Input:
Appeal No. 1278 of 1969.
Appeal from the judgment and order dated March 13, 1969 of the Allahabad High Court in Special Appeal No. 1060 of 1967.
C.K. Daphtary,, Yogeshwar Prasad, S.K. Davon and section Bagga, for the appellants.
H.R. Gokhale, J.P. Goyal, Ilyas Hussain and V.C. Prashar, for respondents Nos. 1 and 2.
The Judgment of the Court was delivered by Shelat, J.
The question arising in this appeal, by certificate, may be stated thus: When an applicant applies for a permit to run a passenger bus service on the ground that the route for which he applies, though one not yet opened, is necessary in public interest, but the Regional Transport Authority comes to.
the conclusion that it does not, and thereupon rejects his application, whether his order is one under section 48 of the , 4 of 1939 and is, therefore, appealable under section 64(a) of that Act ? The route involved in this case was the one between Meerut and Dankaur which had no direct passenger bus: service.
There were, however, two routes which were being operated, namely, one from Meerut to Bulandsharhar and the other from Siana to Dankaur, one crossing the other, so that if one wanted to go from Meerut to Dankaur there was no direct service, and therefore, he would have first to travel in the bus running from Meerut to Bulandshahar, get down at a place near Gulsothi and catch the bus running from Siana to Dankaur.
This was the position when the appellants, amongst others, applied to the Regional Transport Authority for permits to operate.
a direct service from Meerut to Dankaur.
This was, therefore, not a case where the R.T.A. had already decided upon opening the new route, fixed the number of permits necessary for such a route and then invited applications from operators.
Nevertheless, the R.T.A., follow 245 ing the procedure laid down in section 57 of the Act, published these applications, to which objections.
were raised amongst others by those who were operating on the routes.
earlier referred to.
These applications came up for consideration in the meeting held before the R.T.A. on July 28, 1965 when Item 3 of the Agenda for that meeting was: "To pronounce decision regarding recognition and classification of M eerut to Dankaur via Hapur Gulsothi Sikandarabad route.
and grant of permits thereon.
" It is apparent that Item 3 involved two questions for determination of the R.T.A.; (a) whether the route proposed by the appellants and others should be opened, and (b) if so, to whom, amongst the applicants, should permit or permits, depending upon the number of permits he.
should decide upon, should be granted.
After hearing the applicants and those who opposed them, the R.T.A. was satisfied that there was no sufficient demand for such a direct service, and therefore, there was no justification for opening the proposed new route.
Having arrived at that ' conclusion the question of granting or not granting permits to individual applicants did not arise and he rejected the applications of the ' appellants and other applicants.
Appeals having been filed before the Appellate Tribunal, the Tribunal reversed the order of the R.T.A. and granted permits to the three appellants.
The respondents thereupon filed writ petitions in the High Court for quashing the order of the Tribunal contending that no appeal against the order of the.
R.T.A. lay under section 64(a), and that con sequently, the Tribunal had no jurisdiction to entertain such appeals and grant permits to the appellants.
The learned Single Judge of the High Court, who.
heard the writ petitions in the first instance, dismissed them, but on appeal against his order the Division Bench of the High Court came to the conclusion that no appeal against the said order of the R.T.A. lay under section 64(a), and accordingly, allowed the writ petitions and quashed the Tribunal 'section order.
This appeal is directed against this order.
Counsel for the appellants urged that there was.
no provision in the Act separately providing for the R.T.A. to decide first as to whether particular route proposed by an applicant should be opened or not.
It was argued that the provisions of Ch., IV, and in particular sections 47 and 57, show that once an application for a permit is made and is published and objections thereto are invited and the R.T.A. applies his mind to it and rejects it, no matter what his reasons for such rejection are, his order amounts to.
a refusal under section 48 and is appealable under section 64(a).
The rival contention, on the other hand, was that section 47(3), which .
C1/70 4 246 contains the power of the R.T.A. to first determine the number of permits necessary for a particular route, [which decision, as held by this Court, is not appealable under section 64(a)], contains also the power to decide whether a proposed route should be opened or not, and that it is only after these two points are first ,decided, that the question, who amongst the applicants should be granted permits, arises.
It is at this latter stage that the question of granting or refusing to grant a permit arises under section 48, and it is against an order under that section that an appeal under 64(a) is provided.
The. argument was based on the principle that a right of appeal is not something which is inherent, but is that which and to the extent it is provided for by the statute.
The provisions of the Act relevant to the questions raised in this appeal as also their scheme have been more than once examined by this Court.
There is therefore, no necessity to analyse them once more.
In Abdul Mateen vs
R. K. Pandey(1) the ,question was whether the Bihar Government acting under section 64 A, as amended by the Bihar Amendment Act, 1950, had the power to increase the number of permits for which applications had been invited by the R.T.A. In negativing the claim that the State Government had such power, this Court inter alia held that section 47 (3) was concerned with a "general order" limiting .stage carriages on a consideration of matters specified in section 47, and that such an order can be modified by the R.T.A. if it so decides one way or the other.
But such a modification is not a matter of consideration when it is dealing with the actual grant of permit under section 48 read with section 57, for, at that stage what the R.T.A. has to do is to choose between various applicants who may have applied under section 46.
The Court held that that is not the stage when the "general order" passed under section 47(3) can be reconsidered, for, the order under section 48 is subject to section 47 including the provisions of section 47 ( 3 ) under which the "general order" limiting the number of permits is passed.
At page 531 of the Report, the Court further held that the appeal contemplated under section 64 is by a person who is aggrieved by the order specified therein and does not contemplate any appeal against "the general order" passed under section 47 (3 ).
On this view of section 47, it was lastly held that when an appeal is taken from an order under section 48 and a revision is ' applied for under section 64 A of the Bihar Amendment Act, the power of the Appellate Authority, as also of the State Government as the revisional authority, is as much subject to section 47(3) as the power of the R.T.A. under section 48, i.e., it cannot grant a permit beyond the limit.
already .decided upon under section 47(3).
In M/s. Java Ram Motar Service (1) ; 247 vs
section Rajarathinam,.(1) the R.T.A. had already introduced the new bus route and then had invited applications for permits.
34 applicants applied for permits.
The R.T.A, however, rejected them all on the ground that there was after all no need for the new route.
On these facts the question was, whether a person, whose application is rejected by the R.T.A. on the ground that there was no need for a new route, in spite of his decision previously arrived at that such a route was necessary, could appeal under section 64(a) against such rejection.
Following the decision in Abdul Mateen 's case(2) we held that: "the Authority had already resolved to introduce a new bus route and invited applications for a permit under sec.
57(2).
It could no doubt have acted under sec.
47 ( 3 ) and modified its earlier decision.
instead, what it did was that while considering the question as to who amongst the 34 applicants should be granted that permit, i.e., at the stage not under section 47(3) but under sec.
48 ( 1 ), it decided to refuse all applications on the ground that there was no longer any need for any such permit.
In other words, though the earlier order was still intact, the authority rejected the applications on the ground that there was no need for any fresh permit.
The order was clearly contrary to the previous order passed under sec.
47(3) and therefore cannot be said to be in consonance with sec.
47 as required by sec.
48 ( 1 ).
The order was not one under sec.
47(3) but under sec.
48(1) refusing thereby the applications including those of the appellant and the respondents and was therefore subject to an appeal under sec.
64(a).
" Does it make any difference to.
the principle laid down in these decisions whether the R.T.A. invites applications having previously decided to introduce a new route or whether an applicant proposes such a new route and applies for a permit.
Abdul Mateen 's case(2) and the case of Java Ram Motor Service(1) were cases where the R.T.A. had first decided to introduce A new route and had then invited application.
On the other hand, in R. Obliswami Naidu vs The Addl.
State Transport Appellate Tribunal, Madras(3) no such decision had been previously taken by the R.T.A. and the appellant had applied for a permit on a new route.
The question canvassed there was whether the R.T.A. had first to decide the necessity of such a new route, and then having come to such a decision proceed (1) CA 95 of l965 decd.
on October 27, 1967.
(2) ; (3) C.A. 1426 of 1968, dec. on Feb. 17, 1969.
248 to examine the question whether an applicaNT should or should not be ' granted the permit.
The Appellate Tribunal had held that the: procedure followed by the R.T.A. was not in accordance with law as it had failed to determine the question of the need for a service for the new route applied for by the appellant before deciding his application for permit, and had contravened the provisions of section 47(3).
The appellant challenged the order by a writ petition in the High Court which was dismissed.
In the appeal in this Court against that order, Hegde, J., speaking for the Court, upheld the view of the Appellate Tribunal and held that though section 47 (3), if read by itself, did not throw light on the question, secs.
47 and 57, when read together, made it clear that the R.T.A. had first to arrive at a decision whether there was the necessity for.
the new route, and then decide under section 48 whether the appellant should be granted a permit or not This decision clearly shows that it makes no difference between cases where applications are invited by the R.T.A. after having come to the conclusion as to the necessity for a new route, or where an applicant himself proposes a new route and applies for a permit.
In both the cases, the R.T.A. has to decide, before reaching the stage of section 48 when he considers individual applications for deciding as to whom amongst the applicants the permit should be granted, whether the new route is necessary in the interest of the public.
The decisions referred to above, in our opinion, clearly lay down that the R.T.A. has first to make "a general order" as stated in Abdul Mateen 's case(1) under section 47(3) as to the number of permits necessary for a new route and he cannot exceed that limit while he is at the next stage when he considers.rs under section 48 read with section 57 as to who amongst the applicants shouId be granted the permit or permits.
Such a "general order" limiting the number of permits presupposes that he has come to a decision that the new route either proposed by him or by an applicant or applicants is necessary in public interest.
Obviously, he does not have to decide the number of permits necessary for such a new route unless he first decides that the new route should be opened.
If the order as to the number of permits is a "general order" passed under section 47 (3), in respect of which the individual applicants are not concerned with and is anterior to the stage under section 48 when applications of the individual operators are taken into consideration,and therefore, not appealable under section 64(a), it must follow a fortiori that the decision as to whether the new route is necessary.
or not is equally a "general order" arrived at either earlier or contemporaneously with the decision as 10 the number of permits.
If the latter order is not appealable, (1) 249 it cannot be that the former, i.e., the decision whether the new route is necessary or not, is not an equally "general order" with which individual applicants are not concerned, and can appeal against it under section 64(a).
On this view, it would at first sight appear as if the R.T.A. has an unlimited or unbridled power in connection with the decision as to whether a proposed route should be opened or not.
That it is not so is clear from section 64 A introduced in the Act by Act 100 of 1955 which confers revisional power on the State Transport Authority, either on its own motion or on an application made to it, to call for the record of any case in which an order has been made by the: R.T.A. and in which no appeal lies, and if it appears to the State Transport Authority that such an order is improper or illegal, to pass such order as it deems fit.
In our view the Division Bench of the High Court correctly interpreted sections 47, 48, 57 and 64, and the decisions of this Court in Abdul Mateen 's case(1) and the case of Jaya Ram Motor Service(2).
The appeal, consequently, must fail and has to be dismissed.
The Appellants will pay to the respondents the costs of this appeal.
R.K.P.S. Appeal dismissed.
(1) ; (2) C.A. No. 95 of 1965 decd.
on Oct. 27, 1967.

Output:
The appellants, among others applied to the Regional Transport Authority for permits to operate a direct bus service on.
a route in Meerut District, U.P., which had no direct passenger bus service.
After hearing the appellants and those who opposed them, the Regional Transport Authority was satisfied that there was no sufficient demand for such a direct service, and therefore, there was no justification for opening the proposed new route.
The. applications of "the appellants and other applicants were therefore rejected.
The Appellate Tribunal reversed the order of the Regional Transport Authority and granted permits to the three appellants.
The respondents therefore filed writ petitions in the High Court for quashing the order of the Tribunal contending that no appeal against the order of the Regional Transport Authority lay under section 64(a) of the and that consequently, the Tribunal had No. jurisdiction to entertain such appeals, and grant permits to the appellants.
A Single Bench dismissed the petitions but the Division Bench held that no appeal against the order of the Regional transport Authority lay under section 64(a) and accordingly, allowed the writ petitions and quashed the Tribunal 's order.
On appeal to this Court, HELD: The appeal must be dismissed.
The decisions of this Court clearly lay down that the R.T.A. has first to make "a general order" as stated in Abdul Mateen 's case under section 47 (3) as to the number of permits necessary for a new route and he cannot exceed that limit while he is at the next stage when he considers under section 48 read with, section 56(7) as to.
who among the applicants should be granted the permit or permits.
Such a 'general order ' limiting the number of permits presupposes that he has come to a decision that the new route either proposed by him or by an applicant or applicants is necessary in the public interest.
If the order 'as to the number of permits is a 'general order ' passed under section 47(3) with which the individual applications are not concerned and is anterior to the stage under section 48 when applications of the individual operators are taken into, consideration, and therefore is not appealable under section 64 (a) it must follow a fortiori that the decision as to whether the new route is necessary or not is equally 'a general order ' arrived at either earlier or contemporaneously with the decision as to the number of permits.
If the latter order is not appealable, it cannot be that the former i.e. the decision whether the new route is necessary or not, is not an equally 'general order ' with which individual applications are not concerned and can appeal against it under section 64 (a).
However, the powers of the R.T.A. in connection with the decision as to whether a proposed route should be opened or not are not un 244 limited and unbridled.
The power is subject to the revisional power of the State Government under section 64 A. [250 E 251 C] Abdul Mateen vs
R.K. Pandev ; ; M/s Java Ram Motor Service vs
section Rajarathinam C.A. 95 of 1965, dec.
on October 27, 1967; R. Obliswami Naidu vs The Addl.
State Transort Appellate Tribunal Madras C.A. 1426 of 19 '68, dec.
on Feb. 17, 1969, applied.


Input:
No. 1123 of 1986.
(Under Article 32 of the Constitution of India).
R.K. Garg and J.R. Das for the petitioner.
A.K. Panda and Vinoo Bhagat for the Respondents.
The Judgment of the Court was delivered by JAGANNATHA SHETTY, J.
This is a petition under Article 32 of the Constitution challenging the validity of the list of candidates prepared by Orissa Public Service Commission, Cuttack for appointment as Probationary Munsifs in the State Judicial Service.
The selection of candidates for subordinate judicial service is governed by the Orissa Judicial Service Rules, 1964 (the "Rules").
The Rules were flamed under the proviso to Article 309 read with Article 234 of the Constitution of India.
The State Public Service Commission (The "Commission") is the selecting authority.
The candidates are required to be selected by written test followed by viva voce test.
The written examination carries the maximum marks of 950 and the viva voce test 200.
In accordance with the Rules, the Commission issued advertisement No. 12 of 1982 83 inviting applications from eligible candidates for posts of Probationary Munsifs.
The petitioner was one of the candidates who applied in response thereof.
In the written examination conducted by the Commis sion the petitioner secured 470 marks.
He was called for viva voce test in which he was given 30 marks.
He thus secured in all 500 out of 1150.
The Commission prepared a list of candidates which we may term as 'select list ' and recommended to the Government altogether 56 candidates in four batches as desired by the latter.
The petitioner did not find a place in that list.
The candidates with less number of aggregate marks than that of the petitioner have, however, been selected.
The petitioner, therefore, chal lenges the validity of selection, on the ground among others that it is arbitrary and contrary to the Rules.
1100 The reason for exclusion of the petitioner from the select list is not obscure.
It has been at any rate now made explicit.
He did not secure the minimum qualifying marks prescribed by the Commission in the viva voce test.
In the counter affidavit filed on behalf of the Commission it has been so stated.
It is said that the Commission has taken a decision that a candidate to be suitable for the post of Munsif, should secure at least 30% at the viva voce test.
That decision was taken on the advice of the High Court Judge.
The question for our consideration is whether the mini mum marks prescribed by the Commission at the viva voce test is justified, and whether the select list prepared by the Commission is in accordance with the Rules.
Rules 16, 17, 18 and 19 are the relevant rules which have a material bearing on the question that falls for determination: These Rules read as under: Rule 16: "The Commission shall summon for the viva voce test all candidates who have secured at the written examination not less than the minimum qualifying marks obtained in all subjects taken together which shall be the (30%) of the total marks in all the papers: Provided that Government may after consulta tion with the High Court and Commission fix higher qualifying marks in any or all of the subjects in the written examination in respect of any particular recruitment.
Rule 17: The Chief Justice or any of the other Judges of the High Court nominated by the Chief Justice shall represent the High Court and be present at the viva voce test and advise the Commission on the fitness of candi dates at the viva voce test from the point of view of their possession of the special quali ties required in the judicial service, but shall not be responsible for selection of candidates.
Rule 18: The marks obtained at the vive voce test shall be added to the marks obtained in the written examination.
The names of candi dates will then be arranged by the Commission in order of merit.
If two or more candidates obtain equal marks in the aggregate, the order shall be determined in accordance with the marks, secured at the written examination.
Should the marks secured at the written exami nation of the 1101 candidate concerned be also equal, then the order shall be decided in accordance with the total number of marks obtained in the optional papers.
Rule 19: (1) The Commission shall then forward to the Government in the Law Department the list of candidates prepared in accordance with Rule 18 indicating therein whether a candidate belongs to Schedule Caste or Scheduled Tribes.
(2) The list prepared shall be published by the Commission for general information.
(3) The list, unless the Governor in consulta tion with the High Court otherwise decides, shall ordinarily be in force for one year from the date of its preparation by the Commi ssion.
" The Rule making authorities have provided a scheme for selection of candidates for appointment to judicial posts.
Rule 16 prescribes the minimum qualifying marks to be se cured by candidates in the written examination.
It is 30% of the total marks in all the papers.
The candidates who have secured more than that minimum would alone be called for viva voce test.
The Rules do not prescribe any such minimum marks to be secured at the viva voce test.
After the viva voce test, the Commission shall add the marks of the viva voce test to the marks in the written examination.
There then, Rule 18 states: "The names of candidates will then be arranged by the Commission in the order of merit.
" This is the mandate of Rule 18.
The Commission shall add the two marks together, no matter what those marks at the viva voce test.
On the basis of the aggregate marks in both the tests, the names of candidates will have to be arranged in order of merit.
The list so prepared shall be forwarded to the Government.
The Commission has no power to exclude the name of any candidate from the select list merely be cause he has secured less marks at the viva voce test.
Similar pattern of selection is generally found in all the rules of recruitment which prescribe written examination and also viva voce test.
There are two authorities of this Court in this aspect of the matter.
In P.K. Ramchandra Iyer & Ors.
vs Union of India & Ors.
, ; this Court considered the scope of recruitment rules 1102 governing the selection of candidates to various disciplines under the Indian Council of Agricultural Research.
There the Agricultural Scientists Recruitment Board (ASRB) was re quired to select candidates by holding competitive examina tion and viva voce test.
ASRB prescribed minimum qualifying marks which a candidate must obtain at the viva voce test before his name could be included in the merit list.
The question that fell for consideration was whether the ASRB was competent to prescribe such a minimum? Accepting the contention that ASRB has no such power, this Court observed (p. 244): "Neither Rule 13 nor Rule 14 nor any other rule enables the ASRB to prescribe minimum qualifying marks to be obtained by the candi date at the viva voce test.
On the contrary, the language of Rule 14 clearly negatives any such power in the ASRB when it provides that after the written test if the candidate has obtained minimum marks, he is eligible for being called for viva voce test and the final merit list would be drawn up according to the aggregate of marks obtained by the candidate in written test plus viva voce examination.
The additional qualification which ASRB pre scribed to itself namely, that the candidate must have a further qualification of obtaining minimum marks in the viva voce test does not find place in Rules 13 and 14, it amounts virtually to a modification of the Rules.
By necessary inference, there was no such power in the ASRB to add to the required qualifica tions.
If such power is claimed, it has to be explicit and cannot be read by necessary implication for the obvious reason that such deviation from the rules is likely to cause irreparable and irreversible harm.
" The closest to the facts of this case is the recent decision of this Court in Umesh Chandra Shukla etc.
vs Union of India, [19851 Supp. 2 SCR 367.
There the scope of Delhi Judicial Service Rules, 1970 came up for considera tion.
Rules 17 and 18 of the Delhi Judicial Service Rules, 1970 are similar to Rules 16 and 18 of Orissa Judicial Service Rules, 1964.
The Selection Committee constituted under these Rules consisted among others of Judges of the High Court of Delhi.
The Selection Committee apparently thought that it has got power to exclude candidates securing less than 600 marks in the aggregate as not being suitable for appointment to the Judicial Service.
Accordingly it excluded all such candidates from the select list.
It was contended before this Court that the Selection Committee would be competent to 1103 prescribe a minimum standard to be crossed by candidates at the vive voce test in order to be suitable for appointment to judicial posts.
Repelling that contention this Court ob served (pp. 382 383): "With regard to the second contention, namely, that the High Court had no power to eliminate the names of candidates who had secured less than 600 marks in the aggregate after the viva voce test, reference has to be made to Rules 17 and 18 of the Rules which provide that the Selection Committee shall call for viva voce test only such candidates who are qualified at the written test as provided in the Appendix and that the Selection Committee shall prepare the list of candidates in order of merit after the viva voce test.
There is no power reserved under rule 18 of the Rules for the High Court to fix its own minimum marks in order to include candidates in the final list.
It is stated in paragraph 7 of the counter affidavit filed in Writ Petition No. 4363 of 1985 that the Selection Committee has inherent power to select candidates who according to it are suitable for appointment by prescribing the minimum marks which a candidate should obtain in the aggregate in order to get into the Delhi Judicial Service.
It is not neces sary to consider in this case whether any other reason such as character, antecedents, physical fitness which may disqualify a candi date from being appointed to the Delhi Judi cial Service may be taken into consideration by the Selection Committee while preparing the final list.
But on going through the Rules, we are of the view that no fresh disqualification or bar may be created by the High Court or the Selection Committee merely on the basis of the marks obtained at the examination because clause (6) of the Appendix itself has laid down the minimum marks which a candidate should obtain in the written papers or in the aggregate in order to qualify himself to become a member of the Judicial service.
The prescription of the minimum of 600 marks in the aggregate by the Selection Committee as an additional requirement which the candidate has to satisfy amounts to an amendment of what is prescribed by clause (6) of the Appendix.
The question whether a candidate included in the final list prepared and forwarded by the Selection Committee may be appointed or not is a matter to be considered by the appointing authority.
In the instant case the decision that a candidate should have sec 1104 ured a minimum of 600 marks in the aggregate in order to be included in the final select list is not even taken by the High Court but by the Selection Committee.
Moreover, recruit ment of persons other than District Judges to the Judicial Service is required to be made under Article 234 of the Constitution in accordance with the Rules made by the Governor as provided therein, in consultation with the High Court.
Article 235 which vests in the High Court the control over the District Courts and Courts subordinate thereto, cannot include the power of making rules with regard to recruitment of persons other than District Judges to the judicial service as it has been expressly dealt with in Article 234 of the Constitution.
We are of the view that the Selection Committee has no power to prescribe the minimum marks which a candidate should obtain in the aggregate different from the minimum already prescribed by the Rules in its Appendix.
We are, therefore, of the view that the exclusion of the names of certain candi dates, who had not secured 600 marks in the aggregate including marks obtained at the viva voce test from the list prepared under rule 18 of the Rules is not legal." In the light of these decisions the conclusion is inevi table that the Commission in the instant case also has no power to prescribe the minimum standard at viva voce test for determining the suitability of candidates for appoint ment as Munsifs.
It was, however, urged by counsel for the respondents that the principles enunciated by the aforesaid two deci sions of this Court cannot be extended to the case on hand.
The counsel sought to derive support for their contention on rule 17.
Rule 17 provides that the Chief Justice or any other Judge of the High Court nominated by the Chief Justice shall represent the High Court and be present at the viva voce test.
He shall also advice the Commission on the fit ness of the candidates at the viva voce test.
The advice may relate to the special qualities to be possessed by candi dates for Judicial Service.
The Rule 17, however, proceeds to state that such a Judge shall not be responsible for selection of candidates.
The contention for the respondents was that a Judge of the High Court was present at the viva voce test.
He was an expert in the field.
He was primarily concerned with regard to fitness of candidates for judicial service.
He advised the Commission to determine the minimum marks to be secured at the viva voce test.
The Commission accepted the advice and determined the cut out 1105 marks in the viva voce.
It was also contended that the Judge could advise as to fitness of candidates for judicial ap pointment and his advice could also relate to the minimum which a candidate should secure in the viva voce test.
If such power is not conceded to the Judge, his presence at the interview as provided under rule 17 would totally be unnec essary.
We are not persuaded by this argument.
That does not mean that we are doubting the purpose of rule 17.
The pur pose is undoubtedly laudable and indeed, it is in accordance with the observations of this Court in Ashok Kumar Yadav and Ors.
vs State of Haryana and Ors etc.
etc., [19851 Supp. 1 SCR 657.
There it was observed: "It is therefore essential that when selec tions to the Judicial Service are being made, a sitting Judge of the High Court to be nomi nated by the Chief Justice of the State should be invited to participate in the interview as an expert and since such sitting Judge comes as an expert who, by reason of the fact that he is a sitting High Court Judge knows the quality and character of the candidates ap pearing for the interview, the advice given by him should ordinarily be accepted, unless there are strong and cogent reasons for not accepting such advice and such strong and cogent reasons must be recorded in writing by the Chairman and members of the Public Service Commission.
" But the crux of the matter is whether the Judge present at the viva voce test has the power to add anything to the Rules of recruitment.
He may advice the Commission as to the special qualities required for judicial appointments.
His advice may be in regard to the range of subjects in respect of which the viva voce shall be conducted.
It may also cover the type and standard of questions to be put to candidates; or the acceptance of the answers given thereof.
But his advice cannot run counter to the statutory Rules.
The Rules have been framed under the proviso to Article 309 read with the Article 234 of the Constitution.
Article 234 requires that the appointment of persons other than District Judge to the Judicial Service of State shall be made by the Governor of the State.
It shall be in accordance with the rules made by the Governor in that behalf after consultation with the State Service Commission and with the State High Court.
The Rules in question have been made after consultation with the Commission and the State High Court.
The Commission 1106 which has been constituted under the Rules must, therefore faithfully follow the Rules.
It must select candidates in accordance with the Rules.
It cannot prescribe additional requirements for selection either as to eligibility or as to suitability.
The decision of the Commission to prescribe the minimum marks to be secured at the viva voce test would, therefore, be illegal and without authority.
In the result we allow the petition and quash the selec tion made by the Orissa Public Service Commission with a direction to redo the select list on the basis of the aggre gate marks obtained by the candidates in the written exami nation and at the viva voce test and in the light of the observations made.
The list so prepared shall be forwarded to the Government as required under rule 19 of the Rules for appointments as Munsifs.
The persons who fall within the revised list, if they are already in service need not be disturbed.
Their inter se seniority, may however, be regu lated as per the rankings in the revised list.
In the circumstances, however, we make no order as to cost.
P.S.S. Petition allowed.

Output:
The petitioner had secured 470 marks out of 950 in the written examination conducted by the Orissa Public Service Commission for the post of Probationary Munsifs for the year 1982 83.
In the viva voce test he was given 30 marks out of 200.
But he did not find a place in the merit list though candidates with less number of aggregate marks had been selected.
In the writ petition under article 32 of the Constitution he challenged the validity of selection on the ground, among others, that it was arbitrary and contrary to rules.
For the respondents it was submitted that the Commission had taken a decision on the advice of the High Court Judge who was present at the viva voce test as provided under r. 17 of the Orissa Judicial Service Rules, 1964, that a candidate to be suitable for the post of Munsif should secure at least 30 per cent marks at the viva voce test, and that the petition er did not secure the minimum qualifying marks so pre scribed.
Allowing the writ petition, HELD: 1.
The decision of the Orissa Public Service Commission to prescribe the minimum marks to be secured at the viva voce test for the post of Probationary Munsifs in the State Judicial Service was illegal and without authori ty.
[1106B] 2.1 The Orissa Judicial Service Rules, 1964 flamed under the proviso to Article 309 read with Article 234 of the Constitution, have been made by the Governor of the State after consultation with the State 1098 Public Service Commission and the State High Court.
The Commission, which has been constituted under the Rules must, therefore, faithfully follow the Rules.
It must select candidates in accordance with the Rules.
It cannot prescribe additional requirements for selection either as to eligibil ity or as to suitability.
[1105G H; 1106A] 2.2 Rule 16 of the Rules requires a candidate to secure a minimum of 30 per cent marks in the written examination to qualify.
The candidates who have secured more than that minimum would alone be called for viva voce test.
The Rules do not prescribe any such minimum marks to be secured at the viva voce test.
Rule 18 mandates the Commission to add the marks obtained at the written examination and the viva voce test together, no matter what the marks at the viva voce test.
On the basis of the aggregate marks in both the tests, the names of candidates will have to be arranged in order of merit.
The list so prepared is then to be forwarded to the Government under Rule 19.
[1101D E; F] The Commission, therefore, had no power to exclude the name of any candidate from the select list merely because he had secured less marks at the viva voce test.
[1101G] P.K. Ramchandra Iyer & Ors.
vs Union of India & Ors.
, ; ; and Umesh Chandra Shukla etc.
vs Union of India, [1985] Supp. 2 SCR 367, referred to.
Even if the minimum qualifying marks were fixed for the viva voce test by the Commission on the advice of the High Court Judge, present at the viva voce test in accord ance with r. 17 of the Rules, that cannot validate the action of the Commission, for he had no power to add any thing to the Rules of recruitment.
Rule 17 itself proceeds to state that such a Judge shall not be responsible for selection of candidates.
He may advise the Commission as to the special qualities required for judicial appointments.
His advice may be in regard to the range of subjects in respect of which the viva voce shall be conducted.
It may also cover the type and standard of questions to be put to candidates or the acceptance of the answers given thereof.
But his advice cannot run counter to the statutory Rules.
[1104F H; 1105F] Ashok Kumar Yadav and Ors.
vs State of Haryana and Ors. etc.
etc., [1985] Supp. 1 SCR 657, referred to. 4.
The Orissa Public Service Commission is directed to re do the select list on the basis of the aggregate marks obtained by the candidates 1099 in the written examination and at the viva voce test.
The list so prepared to be forwarded to the Government as re quired under r. 19 of the Rules for appointments as Munsifs.
The persons who fall within the revised list, if already in service need not be disturbed.
Their inter se seniority to be regulated as per the rankings in the revised list.
[1106B D]


Input:
Appeal No. 1359 of 1993.
From the Judgment and Order dated 16.1.192 of the Patna High Court in C.W.J.C. No. 446 of 1992.
K.N. Chaubey, K. Pandeya and Mohan Pandey for the Appellant.
523 Gobinda Mukhoty, N.N. Goswami, S.K. Bhattacharya, C.V.S. Rao Ms. K.K. Manglam, L. R. Singh, Vikas Singh, Yunus Malik, B.B. Singh Ms. Vimal Sinha and Ms Kumud L. Das for the Respondents.
The Judgment of the Court was delivered by SAWANT, J.
Leave granted.
The appellant is a member of the Bar.
He had field a petition in the nature of a public interest litigation under Article 226 of the Constitution of India before the High Court of Patna praying for a writ of quo warranto challenging the appointment of respondent No. 6, Dr. Shiva Jatan Thakur as a Member of the Bihar, State Public Service Commission.
The High Court dismissed the writ petition.
Hence the present appeal.
The attack against the appointment of respondent No. 6 is based on, two grounds: [a] on the date of his appointment i.e., 4th March, 1991 respond No. 6 was the seventh non service member.
The total strength of the Public Service Commission being eleven [uncluding the Chairman] the appointment of the seventh member from the ' non service category, was violative of the proviso to article 316[1] of the Constitution which requires that as nearly as may be one half of the members shall be persons who have held office for at least ten years either under the Government of India or under a Government of the State.
[b] respondent no.6 was totally blind even from a date prior to his appointment and was unfit to be appointed by reason of the said physical infirmity.
We are, accordingly, required to consider whether these two grounds were sufficient to disqualify respondent No. 6 from being appointed as a member of the, commission.
In his counter affidavit, respondent No. 6 has stated among other or things, that he happens to be the son of a peon retired form the Railway We are informed by Shri Mukhoty, the learned counsel appearing for him 524 that he belongs to the backward community of barbers.
He has been blind since the age of eight years.
In spite of his blindness, he was able to pursue his educational career successfully, and he earned degrees and diplomas.
He is a Ph.D. in English of the Patna University.
He has been a University college teacher in English and he was promoted to the post of Reader in English on the completion of bare eight years of service.
He was the first teacher of the Patna University who was unanimously recommended for the award of D. Litt.
on account of the excellence of his thesis written for Ph.D. As a scholar in English, he has submitted papers to national and international conferences.
He is a life member of the organisations who sponsor these conferences.
The Government of Bihar vide its D.O. letter No. 2740 dated 22nd October, 1991 sent to the Union Ministry of Home Affairs, had recommended him for the prestigious national award of 'Padmashree ' for his services as a Member of the Public Service Commission.
The President of India on 15th March, 1992 conferred on him National Award which reads: "this national award is given to Dr. Shiva Jatan Thakur in public recognition of his outstanding performance as the most efficient employee".
He has also referred to the circumstances under which his present appointment came to be challenged nearly 9 1/2 months after it was made.
While he was appointed on 4th March, 1991, the writ petition was filed in the High Court on 14th January, 1992.
According to him, he had made a representation to the President of India, the Governor of Bihar and others, against the serious misconduct, gross malpractice and wilful violation of the constitutional mandate by the Chairman of the Commission.
The present writ petition was filed in the High Court 18 days after a copy of the representation was received by the Chairman, among others.
It is his dispute with the Chairman who according to him is backed by the Chief Minister of the State which has led to the present writ petition.
He has also stated that the Chief Minister in his press interview given to the local Urdu daily, viz., Qaumi Tanzeem and published on 27th March, 1992, had made his intentions public to move this Court against his ap pointment.
Those averments are not controverted.
According to him further, it was on account of his academic distinctions, and with the full knowledge that he was totally blind from childhood, that he was appointed as a Member of the Public Service Commission.
He has also stated that his blindness never came in his way either in the pursuit of his studies or in his service as a teacher.
His experience in the public Commission also showed that the said defect did not come in his way of 525 discharging his duties effectively.
In this connection, he points out that the only thing he cannot do is to assess the individual 's external personality on the basis of the candidates external appearance which is not a material requirement for the candidates for many posts.
He has further added that the Commission sits in Committees or interview boards and every Committee usually consists of four or five persons including members of the Commission and experts from the respective departments.
The marks awarded to the candidates are agreed upon after due discussions and deliberations in the interview board.
The advice of the experts is a determinative factor in such decisions.
When the members of the interview board with non technical and non professional qualifications interview candidates for technical and professional posts, they do so with the aid and advice of the experts from the concerned departments.
Hence, if he is required to depend upon the opinion of the other members of the interview board for the external appearance of the candidates, that is not a dependence of a kind which vitiates the assessment of the interview board as a whole.
In any case, the dependence is not worse than the dependence of the members of the board on the opinion of the experts when they are not qualified to adjudge the candidates for posts requiring the relevant expertise.
The State Government has lent a tragicomic touch to the controversy by filing its affidavit, the relevant contents of which deserve reproduction here for reasons more than one.
The pathos is made poignant by the fact that the affiant Shri R.C. Vaish, Resident Commissioner of the State at New Delhi in his letter, which is placed on record, has stated that the draft affidavit was approved by Hon 'ble the Chief Minister of the State.
He has also stated that he has been authorised by the Secretary of the concerned department to swear the affidavit.
The relevant portion of the affidavit reads as follows: "That the respondent State upon reconsideration of the entire matter under controversy feels that the words of the Constitution have to be interpreted in letter and spirit and any departure from the express words of the Constitution wherever such departure seems to be permissible under the Constitution should be done only for sound and good reasons.
In the instant case, the departure with regard to appointment of members of the Bihar Public 526 Service Commission was made only because the proviso to Article 316 (1) of the Constitution is not mandatory.
Accordingly, while appointment the respondent No. 6 as the seventh non government member of the B.P.S.C. the mandate of proviso to Article '316 (1) was not followed.
it is felt that the fact that proviso to Article 316(1) not being mandatory is by itself not a good ground for departing from the suggestion of the Constitution and accordingly, the appointment of respondent No. 6 as member of the State Public Service Commission cannot be justified.
, At the time of appointment of respondent No. 6 as 'a member of the Bihar Public Service Commission he was the seventh nongovernment member when ' at that time there were only four government members in a 'total strength of eleven members in the B.P.S.C. That with ragard to the infirmity of the respondent No. 6, it is submitted that at the time of appointment of respondent No. 6,the aspect about his blindness was not specifically considered the same was stated in the Bio data of the respondent No. 6 in a very casual way and in such a manner that in had escaped the attention of the Constitutional authorities at the time of recommending the respondent No.6 for appointment to the post of member the B.P.S.C.
In this regard, it is submitted that the respondent No. 6 in his Bio data while praising his achievements had only stated that he is the first blind person to have been awarded Ph.D. ' There was no mention whether such blindness was subsequent to birth or whether such blindness was congenial There was also no details in the Bio data stating whether such blindness was complete or the some was partial, temporary, curable or not curable.
In these,facts, the aspect about the blindness of.
the respondent No. 6 was not specifically considered by any of the Constitutional Authorities who are involved in the appointment of a member to the State Public Service Commission.
That in this regard it is further submitted that the nature of duty of a member of a Public Service Commis 527 sion is primarily to make selections for appointments the various Govt.
jobs of the State and accordinly while making such recommendations the member of the State Public Service Commission has to interview the eligible candidates.
While conducting such interview, the member of the State Public Commission is to visually interview each candidate to determine his suitable.
After the appointment of the respondent of the respondent No. 6 it has come to the notice of the respondent No. 6, it has come to the respondent No. 6 is clearly hampering the effective discharge of official duties by the respondent No. 6".
[Emphasis supplied] To appreciate the first attack against the appointment it is necessary to reproduce the provisions of Article 316[1] and [2] of the Constitution which relate to the appointment and the term of office of the members of the Public Service Commissions, "316.
Appointment and term of office of members.
[1] The Chairman 'and other members.
of a Public Service Commission shall be appointed in the case of the Union Commission or a Joint Commission, by the President and in the case of a State Commission by the Government of the State: Provided that as nearly as may be one half of the members of every Public Service Commission shall be persons who at the dates, of their respective appointments have held, office for at least ten years, either under the igovernnient of India or under the Government of a State, and in, computing the said period of ten years any period before the commencement of this Constitution during which a person has held office under the Crown in India or under the Government of an Indian State shall be included.
[1 A] x x x x x [2] A member of a Public Service Commission shall hold 528 office for a term of six years from the date on which he enters upon his office or until he attains, in the case of the Union Commission, the age of sixty five years, and in the case of State Commission or a Joint Commission, the age of sixty two years, whichever is earlier: Provided that [a] a member of a Public Service Commission may, by writing under his hand addressed, in 'he case of the Union Commission or a Joint Commission, to the President, and in the case of a State Commission, to the Governor of the State, resign his office; [b] a member of a Public Service Commission may, be removed from his office in the manner provided in clause (1) or clause (3) of Article 317.
[3] x x x x XI It is apparent from these provisions that the Chairman and other members of the State Public Service Commission are appointed by the Governor of the State.
The appointments are obviously made on the advice of the Council of Ministers of the State.
The proviso to Clause 11 of the Article requires that "as nearly as may be", one half of the members of the Commission shall be persons who on the dates of their respective appointments have held office for at least ten years either under the Government of India or under the Government of a State.
For brevity 's sake we may refer to this category of members as service members.
The expression "as nearly as may be" itself suggest that the proportion of 50% of the service members is not exact but approximate and is meant not to be mandatory but directory.
The said proviso does not, in terms, say that in no case and at no point of time, the said proportion should either go above, or fall below 50%.
In the very nature of things, a strict adherence to the said direction is not practicable at any particular point of time.
In the first instance, the superannauation age of the member of the Commission is 62 years and his total tenure as a member cannot exceed six years.
He has to vacate his office either when his tenure comes to an end or when he attains the age of 62 years whichever is earlier.
When the members are appointed, they are bound to differ in age, whether they belong to the service category 529 or the non service category.
In the normal course, they would retire at different points of time.
If it is insisted, as is done on behalf of the appellant, that the said requirement must be followed strictly at all times, it would be well nigh impossible to do so.
Every time a member, whether belonging to the service or the non service category, retires, there should be available a suitable person from the same category to be appointed in his place.
It is not always possible to make an advance list of persons of either category who are suitable for such appointments.
Hence, the total strength of the Commission as well as the number from each of the categories, are bound to vary from time to time.
At any given point of time, therefore, it may not be possible to maintain the proportion between the two categories strictly in accordance with the direction given in the Constitution.
It appears that it is for this reason that the words "at least half ' used in the proviso to Section 265 [1] of the Government of India Act, 1935, corresponding to the present proviso to Article 316 [11, have been substituted by the words "as nearly as may be one half '.
The learned counsel appearing for the appellant, however, submitted that the expression "as nearly as may be one half ' has been used to convey that a fraction may be ignored if the total number of members cannot be exactly halved between service and non service categories.
We are afraid that this argument is too simplistic.
The fraction is and ran be taken care of without the aid of such expression and a document like the Constitution does not have to incorporate the normal rules of interpretation.
It is clear that the framers of the Constitution realised that to make the provision rigid was both inadvisable and unnecessary.
We have already demonstrated its impracticability.
It can further hardly be suggested that the need to have 50% from the service category is of such paramount importance to the composition of the Commission that the breach of it at any particular point of time would defeat the very object of constituting the Commission.
The purpose for which the said provision is made is obvious.
It was realised by the framers of the Constitution that the democratic system can be maintain only if civil servants are appointed solely on the basis of their merit adjudged by open competition, and only if they can carry of the administration according to law independently, instead of under pressure of their political superiors.
Hence they provided for Public Service Commissions as both the Union and the State level as autonomous bodies to enable then to carry on their functions independently, fairly and impartially.
Since the Commission 's main task was to recruit administrative personnel it was 530 necessary to have on the Commission members with sufficient administrative experience.
To induct persons of experience, it was imperative to provide that a certain proportion of the members of the Commission should have had an actual experience of running the administration so that the Commission is better able to adjudge the fairness of firness of persons to be recruited in the administration.
However the very fact that the Service Commission was not proposed to be constituted of the members from the service category exclusively also shows that the framers of the Constitution did not desire that the outlook of the service members alone should prevail while recruiting the personnel.
The view of the persons from outside the administration was also considered to be equally imperative in selecting the personnel.
A balance was therefore sought to be struck by providing the e, in Detecting the proportion between the two categories of members.
It would, however, be naive to suggest on that account that the framers of the Constitution presumed to ensure that on all occasions there shall be an exact balance of views.
It is unrealistic to believe that individuals with different backgrounds always insist on the acceptance of the outlook dictated by their background alone and refuse to share the view point of others.
It is certainly not expected of the members of such high ranking Constitutional body as the Public Service Commission.
We cannot also lose sight of the fact that the Service Commissions mostly sit in Committees and are aided and assisted by the experts from the concerned faculties, disciplines and departments.
The Committees take their decision collectively after due deliberations and discussions.
It is, therefore, the composition of these Committees and not so much the composition of the Commission at any particular point of time that matters.
Hence, we are unable to subscribe to the view 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 circumstance whatever, to allow reduction of 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.
The learned counsel for the appellant went so far as to contend that the said requirement constituted a qualification of the member to be appointed every time a vacancy is to be filled.
According to him depending 531 upon the shortfall in the representation of the respective category the member to be appointed has to be either form the service or non service category as the case may be and that is an essential qualification for his appointment.
The argument was that is an essential as in the present case, the representation of the service members of the Commission fell short of 50% then all persons to the appointed on the Commission till the said proposition was made up had to be from the service ctegory that being their necessary qualification.
It is not possible to accept this contention for the simple reason that as pointed out earlier, it may be possible to get a suitable person either from service or non service category over a period of time and for want of suitable candidates from the concerned category, the vacancies on the Commission may remain unfilled during that period.
The persons from the other category are available during that period.
The reasonable interpretation of the said proviso therefore is to treat it not as a strict rule to be enforced but as a binding gudeline to be followed in practice in spirit as far as possible and without deliberately flouting it, Hence it is not possible to hold that merely because at the time of appointment of respondent No. 6 there were four service members and six non service members he was disqualified for being appointed as the 7th member from the non service category.
The, second attack which is based upon the blindness of respondent No.6 is equally myopic.
As has been pointed out earlier respondent no.6 been blind from his childhood.
In spite of his blindness he acquired high educational qualifications and in fact at the time of his appointment he was an Associate Professor in the Patna University.
He is an acknowledged scholar of English Although the Government has now come forward to disown any knowledge about his complete blindness from the childhood, with which we will deal instantly they must be presumed to have known the said infirmity and should be deemed to have formed the opinion that in spite of his blindness, he was fit to be a member of thel Commission.
We see no reason to hold otherwise in the circimstances pointed out by respondent No. 6 in his affidavit to which we have already referred.
Nothing concrete has also been brought on record to show that he has failed ot perform his duties as a member of the Commission efficiently because of his blindness.
On the other hand as has been pointed out earlier the State Government itself had recommended him for 'Padmashree ' for his efficient discharge of the work as a member of the Commission and that too over a short span of few months.
We are also in agreement with the contentin advanced on his behalf that 532 except the external appearance of the candidates appearing before him, he is able to ascertain the required merits or demerits of the Candidates, as do the other members of the Commission.
The Commission, as it normally should, operates through Committees, and as regards the external appearance, the other members of the Committees give him the required information on the basis of which he is able to assess the overall merit of the candidates.
The external appearance of the candidates is also not of importance in all ap pointments.
What is futher necessary to note is that for selecting the candidates for almost all disciplines and departments, the experts from the concerned departments do sit in the Committees and the opinion of the experts ordinarily prevails in such appointments since the members of the Committees, who are the members of the Commission, do not have the expertise.
in the relevant fields.
This shows that all members of the Commission sitting on the interview Committees have also to be guided in their opinion by the experts.
If respondent No. 6 has to take guidance only in the matter of external appearance of the candidates, all members of the Commission have to be guided by the experts with regard to the most vital equipment of the candidates, viz., the intellectual calibre and the proficiency of the candidates in the relevant subjects.
There is, therefore, nothing wrong if only for external appearance, for which only a small percentage of the total marks is reserved, respondent No. 6 has to depend on the advice, opinion or guidance of the other members of the Committees and the Commission.
The decision of the interview board is always a collective one and is taken after deliberation on the merits and demerits of the candidates which are evaluated on the basis of various factors.
We are, therefore, unable to see as to how, in the circumstances, respondent No. 6 is unfit to carry on his duties as a member of the Commission because of his blindness.
The attack, however, was sought to be strengthened by relying on the provisions of sub clause [c] of Clause [3] of Article 317 of the Constitution which provides for removal of a member of the Public Service Commission on the ground that he is, in the opinion of the President, unfit to continue in office by reason of infirmity of mind or body.
The argument was that the blindness was infirmity of body and if it is a ground for removal from office, it is much more a disqualification for appointment and hence respondent No. 6 should be prevented from continuing in his office.
We are afraid that the first premise on which this limb of the argument is based misses the obvious fact, viz., that by "infirmity of body" 533 what is spoken of in the sub clause in question, is an infirmity which disables the Member from discharging his functions as such member effectively.
It is not every infirmity of body or every loss of use of any limb of the body.
The defect or deficiency must be such as would disable the Member from carrying out his duties satisfactorily and consistent with the trust reposed in him.
We have already pointed out that not only the blandness of respondent No. 6 does not prevent him from discharging his duties expected of him, but in fact the services rendered by him as such member have been eulogised and commended for a National Award by no other than the State Government itself and the Chairman of the Commission who had the first hand knowledge of his functioning.
This is apart from the fact that the Governor who appointed him on the advice of the Council of Ministers is presumed to have done so after satisfying himself that the loss of eye sight was not an infirmity which would impede him in the discharge of his duties.
The infirmity of body or mind which is referred to in the sub clause, further must necessarily be such as has arisen after the appointment and not the one which existed at the time of the appointment unless of course, the Government was unaware of the same at the time of the appointment.
We may now turn to the affidavit filed on behalf of the State Government.
A reading of the said affidavit leaves no doubt in our mind that it has been filed only to prejudice the case of respondent No. 6 before us because, for some reasons, he has fallen foul some persons in power.
As is evident from the portions of the affidavit reproduced above, firstly, a case is sought to be made out there that respondent No.6 was appointed as the 'non Government member ' of the Commission only because the proviso of Article 316 11 is not mandatory.
That may be so.
But the affidavit then proceeds to state almost in relenting terms that although the said proviso is not mandatory, that by itself is not a good ground for departing from the "suggestion of the Constitution" and hence the appointment of respondent No. 6 "as the 7th non Government member" was not justified.
It is not clear as to when this wisdom dawned on the Government for the first time.
The record further does not show as to who had suggested his name to the Governor and whether the decision was taken by the Council of Ministers as a whole or by the Chief Minister or any of his colleagues alone and what advice was received or obtained by them, if at all, while making the appointment.
We are however, happy to know that 534 the State Government "upon reconsideration of the entire matter under controversy feels that the words of the Constitution have to be interpreted in letter and spirit and any departure from the express words of Constitu tion. . should be done only for sound and good reasons".
We only hope that the State Government keeps that solemn declaration in mind for all purpose and for all times to come and does not forget it the moment the ink in the present proceedings dries.
But more breast beating of the Government is on the second issue viz, the blindness of respondent no.6 The affidavit states that at the time of the appointment "the aspect about his blindness was not specifically considered as the same was stated in the Bio data of the respondent No. 6 in a very casual way and in such a manner that it had escaped the attention of the Constitutional authorities at the time of recommending the respondent no.6 for appointment . . ".
not to be outdone by this ludicrous averment, the affidavit proceeds to state "that respondent No. 6 in his bio data while praising his achievements, had only stated that he is the first blind person to have been awarded Ph.D.
There was no mention whether such blindness was subsequent to birth or whether such blindness was congenital. .
There was [sic] also no details in the Bio data stating whether such blindness was complete, or the same was partial, temporary, curable or not curable.
It is then the case of the State Government that in the view of these facts the aspect above the blindness of the respondent No. 6 was not specifically considered by any of the Constituitonal authorities who are involved in the appointment of a member to state Public Service Commission".
Since the affiant himself has brought into picture the "Constitutional Authorities who are involved in the appointment the aspect of the blindness of respondent no.6 was not specifically of a member to the State Public Service Commission and has Stated that considered by them, we cannot help observing that the affiant by making such statement as made the Constitution authorities look ridiculous and their functioning a mockery in the eyes of the public.
We are anguished more on account of the that state Government should have considered it compulsive to allow such blatantly rabid statement s to be made on the oath with impunity.
No responsible public authority could have aware the that respondent No.6 was totally blindly from his childhood, when that made the client that none of the constitutional functionaries concerned was fact must have been widely known in the State and in all probability the extra ordinary abilities exhibited by him despite his blindness must have 535 been the main reason for his appointment as a member of the Public Service Commission.
Any statement seems to be good enough, whether true or untrue, so long as it is considered serviceable for thee immediate purpose in hand.
We refrain from making more comments which certainly such affidavits deserve, in ample measure, and let the affidavit speak for itself.
The affidavit further states that while conducting the interviews, members of the Commission have to visually interview each of the candidates to determine his suitability and after the appointment of respondent No. 6 "it has come to the notice of the respondent State that the blindness of the respondent No. 6 is clearly hampering the effective discharge of official duties by him.
It is necessary to remember in this ' connection that this affidavit has been filled on 23rd January 1993.
Respondent No.6 had filed his affidavit on 7th October, 1992.In that affidavit, respondent No. 6 has, among other things referred to,the certificate given by respondent No.5, Dr. Ram Ashray, Yadav, Chairma of the Public Service Commission on 11th September 1991 where he has stated that respondent No. 6 "has been performing his duties with exceptional excel lence without letting his blindness hinder his work.
I strongly recommend that Dr. Thakur be awarded National Award in recognition of his excellence despite his blindness." He has also referred in his affidavit to the letter of 22nd October, 1991 of the State Government to the Union Home Ministry recommending him for,the award of "Padmashree" for his services as a Member of the Public Service Commission.
Neither the certificate nor the letter has been controverted by the Chairman and.
the Government.
In the face of the certificate and the Said recommendatory letter, it is difficult to understand the basis on which it is now stated in the affidavit that the blindness of respondent No.6 is hampering his work.
There is, therefore, no doubt in our mind that the affidavit has been filed for the only purpose of seeking somehow the removal of respondent no.6 .Respondent No. 6 in his affidavit has alleged that he has since fallen 'but the respondent No. 5, the Chairman of the Commission and the Chairman is bent upon ousting him from the Commission.
To shows the animosity of the Chairman towards him he has given a list of events alongwith his affidavit.
These events have not been in controverted.
The High Court has referred to some of these events in paragraph 6 of its judgment.
Since they have a bearing On the Governments comments on his performance, we may reproduce the events catalogued by the High Court.
536 "1.
His P.A. has been replaced; 2.
His chamber, which contains two almirahs containing documents, has been locked up; 3.
The service of the reader, who is to read to him documents and journals and other papers is not being provided to him and his services have been terminated; 4.
The use of staff car by him has been stopped; 5.
His orderly has been transferred; 6.
The Chairman of the Commission has issued instructions not to receive any document from him or to obey his orders; 7.
His telephone bill for the month of Oct. 1991, for Rs. 598 only has not been paid though a sum of Rs. 18,154 on account of telephone bill of the Chairman 's residence has been paid.
The newspaper allowance payable to him is not being paid; 9.
He has not been allowed to attend the meetings of the Commission held on 11th December.
20th December and 31st December, 1991 and he is not aware when any other meeting has been held thereafter or not in as much as he has not been provided with any notice in respect of the same; 10.
He has been physically prevented from going to inside [sic.] the campus of the Commission since 28th of November, 1991.
" In the list of events accompanying his counter affidavit he has also referred to other incidents such as the attempted physical assault on him by the Chairman during a meeting of the Commission, the threats of physical liquidation administered from the telephonic line of the Chairman, the complaints made by him to the police, to the Chief Minister and to the 537 Governor etc.
We do not desire to burden this judgement, with the said details.
it is also not necessary to make any comment upon the aforesaid events since they speak for themselves.
They only reinforce the conclusion that the belated claim of the State Government that the appointment of respondent No.6 is invalid and that his blindness hampers the discharge of his duties has its obvious roots in the strained relations between him on the one hand and the Chairman and the State Government on the other.
While, therefore, dismissing appeal in the special facts of the case,, we also direct both the appellant and the respondent State of pay the costs of this appeal to respondent No.6, in the amounts of Rs. 5,000 and Rs., 10,000 respectively.
P.S.S. Anneal dismissed.

Output:
The proviso to clause (1) of Article 316 of the Constitution requires that 'as nearly as may be ', one half of the members of the Public Service Commission shall be from service category.
Clause (2) of the Article entities a member of a Public Service Commission to hold office for a term of six years from the date on which he enters upon his office or he attains the age of superannuation provided therein whichever is earlier.
Subclause (c) of clause (3) of Article 317 provides for removal of a member of the Public Service Commission by reason of infirmity of mind or body.
Respondent No. 6, a blind, acknowledged scholar of English and Associate Professor in the Patna University, was appointed the seventh non service member of the Bihar State Public Service Commission on 4th March 1991.
The total strength of the Public Service Commission was eleven.
The other four members belonged to the services category.
On 11th September 1991, respondent No.5, the Chairman of the said Commission, gave a certificate stating that the respondent has been performing his duties with exceptional excellence without letting his blindness hinder his work and strongly recommended conferment of a national award in recognition of his excellence despite his blindness.
On 22nd October 1991 the State Government addressed a letter to the Union Ministry of Home Affairs recommending him for the prestigious national award of 518 'Padamshree ' for his services as a member of the Public Service Commission.
On 15th March 1992 the President of India conferred on him the National Award.
On 14th January 1992 the appellant, in a public interest ligigation, challenged the appointment of respondent No. 6 as a member of the Bihar Public Service Commission.
The High Court dismissed the writ petition.
In the appeal by special leave it was contended that the appointment of the seventh member from the non service category was violative of the proviso to Article 316(1) of the Constitution.
It was submitted that the expression 'as nearly as may be one half ' occurring in the said proviso has been used to convey that a fraction may be ignored if the total number of members cannot be exactly halved between service and non service categories.
The argument was that if the representation of the service members of the Commission fell short of 50% then all persons to be appointed on the Commission till the said proportion was made up, had to be from the service category, that being their necessary qualification.
It was further contended that respondent No. 6 was totally blind even from a date prior to his appointment and was unfit to be appointed by reason of the said physical infirmity.
The argument was that the blindness was an infirmity of body and if it was a ground for removal from office under Article 317(3) (c), it was much more a disqualification for appointment and hence respondent No. 6 should be prevented from continuing in his office.
In the affidavit riled on behalf of the State Government on 23rd January 1993 it was stated that although the proviso to Article 316(1) was not mandatory, that by itself was not a good ground for departing from the suggestion of the Constitution and hence the appointment of respondent No. 6 as the 7th non Government member was not justified.
It was further stated that at the time of the appointment, the aspect about his blindness was not specifically considered as the same was stated in the bio data of respondent No. 6 in very causal way and in such a manner that it had escaped the attention of the constitutional authorities at the time of recommending respondent No. 6 for appointment.
The affidavit further stated that while conducting the interviews, members of the Commission had to visually interview each of the candidates to determine his suitability and after the appointment of respondent No. 6 it had come to 519 the notice of the respondent State that the blindness of respondent No. 6 was clearly hampering the effective discharge of official duties by him.
It was contended for respondent No. 6 that it was on account of his academic distinctions, and with the full knowledge that he was totally blind from childhood that he was appointed as a member of the Public Service Commission; that his blindness did not come in his way of discharging his duties effectively , that the only thing he could not do was to assess the individuals external personality on the basis of the candidate 's external appearance, which was not a material requirement for the candidates for many posts; that his dependence upon the opinion of the other members of the interview board for this aspect was not of a kind which vitiated the assessment of the interview board as a whole; that he had made a representation to the President of India, the Governor of Bihar and others, against the serious misconduct, gross malpractices and wilful violation of the constitutional mandate by the Chairman of the Commission, and that it was this dispute with the Chairman, who was backed by the Chief Minister of the State, which had led to the writ petition.
Dismissing the appeal, the Court, HELD: 1.1.
Merely because at the time of appointment of respondent No. 6, there were four service members and six non service members, it cannot be said that he was disqualified for being appointed as the 7th member from the non service category.
[531D] 1.2.
The reasonable interpretation of the proviso to Article 316(1) of the Constitution requiring that as nearly as may be one half of the members of the Public Service Commission shall be from service category, is to treat it not as a strict rule to be enforced but as a binding guideline to be followed in practice in spirit as far as possible and without deliberately flouting it.
[531D] 1.3.
The expression "as nearly as may be" used in the proviso itself suggests that the proportion of 50% of the service members is not exact but approximate and is meant not to, be mandatory but directory.
The said proviso does not, in terms, say that In no case and at no point of time, the said proportion should either go above or fall below 50%.
The fraction is and can be taken care of without the aid of the expression "as nearly as may bell, and a document like Constitution does not have to Incorporate 520 normal rules of interpretation.
The need to have 50% members from the service category also cannot be said to be of such paramount importance to the composition of the Commission that the breach of it at any particular point of time would defeat the very object of constituting the Commission.
[528F G, 529F] 1.4.
Furthermore, when the members are appointed, they are bound to differ in age, whether they belong to the service category, or the non service category.
In the normal course, they would retire at different points of time.
At that time, a suitable person from the same category may not be available to be appointed in their place.
It is not always possible to make an advance list of persons of either category who are suitable for such appointment.
Hence the total strength of the Commission as well as the number from each of the categories, are bound to vary from time to time.
At any given point of time, therefore, it may not be possible to maintain the proportion between the two categories strictly in accordance with the direction given in the Constitution.
[529B C] 1.5.
By providing the proportion between the service and non service members of the Commission, the framers of the Constitution sought to strike a balance amongst the two categories.
However, on that account, the framers of the Constitution cannot be presumed to ensure that on all occasions there shall be an exact balance of views between these two categories of members.
It is unrealistic to believe that individuals with different backgrounds always insist on the acceptance of the outlook dictated by their background alone and refuse to share the viewpoint of others.
It is certainly not expected of the members of such high ranking constitutional body as the Public Service Commission.
Furthermore, the Service Commissions mostly sit in Committees and are aided and assisted by experts from the concerned faculties, disciplines and departments.
The Committees take their decision collectively after due deliberations and discussion.
It is, therefore, the composition of these Committees and not so much the composition of the Commission at any particular point of time that matters.
[530C E] 1.6.
The appointing authority, therefore, cannot be said to have no option, under any circumstance whatever, to allow reduction of representation from the service category and a breach of the requirement contained in the proviso to Article 316(1) by reasons of appointment of a 521 member from non service category would vitiate such appointment or the duties performed by such appointee as a member of the Public Service Commission.
[530G] 2.
Respondent No. 6 cannot be said to be unfit to carry on his duties as a member of the Commission because of his blindness.
Nothing concrete has been brought on record to show that he had failed to perform his duties as a member of the Commission efficiently.
Except the external appearance of the candidates appearing before him, he is able to ascertain the required merits or demerits of the candidates, as to the other members of the Commission.
The Commission operates through Committees.
For selecting the candidates for almost all disciplines and departments, the experts from the concerned departments sit in these Committees and the opinion of the experts ordinarily prevails in such appointments since the members of the Committees, who are the members of the Commission do not have the expertise in the relevant fields.
This shows that all members of the Commission sitting on the interview Committees have also to be guided in their opinion by the experts.
If respondent No. 6 has to take guidance only in the matter of external appearance of the candidates, all members of the Commission have to be guided by the experts with regard to the most vital equipment of the candidates, viz., the intellectual caliber and the proficiency of the candidates in the relevant subjects.
There is,, therefore, nothing wrong if only for external appearance, for which only a small percentage of the total marks is reserved, respondent No. 6 has to depend on the advice, opinion or guidance of other members of the Committees and the Commission.
[532B E] 3.1.
By 'infirmity of body ' what is spoken of in sub clause (c) of clause (3) of Article 317 of the Constitution is an infirmity which disables the member from discharging his functions as such member effectively.
It is not every infirmity of body or every loss of use of every limb of the body.
The defect or deficiency must be such as would disable the member from carrying out his duties satisfactorily and consistent with the trust reposed in him.
The said infirmity further must necessarily be such as has arisen after the appointment and not the one which existed at the time of the appointment, unless of course, the Government was unaware of the same at the time of appointment.
[533A B, D] 3.2.
In the instant case, not only the blindness of respondent No. 6 522 does not prevent him from discharging his duties expected of him, but in fact the services rendered by him as such member have been eulogised and commended for a national award by no other than the State Government itself and the Chairman of the Commission, who had first hand knowledge of his functioning.
This is apart from the fact that the Governor who appointed him on the advice of the Council of Ministers is presumed to have done so after satisfying himself that the loss of eyesight was not an infirmity which would impede him in the discharge of his duties.
[533C] 4.1.
No responsible public authority could have made the claim that none of the constitutional functionaries concerned was aware that respondent No. 6 was totally blind from his childhood, when that fact must have been widely known in the State and in all probability the extra ordinary Abilities exhibited by him despite his blindness must have been the main reason for his appointment as a member of the Public Service Commission.
The State Government should not have considered it compulsive to allow such blatantly rabid statements to be made on oath with impunity.
The affiant by making such statement has made the constitutional authorities look ridiculous and their functioning a mockery.
[534H G] 4.2.
Neither the certificate given by respondent No. 5, the Chairman of the Public Service Commission, on 11th September, 1991 nor the letter of the State Government to the Union Home Ministry dated 22nd October 1991, has been controverted by the Chairman and the State Government.
The averment in the affidavit that the blindness of respondent No. 6 is hampering his work, therefore, has no basis.
The belated claim of the State Government against respondent No. 6 has its obvious roots in the strained relations between him on the one hand and the Chairman and the State Government on the other.
[535E F] 5.
The appellant and the respondent State is directed to pay the costs of the appeal to respondent No. 6.
[537C]