Summary
On a Presidential reference under Article 317(1) for removal of a Member of the Arunachal Pradesh Public Service Commission on six charges arising from the leak of the Assistant Engineer (Civil) Mains Examination paper in 2022, the Supreme Court, after a fact-finding inquiry under Order XLIII of the Supreme Court Rules, reported that none of the charges was proved: misbehaviour under Article 317 is individual, not collective, and no act or omission attributable to the Member in her personal or official capacity was shown. The Court recommended revocation of her suspension with all consequential benefits.
Issues
- Whether the Member's conduct in relation to the 2022 Mains Examination amounted to 'misbehaviour' within Article 317 of the Constitution so as to warrant her removal.
- What 'misbehaviour' means under Article 317 and how it differs from 'proved misbehaviour' under Article 124(4) and from 'misconduct'.
- Whether a Member of a Public Service Commission can be removed under Article 317 on the basis of the collective responsibility of the Commission rather than her individual conduct.
- Whether each of the six charges in the reference was proved.
Provisions considered
- Article 317, Constitution of IndiaA Member of a Public Service Commission may be removed only by the President on the ground of misbehaviour after the Supreme Court, on reference and inquiry under Article 145, reports that the person ought to be removed; clause (2) permits suspension pending the reference and clauses (3) and (4) set out automatic grounds. The Article protects members against political pressure. 'Misbehaviour' is undefined and has a wide import, read in the context of the office and its standards, but removal is in personam: the conduct and charges must be attributable to the individual on cogent material. No such conduct was shown. (¶¶ 16, 17, 18, 19, 37, 41, 42, 63, 68, 75, 78)
- Article 124(4), Constitution of IndiaContrasted with Article 317: the framers deliberately used 'proved misbehaviour' for Judges, which has to be established before a committee under the appropriate legislation before Parliament moves an address, whereas under Article 317 misbehaviour is established in the inquiry conducted by the Supreme Court itself; the standards are linked to the respective constitutional offices. (¶¶ 35, 36, 37)
- Article 145(1)(j), Constitution of IndiaThe inquiry on the reference was conducted in exercise of this power read with Order XLIII of the Supreme Court Rules, 2013, with evidence recorded by the Registrar (Judicial). (¶¶ 15, 17, 78)
- Order XLIII (including Rule 5), Supreme Court Rules, 2013Prescribes the procedure for an inquiry on a reference under Article 317; the report with recommendation is sent to the President under Rule 5. (¶¶ 17, 78, 80)
- Article 319(d), Constitution of IndiaNoted that it bars a member of a State Public Service Commission from other employment under the Union or a State after ceasing to hold office; the State's conferment of new posts on members who had resigned, while seeking the respondent's removal for the same collective lapse, showed that nothing indicted any member personally and that the request for her removal was arbitrary and discriminatory. (¶ 74)
Held
- 'Misbehaviour' in Article 317 is not defined and must be given a wide, liberal import in the context of the conduct complained of, the office in question and the standards its holder must maintain; it is wider than 'misconduct', which implies mens rea, and includes conduct that erodes public faith in the Commission, such as physical violence, non-disclosure of a relative's candidature or attempts to influence a selection. It differs from 'proved misbehaviour' under Article 124(4), which must be established before a separate committee, whereas under Article 317 the Supreme Court itself conducts a fact-finding inquiry. (¶¶ 37, 38, 39, 40, 41)
- On a plain reading, removal and suspension under Article 317 are in personam, not of the Commission or its members as a collective entity. The inquiry and any recommendation for removal must be specific to the conduct of the particular office-bearer, and it is generally necessary to demonstrate with cogent material that the conduct complained of and the charges framed are attributable to that individual. (¶¶ 42, 63)
- Article 317 does not envisage the principle of collective responsibility, which is essentially a political concept applicable to the Cabinet. The Attorney General's submission that a Commission can be collectively guilty of misbehaviour was repelled on the facts, since neither the Inquiry Committee's report nor the evidence showed any individual or collective fault; whether collective responsibility could be invoked where the Commission's collective fault is prima facie clear was left to be decided in an appropriate case. (¶¶ 64, 68, 69)
- Charge I (failure to prevent the paper leak and ensure confidentiality) was not proved: nothing showed the respondent's connivance; under the 2017 Guidelines members were not involved in the confidential paper-setting process but only in the draw of lots and interviews; the Inquiry Committee's report, whose terms of reference did not concern the Chairman or Members, made no personal indictment of her; and the CBI chargesheets did not name her. (¶¶ 9, 49, 53, 54, 56, 57, 58)
- Charge II (leakages in examinations since 2017 and failure to change the guidelines) was wholly vague: the respondent joined the Commission in August 2021, after the alleged earlier leakages and after the advertisement for the examination in question, and no evidence showed she was given any duty to carry out such changes. (¶ 59)
- Charges III and V (failure to take remedial action and to finalise the 2022 Guidelines) were not proved: the draft 2022 Guidelines were kept in abeyance by the consensus of the Chairman and all Members pending a State-constituted High-Level Committee, no departmental witness showed any deliberate act by the respondent, and it would be a stretch to make the framing of new guidelines her sole responsibility. (¶ 60)
- Charge IV (exclusive responsibility as the Member in charge of legal matters) was not proved: the work allotment order assigned the Assistant Engineer (Civil) recruitment to another Member and allotted 'Law & Judicial' and legal matters to the respondent, and the Commission admitted by affidavit that no document defined a member's specific duties and that no member was exclusively tasked with revising the 2017 Guidelines. Responsibility for legal matters does not make her answerable for every act of the Commission; she cannot be made to carry the weight of the entire Commission's responsibilities individually. (¶¶ 61, 62, 70, 71)
- Charge VI (not advising against keeping punishment orders in abeyance) was not proved: the decision to keep the orders in abeyance pending collection of information on the practice of other Commissions was the discharge of a quasi-judicial function, and even a wrong decision taken bona fide in that capacity is not misbehaviour; a member's failure to advise individually against a collective decision is not even a lapse. (¶¶ 72, 73)
- The State's request for the reference was arbitrary, unfair and discriminatory: the letters of the Chief Minister and the Governor imputed responsibility for the leak to the Members without any such finding in the Inquiry Report, and Members who resigned over the same alleged collective involvement were later given new State assignments notwithstanding Article 319(d). The allegations did not meet even the lower threshold of a 'lapse', let alone misbehaviour; a member who joined in 2021 could not be expected to right wrongs perpetrated earlier or single-handedly reform the examination process, and nothing showed that any act or omission of hers after joining brought disrepute to the Commission. (¶¶ 74, 75, 76, 77)
Result
Reference answered: report sent to the President under Order XLIII Rule 5 of the Supreme Court Rules, 2013 that the charges as alleged do not establish any act of misbehaviour by the respondent; recommended that her suspension be revoked forthwith and that she be entitled to all consequential and monetary benefits.