Civil Appeal No 334 of 1978
From the Judgment and Order dated 1421977 of the Punjab and Haryana High Court in Civil Writ Petition No 1860 of 1975
WITH Civil Appeal No 833 of 1977
414 From the Judgment and Order dated 14 21977 of the Punjab and Haryana High Court in Civil Writ Petition No 1172 of 1974
Anil Dev Singh PP Rao OP Sharma Janinder Lal NS Das Bahl RC Gubrela RS Suri RS Sodhi NP and MS Dhillon NP for the appearing parties
The Judgment of the Court was delivered by PUNCHHI J
These two allied appeals arising from a common judgment of the Punjab and Haryana High Court at Chandigarh in Civil Writ Petitions Nos
1172 of 1974 and 1860 of 1975 on grant of special leave can appropriately be disposed of by a common judgment
In order to recruit 71 officers in the Punjab Civil Services Executive Branch and Allied services the Punjab Public Service Commission at the behest of the State of Punjab held a competitive examination in December 1972
As advertised 12 vacancies were for the Punjab Civil Services and the remaining for Allied Services
The applying candidates as per the requirement of the Punjab Civil Service Executive Branch Rules 1930 for short the Rules specified the posts in order of preference in their respective applications
The result of those who were declared qualified was published in the daily Tribune dated September 21 1973
Out of the 71 candidates declared successful Shri VM Bansal the appellant in Civil Appeal No 833 of 1977 was declared successful for a post in the Punjab Civil Service and Shri Jaswant Singh Nerwal the appellant in Civil Appeal No 334 of 1978 for the post of Tehsildar in the Allied services
Some of the unsuccessful candidates challenged this selection in its entirety on various grounds before the High Court through Civil Writ Petition No 1722 of 1974
On the other hand challenge in Civil Writ Petition No 1860 of 1975 was made by Nerwal against Bansal for the latter having been allowed in the meantime substituted preference for the posts to the ones given in the first instance in his application and which led to his becoming a Punjab Civil Services Officer and Nerwal to be a Tehsildar in the Allied services and had the substitution not been allowed the position would have been that Nerwal would have been in the PCS and Bansal an Excise  Taxation Officer
The challenge thus was to the Commission having allowed substitution of the preference
The High Court negatived the challenge of Nerwal and his claim to be declared successful to a post in the Punjab Civil Service 415 in preference to Bansal and thus dismissed Civil Writ Petition No 1860 of 1975
Simultaneously Writ Petition No 1172 of 1974 preferred by the unsuccessful candidates was allowed in part inasmuch as the selection of Bansal as a Punjab Civil Service Officer and his consequential appointment was quashed
The High Court however did not disturb the selection of the remaining 70 successful candidates but required Bansal to compete again by issuing the following direction However he is entitled to compete with the other unsuccessful candidates for securing place in the merit and we therefore direct that Shri VM Bansal respondent No 8 along with the other unsuccessful candidates be again interviewed by the members of the Commission except Shri JR Bansal respondent No 4 and whosoever is selected on merits shall have to be appointed against the post for which he is selected in accordance with the Rules
We may however observe that if Shri JR Bansal respondent No 8 is again selected on merits he will be entitled to his original seniority and all other benefits of the Service which he would have enjoyed had his selection not been quashed
If in any case no candidate is selected against the post of PCS Cadre in accordance with the Rules any of the other selected candidates may then make representation to the Government for being appointed to the post of PCS in accordance with the Rules
 Bansal is here before us to have the aforesaid direction quashed and Nerwal to have the place of Bansal as a Punjab Civil Service Officer
We heard learned counsel for the respective parties on every aspect of the case at great length
The High Court was goaded to issue the above direction regulating selection between Bansal and other unsuccessful candidates as also the consequence thereof on applying the decision of this Court in AK Kraipak  Ors etc
vs Union of India  Ors to neutralise Bansal s father Shri J R Bansal being a member of the Public service Commission
And even though he had not participated in the deliberations of the Commission when Bansal had been interviewed his brooding presence was held negatively to have influenced the selection and the possible ouster of a possibly successful candidate
Kraipak s case was one where one of the persons who sat as a member of the selection board was himself one of the persons to be considered for selection
He participated in the 416 deliberations of the selection board when the claims of his rivals were considered
He participated in the decisions relating to the preference in seniority
He participated at every stage in the deliberations of the selection board where there was conflict between his interest and duty
In such set of facts this Court unhesitatingly came to the conclusion that there was a reasonable likelihood of bias and therefore the principles of natural justice had got violated
But this Court in Javid Rasool Bhat  Ors
vs State of Jammu  Kashmir  Ors
  did not vitiate the selection of a candidate to admission in a medical college on the ground of presence in the selection board of the father of one of the candidates
In this case the Principal of Medical College Srinagar whose daughter was a candidate for admission to the Medical College informed the Selection Committee at the very outset about this fact and told them that he would not have anything to do with a written test and would not be present when his daughter would be interviewed
The other members of the Selection Committee agreed to the proposal
The procedure adopted by the Selection Committee and the members concerned was in accord with the generally accepted and well known procedure adopted by the Public Service Commissions every where in the country as it was not unusual for candidates related to members of the Service Commission and selection Committees to seek employment
In such a situation the practice generally in vogue is for the member concerned to excuse himself when the particular candidate is interviewed and such a selection is beyond challenge unless of course mala fide
See this Court s decision in SN Nagarajan  Ors
vs State of Mysore  Ors  also
Then we have the momentous decision of this Court in Ashok Kumar Yadav and Ors
vs State of Haryana  Ors etc
etc 1985 Supp SCR 657 which without whittling down the salutary principle evolved in Kraipak s case supra has put the Public Service Commissions being creatures of the Constitution at a higher pedestal
At pages 686 87 it was ruled as follows But the situation here is a little different because the selection of candidates to the Haryana Civil Service Executive and allied services is being made not by any Selection Committee constituted for that purpose but it is being done by the Haryana Public Service Commission which is a Commission set up under Article 316 of the Constitution
It is a Commission which consists of a Chairman and a specified number of members and is a Constitutional Authority
We do not think that the princi 417 ple which requires that a member of a selection committee whose close relative is appearing for selection should decline to become a member of the selection committee or withdraw from it leaving it to the appointing authority to nominate another person in his place need be applied in case of a Constitutional Authority like the Public Service Commission whether Central or State
If a member of a Public Service Commission were to withdraw altogether from the selection process on the ground that a close relative of his is appearing for selection no other person save a member can be substituted in his place
And it may sometimes happen that no other member is available to take the place of such member and the functioning of the Public Service Commission may be affected
When two or more members of a Public Service Commission are holding a viva voce examination they are functioning not as individuals but as the Public Service Commission
Of course we must make it clear that when a close relative of a member of a Public Service Commission is appearing for interview such member must withdraw from participation in the interview of that candidate and must not take part in any discussion in regard to the merits of that candidate and even the marks or credits given to that candidate should not be disclosed to him
 It was the admitted case before the High Court that Bansal s father did participate in the deliberations of the Commission when the viva voce test of other candidates appearing before the Commission had been taken and he had accordingly awarded marks to the candidates otherwise competing with his own son
The High Court has still deduced that inspite of the afore suggested bias the candidates who got selected against the posts except his son got their due unbiased and therefore their selection cannot be questioned
Taking this deduction to be correct the High Court before issuing the direction under challenge had further to find that there was bias in excluding the unsuccessful candidates
We do not find this to have engaged the attention of the High Court
It is noticeable that besides Bansal s father there were four other members of the Public Service Commission and who had functioned as a Commission
As is evident there was a long list of as many 540 candidates to be interviewed and the interviews went on from 24 9 1973 uptill 30 10 1973
In the nature of things there was no material before the High Court and none has been pointed to us from which it could be concluded that the members 418 of the commission could keep track of the comparatives of each of those 540 candidates so as to manipulate a favourable result to Bansal
We have not been shown any material to entertain the doubt that Bansal s father being a member of the Public Service Commission per se had the effect of other members keeping track of comparatives in order to single out Bansal s as a successful candidate
And lastly there is not a word of mala fide suggested against the other members of the Public Service Commission of having shared the supposed animus of Bansal s father
Thus in the facts and circumstances of this case we do not find any reason to sustain the judgment of the High Court on this aspect of the case
Bansal s father did what was expected of him in having declined to participate in the deliberations of the commission when Bansal went for the viva voce test
Our view in this regard is further strengthened by the manner in which the viva voce test is conducted and which the High Court even has not disapproved
It appears that out of a total of 825 marks 625 marks have been allotted for written tests and the remaining 200 marks for viva voce test
These viva voce marks are distributed in various heads as enumerated by the High Court
What is significant is that each member individually gets 25 marks but on actual working if one of them is not attending the share of marks are divided in the present members
Further these marks are strictly not divided as 25 marks for each member but each member allots marks to each candidate out of 125 marks and these when added are divided by 5 or by the actual number of members present and participating in the interview
We may not be taken to be commending such a system of division of marks out of the allocated marks for the viva voce test but it seems this is the practice in which they are actually worked out
Similarly the provision of 200 marks for viva voce test cannot meet our approval because of the percentage now authoritatively fixed in Ashok Kumar Yadav s case supra
On these particulars and for these reasons no single member can possibly usurp to himself the total functioning of the commission and jealous as human nature is no other member can be expected to have abdicated his powers to another at that level and to oblige another
These circumstances do not give rise to the likelihood of Bansal s father espousing the cause of his son to the other four members of the commission and monitor the performance of 540 candidates to be interviewed the results of written examination of which he was not alleged to be aware beforehand
In these circumstances we find it difficult to uphold the view of the High Court requiring Bansal to be interviewed again so as to rub against the unsuccessful candidates and suffer the consequence
419 On the grant of special leave to Bansal operation of the judgment and order of the High Court appealed against was on 27th July 1977 stayed
Bansal has stayed put and working as an Officer in the Punjab Civil Service and his displacement at the present stage would otherwise be inequitous serving nobody s purpose due to the time lag
The unsuccessful candidates cannot possibly now at this stage due to age and other supervening factors be fit for the viva voce test so as to elbow out Bansal
The obedience of the directions of the High Court at this late stage would overly be counter productive and thus not worth sustaining
This brings us to the claim of Nerwal for displacement of Bansal from the post in the Punjab Civil Service in substitution to that held by him as a Tehsildar
The facts as found by the High Court are that initially Shri VMBansal s first preference was for the post of Excise  Taxation Officer but on December 4 1973 he had intimated to the Commission that he required change of his preference so that his first preference was of Punjab Civil Service Executive Branch
The intimation was received in the office of the commission on December 4 1974 itself and the Chairman of the commission on the same date allowed the change
That such change was permissible before the declaration of the result is beyond dispute
What was urged before the High Court was that since Bansal s application did not form part of all like applications sent in a bundle by the commission to the state Government on 11th December 1973 and had rather been sent separately later on December 20 1973 that by itself raised a doubt as to the authenticity thereof
The High Court negatived the contention
It held that this circumstance alone did not conclusively prove that the change of preference was intimated to the commission after the declaration of the result on December 7 1973 as alleged
Though the High Court went on to observe that there was no statutory rule that no change in preference could be made after the result is communicated by the commission to the State Government we are not obliged to go into that question
In face of the finding of the High Court that circumstantially it was established on the record that the preference had been changed by Bansal on 4 12 73 before the declaration of the result it is difficult to take a contrary view
The High Court had even seen the original record to come to that view
Such like inferences drawn are in the realm of facts and we have not been persuaded to take a different view
Once this is established that the change of preference could be made and it was intimated and appproved timely the conclusion is inescapable that Bansal s first preference to a post in the Punjab Civil 420 service ranked superior to Nerwal s preference because of their interse ranking in the examination results
Thusthe appeal of Jaswant Singh Nerwal has no substance deserving rejection
Resultantly for the views afore expressed Civil Appeal No 833 of 1977 preferred by Shri VM Bansal is allowed and the Civil Writ Petition No 1172 of 1974 before the High Court would stand dismissed and Civil Appeal No 334 of 1978 of Shri Jaswant Singh Nerwal would stand dismissed affirming the dismissal of his Writ Petition No 1860 of 1975 before the High Court but without any order as to costs in both appeals
DRL CA No33478 dismissed CA No83377 allowed


Summary:
The petitioner s son was arrested on 1910 1989 on the accusation that he and his brothers were involved in extensive illicit cultivation of ganja plants in violation of the provisions of NDPS Act
The Magistrate before whom he was Produced rejected the bail application
The Sessions Court granted conditional bail
The detention order dated 2511990 was served on the detenu on 3011990
The order stated that though prosecution was likely to be initiated under the NDPS Act there was every likelihood of his continuing the cultivation of ganja plants and thus there was a compelling reason to detain him under the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act 1988
The detenu was informed of his right to make a representation to the detaining authority Central Government and the Central Advisory Board against the detention order
The mode of representation was also indicated along with the grounds of detention in accordance with Article 225 of the Constitution of India
In accordance with the procedure the Central Government referred the case to the Central Advisory Board
During the pendency of the reference the detenu made a representation to the Advisory Board
The Advisory Board considered the reference along with the detenu s 422 representation and came to the conclusion that there was sufficient cause to justify his preventive detention
Thereafter the Central Government made an order dated 2441990 confirming its earlier order and directing his detention for a period of two years
In the present Writ Petition the mother of the detenu prayed for quashing of the detention order contending that there has been infraction of the guarantee under Article 225 of the Constitution as a result of the Central Government s omission to consider the representation of the detenu independent of its consideration by the Advisory Board
Petitioner also challenged the stand of the Central Government that there was no obligation on it to consider the representation of the detenu independently since the same was addressed to the Advisory Board and not to the Central Government
Allowing the Writ Petition this Court HELD 1
The obligation of the Government to consider the representation is different and in addition to the obligation of the Advisory Board to consider it at the time of hearing the reference before giving its opinion to the Government
Consideration of the representation by the Government has to be uninfluenced by the view of the Advisory Board
The detenu s right to have the representation considered by the Government under Article 225 of the Constitution is independent of the consideration of the detenu s case and his representation by the Advisory Board
426G H KM Abdulla Kunhi and BL Abdul Khader vs Union of India and Ors
 State of Karnataka and Ors JT  relied on
Any representation of the detenu against the order of his detention has to be considered and decided by the detaining authority the requirement of its separate consideration by the Advisory Board being an additional requirement implied by reading together clauses 4 and 5 of Article 22 even though express mention in Article 225 is only of the detaining authority
The order of detention is by the detaining authority and so also the order of its revocation of the representation is accepted the Advisory Board s role being merely advisory in nature without the power to make any order itself
It is not as if there are two separate and distinct provisions for representation to two different authorities viz the detaining authority and the Advisory Board both having independent power to act on its own
427G H 428A B 423 3
It being settled that this dual obligation flows from article 225 when only one representation is made and addressed to the detaining authority there is no reason to hold that the detaining authority is relieved of this obligation merely because the representation is addressed to the Advisory Board instead of the detaining authority and submitted to the Advisory Board during pendency of the reference before it
So long as there is a representation made by the detenu against the order of detention the dual obligation under Article 225 arises irrespective of the fact whether the representation is addressed to the detaining authority or to the Advisory Board or to both
The mode of address is only a matter of form which cannot whittle down the requirement of the Constitutional mandate in Article 225 enacted as one of the safeguards provided to the detenu in case of preventive detention
428B El 4
In the instant case there has been a breach by the Central Government of its duty under Article 225 of the Constitution to consider and decide the representation independently of the Advisory Board s opinion
The order of detention dated 2511990 as well as the order dated 2441990 of its confirmation passed by the Central Government are quashed
428F G