Dr. Anil Kumar Yadav , Case Crime No.98 of 1993,235 of 1983,413 of 1983 and 553 of 1983 have been registered

C The challenge to the appointment 
The appointment of the first respondent has been
questioned on the ground that: 
(I) No deliberative or consultative process was
followed prior to the appointment, and the decision-making process was
violative of the principles contained in Article 14 of the Constitution; 
(II) Despite the binding principles which have been
laid down in the judgment of the Supreme Court in State of Punjab Vs Salil
Sabhlok,2 that integrity and competence are the dominant considerations which
have to be borne in mind while making an appointment to a significant
constitutional post, such as of the Chairperson of a Public Service Commission,
the object being to engender public confidence in the process of selection and
appointment, there has been no consideration of these basic facets and the
appointment is vitiated; 
(III) In the present case, the entire process of
selection was completed at the level of the State Government within one day
since it was on 29 March 2013 that the file was initiated by the Department of
Personnel and received the approval of the Principal Secretary, Chief Secretary
and the Chief Minister; the Chief Minister having nominated the first
respondent. The process of verifying the character and antecedents was
completed in one day which was a Sunday. Even the letter by the Officer on
Special Duty to the Collector and District Magistrate Mainpuri, indicated that
the verification had to be completed on the same day; 
(IV) Though a Government Order dated 12 September
1994, which has been issued by the State Government to ensure a proper
verification of character and antecedents requires an enquiry to be made from
the Collector and District Magistrate/Superintendent of Police both at the
original place to which the applicant belongs and the place of posting, the
enquiry in the present case was directed only to the Collector and District
Magistrate Mainpuri and not to the Collector and District Magistrate, Agra;
Agra being the place of origin of the first respondent; 
(V) The failure to make an enquiry with the
Superintendent of Police, Agra, assumes significance because, as it now
transpires, had such an enquiry been made, the State would have obtained
information about the fact that in the past, there were at least two criminal
prosecutions against the first respondent, including one on a charge under
Section 307 of the Penal Code, and another under Section 506 of the Penal Code.
Apart from these two criminal prosecutions, it was submitted that an order of
externment had been passed against the first respondent under the Uttar Pradesh
Control of Goondas Act, 1970 on 11 October 1986 by the Additional District
Magistrate (City), Agra, externing the first respondent from Agra for a period
of six months. In an appeal filed before the Commissioner, Agra Division, the
order of externment was set aside on 3 February 1987; 
(VI) By rushing through with the enquiry on one day
and confining it only to the jurisdiction of the Collector and District
Magistrate Mainpuri, the State disabled itself from considering relevant
materials which would have a bearing on the antecedents and character of the
first respondent to hold an important constitutional post. In the criminal
prosecution, in Sessions Trial No.113 of 1986, under Sections 148 and 307 of
the Penal Code read with Section 149, the first respondent was acquitted by the
IIIrd Additional Sessions Judge, Agra on 23 May 1990 on the ground that the
witnesses had been declared hostile. The judgment of the Sessions Court was
relevant material which ought to have been borne in mind by the State
Government and the Government, having failed to do so, the entire selection
process is flawed; 
(VII) There was no comparative evaluation of the
merits of the rival candidates. The entire file is silent on any evaluation of
the candidature of all the available persons in the pool; and 
(VIII) It was only on 24 July 2015 that for the
first time, in response to the petition, the Senior Superintendent of Police,
Agra submitted a report after carrying out a verification of antecedents and
character of the first respondent; and 
(IX) The first respondent is a beneficiary of a
political largesse conferred by the state government and has been hand picked
on the basis of extraneous considerations having no bearing on integrity,
competence or character.
 
“It is stated that against Dr. Anil Kumar
Yadav at Police Station Shahganj, District Agra, Case Crime No.98 of 1993, Case
Crime no.235 of 1983, Case Crime no.413 of 1983 and Case Crime No.553 of 1983
have been registered under the relevant Sections. In the same way at New Agra,
Police Station in District Agra Case Crime No.553 of 1985 has been registered
under Section 3 of Goonda Act. Furthermore, at the same Police Station i.e. New
Agra, Case Crime No.861 of 1991 has been registered under Section 506 of I.P.C.
Furthermore, in District Agra at Police Station Lohamandi and Hari Parvat Case
Crime No.461-A of 1984 and Case Crime No.31 of 1984 respectively has been
registered against Dr. Anil Kumar Yadav.” 
The learned Advocate
General had, in pursuance of the directions which were issued by the Court on
21 May 2015, produced the original records in regard to the appointment of the
first respondent for the perusal of the Court. Adverting to what prima facie
emerged from the file, this Court specifically drew attention to the following
facts therefrom: 
“On perusing the file which has been produced
by the learned Advocate General, it appears that eighty three bio-datas were
received by the State Government for consideration, for appointment on the post
of Chairperson of the Uttar Pradesh Public Service Commission. The name of the
first respondent appears at serial number eighty three.
The file indicates that a note
was put up by the Principal Secretary (Appointment and Karmik) on 29 March
2013, which was endorsed by the Chief Secretary, seeking a decision on the
person to be appointed as Chairperson of the Uttar Pradesh Public Service
Commission in view of the fact that the term of the then Chairperson was to
come to an end on 31 March 2013. The Chief Secretary placed his signature on
the file on 29 March 2013 and on the same day, the name of the first respondent
was recommended by the Chief Minister for approval by the Governor. On 31 March
2013, a communication was addressed by the Special Officer in the Karmik
Department to the Collector, Mainpuri for a verification of the antecedents of
the first respondent with a specific direction that this process should be
completed on the same day. The Lekhpal submitted a report on 31 March 2013
(which is stated to have been a Sunday), stating that there was no adverse
material against the first respondent and that the first respondent had also
submitted an affidavit. The report of the Lekhpal was placed by the Tehsildar,
Mainpuri before the Collector, Mainpuri, who in turn, forwarded it to the
Special Officer in the Karmik Department on 1 April 2013. The appointment of
the first respondent was notified on 1 April 2013.” 
This Court also
sought a disclosure by the State on whether any guidelines or parameters have
been framed for appointment to the Commission and, if not, the action which the
State Government proposes to take in the matter, particularly having regard to
the judgment in Salil Sabhlok (supra). By a further order dated 13 August 2015,
this Court, while granting an extension of time to file a counter affidavit,
specifically sought a disclosure on (i) whether any criminal cases were or are
registered against the first respondent and status thereof; and (ii) the
process of selection which was followed before the first respondent came to be
recommended for appointment as Chairperson of the Commission. In pursuance of
these directions of the Court, affidavits by way of counter and rejoinder have
been exchanged and supporting pleadings have also been filed.
. The file ex
facie does not contain any evaluation of the candidates who had either
intimated their willingness or in respect of whom, as it states,
recommendations had been received. In the entire file note which was placed
before the Chief Minister, there was absolutely no comparative evaluation of
the merits, qualifications, administrative experience, competence or integrity
of the pool of candidates. The nomination made by the Chief Minister is
completely silent in regard to any assessment of the pool of candidates for
appointment to the post of Chairperson of the Commission. In fact, as we have
noted, the entire process leading up to the preparation of the file note and
the nomination of the name of the selected candidate was completed on one day,
29 March 2013. The file was then placed before the Governor who approved the
proposal on 31 March 2013. There is absolutely no consideration in the file of
matters relevant to the appointment to a constitutional office of the
Chairperson of the Commission under Article 316 (1) of the Constitution. There
is no reference to credentials, background, qualifications, experience,
integrity or competence. 
The submission which
has been urged on behalf of the State by the learned Additional Solicitor
General of India is that it may be presumed that since the selected candidate
had already worked as a Member of the Commission for one full term between
2006-2012, he would have been considered to be the most suitable candidate for
the post of the Chairperson. This, however, cannot be accepted for two reasons.
Firstly, there is nothing to indicate that this factor was borne in mind for,
as we have already noted, there is absolutely nothing in the file to indicate
that there has been an application of mind to the factors emphasised in the
decisions of the Supreme Court. Secondly, as we find from the tabulated chart
in the file, one of the candidates at serial no 77 was also previously a Member
of the Commission. Any process of evaluation – even assuming that the State
Government was inclined to place some weight on the prior experience of a
candidate as a member of the Commission, would necessarily have to consider
whether any other candidate who had also worked as a member of the Commission
fulfilled the constitutional requirements for appointment. We clarify that we
are not in these proceedings expressing any view on whether any other candidate
was eminently more suitable for appointment because that would overreach the
power of judicial review. As the Supreme Court has emphasized, the object and
purpose of judicial review is to determine as to whether the decision-making
process has been fair, transparent, and in a manner consistent with Article 14
of the Constitution. 
Reading the file
which has been produced by the Advocate General, another aspect which cannot be
overlooked is that the boi-data of the selected candidate Dr Anil Yadav is
dated 25 February 2015. The bio-data contains on the first page itself an
indication that it was received from the Samajwadi Party Central Office on 21
March 2013 at 5.54 pm on facsimile, the telephone number being indicated
therein. The facts which, therefore, are glaring in this matter would indicate
that the appointment of the first respondent was rushed through in a tearing
hurry without an application of mind to the credentials of the pool of
available candidates. The receipt of the bio-data from the central office of
the ruling political party in the State, the manner in which the process of
nomination was rushed through and the imperatives which compelled the Officer
on Special Duty to instruct the District Collector to complete the enquiry on
one day which was a Sunday establish the manner in which the process of
appointment has been subverted to choose a hand picked candidate. Far from
being transparent and objective, the process has degenerated into the
conferment of a largesse. 
Article 316 of the
Constitution makes a provision in clause (1A) to the effect that if the office
of the Chairman of the Commission becomes vacant, those duties shall, until
some person appointed under sub-clause (1) enters upon the office, be performed
by such other Member of the Commission as the Governor of the State in the case
of a State Commission may appoint for the purpose. To say the least, there was
no tearing hurry that would have warranted the government to complete the
process within one day even assuming that the Chairperson was to demit office
on 31 March 2013. The manner in which events had unfolded thereafter leave a
deep imprint in regard to the brazen abuse of power. On 31 March 2013, a
communication was addressed by the Officer on Special Duty to the Collector and
District Magistrate Mainpuri informing him that the he had received directions
to the effect that a verification should be carried out of the character and
antecedents of Dr Anil Kumar Yadav, described as the Principal of Shri
Chitragupt Post-graduate Degree College, Mainpuri, within that day, and that a
report should be intimated to the Officer on Special Duty by return fax.
Following receipt of this letter on 31 March 2013, the Lekhpal filed a report
on the same day, stating that nothing adverse had been found. The Lekhpal also
recorded that the State had desired to obtain information on whether there was
anything adverse to the character and antecedents of the candidate. In that
context, the Lekhpal stated that an enquiry had been conducted and an affidavit
had been submitted by the candidate on the basis of which it was stated that
there was nothing adverse to the candidate. The Lekhpal submitted his report on
31 March 2013 (complying with the directions to complete the enquiry within the
same day) to the Tehsildar who, in turn, marked it to the Sub Divisional
Magistrate. On 1 April 2013, the Collector and District Magistrate Mainpuri
forwarded the report to the Officer on Special Duty upon which the appointment
was notified. 
Now, it would be
material to note that the Government Order dated 12 September 2014 provides a
procedure for verification of character and antecedents of persons who have
been appointed, inter alia, to the Public Service Commission either as
Chairperson or as members. The Government Order notes that the attention of the
State Government had been drawn to the fact that appointments are made to the
Commission and to other statutory tribunals of persons against whom an
investigation is being conducted in respect of serious charges or whose
character is in doubt, as a result of which the image of the State is damaged.
In order to obviate such a situation, modalities were laid down for conducting
a verification of character and antecedents. The Government Order states, inter
alia, that in the case of a candidate who does not belong to the official
category, a verification should be conducted at the present place of residence
as well as the original place of residence. In the order of appointment of the
first respondent as a member of the Commission of 28 November 2006, there was a
reference to both the institution where he was working in Mainpuri as well as
to his original place of residence in Agra. Clearly, therefore, the State
Government was in knowledge of the fact that though the first respondent was
working in a post-graduate degree college as a Principal at Mainpuri, his
original place of residence within the terms of the Government Order dated 12
September 1994 was at Agra. In spite of this, no verification of antecedents
and character was made at Agra. This has a considerable degree of bearing in
the facts of the present case, as we shall now consider. 
By the order of this
Court dated 27 July 2015, a specific reference was made to the allegation that
several criminal cases had been registered against the first respondent in the
district of Agra including under the Uttar Pradesh Control of Goondas Act, 1970.
By the order of this Court, the State was specifically granted time to respond
to the allegation. By the subsequent order of this Court dated 13 August 2015,
the State was directed to clarify, inter alia, whether any criminal cases were
or are registered against the first respondent and the status thereof. In
response to the directions of this Court, the State has filed a supplementary
counter affidavit on 23 September 2015. The supplementary counter affidavit
contains a report dated 24 July 2015 of the Senior Superintendent of Police,
Agra. The report indicates that in three of the criminal cases which were
referred to by the petitioners, FIRs were either lodged against unknown persons
or that the name of the first respondent does not figure therein. At serial
number four of the tabulated statement, there is a reference to Case Crime No
553 of 1985 under Section 3 of the Uttar Pradesh Control of Goondas Act, 1970.
The affidavit of the State indicates that an order of externment was passed
against the first respondent on 31 October 1986 by the Additional District
Magistrate (E) (City), Agra externing the first respondent from Agra for a
period of six months. An appeal was filed by the first respondent before the
Commissioner, Agra Division under Section 6 of the Act which was allowed by an
order dated 3 February 1987. The order of the appellate authority indicates,
inter alia, that the first respondent had produced a certificate from the
Assistant Director (Horticulture) of the Municipal Corporation of Delhi stating
that from 21 October 1986 he was working in the Horticulture Department.
Moreover, the appellate authority came to the conclusion that the specific
cases which were mentioned in the police report had either resulted in a final
report or are sub-judice. The appellate authority was of the view that since
the first respondent was in Delhi and the complete notice period would expire
in three months, the appeal be allowed and the order of externment be set
aside. On behalf of the petitioners, it has been submitted that while on the
one hand, the first respondent has asserted before the appellate authority that
he was engaged in Delhi with MCD, his bio-data on the file of appointment
claims that he was engaged in a college at Mathura during the same
period. 
The second criminal
proceeding to which a reference has been made in the affidavit filed by the
State is Sessions Trial No 113 of 1986 in which the first respondent was
charged of an offence under Sections 148 and 307 of the Penal Code read with
Section 149 at Agra. The Sessions Trial culminated in a judgment of the IIIrd
Additional Sessions Judge, Agra dated 23 May 1990. The facts of the case, as
they emerge from the judgment, indicate that the occurrence had taken place on
12 January 1984 in which three persons were injured one of them having suffered
bullet injuries. Charges were framed against three persons including the first
respondent on 23 August 1988. One of the three accused died during the course
of the trial. The judgment of the IIIrd Additional Sessions Judge Agra
indicates that one of the injured persons put in an affidavit on 17 November
1989 stating that the accused were not present at the scene of occurrence. The
witness was declared hostile. Process was issued against two other injured
witnesses. The learned Sessions Judge observed that they had refused to attend
the court since they had entered into a compromise. The judgment contains an
observation that though the witnesses had knowledge of the proceedings in the
case, they were unwilling to appear in the court and to depose for the
prosecution. Though the injured witness had sustained a bullet injury (which
was held to be duly proved), the Sessions Judge held that since an affidavit
had been filed by the witness denying the presence of the accused, the case of
the prosecution regarding involvement of the accused in the crime was not
proved. The first respondent was acquitted. There was another criminal
prosecution under Section 506 of the Penal Code in which, the report indicates
that the first respondent was acquitted. 
The significance of
the material which has come on the record of this Court, following the report
of the Senior Superintendent of Police dated 24 July 2015 is that there was no
consideration whatsoever by the State, of relevant facts bearing on the character
and antecedents of the first respondent before his appointment was notified.
The learned Additional Solicitor General of India submitted before this Court
that the Court should reassess the material and determine as to whether the
suitability of the first respondent to hold the office of the Chairperson would
be affected once the order of externment under the Uttar Pradesh Control of
Goondas Act 1970 had been set aside in appeal and the Sessions Trial on a
charge under Section 307 of the Penal Code read with 149 and under Section 148
had ended in an acquittal. This exercise, in our view, is impermissible for the
Court in the exercise of judicial review. The issue in such cases is whether
the State has applied its mind to relevant facts and material bearing on the
suitability, competence and integrity of the candidate. The Chairperson of a
Public Service Commission, as the Supreme Court has held, discharges an office
of a constitutional trustee. The issue is one of institutional competence and
institutional integrity. The State Government is duty bound before nominating a
person for appointment to the Governor, to enquire into all relevant facts and
circumstances which will have a bearing on the qualifications, experience,
competence and integrity of the candidate. The Government Order dated 12
September 1994 requires an enquiry to be made for the purpose of verification
both at the original place of residence and at the present place of residence
of a candidate. Faced with these norms, the glaring fact which emerges from the
record is that the enquiry was conducted only at Mainpuri (the place of work)
and not at Agra (the original place of residence). An enquiry at Agra would
have divulged material about the criminal prosecutions. The first respondent
suppressed them. In the absence of an enquiry, the State did not have before it
this material which has a bearing on whether such a person should be nominated
to a vital constitutional office which carries high responsibilities. The
Officer on Special Duty in the Personnel Department of the State Government
informed the Collector and District Magistrate Mainpuri that he had been
directed to ensure that the enquiry is conducted within one day. The enquiry
was, indeed, conducted within the space of one day. The enquiry, as is
admitted, was completed on 31 March 2013 which was a Sunday. Evidently, the
first respondent had knowledge of the enquiry which was conducted in respect of
his character and antecedents since the Lekhpal submitted a report that the
first respondent had produced an affidavit to the effect that there was no
material adverse to him of his character or antecedents. Evidently, the
material which has emerged from the report of the Senior Superintendent of
Police, Agra was brought to light for the first time on 24 July 2015 after this
Court had passed an order on the grievance of the petitioner raising the issue.
It is, therefore, evidently clear that the material which is contained in the
report and which would have a significant bearing on the matter was not
considered while making the appointment. 
The decision of the
Supreme Court in M Manohar Reddy Vs Union of India21 arose in a writ petition
seeking a writ of quo warranto for quashing an appointment made as a Judge of
the High Court on the ground that at the time of appointment, a criminal trial
was pending which had not been considered in the consultative process. After
adverting to the criminal case which had since been withdrawn on an application
under Section 321 of the Code of Criminal Procedure 1973, the Supreme Court
observed as follows: 
“…From the
record of the case which we have discussed in detail above, we find it very
difficult to hold that respondent No. 3 was even aware that in some record
buried in the courts at Mangalagiri he was named as an accused and he was
required to appear in the court in connection with that case.” 
These were the
distinguishing facts. In the present case, it cannot be and has not, in fact,
been argued that the first respondent was unaware of the Sessions Trial and the
proceedings for externment. The decision of the Supreme Court in M Manohar
Reddy would not hence provide any assistance to the State or to the first
respondent. 
Now, it is in this
background that we would have to advert to the judgment of the Supreme Court in
Salil Sabhlok (supra). The issue which fell for consideration before the
Supreme Court was whether the High Court in the exercise of the writ
jurisdiction under Article 226 of the Constitution can lay down the procedure
for the selection and appointment of the Chairperson of a State Public Service
Commission and quash an appointment in appropriate cases. In that case, the
Full Bench of the Punjab and Haryana High Court had laid down guidelines to be
followed by the State until a transparent and objective policy, consistent with
the mandate of Article 14 of the Constitution was provided for making
appointments to posts of Chairperson and members of the Public Service
Commission. In the decision of the Bench of two learned Judges, separate
judgments were delivered by Hon’ble Mr Justice A K Patnaik and Hon’ble Mr
Justice Madan B Lokur. The judgment of Hon’ble Mr Justice A K Patnaik holds
that the power to appoint a Chairperson and members of the Public Service
Commission, having been vested with the Governor under Article 316, the
Governor would have the implied power to lay down the procedure for making
appointments and hence this power could not be usurped by the High Court under
Article 226 of the Constitution. In the concurring judgment, Hon’ble Mr Justice
Madan B Lokur held that while the High Court would not, by itself, frame
guidelines for the procedure to be followed in making an appointment to the
office of a Chairperson, it could direct the executive to frame guidelines and
set the parameters. Moreover, it was held that the Supreme Court could
certainly issue appropriate directions to the executive to frame appropriate
guidelines and parameters based on the indicators mentioned by the Court. 
The principal aspect
of the decision of the Supreme Court in Salil Sabhlok which needs to be
emphasised in these proceedings, is in regard to the considerations which must
be borne in mind when an appointment is made and in regard to the extent of the
power of judicial review. The judgment of Hon’ble Mr Justice A K Patnaik holds
that the State has to select 
“only persons
with integrity and competence for appointment as Chairman of the Public Service
Commission, because the discretion vested in the State under Article 316 of the
Constitution is impliedly limited by the purposes for which the discretion is
vested and the purposes are discernible from the purpose of Public Service
Commissions enumerated in Article 320 of the Constitution.”22 
The Supreme Court
held that even though Article 316 does not specify qualifications for holding
the post of a Chairperson of a Public Service Commission, the qualities of
integrity and competence are “implied relevant factors which are to be
borne in mind while making appointment.”23 The observations in that
context are as follows: 
“… though
Article 316 does not specify the aforesaid qualities of the Chairman of a
Public Service Commission, these qualities are amongst the implied relevant
factors which have to be taken into consideration by the Government while
determining the competency of the person to be selected and appointed as
Chairman of the Public Service Commission under Article 316 of the
Constitution. Accordingly, if these relevant factors are not taken into
consideration by the State Government while selecting and appointing the
Chairman of the Public Service Commission, the Court can hold the selection and
appointment as not in accordance with the Constitution.” (emphasis
supplied)
The judgment of
Hon’ble Justice A K Patnaik, finding that there can be implied restrictions
both in the statute and in the Constitution on the exercise of power, the
jurisdiction under Article 226 has been held to extend to the issuance of not
only a writ of quo warranto but other directions, orders or writs. At the same
time, a caution was addressed in paragraph 52 of the judgment which reads as
follows: 
“Therefore, I
hold that the High Court should not normally, in exercise of its power under
Article 226 of the Constitution, interfere with the discretion of the State
Government in selecting and appointing the Chairman of the State Public Service
Commission, but in an exceptional case if it is shown that relevant factors
implied from the very nature of the duties entrusted to Public Service
Commissions under Article 320 of the Constitution have not been considered by
the State Government in selecting and appointing the Chairman of the State
Public Service Commission, the High Court can invoke its wide and extraordinary
powers under Article 226 of the Constitution and quash the selection and
appointment to ensure that the discretion of the State Government is exercised
within the bounds of the Constitution.” (emphasis supplied) 
In the concurring
judgment of Hon’ble Mr Justice Madan B Lokur, it was held as follows:- 
“While it is
difficult to summarize the indicators laid down by this Court, it is possible
to say that the two most important requirements are that personally the
Chairperson of the Public Service Commission should be beyond reproach and his
or her appointment should inspire confidence among the people in the
institution. The first “quality” can be ascertained through a
meaningful deliberative process, while the second “quality” can be
determined by taking into account the constitutional, functional and
institutional requirements necessary for the appointment.” (emphasis
supplied) 
Holding that the
process leading upto the appointment of the Chairperson in that case was
flawed, the judgment noted that in the deliberative process, the Chief Minister
had not even bothered to check whether or not the candidate was appropriate as
a Chairperson in the light of an adverse comment by the Central Administrative
Tribunal nor had a “thorough and meticulous enquiry or scrutiny” been
carried out as required by the decision in Inderpreet Singh Kahlon (supra).
Hon’ble Mr Justice Madan B Lokur emphasised that two factors have to be taken
into account for the exercise of the power of judicial review, namely (i) the
deliberative process; and (ii) institutional requirements. Holding that the
deliberative process in that case was deficient and flawed, the judgment held
as follows: 
“As far as the
deliberative process is concerned (or lack of effective consultation, as
described in Mahesh Chandra Gupta) it is quite apparent that the entire process
of selection and appointment of Mr. Dhanda took place in about a day. There is
nothing to show the need for a tearing hurry, though there was some urgency, in
filling up the post following the demise of the then Chairperson of the Punjab
Public Service Commission in the first week of May 2011. But, it is important
to ask, since the post was lying vacant for a couple of months, was the urgency
such that the appointment was required to be made without considering anybody
other than Mr. Dhanda. There is nothing to show that any consideration
whatsoever was given to appointing a person with adequate administrative
experience who could achieve the constitutional purpose for which the Public
Service Commission was created. There is nothing to show that any background
check was carried out to ascertain whether Mr. Dhanda had come in for any
adverse notice, either in a judicial proceeding or any police inquiry. It must
be remembered that the appointment of Mr. Dhanda was to a constitutional post
and the basics of deliberation before making the selection and appointment were
imperative. In this case, clearly, there was no deliberative process, and if
any semblance of it did exist, it was irredeemably flawed. The in-built
constitutional checks had, unfortunately, broken down.” (emphasis
supplied) 
These observations
of the Supreme Court, in our view, have to be duly borne in mind. We may
indicate that while entertaining this petition, initially on 21 May 2015, this
Court acknowledged the limitations on the power of judicial review as set out
in paragraph 52 of the decision of the Hon’ble Mr Justice A K Patnaik and
paragraph 153 of the decision of Hon’ble Mr Justice Madan B Lokur which
emphasise the need for the High Court to be circumspect while entertaining such
petitions. The test, as the judgment in Salil Sabhlok lays down, is that the
State must select only a person with integrity and competence for appointment
as Chairperson of the Public Service Commission. The learned Additional
Solicitor General submits that what would vitiate an appointment to a
constitutional office of Chairperson of the Public Service Commission is not
just that the process leading to the appointment was flawed but that in
addition, the appointment was of an unsuitable candidate. The curriculum vitae
of the first respondent was, it is urged, that of a qualified and experienced
candidate. To accept the submission would be to ignore the line of binding
precedent of the Supreme Court, which is impermissible both as a matter of
constitutional precept and judicial discipline. In Centre for PIL, the Supreme
Court emphasised that where the process leading up to the decision has failed
to consider relevant circumstances having regard to the object of the
legislation or considered irrelevant circumstances, the decision would stand
vitiated on the ground of “official arbitrariness”. Non-compliance
with the mandatory principles of a fair process under Article 14 would, to
utilise the expression in the decision of the Supreme Court in Rajesh Awasthi
result in a nullification of the process of selection and vitiate the
substratum of the appointment. Where relevant factors were not borne in mind,
the Court can – as the judgment in Salil Sabhlok holds – come to the conclusion
that the selection and appointment was not in accordance with the Constitution.
Where the deliberative process suffers from a clear constitutional infirmity of
being arbitrary and the constitutional, institutional and functional
requirements are not borne in mind in the process of appointment, the selection
and appointment stand vitiated. Despite a constitutionally infirm process in
violation of Article 14, the Court cannot anoint an appointed candidate by
merely looking at a bio-data, as the Additional Solicitor General’s submission
would lead the Court to do. That would substitute judicial review for merit
review, a distinction made in Centre for PIL. Where the integrity of the
decision-making process is constitutionally flawed or the selection process is
vitiated, the appointment would be contrary to the mandate of Article 14. 
Though Article 316
does not lay down any formal qualifications, competence and integrity are
implied conditions which must be fulfilled having due regard to the importance
of the constitutional functions ascribed to the Public Service Commission by
Article 320 of the Constitution. As the head of the Public Service Commission,
the Chairperson acts as a constitutional trustee. A person who is selected for
appointment to such a post must be without any blemish or taint and should not
be appointed merely because he or she is eligible for the post. The Court has
to emphasise institutional competence and institutional integrity. In
determining whether the power of judicial review should be exercised, what is
to be borne in mind is whether the deliberative process was fair and consistent
with Article 14 and whether institutional requirements had been borne in mind.
On both these facets, we find that the decision to appoint the first respondent
was clearly flawed and in breach of the constitutional requirements governing
the proper discharge of the duty to appoint a person of competence and
integrity under Article 316. 
As we find from the
record, relevant factors which would have a bearing on the ability of the first
respondent to discharge his duties have been ignored. Relevant material having
a bearing on the antecedents and character of the first respondent has not been
borne in mind. There has been absolutely no application of mind to merits of
other competing candidates who formed part of the available pool of candidates
who had expressed their willingness for appointment. One name alone was hand
picked. The process for nomination which was initiated on 29 March 2013 was
completed on that day and the appointment was notified barely within a period
of few days thereafter. The entire process of verification of antecedents and
character was completed on a Sunday which was 31 March 2013. The process is
thoroughly destructive of the rule of law and cannot be countenanced by a
constitutional court. This falls within the parameters of an exceptional case,
as laid down in both the judgments in Salil Sabhlok. The submission which has
been urged by ASGI that this Court has to bear in mind the fact that the first
respondent has continued to work as Chairperson for a period of about two years
and more will not displace the patent arbitrariness. The appointment was ultra
vires Article 316. Constitutional illegalities are not sanctified by the
passage of time. 
For these reasons,
we are of the view that the petitions must be allowed. 
In the second writ
petition (PIL No 51911 of 2015), there is also a prayer for a mandamus
directing the Central Bureau of Investigation to enquire into the alleged acts
of the Chairperson. During the course of the hearing, the learned counsel
appearing on behalf of the petitioners has fairly submitted that since the
ambit of the challenge in these proceedings is in relation to the legality of
the appointment of the first respondent the petitioners may be granted liberty
to adopt independent proceedings to pursue the aforesaid prayer. We accordingly
grant the liberty as prayed. 
We accordingly allow
the writ petitions by issuing a declaration that the appointment of the the
first respondent as Chairperson of the Uttar Pradesh Public Service Commission
is ultra vires, arbitrary and in breach of the provisions of Article 316 (1) of
the Constitution. The appointment shall accordingly stand quashed and set
aside. 
Order Date:-
14.10.2015 
AHA 
(Dr D Y Chandrachud,
CJ) 

(Yashwant Varma,
J) 

3 comments on Dr. Anil Kumar Yadav , Case Crime No.98 of 1993,235 of 1983,413 of 1983 and 553 of 1983 have been registered

  1. By rushing through with the enquiry on one day and confining it only to the jurisdiction of the Collector and District Magistrate Mainpuri, the State disabled itself from considering relevant materials which would have a bearing on the antecedents and character of the first respondent to hold an important constitutional post. In the criminal prosecution, in Sessions Trial No.113 of 1986, under Sections 148 and 307 of the Penal Code read with Section 149, the first respondent was acquitted by the IIIrd Additional Sessions Judge, Agra on 23 May 1990 on the ground that the witnesses had been declared hostile. The judgment of the Sessions Court was relevant material which ought to have been borne in mind by the State Government and the Government, having failed to do so, the entire selection process is flawed;

  2. Whether government of uttar pradesh ever considered the selection at constitutional posts seriously lf not why ?if considered seriously,then how a gangster was appointed on the constitutional post. Whether a criminal will rule us and they will provide good governance to us. Whether the state government headed by Mr. Akhilesh Yadav used to promote criminals in the administration as ipsofacto obvious from verdict delivered by high court of judicature at Allahabad.

  3. We accordingly allow the writ petitions by issuing a declaration that the appointment of the the
    first respondent as Chairperson of the Uttar Pradesh Public Service Commission
    is ultra vires, arbitrary and in breach of the provisions of Article 316 (1) of
    the Constitution. The appointment shall accordingly stand quashed and set
    aside.

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