Court : Jharkhand High Court
Brief : Their Lordships held that the de facto doctrine is now well established that the acts of officers de facto performed by them within the scope of their assumed official authority, in the interest of the public or third persons and not for their own benefit, are generally as valid and binding as if they were the acts of officers de jure. It was further observed that a Judge de facto is one who is not a mere intruder or usurper, but one who holds office under colour of lawful authority, though his appointment is defective and may later be found to be defective.
Citation : Article 318 in The Constitution Of India 1949
Article 315 in The Constitution Of India 1949
Article 316(1) in The Constitution Of India 1949
Article 316 in The Constitution Of India 1949
The Bihar Reorganisation Act, 2000
Cites 21 docs - [View All]
Article 318 in The Constitution Of India 1949
Article 315 in The Constitution Of India 1949
Article 316(1) in The Constitution Of India 1949
Article 316 in The Constitution Of India 1949
The Bihar Reorganisation Act, 2000
Jharkhand High Court
Jharkhand Justice Forum And Anr., ... vs State Of Jharkhand And Ors. on 29 September, 2003
Equivalent citations: 2004 (1) BLJR 82, 2003 (4) JCR 558 Jhr
Bench: P Balasubramanyan, R Merathia
ORDER
1. These writ petitions are a sequel to writ petitions, WP (S) No. 5170 of 2002 and WP(C) No. 6135 of 2002 filed before this Court. The judgment in those writ petitions is Annexure A to the counter affidavit filed on behalf of the respondents in writ petition WP (C) No. 2566 of 2003 (since reported in 2003 (1) JLJR 322. The State of Jharkhand had introduced the Jharkhand Primary Schools Appointment Rules, 2002 to regulate the appointment procedure of teachers in primary schools. Rule 4 of the said Rules provided a lower and upper age limit for appearing in the examination to be held as part of the selection process of teachers. But a concession was given by the said Rule to the effect that there will be no such limitation on the upper age for the first examination to be held. This was on the basis that for a number of years, no examination had been held or selection made and all those who had acquired Teachers' Training should have an opportunity to appear in the first examination. It was intended to be a one-time concession. It meant that even a person who would attain the age of superannuation within six months of being selected or appointed, could appear in the examination. Rule 8 thereof provided that the knowledge level for the written examination for selection would be the Middle Level Examination. The non-fixation of an upper age limit for candidates and fixing the knowledge at Middle level academic standard, were challenged before this Court in those writ petitions. This Court struck down the unbridled concession given regarding the upper age limit and the fixation of Middle Level as the standard for the written test to be conducted. The Division Bench declared void the non-prescription of a bar in respect of the upper age limit and the fixation of Middle level examination knowledge as the standard for the written test to be conducted on the ground that the non-prescription of an upper age limit and the fixation of Middle level examination knowledge for the candidates, are arbitrary, suffer from non-application of mind and not based on any intelligible differentia and had no nexus with the object sought to be achieved. The Division Bench thus found both those provisions violative of Article 14 of the Constitution of India, though the said Article was not specifically mentioned. The Court also declared that the said two stipulations were against public interest. The said decision of the Division Bench became final.
2. The Legislature thereupon amended Rule 4(d) and Rule 8(d). The amended Rules provided a lower and an upper age limit and for the first examination provided for relaxation of age by five years. By Rule 8(d), it enhanced the standard of examination to Primary Teachers Training Examination. Except in WP (C) No. 2566 of 2003, wherein various questions are sought to be raised, in the other writ petitions, the essential prayer is for issue of a writ of mandamus directing the State to relax the upper age limit indefinitely or, not to restrict the one-time relaxation to five years as has now been done by the amendment. It appears to us that the prayer for the issue of a writ of mandamus directing the one time relaxation indefinitely is clearly barred by the decision of the Division Bench in the earlier writ petitions. Rule 4(d) as amended has been introduced to meet the objections upheld by the Division Bench in the earlier writ petitions. It is not shown how the limit of one-time age relaxation to five years is in any manner illegal or unconstitutional. A reasonable explanation has been given by the State that there were no appointments for five years. Therefore, it is clear that the prayer in the writ petitions for permitting those who are beyond the age limit prescribed by Rule 4(d) to take the examination is clearly ineligible and cannot be granted. The writ petitions raising only that contention and containing only that prayer have only to be dismissed. Similarly, the prayer to ignore Rule 8(d) of the Rules fixing the Standard as the Primary Teachers Examination instead of Middle Standard, cannot also be sustained in the light of the earlier Division Bench decision. The Court had held that the fixation of the standard of the written examination at Middle Standard Level was against public interest and unconstitutional. Thus, in the light of the fact that the standard has now been raised, at best the complaint could be that it should have been higher. Certainly, a plea that it should be reduced cannot be entertained in the light of the prior decision. Therefore, that prayer is also ineligible.
3. The challenge on the ground that the examination level should have been higher may have some merit considering the challenges posed by modern educational needs and standards. But it is explained on behalf of the State that this is intended only as a test of the ability to teach and the educational qualification has been separately fixed. Though we are inclined to think that the educational qualification should at least be a graduation and the standards of the examination should also be correspondingly raised, we cannot say that what is now fixed is so irrational, unreasonable or that it has no nexus with the object sought to be achieved. Hence, we are not satisfied that the said Rule can be struck down. But we direct the respondents to consider the need to raise the qualification and the standard for future examinations. If the State wants its citizens to progress, the State should ensure that quality education is imparted to children by well-qualified teachers. The appointment of a teacher should not be considered merely as providing yet another job opportunity even to the under-qualified and the unqualified.
4. In WP (PIL) No. 2769 of 2003, an important question has been raised. The State of Jharkhand came into existence on 15.11.2000 in terms of the Bihar Reorganization Act, 2000. The existing State of Bihar, a phrase coined by the Bihar Reorganization Act, had a Public Service Commission, as envisaged by Article 315 of the Constitution of India. It was the Bihar State Public Commission. Section 77 of the Reorganization Act provided that on and from the appointed day. the Public Service Commission for the existing State of Bihar shall be the Public Service Commission for the State of Bihar, meaning the reorganized State of Bihar as distinct from the State of Jharkhand. On a clarification sought by the Government of Bihar on the status of the Public Service Commission, vis-a-vis the State of Jharkhand, the Government of India clarified that the Government of Jharkhand will set up its own State Public Service Commission under Article 315 of the Constitution of India. Thus, it became necessary for the State of Jharkhand to bring into existence a Public Service Commission for the State. Under Article 318 of the Constitution, the Governor of the State of Jharkhand had the power to make regulations determining the number of the members of the Commission and their conditions of service and to make provisions for the staff of the Commission and their conditions of service. On 16.1.2001, the Governor promulgated the Jharkhand Public Service Commission (Conditions of Service) Regulations, 2000. Part II of the Regulation by clause 3(1) provided that the Commission shall consist of a Chairman and four other members. There was a proviso to the effect that in the case of absence of one or more members on leave or otherwise, the remaining member/members, as the case may be, shall constitute the Commission. Regulation 3(ii) gave power to the Governor to appoint an additional member when a member proceeded on leave preparatory to demitting office. On 19.1.2001, the State Government passed a resolution to the effect that on and from that day, there shall be an independent State Commission known as the Jharkhand Public Service Commission. The resolution envisaged publication of the same in the Gazette and it was so published. The State of Jharkhand did not straightaway appoint a Chairman and the four other members as envisaged by the Regulations. But, on 25.1.2002, the Chairman of the Public Service Commission was appointed. This was followed by the appointment of a member of the Commission. Though the Public Service Commission could have been constituted with only the Chairman as the member or only with the Chairman and Member in terms of Article 316 of the Constitution of India, here, what happened was that as against the strength determined by the Regulations framed under Article 318 of the Constitution of India, only the Chairman and a member were appointe'd leaving the three other positions unfilled. A Division Bench of this Court dealing with a public interest litigation regarding the creation of the Jharkhand Public Service Commission, in its order dated 13.5.2002 commented on this aspect. The delay in not appointing a fulfledged Commission and in appointing a Chairman and one member alone was commented upon. Even then, the State Public Service Commission has not been constituted with the full complement of members as envisaged by the Regulations. Pending these writ petitions, the Governor named two other members whose appointments are to come into effect when they , assume charge and even today, there has been no appointment of the fourth member so as to bring into existence the full body as envisaged by Regulation 3(i) of the Regulations. It is the contention of the petitioners that a Public Service Commission for the State of Jharkhand has never come into existence as envisaged by Article 315 of the Constitution, read with the Regulations framed under Article 318 of the Constitution of India. Only a body consisting of a Chairman and four members as envisaged by the Regulations could constitute the first Public Service Commission in the eye of law and no such body having come into existence at all, the mere appointment of a Chairman and a member could not be considered sufficient to bring into existence the first Public Service Commission for the State.
5. The Chairman took charge on 29.1.2002 and the member took charge on 6.2.2002 and an advertisement was issued on 28.8.2002 on behalf of the Public Service Commission, by the Chairman and the member. But the proceedings could not be continued pursuant to that advertisement in view of the intervention by this Court. On 21.4.2003, a supplementary/second advertisement was issued calling for applications based on the amended Rule 4(d) and Rule 8(d) of the Jharkhand Primary Teachers Appointment Rules, 2002. An examination was conducted on the basis of the applications received. It is said that about 60,000 candidates had taken the examinations out of some 70,000 odd candidates who had applied. It is alleged in the writ petition that there were serious irregularities in the conduct of the examinations and such irregularities also vitiated the process of selection calling for interference by this Court. We shall deal with that aspect later. In the present context, what is to be noted is that the examination was got conducted by the Public Service Commission which had only a Chairman and a member, as against a Chairman and four members as envisaged by the Regulations. Pending the writ petitions, it is submitted that the evaluation work is over and the results are yet to be announced and they have not yet been announced since a decision by this Court in these writ petitions is awaited.
6. According to counsel for the petitioners, the first Public Service Commission in terms of Article 315 of the Constitution of India and the Regulations framed under Article 318 of the Constitution can come into being only on a Chairman and four members being appointed by the Governor. Since this was the first body, there has to be a full constitution of it for its coming into existence in the eye of law. The mere appointment of a Chairman and a member is not sufficient to create a Public Service Commission for the State of Jharkhand. The proviso to Regulation 3(i) relates only to a member absenting himself on leave or otherwise in a properly constituted Public Service Commission. The proviso cannot have any application when the very Public Service Commission as envisaged by the Regulations had never come into existence at all. It is pointed out that under the Appointment Rules, the advertisement has to be issued by the Public Service Commission, examination has to be conducted by the Public Service Commission and the selection has to be made by the Public Service Commission. In the case on hand, since the advertisement was issued only by the Chairman and a member, and not by the Public Service Commission as contemplated by the Regulations, the advertisement was void and the examination conducted pursuant thereto was also void. It is therefore the case of the petitioners that the process thus far gone through by the Chairman and the member appointed by the Governor, have to be nullified or declared null and void and a direction to constitute a fulfledged State Public Service Commission as envisaged by the Constitution and the Regulations and keeping in mind the proviso to Article 316(1) of the Constitution, has to be issued with a direction to undertake the entire process of selection, afresh.
7, The learned Advocate General appearing on behalf of the State sought to meet these contentions by a two-pronged approach. He contended that by virtue of the proviso to Regulation 3(i) of the Regulations, even a Chairman and a member could perform the duties of the Commission and the fact that the other members were not appointed would not in any manner affect either the constitution of the Commission or the validity of the acts of the Chairman and the member. Alternatively, he contended that under Article 316 of the Constitution, the Governor could appoint a Chairman and a member and they could perform the duties of the State Public Service Commission which come into existence in terms of Article 315 of the Constitution. He contended that once the appointment of a Chairman is made under Article 316 of the Constitution by the Governor of the State, the Commission conies into existence and the Chairman can act as the Commission. Here, the Governor had also appointed another member, and the Chairman and the member in the eye of law constitute the Commission and can act as the Commission. The framing of the Regulations, though in terms of Article 318 of the Constitution, and the fixing of the composition of the Commission or determining the strength of the Commission, cannot in any manner affect the coming into existence of the Commission or the validity of the acts of the Commission that has come into existence.
8. We find it difficult to appreciate why a newly born State should create such difficulties for itself and for the people of the State. Under Article 315 of the Constitution of India, the State had to have a State Public Service Commission, unless, of. course, it chose to have a Joint Public Service Commission or to entrust the work to the Union Public Service Commission as contemplated by that Article. Here, the State did want a State Public Service Commission of its own as is clear from the resolution notified on 19.1.2001. Even earlier, on 16.1.2001, the Governor had framed Regulations as envisaged by Article 318 of the Constitution prescribing the composition of the Commission and providing that it shall consist of a Chairman and four members. A State Public Service Commission is a constitutional body and it should consist of suitable and qualified persons of unimpeachable integrity and consistent with the proviso to Article 316(1) of the Constitution. Here, the State waited for almost an year after resolving to constitute the State Commission and issuing the Regulations, to notify the appointment of a Chairman of the Commission. Thereafter, it notified another member. Still, the other three members as envisaged by the Regulations were not appointed. In fact, a Division Bench consisting of the then Chief Justice commented on this aspect in its order dated 13.5.2002 in WP (PIL) No. 2727 of 2002. Even the, there was no attempt to bring into existence the fulfledged commission. During the pendency of these writ petitions, two other members were notified, still leaving one position vacant or unfilled. Thus, till date, there has been no constitution of a State Public Service Commission with the requisite strength prescribed by the Jharkhand Public Service Commission (Conditions of Service) Regulations, 2000. One would have expected a State that came into existence after 50 years of the Constitution, to be conscious of the need to maintain constitutional proprieties and to act in terms of the Regulations it had framed for itself. We can take judicial notice of the fact that a number of writ petitions are pending and are being filed in this Court challenging the propriety of one action or another by the State and it is time the Government sheds its lackadaisical approach and insists on strict compliance with the requirements of the Constitution and all laws or Regulations promulgated or framed by it or by the Parliament. A due adherence to the requirements as envisaged by the Regulations could have avoided many a litigation, including the present ones.
9. But now that the State has chosen to follow the course it has chosen, we have necessarily to decide the question that is posed for our decision. The main trust of the argument of the learned Advocate General was that it was open to the Governor to appoint a Chairman for the State Public Service Commission and a Chairman by himself could have performed the duties of the Public Service Commission in terms of Articles 315 and 316 of the Constitution. That may be so. But under Article 26(6), 318 of the Constitution, the Governor of the State has a right to frame Regulations to determine the number of members of the Commission. Since the State Public Service Commission was being born, necessarily, the requirement of the Regulations that it shall consist of a Chairman and four others had to be fulfilled. Admittedly, this has not been done even today. According to the Advocate General, the Regulation to the effect that the State Public Service Commission shall consist of a Chairman and four other members was only directory and the constitutional requirement would be met by the notifying of the Chairman and a member to act as the Public Service Commission, This has to be examined.
10. We are inclined to think that unless compelled, the Regulations made by the Governor in terms of Article 318 of the Constitution must be read in harmony with Articles 315 and 316 of the Constitution. May be, without framing the Regulations, the Governor could have appointed a Chairman and a member to act as the Commission. But that has not happened. Here, the Regulations was framed first, fixing the strength of the State Public Service Commission, as one Chairman and four members. Normally, the Court should not consider any constitutional provision or the Regulations made under it, a dead letter. Therefore, endeavour must be made to read the constitutional provisions in harmony with the Regulations framed and if so read, it is clear that for the first State Public Service Commission to come into existence in this State, a Chairman and four other members have to be appointed so as to fulfil the requirements of the Constitution. When something is to be done in a manner provided for by a statute, the same should be done in that manner, or not at all. No direct decision was brought to our notice arising out of a situation like the one obtaining here. But the learned Advocate General brought to our notice a decision of the Full Bench of the Assam High Court In Devajit v. Harendra Nath, AIR 1971 Assam and Nagaland 136. He drew our attention to an earlier decision referred to and dealt with therein, A.C. Sarkar v. State of Assam, Assam Law Reporter 1969, Assam and Nagaland 202. He referred to the following passage from the decision :
'The Governor at a particular time may not think it fit to fill in the vacancy and yet the Commission which is existing with the Chairman and another member does not cease to be a Commission under Article 316(1) read with Article 318(a) and Regulation 4. The Commission which interviewed the petitioners was perfectly competent under the law to exercise its functions."
11. The Advocate General pointed out that the petition for Special Leave to Appeal against that decision was dismissed by the Supreme Court, though the Supreme Court did not deal with the question of validity of the composition of the Public Service Commission. On an examination of the facts of that case, it is seen that A.C. Sarkar was a case where a fulfledged Commission was constituted, of a Chairman and three other members as per the Regulations, but a particular interview set up by the Commission was conducted by the Chairman and another member and in absence of the remaining two members, and the question involved was whether that was legal. It appears to us that the said decision is not an authority for the proposition that even while constituting the first State Public Service Commission, the composition as envisaged by the Regulations framed under Article 318 of the Constitution need not be adhered to. The further observation in the Supreme Court Judgment to the effect, "we may also in this context notice that Article 316(1A) provided for the contingency when the office of the Chairman of the Commission becomes vacant. This would go to show that there is no illegality per se of the Commission continuing to function with one member less under certain circumstances. Article 317(2) also makes provision for another, contingency under some other specified circumstances" also indicate that that was not a case where even at the inception there was no proper constitution of the State Public Service Commission as envisaged by the Regulations in that behalf.
12. Article 315 of the Constitution only provides that there shall be a Public Service Commission for each State. Article 316 confers power on the Governor of the State to appoint a Chairman and other members of the State Public Service Commission. The proviso thereof directs that as nearly as may be, one-half of the members should be persons who had held office for at least 10 years under the Government of India or the Government of a State prior to the date of their appointments. Of course, in a case where the appointment of a member was challenged before the Supreme Court on the ground that such appointment would go against the proviso, the challenge was not upheld by the Supreme Court by observing that the proviso to Article 316 of the Constitution was directory.
13. In Jay Shankar Prasad v. State of Bihar, AIR 1993 SC 1906, all that the Supreme Court said was, "It cannot be said that the proviso to Article 316(1) requiring that as nearly as may be, one-half of the members of the Public Service Commission shall be from service category leaves no option to the appointing authority under any circumstances whatsoever to allow reduction of the representation from that category and a breach of the said requirement by reason of appointment of a member from non-service category vitiates such appointment or the duties performed by such appointee as a member of the Public Service Commission." Their Lordships took note of the expression "as nearly as may be" in the proviso to Article 316(1) of the Constitution to come to the above conclusion. From this it does not follow that even a truncated constitution of the Commission at the Inception, could be held to be valid on the ground that the Regulations framed under Article 318 of the Constitution prescribing the composition of the Commission is also not mandatory. Of course, if such a body as envisaged by the Regulations is constituted and if it does not strictly conform to the direction in the proviso to Article 316(1) of the Constitution, we may be able to say that the Constitution of the Commission is not bad, even though the proviso has not been satisfied, since the requirement of the proviso is not mandatory. The said analogy, in our view, cannot be extended to find that the first State Public Service Commission created, itself need not satisfy the mandate of the Regulations framed under Article 318 of the Constitution. In our view, there would be a difference between the first constitution of the State Public Service Commission and its subsequent re- constitution or the supplying of the omissions as and when they occur. Once a valid body has come into existence, the fact that a member has resigned or the fact that one or two members are absent during any particular decision taken by the Commission, may not invalidate the proceedings. It is here that the proviso to Regulation 3(i) of the Regulations also may have operation. What it provides for is that in case of absence of one or more members on leave or otherwise, the remaining member/members, as the case may be, shall constitute the Commission, We think that the proviso envisages a case where the body has come into existence as envisaged and thereafter absence occurs of one or more of the members on the ground of leave or otherwise. We may incidentally indicate that at the relevant time, even a majority of members of the State Public Service Commission have not been appointed. The majority obviously would at least be three out of five. Therefore, the principle recognized in Ish-war Chandra v. Satya Narayan Sinha. AIR 1972 SC . 1812 that a meeting of the majority of the members of a body would be a valid meeting and the decision taken therein would be valid, relied on by the learned Advocate General does not have much relevance here.
14. A serious challenge was mounted on the qualifications of the Chairman, the member and the persons to be made Members of an august Commission, like the State Public Service Commission. It was contended that the Chairman was an employee of the All India Radio, totally unfamiliar with the work that is expected of the Chairman of a State Public Service Commission and that the member was only a lecturer of an affiliated college and was not even holder of an office under the State Government. It was submitted that he was appointed merely on political considerations and the appointment of such a person would certainly not enhance the prestige of a constitutional body, like the State Public Service Commission. Respondents 6 and 7 refute these allegations and claim that they are qualified to be appointed and once they are appointed, they could only be removed by the Governor in terms of Article 317 of the Constitution and even a writ of quo warranto could not be issued by the High Court. Learned Advocate General contended that the challenge to the competence of the persons appointed could not be entertained by the Court. He relied on the observations in Ashok Kumar Yadav v. State of Haryana, AIR 1987 SC 454 in support. In that decision, the Supreme Court observed that the High Court was not competent to undertake an enquiry into the question whether the Chairman and Members were men of integrity, calibre and qualifications. Even assuming that they lacked integrity, calibre and qualifications, their appointment would not be invalid, when constitutional and legal requirements with regard to their appointments were fulfilled. The said decision is also an authority for the position that a collateral challenge to the appointment of a Chairman and a Member could not be entertained by the High Court. But, still, we feel emboldened to say that it is the duty of those concerned with such appointments to ensure that the men appointed to such constitutional bodies are men of spotless reputation, unimpeachable integrity possessing good, if not outstanding, academic qualifications and not actively involved with one political party or the other. In the light of the decision brought to our notice by the learned Advocate General, we feel disinclined to further pursue this aspect of the case urged by the petitioners. We may observe that the credibility of a body depends on the members who compose it.
15. Thus, though the Court may not interfere with the composition of a State Public Service Commission and may not invalidate its actions even if all the members constituting it do not act together, this Court can and has to consider whether the first State Public Service Commission as envisaged has come into existence at all. On considering that question, we are of the view that the Jharkhand State Public Service Commission as a body is yet to be constituted. Going by the relevant provisions of the constitution and the Regulations framed, the constitution of the first Commission will be complete and effective only on the Chairman and the four members being initially appointed. The Constitution of the very body is different from the supplying of omissions in it. Since a proper body has not yet been constituted, we have to hold that the State Public Service Commission not yet come into existence as contemplated. For it to perform its duties properly, the other members contemplated have also to be appointed as envisaged by the Regulations.
16. What is the consequence of our finding that the first State Public Service Commission for the State of Jharkhand has not yet come into existence in the eye of law, is the question now to be considered. No doubt, the Jharkhand Primary Teachers' Appointment Rules envisage that an advertisement for the selection be issued ;by the State Public Service Commission, evaluation of answer sheets be got done by the State Public Service Commission and the selection process completed by the State Public Service Commission. The contention is that the advertisement was issued by a truncated Public Service Commission which was still born and the examinations were also got conducted through such a Commission and consequently, the entire exercise must be declared illegal and invalid. We think that the de facto doctrine approved by the Supreme Court would ward off this challenge. In P.S. Menon v. State of Kerala, AIR 1970 Kerala 165, a case relating to he validity of selections made by a State Public Service Commission, whose constitution was challenged, a Full Bench of the Kerala High Court observed thus :
"This doctrine was engrafted as a matter of policy and necessity to protect the interest of the Public and individuals involved in the official acts of persons exercising the duty of an officer without actually being one in strict point of law. But although these officers are not officers de jure they are by virtue of the particular circumstances, officers, in fact, whose acts, public policy requires should be considered valid."
17. The Supreme Court in Gokaraju Rangaraju v. State of Andhra Pradesh 1981 SC 1473 applied the de facto doctrine to uphold the judgment of a Sessions Judge whose appointment was subsequently declared invalid on the ground that it was in violation of Article 233 of the Constitution. Their Lordships held that the de facto doctrine is now well established that the acts of officers de facto performed by them within the scope of their assumed official authority, in the interest of the public or third persons and not for their own benefit, are generally as valid and binding as if they were the acts of officers de jure. It was further observed that a Judge de facto is one who is not a mere intruder or usurper, but one who holds office under colour of lawful authority, though his appointment is defective and may later be found to be defective. Whatever be the defect of his title to the office, the judgment pronounced by him and acts done by him when he was clothed with powers and functions of the office, albeit unlawfully have the same efficacy as judgments pronounced and acts done by a Judge de jure. Such is the de facto doctrine born of necessity and public policy to prevent needless confusion and endless mischief. A Full Bench of the Karnataka High Court in Ramaiah v. State of Karnataka, AIR 2003 Karnataka 269 had occasion to consider this aspect. There, the question involved was the validity of the establishment of the Tribunal itself as distinct from the appointment of a Judge. Inspite of holding that the doctrine of de facto Judge had no application to the case since it related to the very Constitution of the body itself, the Full Bench still applied the de facto doctrine while saving the orders passed by the said Tribunal. In fact, their Lordships specifically overruled an earlier decision of a Division Bench in Ish-warppa v. State of Karnataka, ILR 1997 Karnataka 3335 wherein, the Division Bench had applied the doctrine of de facto Judge, for saving orders passed by a Tribunal, the very establishment of which itself was questioned. The Full Bench held that the doctrine of de facto judge had no application to the case which related to the very constitution of the Tribunal itself. But even then, the Full Bench considered whether a similar principle could not be applied to save an order of a Tribunal which had not properly come into being in the eye of law, but which had rendered certain decisions. The Court after referring to passages from American jurisprudence, Corpus Juris Secondum and certain other decisions including the decision of American Supreme Court in Extein Norton v. Shelby County, State of Tennesee, 118 US 178, held that orders and judgments delivered by a Land Tribunal created by the Karnataka Inams Abolition Laws (Amendment) Act, 1979 which was subsequently, declared unconstitutional and ultra vires, are saved from challenge to their validity based on the de facto doctrine. The Court held that while the correctness of the orders and decisions rendered by such Tribunal could be examined on merits in each case, the same cannot be set aside or quashed merely because they had been delivered by a Tribunal established under an enactment which was, by a subsequent judgment, declared to be unconstitutional. The case on hand is also one where a constitutional body had not come into existence as envisaged by the very Regulations framed under Article 318 of the Constitution. What has happened is that a Chairman and a member out of a Chairman and four members envisaged, had proceeded to act, notified the examinations and had held the examinations. Out of some 70,000 odd candidates who had applied, about 63,000 candidates had written the examinations thus conducted for about 10,000 posts. It is submitted by the learned Advocate General that the process of evaluation is also complete and what remains is only the recommendations to be made for making appointments. We think that it will be in public interest and the interests of all those who had taken the examinations to uphold the steps thus far taken, by applying the de facto doctrine. The de facto doctrine is a doctrine of convenience and is adopted in public interest. We must notice here the fact that the examinations in questions were conducted amid tight security and threats of violence were unleashed by some unruly elements for their own reasons. A few even lost their lives in violence. Learned Advocate General has, therefore, a point when he urges that to undo the steps taken untill now would not only mean waste of substantial public funds, inconvenience to about 63,000 candidates, but also a possibility of the examination for selection of teachers being postponed indefinitely. He urges that the last examination was held more then five years back and there are a number of vacancies of teachers in various schools. Article 21A of the Constitution relied on by the counsel for the petitioners itself shows the need to have teachers to impart education at the primary and secondary schools level. We find substance in these submissions. These practical considerations inclines us to the view that we would be justified in applying the de facto doctrine to the case on hand. After all, what have been performed by now are the issuing of the advertisement, holding of the examination and getting the papers valued by qualified persons. We therefore take the view that what has been done thus far cannot be and need not be nullified only on the ground that the State Public Service Commission was not fully constituted and the Chairman and a member who alone were appointed could not validly constitute the first State Public Service Commission in the eye of law.
18. Having said thus, we also think that it is proper to restrain the Sate Government, and the Chairman and the Member who have been appointed to the Public Service Commission, which is yet to be constituted as envisaged by the Constitution and the Regulations, from making recommendations for the appointments until the Public Service Commission as envisaged by the Regulations framed under Article 318 of the Constitution, in fact, has come into existence. In other words, until the State Public Service Commission consisting of the Chairman and four members comes into existence de facto and tie Jure, further steps by the Commission should be kept in abeyance. We, therefore, direct that unless and until the Chairman and the four members of the first Jharkhand State Public Service Commission are appointed, the further process of selection and recommendations by the State Public Service Commission would be kept in abeyance. Further steps will be taken and the recommendations made only after a fulfledged State Public Service Commission comes into existence.
19. There is a challenge to the mode of the examinations conducted by the Public Service Commission including a charge that one of the Coordinators appointed for the examination was the brother of the member. There was a further contention that no proper examination halls/places were chosen for the examination and candidates did not even have proper places to sit to take the examination which was held in a most haphazard manner. Apart from the allegations in that behalf and some newspaper cuttings said to support such allegations, no concrete material was brought before us to enable us to accept such a contention to invalidate the examination on the ground that it was vitiated by serious irregularities. We may notice that no candidate who took the examination has come before us questioning the mode of the conduct of the examination. We are not satisfied that adequate materials are available to justify our interference with the examination already held. Same is the position regarding the process of evaluation of the answer papers sought to be raised on behalf of the petitioners. On the whole, we are satisfied that the examination already conducted could not be interfered with on these grounds.
20. In one of the writ petitions, this Court issued a direction that the three writ petitioners in that, writ petition, would be permitted provisionally to take the examination or to write the examination even if they did not fulfil the age requirement or the age qualification, subject to the result of the writ petition. It appears that some unruly elements on the strength of that order forced some of the officers or the authorities to issue them hall tickets to appear in the examination even though they were over aged and did not qualify as per the amended rule issued pursuant to the earlier decision o the Division Bench. It is made clear that those who did not possess the requisite age qualification as per the amended Rule 4(d) of the Rules, even if they have written the examinations, would not be considered for recommendation, selection or appointment by the Commission or by the Government. Appearance of those who did not possess the requisite qualifications or the age qualification, will be ignored by all those concerned with the process of selection and appointment.
21. In the result, the writ petitions, other than WP (PIL) No, 2769 of 2003 are dismissed, WP (PIL) No. 2769 of 2003 is partly allowed with the direction to the State of Jharkhand and the State Public Service Commission not to proceed with the recommendatory process until the full State Public Service Commission as envisaged by the Jharkhand Public Service Commission (Conditions of Service) Regulations, 2000 comes into existence. It is made clear that the steps so far taken and the examinations conducted will be treated as valid. There will be no order as to costs.
R.K. Merathia, J.--I agree.
