BIHAR PUBLIC SERVICE COMMISSION AND ANR. ETC.

DR. SHIV JATAN THAKUR AND ORS. ETC.

JULY 22, 1994

[K. RAMASWAMY AND N. VENKATACHALA, JJ.)

Constitution of lndia/Bihar Public Service Commission (Conditions of service) Regulation, 1960:

C Articles 226, 316 to 322/Regulations 2, 3, 4 and 17-Bihar Public Service Commission-Member-Appointment of-<:onditions of service-- Protection of-Writ petition by member claiming facilities and amenities on par with Chairman-Held member not entitled to similar type of facilities and amenities which the Chairman has-<:hairman has power to withdraw facilities provided by him to the member in order to cany out administration D of the Commission-Withdrawal of such facilities cannot be van'ation of service condition of the Member.

Publk Service Commission-Member challenging in writ petition the Junctions peiformed by the Commission-High Court granting interim or- E ders-Held discretionary remedy vested in High Court cannot be allowed to be invoked by a Member to question validity of junctions peiformed by Commission as a body-Member must be regarded to be a party to such functions-Writ jurisdiction of High Court cannot be availed of to make interim order inteifering with normal function of the Commission.

F The petitioner in Transferred case No. 2/93 was appointed as a member of the Bihar Public Service Commissior (BPSC). A writ petition was liled in the High Court seeking his removal from the membership of tbe BPSC on the ground that infirmity of blindness suffered by him had made him unlit for tbe assignment. The High Court dismissed the writ petition, but observed that as long as the petitioner was a member of the G BPSC, he should be given all facilities and amenities as enjoyed by any other member of the BPSC and in such matters there should not be any dilTernce between a Chairman and an ordinary member. Later, the petitioner tiled a Contempt Petition against the Chairman and the Secretary of the BPSC alleging that they failed to provide him the facilities H and amenities as directed by the High Court. Meanwhile, the petitioner

94 I i

BIHAR PUBLIC SERVICE COMMISSION v. DR. S.J.1HAKUR 95

also tiled a writ petition (CWJC No. 1898/92) in the High Court with the A prayers that (A) he was entitled to have a well furnished separate chamber (such chamber having been .provided to him earlier) on par with the Chairman as the Chairman was also a member of the BPSC within the meening of proviso to clauses (1), (2) and (3) of Article 316 and proviso to Article 318 of the Constitution as well as under Regulation 2(d) of the B Bihar Public Service Commission (Condition of Service) Regulations, 1960; (B) in view of the protection to the service conditions of a Member of a Public Service Commission under Article 318 of the Constitution, the facilities given to him after his appointment could not have been denied to him; (C) direction be issued to State Government to report to the Presi dent of India for taking penal action against the Chairman for alleged C commission for ommissions; and (D) to pass orders for appropriate punishment to respondents No. 3 and 4 for their wilful disobedience of the directions passed by the High Court in the earlier writ petition in relation to prividing facilities to the patitioner.

The High Court passed in quick succession live interim orders on 27.8.92, 1.9.92, 7.9.92, 8.9.92 and 16.9.92 respectively : (i) requiring the

BPSC to hold a meeting to take a decision as to how the litigation initiated by the petitioner against the BPSC should be conducted; (ii) granting leave

to petitioner to join all members of BPSC, including BPSC through its Chairman as party-respondents in the writ petition; (iii) directing the E Chairman to appear in Court with all relevant records, and ordering issue of non-bailable warrants against him if he failed to appear in Court; (iv) directing BPSC to take a decision in regard to the stand to be taken by BPSC in the writ petition tiled by the petitioner; and (v) appointing a retired Jndge of the High Court to preside over the meeting of BPSC .order F to decide whether affidavits filed by the Chairman in the writ petition conld be rega_rded as those filed on behalf of the BPSC as also directing the Chairman and the Member of the BPSC not to withdraw their salary, pending disposal of the writ petiton. These interim order~ were challenged in the appeals by special leave by the BPSC. This Court, besides staying operation of the interim orders, made the writ petition (CWJC No. G 1898/92) withdrawn to it for disposal. The said writ petition, on transfer to this Court, was registered as Transferred Case No. 2/'J3.

Dismissing the transferred case (CWJC 1898/92) and the appeals, this court H

HELD: I.I. It cannot be said that the petitioner, as a Member of the Bihar Public Service Commission is entitled to get similar type of facilities and amenities which the Chairman of the BPSC has. Though in the matters relating to appointment, term or office, remo\'al and suspension of a member, performance of functions and discharge of duties of the Public Service Commission, as provided in Articles 316 to 321 of the Constitution, the Chairman and a member are on a common footing and are equal participants, but that does not mean that there is no difference between the offices held by the two as regards functions to be performed by each of them in respect of his respective office. (110-D to GI

1..2. The Chairman of a Public Service Commission is, life the Chief Justice of a High Court, made the repository of duties to be performed in respect of administration of the Public Service Commission under the Constitution. He is entrusted with the discharge of the administrative

dutis obviously for the reason that as high constitutional functionary he D could be depended upon to discharge such functions justly and fairly.

Under the scheme of the provisions in the Constitution and the scheme of the Bihar Public Service Commission (Condition of Service) Regulations, 1960, the Chairman of a Public Service Commission has an exclusive role to play in discharge of administrative duties of his office as a Chairman while a memb_er cannot have any role to play in that regard unless E otherwise required. (111-C to El

2.1. The Regulations under Article 318 of the Constitution made with respect to the conditions of service of Members of the Public Service Commission cannot vary the conditions of service of a Member of the p Public Service Commission to his disadvantage after his appointment. A Member of the Public Service Commission, as may be the case with the Chairman, can make a grievance when any condition of hiii service is varied to his disadvantage after his appointment by Regulations made in that regard, and obtain relief from courts. (111-F, G]

G 2.2. When certain facilities or amenities are provided by the Chairman to a Member of the Public Service Commission after his appointment, while carrying out the administration of the Commission, the Chairman may withdraw any of such facilities or amenities if the administrative exigencies so demand. Withdrawal of such facilities or amenities cannot H amount, at any rate to variation of service conditions of a Member of the

BIHAR PUBLIC SERVICE COMMISSION v. DR. S.J. THAKUR 97

Public Service Commission envisaged under the proviso to Article 318.

(111-H, 112-A, 8)

2.3. The facilities of accommodation to be provided to the Members of the BPSC for their office work has to necessarily depend upon the accommodation available for its functioning. However, an institution like the Public Service Commission should not be starved of the accommoda- B lion or any other facilities or amenities needed by its Members out of necessity, by the State Government. (112-F, G]

2.4. Insofar as the compensatory allowance claimed by the petitioner is concerned, it is open to the petitioner to seek grant of the same under regulation 17 of the Regulations which if sought, would be considered and decided on merits. (112-H] c

3. No Member of a Public Service Commission could be allowed to question the validity or correctness of the functions performed or duties discharged by the Public Service Commission as a body, while he was its D Member, for the simple reason that such Member must be regarded to be a party to the function required to be performed or the duty required to be discharged by the Public Service Commission as a body or institution even though he might have been a dissenting Member or a Member in a minority or a Member who had abstained from taking part in such function performed or duty discharged. Discretionary remedy vested in the High Court under Article 226 of the Constitution cannot, therefore, be allowed to be invoked by a Member of the Public Service Commission to question the correctness or validity of functions performed or duties discharged by the Public Service Commission as a body or institution according to well established procedures. (109-B to DJ

4. The contempt petition filed by the petitioner with reference to the very allegations as made in the writ petition against the Chairman and the Secretary of the BPSC having been rejected by the High Court earlier, the question of seeking the same relief over again c8n neither arise nor be G permitted to be raised in the writ petition. (109-E]

5.1. Article 226 of the Constitution empowers the High Court to exercise its discretionary jurisdiction to issue directions, orders or writs including those enumerated therein for enforcement of the right conferred under the Constitution or for any other purpose, but such discretion, being H

A a judicial discretion is to be exercised on the basis of well established judicial norms, and cannot be used by the High Court to make interim orders which can in no way help or aid the court in granting the main relief sought in the writ petition. [llSEF]

5.2. The writ jurisdiction of the High Court could not have been B availed of to make the interim orders which interferred with the normal functioning of the BPSC. The interim orders indicatf that the High Court has sought t.o take over the resi:onsibility of carrying on the functions of BPSC by appointing its own Chairman for conducting a meeting of the

BPSC. [114-H, 115-B] c 5.3. The interim orders passed by the High Court not being those made to maintain the status quo or undo an order the review of which Is sought so that the ultimate relief to be granted to the party approaching it may not become futile, become wholly unsustainable. Such interim orders are made by the High Court, to say the least, without realisation that they D had the effect of putting the Chairman and its Members to ridicule in the eyes of the general public and making a constitutional institution of the BPSC a mockery. [115-G, HJ

CIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 4878-82 of 1994.

From the Judgment and Order dated 27.8.92, 1.9.92, 7.9.92, 8.9.92 & 16.9.92 of the Patna High Court in C.W.J.C. No. 1898 of 1992.

L.R. Singh for the Appellants.

F S.B. Upadhyay, Gopal Singh, B.B. Singh and S.K. Bhattacharya for the Appearing Parties.

The Judgment of the Court was delivered by

VENKATACHALA, J. SLP(C) Nos. 12593-97 of 1992 are the Special G Leave Petitions filed by the Bihar Public Service Commission the BPSC

and its Chairman. Dr. Ram Ashray Yadav, who are Respondent-4 and Respondent-3 respectively in Writ Petition, C.W.J.C. No. 1898 of 1992 filed by Dr. Shiv Jatan Thakur (Dr. Thakur) before the High Court of Judicature at Patna impugning the interim orders made therein by the High Court on several dates. Transferred Case No. 2 of 1993 is the very Writ Petition.

H C.W.J.C. No. 1898 of 1992 before the High Court, which has been

BIHAR PUBLIC SERV!CECOMM!SS!ON 'DR. SJ. THAKUR (VENKATACllAU,!.J 99

withdrawn to this Court according to an order made in that regard on 18th A November, 1992 in the said SLPs. As the said SLPs as well as the said Transferred Case were set down together for hearing, we have heard learned counsel on all sides and are proceeding to dispose them of by this common judgment.

Since a correct understanding of the factual backgraound of the Special Leave Petitions and the Transferred Case, becomes necessary for their proper disposal, such background calls for a brief mention.

Dr. Thakur was appointed as a Member of the BPSC on 4th March,

1991. By a Writ Petition, C.W.J.C. No. 446 of 1992 filed in the Patna High C Court by an advocate, issuance of a writ of qua warranto for removal of Dr. Thakur from his membership of the BPSC was sought on the ground that the infirmity of blindness suffered by him, had made him unfit to continue as a Member of the BPSC. The High Court, no doubt, dismissed that writ petition by its judgment dated the 16th January, 1992, but ob- D served therein thus : 'Dr. Thakur as long as was not removed form the membership of the BPSC in accordance with law, was' entitled to and shall be given by the BPSC and its Chairman and Officers/employees all the facilities and amenities as enjoyed by any other Member of the BPSC and in such matters there should not be any difference between a Chairman and an ordinary Member like Dr. Thakur, who shall be entitled to enjoy E all the facilities enjoyed by the Chairman.' That observation of the High Court, it appears, prompted Dr. Thakur to file a Contempt Petition. MJC No. 324 of 1992 before it against the Chairman as also the Secretary of the BPSC. alleging that they had wilfully violated and disobeyed the directions contained in the said observation and the same called for taking contempt F action against them.

But, when the said contempt petition, was about to be rejected, Dr.

Thakur, it also appears, filed an independent Writ Petition in the same High Court, being C.W.J.C. 1898 of 1992 seeking issuance of directions (i) G to the Chairman of the BPSC, the State of Bihar and the Governor of Bihar to rest6re to him the facilities which, it was said, he had enjoyed till 1st October, 1991 and (ii) to the Government of Bihar and the Governor of Bihar to report to the President of India of the omissions and commissions of the Chairman, while he performed his functions or discharged his duties as the Chairman of the BPSC, so as to make the President to take suitable H

A punitive action against him according to law. In that writ petition he had also sought from the High Court, award of punishment to the Chairman of the BPSC and its Secretary for the alleged wilful disobedience of the directions in the observation of the High Court's eairlier judgment in C.W.J.C. 446 of 1992.

However, the High Court, whch subsequently rejected the contempt petition filed by Dr. Thakur by its order dated 21st May, 1992, did so subject to the observation made therein to the effect that it was dismissing the contempt petition without prejudice to the rights and contentions of the parties in other proceedings.

The other proceeding in respect of which the rights and contentions of parties were saved by the High Court as above while dismissing Dr.

Thakur's contempt petition, is the aforesaid Writ Petition No. 1898 of 1992 of Dr. Thakur in which the High Court subsequently made several succes- D sive intrim orders. Interim Order dated the 27th August, 1992, is that made upon an oral prayer of Dr. Thakur. By that interim order, the BPSC was required to hold a meeting on 29th August, 1992 and take a decision as to how litigation has to be conducted on behalf of the BPSC in respect of the writ petition filed by Dr. Thakur. The second interim order made in that Writ Petition by the High Court just two days later on 1st September, 1992, E as appears from that order itself, was made for the reasons that no one appeared in Court on behalf of the BPSC on that day and that no one produced the decision which should have been taken by the BPSC pursuant to Court's earlier Order dated 27th August, 1992. The order further discloses that leave was given to Dr. Thakur to join all the members of the F Commission including the BPSC through its Chairman as respondents in the Writ Petition. Then follows the third interim order made in the Writ Petiton by the High Court on 7th Spetember, 1992, which read :

"This matter would appear tomorrow when the Chairman, Bihar Public Service CommissiOn, is directed to appear in Court with all relevant records in connection with this matter, failing which non-bailable warran.t of arrest shall be issued against him.

•· Let it be recorded that no one appears on behalf of the Chairman except for asking adjournment by a junior advocate. and H no record is produced.

BIHAR PUBLIC SER VICE COMMISSION 'DR SJ. THAKUR(VENKATACHALA, J.( 101

Let it appear tomorrow under the same heading.

This order be communicated by the Registrar of this Court to the Chairman personally today."

There is made, on the heels of the said interim order, the fourth interim order on 8th September, 1992. By that interim order a meeting of B the Commission has been ordered to be held to ascertain the views of the different members of the Commision regarding the various allegations made by Dr. Thakur and answers given to the same by the Chairman of the BPSC, making it clear that it will be open to each of the members to record his individual opinion. That order further reads thus : C

" ....... At the instance of any member of the Commission, both Dr.

Thakur and the Chairman can be called upon by other members of the Commission to submit any explanation or clarification.

However, the decision shall be taken in a meeting of the Commission but the petitioner or the Chairman shall not be entitled to D vote or be present when the votes are being cast ..... "

Then comes the fifth interim order made on September 16, 1992. By that order, the High Court appointed Mr. Justice L.P.N. Sahdeo, retired Judge of the Patna High Court to preside over the meeting of the BPSC E to decide whether the affidavits fJed by the Chairman of 'the BPSC in opposition to the Writ Petition filed by Dr. Thakur could be regarded as that filed on behalf of the Commission. Above all, the High Court, by that interim order, directed that during the pendency of the Writ Petition in the High Court neither the Chairman nor the Members of the BPSC shall draw their salaries and allowances.

When the said interim orders of the High Court, were impugned in the above S.L.P.s, this Court having regard to the nnwarranted situation which had developed on account of the successive interim orders made in the said writ petition pending before the High Court, did stay the operation G of the said interim orders, as also, further proceedings in the Writ Petition, by appropriate orders made in that behalf from time to time. Thereafter, by consent of parties and at the instance of the Attorney General of India, the very Writ Petition in which the said interim orders were made is withdrawn to this Court, for disposal of the Writ Petition itself by this Court, because of the important points involved therein. The factual back- H

A ground of the special leave petitions and the Transferred Case being what we have stated, we may now proceed to consider and dispose of the Special Leave Petitions and the Writ Petition. C.W.J.C. No. 1898 fa 1992 (the transferred case).

B The reliefs sought for, by Dr Thakur, the member of the BPSC, in his writ petition (the transferred case); filed invoking the jurisdiction of the High Court under Article 226 of the Constitution were, these :

(A) To issue an appropriate writ/s, direction/s, order/s for the retrieval of all the facilities unfailingly enjoyed by the petitioner till the 1st C October, 1991 which inter a/ia, include

(i) the well furnished officer-chamber house in room No. 2 of the administrative building containing telephone, cooler, one English Typewriter, two steel alinirahs, ante-room for P.A. and the toilet attached to the Chamber.

(ii) the service of reader, Mr. R.P. Verma, appointed under subregulation 2(b) of the Bihar Public Service Commission Regulation (called in short hereinafter Regulation) read with the Education Department letter No. J/M/-07/83 dated 30.4.1985, and the Finance Department Circular No. 3/A-3-2/91/3985/F92) of 25.7.91.

(iii) PA. of confidence, Shri S.M. Das and the orderly of choice Shri Abhinandan Prasad Badal in spirit of Rule l(iv)(g)(5) and 2.8(b) respectively of _the Secretariat Instructions were attached with the petitioner.

(B) to issue appropriate writ/s, order/s directing the respondents No.1 and 2 to report the misbehaviour and omission or commission of Respondent No.3 to His Excellency the President of India for suitable action under Article 317(1) and (2) of the Constitution of India for his G violation of Articles 14, 318 and 320(3) of the Ccnstitution for his contravention of Sections 176, 186, 189 and 504 of the Indian Penal Code, for his gross misuse of official positiQn.

(C) To issue appropriate WriUs, order/s directing the res1Jondent No. r 1 to take suitable action against respondent No. 4 for his wilful execution H or illegal orders passed by respondent No. 3 in the omission or commission.

BIHARPUBLICSERVICECOMMISSION "DR. SJ. TIIAKUR (VENKATACHALA, I.( 103

(D) To pass order/s for the appropriate punishment to the respon- A dent No. 3 and respondent No. 4 for their wilful disobecience of the direction passed by this Court by way of observation in the C.W.J .C. No. 446/92 ruling thereby the petitioner is entitled to and shall be given by the Commission, its Chairman, officers/employees all the facilities as enjoyed by any other member in respect of those matters where there is no B difference between the Chairman and ordinary members in this regard, he shall also be entitled to enjoy all the facilities enjoyed by the Chairman.

The said reliefs claimed by Dr. Thakur in his writ petition, are since based .on his membership of the BPSC, it would be advantageous to notice here itself, the provisions relating to Public Service Commissions found in C the Constitution of India and the provisions in the Bihar Public Service Commission (Conditions of Service) Regulations, 1960, for short 'the Regulation', which would give out the institutional character of the BPSC, functions to be performed and duties to be discharged by the BPSC in respect of certain matters as a body comprised of Chairman and Members, D administrative functions of the BPSC to be performed by the Chairman, eligibility of persons to become Chairman or Member of the BPSC and the duration of their offices, the rights and privileges of the Chairman and Members, their service conditions, finances of the BPSC and the Legislature's control over the BPSC.

Chapter II of Part XIV of the Constitution contains proV1S10ns relating to Public Service Commissions. Article 315 in that Chapter relates to establishment of Public Service Commissions for the Union and for the State. Article 316 therein which refers to appointment and term of office of Chairman and members of the Public Service Commissions, states that such appointments of Chairman and members to a State Public Service Commission are to be done by the Governor of the State concerned subject to the eligibility criteria to be satisfied by the appointees as provided for under the proviso to that Article. Article 316 (1-A) therein which specifically deals with the office of the Chairman of the Commission reads :

"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 appointed under clause (i) to the vacant office

has entered on duties thereof or, as the case may be, until the H

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 Commission and the Governor of the State in the case of a Stat.e Commission, may appoint for the purpose."

Article 316(2) therein while fixes the term of office of the member of Public Service Commission, its proviso says that his memhership ceases on resignation or removal. Article 316(3) therein makes such member, on the expiration of term of his office, ineligible for re-appointment to that office. Article 317(i) therein states that subject to the provisions in clause C (3) thereof, the Chairman or any other member of the Public Service Commission shall only be removed from his office by order of the President on the ground of misbehaviour after the Supreme Court,' on reference being made to it by the President, has, on inquiry held in accordance with the procedure prescribed in that behalf under Article 145, reported that the Chairman or such other member, as the case may be, ought on any D such ground to be removed. Clause (2) of that Article mpower~ the President in the case of Union Commission or a Joint Commission and the Governor in the case of a State Commission to 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 (i) until the President has passed orders on receipt of the report of the Supreme Court on such reference. But clause (3) thereof enables the Presiden~ to remove from office, the Chairman or any other member of a Public Service • Commission if the Chairman or such other member, as the case inay be is adjudged as insolvent : or engages during his term of office in any paid employment outside the duties ofhis office : or is, in the opinion of the President, unfit to continue in office by reason of infirmity of mind or body.

Clause ( 4) of that Article says as to when the Chairman or a member of the Public Service Commission shall be deemed to be guilty of misbehaviour under clause (i) thereof.

G Then, comes Article 318, which found in the same Chapter, empowers the President or the Governor, as the c.Se may be, by regulations-

(a) to determine the number of members of the Commission and their conditions of service, and

(b) to make provision with respect to the number of members of the

BIHAR PUBLIC SERVICE COMMISSION v. DR. SJ. TIIAKUR !VENKATACHALA J.J 105

staff of the Commission and their conditions of service.

But proviso to that Article, protects the conditions of service of a member of the Public Service Commission, by stating that the conditions of service of a member shall not be varied to his disadvantage after his appointment.

However, Article 319 therein prohibits the holding of governmental B offices by the Chairman and members of Commission on ceasing to I be Chairman or members.

When it comes to Article 320 therein, it deals with functions of Public Service Commissions. Clause (i) thereof states that it shall be the duty of C the Union and the State Public Service Commissions to conduct examinations for appointments to the services of the Union and the services of the State respectively. Clause {2) thereof refers to the duty to be performed by the Union Public Service Commission in situtations mentioned therein.

Clause (3) thereof refers to duty of the Union Public Service Commission or the State Public Service Commission, as the case may be, to advise on D matters on which it shall be consulted, or referred for its advice. Article 321 therein empowers the Parliament and the Legislature of a State to provide by legislation, for the exercise of additional functions by the concerned Commission as respects the services of the Union or the State and also as respects the services of any local authority or other body E corporate constituted by law or of any public institution.

Article 322 therein states that the expenses of the Union or a State Public Service Commission, including any salaries, allowances and pensions payable to or in respect of the members or staff of the Commission, shall be charged on the Consolidated Fund of India or, as the case may be, the F Consolidated Fund of the State. Clause (i) of Article 323 therein imposes a duty on the Union to present annually to the President a report as to the work done by the Commission and on receipt of such report the President shall cause a copy thereby together with a memorandum explaining, as respects the cases, if any, where the advice of the Commission was not G accepted, the reasons for such nonacceptance to be laid before each House of Parliament. Similarly the Governor is required to cause a copy of the report together with a memorandum to be placed before the Legislature of the State.

Coming to the regulations which are made under Article 318 of the H

A Constitution - Part I thereof contains preliminary provisions, Part II thereof

cor.tains provisions relating to composition of the Commission and pay of members, Part-III contains provision~ relating to conditions of service of members, and Part-IV contains provisions relating to staff of the Commission. Clause (b) and Clause ( d) of Regulation 2 in Part I of the Regulations,

B give the meaning of 'compensatory allowance' and 'member' thus :

"(b) "Compensatory Allowance" means an allowance granted in cpnsideration of personal expenditure or loss of amenities or private practice, necessitated by the special circumstances in which duty is performed. It includes a travelling allowance but does not C include a ; umptuary allowance or the grant of a free passage by sea to or from any place outside India :"

"( d) "Member" means a member of the Commission and includes the Chairman;"

Out of the Regulations in Part II Regulation 3(i) declares that the Commission shall consist of a Chairman and 10 other members, while Regulation 4 thereof provides for a higher monthly pay of the Chairman and a lower monthly pay for each of the members. Out of the Regulations in Part III dealing with the conditions of service of members. Regulations E SA to 7 thereof deal with the matters concerning leave of the Chairman and the members of the Commission. Regulation 8 says, "when the Chairman is absent on leave or otherwise, the seniormost Member may hold current charge of the admiµistrative duties of the Chairman and be allowed a special pay of Rs. 200 per month d!lring such period." Then Reg-dations p 9, 10, 11, 12, 13, 14 and 15 deal with pensions payable to the Chairman and the members of the Commission. Regulation 16 deals with travelling and halting allowances of the Chairman and members. Coming to Regulation 17 it empowers the Governor to grant special compensatory allowance as may be fixed by him. Regulation 18 says that medical facilities admissible to the All India Service officers and their family will be admissible to the G Chairman and the members of the BPSC and their families. Regulation 19 thereof says that the Chairman and the members of the Commission may recess at Ranchi on their own expense for a period not exceeding three months in any calendar year subject to the following conditions :

(a) That the recess will be continuous : and

BJHARPU.BLICSERVICECOMMISSJON 'DRS.I. TIIAKUR(VENKATACHALA, J.I 107

(b) that the Chairman and other members may take one stenog- A rapher and two orderly peons each at Government expenses.

Regulation 20 thereof deals with the right of the member to subscribe to the General Provident Fund. Regulation 21 thereof which deals with residence, says, "if a residence owned or leased by Government is allotted to a Member, his occupation of the residence shall be subject to the rules which apply to an officer of the l.A.S. provided that if the residence is one specially meant for a member, the member shall be liable to pay the standard rent of the residence or r.ent at the rate equal to 10 per cent of his monthly emoluments, whichever is less, irrespective of whether he occupies the residence or not."

Regulation 21A enables the member to obtain house building advance and motor car purchase advance, as per appropriate rules applicable to Government servants drawing comparable emoluments.

Part IV contains Regulations connected with the staff of the Commission, as may be determined by the Governor in consultation with the Commission. In that part there is Regulation 31 which empowers the Secretary to appoint the staff subject to the control of the Chairman. The

last Regulation i.e. Regulation 33 therein which is of a general nature, says E "if any question arises relating to the interpretation of these Regulations, the decision of the Governor thereon shall be final."

From the said provisions of the Constitution and the Regulations, it becomes clear that the BPSC is an independent institution, which has been brought into existence with the avowed object of maintaining the integrity, sanctity and efficiency of the civil services of the State of Bihar. The Chairman and members to be appointed to the BPSC become constitutional functionaries. The provisons clearly indicate as to what are the functions

to be discharged by the Chairman and members of the Commission as a body and as to what are the administrative functions to be discharged by G the Chairman of the Commission. At the same time, the provisions indicate as to what are the service conditions of members which are protected.

Thus, the provisions in the Constitution and the Regulations together constitute an exhaustive Code for the BPSC within the frame work or parameters of which its functionaries can function.

We shall now take up for our consideration the reliefs soug, ht by Dr.

Thakur in his writ petition (transferred case).

What is claimed in prayer paragraph (A) as relief of retrieval of facilities, is founded mainly on two grounds : (i) Petitioner (Dr. Thakur), who is a Member of the BPSC, is entitled to have a well furnished separate chamber in the Administrative Building, when the Chairman of the BPSC, who is also a member of the BPSC within the meaning of proviso of clauses (1), (2) and (3) of Article 316 and Article 318 of the Constitution and regulation 2(d) of the Regulations is having a well furnished separate chamber in the Administrative Building, inasmuch as he was given such separate chamber earlier. (ii} When the proviso to Article 318 of the Constitution has protected the service conditions of a member by stating that 'the conditions of service of a member of a Public Service Commission shall not be varied to his disadvantage after his appointment', the facilities which were given to the petitioner after his appointment could not have D been denied to him.

Insofar as the relief as to direction to be given to the State Government for reporting to the President of India for taking penal action against the Chairman sought by the petitioner in prayer paragraphs (B) and (C) E is concerned, the same is founded on allegations of certain acts and omissions attributed to the Chairman, while the BPSC discharged its functions relating to conduct of certain examinations etc.

Then coming to the relief as to award of punishment by the Court claimed in prayer paragraph (D), the same is founded on alleged violation and disobedience of the direction by the Chairman as to the need to provide all the facilities to Dr. Thakur said to have been contained in the observation made in the order of the High Court, dismissing the C.W.J.C.

No. 446/92.

G Shri R.K. Garg, Senior Advocate, who appeared for Dr. Thakur, the petitioner in the writ petition, since did not make any submission in support of the reliefs sought in paragraphs (B) and ( C) of the prayer in the writ petition, we do not feel the need to consider them. Shri Garg, we are inclined to think, did not make any submission in support of the reliefs H sought in paragraphs (B) and (C) obviously realising that the allegations

BIHAR PUBLIC SERVICE COMMISSION v. DR. S.J. THAKUR (VENKATACHALA, J.( 109

on which those reliefs were founded, related to functions of the BPSC, A which could not have been disowned by the BPSC's sitting member.

Whatever that be, no member of a Public Service Commission, in our considered view, could be allowed to question the validity or correctness of the functions performed or duties discharged by the Public Service Commission as a body, while he was its member. It ought be so for the B simple reason that, such member must be regarded to be a party to the . function required to be performed or the duty required to be dischaged by the Public Service Commission as a body or institution, even though he might have been a dissenting member or a member in a minority or a member who had abstained from taking part in such function performed C or duty discharged. Discretionary remedy vested in the High Court under Article 226 of the Constitution cannot, therefore, be allowed to be invoked by a member of the Public Service Commission to question the correctness or validity of functions performed or duties discharged by the Public Service Commission as a body or institution, according to well established procedures.

Again, Shri R.K. Garg did not make any submission as regards relief (D) sought for in the prayer of the writ petition. He appears to have done

so and, in our view, very rightly, because the contempt petition which Dr.

Thakur had filed with reference to the very allegation now put forward, E against the Chairman and the Secretary of the BPSC, when was rejected by the High Court earlier, the question of seeking the same relief over again can neither arise nor be permitted to be raised.

,· Therefore, what now, remains for our consideration is the relief sought by Dr. Thakur in prayer paragraph (A) of the writ petition (the F Transferred Case).

The facilities, the retrieval of which is sought by way of relief here by Dr. Thakur were those which he claimed to have enjoyed for a short time after his appointment on 4th March, 1991 till 1st October, 1991. Those G facilities, according to him comprised of, firstly, the well-furnished office room in the administrative building containing telephone, cooler, one English typewriter, two steel almirahs, anti-room for P.A. and the toilet attached to the ro'om; secondly, the services of a reader, Mr. R.P. Verma, who had been appointed for the petitioner's benefit; and thirdly, services H

A of Mr. S.N. Das, his P.A. of confidence, and orderly of his choice, Mr Abhinandan Prasad Badal.

The contention of Shri R.K. Garg, the learned Senior counsel for the petitioner, Dr. Thakur, was to put it in his own words. "Chairman was after all, the first among the members, in that, Article 316 of the Constitution of India relating to appointment and term of the Office of the Chairman and other members and Article 317 relating to removal and suspension of Chairman and members, make no distinction between the Chairman and other members of the BPSC. If that be so, there was no reason why a member should be denied the facilities which were available to the Chairman". The other contention urged by him was that Article 318 of the Constitution which enables the making of regulations in respect of service conditions of members of the Commission, when by its proviEo, declares that the conditions of service of the member of the Public Service Commission shall not be varied to his disadvantage after his appointment, the D facilities provided to the member (Dr. Thakur) after his a, ppointment

should not have been withdrawn by the Chairman of the BPSC. Both the contentions of Shri Garg, in our view, lack merit. It is true that the provision in Article 316 of the Constitution relating to appointment and term of Office of a Member of the Public Service Commission and that the E provision in Article 317 relating to removal and suspension of a Member of the Public Service Commission treat the Chairman of the Public Service Commission and the member of the Public Service Commission, on a common footing, as regards matters provided for therein. It 1nay also br. true that in the matter of performance of functions and in the matter of F discharge of duties of the Public Service Commission, required to be performed or discharged under Article 320 or Article 321 of the Constitution, the Public Service Commission's Chairman and every member are equal participants. But, that does not mean that there is no differnece between the office held by the Chairman and the office held by member G of the Public Service C&mmission as regards functions to be perormed by each of them in respect of his respective office. When Article 316 (lA) of the Constitution, expressly recognises "the office of the Chairman" and specifically refers to the duties to be performed by him as the Chairman of the Public Service Commission, the Chairman of the Public Service H Commission and the member of the Public Service Commission cannot be

BIHAR PUBLIC SERVICE COMMISSION •.DR. S.J. TIIAKUR (VENKATACHALA, J.J 111

treated/on a common footing as urged. The Chairman cannot be treated A on par" with a member, becomes clear not only from regulation 4 of the Regulations which provides for higher salary to the Chairman and lower salary for the member, but also from regulation 8 thereof which provides for payment of a special allowance to a senior member who holds current charge of administrative duties of the Chairman. Further, the Chairman B and the member of the Public Service Commission cannot be treated as persons standing on the same footing in respect to every matter, when the Constitution in several of its Articles treats the Chairman and the members alike for certain purposes and in several other Articles treats them differently for certain other purposes by use of the words 'the Chairman and C the member', and 'other than the Chairman'. Therefore, under the scheme of the provisions in the Constitution and the scheme of the Regulations to which we have already adverted. Chairman of a public Service Commission has an exclusive role to play in discharge of administrative duties of his office as a chairman while a member cannot have any role to play in that D regard unless otherwise required. As the Chief Justice of a High Court is made the repository of duties to be performed in respect of administration of a High Court under the Constitution, the Chairman of a Public Service Commission is made the repository of duties to be performed in respect of administration of the Public Service Commission under the Constitution.

Chairman of a Public Service Commission is entrusted with the discharge E of administrative duties of the Public Service Commission obviously for the reason that as high constitutional functionary he could be depended upon to discharge such functions justly and fairly. When Regulations under Article 318 of the Constitution are made with respect to the conditions of service of Members of the Public; Service Commission, it is true, such F regulations cannot vary the conditions of service of the Member of the Public Commission to its disadvantage after this appointment. Therefore, what becomes obvious is that so far as the Member of the Public Service Commission is concerned, as may be the case with the Chairman, he can undoubtedly make a grievance thereof when any condition of his service is G varied to his disadvantage after his appointment, by regulations made in that regard and obtain relief from courts. But, when certain facilities for amenities are provided by the Chairman to a member of the Public Service Commission after his appointment, while carrying out the administration of the Commission nothing could come in the way of such Chairman of the H

A Public Ser\ice Commission, to withdraw any of such facilities or amenities given to a member in carrying out the administration of the same Commission if the administrative exigencies so demand. Withdrawal of such facilities or amenities cannot amount, at any rate to variation of service conditions of a member of the Public Service Commission envisaged under B the proviso to Article 318. Hence, the contentions of the learned counsel for the petitioner based on equal status of member with the Chairman and on proviso to Article 318 of the Constitution. Lacks merits. From this it follows that the petitioner member of the Public Sernce Commission is entitled to get similar type of facilities and amenities which the Chairman C of the BPSC has, cannot be countenanced and is liable to be rejected.

Though we have rejected the contentions of the learned counsel of the petitioner for retrieval of the facilities claimed by the petitioner as a matter of his constitutional or legal right, there should be no reason for the petitioner to feel, as urged by Shri R.K. Garg, that as a member of the D Public Service Commission, he is humiliated by withdrawal of the facilities of Public Service Commission provided to him earlier by the Chairman as we were told on behalf of the BPSC that almost all the facilities which he had earlier are restored and the same was not disputed. However, Shri

R.K. Garg's insistence that a separate room with toilet facility shall be ordered to be provided for the petitioner, in that, according to him such facility was required by him not only as a completely blind person but also for effective functioning as a member, cannot bear fruit since it was submitted on behalf of the BPSC that there were hardly three rooms in its Administrative Building available for the BPSC to function, one room cannot be spared exclusively for use of the petitioner. We cannot say anything in this matter, in that the facilities of accommodation to be provided to the members of the BPSC for their office work has to necessarily depend upon the accommodation available for its functioning. All that could be said is that an institution like the Public Service Commission G should not be starved of the accommodation or any other facilities or amenities needed by its members out of necessity, by the State Government concerned. Insofar as the compensatory allowance claimed by the petitioner is COJ\Cerned, we clarify it is open to the petitioner to seek grant of the same under regulation 17 of the Regulations which we are sure, if H sought, would be considered and decided on merits.

BJ HAR PUBLIC SERVICE CO~I~IISSIOS i. DR. SJ. THAKL'R [VE SKA TACHALA. 1.1 113

For the foregoing reasons, question of granting any of the reliefs in A prayer 'A' of the Writ Petition (Transferred Case) does not arise.

We now come to the Special Leave Petitions filed against the interim orders made in the Writ petition. All the interim orders made in the Writ Petition (Transferred case), are those made by the Hon'ble Chief Justice B B.C. Basak and Hon'ble Mr. Justice Ch. S.N. Mishra, as members comprising of a Division Bench. When we see the interim orders none of them is made on the basis of a written application made in that regard. We have already pointed out that the first interim order under appeal, which is dated 27.8.1992 is made requiring the BPSC to hold a meeting on 29.8.1992 C to take a decision as to how the litigation initiated by Dr. Thakur, its Member, against the BPSC by way of Writ Petition (Transferred Case) should be conducted on behalf of the BPSC. That interim order itself, insofar as it is material, could be excepted here for sake of facility:

' .......... A meeting of the Commission be held on 29.8.1992 for the D purpose of taking a decision on behalf of the Commission regarding conduct of litigation: on behalf of the Commission. We make it clear that as such decisions is to be taken in respect of the petition filed by Dr. Thakur. Dr. Thakur Shall not participate in respect of such Agenda in such meeting." E

We are really unable to understand as to why the said order should have been made by the Court requiring the holding of a meeting of the BPSC to decide whether the BPSC could contest the Writ Petition (Transferred Case) filed by Dr. Thakur or not, inasmuch as, if it was not contested or the contest was untenable, the Court could have decided the writ petition on merits. The second interim order dated 1.9.1992 which was made by the Court granting leave to Dr. Thakur to join all the members

of the BPSC including the BPSC through its chairman as partyrespondents in the writ petition, appears to have been indeed made for the reasons that no one appeared on behalf of the BPSC in the court and that G no one produced the decision which was asked to be taken by the BPSC.

Then comes the third interim order dated 7.9.1992 which says that the matter would appear the next day when the Chairman should appear in the Court with all the records in connection with the matter, and a nonbailable warrant for his arrest would be issued if he does not appear the H

A next day with the required records. The fourth interim order made thereafter by the Court says that a decision was to be taken by the commission with regard to the petition of Dr. Thakur without allowing the Chairman

and Dr. Thakur to vote on the decision. This interim order to which we have adverted to earlier, is reproduced in extenso for the sake of knowing

its clear purport :

" ............... As the questions, which are being raised as to whether the decision taken by the Chairman regarding Dr. Thakur is the decision of the Commission or not, that was the whole purpose of our earlier orders. Accordingly, we direct that the meeting be held as directed by us, to ascertain the views of the difforent members of the Commission regarding the various allegations made by the petitioner and answer to the same by the Chairman. We direct the Commission to take a decision in the matter, given it not unani':' mously, but a majority decision. It will be open to each one of them to consider the same and to record their opinion. Jn the discussions before the Commission. Dr. Thakur and the Chairman may take part. At the instance of any member of the Commission, both Dr. Thakur and the Chairman can be called upon by other members of the Commission to submit any explanation or clarification. However, the decision shall be taken in a meeting of the, Commission but the petitioner or the Chairman shall not be entitled to vote or be present when the votes are being cast."

This interim order also says that the senior-most of the Members shall preside over the meeting, but he shall not have any casting vote. Then comes the fifth and the last of the interim orders made on 16.9.1992. By that interim order appointment of Mr. Justice L.P.N. Sahdeo, a retired Judge of the Patna High Court is made to preside over the meeting of the BSPC to decide whether the affidavit filed by the Chairman could be treated as affidavit of the Commission or not. That interim order does not stop there but proceeds to direct the Chairman and the Members of the G BPSC not to draw their salaries and allowances until the disposal of the writ petition.

It is the said interim orders which are the impugned in the Special Leave Petitions. We are really unable to see how the Writ Jurisdiction of H the High Court under Article 226 of the Constitution of India could have

BlllAR PUBLIC SER VICE COMMISSION 'DR. S.J. TIIAKUR {vENKATACHALA, J.] 115

been availed of to make the said interim orders which interferred 'with the A normal functioning of the BPSC by the constitutional functionaries, even if the High Court desired to have the views of the BPSC as regards the writ petition filed by Dr. Thakur against the BPSC and the functioning of its Chairman. We are indeed unable to understand now such interim orders could be regarded as those which have been made in aid of the final relief, if any, required to be granted in the Writ Petition or required to maintain status quo pending final disposal of the writ petition. When the nature of the interim order is seen, it becomes obvious that the High Court has sought to take over responsibility of carrying on the functions of the BPSC

by appointing its own chairman for conducting a meeting of the BPSC. It C is no doubt open to the Court to reject the affidavit filed on behalf of the BPSC by the Chairman on its view that it cannot be regarded as the opinion of the BPSC. But, in a case, even where such decision of the Commission as a body had been called for, the High Court was not enabled, in the purported exercise of its jurisdiction under Article 226 of the Constitution, D to make such interim orders which would have made the functioning of the BPSC, a constitutional institution, a mockery in the eyes of the general public and exposed its constitutional functionaries to ridicule. It is true that Article 226 of the Constitution, empowers the High court to exercise it discretionary jurisdiction to issue directions, orders or writs, including writs E in the nature of habeas corpus, certiorari, quo warranto and mandamus or any of them for the enforcement of the rights conferred under the Constitution or for an other purpose, but such discretion to issue directions or writs on orders conferred on the High Court under Article 226 being a judicial discretion to be exercised on the basis of well-established judicial norms, could not have been used by the High Court to make the said interim orders which could not have any way helped or aided the Court in granting the main relief sought in the writ petition. The said interim orders, therefore, not being those made to maintain the status quo or undo an order, the review of which is sought, so. that the ultimate relief to be granted

to the party approaching it, may not become futile, they become wholly G unsustamable. Such interim orders are made by the High Court, to say the least, without realisation that they had the effect of putting the Chairman and its Members to ridicule in the eyes of the general public and making a constitutional institution of the BPSC a mockery. For the said reasons, the interim orders impugned in the S.L.P.s cannot be sustained and are H

A liable to be set aside.

In the result we grant leave in the S.L.P.s allow the appeals, set aside the interim orders appealed against and dismiss the Writ Petition (Transferred Case). However, in the Circumstances of these appeals and the transferred case, we make no order as to costs.

R.P.

Appeal allowed.