Project R eport on Service La w

Article 320 : Functions of

Public Service Commission

Submitted To : Submitted By:

Ms. Pooja Anmol Gill

University Institute of Legal Studies Semester – 8th ,

201/11, Section - B

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Ac know l edg ement

I would like to thank my subject teacher Ms. Pooja of University Institute of Legal Studies for

her cooperation and support to me for preparation of this project work.

Also, I would like to thank library staff of UILS for their support.

Also, I would like to thank my friends and classmates for their efforts to cooperate with me while

preparing for this project.

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ContentsIntroduction .................................................................................................................................................. 4

Union Public Service Commission ................................................................................................................. 4

State Public Service Commission .................................................................................................................. 5

Joint Public Service Commission ................................................................................................................... 6

Functions of Public Service Commission....................................................................................................... 6

Conclusion................................................................................................................................................... 12

References ................................................................................................................................................. 15

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Introduction

The civil servants occupy an important role in the successful administration of state at different

levels. Therefore, their recruitment, training, emoluments, conditions of service, promotion

policies, etc. assume importance. For an impartial consideration of these matters relating to civil

servants, an independent and expert authority is required which is known as the institution of

public service commission. One of the important features of our Constitution is the inclusion of

Public Service Commission at both Union and State levels in the Constitution itself. While

UPSC and SPSC are constitutional bodies, a joint public service commission is created by an

Act of Parliament.1

The constitution provided a commission as distinct from the customary departmental type for

undertaking the task of recruitment of civil servants. The fathers of the constitution were

perhaps guided in their decision by the fact that the task requires experts and longer specialized

knowledge also and that facilitates collective deliberation by a group of experts who are able to

pool their knowledge and experience to arrive at informed and objective decisions. Such a

method of making decisions collectively is described as corporate mode of functioning or

decision making.

Further a plural body like public service commission consisting of experts in parts professional

and technical weightage in the process of decision making. When several heads combine for

deliberations, biases are eliminated and objectivity is ensured. A commission functions outside

the normal governmental machinery, hence greater flexibility and innovativeness of approach is

possible. Bureaucratic rigidities and delays, which characterize government departments can

thus be avoided.

Union Public Service Commission

For the purpose of the higher level civil services of the Union Government, the Constitution

1 http://download.nos.org/srsec317newE/317EL33.pdf

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provides for the setting up of the Union Public Service Commission (UPSC). The number of

members of the Commission and the conditions of their service are left to be determined by the

President, which means the government. It has since been decided that there shall be a chairman

and six to eight members of the Commission. At present the strength of the Commission is nine

including the chairman. The chairman and the members of the Commission are appointed by the

President. The Constitution provides that at least half the members have to be persons who have

served for at least ten years under the Government of India or a State Government. A member

holds office for a term of six years from the date he joins duty or until he attains the age of sixty

five years, whichever is earlier. The Chairman is ineligible for any future employment under the

government, but other members are entitled to accept the chairmanship of the UPSC or of a

State Public Service Commission.

The conditions of service of members cannot be changed to their disadvantage after

appointment. Their salaries, allowances, etc. are not submitted to the vote of Parliament as they

are charged on the Consolidated Fund of India. It is also provided that the chairman or a

member of the Commission can be removed from office by the President on the ground of

misbehaviour. It is only after an inquiry by Supreme Court, on a reference being made to it by

the President. Pending the inquiry by the Court, the President may suspend the member

concerned. A member including the chairman would be deemed guilty of misbehaviour if he

becomes interested in any monetary benefit in the discharge of duties as a member. It is also

provided that the President may remove the chairman or any other member from office, on the

ground of insolvency, infirmity of mind or body, or if he is engaged during the term of office in

any paid employment outside the duties of his office.

State Public Service Commission

Each state in India has a public service commission. The Constitution stipulates that the

Governor determines the number of members of the Commission. At least half of the members

of Commission are persons with a minimum of ten years of experience under the central or a

state government. Members are appointed by the Governor for a term of six years or until the

age of 62 years. Though the Governor is the appointing authority but members can be removed

only by the President. Conditions of service of the members are determined by the Governor but

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the Constitution stipulates that these shall not be revised to their disadvantage. Implicit in the

foregoing are certain safeguards to ensure the Commission’s independence.

A member of a state public service commission on retirement or otherwise can be appointed as

chairman or member of UPSC, or as chairman of that or any other state service commission.

As in the case of UPSC, the state public service commission submits its annual report to the

Governor. The Governor goes through the report to be placed before the state legislature along

with the cases in which the government has not accepted the advice of the Commission. In such

cases the government has to record the reasons for non-acceptance or rejection of the

recommendations.

The state public service commission performs the same functions in regard to its respective

states public services as are performed by the Union Public Service Commission in regard to the

Union Government.2

Joint Public Service Commission

Two or more states may agree that there should be one public service commission for them. If a

resolution to that effect is passed by the House or by each house of legislature (where there are

two houses) of the respective states. Parliament may by law provide for the appointment of a

Joint State Public Service Commission to serve the needs of those states. The chairman and

other members of this joint commission are also appointed by the President.3

Functions of Public Service Commission

The constitutional status of Public Service Commission is intended to ensure the Commission to

function without fear or favour. This can be facilitated when its composition, role and authority,

privileges of its members, method of appointment and removal of members, qualifications for

2 http://download.nos.org/srsec317newE/317EL33.pdf

3 Ibid

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appointment and ground for removal etc. are constitutionally protected. The Commission can

function without being influenced by political or other extraneous consideration. Confirment of

constitutional status is, thus, meant to provide safeguards against any possible encroachment on

the authority and independence of the commission either by the executive or the legislature.4

The Public Service Commission was set up in India with objectives outlined by Royal

Commission on Superior Services in India, popularly called the Lee Commission, 1924. The

Commission observed : “Whenever democratic institution exist, experience has shown that to

secure an efficient civil service it is essential to protect it as far as possible from political or

personal influences and give it that position of stability and security which is vital to its

successful working as the impartial and efficient instruments by the governments, of whatever

political complexion, may give effect to their policies.”5

Article 320 of Constitution of India specifically provides for various functions of Public Service

Commission. It is read as under :

320. Functions of Public Service Commissions.- (1) It shall be the duty of the Union and the

State Public Service Commissions to conduct examinations for appointments to the services of

the Union and the services of the State respectively.

(2) It shall also be the duty of the Union Public Service Commission, if requested by any two or

more States so to do, to assist those States in framing and operating schemes of joint

recruitment for any services for which candidates possessing special qualifications are

required.

(3) The Union Public Service Commission or the State Public Service Commission, as the case

may be, shall be consulted—

(a) on all matters relating to methods of recruitment to civil services and for civil posts;

(b) on the principles to be followed in making appointments to civil services and posts and in

4 http://download.nos.org/srsec317newE/317EL33.pdf5 Kumar Narender, “LAW RELATING TO GOVERNMENT SERVANTS & MANAGEMENT OF DISCIPLINARY PROCEEDINGS” ed. 3rd reprint, 2012, Allahbad law agency, Fridabad.

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making promotions and transfers from one service to another and on the suitability of

candidates for such appointments, promotions or transfers;

(c) on all disciplinary matters affecting a person serving under the Government of India or the

Government of a State in a civil capacity, including memorials or petitions relating to such

matters;

(d) on any claim by or in respect of a person who is serving or has served under the Government

of India or the Government of a State or under the Crown in India or under the Government of

an Indian State, in a civil capacity, that any costs incurred by him in defending legal

proceedings instituted against him in respect of acts done or purporting to be done in the

execution of his duty should be paid out of the Consolidated Fund of India, or, as the case may

be, out of the Consolidated Fund of the State;

(e) on any claim for the award of a pension in respect of injuries sustained by a person while

serving under the Government of India or the Government of a State or under the Crown in

India or under the Government of an Indian State, in a civil capacity, and any question as to the

amount of any such award, and it shall be the duty of a Public Service Commission to advise on

any matter so referred to them and on any other matter which the President, or, as the case may

be, the Governor of the State, may refer to them:

Provided that the President as respects the all-India services and also as respects other services

and posts in connection with the affairs of the Union, and the Governor, as respects other

services and posts in connection with the affairs of a State, may make regulations specifying the

matters in which either generally, or in any particular class of case or in any particular

circumstances, it shall not be necessary for a Public Service Commission to be consulted.

(4) Nothing in clause (3) shall require a Public Service Commission to be consulted as respects

the manner in which any provision referred to in clause (4) of article 16 may be made or as

respects the manner in which effect may be given to the provisions of article 335.

(5) All regulations made under the proviso to clause (3) by the President or the Governor of a

State shall be laid for not less than fourteen days before each House of Parliament or the House

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or each House of the Legislature of the State, as the case may be, as soon as possible after they

are made, and shall be subject to such modifications, whether by way of repeal or amendment,

as both Houses of Parliament or the House or both Houses of the Legislature of the State may

make during the session in which they are so laid.

The Public Service Commission occupies a pivotal place in the State and the integrity and

efficiency of its administrative apparatus depends on the quality of the selection made by the

public service commission. It is absolutely essential, that the best and the finest talent should be

drawn into the administration and the administrative service must be composed of men who are

honest, upright and independent and who are not swayed by the political winds blowing in the

country.6 The Supreme Court in Ashok Kumar Yadav7, held that the selection of the candidates

by the Public Service Commission should be made strictly on merits and this can be achieved

only If the chairman and members of the Public Service Commission are eminent men

possessing a High degree of caliber, competence and integrity, who would inspire confidence in

the mind about the objectivity and impartiality of the selection to be made by them.

An expert body like the Public Service Commission is entitled to evolve its own method of

evaluation of merits and selection of candidates in the absence of any statutory criteria. The merit

of a candidate is not solely based on qualification but also depends on various other factors

which the expert body can evolve for assessing suitability of candidate.8

It must be remembered that the commission is only a recruiting agency, and not an appointing

authority. The authority of making appointments rests with the government. The commission is

an advisory and recommendatory body. Its decisions are not mandatory. Normally, government

accepts its recommendations, but government may not always accept what the commission

suggests. However, in such cases the reasons for not accepting the recommendations have to be

explained and recorded.9

6 D.J.DE., “The Constitution of India”vol. 2, ed. 2008, Delhi Law House, Delhi7 AIR 1987 SC 4548 Datar, A.P., “Datar Commentary on Constitution of India”, ed. 2nd, reprint 2010, lexisnexis publication, New Delhi9 Supra Note 1

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The words “shall be consulted” occurring in Article 320(3) are not to be construed as mandatory

and even in the absence of consultation the action of Government under any of the sub clauses of

clause (3) shall not be null and void. It does not confer any right on the public servant and

absence of consultation with the Public Service Commission does not afford a cause of action.10

Even thought the provisions of Article 320 are only directory the government can make

appointments only as per the order of merit as recommended by the public service commission.

It cannot disturb the order of merit except for good reasons like bad conduct or character. The

government also cannot appoint a person whose name does not appear in the list. At the same

time, a person cannot claim as of right that the government should accept the recommendations

of the commission.11

The Public Service Commission has the power to fix its own procedure for selection of

candidates within the scope of the relevant rules. It has been held that in the context of selection

of UP Civil Service (Judicial Branch), the Public Service Commission had the power to fix

minimum qualifying marks for viva-voice.12

Under Article 320(3), the UPSC has to be consulted in all disciplinary matters affecting persons

serving under the Government of India in civil capacity but the UPSC is not an appellate

authority over an Enquiry Officer. The President, by Article 320, is required to consult the Public

Service Commission but that does not mean that he is bound by the advice of the commission.13

The criterion for selection by the Public Service Commission must purely be on merit and no

relaxation is permissible to the general rule. The order no. 603 dated 18-11-81 extending 5%

weightage to all Telegu Medium was held arbitrary. The Court held it amounts to imposition of

additional qualification which is de hors recruitment Rules and also frustrates the scope of best

10 State of Uttar Pradesh v. Manbodhan Lal, AIR1957 SC 91211 Jatinder Kumar v. State of Punjab, AIR 1984 SC 1850.12 State of Uttar Pradesh v. Rafiuddin, AIR 1988 SC 162.13 D’Silva A.N. v. Union of India, AIR 1962 SC 1130.

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available candidates from the market. The Court held that such extra- weightage is violative of

Article 14 and Article 16(1) of the Constitution.14

The Public Service Commission having benefit of expert opinion is better situated to Judge

whether particular candidate is qualified for a particular post and in matters involving

consideration of questions regarding adequacy of sufficiency of training. The High Court should

hesitate to interfere with the direction of appointing authority so long as it is exercised bona

fide.15

Article 320(3)(c) provides that the union Public Service Commission or the state public service

commission, as the case may be, shall be consulted on all disciplinary matters affecting a person

serving under the government of India or the government of state in a civil capacity, including

memorial or petitions relating to such matters. It was held that it was incumbent upon the

executive government when it proposes to take any disciplinary against a public servant, to

consult the commission as to whether the action proposed to be taken was justified and was not

tin excess of the requirement of the situation. The government when it consults the Public

Service Commission on matters like these, does it not by way of mere formality but with a view

to getting proper assistance in assessing the guilt or otherwise of the person proceeded against

and of the suitability and adequacy of the penalty proposed to be imposed. 16

Whether the order of dismissal from the service is void because of the failure to consult the

Public Service Commission was considered by the Supreme Court in Manbodhanlal

Srivastaca.17 It was held that Article 320(3)(c) of the constitution is not mandatory and that it

does not confer any rights, on the public servant, and the absence of consultation or any

irregularity in consultation does to afford the public servant a cause of action in the Court of law.

The question posed for the consideration before the Supreme Court in Pradyut Kumar Bose18,

whether a person belonging to the staff of a High Court is within the super of phase “a person

serving under the Government of India or the Government of State in a civil capacity”. The

Supreme Court observed the different terminology in the various Articles which in the opinion of

14 V.N. Sunandra Reddy, AIR 1995 SC 91415 Maheswar Prasad, AIR 1955 SC 16016 Supra Note 617 AIR 1957 SC 91218 AIR 1956 SC 285

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the Court was not incidental. The intention was to demarcate the staff of the High Courts from

the other civil services of the Union or of the State. It was held that the officers and the staff of

the High Court cannot fall within the scope of the above phrase because the administrative

control is vested in chief justice of the High Court, who under the constitution has the power to

appoint and remove the members of staff of the High Court and also make rules for the

conditions of services. Accordingly, the appellant was held not entitled to protection under

Article 320(3)(c) and the chief justice is not required to consult the Public Service Commission

in matter of dismissal of the registrar, original side High Court.

Consultation with Public Service Commission is provided under Article 320(3)(c) of the

constitution. It was held in Manbodhanlal Srivastava19 that this Article does not confer any right on the public servant, so that the absence of consultation does not afford him the cause of action

in Court of Law. Consultation is not a condition precedent to the dismissal of public servant.20

It is certainly the responsibility of the commission to make the selecting of efficient people

amongst those who are eligible for consideration. But at the same time it has to conform to the

provisions of the law has also to abide by the Rules and Regulations on the subject and to take

into account the policy decisions which are within the domain of the State Government. It cannot

impose its own policy decision in a matter beyond it purview.

Conclusion

Recruitment of civil servants has to be neutral, unbiased and free from prejudices of any kind.

Then alone any merit system will inspire confidence. To ensure objectivity and impartiality in

recruitment, several measures have been taken. The constitution of an independent agency in the

form of a public service commission for recruitment is one.

Through this agency :

19 AIR 1957 SC 912.20 Bhagban Chandrea Das, AIR 1971 SC 2004

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(i) the executive branch has been divested of the power of making recruitment to the superior

levels of civil services.

(ii) the agency thus created is an extra-departmental body such as a commission, which functions

outside the normal machinery of government.

(iii) a special constitutional status is conferred on this agency to ensure autonomous functioning.

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References :

Textbooks and Commentaries –

1. D.J.DE., “The Constitution of India”vol. 2, ed. 2008, Delhi Law House, Delhi.

2. Datar, A.P., “Datar Commentary on Constitution of India”, ed. 2nd, reprint 2010, lexisnexis

publication, New Delhi.

3. Kumar Narender, “LAW RELATING TO GOVERNMENT SERVANTS & MANAGEMENT

OF DISCIPLINARY PROCEEDINGS” ed. 3rd reprint, 2012, Allahbad law agency, Fridabad.

Web Sources –

1. http://download.nos.org/srsec317newE/317EL33.pdf

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