The Tribune, Chandigarh, India

Saturday, August 12, 2000,
Chandigarh, India

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Haryana violates Constitution?
By Y.P. Gupta
Tribune News Service

CHANDIGARH, Aug 11 — The appointment (or “retaining” as the Haryana Government terms it) of the former Chairman of the Haryana Public Service Commission, Mr L.D. Mehta, as an Additional Advocate-General has raised several constitutional questions.

He has been given his new assignment on Wednesday.

Article 319 of the Constitution clearly states in its Clause (b) that the “Chairman of a State Public Service Commission shall be eligible for appointment as the Chairman or any other member of the Union Public Service Commission, but not for any ‘other employment’ either under the Government of India or under the Government of a State”.

The government, however, says that Mr Mehta has not been appointed but has only been “retained”. An official spokesman told TNS that it was not a case of appointment to a post. “It is basically the contractual hiring of a professional. As such, this is not a relationship of master and servant. For all practical purposes the services of Mr Mehta will be utilised as an advocate pleading in the high court on behalf of the state government”.

He also added that “it has been held by different courts that the holding of a government pleader’s assignment is not equivalent to an office of profit under the government. The legal view available with the government cites at least two court decisions in this regard”.

The spokesman cited the Kanta Kathuria case in which Mrs Kathuria was appointed by the Rajasthan Government as Special Government Pleader to conduct certain cases. Later she was elected an MLA. The Rajasthan High Court accepted an election petition against her on the ground that she was disqualified to be an MLA because she held an office of profit under the government on the date she filed her nomination papers and contested the elections.

Mrs Kathuria went in appeal to the Supreme Court. The then Chief Justice of India, Mr Justice M. Hidayatullah, along with Mr Justice G.K. Mitter, delivered the minority judgement holding that Mrs Kathuria did hold an office of profit under the government as Special Government Pleader.

However, the majority judgement delivered by Mr Justice S.M. Sikri upheld the appeal of Mrs Kathuria and held that the office of Special Government Pleader was not an office of profit under the government. He also said that even if assuming that Mrs Kathuria held an office of profit, “this disqualification has been removed retrospectively by the Rajasthan Assembly”.

Mr M.C. Chagla, the legendary legal luminary who appeared for the respondent, had urged the court that “we should keep in view the fact that the object underlying Article 191 (relating to the disqualification of legislators) of the Constitution is to preserve purity of public life and to prevent conflict of duty with interest and give an interpretation which will carry out this object”.

The official spokesman also cited a Rajasthan High Court judgement to support the government’s action.

But for the constitutional provisions, none would have any objection to Mr Mehta’s appointment (or retention) as Additional Advocate-General because he is known for his knowledge of criminal law. Mr Mehta had been a practising advocate in Sirsa courts before his appointment as the Chairman of the Public Service Commission.

Legal experts who oppose the government’s view say the Kathuria case cannot be applied in the present instance. She was appointed Special Government Pleader for a particular case or set of cases and not as an Additional Advocate-General, which, they say, is an office of profit under the government.

Moreover, they cite another Supreme Court judgement, which is more recent that the Kathuria case and the facts of which are more akin to Mr Mehta’s appointment.

A former member of the Union Public Service Commission, Prof S. Sampath, was contracted to head a board to assess the work of scientists of the Defence Research and Development Organisation so that they could be promoted.

The two-Judge Supreme Court Bench comprising Mr Justice Kuldip Singh and Mr Justice Suhas C. Sen held on December 3, 1996, that the assessment made under the chairmanship of Professor Sampath was null and void.

The Bench held that “whether employment was held under a contract or otherwise is quite immaterial for this purpose (of Article 319)... That is the constitutional mandate which cannot be evaded by giving Prof Sampath a contract and not a letter of employment”.

The court said Clause (C) of Article 319 barred “any other employment” which would include even employment on contract under the Government of India or the state government.