IN THE HIGH COURT OF KARNATAKA AT BANGALORE (ORIGINAL ...

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IN THE HIGH COURT OF KARNATAKA AT BANGALORE

(ORIGINAL JURISDICTION)

WRIT PETITION NO.22801 OF 2014 (SER)

BETWEEN:

Dr.Smt.Mangala Sridhar

Petitioner/s

AND:

State of Karnataka And Anr.

Respondents/s

List of Authorities relied upon by the Counsel for the Petitioner (K.V.Dhananjay and

I.S.Pramod Chandra):

Constitution of India ¨C

Article 315 ¨C Status of Public Service Commissions under the Constitution

Article 316 ¨C Appointment and term of office of members of PSCs

Article 317 ¨C Removal and suspension of a member of a PSC / specifically, Article 317(2) ¨C

¡°...in respect of whom a reference has been made to the Supreme Court¡­¡±

A Court of law must gather the spirit of the Constitution from the language used therein

and what one may believe to be the spirit of the Constitution cannot prevail if not

supported by its language:

Constitutional Law of India ¨C A Chapter ¨C II ¨C Entire opening page ¨C Preface, 2.1 and 2.2

Critical Commentary ¨C Fourth

Edition

¨C

H.M.Seervai

¨C

Universal, 1999 ¨C Volume 1

Indian Constitutional Law ¨C

M.P.Jain ¨C Fifth Edition, 2003 ¨C

Volume 2

Pg. 1849 ¨C d

Supreme Court - Keshavan

Madhava Menon ¨C State of

Bombay - AIR 1951 SC 128 ¨C

Constitution Bench

Pg.129 ¨C para (5) ¨C An argument¡­..support that view

Key to Supreme Court judgments

(1950-2008), AIR, Nagpur

Pg.9 ¨C Keshavan v. State of Bombay (AIR 1951 SC 128)

never doubted, diluted or dissented from

Supreme Court - State of

Rajasthan v. Leela Jain - AIR

1965 SC 1296 ¨C Unless the words

give no meaning, words in a

statute are not to be rejected in

favour of a notion of alternative

policy or better reason.

Pg.1296 ¨C Headnote a) ¨C Unless the words¡­long title

Pg.1299 ¨C para 11 ¨C With due respect¡­.or long title

Pg.1300¨C1301 ¨C para 16 ¨C It is, no doubt¡­on that ground

Well-established rules of interpretation require that the meaning and intention of the

framers of the Constitution must be ascertained from the language of that Constitution

itself:

Maxwell on The Interpretation of

Statutes, Twelfth Edition, Lexis

Nexis

Pg.1¨C2 - Lord Greene M.R ¡­..hands of Parliament

Pg.28 ¨C The safer¡­make the law

Pg.29 ¨C Where the language ¡­.to others

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Principles

of

Statutory

Interpretation ¨C Sri G.P.Singh ¨C

Tenth Edition, 2006

Pg.11¨C12 - In all ¡­.underlying the statute

Pg.47-48 ¨C When the words¡­policy of the Act

Technical meaning of the words ¡°has been made¡± is no different from the common meaning

of those words:

Stroud¡¯s Judicial Dictionary of

Words and Phrases ¨C Seventh

Edition ¨C 2008 ¨C Volume 2 ¨C F-O

Pg.1175 ¨C Generally - Has, Have

Pg.1176 ¨C Has Been ¨C Hath been construed¡­continuous

fact

Pg.1579 ¨C Generally ¨C Made

Pg.1579 ¨C An order¡­Ch.D.326

Pg.1580¨C1581 - Application is made¡­3 PLR 121

Pg.1581 ¨C Made within the context ¡­.brought into existence

Pg.1581 ¨C Made in connection with¡­.Crim LR 866

KJ Aiyer¡¯s Judicial Dictionary ¨C

Fourteenth Edition ¨C Lexis Nexis

Pg.501 ¨C Generally ¨C Has Been

Pg.502 ¨C Generally ¨C Has Been - denote a past event

The power to suspend a member of a State PSC is exercisable by the Governor under

Article 317(2) only after a reference has been made by the President to the Supreme Court

under Article 317(1)

High Court of Patna ¨C Shiva

Balak Choudhary v. State of

Bihar ¨C LPA No.385 of 2008 ¨C

03-Jul-2008 ¨C Division Bench

(R.M.Lodha, CJ And Kishore

K.Mandal J)

Pg.1 ¨C Facts ¨C appellant no.1¡­Case no.1 of 2007

Pg.2 ¨C paras 2, 3, 4

Pg.2 ¨C para 5 ¨C Mr.Naresh Dikshit¡­bad in law

Pg.3 ¨C para 7

Pg.4 ¨C para 8 in full - Specifically (¡­The power of

suspension is exercisable only after the reference has been

made¡­)

High Court of Patna ¨C Dr.Ram

Ashray Yadav v. State of Bihar ¨C

Civil Writ 1297 of 1997 ¨C 03-Oct1997 ¨C (A.K.Ganguly, J)

Pg.1 ¨C paras 1, 2, 3

Pg.1 ¨C para 4 ¨C The petitioner¡¯s¡­cannot be sustained

Pg.1-2 ¨C para 7

Pg.2-3 ¨C para 8, para 13 and 14 (No requirement that the

Governor should act only on the advice of council of

ministers)

Also, (14. The order of suspension under Art.317(2) of the

Constitution is consequential to a reference under

Art.317(1) by the President of India¡­)

The

question

did

not

arise

However, Pg.382 ¨C paras 12, 13

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directly in the judgment of the

Supreme Court in the case of

Ram Kumar Kashyap v. Union of

India (2009) 9 SCC 378 ¨C

(K.G.Balakrishnan,

C.J.,

P.Sathasivam

and

J.M.Panchal,JJ)

Similarly, this question did not arise in a reference decision

of the Supreme Court cited by the Respondents. So the

statement in the said decision that a suspension after the

Governor has communicated to the President is presumed to

have been made by complying with the applicable statutory

provision ¨C after the President had made a reference to the

Supreme Court.

It is an elementary principle of law that ¡°it is words in

statutes alone that are to be construed and not the words in

a judgment¡±.

Article 361 does not bar a judicial challenge to the actions of a Governor when alleged to

contravene a constitutional provision or requirement:

Supreme Court ¨C B.R.Kapur v.

State of Tamil Nadu ¨C (2001) 7

SCC 231 ¨C Constitution Bench

Pg.281¨C282 ¨C Facts ¨C paras 1 to 9

Pg.300-301 ¨C paras 48,49,50, 51

Pg.302¨C303 para 54, 58, 59

Supreme Court ¨C Rameshwar

Prasad v. Union of India ¨C AIR

2006 SC 980 ¨C Constitution

Bench

Pg.988 ¨C paras 1,2

Pg.990 ¨C paras 13,14,15

Pg.995 ¨C para 20 and 20(4)

Pg.1001 ¨C para 52

Pg.1007 ¨C para 85

Pg.1026 ¨C para 136 specifically (¡­Clearly, the Governor

has misled the Council of Minister¡­)

Pg.1034 ¨C 1035 - point No.4. (2 lines) and para 166 (¡­The

personal immunity from¡­.file an affidavit)

Pg.1036 ¨C paras 170, 171, 172 (The immunity granted by

Article 361(1) does not, however, take away the power of

the Court to examine the validity of the action including on

the ground of malafides)

Bombay High Court ¨C State v.

Kawas Manekshar Nanavati ¨C

AIR 1960 Bom 502 ¨C 30-Mar1960 - Constitution Bench

Headnote (b)

Pg.505 ¨C para 7 - Article 161¡­.conformity with it. (please

note that the opening argument of counsel merges with the

observation of the Court)

An order affecting employment of a public servant passed in violation of the Constitution is

inoperative and void from the very beginning and has no legal effect whatsoever:

Madhya Pradesh High Court ¨C

Union of India v. P.V.Jagannath

Rao ¨C AIR 1968 MP 204 ¨C

(T.C.Shrivastava and G.P.Singh,

JJ)

Pg.205¨C206 - para 1 - ¡­It was found¡­Government of India

Act, 1935¡­

Para 3, 4 (It is thus clear¡­.superfluous)

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Denial to be specific or else, allegation is deemed to be admitted:

Delhi High Court ¨C Asha Kapoor

v. Hari Om Sharda ¨C (2010) 171

DLT 743 ¨C (V.B.Gupta, J)

Pg.744-746 ¨C paras 13 to 20

Prerogative of the Government to deal with a public servant yields to specific and express

constitutional limitations made in respect of such class of public servants:

Federal Court ¨C Punjab Province

v. Tara Chand ¨C AIR 1947 FC 23

¨C (Spens C.J., Zafrulla Khan and

Kania JJ)

Pg.26¨C27 paras 14 to 16

Members of a Public Service Commission are subject to a relatively greater constitutional

protection and cannot be dealt with otherwise:

Supreme Court ¨C Mehar Singh

Saini v. Haryana Public Service

Commission ¨C (2010) 13 SCC

586 ¨C (S.H.Kapadia, C.J.,

K.S.P.Radhakrishnan

and

Swatanter Kumar, JJ)

Pg.599 ¨C para 5

Pg.603-604 ¨C para 14 and 15 (first three lines, pls see the

date)

Pg.611-612 ¨C para 29 (first three lines), para 31

Pg.615 ¨C para 40 (The purpose of Article 317(1)¡­will of

Parliament)

Pg.650-651 ¨C paras 151, 152 (a reference proceeding is

independent of the underlying criminal proceeding, if any)

Date: 22-Jul-2014

Place: Bangalore

Advocates for Petitioner

K.V.DHANANJAY AND I.S.PRAMOD

CHANDRA

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IN THE HIGH COURT OF KARNATAKA AT BANGALORE

(ORIGINAL JURISDICTION)

WRIT PETITION NO.22801 OF 2014 (SER)

BETWEEN:

Dr.Smt.Mangala Sridhar

AND:

State of Karnataka And Anr.

Petitioner/s

Respondents/s

WRITTEN ARGUMENT OF THE COUNSEL FOR THE PETITIONER (K.V.DHANANJAY

AND I.S.PRAMOD CHANDRA)

The controversy before this Hon¡¯ble Court rests on a very narrow compass. Article 317(2) of the

Constitution provides that the Governor may suspend a member of the State Public Service

Commission only after the President has made a reference to the Supreme Court in respect of

such person¡¯s alleged misbehavior. Despite such a mandatory pre-condition, the Governor has

ignored the same in the instant case and has suspended the petitioner who is a member of the

Karnataka State Public Service Commission. Therefore, the order of the Governor purporting to

suspend the petitioner while acting under Article 317(2) is constitutionally infirm and is bound to

be struck down by this Hon¡¯ble Court on that short ground.

The Public Service Commissions established in pursuance of Article 315 are clearly accorded a

constitutional status. Consequently, the various protections that have been conferred upon

members of such bodies in the subsequent provisions of the Constitution are required to be

mandatorily observed by those cast with the duty of such observance.

Although the Governor of a State is conferred with the power to appoint a member of the State

Public Service Commission, Article 317 of the Constitution vests in the President, the exclusive

power to remove such person and correspondingly, the Governor has been divested of any power

to remove the Chairman or members of a State Public Service Commission. Article 317(1) of the

Constitution expressly limits the power of the President to remove a member of the Union Public

Service Commission or of the State Public Service Commission only to those cases wherein he

has made a reference to the Supreme Court in relation to the alleged misbehavior of such a

member and the Supreme Court has, upon such a reference, reached an opinion that the member

in question deserves to be removed from office on the ground of such misbehavior.

Article 317(2) of the Constitution provides a limited form of authority to the Governor of a State

to suspend a member of the State Public Service Commission only after the President has made a

reference to the Supreme Court in respect of such a member in terms of Article 317(1). This

position is clearly borne out by the plain language of both the Articles 317(1) and 317(2).

The crucial phrase for the purpose of this Writ Petition is that contained in Article 317(2) which

reads as: ¡°¡­in respect of whom a reference has been made to the Supreme Court¡­¡±

Accordingly, there can be no manner of doubt over the proper meaning of the language contained

in Article 317(2). In the instant case, it is not in dispute that the Governor has purported to act in

exercise of authority conferred upon him under Article 317(2) of the Constitution. The impugned

order unequivocally says: (Annexure B, Pg.21-22 of the Writ Petition)

¡°NOW, therefore, I, Hansraj Bharadwaj, Governor of Karnataka, in exercise of the

powers vested in me under clause (2) of Article 317 of the Constitution of India do hereby

suspend Dr.Mangala Sridhar from office of the member of Karnataka Public Service

Commission with immediate effect and until an order is passed by the Hon¡¯ble

President¡±.

The only question that arises for the consideration of this Hon¡¯ble Court under the aforesaid

circumstances is whether there was any reference from the President to the Supreme Court of

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