STATE OF MYSORE versus R. V. BIDAP

STATE OF MYSORE

R. V. BIDAP

September 3, 1973

[A. N. RAY, C.J., D. G. PALEKAR, -Y. V. CHANDRACHUD.

P. N. BHAGWATI, V. R. KRISHNA 'IYER, JJ.]

Co1utitution of India, 1950. Arts. 316, 317 and 319-0ffece of membtr and office of ChJlirma11 of Public Service Commission if different-Period for which olli« of Chairnia11 can- .be heTJ lvhere niernber is apf)oitited Chairman-'C,aJint to hold office a.\ member in-Art. 319, Scope of-Policy behind ctrficleJ.

Article 316(2) of the Constitutioo provides that 111.::mber of Public Service Commission should hold office for term of six years from the date on which he enters upon his office or until he attains, in the case of the Union Comntission, the age of sixty five years, and in the c.'lse of Slate Con1n1ission or Joint Conlmission, the age of sixty years, whichever is earlier.

Th~ respondent was appointed member of the State Public Service Com· mi&Jion in March 1967. About two years later he Wa$ apnointcd as Chairman of the Commission. · On the qu~tion of the date from which the period of six: years for whi.ch he was entitled .to hold office should be counted.

HELD · The· office of member is different from the offi~e of the Chainnan, and so the· respondent was entitled to hQld office for the period of six years MS Chairman of the Commission counted from the later date when he assu1ned office a!; Chairman.

(a) Article 316 de<\ls with the appointment of the Chairman and men1bers of the Con1mission, their term of office and their ineligihiiity for re-appoint-nunt. It shows that Chairman of Pµblic Service Con1mission is also member of the Public Service Con1mission, that is member can fill one of two oftices-..ordinary ·member or member-Chairman. But Ar. 316(1A) shows that the offic'c of member is different from that of the Chairman. [601 E-G]

(b) The iiteligibility provided for in Art. 316(3) is re.appointme11t to tflat office. Hence the disability for re-appointment attaches to the specific office; that is.,. no member who holds the office of just n1ember, pure and simple, shall be re-appuinted to fih'at offu:e, that is. to the office of m:;:tnher. pure and simpk. But Art. 319(d), which bars member from taking employment under Government, expressly declares by way of exception, eligibility for appoint-ment "as the Chairman of that or any other State Public Servi~ Commission" on ctalillg tu 11~/d o/Jice as 111ember; that iS', member of the Public Service Commission of State,. on ce~irig to hold office as such, is eligible for appoint-ment as Chairman of that Commission itself. It follows that member when elevated to the higher office of Chairman is not reappoi11ted but is appoint~d to the .different office of Chairman. The prescription of the ter1ninus quo in Art. 316(2) is 'tfrom the date on which he enters upon his office'' which, in the case of Ch:1irman appointed directty as such or originaJly as inember arid later el.:vated ~1s Chairman. begins when he starts functioning as Chairnian.

[60 ! H-60~Dl

(i;) Logically and legally there is automatic expiry of office of !he memb~r qua ordinarv m::mber on his a95umption of office qua Ch~irman. When meinber holdihg office of member take5 uo the office cf Chairn1an he by necessary implication and co i1ista11t<', relinquishes or cea~es to hold his office a~ member anJ the requirement r.f Art. 319 is satisfied. [6020-@JH] {J.) :\rlicle 316('.!) state! -~hat men1ber shall hold 0ffice. for l.:rnl of six ·vears or until hi' attains ()0 ye:.1rs whichever is earHer: ·which m~ans th~l~ on ihe. expiration of the period of 6 y~ars he cea~e" to h01d oflice. f.c?icnlly. 12-382~upCI174

therefore, Art. 319 means that member, on ceasing to hold office as result of his six year jefm e-xpiring, shall be eligible for appointment as Chainnan of the saml! Coinmi~·-ion. There is no substance in the argument that, on the above inter_pret<.:tion, ~1 n1cn1b~r can be appointed, in violation of Art. 316(2), as Chairman not merely whe·n the six-year term expires, but also after he has attah;1ed the age of 60 years: When an orcJinary member is appointf!d as Chairman by virtL[1]e of the permission written into Art. 319(d), \Vhat really happens is that the incumbent takes up ni,;w- office, namely·, that of Chainnan. This n1cmber-cun1~Chairman:_in terms of Art. 316(2) shall hold office, \Vhich in this ca~e n1c;:1ns his new office, for term of 6 years or until he attains the age of 60 years whichever is earlier. [6030-G]

(e) It could not be argued that the cessation contemplated by Art 319 is not the category of peisons whose six·year term has expired but those who have been ren1ov€'d for infirmities under Art. 317, because, the whole · purpos~ of Art. 319 is to maintain purity is services by prohibiting temptation in future offices or c1nployn1ent and, it is unlikely that the framers of the Constitution would ,have contemplated by special proviskin the appointment to higher post" 9f persons who were unworthy.. f603A·Dl

(f) It is true that an indefinite tern1 of office and frequent rene\vals in the sa1ne State or in the Union are fraught with possible patronage and interference with the purity of the functioning of the Publi~ Service C~mmission_ and that they should therefore be prevented by legal interdict. But 1n fact the number of instances when member of Public Service Commission had held office for mere than 6 vcars a're few. Besides, anything between 6 to 12 years may . .not be so very lo1lg to justify the argument of fear that t.he above Object of brief term \vould be fn1strated. Jn the Jas.t resort~ the menace to purity of -these high offices co1ncs ns much from dubious pressures and patronage as from other causes and where the highest seats of power do not guard against these evils, no constit11tion. no law. no court can save probity in administration. [596H·597G]

The majority view in Dhfl•endra Krishna v. Corpn of C!JlCutta, A.l.R. 1966 Cal, 290 oYernded.

Upe11da Das v. State. A.I.R. 1970 Orissa 205 approved.

CIVIL APPELLATE JURISDJCRION : Civil Appeal No. 992 of 1973.

Appeal from the judgment and order dated the June 4, 1973 of the Mysore High Court at Bangalore in Writ Petition No. 774 of 1973.

R. N. Byra Reddy, .. K. Sen, M. Veerappa, for the appellant.

S. S. Javali and B. R. Agarwa/a, for the respondent.

L. N. Sinha, Solicitor General of India and S. P. Nayar, for Inter-

vener No. 1.

O. P. Rana, for Intervener No. 2.

A. R. Gupta and Narayan Nettar, for intervener No. S.

The Judgment of the Court was delivered by

KRISHNA IYER, J. short i~sue as to the expiration of the consti· tutionally guaranteed tenure of office of Member of the Public Service Commission, who, in the middle of his term, reincarnates as its Chairman and claims fresh six-year spell, has lent itself to considerable argument at the Bar, the contributory causes being the differing views of courts, varying practices of States apparent incon-gruity between the paramount purpose and the expressed language of

the provisions and the slight obscurity of the relevant articles, the expert drafting and careful screening by the 'founding fathers'. notwlth· standing.

One Shri Bidap the respondent in this appeal. was appointed Member of the Stat~ Public Service Commission by the Governor of Mysore on March 20, 1967. While his terin was still running, the Governor was pleased to appoint him Chairman of the Commission with effect from February 15; 1969. The State took the view that the six years assured to him by Article 316(2) commenced to run from the date he became Member simpliciter and did not receive fresh start from the later date when ·he assumed office as Chairman. Gov· ernment's view on the issue was revealed in answer to an interpellation in the Legislative Council made on March 17, 1973. On this reckon· ing the Chairman's term would have ended on the 19th and so, the panicked respondent hastened to the High Court to avert the peril of premature ouster and sought an appropriate writ interdicting Govern-ment's move. The timely interim order and the eventual allowance of the writ petition balked the hope of Government and. drove the State to· this Court in quest of final pronouncement on the constitutional question involved. While th&e is divergence of judicial opinion at the High Court level. the preponderance of authority, including rulir.g of the Mysore High Court itself, militates against the appellant's stand·J!Oint. broad consensus of administrative practice evolved by the Union Government in response to an opinion tendered by the Attorney-Oeneral on reference made to him at the instance of the Conference of All India Ch~irmen of Public Service Commissions (prompted by divergent views expressed in full Bench judgment of the Calcutta High Court) also goes against the appellant's position. Technically, neither the appellant nor, for that matter, any citizen is bound by adminis.trative verdicts on questions of law and when the High Courts disagree, the law becomes uncertain necessitating resolution of I the conflict by the Supreme Court. It is apt to remember the words of' Rich, ·J-

"One of the tasks of this Court is to preserve uniformity of determination. It may be that in performing the task the Court does not achieve the uniformity that was desirable and what uniformily is achieved may be uniformity of error. However in that event it is at least uniformity".('~

Moreover, m· l! Government of laws like ours. the last court has the ~ast word on. ~ven I.av:, i~ being permissible to the Legislature, sub· iect t? c~nsbtutional limitations,_ to amend the law, if necessary. The question m the present case bemg one of general public importance has to be decided by this Court silencing the present and potential dis· put~ and laying down binding rule for the whole country.

_Counsel for the appellant strenuously contends that there is high po hey animating .the provisions which limit the official life of Member ?f. the Public Servi~e Commission to significantly short term of six years coupled with an almost blanke~ ban on the holding

(I) Waghorn v. Waghorn, 65 Commw. L. R. 289, 293 (1942).

of other office or taking up of other employment under Government on ceasing to be Member. Before we focus on the fasciculus of Articles 316 to 319 to assess the force of this and other submissions, two basic questions fall to be considered. !s there any public policy of great moment behind these Articles and if so, what is it? Secondiy, assuming its existence and importance, could this Court, while inter-preting the provisions of the Constitution, listen to such extlinsic voices, however natural logical aud persuasive or be guided by the golden rule of grammatical construction which treats the text of the statute as sort of forensic sound-proof room?The working life of au Indian official in administration can easily be, and is, several times the six short years granted to Public Service Commission Member under Art. 316(2). Further employment in public Service is also not unusufll for §Uperannuated ,.officers, parti-cularly' at the higher echelons. And yet there is substantial, although not total, prohibition of subsequent ,employment in public service of Commission Members written into the Constitution by Art. 319. The learned counsel rightly stresses that the. Public Service Commission has vast powers of recruitment of candidates for an immense and increasing host of Government posts which in country with consider-abll( unemployment are prone to be abused if too close and too long familiarity with certain sectors \\\ere to be established. The prospect and peril of the Executive tempting with renewals of membership to infiuence the incumbents may corrupt that institution, which must :zealously be kept above suspicion. This is the raison d'etre of the narrow period prescribed by Art. 316 ( 2), ,the taboo on reappoint-ment in Art. 316(3) and on taking up of any Government service clamped down by Art. 319. This view gains strength from the proceed-ings of the Constituent Assembly, particularly the speech of Dr. Ambedkar. Maybe there is plausibility in the point that the three limita-tions on the office of membership (made shade more rigorous in the c;ise of chairmanship) were directed towards obviation of abuse. Even so, _is that dominant concern of conrt in the interpretation of the statute or altogether irrelevant ? Are Constituent Assembly Debates and objects in the mind of law-makers put out of the judicial area of vision by the classical exclnsionary rules which are part of our legal heritage from the British ?

· Anglo-American jurisprudence, unlike other systems, has generally frowned upon the use of parliamentary debates and press discussions as throwing light upon the meaning of statutory provisions. Willes, J_ in Milter v. Tayler,([1]), stated that the sense and meaning_of an Act of Parliament must be collected from what it says when passed into faw, and not from the history of changes it underwent in the House where it took its rise. That history is not known to the other HOU8e Ol' to the Sovereign. In 4ss01n Railways and Trading Co- Ltd. v. l.R .C., (") Lord Writ in the Privy Council said :

"It is clear that the language of Minister of the Crown in proposing in Parliament measure which eventually be-comes law is inadmissible and tile report of commissioners

(2) [1935] A. c_ 445 at p. 4,8.

(I) [1769] 4 Burr, 2303, 2332_

is even more removed from value as evidence of intentioo, because it does not follow that their reoomr'endations were accepted".

The rule of grammatical construction has been accepted in India before. and after Independence. Jn the State of Travancore-Cochit1 and others v. Bombay Company Ltd., Alleppey,(1) Chief Justice Patanjali Sastri delivering the judgment of the Court, said :-

"It remains only to point out that the use made by the learned Judges below of the speeches made by the members of the Constituent Assembly in the course of the debates on the draft Constitution is unwarranted. That this form oi extrinsic aid to the interpretation of statutes is not admis· sible has been generally accepted in England, and the same rule has been observed in the construction of Indian statutes -see Administrator-General of Bengal v. Prem Lal Mullick. 22 Ind. Appl. 107 (P.C.) at p. 118. The reason behind the rule was explained by one of us in Gopalan v. State of Madras, (1950) S.C.R. 88 thus :"A speech made in the course of the debate on bill could at best be indicative of the subjective intent of the speaker, but it could not reflect the inarticulate mental pw· cess lying behind the majority vote which carried the bill. Nor is it reasonable to assume that the minds of all those legislators were in accord".

Or, as it is more tersely put in an American case-

"Tho~e who did not speak may not have agreed with those who did; and those who spoke might differ from each other-United States v. Trans-Missouri Freight Association, (1897) 169 U.S. 290 at p. 318 (sic)".

This rule of exclusion has not always been adhered to in America, and sometimes distinction is made between using such material to ascertain tre purpose of statute and using it for ascertaining its meaning. It would seem that the rule is adopted in Canada and Australia-see Craies on Statute Law, 5th Edn. p. 122 (pp. 368-9) ". the American jurisdiction, more natural note has sometimes been Mr. justice Frankfurter was of the view(2) that-"If the purpose of construction is the ascertainment o1 meaning, nothing that is logically relevant should be ex-cluded, and yet, the Rule of Exclusion, which is generally followed in England, insists that, in interpreting statutes, the proceedings in the Legislatures, including speeches delivered when the statute was discussed and adopted, can· not be cited in courts".

In the American jurisdiction, more natural note has sometimes been struck. Mr. justice Frankfurter was of the view(2) that-

(I) AIR 1952 S. C. 366.

(2) Sec reference in The fnUian Parlian1ent and the Fundamental Rights--Ta:zere Law Lectures-Charter VL r. 141. -

Crawford on Statutory Construction at paae 388 notes that-

. ''The judicial opinion on this point is certainly riot CJUite uniform and there are American decisions to the effect that the· gen,enu history of statute and the various steps ll:aJ-ing up to an enactment including amendments or modifica-tions of the original bill and reports of Legislative Commit-tees can be looked at for ascertaining the intention of the legislature where it is in d(!ubt; but they hold definitely that the legislative history is inadmissiPle when there is no obscurity in the meaning of the statute".

The Rule of Exclusion has .been criticised by jurists as artificial. The trend of academic opinion and the practice in the European system suggest that interpretation of statute being an exercise in the ascertainment of meaning, everything which is logK:ally relevant should be admissible. Recently, an eminent Indian jurist has reviewed the legal position and expressed his agreement with Julius Stone and Justice iFrankfurter.([1]) Of course, nobody suggests that such extrin-sic materials should be decisive but they must be admissible. Author-ship and interpretation must mutually illumine and interact. Ther~ is authority for the proposition that resort may be had to tl.ese sources with great caution and only when incongruities and ambiguities are to be resolved. ([2 ]) There is strong case for whittling down the Rule of Exclusion followed in the British courts and for Iess apologetic refe-rence to legislative proceedings and like materials to read the mean-. ing of the words of statute. Where it is plain, the language prevails. but where there is obscurity or lack of harmony with other provisions and. in other special circumstances, it may be legitimate to take external assistance such as the object of the provisions, the mischief sought to be remedied, the social context, the words of the authors· and other allied matters. The law of statutory construction is strate-gic branch of jurisprudence which must, it may be felt, respond to the great social changes but conclusive pronouncement on the particular point arising here need not detain us because nothing decisive as between the alternative interpretations flows from reliance on the Constituent Assembly proceedings or the broad purposes of the statu-tory scheme. few excerpts .from the drafting preludes to the framing of! the Constitution from the masterly study by B. Shiva R.ao and relevant quotes from few important speeches in the House may be apposite and illuminating. The Royal Commission on Superior Services in India. popula_rly c3lled the Lee Commission (1924) observed("} :

"Wherever democratic institutions exist, experience hai; shown that to secure an efficient civil service it is essential to protect it as far as possible from p0litical or personal influences and give it that position of stability and security

(1) The Indian Parlianient and the Fundamental Rights-Taeore Law Lectures, p. 148. -

/2) A. K. Gopalan v. State of Madras, ATR 1950 S. C. 27,

(3) The Framing of India's Constitution-A Study, pp. 7'.24·725.

which is vital to its successful working as the impartial and efficient instrument by which governments, · of whatever political complexion, may give effect to their policies. In countries where this principle has been neglected, and where the "spoils system" has taken its place, an inefficient and dis-organised civil service has been the inevitable result and corruption has been rampant".

As result of these recommendations Public Service Commissions, were set up in the country with the objectives outlined by the Lee Commission. B. Shiva Rao has drawn attention to the doings of the drafting committee([1]) :-

,, ..... Santhanam, Ananthasayanam Ayyangar, Mrs. Durgabai and T. T. Krishnamachari suggested an amend-ment to lay down. . . that member of State Commis-sion would on retirement be ineligible for any office other than the Chairman or member of the Union Commission or the Chairman of State Commission. The principle of this amendment was accepted by the Drafting Committee which incorporated it in suitable terms in the revised draft of the article moved by Ambedkar in the Constituent Assembly on August 22, 1949".

Dr. Ambedkar introducing the provisions spoke(') :

"Now I come to the other important matter relating to the employment or eligibility for employment of the members of the Public Services Commission-both the Union and State Public Services Commissions. Members will see that according to article 285, cla11&e (3), we have made both the Chairman and the Members of the Central Public Services Commission as well as the Chairman of the State Commission and the members of the State Commission. ineligible for reappointment to the same posts : that is to say, once term of office of Chairman and Member is over, whether he is Chairman of the Union Commission or the Chairman of a- State Commission we have said that he .shall not be reappointed. I think that is very salutary provision. because any hope that might be held out for reappointment. or continuation in the same appointment, may act as sort of temptation which may induce the Member oot to act with the same impartiality that he is expected to act in discharging his duties. Therefore, that is fundamental bar which has been provided in the draft article".

Mr. Jaspat Roy Kapoor tabled several amendments in support of which he spoke at length. One of the amendments, which was turned down by the House but highlights portions of the area of the present controversy and his speech in support thereof, may be excerpted(•) here:

(I) The Framing of India's Constitution-A Study-p. 734.

(2) Constituent Assembly Debates (Vol . 9) 1949. p. 575.

(3) Constituent Assembly Debates (Vol. 9)(1949) p. 581.

"That at the end of the i;roposed new article 285.C, the following proviso be added:-

Provided that member's total period of employment in the different public service commissions shall not exceed twelve years".

"This amendment is more than important than my other amendments. I was oonfirmed in this view from what I heard Dr. Ambedkar say this morning in moving his o\vn amend-mer.t. He said, while explaining article 285 that person shall not hold office as Member of Public Service Com· mission for more than six years. That of course is partially provided in clause (3) of article 285. But that clause refers only to the reemployment of person to that particular post. So far as the other posts are concerned, that clause does not apply. So according to article 285-C member of Public Service Commission can continue to be Member of one or other of the public. service commissions for any number of years. I say 'any number of years' because, for six years one can be member of State Public Service Commission. Thereafter, for another six years, he can be the Chairman of State Public Service Commission. It comes to twelve years. Thereafter again he can be" ........ "I submit this is not satisfactory state of affairs."

Shri H. V. Karnath adverted, in his speech, to this topic then he said(') :

"It is agreed on all hands that the permanent services play an important role in the administration of any country. With the independence of our country the responsibilities of the services have become more onerous. They may make or mar the efficiency of the machinery of administration-cal! it steel frame or what you will-a machinery which is so vital for the peace and progress of the country." .

"If member of the Public Service Commission is under the impression that by serving and kowtowing to those in power he could get an office of profit under the Govern· ment of India or in the Government of State, then I am sure he would not be able to discharge his functions impar-tially .or with integrity"

"The public here have sometimes been made to feel that family or group interests have been promoted at the expense of the national; and to protect the Ministers against such charge, it is necessary that the Public Service Commissiom must be kept completely independent of the executive ... " From these parliamentary proceedings the focal point of consti-tutional vigilance becomes manifest. An indefinite term of office and frequent renewals for any incumbent in the same State or in the Union linked up with tendencies of superannuating officials to prospect

point of consti-H in the

fl) Con<tituent A<Scmbly Debates (Vol. 9) (1949) pp, 586, 589.

for post-retirement posts are fraught with possible patronage and illtec-ference with the purity of the Commission's functioning and should be prevented by legal interdict. Art. 316(2) sets limit of six years for the office of Member of Public Service Commission and an outer limit of 60 years of age ( 65 in the case of the Union Public Service Commission). There is an express bar on reappointment on the expiration of the first term Art. 316(2). There is further prohibi-B tion against the securing of any State employment by Members of the Coi;nrnission oiJ. ceasing to be such Members, subject to few excep-tions (Art. 319). If the argument of the appellant were to be accepted, Member, be he Chairman or not, or one or the other in succession, will get total term of six years only. That is to say, even in the middle of his term as Member .. if he is appointed Chairman, he will get only run of six years to serve from the date he became an ordi-nary Member. On the other hand, if the rival contention of the res-pondent were to prevail, in the case of Member of State Public Service Commission, there is possibility of his getting maximum of six years as ordinary Member and another six years as Chairman of the Commission in the same State. Of course, we are not concerned with the prospect of appointments in other States as the mischief sought to be prevented is the possibility of abuse by too long tenure in the same State. The situation in which Member may thus enjoy twelve-year term is so rare and, perhaps, may fall to the good fortune of only few exceedingly good Members-and, indeed, anything be-tween six to twelve years may not be so very long in the effective life of public servant-that the apprehension of the object of brief term being frustrated does not disturb us. In this context, it is reassur-E ing to note that in twelve states and the Union there have been, as disclosed by Ext. 'G', only two instances beyond eight years of tenure and only 19 cases where more than six year term is seen to have been obtained. May be Ext. 'G' is not exhaustive, and incidentally it indicates the practice which has prevailed in the country during the last over two decades of reading Art. 319 ( d) as enabling fresh term of office from the date of appointment as Chairman. It is clear that though mere practice cannot legitimise what is illegal it contradicts the consternation raised by the appellant of likely misuse of power. In the last resort the menace to purity of these high offices comes as much from dubious pres>Lrres and patronage as from ,other causes and where the highest seats of power do not gnard against these evils, no constitution, no law, no court can save probity in Administration. We cannot assent to the appellant's argument of fear.

Nor is this question of law res integra· The Calcutta High Court had considered it in Full Bench decision reported in AIR 1966 Cal. 290. The majority view was that the term of office of six years was to be computed from the date of the appointment as Member of the commission and even if, in midstream he was made Chairman. tin;ie. ran out fin~lly at t~e end of the first six years. The minority opinion handed m by Mitter, J. took contrary view based on an harmonious reading of Arts. 316 and 319 reaching the result that Member appointed as Chairman inaugurates new term from the later date. The Mysore High Court was confronted with this questionin Writ petitions Nos. 6492, 5031 and 3758 of 1969. There the challenge to the validity of the Chairman's continuance in office WiiS made by certain disappointed applicants f0r the post of District Educational officer. The High Court followed the minority view of Mitter, J. and the respondent in this appeal has produced copy of the Mysore Judgment as Ext. 'B' along with his Writ Petitio11 s4Jce the ruling has not been reported. The Orissa High Court also fell in line with Mysore, dissenting from the majority judgment in the Calcutta case. Thlt decision, reported in AIR 1970 Orissa 205, reads into t'1e appointment of Member as Chairman an ipso facto cessation of his former office as Member when he enters upon the duties of his new office, and thus seeks to reconcile Art. 316 with Art. 319. The High Court of Patna responded ta this issue in like manner in judgment rendered in CW.J .C. 1997 of 1970 (reproduced at pages 54 to 61 of vol. II of the paper-book). It may be noticed that special leave Petition apinst this Judgment was dismissed in line by the Supreme Court (the said order is Ext. 'C' in the writ petition). ·

It now remains to understand the ratio of those decisions in the light of the anatomy of the constitutional scheme contained in Arts. 316 to 319. At this stage we may read Arts. 316, 317 and 319 in extenso :

316 (1) Appointment and terms of office of Members.

The Chairman and other Members of Public Service Commission shall be appointed in the case of the Union. Commission or Joint Commission by the President, and in the case of State Commission, by the Governor of the State :

Provided that as nearly as may be one half of the mem-bers of every Public Service Commission shall . be persons who ;it the dates of their respective appointments have he!P office for at least ten years either under the Govern-ment of India or under the Government of State, and in computing the said period of ten years any period before the commencement of this Constitution during which person has held office under the Crown in India or under the Govern-ment of an Indian State shall be included.

(I A) 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 per-form the duties of his office, those duties shall, until some person appointed under clause ( 1) to the vacant office has entered on the duties thereof or, ·as the case may be, until the 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 Comrilission or Joint Commis-sion, ·and the Governor of the State in the case of State Commission, may appoint for the purpose. (2) member of Pnblic Service Commission shall hold · , office f.or term of six years from the date on which

he enlers upon hii ofiice or until he attains, in the case of the Union Commission, the age of filxty-five years, and in the case of State Commission or Joint Commission, the age of srxty years. 1yhichever is earlier : Provided that-

.( a) member of Public Service Ccmmission may, by writing under his hand addressed, in the case of the Union Commission or Joint Com-mission, to the President. and in the c~se of State Commission, to the Governor of the State, resign his office;

. (b) member of Public Service Commission, may be removed from his office in the manner pro-vided in clause (1) or clause (3) of Article 317.

( 3) person who holds office as member of Public Service Commission shall. on the expiration of his term of office, be ineligible for reappointment to that office.

Removal and suspension of Member of Public Service Com·· 1nission.

317 ( 1) Subjecf to the provisions of clause ( 3), the Chairman or any other member of Public Service Commission shall only be removed from bis office by order of the President on the ground of mis-behaviour 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 such ground to be removed.

(l) The President, in the case of the Union Commis-sion or Joint Commission, and the Governor in the case of State Commission, may suspend from . office the Chairman or any other member of t))e Commission in respect of whom reference has been made to the Supreme Court under clause ( 1) until the President has passed orders on receipt of the report of the Supreme Court on such reference. · ( 3) Notwithstanding anYi!hirig in clause (1 ) , · the President may bv' order remove from office the Chair-man or any other member of Public Service Commission if the Chairman or such other member, as the case may be-

( a) is adjudged an insolvent; or

(h) engages during his term of office in any paid employment outside the duties of his office; or

(c) is, in the opinion of the President, unfit to continue in office by reason of infirmity of mind or body.

(-l) If the Chairman or any other member of Public Service Comll)ission is or becomes in any way con-cerned or interested in any contract or agreement II .nade by or on behalf of the Government of India or the Government of State or participates in any way in the profit thereof or in any benefit or emolu-ment arising therefrom otherwise than as member and in common with the other members of an incor-porated company, he shall, for the purposes of clause (1), be deemed to be guilty of misbehaviour.

Prohibition as to the holding of office by members of Commission -0n ceasing to be such members.

319. On c~asing to hold office-

(a) the Chairman of the Union Public Service Commis-sion shall be ineligible for further employment either under the Government of India or under the Government of State;

( b) the Chairman df State Public Service Commis-sion shall be eligible for appointment as the Chair· man or any other member of the Union Public Service Commission or as the Chairman of any other State Public Service Commission, but not for any other employment either under the Government of India or under the Government of State;

( c) member other than the Chairman of the Union Public Service Commission shall be eligible for appointment as the Chairman of the Union Public Service Commission or as the Chairman of State Public Service Commission, but not for any other employment either under the Government of India or under the Government of State;

( d) member other than the Chairman of State Public Service Commission shall be eligible for appointment as the Chairman or any other member of the Union Public Service Commission or as the Chairman of that or any other State Public Service Commission, but not for any other tmploym~nt either under the Government of India or under the Government of State.

. It is obvious from the language of the articles, admitted by both sides and accepted by all the decisions that Chairman· also is Member. Th~ appellant's argument is that Art. 316(2) fixes teDri of o!lice of six years fo_r member. who ex hypothesi includes Chairman. and so the incumbent, be he member simpliciter or

meniber-cum-Chairman or for part of the period member and hlkr Chairman cannot exceed the legal span of six years in all, member· ship being common denominator covering both offices._ The framers have taken care to limit the life of member to term of six years. And wherever (unlike in Art. 316 (2) distinct treatment . for the two offices is intended clear language separately dealing with them, or by making references: has been used, as is s~ evident from Arts. 316(1A), 317 and 319). To fortify the reasonmg, reliance is pl~ced. on Art.. 361 ( 3) which places an embargo on reappomtment on exprry ot the tern~ of office of member (which expression covers Chairman). larger·than-six-year term by taking on Chairmanship to membership would violate sub-art. 2 and subvert sub-art. 3 of Art. 316, runs the submission. So presented, the argument seems impressive. But this C!pparent tenor gets severe jolt when we turn to Art. 319(l)(d)_, for, if full credit were to be given to the opening words, "on ceasing to hold office" member of Public Service Commission is declared to be eligible for appointment as its Chairman at the expiration of his six-year term as ordinary member. member ceased to hold office when six years of service are over and remotely when he is removed for infirmities (Art. 317). To deny this effect to the provision, Which is an integral part of the scheme, and to confine its operation to reoondite instances of insolvents, delinquents and imbeciles dealt with in Art. 317 is to argue Art. 319 into reductio ad absurdum.

closer probe into the key Articles 316 and 319 informed by the brooding presence of constitutional purpose behind them, may now be undertaken. subject-wise dichotomy suggests that Art. 316 deals with the appointment of the Chairman and members of the Commiss~on, their term of office and their ineligibility for re-appoint-m~nt, while Art. 31? relates _to different topic viz., the prohibition, with narrow exceptions, agamst further employment in St.ate service. Concer_n for purity of the o1:fi~e and vulnerability to abuse of powers ~e wnt lai;ge, on _thes~ prov1s10ns. _Even .so, few legal ideas pervad-ing the articles will dissolve the difficulties conjured up based on Art. 316(2) and (3). Let us itemise them.

(1) Chaifman is also member, as the very first words cf Art. 316 indicate.

(2) Nevertheless, the office of member is different from that of Chairman and so also the duties attached to each, as is eloquently evident from Art. 316(1A).

Thus while both arc members, they bold different offices. Sub· :~rt. (2) sanctions th~ holding of office by member for six years from the date on which he enters upon his office" which is signified by his.cnterin~ 'on the duti~s thereof', to .adopt the language of (IA). An office? as 1s. thus ~elf-ev1den~, has duties and member simpliciter has certain ~uties while Charrman has other duties of olicc. The offices are .di!fcrent though both the holders are generally members. ~ prescription of the terminus quo in (2) is 'from the dale on which he ellfers upon his office' which, in the case of Chairman

appointed directly as such or originally as member, and later elevated as Chail'l)lan, begins wl_ien he starts functioning as Chairman. So far is clear. ·

Article 316(3) neatly fits in and indeed the draftsman has per-spicaciously focussed attention here on the office of person (as distinct from membership) -and the incumbent's ineligibility to n reappointmen1 to that otlicc. The cardinal point is the identity of the office and tl1e injunction is against reappointment to that ~ office. member can fill one of two offices--as an ordin:uy_mem1'er or as member-Chairman and the disability for reappointment attaches to the specific office. The distinction is fine but · real. ' No member who holds the office of just member pure and simple sl1all be re-appointed to that office i.e. to the office of member pure and simple. The offices being .different it is semantically wrong to describe the appointment of member to the office of Chairman as reappoint·· :rnent. To re-appoint to an office predicates the previous holding of that identical office. Re-, as prefix has the sense of 'again'. It follows straight from this that an ordinary member when elevaied to .the higher office of Chairman is not reappointed arid does not contravene Art 316(2) or (3) even if it be on the full course of $iX years of the · office of ordinary member having run out.

Now let us stiidy the ambit and limitations of Art. 319. ll primarily enumerates the prohibitions' attached to the holders of offices of Chairman and member of Public Service Commissions but carves out few 'savings'· to the 'donts'. We arc directly _concerned -with sub-d. ( d) which bars member from taking up employment under Government but expressly dedares, by way of · exception, eligibility for a;ipointment -"as the Chairman of that or any other State Public Service Commission". on ceasing to hold office as member (See the careful accent on· office and appointment without the re). The • fair meaning cif this provision is that member of Public Service Com-misskm of State on ceasing to hold office as such is eligible . for appointment as Chairman _ of that Commission itself. Ordinarily when member has run out his term under Art. 316(2). he ceases to hold.office. Art. 316(2) states that member shall hold office for term of six years which means that on the expiration of that period he ceases to hold office. So ,the normal way member ceases · to hold office is by. his six-year term spending itself out (or by his crossing the age' bar of 60 or 65 as -the case 'may be). Logically. therefore. A;t. 319 means that -a member on ceasing to hold office, as result of his six-year term expiring, shall be eligible for appoint-ment as Chairman of the same Commission. There is no contraven-tion of Art. 316(3) which {lt"CVents reappointment to the same office. In the present case, the office of member is different from the office of the Chairman and so there is no ri-appointment to !hat office when member is 1made Chairman .. Similarly, Art. 316(2) is not breached because there is six-year term for each office. The counter argu-ment 'on the basis of Art. 316(2) and (3) fails to exJ!laiii Art. 319 (1 )( d) which expressly authorises appointment of memb~r as

Chainnan on ceasing to hold office. The very strained argument that the cessation contemplated is not the straightforward category ol persons whose six-year term has expired, but the condemned and re-condite category coyered by Art. 317(3) is too jejune for judicial acceptance. For one thing it is extraordinary to think that persons covered by Art. 317(3) will at all be considered for appointment to hi&her post of Chairman. That sub-Article speaks of removal of member because of insolvency or objectionable engagement in paid employment outside the duties of his office or ineffectiveness to continue in office by reason of infirmity of mind or body. The argu-ment is only to be mentioned to be rejected and it is hardly fair to the framers of the Constitution to think that they would have contem-plated such unworthies to be appointed to higher posts by s~ial provision under Art. 319 while the whole purpose of that Article is to maintain purity in service by prohibiting temprntion for future offices or employment.

The learned Advocate General urged that Art. 316([2 ]) would be stultified by the interpretation we adopt of Art. 319. If member can. be appointed as Chairman on ceasing to hold office under Art. 316 (2), he could as well be appointed so not nlercly when his six~year term has expired but also after he has attained the age of sixty years. There is fallacy in this submission which will be apparent on careful reading of Art. 316(2). That sub-article says that member shall bold office for six years or until he attains sixty years. whichever is earlier. When an ordinary member is appointed chairman by virtue of the permission written into AT!. 319(d), what really happens is that the incumbent takes hold ·of new office, namely, that of Chairman. He is member all the same, as we have earlier seen. This member-cum-Chairman in terms of Art. 316(2) shall bold office, wliich in this case means bis riew office, for term of six years or until be attains the age of sixty years. If he is appointed Chairman past sixty, the appointment will be still-born because by the mandate of Art. 316{2 J he shall hold office only until be attains the age of superannuation. This date having already transpired, he cannot hold the office at all. Another conundrum raised is as to how when an ordinary member in the course of the six-year period is appointed Chairman. we can read into such an appointment as 'ceasing to hold office' as member this being requirement for Art. 319 to apply. The obvious answer is that when member holding the office of member takes up the office of Chairman, he, by necessary implication and co i11stante. relin· quishes or ceases to hold his office as ordinary member. It is .incon-ceivable that he will hold two offices at the same time and that will

ahlo reduce the number of members of the Public Service Commission. Therefore, logically and legally we may spell out an automatic expiry of office of the member qua ordinary member on his assumption of olli.ce qua Chairman.

Nor is the public mischief sought to be avoided by Arts. 316 and 319 defeated by this interpretation. In any case they cannot serve iadefinitely, nor remain for anything like twentyfive or thirty years which ls the normal tenure of Government servant.

The various rulings we have adverted to earlier substantially _adopt the arguments we have set out, although in some of them there is IDl!'ginal obscurity. The thrust of the reasoning accepted in an but the ea!cutta case substantially agrees witli what has appealed to us. For these reasons we dismiss the appeal with costs.

V.l'.S.

Appeal dismissed.