Swami Sadashiva Brahmendra Sar (Nil) 11 July 2009

Removal of Member of PSC

The Supreme Court in its advisory jurisdiction in Reference No. 1/2006

U/A 317 (I) of the Constitution of India, CPSC, has opined as under:

“ In our opinion, there is no evidence of proved misbehaviour against Shri Ashok Darbari. Hence, reference is answered in negative and it is deemed that he should have continued in his office till the time his appointment might ordinarily had come to an end. As a result, he should be given all pecuniary benefits which would have been due to him but for the suspension. The reference stands answered accordingly.”

The question is- whether the president of India is bound by this opinion? Or whether still he can take action under Art. 317 (3) of the constitution?

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Swami Sadashiva Brahmendra Sar (Nil) 11 July 2009

Above opinion has been delivered on 08/07/2009.

N.K.Assumi (Advocate) 11 July 2009

I am of the opinion that the opinion given by the Supreme Court is binding on the presdident. This Article as you know is related to removal of members of public service commision and who enjoy higher degree of protection by the elimination of political pressures of their removal, unlike the judges, the comptroller and Auditor General and the Chief Election Commissioner of india. The Supreme Court inquiry under the Article is into the fact themselves and fact also, so as to enable the Supreme Court to pronounce upon the question whether the allegations made against the Chairman or members are proved at all. And while doing so the Supreme Court followed the procedures prescribe by Article 145 read with Rule 1 Order XXXVIII of the Supreme Court Rules 1966. Therefore in matters of removal of the members of Public Service Commission ordinary precedures as in criminal and civil trial are removed and it is vested with the Supreme Court and this is a sound prctice if at all indian democracy should survive the onslaught of political interference in such matters. The function of supreme Court is to find upon facts and their duty is to pronounce whether the facts found by them establish the charge of misbehaviour or incapacity, as the case may be.