st August 2011. However, the Full
Bench of the High Court, which had heard the matter· in'
considerable detail; passed an order on that day retraining
administering of the oath of office to Mr. Dhanda. As such, Mr.
G Dhanda did not take the oath of allegiance; of office and of
secrecy as the Chairperson of the Punjab Public Service
Commission. Later, since his appointment was quashed by the
High Court, the question of his taking the oaths as abov~ did
not arise. · · · · ·
H
STATE OF PUNJABv.· SALIL.SABHLOK AND ORS. '.71
(MADAN B. LOKUR, J.]
: .:i •.• 5. Another substantive 'issue raised is whether-the High A
Court could nave· entertained a Public Interest Writ Petition in
respect of a "service matter".; namely, the appointment of Mr.
Harish Rai Dhanda as Chairperson of .the Punjab Public
·service.Commission.' In· opinion/the appointment of the my
I
Chairperson of the Punjab Public ·ser./ice Commission is not B
I ·. :a·•se'niice matter" and so a Public Interest Litigation· could have
been.entertained by .the High Court. · >. ·
I' 6. A few procedural issues have also arisen for
' .

COnsider(ltiO~n· and th~y rela.te to the desirability, Of making a -C
J .reference by t~e D)visio.n _Bench to the Full Bench of the High ·
I Court of issues said to have been settled by this Court; the
framing
.. -· ' of questions - by the ... Full Bench 'of the High Court, over
l
·,'.
/ ( ,

and· above the questions referred to it; the necessity of
impleadrnent of the State'of Haryana in the proceedings before
-

. the Full Bench;even though it had no concern with the D
appoiritment 'of the Chairperson of the Punjab Public Service
("' • ·~ t ,., ... • • • • • '-. '. ' • -

Commission; the validity of the direction given by the Full Bench
t0 1produce the advlce·tendered by the Chief Minister of the
State of Pi:injab to the -Governor of the State in respect of the
appointment of the Chairperson of.the Punjab Public Service E
Coi:nmission; the power of the Full Bench to frame guidelines
:for. the appointment' of the Chairperson of the Punjab Public
_Service Commission,arid 'of. the Haryana Public~Service
Commission arid
j,,,_ 'L,
·a.few' other incidental issues
,.,d ,,, , ' - ''
.• , -.~t'~1
- O

~-. -· /__-, -·. . . ., . ( . , ~. - .. - .- -···- =~F
Public'lnterest·WritPetition in respect of a "service
"in-a1ter',:fi(] .._. ,-- ,-. · .. 1; ::·. . ··.1::: '.1: - : . • -
·~· .·_-. :
- ,, ,,
•' : .,...
- r 7. 'At the outset, it is important to appreciate that the
'Chairperson. of a Public Service Commission holds a
constitutional position and not a statutory post. The significance ' G
of this is thatthe. eligibility parameters or selection indicators
.for appointment to a statutory post are quite different and distinct
'trom the parameters and indicators for appointment to a
_constitutional position. . · ·• · ·
.::-· l ,·. ,. , :....·<.:~ H
72 SUPREME COURT REPORTS [2013) 5 S.C.R.

A 8. The appointment of a Chairperson of a State Public
. Service Commission is in terms of Article 316 of the
Constitution, which reads as follows:

"316. Appointment and term of office of members.-
(1) The Chairman and other members of a Public Service
B
Commission shall be appointed, in the case of the Union
Commission or a Joint Commission, by the President, and
ih the case of a State Commission, by the Governor of the
State:

c Provided that as nearly as may be one-half of the
members of every Public Service Commission shall
be persons who at the dates of their respective
appointments have held office for at least ten years
either under the Government of India or under the
D Government of a State, and in computing the said
period of ten years any period before the
commencement of this Constitution during which a
person has held office under the Crown in India or
under the Government of an Indian State shall be
E included.

(1-A) 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
F appointed under clause (1) to the vacant office has entered
on· the duties thereof or, as the case may be, until the
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
G Commission, and the Governor of the State in the case of
a State Commission, may appoint for the purpose.

(2) A member of a Public Service Commission shall hold
office for a term of six years from the date on which he
H enters upon his office or until he attains, in the case of the
STATE OF PUNJAB v. SAUL SABHLOK AND ORS. 73
[MADAN 8. LOKUR, J.]
Union Commission, the age of sixty-five years, and in the A
case of a State Commission or a Joint Commission, the
age of sixty-two years, whichever is earlier:

Provided that-

(a) a member of a Public Service Commission B
may, by writing under his hand addressed, in the
case of the Union Commission or a Joint
Commission, to the President, and in the case of
a State Commission, to the Governor of the State,
resign his office; c
(b) a member of a Public Service Commission may
be removed from his office in the manner provided
in clause (1) or clause (3) of Article 317.

(3) A person who holds office as a member of a Public
D -
Service Commission shall, on the expiration of his term of
office, be ineligible for re-appointment to that office."

9. Two features clearly stand out from a bare reading of
Article 316 of the Constitution, and these are: (1) No E
qualification has been laid down for the appointment of the
Chairperson of a State 'Public Service Commission.
Theoretically therefore, the Chief Minister of a State can
recommend to the Governor of a State to appoint any person
walking on the street as the Chairperson of the State Public F
Service Commission. (2) The Chairperson of the State Public
Service Commission is provided security of tenure since the
term of office is fixed at six years or until the age of 62 years,
whichever is earlier.

10. The security of tenure is confirmed by the provision for G
removal of the. Chairperson of the State Public Service
Commission from office as provided for in Article 317 of the
Constitution. This reads as follows:

"317. Removal and suspension of a member of a H
)
••
~

/ •
74 . SUPREME COURT REPORTS . 12013) 5 S.C.R. STATE OF PUNJAB v. _SAUL SABHLOK AND ORS. 75
I. [MADAN B. LOKUR, J.)
" ~ .......

A Public Service Commission.~(1) Subject to the State or participates in any way in the profit thereof or in A
"provisions of clause (3).. the Chairm.an or any other any benefit or emolument arising therefrom othe!Wise than
, member of a Public Service Commission shall only be as a member and in common with the other members of
' removed from his office by order of the President on the an incorporated company, Ile shall, for the purposes oi
·ground of misbeha'viour after the Supreme Court, on clause (1), be deemed to be guilty of misbehaviour."
B reference being made to it by the President, has, on inquiry ·, .· ,- ':.. .. , ~- B
. heldin-accordance with ihe procedure prescribed in that . 11. An aspect that clearly stands out from a reading of
behalf under Article ·145, reported that the Chairman or Article 317 is that the Chairperson of the State Public Service
such other member, as the case may be, ought on any Commission can be removed from office on the ground of
-such ground to be removed. misbehaviour only after an inquiry is held by this Court on a
.. I , .
reference made by the President and that inquiry results in a C
c (2) The President, in the case of the Union Commission report that he or she ought to be removed on such ground. The
or a Joint Commission, and the Governor, in the case of Governor of. the State is not empowered to remove the
a State Commission, may suspend from office the Chairperson of the State Public Service Commission even
Chairman or any other_ member of the Commission in though he or she is the appointing authority.T There are, of
respect of whom a reference has been made to the course, other gra'unds.mentioned in Article 317 of the
'D r
Constitution. tiut none of them are of any concern for the D
Supreme Court under clause (1) until the President has
· passed orders on receipt of the report of the Supreme
Court on such reference. , .. ,
purposes of. this case.
0
.... .
12: A reading of Article 316 and Article :311 of the
II
,(, .· ·· (3) Notwithstanding anything in clause (1), the President Consiiiution makes it clear that io prevent the person walking
E .·. · may by order r~move from 'office the Chairman· or any on the street from being'appointed as the Chairperson of a E
· • ,.other member of a Public Service Commission if the State: Public Service Commission, the Constitution has
. ·Chairman or such other member, as the. case may be,:- provided that the appointment is required tobe made by ·the
.,, ' . ,., ' ' '. : '! ' t ,' ' Governor of the State, on advice. Additionally, the Chairperson'
:; •.: i (a). is adjudged an insolvent; or . .. ' •: ,·:· •. : has security of tenure to the extent that that person cannot be
. •• ·','. -,• ,'1' '" 1·· ~· !J -,,- 'JC,"."' "'' "' ("f' ,., . . .
. · effortlessly removed from office even-by the President as long F
F : .; (b) engages during his term pf office in any paid
as he or she is not guilty of proven misbehaviour, or is insolvent,
.. ·., ,;employment outside the duties of. his. office; or '. 'r
' '• . '
' .,' - or does not take up any employment or is not bodily or mentally
(c) is: iri the opini-;;n of the President, unfit tci infirm. There is, therefore, an in-built constitutional check on the
continue in office by reason of infirmity of mind or ., arbitrary appointment' of a Chairperson of a State Public
•. G body. . , • ·r· i. Serv~ce Co~mission: The flip side· is th~t if ~·;,:arbitrary G
: appointment 1s made, removal of the appointee 1s·a difficult
• (4) If the Chairman or any othe'r'member of a Public "- process. ·· ··· " · .. :" · " ••.. : .. ;
. r ,...
Service Commission is or becomes in any way concerned
or interested in any contract or agreement made by or on 13. If the person walking on the street is appointed in a
behalf of the Governmerit of India or the Government of a · God-forbid kind of situation,' as the Chairperson of a· State
·H 1· ;i .;c;;ul".' ,.,
• ,._ · · ·.
Public Service Commission, what remedy does an aggrieved t-J

,j
)
••
~

/ •
74 . SUPREME COURT REPORTS . 12013) 5 S.C.R. STATE OF PUNJAB v. _SAUL SABHLOK AND ORS. 75
I. [MADAN B. LOKUR, J.)
" ~ .......

A Public Service Commission.~(1) Subject to the State or participates in any way in the profit thereof or in A
"provisions of clause (3).. the Chairm.an or any other any benefit or emolument arising therefrom othe!Wise than
, member of a Public Service Commission shall only be as a member and in common with the other members of
' removed from his office by order of the President on the an incorporated company, Ile shall, for the purposes oi
·ground of misbeha'viour after the Supreme Court, on clause (1), be deemed to be guilty of misbehaviour."
B reference being made to it by the President, has, on inquiry ·, .· ,- ':.. .. , ~- B
. heldin-accordance with ihe procedure prescribed in that . 11. An aspect that clearly stands out from a reading of
behalf under Article ·145, reported that the Chairman or Article 317 is that the Chairperson of the State Public Service
such other member, as the case may be, ought on any Commission can be removed from office on the ground of
-such ground to be removed. misbehaviour only after an inquiry is held by this Court on a
.. I , .
reference made by the President and that inquiry results in a C
c (2) The President, in the case of the Union Commission report that he or she ought to be removed on such ground. The
or a Joint Commission, and the Governor, in the case of Governor of. the State is not empowered to remove the
a State Commission, may suspend from office the Chairperson of the State Public Service Commission even
Chairman or any other_ member of the Commission in though he or she is the appointing authority.T There are, of
respect of whom a reference has been made to the course, other gra'unds.mentioned in Article 317 of the
'D r
Constitution. tiut none of them are of any concern for the D
Supreme Court under clause (1) until the President has
· passed orders on receipt of the report of the Supreme
Court on such reference. , .. ,
purposes of. this case.
0
.... .
12: A reading of Article 316 and Article :311 of the
II
,(, .· ·· (3) Notwithstanding anything in clause (1), the President Consiiiution makes it clear that io prevent the person walking
E .·. · may by order r~move from 'office the Chairman· or any on the street from being'appointed as the Chairperson of a E
· • ,.other member of a Public Service Commission if the State: Public Service Commission, the Constitution has
. ·Chairman or such other member, as the. case may be,:- provided that the appointment is required tobe made by ·the
.,, ' . ,., ' ' '. : '! ' t ,' ' Governor of the State, on advice. Additionally, the Chairperson'
:; •.: i (a). is adjudged an insolvent; or . .. ' •: ,·:· •. : has security of tenure to the extent that that person cannot be
. •• ·','. -,• ,'1' '" 1·· ~· !J -,,- 'JC,"."' "'' "' ("f' ,., . . .
. · effortlessly removed from office even-by the President as long F
F : .; (b) engages during his term pf office in any paid
as he or she is not guilty of proven misbehaviour, or is insolvent,
.. ·., ,;employment outside the duties of. his. office; or '. 'r
' '• . '
' .,' - or does not take up any employment or is not bodily or mentally
(c) is: iri the opini-;;n of the President, unfit tci infirm. There is, therefore, an in-built constitutional check on the
continue in office by reason of infirmity of mind or ., arbitrary appointment' of a Chairperson of a State Public
•. G body. . , • ·r· i. Serv~ce Co~mission: The flip side· is th~t if ~·;,:arbitrary G
: appointment 1s made, removal of the appointee 1s·a difficult
• (4) If the Chairman or any othe'r'member of a Public "- process. ·· ··· " · .. :" · " ••.. : .. ;
. r ,...
Service Commission is or becomes in any way concerned
or interested in any contract or agreement made by or on 13. If the person walking on the street is appointed in a
behalf of the Governmerit of India or the Government of a · God-forbid kind of situation,' as the Chairperson of a· State
·H 1· ;i .;c;;ul".' ,.,
• ,._ · · ·.
Public Service Commission, what remedy does an aggrieved t-J

,j
76 SUPREME COURT REPORTS [2013] 5 S.C.R.

A citizen have? This question arises in a unique backdrop, in as
much as no eligibility criterion has been prescribed for such an
appointment and the suitability of a person to hold a post is
subjective.

8 14. In this context, three submissions have been put forward
by learned counsel supporting the appointment of Mr. Dhanda.
If these submissions are accepted, then one would have to
believe that a citizen aggrieved by such an appointment would
have no remedy. The first submission is that a writ of quo
C warranto would not lie since there is no violation of a statute in
the appointment - indeed, no statutory or other qualification or
eligibility criterion has been laid down for the appointment.
Therefore, a petition for a writ of quo waffanto would not be
maintainable. The second submission is that the appointment
to a post is a "service matter''. Therefore, a public interest
D litigation (or a PIL for short) would not be maintainable. The third
submission is that the remedy in a "service matter'' would lie
with the Administrative Tribunal, but an application before the
Tribunal would not be maintainable since the aggrieved citizen
is not a candidate for the post and, therefore, would have no
E locus standii in the matter. It is necessary to consider the
correctness of these submissions and the availability of a
remedy, if any, to an aggrieved citizen.

Maintainability of a PIL:
F
(i) A writ of quo warranto
15. Learned counsel supporting Mr. Dhanda are right that
there is no violation of any statutory requirement in the
appointment of Mr. Dhanda. This is because no statutory
G criterion or parameters have been laid for the appointment of
the Chairperson of a Public Service Commission. Therefore,
a petition for a writ of quo warranto would clearly not lie.

16. A couple of years ago, in Hari Bansh Lal v. Sahodar
H Prasad Mahto, (2010) 9 SCC 655 this Court considered the
STATE OF PUNJAB v. SAUL SABHLOK AND ORS. 77
[MADAN B. LOKUR, J.]
position at law and, after referring to several earlier decisions, A
including R.K. Jain v. Union of India, (1993) 4 SCC 119, Mor
Modern Coop. Transport Society v. Govt. of Haryana, (2002)
6 SCC 269, High Court of Gujarat v. Gujarat Kishan Mazdoor
Panchayat, (2003) 4 SCC 712 and 8. Srinivasa Reddy v.
Karnataka Urban Wa'ter Supply & Drainage ·Board B
Employees' Association, (2006) 11 SCC 731 (2) held that
"even for issuance of a writ of quo warranto, the High Court has
to satisfy that the appointment is contrary to the statutory rules."

17. This principle was framed positively in Mahesh C
Chandra Gupta v. Union of India & Others, (2009) 8 SCC 273
wherein it was said: "In cases involving lack of "eligibility" writ
of quo warranto would certainly lie."

(ii) Is it a service matter?
D
18. Is the appointment of a person to a constitutional post
a "service matter"? The expression "service matter'' is generic
in nature and has been specifically defined (as far as I am
aware) only in the Administrative Tribunals Act, 1985. Section
3(q) of the Administrative Tribunals Act is relevant in this regard E
and it reads as follows:

"3. Definitions.-ln this Act, unless the context otherwise
requires,-

(q) "service matters", in relation to a person, means all F ·
matters relating to the conditions of his service in
connection· with the affairs of the Union or of any State or
of any local or other authority within the territory of India or
under the control of the Government of India, or, as the
case may be, of any corporation or society owned or G
controlled by the Government, as respects-

(1) remuneration (including allowances), pension
and other retirement benefits;

(ii) tenure including confirmation, seniority, H
78 SUPREME COURT REPORTS [2013] 5 S.C.R.

A ·. prqmotion, . reversion, premature retirement and
superannuation;.
r'(iil) leave of any kind;

(iv) disciplinary matters; or
B
· (v) any other matter Whatsoever;"
"
19. It cannot.be said that the.Ch!iirperson of the Public
Service Commission holds a post in connection with the affairs
C of the Union or the State. He or she is not a Government
servant, in the sense of there being a master and servant
relations_hip between the Union or the State and Jhe
Chairperson. In view of the constitutional provisions pertaining
to the security of tenure and the removal procedure of the
Chairperson and members of the Public Service Com'mission,
D it can only be concluded that he or she holds a constitutional
post. In this context, in Reference under Article 3,17(1) of the
Constitution of India, In re, (f990r4 SCC 262 it was held:
. • ' •' ' i . ; ' . . ~

"The case of a government servant is, subject .to the
E special provisions, governed by· ttie law of master and
servant, but the position in the case of a Membe·r of'the
Commission is different. The latter holds a constitutional
· post and is governed by the special provisions dealing with
different aspects of his office as envisaged by Articles 315
F to 323 of Chapter II of.Part XIV of the Constitution."
~O. Similarly, in Bihar Public Service Commiss[on v. Shiv
.~atan T..hakur, 1994 Supp, (3) SCC 220 the Public Service
Commission is referred to" as a, "constitutional institution" and
G its Chairperson
. and members as "constitutional
, functionaries".
, .-.
21. In Ram Ashray Yadav (Dr.), Chairman; Bihar Public.
S~rvice Commission, In Re, (2000) ,4 SCC 309 a reference
was made to the "constitutional duties. and obligations" of the
Public Service Commissions. It was also observed that the
H
STATE OF PUNJAB v. SAUL SABHLOK AND ORS. 79
[MADAN B. LOKUR, J.]
Chairperson of the Public Service Commission is in the position A
of a constitutional trustee.

22. In Ram Kumar Kashyap v. Union of India, (2009) 9
SCC 278 the obligations of the Public Service Commission
were referred to as "constitutional obligations" and on a review B
of the case law, it was held that:

" ... since the Public Service Commissions are a
constitutional creation, the principles of service law that are
ordinarily applicable in instances of dismissals of
government employees cannot be extended to the C
proceedings for the re.moval and suspension of the
members of the said Commissions."

23. Finally, in Mehar Singh Saini, Chairman, Haryana
Public Service Commission, In re, (2010) 13 ·sec 586 a o
distinction was made between service under the Government
of India or a State Government and a constitutional body like a
Public Service Commission. It was observed that,

"A clear distinction has been drawn by the Framers [of our E
Constitution] between ·service under the Centre or the
States and services in the institutions which are creations
of the Constitution itself. Article 315 of the Constitution
commands that there shall be a Union Public Service
Commission for the Centre and State Public Service
Commissions for the respective States. This is not, in any F
manner, linked with the All-India Services contemplated
under Article 312 of the Constitution to which, in fact, the
selections are to be made by the Commission. The fact
that the Constitution itself has not introduced any element
of interdependence between the two, undoubtedly, points G
to the cause of Commission being free from any influence
or limitation."

24. A little later in the judgment, the Public Service
Commission is described as a "constitutional body". H
80 SUPREME COURT REPORTS [2013) 5 S.C.R.

A 25. This being the position, it is not possible to say that
the Chairperson of the Public Service Commission does not
occupy a constitutional position or a constitutional post. To
describe the appointment to a constitutional post generically or
even specifically as a "service matter" would be most
s inappropriate, to say the least.

(iii) Functional test

26. The employment embargo laid down in the Constitution
and the functions of a Public Service Commission also indicate
C that its Chairperson has a constitutional status.

27. Article 319 of the Constitution provides that on ceasing
to hold office, the Chairperson of a State Public Service
Commission cannot take up any other employment either under
0 the Government of India or under the Government of a State,
except as the Chairperson or member of the Union Public
Service Commission or as the Chairperson of any other State
Public Service Commission.

28. Among other things; the functions of the State Public
E Service Commission include, as mentioned in Article 320 of.
the Constitution, conducting examinations for appointments to
the services of the State. The State Public Service Commission
may also be consulted by the President or the Governor of the
State, subject to regulations that may be made in that behalf,
F on all matters relating inter alia to methods of recruitment to
.civil services and for civil posts and on the principles to be
followed in making appointments to civil services and posts.

29. Article 322 of the Constitution provides that the
G expenses of the State Public Service Commission, including
salaries, allowances. and pensions of_its members shall be
charged on the Consolidated Fund of the State. Article 323 of
the Constitution requires the Public Service Commission to
annually present a report of the work done by it to the Governor
H of the State.
STATE OF PUNJAB v. SAUL SABHLOK AND ORS. 81
[MADAN B. LOKUR, J.]
30. All these are serious constitutional functions and A
obligations cast on the Chairperson and members of the Public
Service eommission and to equate their appointment with a
statutory appointment and slotting their appointment in the
category of a "service matter" would be reducing the
Constitution into just another statute, which it is not. B

(iv) The remedy

31. What then is the remedy to a person aggrieved by an
appointment to a constitutional position like the Chairperson of
a Public Service Commission? C

32. About twenty years ago, in a case relating to the
appointment of the President of a statutory tribunal, this Court
held in R.K. Jain v. Union of India, (1993) 4 ·sec 119 that an
aggrieved person - a "non-appointee" - would alone have the D
locus standii to challenge the offending action. A third party
could seek a remedy only through a public law declaration. This
is what was held:

"In service jurisprudence it is settled law that it is for the
aggrieved person i.e. non-appointee to assail the legality E
of the offending action. Third party has no locus standi to
canvass the legality or correctness of the action. Only
public law declaration would be made at the behest of the
petitioner, a public~spirited person."
F
33. This view was reiterated in B. Srinivasa Reddy.
Therefore, assuming the appointment of the Chairperson of a
Public Service Commission is a "service matter", a third party
and a complete stranger such as the writ petitioner cannot
approach an Administrative Tribunal to challenge the G
appointment of Mr. Dhanda as Chairperson of the Punjab Public
Service Commission

34. However, as an aggrieved person he or she does have
a public law remedy. But in a service matter the only available
remedy is to ask for a writ of quo warranto. This is the opinion H
82 SUPREME COURT REPORTS [2013] 5 S.C.R.

A expressed by this Court in several cases. One of the more
recent decisions in this context is Harl Bansh Lal wherein it
was held that "... except for a writ of quo warranto, public interest
litigation is not maintainable in service matters." This view was
referred to (and not disagreed with) in Girjesh Shrivastava v.
B State of Madhya Pradesh, (2010) 10 SCC 707 after referring
to and relying on Duryodhan Sahu (Dr.) v. Jitendra Kumar
Mishra (1998) 7 SCC 273, B. Srinivasa Reddy, Dattaraj
Nathuji Thaware v. State of Maharashtra, (2005) 1 SCC 590,
Ashok Kumar Pandey v. State of W.B (2004) 3 SCC 349 and
c Hari Bansh Lal.
35. The significance of these decisions is that they prohibit
a PIL in a service matter, except for the purposes of a writ of
quo warranto. However, as I have concluded, the appointment
of the Chairperson in a Public Service Commission does not
D fall in the category of a service matter. Therefore, a PIL for a
writ of quo warranto in respect of an appointment to a
constitutional position would not be barred on the basis of the
judgments rendered by this Court and mentioned above.

E 36. However, in a unique situation like the present, where
a writ of quo warranto may not be issued, it becomes
necessary to mould the relief so that an aggrieved person is
not left without any remedy, in the public interest. This Court has,
therefore, fashioned a writ of declaration to deal with such
F cases. Way back, in T. C. Basappa v. T. Nagappa [1955] 1
SCR 250 it was said:

"The language used in articles 32 and 226 of our
Constitution is very wide and the powers of the Supreme
Court as well as of all the High Courts in India extend to
G issuing of orders, writs or directions including writs in the
nature of habeas corpus, mandamus, quo warranto,
prohibition and certiorari as may be considered necessary
for enforcement of the fundamental rights and in the case
of the High Courts, for other purposes as well. In view of
H the express provisions of our Constitution we need not now
STATE OF PUNJAB v. SAUL SABHLOK AND ORS. 83
[MADAN B. LOKUR, J.)
look back to the early history or the procedural A
technicalities of these writs in English law, nor feel
oppressed by any difference or change of opinion
expressed in particular cases by English Judges".

37. More recently, such a writ was issued by this Court was
8
in Kumar Padma Prasad v. Union of India, (1992) 2 SCC 428
when this Court declared that Mr. K.N. Srivastava was not
qualified to be appointed a Judge of the Gauhati High Court
even after a warrant for his appointment was issued by the
President under his hand and seal. This Court, therefore, C
directed:

"As a consequence, we quash his appointment as a Judge
of the Gauhati High-Court. We direct the Union of India and
other respondents present before us not to administer oath
or affirmation under Article 219 of the Constitution of India D
to K.N. Srivastava. We further restrain K.N. Srivastava
from making and subscribing an oath or affirmation in
terms of Article 219 of the Constitution of India and
assuming office of the Judge of the High Court."
E
38. Similarly, in N. Kannadasan v. Ajoy Khose, (2009) 7
SCC 1 this Court held that Justice N. Kannadasan (retired) was
ineligible to hold the post of the President of the State
Consumer Redressal Forum. It was then concluded:

"The superior courts may not only issue a writ of quo F
warranto but also a writ in the nature of quo warranto. It is
also entitled to issue a writ of declaration which would
achieve the same purpose."

39. Finally and even more recently, in Centre for PIL v. G
Union of India, (2011) 4 SCC 1 the recommendation of a High
Powered Committee recommending the appointment of Mr.
P.J. Thomas as the Central Vigilance Commissioner under th~'
proviso to Section 4(1) of the Central Vigilance Commissioli
Act, 2003 was held to be non est in law and his appointment H
84 SUPREME COURT REPORTS [2013] 5 S.C.R.

·A as the Central Vigilance Commissioner was quashed. This
Court opined:

"At the outset it may be stated that in the main writ petition
the petitioner has prayed for issuance of any other writ,
direction or order which this Court may deem fit and proper
B
in the facts and circumstances of this case. Thus, nothing
prevents this Court, if so satisfied, from issuing a writ of
declaration."

Who may be appointed - views of this Court:
c
40. Having come to a conclusion that an aggrieved citizen
has only very limited options available to him or her, is there
no redress if an arbitrary appointment is made, such as of the
person walking on the street. Before answering this question,
0 it would be worth considering who may be appointed to a
constitutional post such as the Chairperson of the Public
Service Commission.

41. In Ashok Kumar Yadav v. State of Haryana, (1985) 4
sec 417 th is Court looked at the appointment of the
E Chairperson and members of the Public Service Commission
from two different perspectives: firstly, from the perspective of
the requirement to have able administrators in the country and
secondly from the perspective of the requirement of the
institution as such. In regard to the first requirement, it was said:
F
"It is absolutely essential that the best and finest talent
should be drawn in the administration and administrative
services must be composed of men who are honest,
upright and independent and who are not swayed by the
political winds blowing in the country. The selection of
G
candidates for the administrative services must therefore
be made strictly on merits, keeping in view various factors
which go to make up a strong, efficient and people oriented
administrator. This can be achieved only if the Chairman
and members of the Public Service Commission are
H
STATE OF PUNJAB v. SAUL SABHLOK AND ORS. 85
[MADAN B. LOKUR, J.]
eminent men possessing a high degree of calibre, A
competence and integrity, who would inspire confidence
in the public mind about the objectivity and impartiality of
the selections to be made by them."

In regard to the second requirement, it was said:
B
"We would therefore like to strongly impress upon every
State Government to take care to see that its Public
Service Commission is manned by competent, honest and
independent persons of outstanding ability and high
reputation who command the confidence of the people and C
who would not allow themselves to be deflected by any
extraneous considerations from discharging their duty of
making selections strictly on merit."

· 42. In In RIO Dr Ram Ashray Yadav, Chairman, Bihar
0
Public Service Commission, (2000) 4 SCC 309 this Court
considered the functional requirements of the Public Service
Commission and what is expected of its members and held:

"Keeping in line with the high expectations of their office
and need to observe absolute· integrity and impartiality in E
the exercise of their powers and duties, the Chairman and
members of the Public Service Commission are required
to be selected on the basis of their merit, ability and
suitability and they in turn are expected to be models
themselves in their functioning. The character and conduct F
of the Chairman and members of the Commission, like
Caesar's wife, must therefore be above board. They
occupy a unique place and position and utmost objectivity
in the performance of their duties and integrity and
detachment are essential requirements expected from the G
Chairman and members of the Public Service
Commissions."

43. With specific reference to the Chairperson of the Public

H
86 SUPREME COURT REPORTS [2013) 5 S.C.R.

A Service Commission who is in the position of a "constitutional
trustee", this Court said:

"The Chairman of the Public Service Commission is in the
position of a constitutional trustee and the morals of a
constitutional trustee have to be tested in a much stricter
B sense than the morals of a common man in the
marketplace. Most sensitive standard of behaviour is
expected from such a constitutional trustee. His behaviour
has to be exemplary, his actions transparent, his
functioning has to be objective and in performance of all
c his duties he has to be fair, detached and impartial."

44. lnderpreet Singh Kah/on v. State of Punjab, {2006)
11 SCC 356 was decided in the backdrop of a Chairperson
of the Punjab Public Service Commission, "an important
·o constitutional authority", being put behind bars, inter alia, for
being caught red-handed accepting a bribe.

45. This Court asserted the necessity of transparency in
the appointment to such constitutional positions. It was said:

E "This unfortunate episode teaches us an important lesson
that before appointing the constitutional authorities, there
should be a thorough and meticulous inquiry and scrutiny
regarding their antecedents. Integrity and merit have to be
properly considered and evaluated in the appointments to
F such high positions. It is an urgent need of the hour that in
such appointments absolute transparency is r.equired to be
maintained and demonstrated. The impact of the deeds
and misdeeds of the constitutional authorities {who are
highly placed), affect a very large number of people for a
G very long time, therefore, it is absolutely imperative that only
people of high integrity, merit, rectitude and honesty are
appointed to these constitutional positions."

46. Subsequently, in State of Bihar v. Upendra Narayan
Singh {2009) 5 SCC 65 this Court expressed its anguish with
H
STATE OF PUNJAB v. SAUL SAl3HLOK AND ORS. 87
[MADAN B. LOKUR, J.]
the appointments generally made to the Public Service A
Commissions. It was observed:

"ThePublic Service Commissions which have been given
the status of constitutional authorities and which are
supposed to be totally independent and impartial while
8
discharging their function in terms of Article 320 have
become victims of spoils system.

"In the beginning, people with the distinction in different
fields of administration and social life were appointed as
Chairman and members of the Public Service C
Commissions but with the passage of time appointment
to these high offices became personal prerogatives of the
political head of the Government and men .with
questionable background have been appointed to these
coveted positions. Such appointees have, instead of D
making selections for appointment to higher echelons of
services on merit, indulgechn exhibition of faithfulness to
their mentors totally unmindful of their constitutional
responsibility."

47. While it is difficult to summarize the indicators laid E
down by this Court, it is possible to say that the two most
important requirements are that personally the Chairperson of
the Public Service Commission should be beyond reproach
and his or her appointment should inspire confidence among
the people in the institution. The first 'quality' can be F
ascertained through a meaningful deliberative process, while
the second 'quality' can be determined by taking into account
the constitutional, functional and institutional requirements
necessary for the appointment.
G
Selection and appointment of Mr.· Dhanda:

48. Given the views expressed by this Court from time to
time, learned counsel for the writ petitioner submitted that Mr.
Dhanda ought not to have been appointed as the Chairperson H
88 SUPREME COURT REPORTS [2013] 5 S.C.R.

A of the Public Service Commission. Three reasons were given
in this regard and all of them have been refuted by learned
counsel supporting the cause of Mr. Dhanda. They are: (1)
There is a question mark about the character and conduct of
Mr. Dhanda. (2) Mr. Dhanda lacks the qualifications and stature
B to hold a constitutional position of the Chairperson of a Public
Service Commission. (3) The record shows that no meaningful
and effective thought was given before appointing Mr. Dhanda
as the Chairperson of the Public Service Commission.

49. As regards the first reason, certain allegations were
C made against Mr. Dhanda in the writ petition filed in the High
Court. However, in its order dated 13th July 2011 a Division
Bench of the High Court held that: "As regards irregularities and
illegalities pointed out in the petition, the same do not stand
substantiated." This conclusion is strongly relied on by learned
D counsel supporting Mr. Dhanda.

50. However, the judgment under appeal records that the
writ petitioner had alleged that Mr. Dhanda had used his
political influence to effect the transfer of an officer and that the
E transfer was set as.ide by the Central Administrative Tribuna.1
. as being ma/a fide. In this context, during the hearing of this
appeal, we were handed over a copy of the decision rendered
by the Central Administrative Tribunal (Chandigarh Bench) in
Original Application No .. 495/PB/2007 decided on 15th
F November 2007. We were informed that this decision was
placed before the High Court and that this decision has
attained finality, not having been challenged by anybody.

52. A reading of the decision, particularly paragraph 12
thereof, does show that the applicant before the Central
G Administrative Tribunal was subjected to a transfer contrary to
the policy decision relating to mid-term transfers. The relevant
portion of patagraph 12 of the decision reads as follows:

"Even though the Government decided not to allow use of
H the Rest house as a permanent residence of the Chief
STATE OF PUNJAB v. SAUL SABHLOK AND ORS. 89
[MADAN B. LOKUR, J.]
Parliamentary Secretary, yet the applicant, being a junior A
officer became the victim of the annoyance of Respondent
No.3 [Mr. Dhanda] and with his political influer:ice, the
Forest Minister initiated the proposal for his transfer from
Ropar, which was approved by the Chief Minister .....
. . . .But a transfer made in this manner when the work and B
conduct of the officer is not only being appreciated by the
Secretary, but also by the Finance Minister is unwarranted
and also demoralizing. These are the situations when the
courts have to interfere to prevent injustice to employees
who are doing their duty according to rules." c
53. While it may be that Mr. Dhanda was given a clean
chit by the Division Bench when the case was first before it,
the fact is that information subsequently came to the notice of
the High Court which indicated that Mr. Dhanda was not above
using his political influence to get his way. That Mr. Dhanda D
came in for an adverse comment in a judicial proceeding was
certainly known to him, since he was a party to the case before
the Central Administrative Tribunal. But he did not disclose this
fact to the Chief Minister. In the deliberative process (or
whatever little there was of it) the Chief Minister did not even E
bother to check whether or not Mr. Dhanda was an appropriate
person to be appointed as the Chairperson of the Punjab
Public Service Commission in the light of the adverse comment.
The "thorough and meticulous inquiry and scrutiny" requirement
mentioned in lnderpreet Singh Kah/on was not at all carried F
out.

54. As regards the second reason, the qualifications of Mr.
Dhanda are as mentioned in his bio-data contained in the
offiCial file and reproduced by the High Court in the judgment G
under appeal. The bio-data reads as follows:

" - Harish Rai Dhanda son of Shri Kulbhushan Rai.

- Resident: The Retreat, Ferozepur Road, Ludhiana.
H
90 SUPREME COURT REPORTS [2013] 5 S.C.R.

A - Date of Birth: 15th May, 1960.

- Attained Bachelor in Arts. from SCD Government
College, Ludhiana, Panjab University, 1979.

- Attained Bachelor in Laws from Law College, Panjab
B University (1982).

- Registered with Bar Council of Punjab and Haryana as
Advocate in 1982.

- Practiced Law at District Courts, Ludhiana from 1982
c to 2007.

- Elected as President of District Bar Association,
Ludhiana for seven terms.

D 55. The High Court noted that the official file shows that
Mr. Dhanda resigned from the membership of the Punjab
Legislative Assembly on 6th July 2011. The resignation was
accepted the same day.

56. Mr. Dhanda had filed an affidavit in the High Court in
E which he disclosed that he was or had been the Vice President
of the Shiromani Akali Dal and the President of its Legal Cell
and its spokesperson.

57. In fairness to Mr. Dhanda it must be noted that his
F affidavit clearly mentions that he did not apply for or otherwise
seek the post of Chairperson of the Punjab Public Service
Commission. He was invited by the Chief Minister to submit
his bio-data and to accept the post. The question is that with
these qualifications, could it be said that Mr. Dhanda was
G eminently suited to holding the post of the Chairperson of the
Public Service Commission? The answer to this must be in
the negative if one is to agree with the expectations of this
Court declared in various decisions. This is not to say that Mr.
Dhanda lacks integrity or competence, but that he clearly has
H no administrative experience for holding a crucial constitutional
STATE OF PUNJAB v. SALIL SABHLOK AND ORS. 91
[MADAN 8. LOKUR, J.]
position. Merely because Mr. Dhanda is an advocate having A
had electoral successes does not make him eminently suitable
for holding a constitutional position of considerable importance
and significance. It is more than apparent that Mr. Dhanda's
political affiliation weighed over everything else in his
appointment as the Chairperson of the Punjab Public Service B
Commission.

58. But, as pointed out in Mahesh Chandra Gupta the
· suitability of a person to hold a post is a matter of opinion and
this is also a peg on which learned counsel supporting Mr.
Dhanda rest their case. The "suitability test" is said to be C
beyond the scope of judicial review.

59. The third reason is ·supported by the writ petitioner
through the finding given by the High Court that the official file
relating to the appointment of Mr. Dhanda as the Chairperson o
of the Punjab Public Service Commission contains only his bio-
data, a certificate to the effect that he resigned from the
membership of the Punjab Legislative Assembly on 6th July
2011 and his .resignation was accepted the same day and the
advice of the Chief Minister to the Governor apparently to E
'appoint Mr. Dhanda as the Chairperson of the Punjab Public
Service Commission. The advice was immediately acted upon
and Mr. Dhanda was appointed as the Chairperson of the
Punjab Public Service Commission by a notification published
on 7th July 2011. In other words, the entire exercise relating F
to the appointment of the Chairperson of the Public Service
Commission was completed in a day.

60. Learned counsel supporting the appointment of Mr.
Dhanda submitted that no procedure is prescribed for the
selection of the Chairperson of the Public Service G
Commission. Therefore, no fault can be found in the procedure
adopted by the State Government. It was submitted, relying on
Mohinder Singh Gill v. Chief Election Commissioner, (1978)
1 sec 405 that there is an implied power to adopt any
appropriate procedure for making the selection and the State H
92 SUPREME COURT REPORTS (2013) 5 S.C.R.

A Government and the Governor cannot be hamstrung in this
regard.

61. It is true that no parameters or guidelines have been
laid down in Article 316 of the Constitution for selecting the
Chairperson of the Public Service Commission and no law has
8
been enacted on the subject with reference to Entry 41 of List
II of the 7th Schedule of the Constitution. It is equally true that
the State Government and the Governor have a wide discretion
in the procedure to be followed. But, it is also true that
Mohinder Singh Gill refers to Lord Camden as having said
C that wide discretion is fraught with tyrannical potential even in
high personages. Therefore, the jurisprudence of prudence
demands a fairly high degree of circumspection in the selection
and appointment to a constitutional position having important
and significant ramifications.
D
· 62. Two factors that need to be jointly taken into account
for the exercise of the power of judicial review are: the
deliberative process and consideration of the institutional
requirements.
E
63. As far as the deliberative process is concerned (or lack
of effective consultation, as described in Mahesh Chandra
Gupta) it is quite apparent that the entire process of selection
and appointment of Mr. Dhanda -took place in about a day.
There is nothing to show the need for a tearing hurry, though
F there was some urgency, in filling up the post following the
demise of the then Chairperson of the Punjab Public Service
Commission in the first week of May 2011. But, it is important
to ask, since the post was lying vacant for a couple of months,
was the urgency such that the appointment was required to be
G made without considering anybody other than Mr. Dhanda.
There is nothing to show that any consideration whatsoever was
given to appointing a person with adequate administrative
experience who could achieve the constitutional purpose for
which the Public Service Commission was created. There is
H nothing to show that any background check was carried out to
STATE OF PUNJAB v. SAUL SABHLOK AND ORS. 93
[MADAN B. LOKUR, J.]
ascertain whether Mr. Dhanda had come in for any adverse A
notice, either in a judicial proceeding or any police inquiry. It
must be remembered that the appointment of Mr. Dhanda was
to a constitutional post and the basis of deliberation before
makirig the selection and appointment were imperative. In this
·case, clearly, there was no deliberative process, and if any B
semblance of it did exist, itwas irredeemably flawed. The in-
built constitutional checks had, unfortunately, broken down.

64. In Centre for PIL this Court struck down the
appointment of the Central Vigilance Commissioner while C
reaffirming the distinction between merit review pertaining to
the eligibility or suitability of a selected candidate and judicial
review pertaining to the recommendation making process. In
that case, the selection of the Central Vigilance Commissioner
was made under Section 4(1) of the Central Vigilance
Commission Act, 2003 (for short the Act) which reads as D
follows:

"4. Appointment of Central Vigilance Commissioner
and Vigilance Commissioners.-(1) The Central
Vigilance Commissipner and the Vigilance E
Commissioners shall be appointed by the President by
warrant under his hand and seal:

Provided that every appointment under this sub-
section shall be made after obtaining the recommendation
F
of a Committee consisting of-

(a) the Prime Minister - Chairperson;
' ' + "
(b) the Minister of Home Affairs - Member;

(c) the Leader of the Opposition in the House of the G
People - Member.

Explanation.-For the purposes of this sub-section,
'the Leader of the Opposition in the House of the People'
shall, when no such Leader has been so recognised, H
94 SUPREME COURT REPORTS [2013) 5 S.C.R.

A include the Leader of the single largest group in opposition
of the Government in the House of the People."

65. As can be seen, only the establishment of a High
Powered Committee (HPC) for making a recommendation is
8 provided for - the procedure to be followed by the HPC is not
detailed in the statute. This is not unusual since a statute cannot
particularize every little procedure; otherwise it would become
unmanageable and maybe unworkable. Moreover, some
situations have to be dealt with in a common sense and
C pragmatic manner.

66. Acknowledging this, this Court looked at the
appointment of the Central Vigilance Commissioner not as a
merit review of the integrity of the selected person, but as a
judicial review of the. recommendation making process relating
D to the integrity of the institution. It was made clear that while the
personal integrity of the candidate cannot be discounted,
institutional integrity is the primary consideration to be kept in
mind while recommending a candidate. It was observed that
while this Court cannot sit in appeal over the opinion of the
E HPC, it can certainly see whether relevant material and vital
aspects having nexus with the objects of the Act are taken into
account when a recommendation is made. This Court
emphasized the overarching need to act for the good of the
institution and in the public interest. Reference in this context
F was made to N. Kannadasan.
67. Keeping in mind the law laid down and the facts as
they appear from the record, it does appear that the
constitutional, functional and institutional requirements of the
Punjab Public Service Commission were not kept in mind when
G Mr. Dhanda was recommended for appointment as its
Chairperson.

A suitable appointee:
68. A submission was made by learned counsel supporting
H
STATE OF PUNJAB v. SAUL SABHLOK AND ORS. 95
[MADAN B. LOKUR, J.]
the appointment of Mr. Dhanda that ultimately it is for the State A
Government to decide who would be the most suitable person
to be appointed as the Chairperson of the Public Service
Commission.

69. In this regard, reliance was placed on three decisions. B
In the first such decision, that is, E.P. Royappa v. State of
Tamil Nadu, (1974) 4 SCC 3 the post of the Chief Secretary
of the State was under consideration. This Court observed that
the post is a sensitive one. The post is one of confidence and
the Chief Secretary is a lynchpin in the administration of the C
State. Therefore, the Chief Secretary and the Chief Minister of
the State must have complete rapport and understanding
between them. If the Chief Secretary forfeits the confidence of
the Chief Minister, then he may be shifted to some other post
in the larger interests of the administration, provided that no
legal or constitutional right of the Chief Secretary is violated. D

70. The second decision relied upon was State of WB.
v. Manas Kumar Chakraborty, (2003) 2 SCC 604. That case
concerned itself with the post of the Director General and
Inspector General of Police (DG&IP) in a State. This Court E
observed that ttie said post was of a very sensitive nature. It
could only be filled up by a person in whom the State
Government had confidence. Consequently, it was held that
such a post need not be filled up only by seniority, but merit,
credibility and confidence that the person can command with F
the State Government "must play a predominant role in selection
of an incumbent to such a post.··

71. Finally, in Hari Bansh Lal, a case concerning an
appointment to a statutory post of Chairperson of a State
Electricity Board, reference was made to State of Mysore v. G
Syed Mahmood, AIR 1968 SC 1113, Statesman (P) Ltd. v.
H. R. Deb, Al R 1968 SC 1495 and State Bank of India v. Mohd.
Mynuddin, (1987) 4 sec 486 and it was held:

"It is clear from the above decisions, suitability or otherwise H
96 SUPREME COURT REPORTS (2013) 5 S.C.R.

A of a candidate for appointment to a pas~ is the function of
the appointing authority and not of the court unless the
appointment is contrary to the statutory provisions/rules."

72. These decisions are clearly distinguishable. First of all,
none of tine cited decisions dealt with the appointment to a
8
constitutional position such as the one that we are concerned
with. A constitutional position such as that of the Chairperson
of a Public Service Commission cannot be equated with a
purely administrative position - it would be rather facetious to
do so. While the Chief Secretary and the Director General of ·
C Police are at the top of the ladder, yet they are essentially
administrative functiol')aries. Their duties and responsibilities,
however onerous, cannot be judged against the duties and
responsibilities of an important constitutional authority or a
constitutional trustee, whose very appointment is not only
D expected to inspire -confidence in the aspirational Indian but
also project the credibility of the institution to which he or she
belongs. I am, therefore, unable to accept the view that the
suitability of an appointee to the post of Chairperson of a
Public Service Commission should be evaluated on the same
E yardstick as . the appointment of a senior administrative
functionary.

73. Secondly, it may be necessary for a State Government
or the Chief Minister of a State to appoint a "suitable" person
F as a Chief Secretary or the Director General of Police or
perhaps to a statutory position, the connotation not being
derogatory or disparaging,· but because both the State
Government or the Chief Minister and the appointee share a
similar vision of the administrative goals and requirements of
the State. The underlying premise also is that the State
G Government or the Chief Minister has confidence that the
appointee will deliver the goods, as it were, and both are
administratively quite compatible with each other. If there is a
loss of confidence or the compatibility comes to an end, the
appointee may simply be shifted out to some other assignment,
H
STATE OF PUNJAB v. SAUL SABHLOK AND ORS. 97
[MADAN 8. LOKUR, J.]
provided no legal or constitutional right of the appointee is A
violated.

74. The question of the Chief Minister or th,e State
Government having "confidence" (in the sense .in which the word
is used with reference to the <;;hief Secretary or the Director 8
General of Police ·et any important statutory post) in the
Chairper.s,an of a State Public Service Commission simply
does l')'Ot arise, nor does the issue of compatibility. The
Chairperson of a Public Service Commission does not function
at the p1easure of the Chief Minister or the State Government. C
He·or she has a fixed tenure of six years or till the age of sixty
'two years, whichever is earlier. Security of tenure is provided
through a mechanism in our Constitution. The Chairperson of
a State Public Service Commission, even though appointed by
the Governor, may be removed only by the President on the
ground of misbehaviour after an inquiry by this Court, or on D
other specified grounds of insolvency, or being engaged in any
other paid employment or being unfit to continue in office by
reason of infirmity of mind or body. There is no question of the
Chairperson of a Public Service Commission being shifted out
if his views are not in sync with the views of the Chief Minister E
or the State Government.
/

75. The independence of the post of the Chairperson or
the member of the Punjab Public Service Commission cannot
be forgotten or overlooked. That independence is attached to F
the post is apparent from a reading of the Punjab State Public
Service Commission'(Conditions of Service) Regulations, 1958
framed by the Governor of Punjab in exercise of power
conferred by Article 318 of the Constitution.

76. Regulation 2(c) of the Punjab State Public Service G
Commission (Conditions of Service) Regulations, 1958
defines "Member" as:

"Member" means a Member for the time being of the
Commission and includes the Chairman thereof'; H
98 SUPREME COURT REPORTS (2013) 5 S.C.R.

· A 77. Regulation 4 of these Regulations provides that "Every
Member shall on appointment be required to take the oaths in
the form laid down in Appendix 'A' to these regulations."

78. The oaths that a member (including the Chairperson)
is required to take in the form laid down in Appendix 'A' are
8
oaths of allegiance, of office and of secrecy. A Note given in
Appendix 'A' states: "These oaths will be administered by the
Governor in person in the presence of the Chief Secretary." The
oaths read as follows:

C "Form of Oath of Allegiance

_ _ _ _ _ _ _ , solemnly affirm that I will be faithful
and bear true allegiance to India and to the Constitution
of India as by law established and that I will loyally carry
o out the duties of my office."

"Form of Oath of Office

I, , appointed a Member of the
Punjab Public Service Commission do solemnly declare,
E that I will faithfully perform the duties of my office to the best
of my ability, knowledge and judgment."

"Form of Oath of Secrecy

I, , solemnly affirm that I will not
F directly or indirectly communicate or reveal to any person
or persons any matter which shall be brought under my
consideration or shall become known to me as a Member
of the Punjab Public Service Commission, except as may
be required for due discharge of my duties as such
G Member or as may be specially permitted by the
Governor."

79. There is, therefore, a great deal of solemnity attached
to the post of the Chairperson of the Public Service
H Commission. The Chairperson takes the oath of allegiance to
STATE OF PUNJAB v. SAUL SABHLOK AND ORS. 99
[MADAN B. LOKUR, J.]
India and to the Constitution of India - not an oath of allegiance A
to the Chief Minister. An appointment to that position cannot
be taken lightly or on considerations other than the public
interest. Consequently, it is not possible to accept the
contention that the Chief Minister or the State Government is
entitled to act only on the perceived suitability of the appointee, B
over everything else, while advising the Governor to appoint the
Chairperson of the Public Service Commission. If such a view
is accepted, it will destroy the very fabric of the Public Service
Commission.

Finding an appropriate Chairperson: c
80. Taking all this into consideration, how can an
appropriate person be searched out for appointment to the
position of a Chairperson of a Public Service Commission?
This ques~ion arises in the context of the guidelines framed by D
the High Court and which have been objected to by the State
of Punjab and the State of Haryana. This Court found itself
helpl.ess in resolving the dilemma in Mehar Singh Saini. This
Court pointed out the importance of the Public Service
Commission vis-a-vis good gov~rnance and the "common E
man". In this regard, it was obsen.ied that:

"The adverse impact of lack of probity in discharge of
functions of the [Public Service] Commission can result in
defects not only in the process of selection but also in the
appointments to the public offices which, in turn, will affect F
effectiveness of administration of the State."

It was then noted that:

"The conduct of the Chairman and members of the G
Commission, in discharge of their duties, has to be above
board and beyond censure. The credibility of the institution
of the Public Service Commission is founded upon faith
of the common man on its proper functioning."

81. In this background and in this perspective, this Court H
100 SUPREME COURT REPORTS [2013] 5 S.C.R.

·Adrew a distinction between the exercise of legislative power by
Parliament and the executive power of the Government. It was
held that laying down the qualifications and experience required
for holding the office of Chairperson or member of the Public
Service Commission is a legislative function. This is what this
B Court said:

"Desirability, if any, of providing specific qualification or
experience for appointment as Chairman/members of the
Commission is a function of Parliament."

c 82. However, the necessary guidelines and parameters for
holding such an office are within the executive power of the
State. It was held by this Court:

"The guidelines or parameters, if any, including that of
D · stature, if required to be specified are for the appropriate
Government to frame. This requires expertise in the field,
data study and adoption of the best methodology by the
Government concerned to make appointments to the
Commission on merit, ability and integrity."

E 83. On the "legislative front", this Court found itself quite .
helpless. This Court obviously could not read those
qualifications into·Article 316 of the Constitution which were not
there, nor could it direct Parliament ~o enact a law. All that could
be done (arid which it did) was to draw the attention of
F Parliament to the prevailing situation in the light of "the number
of cases which have been referred to this Court by the
·President of India in terms of Article 317(1) of the Constitution
in recent years." It was also noted that "A large number of
· inquiries are pending before this Court which itself reflects that
G all is not well with the functioning of the Com!illissions."

84. Apart from this Court's inability to read qualifications
into Article 316 of the Constitution, it was submitted by learned
counsel supporting the cause of Mr. Dhanda that this Court
H cannot direct that legislation be enacted on the subject.
STATE OF PUNJAB v. SAUL SABHLOK AND ORS. 101
[MADAN B. LOKUR, J.]
Reference was made to Supreme Court Employees' Welfare A
Assn. v. Union of India, (1989) 4 SCC 187 wherein it was held:

"There can be no doubt that no court can direct a
legislature to enact a particular law. Similarly, when an
executive authority exercises a legislative power by way
8
of subordinate legislation pursuant to the delegated
authority of a legislature, such executive authority cannot
be asked to enact a law which he has been empowered
to do under the delegated legislative authority."

A similar view was expressed in Asif Hameed v. State of C
J & K, 1989 Supp (2) SCC 364. It was held in that decisi'on
that:

"The .Constitution has laid down elaborate procedure for
. the legislature to act thereunder. The legislature is supreme
0
in its own sphere under the Constitution. It is solely for the
legislature to consider as to when and in respect of what
subject-matter, the laws are to be enacted. No directions
in this regard can be issued to the legislature by the
courts."
E
85. In Suresh Seth v. Commissioner, Indore Municipal
Corpn., (2005) 13 SCC 287 this Court referred to Supreme
Court Employees' Welfare Assn.· and State of J&K v. A.R.
Zakki, 1992 Supp (1) SCC 548 and held:
F
"..... this Court cannot issue any direction to the legislature
to make any particular kind of enactment. Under our
constitutional scheme Parliament and Legislative
Assemblies exercise sovereign power to enact laws and
no outside power or authority can issue a direction to G
enact a particular piece of legislation,"

86. There is, therefore, no doubt that this Court can neither
legislate on the subject nor issue any direction to Parliament
or the State Legislature to enact ·a law on the subject.
H
102 SUPREME COURT REPORTS [2013] 5 S.C.R.

A 87. On the "executive front", this Court expressed its
helplessness in framing guidelines or parameters due to its lack
of "expertise in the field, data study and adoption of the best
methodology". Keeping this in mind, the High Court was in error
in framing the guidelines that it did in the absence of any
B expertise in the field, data study or knowledge of the best
methodology for selecting the Chairperson of the Punjab Public
Service Commission.

Options before this Court:

C 88. But, is this Court really helpless, broadly, in the matter
of laying down appropriate guidelines or parameters for the
appointment of a Chairperson or members of the Public
Service Commission? If Mehar Singh Saini is understood in
its correct perspective, the answer to this question would be in
D the negative.

89. First of all, this Court cannot overlook the administrative
imperative. There was and still is a need for the Public Service
Commission to deliver the goods, as it were. In this context,
E the Second Administrative Reform Commission in its 15th
Report looked at the past, present and future of the Public
Service Commission and observed:

"2.5.3. In the early years of Independence, State Public
Service Commissions throughout the country functioned
F well primarily on account of the fact that:

(a) There was objectivity in selection of competent and
experienced people as Chairman and Members of the
Commission. The government treated the Public Service
G Commission as a sacrosanct institution and the Chairman
and Members were either very senior government servants
(drawn usually from the ICS) or academicians of high
standing in their field.

(b) The Commission enjoyed excellent reputation for
H objectivity, transparency and fairplay.

'
STATE OF PUNJAB v. SAUL SABHLOK AND ORS. 103
[MADAN B. LOKUR, J.]
"2.5.4 But in recent years, this Constitutional body has A
suffered extensive loss of reputation in many States, mainly
on account of (a) charges of corruption, favouritism and
nepotism in matters of recruitment and (b) use of archaic
processes and procedures in its functioning which leads
to inordinate delays. For example, the civil services B
examinations conducted by a State Public Service
Commission take a minimum time period of one and half
year to complete. In some cases, it may take even longer.

"2.5.6.6 The Commission is of the view that the intention
behind creation of an autonomous Public Service C
Commission as a Constitutional authority was to create a
body of achievers and ex-administrators who could select
meritorious candidates for recruitment ahd promotion to
various civil service positions under the State Government
with utmost probity and transparency. There is need to take D
steps to ensure that only persons of high standing,
intellectual ability and reputation are selected as Chairman
and Members of the Public Service Commission."

90. In this context, the views of the Law Commission of E
India as contained in its 14th Report, which are at variance with
the views of the Second Administrative Reform Commission
contained in its 15th Report are worth highlighting, one of the
reasons being that the luminaries who assisted the Law
Commission reads like a veritable Who's Who from the legal F
firmament. This is what was said:

"Having regard to the important part played by the Public
Service Commission in the selection of the subordinate
judiciary, we took care to examine as far as possible the
Chairman and some of the members of the Public Service G
Commissions in the various States. We are constrained
to state that the personnel of these Public Service
Commissions in some of the States was not such as could
inspire confidence, from the points of view of either
efficiency or of impartiality. There appears to be little doubt H
104 SUPREME COURT REPORTS [2013] 5 S.C.R.

A that in some of the States appointments to these
Commissions are made not on considerations of merit but .
on grounds of party and political affiliations. The evidence
given by members of the Public Service Commissions in
some of the States does create the feeling that they do
18 not deserve to be in the responsible posts they occupy."

91. Secondly, the constitutional and more important
imperative is that of good governance for the benefit of the
aspirational Indian. For this, an appropriate person should be
selected to fill up the position of a constitutional trustee.
c
92. In the light of the various decisions of this Court
adverted to above, the administrative and constitutional
imperative can be met only if the Government frames guidelines
or parameters for the appointment of the Chairperson and
D members of the Punjab Public Service Commission. That it has
failed to do so does not preclude this Court or any superior
Court from giving a direction to the State Government to
conduct the necessary exercise within a specified period. Only
.because it is left to the State Legislature to consider the
E desirability or otherwise of specifying the qualifications or
experience for the appointment of a person to the position of
Chairperson or member of the Punjab Public Service
Commission, does not imply that this Court cannot direct the
Executive to frame guidelines and set the parameters. This
F Court can certainly issue appropriate directions in this regard,
and in the light of the experience gained over the last several
decades coupled with the views expressed by the Law
Commission, the Second Administrative Reform Commission
and the views expressed by this Court from time to time, it is
G imperative for good governance and better administration to
issue directions to the Executive to frame appropriate
guidelines and parameters based on the indicators mentioned
by this Court. These guidelines can and should be binding on
the State of Punjab till the State Legislature exercises its power.

H

I
STATE OF PUNJAB v. SAUL SABHLOK AND ORS. 105
[MADAN B. LOKUR, J.]
Additional questions framed by the Full Bench: A

93. Learned counsel supporting the appointment of Mr.
Dhanda submitted that the Full Bench could not expand the
scope of the reference made to it by the Division Bench, nor
could it frame additional questions. B

94. Generally speaking, they are right in their contention,
but it also depends on the reference made.

95. The law on the subject has crystallized through a long
line of decisions and it need not be reiterated again and again. C
The decisions include Kesho Nath Khurana v. Union of India,
1981 Supp SCC 38 (The Division Bench ought to have sent
the appeal back to the Single Judge with the answer rendered
by them to the question referred by the Single Judge and left it
to the Single Judge to dispose of the second appeal according D
to law.). Kera/a State Science & Technology Museum v.
Rambal Co., (2006) 6 SCC 258 (It is fairly well settled that when
reference is made on a specific issue either by a learned
Single Judge or Division Bench to a larger Bench i.e. Division
Bench or Full Bench or Constitution Bench, as the case may E
be, the larger Bench cannot adjudicate upon an issue which is
not the question referred to.). T.A. Hameed v. M. Viswanathan,
(2008) 3 sec 243 (Since, only reference was made to the Full
Bench; the Full Bench should have answered the question
referred to it and remitted the matter to the Division Bench for
F
deciding the revision petition on merits.). And more recently,
Saquib Abdul Hameed Nachan v. State of Maharashtra,
(2010) 9 sec 93 (Normally, after answering the reference by
the larger Bench, it is for the Reference Court to decide the
issue on merits on the basis of the answers given by the larger
Bench.). G

96. There is no bar shown whereby a Bench is precluded
from referring the entire case for decision by a larger Bench -
it depends entirely on the reference made. In any event, that
H
106 SUPREME COURT REPORTS [2013] 5 S.C.R.

A issue does not arise in this appeal and so nothing more need
be said on the subject.

97. What was the reference made by the Division Bench
to the Full Bench and did that Bench frame additional
B questions? The answer to this is to be found in the judgment
of the High Court. The reference has not been artistically
drafted, but it reads as follows:

"6. Even though, Article 316 of the Constitution does not
prescribe any particular procedure, having regard to the
c purpose and nature of appointment, it cannot be assumed
that power of appointment need not be regulated by any
procedure. It is undisputed that person to be appointed
must have competence and integrity. Reference may be
made to the judgments of the Hon'ble Supreme Court in
D Rio Dr. Ram Ashray Yadav, Chairman, Bihar Public
Service Commission, (2000) 4 SCC 309, Ram Kumar
Kashyap and Anr. v. Union of India I
and Anr., AIR 2010
SC 1151 and In re Mehar Singh Saini, Chairman, HPSC
and Ors., (201 O) 13 sec 586.
E
7. If it is so, question is how such persons are to be
identified and selected and whether in the present case,
procedure adopted is valid and if not, effect thereof. We
are of the view that these questions need to be considered
by a Bench of three Hon'ble Judges. Accordingly, we refer
F the matter to a Bench of three Hon'ble Judges."

98. On the basis of the submissions made, the Full Bench
reformulated the questions referred to it in the following words:

G "1. Whether the ptesent petition is not mair.itainable as the
questions raised are the concluded questions by the
decisions of the Supreme Court?

2. Whether the present petition is public interest litigation
in a service matter, and hence not maintainable on the
H said ground also?
STATE OF PUNJAB v. SAUL SABHLOK AND ORS. 107
[MADAN B. LOKUR, J.]
3. Whether this Court can issue directions in the nature of A
guidelines for a transparent, fair and objective procedure
to ensure that the persons of impeccable personal integrity,
caliber and qualifications alone are appointed as the
members I Chairman of State Public Service
Commission? B
4. Whether in exercise of power of judicial review, it could
be stated that the decision making process leading to the
appointment of Respondent No. 4 [Mr. Harish Rai Dhanda]
as Chairman of Commission was arbitrary, capricious or
violative of Article 14?" C
99. The reformulation was explained by the Full Bench by
stating that the first two questions were raised on behalf of the
State of Punjab regarding the maintainability of the reference
itself. In my opinion, the first two questions actually touch upon
the maintainability of the writ petition itself. These issues should D
have been decided by the Division Bench and had it answered
the questions in the negative, there would have been no need
to make any ,reference to the Full Bench.
100. Much was sought to-be made by learned counsel for
the writ petitioner that the "matter" (that is the entire matter) was E
referred to the Full Bench. It is difficult to agree that the entire
"matter'' was referred to the Full Bench. Firstly, the word "matter''
must take colour from the context in which it was used, which
is with reference only to the two questions placed before the
Full Bench. Secondly, even the Full Bench did not think that the F
entire matter was referred to it and that is why after answering
the reference the "matter" was remitted to the Division Bench
for disposal in accordance with law.
101. To this extent, learned counsel supporting the cause G
of Mr. Dhanda are right that the Full Bench overstepped its
mandate. But where does this discussion lead us to? The two
questions were fully argued in this Court for the purposes of
obtaining a decision on them, and no suggestion was made
that the decision of the Full Bench on these questions be set
H
108 SUPREME COURT REPORTS [2013] 5 S.C.R.

A aside because of a jurisdictional error and the Division Bench
be asked to decide them quite independently. Therefore, this
issue is only of academic interest so far as this appeal is
concerned notwithstanding the law that a larger Bench should
decide only the questions referred to it. Of course, if a
B subsidiary question logically and unavoidably arises, the larger
Bench cannot be dogmatic and refuse to answer it. A common
sense approach must be taken on such occasions.
102. So fa~ as questions 3 and 4 formulated by the Full
Bench are concerned, I am of the opinion that they merely
C articulate and focus on the issues that wme nq_t quite attractively
phrased by the Division Bench. I am not in agreement thaHhe
Full Bench overstepped its jurisdiction in the reformulation of
the issues before it.
103. It was then submitted that there was really no
D occasion for the Division Bench to make any reference to the
Full Bench of the High Court on the question of framing
guidelines or parameters for the appointment of the
Chairperson of the Punjab Public Service Commission. This .
Court had already laid down the law in Mehar Singh Saini and
E the High Court was merely required to follow it. The argument
puts the issue rather simplistically. The Division Bench was fully
entitled to refer to the Full Bench the applicability of the decision
of this Court to the facts of the case and for further follow up ·
action, if necessary. This argument is mentioned only because
F it was raised and nothing really turns on it, except to the extent
that it is another way of questioning the maintainability of the
writ petition filed in the High Court.
lmpleadment of the State of Haryana by the Full Bench:
G 104. The justification given by the Full Bench for suo motu
impleading the State of Haryana and the Haryana Public
Service Commission is because "issues common in respect
of the States of Punjab and Haryana, were likely to arise." I think
this is hardly a reason for impleadment. The case concerned
H the appointment of the Chairperson of the Punjab Public
STATE OF PUNJAB v. SAUL SABHLOK AND ORS. 109
[MADAN B. LOKUR, J.]
Service Commission and it should have and could have been A
left at that without enlarging the scope of the controversy before
it.
Rroduction of the Chief Minister's advice:
105. Learned counsel for the State of Punjab submitted B
that the High Court could not have directed production of the
advice tendered by the Chief Minister to the Governor. The
basis of this argument is the order dated 1st August 2011
passed by the Full Bench. The relevant portion of the order
· reads as follows:
c
"Mr. Jindal, Addi. Advocate General shall also produce the
record relating to the appointment process of respondent
No.4 [Mr. Dhanda]."
106. The grievance made by learned counsel in this regard
is justified. It need only be pointed out that in State of Punjab D
v. Sodhi Sukhdev Singh, (1961) 2 SCR 371 this Court clearly
held that:
"It is hardly necessary to recall that advice given by the
Cabinet to the Rajpramukh or the Governor is expressly E
saved by Article 163, sub-article (3) of the Constitution;· and
in the case of such advice no further question need to be
considered."
It is not necessary to say anything more on this subject.
Conclusion: F
107. The appointment of the Chairperson of the Punjab
Public Service Commission is an appointment to a
constitutional position and is not a "service matter". A PIL
challenging such an appointment is, therefore, maintainable G
both for the issuance of a writ of quo warrahto and for a writ of
declaration, as the case may be.
108. In a case for the issuance of a writ of declaration.
exercise of the power of judicial review is presently limited to
examining the deliberative process for the appointment not H
110 SUPREME COURT REPORTS [2013) 5 S.C.R.

A meeting the constitutional, functional and institutional
requirements of the institution whose integrity and commitment
needs to be maintained or the appointment for these reasons
not being in public interest.
109. The circumstances of this case leave no room for
B doubt that the notification dated 7th July 2011 appointing Mr.
Harish Rai Dhanda was deservedly quashed by the High Court
since there was no deliberative process worth the name in
making the appointment and also since the constitutional,
functional and institutional requirements of the Punjab Public
C Service Commission were not met.
110. In the view that I have taken, there is a need for a word
of caution to the High Courts. There is a likelihood of
comparable challenges being made by trigger-happy litigants
to appointments made to constitutional positions where no
D eligibility criterion or procedure has been laid down. The High
Courts will do well to be extremely circumspect in even
entertaining such petitions. It is necessary to keep in mind that
sufficient elbow room must be given to the Executive to make
constitutional appointments as long as the constitutional,
E functional and institutional requirements are met and the
appointrnents are in conformity with the indicators given by this
Court from time to time.
111. Given the experience in the making of such
F appointments, there is no doubt that until the State Legislature
enacts an appropriate law, the State of Punjab must step in and
take urgent steps to frame a memorandum of procedure and
administrative guidelines for the selection and appointment of
the Chairperson and members of the Punjab Public Service
G Commission, so that the possibility of arbitrary appointments
is eliminated.
112. The Civil Appeals are disposed of as directed by
Brother Patnaik.
B.B.B. Appeals disposed of.