Cl. (5) of art. 320 of the constitution of india.
Khumana Ram Jangid
(Querist) 21 November 2013
This query is : Resolved
Cl.(3) of Art. 320 of the Constitution makes it obligatory that UPSC or the PSC shall be consulted in the matters enumerated therein. Proviso thereto authorises the President/Governor to dispense with such consultation by making Regulations. Cl. (5) of Art. 320 then prescribes laying down of such Regulations before Parliament/Legislature but there is no provision as to effect of non-compliance of cl. (5). What is the legal effect if there is non-compliance of cl.(5)?
Ms.Nirmala P.Rao
(Expert) 23 November 2013
According to Blacks Law Dictionary the word "shall be" means generally mandatory if a public or private rights is infringed. If that is not the case- then it is only directory.Hence, the President/Governor as the case maybe is not required to laying down of such regulations before the Parliament/State Legislature. Hence non compliance of Article 320(5) is not fatal to President/Governor's order who is bound by the executive (Union/State Cabinet) fiat except in certain special circumstances.
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Khumana Ram Jangid
(Querist) 23 November 2013
I am an advocate on the rolls of Bar Council of Rajasthan practising at Rajasthan High Court at Jodhpur. The crux of the matter is that the State of Rajasthan has amended its various service rules to the effect, inter alia, that no person who has more than two children after 01.06.2002 shall be eligible for appointment to government service. This disqualification, or for that matter, negative qualification, falls squarely within sub-cl. (c) of cl (3) of Art. 320. That this rule has been framed without consultation with Rajasthan Public Service Commission is undisputed. Now, this not only hits civil rights of the citizens (both public and private) but is also violative of Arts. 14, 16 and 21 of the Constitution. While proviso to Cl. (3) confers a discretion on the Governor to dispense with the requirement of sub-cl. (b) of c. (3) of Art. 320, the supreme law of the land imposes a corresponding obligation of laying down under cl. (5) thereof. It is a settled law that when a particular procedure has been prescribed by law to do a particular thing in a particular manner, that thing can be done only through that procedure. Both cl. (3) and cl. (5) of Art. 320 use the expression "shall be". The latter part of your reply makes cl. (5) redundant. Be that as it may, the issue falls squarely under the first part of your reply. In that case, what is the effect of non-compliance with cl. (5)? Are you in possession of any ruling on the scope of cl. (5) of Art. 320?
While thanking you so much for sparing your precious time for replying to my query,I will request you to please revisit the matter in the light of particular issue involved.
Ms.Nirmala P.Rao
(Expert) 24 November 2013
Dear Mr. Jangid Ji.
There is no direct decision of Art 320(5). However, there are important decisions of the Supreme Court in Manbodhan Lal's case interpreting the wording of Art 320(3) (c) "shall as may" and hence not mandatory. But in Dinakar's case the Supreme Court held that The consultation of Public service Commission before appointments to State Services etc is mandatory and not directory as otherwise the very purpose of providing for consultation with Public Service Commission would be rendered nugatory.But in this case the Supreme court didn't overrule the decision in Manbodhan's case. Hence, the ruling of Manbodhan's case still holds good.
You can challenge the decision of Manbodhan's case by following the ruling in Dinakar's case which is subsequent before the Supreme Court if you want to.
Now, please read on the decisions of the Hon'ble Supreme court in Manbodhan's case and the recent Dinakar's case.
The Supreme Court in State of Uttar Pradesh vs. Manbodhan Lal Srivastava held: Art.320 (3)( c ) doesn’t confer any rights on a Public Servant so that in the absence of, or any irregularity in consultation would not afford him a cause of action in a court of law. The main reasons for this view are:
(1) The opinion of the commission has not been made binding on the government. In the absence of such a binding character, it is difficult to see how non compliance with this provision could’ve the effect of nullifying the final order passed by the Government. If this opinion of the government. If the opinion of the commission were binding on the government it could’ve been argued with some force that non compliance with the rule of consultation would have been fatal to the validity of the order proposed to be passed against a public servant.
(2) 2) The Constitution doesn’t provide for the contingency as to what is to happen in the event of non-compliance with the provision. It doesn’t expressly or impliedly provide that non compliance will invalidate the final order of the government.
The proviso to Article 320 itself indicates that in certain classes of cases the commission need not be consulted. The President may make regulations to take away the protection of Art. 320(3)(c) in certain cases or classes of cases. Though Manbodhan case refers to State Commission it would apply to Union Commission as well because ART 320 (3) ( c ) is common to both. The Manbodhan ruling has been reiterated by the Supreme Court in several cases. Ram Gopal vs. state of M.P AIR 1970 S C 158
However, the above ruling has to be contrasted with the ruling in Dinakar case.
In Dinakar Anna Patil vs. State of Maharashtra (1999) 1 SCC 354: Without overruling the decision of the Manbodhan case as above the Supreme Court held that” whereas as per rule 4 A made by Maharashtra Government the Government of Maharashtra “may” in consultation with the Maharashtra State Public Service Commission may make appointments in relaxation of the percentage fixed for promotes and directly appointed persons. The Supreme Court held in this case that "to give may meaning as directory and not mandatory would give unbridled power to the Government to dispense with the consultation which may result into arbitrary exercise of power by the authority. The Supreme Court ruled that the word “may” must mean shall making consultation with Public Service Commission mandatory."
Khumana Ram Jangid
(Querist) 24 November 2013
Respected Ms. Rao,
Thank you very much for sparing your precious time and rendering your valued opinion. Your opinion shall serve as torch-bearer for me. I think you will agree with me that the matter is still at large in view of the different opinions rendered by the Supreme Court in Manbodhan and Dinkar. Thanking you once again.
Anirudh
(Expert) 24 November 2013
Article 320 (3) says that
(3) The Union Public Service Commission or the State Public Service Commission, as the case may be, shall be consulted
...
(c)) on all disciplinary matters affecting a person serving under the Government of India or the Government of a State in a civil capacity,including memorials or petitions relating to such matters;
I don't think the decision of the Govt. of Rajasthan amending its various service rules to the effect, inter alia, that no person who has more than two children after 01.06.2002 shall be eligible for appointment to government service - in any way falls as a 'disciplinary matter affecting a person serving under the Govt.'. In fact the amendment does not concern a serving govt. servant at all.
Therefore, I am afraid, Mr.Khumana Ram Jangid is not correct when he says that "This disqualification, or for that matter, negative qualification, falls squarely within sub-cl. (c) of cl (3) of Art. 320."
Khumana Ram Jangid
(Querist) 25 November 2013
Dear Mr. Anirudh Ji,
Thank you very much for you kind attention to my query.
It was a mistake that I happened to type sub-cl. (c) of cl. (3) while the matter falls within the ambit of sub-cl.(b) of Art. 320 which reads as follows--
"(3) The Union Public Service Commission or the State Public Service Commission, as the case may be, shall be consulted--
...... ....... ....... .........
(b) on the principles to be followed in making appointments to civil services and posts......and on the suitability of candidates for such appointments......"
Your another observation that "the amendment does not concern a serving govt. servant at all" is very apposite. In this connection, I will draw your attention to a contemporaneous amendment to Rajasthan Civil Services (Conduct) Rules, 1971 which runs as follows,--
"25C. Small family norms:-- At any time on or after 1.6.2002, a Government Servant who has more than two children shall be liable for disciplinary action."
Reverting back to the main issue, when the supreme law of the land confers a discretion on a Constitutional authority to dispense with the requirements of cl. (3) of Art. 320 of the Constitution and imposes a corresponding obligation, under cl.(5) of the very same article, does the exercise of discretion, dehors the fulfillment of corresponding obligation, not render the exercise of discretion ultra vires the Constitution? Is cl. (5) of Art. 320 redundant? It is settled that when a certain procedure is prescribed by law to do a particular thing, that thing can be done only by following the procedure so prescribed.
Another aspect of the matter is whether the amendment is violative of Articles 14, 16 and 21 of the Constitution. Having more than two children is no offence in India. Those who are already in Govt. service are only made liable to disciplinary action, which may or may not result in termination of their services, while those who are unemployed are out-rightly disqualified from appointment itself. Going a step further, how about the widows, deserted women and women whose husbands are not in any gainful employment, and who have the burden of bringing up MORE THAN TWO CHILDREN on their shoulders?
I shall be obliged if you inform me whether there is any such rule prevalent in your State.
Please spare your precious time and revisit the matter. Also, please inform me if there is any such rule prevalent in your State?
Khumana Ram Jangid
(Querist) 02 December 2013
This being a matter of public importance, I request brother lawyers to render their expert opinions.
