HC upholds appointment of Beant's grandson as DSP

Saurabh Malik

Chandigarh, May 1

Nearly six years after former Chief Minister Beant Singh’s grandson Guriqbal Singh was appointed as Deputy Superintendent of Police, the Punjab and Haryana High Court has upheld the same. Justice Vinod S Bhardwaj made it clear that it was an exceptional appointment as a special case under unparalleled exigent circumstances.

Referring to a plethora of judgments and analysing the constitutional and other provisions, Justice Bhardwaj, in his 69-page judgment, also laid down no less than eight commandments on the executive’s power and other related issues.

Justice Bhardwaj asserted that the Constitution did not provide the definition of the executive function and the activities legitimately falling within its scope and ambit. The powers of the executive were, as such, “to the extent of the power of the legislature to make laws”. However, the exercise of the power under Article 162 was not dependent upon the existence of legislation by the state on the subject.

Justice Bhardwaj asserted that the power could be exercised where the legislature had the power, but might or might not have legislated an Act or rule. There was, thus, no impediment on the power of the executive to act merely in the absence of legislation on an issue. So long as the state did not go against the provisions of the Constitution or any law, the width and amplitude of its executive powers could not be circumscribed.

Justice Bhardwaj added that the powers of the executive under Article 162 could not be settled or circumscribed by Article 309 of the Constitution on recruitment and conditions of service of persons serving the Union or a state.

Justice Bhardwaj observed that the executive power extended to “all segments of the legislative power of the state”, notwithstanding whether any Act or statutory rules/regulations had been enacted. The state would ordinarily be bound by the statutory rules in its action, unless extraordinary circumstances necessitate exceptional measures.

Justice Bhardwaj observed that the state might, for valid reasons, exercise its power of relaxation from the rules, except mandatory eligibility, provided such power was stipulated in the rules. The discretion exercised by the executive was subject to a procedural, not substantive, review and confined to the basic question of illegality, irrationality and procedural impropriety.

The constitutional court would ordinarily not go into the sufficiency of reasons, fix priorities for the government or substitute its reasons for the reason that weighed with the executive while making its decision and even an individual may be a class unto himself in a particular case.

Justice Bhardwaj added that a “writ of a quo warranto” was not a means to challenge a decision merely on the grounds of improper exercise of a lawful authority. The act must be without authority. “The person bringing about a challenge should display a legal wrong and prejudicial affect, distinct from speculative, nominal or remote affect, by an act or omission of the authority, even if he has no fiduciary or proprietary interest,” he said.

As per procedure

The appointment has been made as per the procedure prescribed and after taking the post out of the preview of the Punjab Public Service Commission within the quota and after taking all circumstances into account by the Council of Ministers competent under the Constitution to take such decision and as per the Rules of Business. — Justice Vinod S Bhardwaj