Administrative Law
Union and State Public Service Commissions: Constitution, Independence, Functions and the Effect of Non-Consultation
The Public Service Commissions exist to keep recruitment to the public services out of the hands of those who would benefit from controlling it. The Constitution therefore treats them in much the way it treats the higher judiciary: a fixed tenure, removal only through a process that the executive cannot control, expenses charged on the Consolidated Fund, and a bar on further employment that removes the incentive to please. Their functions are partly executive, in conducting examinations and selections, and partly advisory, in being consulted on recruitment, promotion and discipline. A question that has occupied the courts is what follows when the consultation required by Article 320 does not take place, and the answer is less protective of the individual servant than the language of the Article suggests. This topic sets out the scheme and that question.
1. Constitution and Composition
Articles 315 to 319 in substance Article 315 provides for a Public Service Commission for the Union and one for each State, and permits two or more States to agree, by resolutions of their legislatures, to have a Joint Public Service Commission, constituted by Parliament by law. Article 316 provides that the Chairman and other members of the Union and Joint Commissions are appointed by the President and of a State Commission by the Governor, and that as nearly as may be one-half of the members shall be persons who have held office for at least ten years under the Government of India or a State. The term is six years from the date of entering office or until the age of sixty-five for the Union and Joint Commissions and sixty-two for a State Commission, whichever is earlier. Article 317 provides that a Chairman or member may be removed only by the President, on the ground of misbehaviour, after the Supreme Court, on a reference by the President, has reported that he ought to be removed; the President may also remove for insolvency, paid employment outside the duties of office, or unfitness by reason of infirmity of mind or body. Article 318 empowers the President or Governor to regulate the number of members and the conditions of service, which shall not be varied to the disadvantage of a member after appointment. Article 319 restricts further employment: the Chairman of the UPSC is ineligible for further employment under the Government of India or a State; the Chairman of a State Commission is eligible only for appointment as Chairman or member of the UPSC or as Chairman of another State Commission; and members are eligible only for the higher offices specified. |
The pattern of these provisions is the pattern of judicial independence. Removal is taken out of executive hands and routed through the Supreme Court; service conditions cannot be varied to the holder's disadvantage; expenses are charged on the Consolidated Fund under Article 322 and are therefore not subject to the vote of the legislature; and the bar on further employment removes the incentive to decide in a way that pleases those who might appoint the member to something else.
2. Functions under Article 320
Function | Nature |
|---|---|
Conducting examinations for appointments to the services of the Union or the State | Executive; the principal work of the Commission |
Assisting States in framing and operating schemes of joint recruitment, on request | Executive, where two or more States require candidates with special qualifications |
Methods of recruitment and principles for appointments, promotions and transfers | Advisory; consultation required |
Suitability of candidates for appointments, promotions and transfers | Advisory; consultation required |
Disciplinary matters affecting a person serving the Government in a civil capacity | Advisory; consultation required, including on memorials and petitions |
Claims for costs of defending legal proceedings arising out of official duties | Advisory |
Claims for a pension in respect of injuries sustained in the course of duty | Advisory |
Any other matter referred by the President or Governor | Advisory |
Annual report under Article 323 | Laid before the legislature with a memorandum explaining any non-acceptance of advice |
The proviso to Article 320(3) permits the President or Governor to make regulations specifying matters in which consultation is not required, and such regulations must be laid before the legislature for at least fourteen days and are subject to modification. Article 320(4) excludes from the consultation requirement matters relating to reservations for backward classes and the representation of Scheduled Castes and Scheduled Tribes.
3. The Effect of Non-Consultation
📖 State of Uttar Pradesh v. Manbodhan Lal Srivastava, AIR 1957 SC 912 Facts: A government servant was dismissed following a departmental enquiry. The Public Service Commission was not consulted in the disciplinary proceeding, although Article 320(3)(c) requires the Commission to be consulted on all disciplinary matters affecting a person serving the Government in a civil capacity. He contended that the omission was fatal to the order of dismissal and that he was entitled to have it set aside on that ground alone. Held: The Supreme Court held that the dismissal was not vitiated by the failure to consult. It held that the provisions of Article 320(3) are not mandatory but directory: the Article does not confer any right on a public servant to insist that the Commission be consulted, and it does not say that the consequence of non-consultation is that the resulting order is void. The proviso to clause (3), which permits regulations excluding consultation, and the absence of any provision making compliance a condition of validity, both indicate that the requirement is one of administrative practice designed to assist the Government rather than a safeguard enforceable by the individual. The Court held that a servant aggrieved by non-consultation cannot on that ground alone obtain relief, though the omission may attract comment when the Commission's annual report is laid before the legislature. Ratio: Article 320(3) is directory and not mandatory. Failure to consult the Public Service Commission does not confer a cause of action on the individual servant or invalidate the resulting order. |
The position may appear anomalous, since a constitutional requirement is held not to be enforceable by the person most affected by its breach. The reasoning is that the consultation exists for the benefit of good administration and the integrity of the service as a whole, and is answerable to the legislature through the annual report mechanism in Article 323, rather than being a personal safeguard of the kind Article 311 provides. The remedy for systematic disregard is political rather than judicial.
4. Selection, Interview and Fairness
📖 Ashok Kumar Yadav v. State of Haryana, (1985) 4 SCC 417 Facts: Selections made by the Haryana Public Service Commission were challenged on two grounds. First, a member of the Commission was closely related to some of the candidates, and although he withdrew when those candidates were interviewed, he took part in the selection process otherwise. Secondly, the Commission had allotted a very high proportion of the total marks to the viva voce examination, which it was said left excessive room for subjective assessment. Held: The Supreme Court held that where a member of a selection body is related to a candidate, he must withdraw altogether from the entire selection process and not merely from the interview of that candidate, since a member who participates in assessing the rival candidates influences the relative position of his own relation; the whole selection was accordingly vitiated. On the viva voce, the Court held that an interview is a legitimate and necessary part of selection and cannot be dispensed with, but that excessive weight given to it opens the door to arbitrariness, and it indicated that the proportion allotted to the interview should be kept within reasonable limits, differing according to the nature of the service. The Court also emphasised that a Public Service Commission is a constitutional body whose selections must be above suspicion. Ratio: A member related to a candidate must withdraw from the entire selection, not merely from that candidate's interview. Excessive weight to the viva voce invites arbitrariness and must be kept within reasonable limits. |
5. Judicial Review of Commission Decisions
- Composition and eligibility to participate are examinable, and participation by a disqualified member vitiates the selection (Ashok Kumar Yadav).
- Adherence to the advertised criteria is examinable; departure from the announced method or weightage is arbitrary.
- Comparative merit is not reassessed, since the Commission is an expert body and the court has no means of forming its own view.
- Evaluation and moderation of answer scripts are not reopened, and re-evaluation is not ordered unless the rules permit it.
- Interview marks are not scrutinised individually, though a pattern suggesting arbitrariness or an excessive weightage may be.
- Mala fides and extraneous considerations are examinable, as in any exercise of public power.
- Article 14 and Article 16 apply in full, so equality of opportunity and non-arbitrariness govern every stage.
⚠ The Commission is protected as an institution and its advice is not binding Two features of this scheme sit oddly together until the reason for each is seen. The Constitution goes to considerable lengths to make the Commission independent, with a tenure, a removal process routed through the Supreme Court, charged expenses and a bar on further employment. It then makes its advice under Article 320 non-binding and its consultation directory, so that a Government may ignore both without the affected servant having any remedy. The explanation is that the Commission was designed to protect the integrity of the service as a whole rather than to adjudicate individual claims: its independence guards against patronage in recruitment, while the discipline on the Government for disregarding its advice is the obligation under Article 323 to explain itself to the legislature. |
6. The Position in Summary
- Articles 315 to 323 provide for a Union Public Service Commission, a Commission for each State and Joint Commissions, with about half the members drawn from persons having ten years of government service.
- Independence is secured by a six-year or age-based tenure, removal only by the President on a report of the Supreme Court, service conditions that cannot be varied to disadvantage, charged expenses and restrictions on further employment.
- The functions under Article 320 are partly executive, in conducting examinations, and partly advisory, on recruitment methods, suitability, discipline, costs and injury pensions.
- Article 320(3) is directory and not mandatory, so failure to consult the Commission gives the individual servant no cause of action and does not invalidate the order (Manbodhan Lal Srivastava).
- A member related to a candidate must withdraw from the entire selection, and excessive weight to the viva voce invites arbitrariness (Ashok Kumar Yadav); comparative merit is not reassessed by the courts.
7. Related Topics and Provisions
- Civil Services and Public Servants (Topic 142): the scheme of Articles 309 to 311.
- Departmental Enquiry (Topic 144): the proceedings on which the Commission is consulted.
- Rule Against Bias (Topic 62): the disqualification of interested members.
- Judicial Review of Expert Administrative Decisions (Topic 97): why comparative merit is not reassessed.
- Doctrine of Non-Arbitrariness under Article 14 (Topic 56) and equality of opportunity under Article 16.
- Constitution of India: Articles 14, 16, 315 to 323.