Sanjay Kumar and Others vs The Bihar Public Service Commission and Others

Aftab Alam, J.—This writ petition which appeared no more than an expression of resentment and pique by some of the unsuccessful candidates, brings to light some disturbing facts regarding the functioning of the Bihar Public Service Commission (''the Commission'' for short). The Petitioners were among the two lacs nine thousand candidates who took the 37th combined Competition Civil Service Examination [Conducted by the Commission. They failed to qualify on the basis of the written examination although as claimed, they had done ''extremely well''. On enquiry they discovered that contrary to the past practice there had been a centralised evaluation of the answer book of this examination. This is to say that in the past the answer books were despatched to the examiners who invariably used to be persons outside the State of Bihar; further, according to the Petitioners, the selection of the examiners was made from a Hand Book compiled by the Association of Indian Universities giving the names and addresses of teachers working in all the constituent colleges in the country. This practice was followed in all the past examinations up to 36th examination. All this was however, changed for the 37th examination; this time instead of sending the answers books to the examiners (outside the State) the examiners were summoned to a central place where all the answer books of the different subject were examined and evaluated at the same time. Some of the examiners, being local teachers were well known to a number of candidates and it should also be assumed that they (the examiners) too would know several candidates. The Petitioners further alleged that some of the persons appointed as examiners were not qualified and competent to be entrusted with the task of evaluating the answer books of this examination; the manner in which the answer books were examined was also said to be far from satisfactory.

The grounds on which the Petitioners assail the evaluation of the answer book of the 37th examination can be summarised as follows:

(i) The centralised evaluation for the 37th examination was not the result of any decision by the Commission (consisting of a Chairman and the other members) but the departure from the past practice was made wholly at the instance of the Chairman alone (vide paragraphs 10 and 11 of the writ petition).

(ii) The selection and appointment of the examiners were made by the Chairman alone and not by the Commission (vide paragraph 12 of the writ petition).

(iii) The centralised system of evaluation was bad for it led to the loss of much of the confidentiality and inaccessibility of the evaluation process; the Petitioners gave the names of some persons (vide paragraph 11 of the writ petition) whose appointment as examiners for this examination, according to the Petitioners, became commonly known to the candidates and who being local persons could be amenable to various kinds of influences.

(iv) The persons appointed as examiners were not qualified for various reasons to aminer and evaluate the answer books of this examination (vide paragraphs 12 and 13 of the writ petition).

(v) There were other irregularities in the examination of the answer books (vide paragraphs 14, 15 and 18 of the writ petition).

As is evident, the last three grounds of attack as enumerated above relate to the merits of (a) the decision to hold centralised evaluation, (b) the selection and appointment of the examiners and (c) the social evaluation of'' the answer books. These grounds also Involve questions of facts.

Mr. Tara Kant Jha, learned Counsel for the Petitioners, not failing to realise the strength (and the weakness) of his case made only a passing reference to these three grounds. He, however, laid great stress on the first two grounds and questioned the competence of the Chairman to take, on his own, fundamental decisions relating to the examinations, the conduct of which was the constitutional duty of the-Commission. Mr. Jha, submitted that in the conduct of the examination, the Chairman had presumed to act as if he alone constituted the Commission and this aberration had completely vitiated the 37th examination within the meaning of Article 320(1) of the Constitution of India. Article 320(1) reads as follows:

It shall be the duty of the Union and the State Public Service Commission to1 conduct examinations for appointment to the services of the Union and services of the State respectively.

He submitted that in view of such clear, mandate by the Constitution, no single Member of the Commission, including the Chairman could take upon himself the conduct of an examination under Article 320(1). He further submitted that the decision regarding centralised evaluation and the selection and appointment of examiners were so fundamentally related to the conduct of the examination that their enforcement by the Chairman on his own without the prior sanction by the Commission was clearly an infraction of Article 320(1).

On these submissions Mr. Jha made a prayer that the list of qualified candidates prepared on the basis of the impugned evaluation be set aside and a direction be issued to the Commission to prepare fresh list of qualified candidates after getting the answer books reexamined and reevaluated by examiners from outside the State.

A counter affidavit has been filed on behalf of the Commission. There is an intervention petition in support of the application, and there is another in opposition to it. The opposing affidavit is on behalf of two persons who describe themselves as the "Secretary and the President of 37th Combined Competitive (B.P.S.C.) Examinations Successful Candidates Association" (I find it difficult to think of a more transitory and fantastic association of persons). In addition, there is a lot of supplementary, rejoinder and reply affidavits on behalf of all concerned. It is not necessary to make a detailed note of all these affidavits and their contents shall be taken note of as and when required. At this stage it is sufficient to note that the intervention affidavit does not take any effort to meet the first, two grounds of the Petitioners'' challenge. It seeks to defend the selection of the examiners and the evaluation process and states that the. Petitioners are not entitled to any relief for various other reasons.

The counter affidavit does little to contradict the statements regarding the Petitioners'' main challenge to the conduct of the 37th examination. In fact it provides further materials to support the Petitioners'' submissions, so much so that Mr. Jha argued the point more on the basis of the statements made in the counter affidavit rather than his own petition. The counter affidavit (vide paragraph 8) that "the Chairman as the head of the Commission was vested and exercised administrative control over the Commission and is incharge of the administrative duties as Head of the Commission". It is further averred (in paragraph 12) "that as a part of administrative duties the Chairman has been appointing Paper Setters and Head Examiners who in their turn appoint Co-examiners and this is not being placed before the Commission and the Commission as a body never does it."

It was also asserted that no Member of the Commission was ever consulted on these matters and none of the Members, save one, ever raised any protest or objection in this regard. Further, without giving any details, it was stated that the Chairman assigned some work to each Member of the Commission and that "in all matters the senior-most Members of the Commission assisted him (the Chairman) in discharge of duties. "It is admitted that prior to the 37th examination the answer books were sent outside the State for evaluation. But for a number of reasons (discussed in paragraph 15) it was no longer posssible to follow this practice and hence the Chairman after informally consulting the senior and experienced Members of the Commission decided to introduce the system of centralised evaluation with their consent. The counter affidavit then defended the selection of the examiners. For the sake of confidentiality the counter affidavit declined either to admit or deny the names of the Examiners as given in the writ petition but a complete list of Examiners was submitted separately for the perusal of the Court and the same is on the record of this case. It is stated that the Examiners were of requisite standard. All allegations regarding any irregularity in the selection of Examiners or in the evaluation process is strongly controverted. The former counter affidavit also sought (vide paragraph 35) to draw a distinction between such matters as selection of Paper Setters, Examiners and Printers etc. and the decisions to introduce the centralised evaluation scheme. The former, was handled exclusively by the Chairman in order to maintain confidentiality but the latter decision was arrived at after discussion, albeit informal with the senior and experienced Members of the Commission" who also gave their consent to the introduction of the scheme. It is finally stated that "the result of evaluation has been placed before the Commission on 23.1.1992 and approved by the whole body" thus "the subsequent approval by the Commission of the result of the centralised evaluation at least puts a seal of the Commission to it."

So far as the introduction of centralised evaluation is concerned, the reasons assigned for the same are indeed good and valid and one cannot find any fault with them The question, however, is whether a change in policy of such a nature required a prior sanction and decision by the Commission or it could be introduced by the Chairman alter obtaining the advice of some senior or experienced members.

Similarly on the question of selection and appointment of the Examiners, the real ground of attack that remains available to the Petitioners is that the appointment of the Examiners was not made by the Commission but the Chairman on his own. The other objections in that regard lose practically all force in view of the definite and clear assertions made in the counter-affidavit.

This matter can be viewed from another angle and it is this. Save and except in extreme cases where unreasonableness is manifest, the Petitioners, who were candidates in the examination, cannot be allowed to raise any objections regarding the qualifications of the Examiners. In case the Examiners were duly appointed by the Commission this Court would be normally loath to undertake any investigation regarding their fitness and qualification to be appointed as Examiners. The reluctance would be greater if such objections are raised at the instance of candidates who were unsuccessful in the examination. After all, the Commission is a better judge of the qualification and fitness of a person whom it appoints as an Examiner.

Seen thus the last three grounds of attack, to the both examination (as enumerated at serial Nos. III, IV and V in paragraph 2 hereinabove) are found to be without any substance and I do not propose to discuss them any further.

I proceed to consider the question as to how far did the Chairman assume the conduct of the examination in his own hands and what would be the legal effect of the Chairman taking on his own some basic decisions regarding the conduct of the examination.

In this regard the contents of the counter affidavit and the statements made at the bar give a distinct impression that the conduct of the examination has been a one man affair in the hands of the Chairman and the Commission''s stamp was used at the end to put its seal on the result of the examination.

In fact going through the contents of the counter affidavit, I repeatedly wondered whether the counter affidavit was prepared and filed at the behest of the1 Commission or at the instance of the Chairman alone.

From the pleadings pf the parties and the statements made at the bar, the following emerge as the admitted position:

(i) Since its inception the Commission never framed any rules or guidelines, either statutory or administrative for carrying out its various duties and functions under the Constitution; no such rules or guidelines were framed either for the conduct of examinations under Article 320(1) of the Constitution.

(ii) There is not even a formal resolution by the Commission authorising the Chairman to act on behalf of the Commission in the conduct of the examination with a provision for a post facto ratification of the Chairman''s actions in this regard.

(iii) In the absence of any rules, guidelines or a formal resolution as aforesaid, the conduct of the examination remained all along in the hands of the successive Chairman of the Commission.

(iv) For the 37th examination, as to the past, the selection of paper setters, examiners and printers etc., was made by the Chairman alone, professedly to order to maintain confidentiality.

(v) Basic and fundamental decisions relating to the conduct of examination were also taken by the Chairman usually after discussion with other Members of the Commission.

(vi) The list of qualified candidates, to be called for interview, on the basis of the written examination and the final result of the selected candidates were published only after these were placed before the Commission and were approved by it. This practice was followed in the 37th examination also and the list of the qualified candidates was approved by the Commission on 23.1.1992.

(vii) In the conduct of the 37th examination, therefore, the Chairman had not made any departure from the past practice followed by the previous Chairman and had only followed the earlier practice of his precedessors. None of the Members of the Commission, saving one, had raised any protest or objection to the manner in which the 37th Examination was conducted.

As regards the facts stated at serial Nos. (iii), (iv) and (v), Mr. Jha submitted that the Chairman in conducting the examination which was required by the Constitution to be conducted by the Commission presumed that he alone constituted the Commission. This was a grave error on his part and amounted to an infraction of the constitutional provisions. Mr. Jha said that no single Member, including the Chairman was, the Commission. To establish this proposition Mr. Jha referred to Sub-articles (1) and (1A) of Article 316 of the Constitution which reads as follows:

316(1) The Chairman and other Members of a Public Service Commission shall be appointed, in the case of the Union Commission or a Joint Commission, by 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 of every Public Service Commission shall be persons who at the dates of their appointments have held office for atleast 10 years either under the Government of India or under the Government of a State and in computing the said period of 10 years any period before the commencement of this Constitution during which a person has held offices 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 absence or for any other reason unable to perform the duties of his office, these duties shall, until some person appoints 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, and the Governor of the State in the case of a State Commission, may appoint for the purpose.

Mr. Jha also referred to Regulation 3(1) of the Bihar Public Service Commission (Conditions of Service) Regulations, 1960 framed by the Governor of Bihar under Article 318 of the Constitution. Regulation 3(1) reads as follows:

3(1) The Commission shall consist of Chairman and ten other members:

Provided that in the case of absence of one or more members on leave or otherwise, the remaining Member or Members, as the case may be, shall constitute the Commission.

Mr. B.C. Ghosh, learned Counsel appearing for the Commission did not resist the obvious and, therefore, it is not necessary here to go into the details of the argument advanced by Mr. Jha in this regard and it is to be accepted as a basic fact that the Chairman alone does not constitute the Commission which consists of a Chairman and ten other Members.

This being the position Mr. Jha relied upon the Supreme Court decision in the case of S.S. Dhanoa Vs. Union of India and others, . In para 15 of the judgment it is said that "it is further an acknowledged rule of transacting business in a multi-member body that when there is no express provision to the contrary, the business has to be carried on unanimously. The rule to the contrary such as the decision by majority, has to be laid down specifically by spelling out the kind of majority, whether simple, special, of all the members present and voting etc." Mr. Jha relied particularly on paras 15 and 21 of this judgment.

Mr. Jha also relied on the following observation from the decision of the Supreme Court in the case of Delhi Transport Corporation Vs. D.T.C. Mazdoor Congress and Others, :

It is inadvisable to depend on the good sense of the individuals, however high placed they may be. It is all the more unproper and undesirable to expose the precious rights like the right of life, liberty and property to the vagaries of the individual whims and fancies. It is trite to say that the individuals are not and do not becomes wise because they occupy high seats of powers, and good sense, circumspection and fairness does not go with the post however high they may be.

Mr. Jha said that in the present case both the Chairman (who assumed the powers of the Commission) and the Commission (which abdicated its powers in favour of the Chairman) had been acting contrary to the observations Of the Supreme Court.

As regards the approval of the list of the qualified candidates by the Commission on 23.1.1992 Mr. Jha contended that the examination itself being completely vitiated it could not be saved or sanctified by a post facto ratification by the Commission. In support of this contention he relied upon the decision reported in AIR 1989 S.C. 1852 (paras 21, 22, 23, 28 and 29.).

Mr. Jha further submitted that the Constitution mandated the Commission to conduct the examination. There was also no provision under which the Commission could delegate its duties and power to the Chairman or to any individual Member. In the circumstances, Mr. Jha argued, the Commission was legally obliged to conduct the examination as a body and the Chairman could not even be deemed as a delegatee whose actions could be validly ratified later on by the Commission. Reliance was placed on the decision reported in State of Uttar Pradesh and Others Vs. Maharaja Dharmander Prasad Singh and Others, .

These are all the submission made by Mr. Jha in support of the petition] Before proceeding to examine the submissions advanced by the Respondents hi defence of the examination, it is necessary to take note of two stands taked by Mr. Jha First, in reply to question from the Court whether any prejudice had been caused to the Petitioners or the qualified candidates had somehow been able to get any undue and unjust favour. Mr. Jha replied, that the examination being void ab initio and non est in the eye of law, it was not required of him to plead and prove any prejudice that might have been caused to the Petitioners or any undue and unjust favour that might have accrued to the qualified candidates.

The second stand of Mr. Jha required to be noted was that though maintaining that the examination has been completely vitiated and was void ah initio yet he did not ask for the cancellation of the entire in amination but only prayed for a re-evalution of the answer books by Examiners from outside the State. Mr. Jha said that he made this limited prayer in the ''larger interest''. The significance of this stand is this. In case the appointment of Examiners was bad for the reason that they were appointed not by the Commission but by the Chairman, then equally bad were the appointment of paper setters, printers etc. who also were appointed by the Chairman alone. Yet Mr. Jha agreed that at least a part of the examination can and should be saved in "the larger interest".

Keeping these in mind now a look at the case of the Respondents.

Mr. Ghosh, learned Counsel appearing for the Commission first sought to justify the non-existence of any rules for the transaction of business by the Commission and for carrying out its different constitutional duties and functions. Learned Counsel pointed out that the Constitution of India while creating different institutions, bodies and authorities had also provisions for these institutions, bodies or authorities to make rule for the conduct of their business. The only exception, however, was the Public Service Commission to which no such power was given to make rules relating to transaction of its business. With reference to Articles 77(3) (relating to rules for conduct of business of Government of India), 118 (relating to rules for conduct of business of each house of Parliament), 145 (relating to practice and procedure of the Supreme Court), 166 (relating to rules for conduct of business of the State Government), 206 (relating to rules for conduct of business of the Legislature of a State), 255 (in relation to the High Court) and some other similar Articles, Mr. Ghosh submitted that there was no comparable provision in chapter 2 of part (XIV) of the Constitution dealing with Public Service Commission. He Stated that the only rules making powers were those contained in Articles 318 and the proviso to Article 320. None of these gave power to frame rules for the transaction of business of the Commission. In view of this, he submitted that the Commission was quite helpless in the matter and it was not legally possible for the Chairman to frame the rules like other constitutional agencies as any such exercise would be without any sanction in law.

I am unable to understand this contention. In the absence of any rule making power (conferred by the Constitution all that can be said is that the rules framed by the Commission will not be statutory in nature. The absence of any rule making power under the Constitution surely does not prohibit the Commission from framing rules, norms or guidelines for the transaction of its business and to carry out its different constitutional duties and functions. Such rules will be operational and binding irrespective of the fact that they may not be statutory but only administrative in nature provided of course they satisfy the tests of fairness and reasonableness. These will be highly useful in providing the much needed guidelines in the functioning of the Commission and shall go a long way in saving it from any controversies of the present kind.

In fact, I find it difficult to understand, how the Commission has been able to discharge its duties in the absence of such norms and guidelines. In the case of a constitutional agency consisting of more than one person, it is inevitable that there would be, at times, some differences of opinion. I do not know how these differences are resolved in the absence of any rules in this regard. I cannot imagine that for all these years (more, than four decades) all the basic decisions in the Commission were taken unanimously. Such an unfailing unanimity over such a long period can be achieved only either by excluding the Members from the decision making process or by the Members surrendering their own discretion in favour of the Chairman. Neither of the two course is very happy situation and the framers of the Constitution certainly did not envisage the Commission, consisting of more than one Member to function in such a manner.

Mr Ghosh then contended that the office of the Chairman was different from that of an ordinary Member of the Commission. In support of this proposition, he quoted various dictionaries and also relied upon a Supreme Court decision in the case of State of Mysore Vs. R.V. Bidap, . I am unable to appreciate the application of this proposition to the controversy involved in this case. The Chairman may be and indeed is, different from a Member of the Commission. He may shoulder additional responsibilities and may carry additional powers. Notwithstanding this, the Chairman alone is not the Commission and the question for determination here is whether the Chairman alone can act as the Commission and for the Commission. The second proposition submitted by Mr. Ghosh thus does not advance the case of the Respondents.

Mr. Ghosh then took up the point that the Chairman was legally competent and justified in handling the conduct of the examination by himself. For this Mr. Ghosh devised an ingenious argument which consisted of two limbs. The first line of the argument was that the conduct of an examination under Article 320(1) of the Constitution was ah administrative function and the second limb of the argument was that all the administrative powers of the Commission were vested in the Chairman.

Mr. Ghosh agrued that the Constitution had evolved three different functions to be performed by the different agencies and authorities created by the Constitution. These were (i) legislative, (ii) judicial which included quasi-judicial functions also; and (iii) administrative or executive. Mr. Ghosh cited authorities including S.A. de Smith to contend that the functions of public authorities may be roughly classified as:

(i) Legislative,

(ii) Administrative (or executive),

(iii) Judicial or quasi judicial, and

(iv) Ministerial

He further argued that the conduct of an examination under Article 320(1) was neither legislative nor judicial or quasi judicial and could be classified only as an administrative function.

He then took us to Regulation 8 of the Bihar Public Service Commission (Condition of Service) Regulations, 1960 framed by the Governor under Article 318 of the Constitution. Regulation 8 reads as follows:

When the Chairman is absent on leave or otherwise, the senior most member may hold current charge of the administrative duties of the Chairman and be allowed a pay of Rs. 800/-per month during such period.

From this, it is sought to be culled out that the Chairman has to perform some administrative duties and in him alone vest the administrative powers and function of the Commission which in his absence can be exercised by the seniormost Member. Having thus made the Chairman the repository of all the administrative powers and functions of the Commission on the basis of the above quoted Regulation 8. I became easy to link up the two limbs of the argument and to suggest that the Chairman was empowered to carry out all the functions and duties of the Commission which were of an administrative nature.

The submission to my mind is riddled with fallacy. Regulation 8 does not vest the Chairman with, powers to carry out all the duties and functions assigned to the Commission which are of an administrative nature. It merely says that the internal administration of the Commission shall vest in the Chairman who shall be its office head. To read into Regulation 8 what is suggested by Mr. Ghosh will not only make the offices of the other Members of the Commission totally redundant but will also render meaningless several articles of the Constitution.

I also do not know how far it is correct to argue that all the functions of all the constitutional agencies and authorities must be covered by the classification of functions into legislative, judicial and administrative and that no function can go beyond this classification. I wonder if the functions of the Election Commission, the Attorney General, the Comptroller and Auditor General and the Advocate General can be said to be covered by this classification in the strict sense. In any event the conduct of examination is one of the primary functions of the Commission; some to say its raison d''etre and I am of the firm opinion that this constitutional duty of the Commission could not be taken over by the Chairman personally on the basis of Regulation 8. For all these reason, I find no substance in the submission of Mr. Ghosh that on the strength of Regulation 8, the Chairman could validly and justifiably-conduct the examination on his own and I hereby reject the same.

It was then argued that it was only in order to maintain confidentiality that the selection and appointment of paper setters, Examiners and printers etc. were made by the Chairman exclusively. I do not understand this submission either. Who will decide, whether the Commission, or the Chairman that confidentiality demands that these appointments should be left in the hands of the Chairman alone? Is there such a decision by the Commission? Further, to my mind this insinuates that the other Members of the Commission are incapable of keeping the trust and the confidence of their office. If a person cannot keep his official secrets then he is apparently not fit to hold the responsible position of the Member of the Commission. However, when a person is duly appointed as a Member of the Commission by the constitutional authorities after following the constitutional procedure it has to be prima facie, assumed that he is fit to hold the office and to keep the confidences and secrets of the office which is usually the normal demand of any responsible position. I gm of the definite opinion that to exclude the Members of the Commission from basic decisions regarding the conduct of examination on this kind of a plea is prima facie unreasonable.

This brings me to the question of appointment of Co-examiners. The counter affidavit does not give any details regarding the respective functions of the Head Examiner and the Co-examiners. Nevertheless it states in para 12:

That as a part of administrative duties the Chairman has been appointing paper setters and Head Examiners who in their turn appoint Co-examiners and then in para 33:

Answer books are mostly examined by the Co-examiners under the guidance of Head Examiners. Co-examiners are not necessarily of University Professors rank.

It is thus clear that the Co-examiners are not doing any secretarial work but are engaged in the actual evaluation of answer books. And yet they are appointed neither by the Commission nor by the Chairman but by persons (Head Examiners) who are total outsiders to the Commission. This procedure doe not have any prior sanction by the Commission, but is being followed at the instance of the Chairman alone. This makes it further indefensible.

It was then submitted that before taking the basic decisions including the one to introduce centralised evaluation scheme the Chairman discussed the matter with the senior and experienced Members of the Commission. In the words of Mr. Ghosh "the Chairman of the Commission who was new to the job had before taking the decision, consulted most of the senior Members of the Commission who were Members of the Commission from before and were competent to advice the Chairman in the matter."

This also, to my mind betrays a misconception regarding the role of the Members. Under the scheme of the Constitution the Members alongwith the Chairman constitute the Commission. The members are not there as advisors and consultants whom the Chairman may consult or from whom he may take advice before taking decisions. The process of decision making will be entirely different in the two situations and I wonder how the Members and the Chairman of the Commission have failed to realise this.

Mr. Ghosh finally argued that in the conduct of the 37th examination the Chairman had merely followed the practice which was prevailing in the Commission from the past; this left the matters regarding the details of the examinations in the hands of the Chairman and it was only the result of the examination which was placed before the Commission for its approval. Mr. Ghosh also said that even assuming, though not conceding, that there were some irregularities or lacunae in the conduct of the examination, the same were rectified and ratified when the Commission on 23.1.92 approved the list of the qualified candidates prepared on the basis of the written examination. He forcefully argued that it was quite erroneous to describe the conduct of the examination as void ab initio. He cited authorities setting forth the distinction between a void procedure and an irregular and voidable procedure. He contended that the procedure adopted for the 37th examination could be, at worst, described as irregular and all the alleged irregularities from which the examination might have suffered initially were wiped clean when the Commission as a body approved the list of the qualified candidates.

As noted earlier, Mr. Jha has submitted that there was no provision under which the Commission could delegate its duty to conduct the examination to the Chairman and hence the conduct of the examination by the Chairman was without any authority in law and therefore, void ab initio. It thus followed that the examination could not be saved by any subsequent ratification by the Commission. In support of his contention he has relied upon the case reported in Marathwada University Vs. Seshrao Balwant Rao Chavan, . In the face of the law laid down by the Supreme Court in this judgment, it is indeed true that no plea of delegation and post facto ratification can be sustained in defence of the examination. In the aforementioned judgment the Supreme Court explained the law regarding delegation and ratification as follows:

It is a, settled principle that when the Act prescribes a particular body to exercise a power, it must be exercised only by that body. It cannot be exercised by others unless it is delegated. The law must also provide for such delegation. Halsbury''s Laws of England (Vol. I, 11th Ed. Page 32) summarises these principles as follows:

Sub-delegation of powers. - In accordance with the maxim delegatus non potest delegare, a statutory power must be exercised only by the body or officer in whom it had been confided, unless sub-delegation of power has been authonsed by express words or necessary implication. There is a strong presumption against construing a grant of legislative, judicial or disciplinary power as impliedly authorising subdelegation; and the same may be said of any power to the exercise of which the designated body should address its own mind.

Then on the question of ratification this is what the Supreme Court has said:

These principles of ratification apparently do not have any application with regard to exercise of powers conferred under statutory provisions. The statutory authority cannot travel beyond the powers conferred and any action without any power has no legal validity. It is ab initio void and cannot be ratified.

It is, thus, futile to try to defend the 37th examination on the plea of implied delegation and post facto ratification.

I, however, see the whole matter from a different point of view. The question of delegation and post facto ratification would arise only if the conduct of the 37th examination is seen in isolation. But it has come on record that the present Chairman was only following the practice and procedure which had been prevalent in the Commission for the conduct of examination. There was nothing new introduced by him in the manner of the conduct of the examination and the 37th examination was also conducted in the same manner as the earlier examinations. I may here clarify that on the face of it the 37th examination might have appeared slightly different from the past examinations (Central evaluation scheme being introduced for the first time) but on the basic level it only followed the past pattern as, like the past examinations, decisions were taken by the Chairman and only the result was presented before the Commission for its approval. It is evident from the record that since the inception of Commission the decisions regarding the conduct of the examination were left in the hands of the Chairman and it was the result (in the first stage of the qualified candidates and in the final stage of the selected candidates) which was placed before the Commission for its approval; in this process there was no departure so far as the examination in question is concerned, that is to say the decisions were taken by the Chairman and the list of the qualified candidates was placed before the Commission for its approval.

As I see the events, the Commission at its inception went ahead with the holding of examination before it had framed any rules regarding the conduct of the examination. In the process, major and substantial role regarding taking of decisions was left in hands of the Chairman. The Commission to frame any formal rules in this regard led to the repetition of the same mode of examination over the years. With the passage of years this process crystalised into an accepted practice by the Commission for the conduct of examination. This is also evident from the fact that over the years no Member ever objected to the conduct of examination in this manner. The same practice was also followed for the 37th examination and this time also no Member, save one, raised any objection or made any protest regarding the manner and mode in which the decisions regarding the conduct of the examination were being taken by the Chairman. On a true interpretation of facts it must, therefore, be held that the Commission had adopted this as the mode of conduct of examinations and the Chairman only followed this mode adopted by the Commission for holding the 37th examinations. One can find fault with the procedure adopted by the Commission for the conduct of examinations and I have done so. Nevertheless, the examinations, including the 37th Examination, must be held to have been conducted in a manner accepted by the Commission and hence these examinations were held by the Commission and not by the Chairman on behalf of the Commission as alleged by the Petitioners in this case. The examination having been held by the Commission cannot be said to be ab initio void and accordingly the result of this examination does not warrant any interference by this Court.

I am fortified in my view by a recent Supreme Court decision in the case of Ashok alias Sumonna Gowda and Anr. v. State of Karnataka AIR 1992 S.C. 30. In this case the Supreme Court found that allotment of 1/3rd of total marks for viva voce was excessive and arbitrary and the relevant rule was accordingly held to be bad. Yet, the Supreme Court declined to interfere with the selection on one of the grounds that "further the selection were made according to the rules of 1973 and this practice is being consistently followed for the last 17 years and there is no allegations of any malafides in the matter of the impugned selection. (emphasis added)

I accordingly find and hold that though the manner in which the 37th examination was held was unsatisfactory and left much to be desired yet it was an examination held by the Commission.

For this reason alone, I find it unwarranted and unjustified to interfere with the results and I find myself unable to give the relief as prayed for by the Petitioners.

I further" find that in this case there is no indication of any prejudice having been caused to the Petitioners and any unjust favour accruing to the qualified candidates. Any interference with the result, therefore, will lead to an irreparable loss] and injury to the qualified candidates and would be wholly inequitable and unjust to them for they would be made to surfer for no fault on their part.

Further as has been shown earlier, Mr. Jha though characterising this examination as void ab initio wished that aleast a part of it should be saved in the larger interest. I feel that no interference is required foe that very reason.

To say that I do not find the Petitioners entitled to any relief is not to mean that approve of the manner in which the Commission has been conducting examinations under Article 320(1) of the Constitution. I have already found that the procedures adopted by the Commission for the conduct of examinations is quite unsatisfactory, unreasonable and contrary to law. Consequently I direct the Commission to evolve a procedure for the conduct of examinations which must be both reasonable and in conformity with law. The first step in this direction is to frame ''rules'' or ''guidelines'' or ''norms'' or ''instructions'' ensuring complete and full participation of all the Members of the Commission in the decision making process on basic issues and policy matters.

In the light of the above the Commission is directed to frame ''rules'' ensuring that the entire body of the Commission fully participates in the decision making process on basic issues and policy matters. In framing its rules the Commission may seek guidance from the Commission may seek guidance from similar rules framed by the Union Public Service Commission or the Public Service Commissions of the other States.

Such rules must be framed before the commencement of the 39th examination. The further conduct of the 38th examination must proceed with more and fuller involvement of all the Members of the Commission.

I am informed that a preliminary screening test has been introduced for the 38th examination. This would naturally reduce the number of candidates who will finally take the written examination and the number would once again come within manageable limits. Under this circumstance the Commission will be well advised to once again consider the question of sending the answer books to the Examiners outside the State of Bihar as this process seems to evoke greater confidence and keeps the Commissions'' examinations free from any controversy.

In the result, this application is dismissed with the aforementioned directions to the Bihar Public Service Commission. There shall be no order as to costs.

U.P. Singh, J.

I agree