Paragraph numbers below are the court’s original numbering, recovered from the source text.
48. All these expressions fall under different domains of jurisdiction and operate in distinct and different fields. The distinction, primarily, is that of degree, intent and expected standard required to be maintained in relation to the office that the delinquent holds. Onus of proof and severity of misconduct will be relatable to the office one is holding. Misconduct may relate to graver acts, deeds and omissions while misbehaviour may relate to the standards expected to be maintained by the holder of the constitutional office. In other words, misbehaviour/ misconduct qould be used interchangeably in certain circumstances while in other they may have to be understood as clearly distinguishable. 'Misbehaviour' may include behaviour that was not expected of the holder of the constitutional office but would not include 'grave .misconduct' or 'proved misbehaviour'. This distinction has to be kept in mind by this Court where the constitutional mandate refers to 'misbehaviour' which is an expression of very wide magnitude. As already held by this Court in the case of Reference No.1 of 2003 (supra), this term must be construed very liberally so as to bring within its ambit the behaviour of. the Chairman/Member of the Commission which, as per settled norms, was not expected of him/her. The expression 'misbehaviour' generally refers to a conduct which might erode the faith and confidence of the public at large in such constitutional office. Discussion on merits of the approved articles of charge
49. Before we proceed to discuss the evidence on each approved article of charge, as well as record our findings in that regard, it is imperative to note, as already held, that we are only examining Charges 1 to 5, 8 and 9. Charges 6 and 7 do not require examination by this Court as they are ex-facie beyond the permissible scope of the Presidential Reference. The second aspect, which requires to be noticed by the Court, is that though approved articles of charge have been framed against all the private respondents, while the proceedings were pending, A private respondents, namely, Doonger Ram, Chattar Singh, Yudhvir Singh, Satbir Singh, Om Prakash and Dr. Ranbir Singh were suspended. vide order dated 9th August, 2008 and, thereafter, they have ceased to be the Members of the Commission as their terms of appointment has come to an end B by efflux of time during 9th June, 2009 to 9th August, 2010. The learned counsel, appearing for the State, submitted that though in view of the judgment of this Court in the case of Reference 1 of 1983 [(1990) 4 sec 262, para 8], the Court may be called upon to examine the misbehaviour even in respect. of the c Chairman/Member whose term has already expired, still he has specific instructions not to press for recording of findings in the inquiry against these respondents. Consequently, while accepting this request which was unopposed, we further declare that this Court would not be examining the alleged misbehaviour of these private respondents. Article of Charge 1
50. Therefore, the Court has to examine the correctness or otherwise of artiCle 1 of the approved charges only qua Mehar Singh Saini, Chairman, Mrs. Santosh Singh and Ram Kumar E Kashyap, Members of the Commission. It is alleged that their qualifications, experience and stature were not of the required standard for appointment to their respective constitutional offices. Their appointments have been made with a yiew to ensure that they would further the objectives of the political party, F then in power. Thus, by conniving in the subversion of the Constitution, they are guilty of misbehaviour under Article 317(1) of the Constitution.
51. First, it needs to be noticed that the words 'by conniving G in the subversion of the Constitution' are introduced in the draft charges which, of course, stand approved by this Court. In any case, this is only an explanatory line and does not change the content and meaning of this article of charge, as stated in the Presidential Reference. The appointment to the office of H Chairman and Members of-the Commission is made by the IN RE: MEHAR SINGH SAINI, CHAIRMAN, HPSC [SWATANTER KUMAR. J.] Governor ofthe State in terms of Article 316 of the Constitution. Under proviso to Article 316(1), one half of the members of the Commission shall be persons who, at the dates of their respective appointments, have held an office either under the Government of India or under the Government of a State for at least 10 years, implying that the remaining half of the Members of the Commission. can be appointe~ by the Governor in accordance with law. 'In accordance with law' means that they are to be appointed on the recommendation of the State Government as the Governor has to act on the advice of the Council of Ministers. The provisions of Article 316 of the c Constitution do not lay down any qualification, educational or otherwise, for appointment to the Commission as Chairman/ Member. One-half of the Members of the Commission, as nearly as may be, are expected to fulfil the r~quirement of holding appointments under the State or the Centre for a period of ten years. These Members are termed as 'Official Members' while the others are 'Non-official Members' as already indicated by us above. Even for the Official Members no specific academic qualification has been provided. In oth~r words, there is no constitutional requirement of any particular academic qualification for appointment as Official/Non-official Member of E the Commission. Similarly, no specific experience of any number of years .is required for appointment as Non-official Member. In the case of Jai ShankarPrasadv. State ofBihar[(1993) 2 SCC 597], this Court stated that it is clear that framers of the Constitution realized that to make the provision rigid was both inadvisable and unnecessary. The Court also 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 realized by the framers of the Constitution that the democratic system can be maintained only if civil servants are appointed solely on the basis of their merit adjudged by open competition and only if they can carry on the administration according to law independently, instead of under pressure of their political superiors. Hence, they provided for Public Service Commissions at both the Union and State levels. Charge 1 alleges improper qualifications, experience and stattr.:; against these private respondents. What is lacking has been left to imagination? Whether they do not fulfil the prescribed qualification or do not have'adequate experience and stature, which they ought to possess, is again a matter of guess work. Whenever a charge of misbehaviour is framed, it needs to be specific in its content. If only vague averments are c made without giving any particulars or even documentary evidence to support such a charge, the delinquent Member may not be able to respond to them properly. This may_ cause serious prejudice to the concerned Chairman/Member. Once a constitutional provision does not provide for any specific academic qualification or experience of any particular cadre, official post or stature in the private field that they ought to have held before their appointment to this constitutional office, then any such allegation will stare the State in face and it will be difficult for this Court to hold that these respondents are guilty of misbehaviour and can be removed from their office in terms of E Article 317(1) of the Constitution. The learned counsel appearing for the State vehemently argued that even if the constitutional provisions do not provide specific qualification and experience, still this Court should lay down such prescriptions keeping in view the high constitutional office that the private respondents hold. According to him, the Court should, at least, state clear guidelines in that regard for appointment to such office. We may refer to the judgment of this Court in Reference No.1 of 1997/n the Matter of Dr. Ram Ash ray Yadav (supra}, wherein the Court emphasized that keeping in line with the high expectations of G their office and need to observe absolute integrity and impartiality in the exercise of their powers and duties, the Chairman and. Members of the Public Service Commission are required to be selected on the basis of their merit, ability and suitability and they are expected to be role· models for the persons whom they H are going to select for Civil Services. The character and conduct IN RE: MEHAR SINGH SAINI, CHAIRMAN, HPSC [SWATANTER KUMAR, J.] of the Chairman and Members of the Commission, like Caesar's wife, must therefore, be above board. They occupy a unique place and position; utmost objectivity in the performance of their duties, integrity and detachment are essential requirements for holding these high constitutional offices. Similarly, in the case of /nderpreet Singh Kah/on v. State of Punjab [(2006) 11 SCC 356], this Court in exercise of its appellate jurisdiction was concerned with allegations against the Chairman of the Punjab Public Service Coll)mission that in discharge of his duties, he had selected persons for extraneous as well as monetary considerations during 1996 to 2002. For such conduct and c selections, FIRs had been registered in that behalf while the selection of the appointed candidates was also challenged. While dealing with these allegations, the Court held as under: 11102. This unfortunate episode teacttes us an important lesson that before appointing the ~onstitutional authorities, there should be a thorough and meticulous inquiry and scrutiny regarding their antecedents. Integrity and ·merit have to be properly considered and evaluated in the appointments to such high positions. It is an urgent need of the hour that in such appointments absolute transparency is required to be maintained and demonstrated. The impact of the deeds and misdeeds of the constitutional authorities (who are highly placed), affect a very large number of people for a very long time, therefore, it is absolutely imperative that only people of high integrity, merit, rectitude and honesty are appointed to these constitutional positions."
52. In the above lines, this Court has explained the standards of performance which are expected to be maintained by the Chairman/Members of the Commission.
53. Desirability, if any, of providing specific qualification or experience for appointment as Chairman/Members of the Commission is a function of the Parliament. The guidelines or parameters, if any, including that of stature, if required to be specified are for the appropriate Government to ·frame. This ·G requires expertise in the field; data study and adoption of the best methodology by the concerned Government. to make · appointments to the Commission on merit, ability an(t integrity. Neither such expertise is available with the Court nor will it be in consonance with the constitutional scheme ttlat this Court 8 should venture into reading such qualifications into Article 316 or provide any specific guidelines controlling the academic qualification, experience and stature of an individual who is proposed to be appointed to this coveted office. Of course, while declining to enter into such arena, we still feel ~onstrained to c observe that this is a matter which needs the attention of the Parliamentarians and concerned quarters in the Governments. One of the factors, which has persuaded us to make this observation .. is the number of cases which have' been' referred to this Court by the President of India in terms of Article 317(1) 0 of the Constitution in recent years. A large number of inquiries are pending before this Court which itself reflects that all is not well with the functioning of the Commissions.
54. The Government has led documentary and oral evidence and has opted to examine, as many as, 31 witnesses E in support of the approved article·s of charge. In regard to approved article of charge 1, we find that there is hardly any direct oral or documentary evidence. While. this charge relates to lack of qualification, experience and stature, the Governor's letter to the President states that these persons influenced the F Governm·ent in making their appointments. Of course, it is expected that persons being appointed to such high office should not use any influence or pressure or take favour from the Government in power but at the same time that fault would have to be traced to the processing and the appointing authority rather than the candidate alone. It was contended that the Chairman, G Mehar Singh. Saini, is a private practitioner holding a BAMS degree only and, therefore, ineligible/incompetent ·to be appointed to the post of Chairman of the Commission. However, it was not disputed by any of the parties appearing before us H that he was from the Non-official category and, as such, the IN RE: MEHAR SINGH SAINI, CHAIRMAN, HPSC [SWATANTER KUMAR, J.] experience of ten years as Government appointee would not apply to him. Similar is the case with regard to respondent No. 8, Mrs. Santosh Singh, a teacher. Respondent No.9, Mr. Ram Kumar Kashyap, who has been appointed to the Commission as Official Member possessed ten years experience of holding Government office, as he had held the post of Field Assistant in ESA Department. It is ·contended that experience of holding such a post, in terms of stature and otherwise, is entirely inadequate for appointment to the Commission. The constitutional provisions. do not provide any qualification for Official/Non-official Members. It also does not provide any c experience in any particular field or office for Non-official Members. In the case of an Official Member, it is nowhere spelt out as to which cadre in the official hierarchy, he should have experience of 1 0 years. In these circumstances, we find that the Government has. failed to prove Charge 1 and we hold the respondents not guilty of any misbehaviour as contemplated under Article 317(1) on this count. Article of Charge 2
55. This charge has been framed against four of the nine private respondents. It is alleged that Mehar Singh Saini along with Dunger Ram, O.P. Bishnoi and Chattar Singh as members of the Selection Committee recommended the name of Pradeep· Sangwan for the post of Drug Inspector on the basis of bogus experience certificate. It was contended that selection of Pradeep Sangwan was, thus, arbitrary and constituted misbehaviour under Article 317(1) of the Constitution. ln regard to the irregularities committed, an FIR being FIR No.15 of 2005 was lodged; during investigation and on further inquiry by the State Vigilance Bureau, various documents have come to light which show that selection of Pradeep Sangwan was arbitrary and was made in a manner, which is not acceptable in law. Pradeep Sangwan did not possess the requisite essential qualifications and experience. A complaint against his selection was filed by one Rakesh Walia. Despite this, the candidate was . not only selected but also recommended on the basis of the A bogus experience certificate and subsequently appointed to the post of Drug Inspector by the State Government. The documents, which are on record and have been referred by the learned counsel in that behalf, are the application form and · certificates submitted by the candidate, statements of witnesses B including the witness from M/s. lee Drugs, whose certificate was produced by the candidate for the purpose of satisfying the essential condition of experience before the Selection Committee.
56. The counsel appearing for the Commission has not even C attempted to deny these averments and the charge against these Members. However, on behalf of four private respondents, it is contended that it was not for the Members of the Selection Committee to verify the contents of the certificate. They have conducted the selection in accordance with law and no D arbitrariness can be attributed to them. As many as 27 candidates were considered for the post and, ultimately, two names were recommended. Pradeep Sangwan, being at serial number 1, was then appointed by the Government and as such no fault could be attributed to the members of the Selection E Committee. It is also argued that if Pradeep Sangwan has obtained a bogus certificate then, at best, he can ·be said to have committed some offence and that cannot be understood as an instance of misbehaviour on the part of the private respondents. Further, the contention is that there is no evidence F to support this charge.
57. The charge is simpliciter relating to improper selection of Pradeep Sangwan for the post of Drug Inspector for which he was recommended at serial number 1 and was, subsequently, appointed by the concerned Government. The approved article G of charge may not spell out every minute detail of the improper selection but, in substance and keeping in view the dignity of the office of the Commission, it would be sufficient if a serious suspicion is cast on the process of selection which is attributable to and/or is result .of commission or omission of the members H of the Selection Committee. We may scrutinize the merits of IN RE: MEHAR SINGH SAINI, CHAIRMAN, HPSC [SWATANTER KUMAR, J.] this approved charge by examining the documents on the record. The State Government had advertised various posts including two posts of Drug Inspector and the essential qualification and experience for the same were as follows : "Essential Qualifications and Experience : (a) Second Class Bachelor Degree in Pharmacy or Pharmaceutical· Chemistry. (b) 1 % years experience in manufacturing of at least one of the substances specified in schedule 'C' . appended to the Drugs and Cosmetic Rules, 1945 OR 1 % years experience in testing of at least one of the substances specified in the said Schedule 'C' in a Laboratory approved for the purpose by the Licensing Authority OR three years experience in inspection of Firms manufacturing any of the substances specified in the said Schedule 'C'. (c) Adequate knowledge of Hindi."
58. Condition No.2 of general clarifications, as published in the advertisement, reads as under : "Generar Clarifications 2. Incomplete application form i.e. without proof of age and the minimum required qualifications and experience will be straightway rejected without entering into any correspondence."
59. From the bare reading of the above essential qualifications, it is clear that these qualifications could not be relaxed at the discretion of the Commission. Furthermore, a candidate has to have one and a half years of experience in manufacturing of at least one of the substances specified in Schedule C appended to Drug and Cosmetic Rules, 1945 or one and a half years experience in testing of any such substance in a laboratory approved for the purpose by the Licensing A Authority. Any application, which was incomplete and did not annex the required certificate of experience, was liable to be rejected straightaway. The last date of submission of application as well as for consideration of the eligibility criteria was 3rd September, 2004. Let us now examine the application that was submitted by Pradeep Sangwan. Pradeep Sangwan had submitted application No.25827, as per tpe endorsement made under receipt No. (??????? ??????) 713 dated (??????) 9th September, 2004. However, respondent No.5 had initialed the application with the date as 3rd September, 2004. This, c obviously, means that the endorsement. by respondent No.5 on the ·application was ante-dated to the actuai date of receipt of the application. This application ought to have been rejected at the very threshold inasmuch as this was received after the prescribed last date of receipt of application i.e. 3rd September, D 2004.
60. In his application, under column No.1 0, Pradeep Sangwan had stated that he has done his B. Pharma from M.D. University, Roht~k in 2001 . In column No.12 of the application, the applicant had not stated that he had any experience of E teaching on regular and/or voluntary basis. However, he had annexed to the application a copy of the certificate dated 16th August, 2004 stating that he had served in Janta College of Pharmacy, Butana, Sonepat over the weekends on voluntary basis for the period February 2001 to 15th May 2003 and F worked as Lecturer in the same from June 2003 till the date of issuance of the certificate. Another certificate of experience, which was annexed to the application and which was mentioned in column No.12 of the application, was the certificate issued by Zee Drugs, Agra. This certificate is alleged to have been signed G by authorized signatory of the firm and it states that during the period 20th May 2001 to 2oth May 2003, Pradeep Sangwan worked as a Pharmacist in the company at a salary of Rs.5,000/ -.This application, despite the above defects, appears to have been pr~cessed by the office of the Commission. From the H original records produced before the Court during the course of IN RE: MEHAR SINGH SAINI, CHAIRMAN, HPSC [SWATANTER KUMAR, J.] hearing, it is clear that correct noting was not recorded. Still, the same was approved by the Members of the Commission (private respondents) and the candidate was called for the interview. The interview was.held on 29th September, 2004 and despite the fact that there were more competent and meritorious candidates available, he was selected and placed at serial No.1.
61. It may be notic~d that there were 76 applicants for the post, of which 27 were called for the interview and finally a select list of two was prepared. The recommendation of the selection committee was sent to the Government on 2nd November, 2004. However, on 5th October, 2004, a complaint was received from Mr. Rakesh Walia about the selection of Pradeep Kumar, son of Ram Singh having residential address, which was not that of this applicant as given in his application. This complaint made a specific allegation that the experience certificate furnished by Pradeep Kumar was bogus. The candidate had never worked as a Manufacturing Chemist in Zee Drugs. In fact, he was working as a Lecturer and, therefore, it was physically impossible for him to have worked with Zee Drugs on a regular basis. Complainant stated that he could file an affidavit to prove that the experience certificate was bogus and false. Copy of this complaint was sent to the Chairman of the Commission, Chief Secretary, Government of Haryana and Chief Minister of the · State of Haryana. In response to the complaint, a note was put up to state that neither the complainant Rakesh Walia nor Pradeep Kumar was a candidate for the post and hence no action was required to be taken. It was put up for consideration, through the Superintendent, before Mr. Yudhvir Singh, Member of the Commission, who approved its filing and then it was also signed by the Chairman of the Commission. It needs to be noticed that this process adopted by the Commission and, particularly, by its Member and Chairman was not in consonance with the known canons of administrative jurisprudence. May be the names of Pradeep Sangwan and his father were stated incorrectly as Pradeep Kumar and Ram Singh in the complaint, but fact of the matter remains that Pradeep Sangwan was the A selected candidate. Select list of only two persons had been prepared and approved by the Selection Committee. Thus it was expected that this complaint ought to have been examined in some detail, particularly when the facts alleged in the complaint found due support from the documents annexed to the B application of the candidate as well as the official records of the Commission. In the present day when unemployment is one of the biggest problems faced by our country, it is expected that the Commission will scrutinize the antecedents of a candidate with utmost ca~e before recommending him for appointme~t that c too for a responsible post such as Senior Drug Inspector. Despite this complaint, the results were aP,provedton 26th and J … 27th October, 2004 by the Chairman a·rid Members of the Commission. The private respondents had signed those minutes and forwarded the names to the Government on 2nd November, 0 2004. Such conduct of the Chairman an9 members of the Commission not only shows omissions and' commissions on their part but administrative lapses as well. This resulted in providing employment to an undeserving candidate at the cost of more meritorious candidates.
62. As already noticed, on the basis of the complaint received by the State Government, inquiries were initiated by the State Vigilance Bureau and some FIRs were also registered including FIR No.15 of 2005. In this investigation, various documents and evidence came to the notice of Vigilance Bureau and the investigating agencies, all of which were collected and placed on record of this Court by way of affidavit, filed by PW6, namely, P. Raghavendra Rao, Special Secretary, Govt. of Haryana. These allegations were found to be correct as reflected in the report of the Deputy Inspector General, M.S. Ahlawat which G is on record. In the affidavit of PW6, specific reference has been made to the appointment of Pradeep Sangwan and the fact that his certificat~ of experience was a forged certificate. PW26, M.S. Ahlawat, stated that he had conducted an inquiry into the aJie·gations levelled against Dr. K.C. Bangar, the then Chairman H of t~e Committee. It was noticed in the inquiry that Pradeep IN RE: MEHAR SINGH SAINI, CHAIRMAN, HPSC [SWATANTER KUMAR, J.] Sangwan had produced a false certificate from M/s. Zee Drugs and that he was given appointment as an undue favour. During this investigation, the statement of PW30, Bangti Jha, Quality Control Manager in Zee Drugs, was also recorded who stated that Pradeep Sangwan had not worked as Assistant Chemist or Manufacturing Chemist in Zee Drugs during his period of B appointment. In other words, definite documentary and oral evidence had been produced on record to show that the certificate annexed with the application of Pradeep Sangwan was not a genuine one and, in fact, he was never employed by M/s. Zee Drugs during the relevant period. It is, therefore, clear c that he did not possess the requisite experience in terms of the advertisement.
63. Another important aspect, which needs to be noticed, is that, in his affidavit, PW20, Hazari Lal, Deputy Superinte·ndent of Police (since retired}, has specifically stated that experts, invited by the Commission for this selection, were not provided the original record despite demand. PW20 had also recorded the statement of Dr. Mrs. Usha Satta, Senior Deputy Director, Health Department in that behalf. In other words, the members of the Selection Committee, namely, the private respondents, obviously favoured the selection of Pradeep Sangwan. PW2, Sajjan Kumar, who: is Deputy Superintendent of Police had investigated the matter and also filed an affidavit, the relevant portion of which is stated as under : 1. That above noted case was registered following the Vigilance enquiry No.5 dated 16.5.2005, Chandigarh against Dr. K.C. Bangar, Chairman, Haryana Public Service Commission (hereinafter called as HPSC) and Sh. Pradeep Sangwan s/o Moh.inder Singh Sangwan, Drug Inspector, Jhajjar G rio Viii. Kohla, Distt. Sonepat and others. In this enquiry, it was alleged that during August, 2004, Haryana Public Service Commission advertised the Post of Drug Inspectors in Health Department .in c Haryana. The said Pradeep Sangwan also applied for this post and submitted two different experience certificates along with his application form. While one of them was issued by Zee Drugs, Sikandara, Agra (U.P.) , the other was issued by Janta Pharmacy College, Bhutana, Distt. Sonepat, for the same period (20.05.2001 to 20.05.2003 and 2001 to 2004 respectively). It was alleged that he had also drawn salary as Lecturer from Janta Pharmacy College, Butana, Di.stt. Sonepat. He was called for interview by Haryana Public Service Commission on 06.10.2004, whereas remaining candidates were interviewed on 28/29.09.2004. Dr. K.C. Bangar, Chairman, HPSC, who happened to be resident of village Kohla, the viHage ofSh. Ptadeep Sangwan , deliberately ignored the forged experience certificate of Zee Drugs, Agra and influenced the selection process and at!his instance, the selection committee i.e. Members of HPSC, selected Sh. Pradeep Sangwan by giving him undue advantage and ignoring the claim of ofher suitable candidates. XXX XXX XXX XXX XXX 8. That during the course of investigation, Sh. Rohtash Singh, DSp, had recorded the statement of Dr. lsha w/o Dr. Hari Mohan r/o Rohtak on 09.08.05. She stated that she had attested the experience certificate of Pradeep Sangwan on the recommendation of Sh. Mahender Singh r/o Garhi Bohar. Mahender Singh had wrongly put the date as 28.08.04 on the experience certificate dated : 02.09.04, after obtaining my signatures. Mahender Singh is father of Pradeep Sangwan, who was later · appointed as Drug Inspector."
64. The affidavits of PW2 and PW6, in addition to other IN RE: MEHAR SINGH SAINI, CHAIRMAN, HPSC [SWATANTER KUMAR, J.] records, are the basic evidence, which has been produced by the State before this Court, to establish the approved article of charge. It was contended on behalf of the private respondents that these affidavits of the police officers and the statements recorded under Section 161 of the Code of Criminal Procedure are inconsequential in this inquiry and cannot be taken into consideration by this Court. We are unable to accept this contention. Though these statements are inadmissible in evidence as far as a criminal trial is concerned, however, in the inquiry before this Court and even in a departmental proceeding, they can be considered to substantiate the facts which otherwise c are being established by the concerned authority. We make it clear that it is not only the statements of the Investigating Officers and the witnesses which were recorded by him during the course of investigation are not the only basis for which we are drawing certain inferences. But they are certainly relevant considerations, which have to be kept in mind by the Court, while examining the matter in its entirety to see whether the misbehaviour complained of is attributable to and committed by the private respondents. Conclusion of misbehaviour of the private respondents shall further be substantiated by the fact that when the private respondents were cross-examining PW20, they did not even suggest that he had not recorded the statement of other witnesses including expert Dr. Mrs. Usha Satta correctly or not at all. On the contrary, the question was put suggesting that statement of this witness was. recorded and a particular question was not put to this witness. The following question and answer in the cross-examination completely demolishes the objection now sought to be raised before us : .Q. At the time of questioning of Dr. Usha Satta, did you ask her as to whether in the interview on 28th and 29th September, she had objected in writing that the relevant certificates were not shown to her? I had recorded her statement, in her statement she had mentioned that she was not shown the documents." 73o· suPREME·couRr R~PoRrs [2o.1o1 14 (AboL~ ~s.c·.R. • ~· ~~~ '• : : .; • I • •• · '65·, The ·chairman and Members of r the.-!Commission;~ tiarticularly, theM embers, who have 'attested and approved the orders··otslihimoning Pradeep Sangwan for:the:interview, should have e·xerdsed greater degree.·of care in scrutiny.~ Further, the~ matte fought to have beerre·xamined by the~pri'late· respondents :9 when~ the complaint againsnhe· s-elected candidate was;made ciriB copy thereof. was ~sent to the highest-:authority, im the c 'ommissionYan:d iri; thej State.Government!dt is a matter.of common·knowledge and, in:fact, there is:no,dispute before.us that the application and recbrd of the candidate are placed before c the me·mbers of the Selection·cominittee at.the.time of.interview of the candidate~ We fail tb·u·nderstand as to why the r)'lembers of the· -Selectioh Committee idid ·not notice:that .the :application had ·not been ·s'ubr'nltted ·before the ·Jast,pJescribed;date,• i.e~ 3rd September, ·2004 and :why respondent:·No.5 .. had ~put ~his ,0 initials with the date·of 3rd September,.2004.when application Was actually received on 9th September: 2004; particularly, when this was apparent-from the first glance on theyer.y opening sheet ofttie·application 'forrh .~ lt may be notlced ~from · the record<that 'the receipt number and the date of. receipt; has been written:by ·the·receivingclei'k'agaihst:the printed column on each application E form and on the application form ·of,Pradeep Sangwan.ih~as wdften as receipt No. 713 dated 9th Septemberi 2004.·Another facto-r, ·which would-substantiate lthat .this·application was received after the deadline,· is that the application –of the other ·recommended candidate was-received on 23rd August;-,2004 against receipt' No. 226 ·and the entries were made in the.normal course o'frbu·sin·ess. All.:these .facts·and ·evidence, when cumulatively examined, unambiguously show that the.se private respondents h~~e faile~ to act judicious!y a~g. in accordance ~with · prir1ciples'.Of fairness.' They have failed' to' maintain the G expected ·standard. of tr~hsparent and fair selection on merit. The appli.catioh'of Pradeep s'angwan was'liable·f() be rejected at the very threshold in :terms of cbndition 'No. ·ioi the General .Ciarifications·but the same was accepted and·he was called for ·interview and selected . rDespite,. the ,complaint, which ···) 1\. . J I l ~. ~ … l . -,- ·…h IN RE: MEHAR SINGH SAINI, CHAIRMAN, HPSC [SWATANTER KUMAR, J.] subsequently was found to be correct, his name was also forwarded for appointment to the State Government. We are not holding that furnishing of the false certificate by Pradeep Sangwan was an act attributable to the Chairman/Members of the Commission but its acceptance, despite the complaint and the manner in which Pradeep Sangwan was selected and recommended for appointment to a very responsible post i~ the State Government, certainiy is clothed in suspicion and favouritism. We are informed that Pradeep Sangwan is now no longer in service , … , 66. As a result of th~· above discussion, we are of the considered view that the conduct of the Members of the Commission, in processing the application of Pradeep Sangwan, endorsing and approving his name for the interview. selecting him and finally recommending his name for appointment to the post of Senior Drug Inspector, does not meet D the standards of behaviour, integrity and rectitude required to be maintained by the office they were holding. Thus, their behaviour with respect to this article of charge would certainly fall within the ambit of misbehaviour justifying their removal from office. Articles of Charge 3 to 5, 8 and 9 67. Approved articles of charge 3, 5, 8 and 9 pertaining to alleged acts, omissions and commissions amounting to misbehaviour have been framed against all the respondents in the present inquiry. However, article of charge 4 has been framed only against Mehar Singh Saini, respondent No.1, who was earlier Member and later appointed as Chairman of the Commission. These approved articles of charge can be dealt with together inasmuch as they are based on common allegations, common evidence and with reference to the same records produced by the State Government in support of the allegations. In terms of Charge 3, Mehar Singh Saini and other respondents refused to cooperate in the investigation carried out by the State Vigilance Bureau in spite of directions of the ;uy, 1!<. . "'*" "' ,t?• . .. ~ – . ). . ~ ' ·•. High Court and intentionally did .not supply the docume~ts requested in furtherance to the complaints received by the authorities in relation to selection made by the Commission. While referring to the proceedings before the High Court of Punjab and Haryana in Writ Petition No.15390 of 2002, to which a all the parties before us were parties, it has been stated that these acts of manipulation and interpolations in the answer sheet were carried out favouring certain candidates and, thus, there was deliberate abuse of process of selection by Mehar Singh Saini as Member of th~ Commission in selection for Haryana c Civil Services (Executive Branch) and Other Allied Services Examination, 2002. Approved article of charge 5 only expands the scope of approved article of charge 3 as it states that deliberate attempt was made by the private respondent to withhold material . records which were required by the investigating agencies to investigate the matter in furtherance to the complaints received by the Government in regard to the irregularities and illegalities committed by the then Chairman and Members of the Commission in the selection for the year 2002. Approved article of charge 8, to some extent, is repetitive and it refers to the proceedings before the Punjab and Haryana High Court in Writ Petition No .15390 of 2002 wherein reply was filed on behalf of the Chairman and Members of the Commission, only as an attempt to justify the manipulation and interpolations committed in the course of selection. Approved article of charge 9 is again extension of/explanatory to abov~ approved articles of charge as it only refers to the resolution which were passed by .the Chairman and Members of the Commission deciding not to hand over the records to the investigating agencies upon 1 demand and despite directions. All these allegations of commissions and omissions according to the State Government G amount to misbehaviour within the meaning of Article 317(1) of the Constitution and justify their removal from the office. 68. We have already noticed that the contention raised, on behalf of the private respondents, is that the articles of charge are beyond the scope of Presidential Reference. There is no IN RE: MEHAR SINGH SAINI, CHAIRMAN, HPSC [SWATANTER KUMAR, J.) evidence to support them and, in any case, the alleged conduct does not amount to misbehaviour as it was a legitimate right of the Commission to claim privilege acting through its Chairman and Members. Thus, the decision not to furnish the records to the investigating agencies was justifiable. 69. In the preceding paragraphs we have already held that 8 this Court has jurisdiction to examine additional or explanatory charges, records, documents, evidence and facts which may come to light even subsequent to the Presidential Reference in ·exercise of its advisory jurisdiction under-Article 317(1) of the Constitution. They are not such independent articles of charge to which there-is no reference in the entire record and/or are likely to cause prejudice to the delinquent Chairman/Members of the Commission. The cumulative reading of these articles of charge shows that emphasis is on non-cooperation of the Chairman and Members of the Commission in not furnishing the records, when it was demanded by the investigating agencies. Further there has been an abuse of office of the Chairman and Members of the Commission by withholding the material records, passing resolutions contrary to law, filing incorrect replies in judicial proceedings and lastly the manipulation and interpolations in regard to answer sheets of the selected/non-selected candidates. More particularly, reference has been made to the selections made in the year 2002. Before we examine the evidence on these charges, we may refer to the points which emerge from these approved articles of charge : (a) Whether during their tenure as Chairman and Members of the Commission, the private respondents· adopted a· non-cooperative attitude and intentionally decided not to furnish relevant records to the concerned authQrities/investigating agencies? (b) Whether the right of privilege in terms of Section 123 of the Indian Evidence Act, 1872 was available to c {c) · ,_ the Commission acting through its Chairman and Members? ,. Whether non-furnishing of documents or records to the inquiring/investigating agencies, under the pretext that the Commission is a constitutional authority and thus not amenable to investigation, was a bona fide decision/resolution or it was an attempt to cover up the misdeeds, omissions and interpolations made in the process of selection? Furthermore, if the records were made available to the agencies would it have exposed the misbehaviour of the private respondents? 70. It is not in dispute that the Government as well as the Commission had received various complaints in regard to the process of selection as well as the selections themselves, made by the Chairman and Members of the Commission to various appointments in the State services. In furtherance to these _ complaints and the complaint made by Rakesh Walia in case of appointment of Pradeep Sangwan to the post of Senior Drug E Inspector, five different vigilance enquiries and two different FIRs being FIR Nos. 15 of 2005 and 20 of 2005 were registered. These cases were registered, primarily, on the ground that the Commission had adopted unfair method of selection. Favorite candidate~ were selected and it was also stated that there has F been interpolation and manipulation of marks in the answer sheets of the selected as well as non-selected candidates. In furtherance to FIR No.15 dated 8th August, 2005, a charge-sheet, for the offences afore-stated, had been filed before the Court of competent jurisdiction on 30th August, 2006. Despite repeated demands, complete records were not given to the investigating G agencies. It is clear from the record that during the period 25th May, 2005 to 5th July, 2005, the Vigilance Bureau issued as many as 8 letters asking for the records in relation to different inquiries. Instead of cooperating, the private respondents opted to file a writ petition, through the Commission, being Writ Petition H No.12593 of 2005, which was contested by the State. Various · IN RE: MEHAR SINGH SAINI, CHAIRMAN, HPSC [SWATANTER KUMAR, J.] complaints, reports and documents were produced before the High Court and ultimately in its judgment in Haryana Public Service Commission (supra), dated 12th August, 2005, the High Court clearly observed that the Commission could not claim immunity from providing records, particularly, when the investigations were in furtherance to the complaints of corruption against its office holders having received by the Government. It will be useful to refer to the relevant part of this order of the High Court wherein certain observations were made against the Chairman and Members of the Commission and their claim of absolute immunity was not accepted, which reads as under: c "11. At the · outset we may notice that the petitioner/ Commission has tried to drag political considerations -by insinuations at least. It has been pleaded that the present Chairman and the Members of the Commission are appointees of the previous "Indian National Lok Oat" Government and that after the elections, a new "Congress Government" has assumed office. Although it has been asserted that all the .persons i.e. the Chairman and the Members of the Commission are non-political persons but the insinuations and the attempt to politicise the whole controversy is loud and clear. The aforesaid attempt cuts at the very root of the various arguments raised by the Commission. As a constitutional body, it is not expected of the Commission to bring in politics or rely upon the fact that the ruling party in the State had changed. We can only express our disapproval for the aforesaid attempt made by the Commission. XXX XXX XXX 14 . ..• It is not in dispute that the enquiries now being conducted by the Vigilance Bureau pertain to certain past selections. From the communication received by the petitioner-Commission, it appears that the action of the past Secretary, the past Chairman and certain other Officers/ Officials of the Commission, are being probed with regard c to the serious charges. Under any circumstances, the aforesaid enquiries cannot be taken to mean any erosion of the authority of the Commission or its independence. Even an expert and constitutional body like the Commission is supposed to perform its duties, fearlessly and carry out selections on the basis of the best merit available. However, if the aforesaid selections are alleged to be tainted and based upon consideration other than merit, the Commission cannot, in such circumstances, claim any immunity .. No body has a vested right to perpetuate ill~gality or hide a scandal. All selections made by public servants are supposed to be based upon competence, merit and integrity. The allegations to be contrary would not only erode the public confidence in the Commission but would also result in merit being a casualty. 15 …. Therefore, if a formal F.I.R. is registered, then even as per the learned Counsel, the holding of the vigilance inquiries could be justified. In our considered view, it would embarrass the Commission, its Chairman and its Members more rather than protect. Holding of the vigilance inquiry without registration of any formal F.I.R., in our view is in the . nature of a fact finding exercise. If after the aforesaid exercise is undertaken, the commission of any criminal offence is made out, the law will take it own course. XXX XXX XXX 18. We find that the aforesaid contention of the learned Counsel is also without any merit. There is no dispute with the preposition (sic) of law that while exercising the power of judicial review this Court would be slow in making competitive comparison of the selected candidates vis-a- vis the unsuccessful candidates. To this extent reliance placed by the petitioner on the judgment of Jasjit Singh Sidhu's case (supra) is wholly justified. However, we express our inability to extend the aforesaid analogy any further to hold that even in the case of corruption charges, IN RE: MEHAR SINGH SAINI, CHAIRMAN, HPSC [SWATANTER KUMAR, J.] tainted selections, or any illegality, no investigation in the matter of selection, could be made. Accepting the aforesaid argument would be perpetuating the tainted selections. XXX XXX XXX 22. It is, thus, apparent that an effort has been made by the Commission to protect its Chairman and the members, who for undisclosed reasons have chosen not to directly approach this Court. The commission which is a constitutional body has unl)ecessarily filed the present . petition to watch the interest of the Chairman and member, c who have chosen to remain behind the curtain. The Commission cannot equate itself, nor under the Constitution of India can it be so equated, with its Chairman and its members. The Commission has a distinct and a constitutional identity, independent of its Chairman and o members. It is, thus apparent that the present petition has been filed at the instance of the Chairman and members, although in the name of the Commission. We cannot put any seal of approval to this act of the Commission." 71. The correctness and legality of the order of the High Court was challenged by the Commission before the Supreme Court by filing a Special Leave Petition being SLP {C) No.18726 of 2005. The same was dismissed as withdrawn vide order dated 19th September, 2005. It is useful to note a strange behaviour on the part of the Chairman and Members of the Commission that they chose to file a separate application along with the petition seeking leave of this Court to appeal against the order of the High Court dated 12th August, 2005. The permission prayed for, by the Chairman and Members of the Commission, was declined vide order dated 28th October, 2005. In other words, the order of the High Court and the observations made by it, inter se the parties have attained finality. 72. We may also notice that, in the meantime, the candidates selected for the Haryana Civil and Allied Services (Executive Branch) in the year 2004, had filed a Writ Petition before the High Court of Punjab and Haryana praying for issuance of a writ directing the respondent to issue letters of appointment to them on the premise that they had duly been B selected to the service. The High Court dismissed the Writ Petition noticing the fact that the elections in the State had been announced and model code of conduct had come into force, therefore, appointment letters were rightly not issued to them. The order of the High Court was challenged before this Court. c While dismissing the appeal this Court in Jitendra Kumar v. State of Haryana [(2008) 2 SCC 161] noticed the disturbing feature of non-cooperation by the Commission in the Vigilance Enquiries and held as under: • … we only hope and trust that a constitutional authority like the Commission should neither withhold any document nor refuse to cooperate with the State Vigilance Bureau in the matter of conduct of an inquiry. If the statements made by the Commission are correct, they have nothing to hide. It would be In the interest of all concerned including the appellants herein to see that the inquiry should be completed at an early date." 73. It was argued that despite directions/observations of the Court still complete cooperation was not extended and there F · was con~cious decision taken by the private respondents, as the Cha1rman and Members of the Commission, not to cooperate in the investigation which can be inferred as an intention to cover up their own commissions and omissions including mal practices in selections. 74. The other phase of non-cooperation appears to be when, during the period 15th December, 2005 to 4th January, 2007, all the private respondents in the present petition passed four different resolutions declining to hand over the records for investigation to the concerned authorities. The stand taken was H that it is a constitutional body and its record cannot be made IN RE: MEHAR SINGH SAINI, CHAIRMAN, HPSC [SWATANTER KUMAR, J.] available to the investigating agencies even if such a demand -…. was made in furtherance to the complaints, vigilance inquiries and First Information Reports. These resolutions were passed referring to certain Special Leave Petitions penc!ing before this Court, but strangely no reference was made to the Punjab & Haryana High Court order dated 12th August, 2005 and/or that of this Court dated 19th September, 2005. Bare reading of the ~ … resolutions, except resolution dated 4th January, 2007, clearly show that there was non-application of mind. The alleged claim of privilege did not find mention in them and the orders of the Courts Including the highest Court of the land were ignored. The c investigating agencies had also demanded, by different letters, the records in relation to FIR No.20 of 2005. While invoking the provisions of Section 91 of the Code of Criminal Procedure, the agencies issued notice to the Commission but to no avail. An application had also been filed by the State Vigilance Bureau '.l. under Section 93 of the Code of Criminal Procedure before the Court of Chief Judicial Magistrate requesting production of relevant record and for appropriate directions. However, this application was vehemently contested by the Commission, at the behest and at the instance of the Chairman and Members of the Commission. The Chief Judicial Magistrate vide order dated 25th October, 2007 rejected the application filed by the investigating agencies against which a revision was filed before the learned Sessions Judge, who upheld the order of the Chief …. Judicial Magistrate vide order dated 30th November, 2007 . Against the order of the Sessions Judge, revision was filed by State in the High Court which came to be allowed vide order dated 1st April, 2008. In that order, the High Court had clearly held that claim of privilege for non-production of documents with -(:> reference to Sections 123 and 124 of the Evidence Act, 1972 was not sustainable or justified. The Court further held that there was sufficient material on record to justify the issuance of search warrant under Section 93(1 )(a) of the Code of Criminal Procedure and held that the State had the right to get the records from the Commission for the purpose of investigation and on latter's failure, the provisions of Section 93 of the Code of H ·A Criminal Procedure were rightly invoked. It observed that the Commission is a constitutional authority and it would not be in the fitness of things that a search is conducted in its office, but such a situation has been created by it. Liberty was granted to the Commission to produce documents, records before the Investigating Officer, Inspector of Police, Vigilance (Ambala Range). Despite such unambiguous and clear directions of the Court, the Commission, acting through the private respondents failed to hand over the records but chose to prefer an SLP before this Court being SLP (Crl.) No. 3649 of 2008. This Court on c 16th May, 2008, granted stay of the operation of the High Court's order. However, the matter continued to be pending for a considerable time before this Court and this SLP was ultimately withdrawn vide order dated 14th December, 2009. In the meanwhile, as already stated, four new Members had been appointed to the Commission in place of the Members whose term had expired. These newly nominated Members had taken a decision to hand over the record to the investigating agencies. Fact of the matter remains that for a very considerable time investigations were delayed and the guilty could not be brought to book. There was definite non-cooperation on the part of the E private respondents. 75. Pradeep Sangwan's case is just one of the examples of improper selection made by the private respondents. The Vigilance Bureau had instituted different inquiries. Enquiry Nos. F 1 and 3 resulted in registration of FIR No.20 of 2005 and the notices dated 21st December, 2006 and 4th January, 2007 along with other letters issued to the Commission for making available the records in question. Every possible effort was made to spend public money, time and energy by the Commission to withhold G the records rather than to provide the same to the investigating agencies to ensure expeditious completion of the inquiry/ investigation. Avoidable impediments, with the aid of law or otherwise, were created to ensure that the notices issued by the authorities and even observation of the Courts were not complied with. As far as the claim of the Commission with regard IN RE: MEHAR SINGH SAINI, CHAIRMAN, HPSC 7 41 · [SWATANTER KUMAR, J.] to privilege over its documents is concerned, it stood finally concluded by the order of the High Court against which the SLP was withdrawn. It is not for us to re-examine that issue, all over again, in the facts of the present case. It is impermissible to examine an order passed by the High Court or Supreme Court which has attained finality inter-se the parties that too in a collateral proceeding. This will be opposed to the doctrine estoppel per rem judicatam. 76. We have examined in detail the evidence led in relation to non-cooperation and the malo-animo of the Chairman/ Members with reference to the records before us, i.e., the documentary and ocular evidence. PWs 6, 8, 13, 14, 20 and 27 have filed their affidavits. The collective reading of this evidence along with documents which have been placed on record establishes two facts: 1. That there was definite non-cooperation on the part of the Chairman/Members of the Commission in furnishing record and documents to the investigating agencies; and 2. This attitude of the private respondents as well as the claim of privilege lacks bona fides, much less protects the constitutional stature of the Commission. 77. PW6, P. Raghvendra Rao, in his detailed affidavit, at the very outset, denied the suggestion that FIRs were registered as a result of political vendetta. According to him, there were various complaints received by the Government which were examined and FIRs were registered in accordance with law. He has further stated that despite requests in writing and otherwise, records were not provided and when records were provided it has come to light that there has been manipulation and · interpolation in the answer sheets and the entire selection process adopted by the Commission through private respondents for selection to various posts in the State cadre A was arbitrary and contrary to rules. In the case of appointment to the post of Environmental Engineer and Assistant Environmental Engineer certain candidates were selected by the Commission, who admittedly were over age. The recruitment rules in question and the advertisement had not empowered the Commission to grant any relaxation in age limit. Despite that the Commission, while recommending the names, issued a corrigendum and made a reference for ex-post-facto approval for such relaxation. In addition to this, the Chairman and Members of the Commission appears to have exercised influence over c its subordinates to push through above noticed selections under all circumstances. It is useful to notice that out of the four selected candidates, three were over age but still were selected for that post. PW29, Smt. Chandra Kanta Gupta, who was Dealing Assistant in the Commission, stated that in order to prepare D and issue corrigendum to increase the age limit, in the post of Environmental Engineer, she was called to the office by the PA to the Chairman on a Saturday, which was a holiday. Such corrigendum was issued despite the fact that there was no Government approval for the same. Similar statement was also E made by PW12, La I Chand Sharma who was Officer on Special Duty in the Commission. This may not be the specific charge with which we are concerned but these are relevant attendant circumstances which need to be noticed for examining the genuineness of the reply filed by the private respondents before the Court. 78. PW1. Patram Singh, Superintendent of Police, State Vigilance Bureau had sworn an affidavit that he along with Deputy Superintendent of Police. in furtherance of the order of the Court, not only issued notices but also visited the office of the G Commission with a request to furnish the records but no records w_ere provi~ed to them. This witness also produced, along with h1s affidavit, number of documents including compilation of results for the year 2001 to 2004. As per the statement of this witness. the marks of several candidates were either reduced H or increased, without specifying any reason, much less as a IN RE: MEHAR SINGH SAINI, CHAIRMAN, HPSC [SWATANTER KUMAR, J.] genuine necessity. Where such changes have been made there -:…, were no initials in some cases while in others, the initials were in different ink and even by different persons. The marks had been considerably varied and the persons who had got higher marks in the written examination were given very low marks in the interview and vice-versa. This obviously disturbed the inter B se merit of the candidates. During the course of hearing we had asked for the production of the original answer sheets of the candidates, which were produced. In the paper of Public Administration, the candidate with Sr. No. 1631 was originally awarded 84 marks in the paper for attempting five questions. c The marks of this candidate thereafter had been scored out in a different ink and were reduced to 68. This candidate had got 16 marks for writing an answer to question No.7. The figure of 16 marks was scored out and instead the candidate was given '0' mark for the same. We have perused the answer to this question. Compared with answers given by other candidates, who have been awarded 16 or even more marks, the answer cannot be termed in any way inferior to the answer of the other candidates. Thus there appears to be no justification, whatsoever, for awarding 0 mark in place of 16 marks, which were originally awarded. Similarly, in the same paper a candidate with Sr. No. 1732 was original awarded, in all, 95 marks which were reduced to 84 by re-awarding marks in the answers to three different questions. Neither the figure of 84 in the tabulated statement for awarding marks nor any of the reduced marks in three questions are initialed by any examiner F or appropriate authority.ln Haryana Judicial Service Examination the candidate having Sr. No. 0150 had originally been awarded 58 marks which were reduced to 48 without any revaluation of the answer sheet. A note was written at the back of the first page ~·;, of the answer sheet to say, "he has used English language while writing essay which is against the instruction as such Commission may kindly decide the penalty". In a most arbitrary manner 10 marks from the total marks were reduced. It was expected that some responsible person in the Commission and/ or Examiner should have revaluated the answer-sheets to assess A the penalty for partial use of some English words in the essay, particularly, when in all the remaining questions the candidate had not used any English word, as is apparent from the answer sheet. These are some of the circumstances which clearly show that if complete records were produced in time before the 8 investigating agencies/the State Government, that would have exposed the malfeasances and misdemeanours committed by the private respondents. 79. We may also notice that the investigating agencies have received the reports of the forensic experts under Section 293 C of the Code of Criminal Procedure confirming that there are interpolations, manipulations and alterations in the ·answer sheets at various places. 80. Interestingly, the candidates who had scored very high marks in the written examination were awarded low marks in interview while the candidates who had not fa ired so well in the written examination were awarded very high marks in the interview. Ms. Mona Pruthi and Ms. Sonia Narang are the candidates who got 544 and 537 marks, respectively, in the written examination but were awarded 30 and 37 marks in the E interview. In contrast to this Mr. Vatsal Vashisht, who got 507 marks in the written examination was awarded 92 marks in the interview. Ms. Mona Pruthi and Ms.Sonia Narang, both were declared unsuccessful in the Haryana Civil Services (Executive Branch) and Allied Services Examination held by the F Commission. But later Ms. Mona Pruthi topped the lAS examination while Ms. Sonia Narang was selected for IPS. This is certainly an indication of the arbitrary standards adopted by the private respondents in the selection process and the fact that the candidates were not dealt with equal hand and uniform G yardstick. 81 . When all these facts are examined in their correct perspective, it is obvious that withholding of record and non cooperative attitude adopted by the then Chairman/Members H of the Commission, we.re not for bona fide reasons and, much IN RE: MEHAR SINGH SAINI, CHAIRMAN, HPSC [SWATANTER KUMAR, J.] less, to protect the constitutional stature of the Commission. On the contrary, the image of the Commission has been lowered in the eyes of the public and the rule of fairness and merit has been substantially ignored in processes of selection for different posts. It is true, and as argued on behalf of the private respondents, that there is no direct evidence before us to show that these manipulations have actually been carried out by the private respondents but it is equally true that they, being the Chairman and Members of the Commission, were duty bound to exercise proper administrative control to ensure judicious and fair selection· and prevent any act of commission or omission c which would diminish public confidence in the functioning of the constitutional body. The claim of privilege for non-production of documents lacks bona fide and was, primarily, intended to withhold the records from the Investigating Agencies to cover up the above misdeeds, irregularities and illegalities. 82. Another pertinent document, which has been placed on record of this Court, is the report prepared by the counsel appearing in the case, under the interim order of the Court passed on 14th January, 2008 in Civil Writ Petition No.15390 of 2002 in the case of Karan Singh Dalal & Ors. vs. State of E Haryana & Ors .. In this Writ Petition, the selection of the candidates to the Haryana (Executive and Allied) Services was challenged by the unsuccessful candidates on different grounds including favouritism, discrimination and manipulations in results etc. The relevant part of the said order reads as under : "All these ten persons, whose names have been given above who got lesser marks in written examination had been awarded more than 80% marks in the interview, whereas the 13 persons named above, who had secured more marks in written examination were given 20-30% marks in the oral examination. How the marks in oral test were given to bring some of the candidates who secured lesser marks in written examination over those who had secured more marks in the written examination, is a question which needs attention of this Court. In view of the facts narrated above, we direct the total inspection of all the Roll numbers indicated above be allowed to the counsel for the State as well as to the petitioner . … ," 83. In furtherance to this order, the counsel had prepared inspection the inspection reports dated 1st February, 2008 and 15th Febru~ry, 2008 and submitted the same to the High Court. c In addition to pointing out the discrepancies, cuttings and manipulations done in the marking of the answer sheets, other irregularities were also pointed out. It was stated that some close relatives of then Chief Minister, former Chairman, Dr. K.C. Bangar and daughter of the DGP, M.S. Mallik were selected with disregard to merit. The most important aspect, which would clearly depict the defect in the process of selection, was that the candidates who took the competitive examination were given clear instructions that no candidate was to disclose his identity in any form; writing of serial number of script or putting any type E of mark etc. would amount to use of unfair means and the candidates could be penalized even by cancelling the paper. Contrary to these instructions, it was reported to the Court that Anjana Malik (Roll No.81 083) and Pramod Kumar (Roll No.9172) had disclosed their identity by writing their names or depicting particular signs on their answer sheets. Pramod Kumar had used a symbol of 'Om' at the top of page No.1, 3 and 5 of General Knowledge paper and, thus, violated the instructions. The record of the judicial proceedings, which has been produced before this Court with affidavit or even without affidavit, has not caused any prejudice to the private respondents. First, they had full G opportunity of defending themselves in the inquiry and second, they were parties in the proceedings before the High Court. The production of records , along with affidavit including the statements recorded by the Investigating Officer under Section 161 of the Criminal Procedure Code, can be taken note of in H this inquiry. Of course, reference to these proceedings is limited IN RE: MEHAR SINGH SAINI, CHAIRMAN. HPSC [SWATANTER KUMAR, J.] to the purpose of examining the veracity of the evidence produced by the State in support of approved articles of charge other than charges 6 and 7 which are beyond the scope of Presidential Reference. We, certainly, are not expressing any view whether, on the basis of these statements, private respondents are even prima facie guilty of any offence in relation to those two charges. 84. It is clear from the record that the private respondents chose to lead no evidence during the inquiry before this Court. It was expected of the respondents to render some explanation in their defence in respect of the allegations stated in the Presidential Reference and/or in the charge-sheet approved by this Court. It is not that we are drawing any adverse inference against the respondents for not leading evidence during the enquiry but certainly it is a relevant consideration. The factors, which could have been explained, were that who were responsible and in what manner with regard to alleged attitude of non-cooperation, manipulations and interpolations made in various examinations, the reason for recommending Pradeep Sangwan for appointment to the post of Drug Inspector despite · complaints as well as recommending overage candidates without any power or authority to relax age restrictions. Detailed affidavits were filed by different witnesses on behalf of the State Government but the private respondents opted not to file even their own affidavits as evidence to refute or rebut these allegations and contents of the evidence adduced on behalf of the State. Obviously, this Court, vide order dated 22nd April, 2009 granted liberty to the Chairman and Members of the Commission to rebut the evidence led against them. For reasons best known to them, they maintained silence in this behalf. No effort was made by the private respondents to demonstrate before this Court as to what steps were taken by them, if at all, to find out the persons responsible for such irregularities, misdeeds and what steps they had taken during their .long tenure as Chairman/Members of the Commission to remedy these wrongs. The replies filed on behalf of these respondents have A vaguely denied the artiCles and have attempted to justify the acts of omissions and commissions on the ground that they were in bona fide exercise of power vested in them as Chairman and Members of the Commission. Such explanation ex facie is unsatisfactory. 85. The above narrated instances clearly show that the expected standards of performance and functions have clearly been infringed by the private respondents. Objectivity has been the victim in the process of selection as a result of the callous attitude adopted by the private respondents. In view of the settled C position of law, where instances of non-disclosure of likelihood of the child of a Member appearing for the civil services examination and a Member slapping the Chairperson of the Commission have been considered as misbehaviour within the meaning of Article 317 (1 ), then certainly, the present case 0 discloses misbehaviour of graver nature. 86. On a holistic view of the matter, it is apparent that irregularities and acts of irresponsibility committed by the private respondents delineate their misbehaviour in terms of Article E 317(1) of the Constitution as it certainly lowers the dignity of the Commission. The burden of proof applicable to such cases is not that required under the criminal jurisprudence, i.e., to prove the charge 'beyond any reasonable doubt'. Where the facts supported by record point a finger at the Chairman/Member of F the Commission with some certainty, it may amount to misbehaviour in the given facts and circumstances of a case. Rule of 'reasonable preponderance of probabilities' would be the right standard to be applied to such cases. The Court is not called upon to record finding of guilt as if in a criminal case. The charge has to be construed in a liberal manner so as to ensure G completion of inquiry in terms of Article 317(1) of the Constitution while keeping in mind the constitutional stature of the office. The I private respondents were certainly in a position to prevent most I of the events which have occurred in the present case and have tarnished the image of the Commission. In our view the maxim IN RE: MEHAR SINGH SAINI, CHAIRMAN, HPSC [SWATANTER KUMAR, J.] Qui non prohibit quod prohibere potest facere videtur would alter the equities against the private respondents. As stated In Re Ram Ashray Yadav (supra), absolute integrity and impartiality is required to be exercised by the Chairman and Members of the Commission to maintain the dignity of their office. The Commission has been entrusted with the task of selecting candidates to various posts under the Government and, therefore, the function of the Commission is of great importance. Most appropriately the words of Shri H.V. Kamath, Member of the Constituent Assembly, can be referred at this stage: "Whenever democratic institutions exist, experience has shown c that it is essential to protect the public service as far as possible from political and personal influences and to give it that position, stability and security which is vital to its successful working as an impartial and efficient instrument by which the Government, of whatever political complexion, may give effect to their policies." These were the expectations of the framers of the Constitution from the Chairman and Members of the Commission. 87. We have dealt with all the above points in issue together for the purposes of convenience and to maintain continuity. We have no doubt in coming to the conclusion that the Chairman and Members of the Commission (private respondents herein} adopted a non-cooperative attitude and. declined to furnish relevant records to the concerned authorities/investigating agencies. Furthermore, passing of resolutions and resistance despite directions/observations of the Court to comply with the notices issued by the investigating agencies to furnish records are acts which lack bona fides. The claim of privilege was sought to be invoked as a ploy to prevent production of records, which would have exposed the irregularities, illegalities and manipulations in the process of selection. In the name of the constitutional authority, the Chairman and Members of the Commission certainly violated the expected standards of behaviour. They not only adopted a non-cooperative attitude but also unduly delayed completion of the inquiry/investigations A which, in fact, are stated to be pending at different stages even to this day. c 88. In light of the above discussion now we·may state our conclusions laconically and unambiguously as follows: 1. We hold that the State has failed to prove, even on the rule of reasonable preponderance of probabilities, Charge 1 of the articles of charge by leading any cogent evidence or on any legal principles. 2. We further hold that Charges 6 and 7 of the approved articles of charge is beyond the scope of Presidential Reference dated 31st July, 2008. Therefore, they are not required to be examined by us in the present inquiry. 3. Upon holding inquiry, in accordance with the procedure prescribed, we return the finding that private respondents, namely, Shri Mehar Singh Saini, Mrs. Santosh Singh and Shri Ram Kumar Kashyap, who are Chairman/Members of the Commission (presently under suspension) have failed to maintain the required standards of integrity and rectitude in performance of their constitutional duties, expected to be maintained by the holder of such coveted office. Hence approved articles of charge 2 to 5, 8 and 9 stand established. As such, the private respondents are guilty of misbehaviour on these counts. 89. Thus, there exist justifiable grounds for removal of the G private respondents from their respective offiqes in terms of Article 317 (1) of the Constitution. 90. Resultantly, the Reference, made by the President of India to this Court, is answered in the affirmative to the above extent. IN RE: MEHAR SINGH SAINI, CHAIRMAN, HPSC [SWATANTER KUMAR, J.] 91. Lastly, we .[Jlake it clear that any observation made, findings recorded and conclusions arrived at. would in no way affect any proceedings or investigation pending before the Court of competent jurisdiction or agency, as the case may be. Subject matter of those proceedings shall be taken to its logical end in accordance with law without being influenced by the pre$ent judgment. None of the issues raised therein would be deemed to have been directly or indirectly decided by this judgment. All the parties concerned are free to raise all contentions and objections, which are available to them in law, in those Courts/ fuffi. c 92. The Presidential Reference dated 31st July, 2008 is answered accordingly in the above terms. This should be transmitted to the President of India forthwith. R.P. Reference answered. o