Dear Hon’ble Members of LCI,
Interpretation of Constitutional positions of Part XIV Chapter 1 and II of the Constitution of India Relating to Public Service Commission.
1. Part XIV chapter 1 of the Constitution of India speaks about the relationship between the rights of the Government servants and the Government through Article 309 to Article 314 of the Constitution of India. But part XIV chapter 11 from Article 315 to 323 speaks about the relationship between the State Public Service Commission and the Government. Part XIV chapter 1 is actionable in Court by way of writs etc; by any aggrieved Government servants if his rights is invaded by the Government, but part XIV chapter II can not be enforce in the court as the matters govern the relationship between the State Government and the Commission only, but even in part XIV chapter II if the Laws are made violating the Constitutional provisions either by the state or the Commission affecting the rights of the Citizen under their respective powers envisaged in the Constitution, the court can struck down the same as being violative of the constitutional provisions. This matter has been made clear in various pronouncement of the Supreme Court under the head ultra vires laws.
2. For determining the validity of the Regulations made by the state Commission survey of part XIV chapter I and II from Article 309 to 323 is necessary to discover the law making power of the State Commission.
3. That Part XIV chapter I consist of Articles 309 to 314 and in that chapter it is clearly envisaged that the Executive has been empowered by Article 309 in case of a State to make Laws until provisions in that behalf is made by the appropriate Legislatures. It means that as long as the Legislature does not act or nonfeasance under the proviso of Article 309 the Laws made by the Executive will remain valid, as the said Article 309 does not speak about lying of such laws before the Assembly. Likewise Article 312 speaks about the power of the Parliament to make laws for recruitment to all India Services. Thus law making power of the Executive in Part XIV chapter I is laid under Article 309 and for the Parliament under Article 312 of the Constitution; and Article 313 and 314 speak about the saving of laws in certain circumstances. Thus the power of the Executive to make laws under part XIV Chapter I is very clear and there is no room for any confusion.
4. That part XIV chapter II from Article 315 to 323 relates to the composition of State public Service Commission and its functions and the said part XIV chapter II provides all the necessary provisions for the composition of the commission and its subordinate staff. The law making power under part XIV chapter II is envisaged in Article 315 by the legislature in case of two or more states who wish to have a joint Commission and law making power of the Executive under Article 315 is not envisaged under the said Article. Article 317 provides complete provisions for removal of the Chairman and the members and such removal can be done only according to the said Article 317 and there is no law making power either of the Legislature or the Executive. Under article 318 the Executive at the centre as well as the State the Executive is given power to make laws by way of regulations determining the numbers of members and their conditions of services including the staff of the commission like Article 309, but the law making power of the Executives for determining the functions of the Commission can be found only under Article 320.
5. That Article 320 speaks about Functions of Public Service Commission consisting of Sub Article 1 to 5. Sub Article 3 of Article 320 speak about consultation with the Commission from Clauses (a) to (e) with a proviso conferring the power of making Regulations by the Executive for the functioning of the Commission and such Regulations can be made generally, or in any particular class of case or in any particular circumstances not to consult the Commission in respect of services and post. But under article 320 sub Article 5 there is a raider which mandates that the Regulations should be laid before the State Assembly. The issue is whether Article 320 Sub Article 5 is mandatory or directory only. Supreme Court and several High Courts in several cases had held that the Article 320 Sub Article 3 of Clauses (a) to (e) are directory only and if accepted, whether the same view can also be taken in regard to laying of the said Regulations before the Legislative Assembly as directory only and not mandatory and that is the crux of the matter. This answer can be viewed from two angles.
6. Firstly, if we hold that the State Public Service Commission which our founding fathers of the Constitution intend to make the Commission an independent Constitutional entity, than making the Sub Article 5 of Article 320 as only directory will defeat the very purpose and intention of the independent characteristic of the Commission, as in that case the Commission will be at the mercy of the State Executive which can change the Regulations to serve the selfish interest of those in power and the Commission will be only a lame duck serving the interest of those in power only, as there will be no opportunity for the Legislature to check the Executive power and List II entry 41 read with article 246 will have no meaning. In other words Article 246 read with List II entry 41 will give way to the Executive by the Legislature and the Executive will be the Law maker of the State and Sub Article 5 of Article 320 will be only a piece of decorations in the Constitution. The issue is, was it the intention of the founding fathers of our Constitution to make the State Public Service Commission to be under the Executive? Perhaps this is why in Nagaland for more than 45 years no Acts has been passed by the Nagaland Legislative Assembly determining the powers and functions of the Commission, and this is nothing but a jobbery, nepotisim and favoritism as warned by late.Dr.Rajendra Prasad, on 26th November 1949 while adopting the Constitution pointing out the salient features of the Commission.
“ Our Constitution has devised certain independent agencies to deal with particular matters. Thus, it has provided for Public Service Commission, both at the centre and for the States and placed such Commission on an independent footing so that they may discharge their duties and without being influenced by the Executive. One of the things against which we have to guard is that there should be no room as far as it is humanly possible for jobbery, nepotism and favoritism. I think, the provisions which we have introduced in our Constitution will be very helpful in this direction”. Here it is pertinent to note the words of our Servapalli “without being influenced by the Executive”, this means the Commission can be independent only when the Legislature determine the functions and powers of the Commission under Article 320 read with List II entry 41, but if it is allow to functions only under the Regulations frame by the Executive the very intention and purpose of our Constitutional founding fathers will be defeated, as no court can direct the State to make laws under entry II list 41 of the Constitution and the state may sleep over it without making laws like the sleeping Lion, so that it can take advantage of its executive powers.
7. Secondly, if we hold that Sub Article 5 of Article 320 is mandatory than it accord with the intention and purpose of our founding fathers of the Constitution as in that case there will be opportunity for the representative of the people to scrutinize the executive actions and the Commission will be free from the bondage of the Executive.
8. I am of the View that it is not only mandatory but a solemn duty of the State Legislative Assembly to make Laws for determining the various functions and duties of the Commission and to interpret otherwise as per the various pronouncement of the High Courts including the Apex Court will be contrary to the very intention and objects of making this vital State machinery a mockery of the Constitution by making it a puppet in the hands of the Political executive. On top of this the wording in Article 312 in part I is not there in part II, in other words there is no clear Constitutional directions to the State Legislature to make laws for the State Public Service Commission, and it appears that State Public Service Commission should functions as per the directives of the Political executive power by framing Regulations in the name of the Governor of the State. If that is the schemes of the Constitution, the State Public Service Commission will always remain under the Political Executive, and to which we all must say a big NO.
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