Case: State Of Mysore Vs. R. V. Bidap

2. One Shri Bidap, the respondent in this appeal, was appointed Member of the States Public Service Commission by the Governor of Mysore on March 20, 1967. While his term was still running, the Governor was pleased to appoint him Chairman of the Commission with effect from February 15, 1969. The State took the view that the six-years assured to him by Article 316 (2) commenced to run from the date he became Member simpliciter and did not receive a fresh start from the later date when he assumed office as Chairman. Governments view on the issue was revealed in answer to an interpellation in the Legislative Council made on March 17, 1973. On this reckoning the Chairmans term would have ended on the 19th and so, the panicked respondent hastened to the High Court to avert the peril of premature ouster and sought an appropriate writ interdicting Governments move. The timely interim order and the eventual allowance of the writ petition balked the hope of Government and drove the State to this Court in quest of a final pronouncement on the constitutional question involved.

Reasoning:
From these Parliamentary proceedings the focal point of constitutional vigilance becomes manifest. An indefinite term of office and frequent renewals for any incumbent in the same State or in the Union linked up with tendencies of superannuating officials to prospect for post-retirement posts are fraught with possible patronage and interference with the purity of the Commissions functioning and should be prevented by legal interdict. Art. 316 (2) sets a limit of six years for the office of a member of a Public Service Commission and an other limit of 60 years of age (65 in the case of the Union Public Service Commission). There is an express bar on reappointment on the expiration of the first term (Art. 316 (3). There is a further prohibition against the securing of any State employment by members of the Commission on ceasing to be such members, subject to a few exceptions (Art. 319). If the argument of the appellant were to be accepted, a Member, be he chairman or not, or one or the other in succession, will get a total term of six years only. That is to say, even in the middle of his term as member, if he is appointed Chairman, he will get only a run of six years to serve from the date he became an ordinary member. On the other hand, if the rival contentions of the respondent were to prevail, in the case of a member of a State Public Service Commission, there is a possibility of his getting a maximum of six years as ordinary Member and another six years as Chairman of the Commission in the same State. Of course, we are not concerned with the prospect of appointments in other States as the mischief sought to be prevented is the possibility of abuse by too long a tenure in the same State. The situation in which a member may thus enjoy a twelve-year term is so rare and, perhaps, may fall to the good fortune of only a few exceedingly good members - and, indeed, anything between six to twelve years may not tee so very long in the effective life of a public servant - that the apprehension of the object of a brief term being frustrated does not disturb us. In this context, it is reassuring to note that in twelve States end the Union there have been, as disclosed by Ext. G only two instances beyond eight years of tenure and only l 9 cases where more than a six year term is seen to have been obtained. May be Ext. G is not exhaustive, and incidentally it indicates the practice which has prevailed in the country during the last over two decades of reading Art. 319 (d) as enabling a fresh term of office from the date of appointment as Chairman. It is clear that though mere practice cannot legitimise what is illegal, it contradicts the consternation raised by the appellant of likely misuse of power. In the last resort, the menace to purity of these high offices comes as much from dubious pressures and patronage as from other causes and where the highest seats of power do not guard against these evils, no Constitution, no law, no court can save probity in administration. We cannot assent to the appellants argument ofone thing it is extraordinary to think that persons covered by Article 317 (3) will at all be considered for appointment to a higher post of Chairman. That sub-Article speaks of removal of a member because of insolvency or objectionable engagement in paid employment outside the duties of his office or ineffectiveness to continue in office by reason of infirmity of mind or body. The argument is only to be mentioned to be rejected and it is hardly fair to the framers of the Constitution to think that they would have contemplated such unworthies to be appointed to higher posts by a special provision under Art. 319 while the whole purpose of that article is to maintain purity in service by prohibiting temptation for future offices orthe present case, the office of member is different from the office of the Chairman and so there is nore-appointment to that office when a member is made Chairman. Similarly, Art. 316 (2) is not breached because there is a six-year term for each office. The counter argument on the basis of Art. 316 (2) and (3) fails to explain Art. 319 (1) (d) which expressly authorises appointment of a member as Chairmanon ceasing to hold office. The very strained argument that the cessation contemplated is not the straightforward category of persons whose six-year term has expired, but the condemned and recondite category covered by Art. 317 (3) is too jejune for judicial acceptance. Forone thing it is extraordinary to think that persons covered by Article 317 (3) will at all be considered for appointment to a higher post of Chairman. That sub-Article speaks of removal of a member because of insolvency or objectionable engagement in paid employment outside the duties of his office or ineffectiveness to continue in office by reason of infirmity of mind or body. The argument is only to be mentioned to be rejected and it is hardly fair to the framers of the Constitution to think that they would have contemplated such unworthies to be appointed to higher posts by a special provision under Art. 319 while the whole purpose of that article is to maintain purity in service by prohibiting temptation for future offices oris a fallacy in this submission which will be apparent on a careful reading of Article 316 (2).That sub-article says that a member shall hold office for six years or until he attains sixty years, whichever is earlier. When an ordinary member is appointed chairman by virtue of the permission written into Art. 319 (d), what really happens is that the incumbent takes hold of a new office, namely, that of Chairman. He is a member all the same, as we have earlier seen. This member-cum -Chairman in terms of Art. 316 (2) shall hold office, which in this case means his new office, for a term of six years or until he attains the age of sixty years. If he is appointed Chairman past sixty, the appointment will be still-born because by the mandate of Art. 316 (2) he shall hold office only until he attains the age of superannuation. This date having already transpired, he cannot hold the office at all.Another conundrum raised is as to how when an ordinary member in the course of the six-year period is appointed Chairman. we can read into such an appointment a ceasing to hold office as member, this being a requirement for Art. 319 to apply. The obvious answer is that when a member holding the office of a member takes up the office of Chairman, he, by necessary implication and eo instants, relinquishes or ceases to hold his office as ordinary member. It is inconceivable that he will hold two offices at the same time and that will also reduce the number of members of the public Service Commission. Therefore, logically and legally we may spell out an automatic expiry of office of the member qua ordinary member on his assumption of office qua Chairman.Nor is the public mischief sought to be avoided by Arts. 316 and 319 defeated by this interpretation. In any case they cannot serve indefinitely, nor remain for anything like twentyfive or thirty years which is the normal tenure of a Government servant.The various rulings we have adverted to earlier substantially adopt the arguments we have set out, although in some of them there is marginal obscurity. The thrust of the reasoning accepted in all but the Calcutta case substantially agrees with what has appealed toNow let us study the ambit and limitations of Art. 319. It primarily enumerates the prohibitions attached to the holders of offices of Chairman and member of Public Service Commissions but carves out a few savings to the dents. We are directly concerned with sub-cl. (d) which bars a member from taking up employment under Government but expressly declares by way of exception, eligibility for appointment "as the Chairman of that or any other State Public Service Commission", on ceasing to hold office as member(see the careful accent on office and appointment without the Re-)The fair meaning of this provision is that a member of Public Service Commission of a State on ceasing to hold office as such is eligible for appointment as Chairman of that Commission itself.Ordinarily when a member has run out his term under Art. 316 (2) he cesses to hold office. Article 316 (2) states that a member shall hold office for a term of six years which means that on the expiration of that period heceasesto hold office. So the normal way a member ceases to hold office is by his six-year term spending itself Out (or by his crossing the age bar of 60 or 65 as the case may be). Logically, therefore, Art. 319 means that a member on ceasing to hold office as a result of his six-year term expiring, shall be eligible for appointment as Chairman of the same Commission. There is no contravention of Art. 316 (3) which prevents reappointment to the same office. Inthe present case, the office of member is different from the office of the Chairman and so there is nore-appointment to that office when a member is made Chairman. Similarly, Art. 316 (2) is not breached because there is a six-year term for each office. The counter argument on the basis of Art. 316 (2) and (3) fails to explain Art. 319 (1) (d) which expressly authorises appointment of a member as Chairmanon ceasing to hold office. The very strained argument that the cessation contemplated is not the straightforward category of persons whose six-year term has expired, but the condemned and recondite category covered by Art. 317 (3) is too jejune for judicial acceptance. Forone thing it is extraordinary to think that persons covered by Article 317 (3) will at all be considered for appointment to a higher post of Chairman. That sub-Article speaks of removal of a member because of insolvency or objectionable engagement in paid employment outside the duties of his office or ineffectiveness to continue in office by reason of infirmity of mind or body. The argument is only to be mentioned to be rejected and it is hardly fair to the framers of the Constitution to think that they would have contemplated such unworthies to be appointed to higher posts by a special provision under Art. 319 while the whole purpose of that article is to maintain purity in service by prohibiting temptation for future offices or