Devajit Chaliha vs Harendra Nath Baruah and Others

P.K. Goswami, C.J.—In this application under Article 226 of the Constitution of India, the Petitioner states that he obtained the Degree of Bachelor of Science in Electrical Engineering (B. S. E. E.) from the Purdue University, West Lafayette, Indiana (U. S. A.) and thereafter obtained the Degree of Master of Science in Electrical Engineering (M. S. E. E.) from the same University in the year 1952, specializing in High Voltage Engineering. The Petitioner had worked in the United States as well as in the Assam Oil Company before he was appointed as'' an Engineer-in-charge of Erection at the Umtru Hydel Project site in the Electricity Department of the Government of Assam. He was sent on deputation for six months to the Assam Engineering College, Gauthati, as Assistant Professor of Electrical Engineering and he chose to continue in that post. In August, 1960 he was transferred to the Jorhat Engineering College. In 1962 he was transferred again to the Assam Engineering College at Gauhati and was placed in charge of the Electrical Engineering Department there. In November of the same year, he was selected by the Government of India for a Teacher Training Program me in U.S.A. under the U.S. Agency for International Development (T.C.M.) Programme. On return from U. S. A., he joined as a Pro fessor of Electrical Engineering in the Jorhat Engineering College in 1964. By Annexure ''A'' dated 7th June, 1967, he was "allowed to hold, in addition to his own duties, the charge of the cur rent duties of the post of Principal of the same institute for a period of six months or till the post of Principal is filled up by. regular appointment whichever is earlier with effect from 1-6-67". This was necessary because Prof. R. J. Thaker, who was earlier allowed to hold charge of the current duties of the Principal, was released on expiry of the term of his contract service. By Annexure ''B'' dated 18th July, 1968, the Petitioner was "allow ed to hold charge of the current duties of the post of Principal of the same institute in addition to his own duties for a further period till the appointment of the Principal.........

On 5th June, 1968, an advertisement was made in the Assam Gazette (vide Annexure ''C'') by the Assam Public Service Commission, hereinafter called ''the Commission'', inviting applications for the post of the Principal, along with some other posts, prescribing the qualifications etc., for the post. The Petitioner applied for the post in answer to the aforesaid advertisement and he along with three other candidates including the Respondent No. 1 were interviewed for the said post by the Commission on 29th January, 1969. The interview of the Petitioner and the other candidates was held by the Chairman and another Member of the Commission. There was also Sri A.Z. Ahmed, Retired Chief Engineer, present in the interview With the Members as an expert. After the interview, the Commission recommended only one name, that of the Respondent No. 1 for the appointment.

The Petitioner represented to the Education Minister objecting to the nomination and praying for considering his case favourably.'' The Petitioner did not object to the constitution of the Commission or to the Board of interview in this representation dated 18th February, 1969. The Petitioner was informed that "the Government do not find any apparent reason for hot accepting the said nomination of the Assam Public Service Commission". The Petitioner then obtained the present returnable Rule on 23rd May, 1969 challenging the nomination of the Commission on various grounds.

When this Rule was heard by a Division Bench of this Court on 22nd September, 1969, the Petitioner''s counsel submitted that a Division Bench decision of this Court since re ported in ALR (1969) Gau 202 (A. C. Sarkar v. State of Assam) would require reconsideration and that is how this case has come before this Full Bench.

When, however, the matter came up before us for final hearing Mr. S.M. Lahiri, the learned Counsel, clearly submitted that he does not want reconsideration of the aforesaid decision and, according to his submission, the same does not require reconsideration. On the other hand, the learned Counsel submits that he will rely upon this decision in support of his submission which he wants to advance before this Court. In the course of the argument, we indicated to the learned Counsel that it would be perfectly open to him to give us any reasons he chooses to reconsider the aforesaid decision, but he did not make any attempt in that respect. The learned Counsel took us through the decision and we do not find any reason to reconsider the same, which, according to us, is correct.

Mr. Lahiri submits that the Commission has been constituted by the Governor under Article 316(1) of the Constitution. The Governor has also made a Regulation known as "The Assam Public Service Commission Regulations, 1951" under Article 318 of the Constitution. Regulation 4 as amended by the Assam Public Service Commission (Amendment) Regulations, 1968, reads as follows:

The Commission shall consist of a Chairman and two or more Members not exceeding three, as may be determined by the Governor from time to time and shall be appointed by the Governor.

The previous Regulation 4 provided for "one or more Members not exceeding two." Mr. Lahiri submits that the Commission under the amended Regulation was constituted of the Chairman and three other Members and since the interview was conducted only by the Chairman and another Member, in absence of the remaining two Members, the recommendation of only two Members was not the recommendation of the Commission and the same is invalid and without juice relies upon'' A.C. Sarkar''s case, diction. Secondly, he submits that ALR (1969) gau 202 (supra) to establish that the Commission with the minimum number, namely the Chairman and the two Members provided for; under the'' Regulation must participate in the interview in order to confer the status of recommendation of the Commission under the law. It should be observed that this point in this form was not taken in the petition at the time of obtaining the Rule. Even so, we have allowed the learned Counsel to address us on the two points, notwithstanding the objection of the learned Senior Government Advocate.

This Court granted a certificate to appeal to the Supreme Court in A.C. Sarkar''s case ALR (1969) gau 202 (supra) and the Supreme Court dismissed the appeals by its decision in ALR 1970 SC 8 (A.C. Sarkar v. State of Assam). The Supreme Court observed'' that "the Appellants questioned the composition of the Public Service Commission", but did not deal with the submission, while dismissing the appeals.

The principal point, there fore, that calls for a decision is whether in this particular case the interview being conducted by the Chairman and a Member of the Comixussion, without the two other remaining Members, is invalid and on that account cannot be said to be a recommendation of the Commission.

The constitution of the Commission as such has not been challenged by the learned Counsel and indeed it cannot be challenged in view of the submission of the learned Counsel that our earlier decision (A. C. Sarkar''s case) ALR 1969 gau 202 does not require any reconsideration and on the basis of which he seeks to make out a case. Further, the Petitioner does not deny that the nomination of the Respondent No. 1 was made by the Commission. His whole objection as can be seen from Paragraph 28 of his application is that the Commission made recommendation "pursuant to the aforesaid illegal interview dated 29-1-69 for its acceptance by the Government of Assam." This objection is devoid of substance. Mr. Lahiri submits that in A.C. Sarkar''s case, the Commission was manned by the Chairman and another Member, but the vacancy on the retirement of the Third Member was not filled up. Since, however, under the Regulation then in force, the minimum number was two, namely the Chairman and another Member, the interview conducted by two members was unexceptionable. The learned Counsel submits that in the instant case, the interview, being conducted by the Chairman and another Member when the minimum number under the amended Regulation is three, is absolutely invalid and without jurisdiction. This argument however does not bear scrutiny when we take into consideration Articles 316 (1A) and 317(2) of the Constitution. Omitting the portion that is not necessary for our purpose, Articles 316 (1A) and 317(2) read as follows:

If the office of the Chairman of the Commission becomes vacant or if any Chairman is by reason of absence or for any other reason unable to perform the duties of his office, those duties shall, until some person appointed under Clause (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... and the Governor of the State in the case of a State Commission, may appoint for the purpose.

Article 317 (2):

....the Governor, in the case of a State Commission, may suspend from office the Chairman or any other member of the Commission in respect of whom a reference has been made to the Supreme Court under Clause (1) until the President has passed orders on receipt of the report of the Supreme Court on such reference.

The above are the contingencies in which the Chairman of the Commission may become unavailable. The Commission shall be continued to function with the remaining members, one of whom will be appointed by the Governor to exercise the functions of the Chairman under Article 316 (1A) during the period. The Commission does not come to an end the moment the Chairman becomes, unavailable. This would go to show that the Commission can function and carry out Its various duties even though there may be a vacancy on a certain member or members becoming unavailable either permanently or temporarily. It is understandable that some time, although not inordinately long time, may be taken by the Governor in filling up the vacancies. Besides, conducting of an interview for recommending certain candidates for appointment on the ground of suitability, need not require the presence of all the members of the Commission. Any one or two members may be entrusted with the duty in absence of any rules to the contrary. This is an internal working of the Commission which is a highly responsible body and can be trusted to discharge their duties with due regard to high propriety and fairness to all concerned. We are, therefore, clearly of opinion that the interview conducted by the Chairman and another Member in the case of the Petitioner is not without jurisdiction, nor is the recommendation as a result of that interview can be said to be invalid under the law. We have not been shown any rules which debar the Commission to work in compartments while interviewing candidates for appointment.

In the earlier case (A.C. Sarkar''s case) ALR 1969 gau 202 also we took the same view as will appear from the following passage at Para 12:

The Governor at a particular time may not think it fit to fill in the vacancy and yet ''the Commission which is existing with the Chairman and another member does not cease to be a Commission under Article 316(1) read with 318 (a) and Regulation 4. The Commission which interviewed the Petitioners was perfectly competent under the Jaw to exercise its functions.

We may also in this context notice that Article 316 (1A) provides for the contingency when the office of the Chairman of the Commission becomes vacant. This would go to show that there is no illegality per se of the Commission continuing to function with one member less under certain circumstances. Article 317(2) also makes provision for another contingency under some other specified circumstances.

We are, therefore, unable to accede to the argument that A.C. Sarkar''s case supports the contention of the learned Counsel.

Mr. Lahiri relied upon the decision in The United Commercial Bank Ltd. Vs. Their Workmen, . This was a case with regard to the constitution of a tribunal of three members u/s 7 of the Industrial Disputes Act, whereas the award was made by two of them. The Supreme Court held that the award by two members in absence of adjudication by all the three constituting the tribunal was without jurisdiction and void. The Court came to this conclusion after examining the provisions of the Industrial Disputes Act and made a reference to Section 5(4) of the Act where -a provision has been made with regard to a Board of Conciliation enabling it to act "notwithstanding the absence of the chairman or any of its members or any vacancy in its number." This decision is therefore of no assistance to the learned Counsel.

Another decision cited is A.K. Kraipak and Others Vs. Union of India (UOI) and Others, . The Court held in this case that the decision of the Selection Board was vitiated on account of bias and therefore the final recommendations made on the selection made by the Selection Board were also vitiated and the Court set aside the impugned selections. This decision can hardly come to the assistance of the learned Counsel.

The learned Counsel also referred to Kishorilal Bahati Vs. The State, which was a case under the Preventive Detention Act, 1950. The order of detention was quashed as the detenu''s case was not considered by all the three members of the Advisory Board. This was a matter where the fundamental right of the detent as guaranteed under Article 21 of the Constitution has been held to be Infringed. This case Is not at all applicable to the present controversy.

Mr. Lahiri also referred to Sheik Hussain and Sons Vs. State of Andhra Pradesh and Others, . This was a case under the Motor Vehicles Act with regard to an appeal before the State Transport" Authority constituted and composed as provided u/s 44(2) of the Act. The Court held that a tribunal, whose composition is not in accordance with the statutory requirement, has no jurisdiction to decide a question arising under the statute. This decision is also of no assistance in the present controversy.

Action of a judicial or quasi-judicial authority affecting the rights of parties is altogether on a different place from that of the Commission in the matter of advising upon suitability of candidates for appointment in the service of the State. This is .particularly so when consultation under Article 320(3) of the Constitution is not even mandatory.

In the view we have taken on the merits, it is not necessary to consider the preliminary objection of the learned Senior Government Advocate to the maintainability of the application on the ground of it being premature and also because the Petitioner has no legal right to move this Court under Article 226 of the Constitution.

In the result, the application fails and is dismissed. We will, however, make no order as to.costs.

M.C. Pathak, J.

I agree.

B.N. Sarma, J.

I agree.