Articles 315 – 323
contain elaborate provisions regarding composition,
appointment and removal of
members and other matters related to SPSC.
The commission has a chairman and other members as determined by the governor. Constitution hasn’t given any qualifications except that 1/2 of the members should have at least 10 years of experience under central or state government.
The chairman and member occupy office for 6 years or till they reach 62 years. They can resign by writing to Governor and also be removed by president before their term expires. Grounds for removal are proved misbehaviour or incapacity. In this case president has to refer matter to SC and if SC inquiry finds him guilty then SC can advice removal. This advice is binding on president. Other grounds are engages in paid employment, becomes bankrupt or in presidents opinion is unfit to continue due to infirm body or mind.
Governor can suspend the chairman or member pending investigation.
Governor can appoint acting chairman from amongst the members if the office of chairman falls vacant or chairman can’t discharge duties.
Commission members aren’t eligible for reappointment to same post.
Chairman is ineligible for reappointment under any government. But is eligible for employment as chairman or member of UPSC or chairman of other SPSC. Member of SPSC can only be appointed as chairman or member of UPSC or any other SPSC or chairman of that SPSC.
All expense of SPSC is charged on the consolidated fund on state.
Conducts examination
for appointments to state service.
It is consulted on
matters of personnel requirement like:
· Disciplinary matters, deciding suitability of candidates, their promotion and transfer.
· Reimbursement of legal expense incurred by a civil servant in defending an action performed in course of official duty.
· Reappointment of employees, pension for injuries sustained on duty, miscellaneous personnel matters.
The advice of SPSC is not
binding on government. Consultation of SPSC is a
discretionary power not
mandatory and can’t be challenged in courts.
The jurisdiction of SPSC can be extended by state legislature. SPSC presents an annual report to governor which is tabled in the house.
SPSC isn’t consulted
in the following matters
1.
Appointment
for posts taking consideration to claims of backward
caste, SC and ST.
Governor can exclude posts, services, matters from purview of SPSC. With respect to state services governor can make regulations specifying matters where consultation of SPSC isn’t necessary but such regulations have to be approved by state legislature within 14 days. Creation of SVC has affected its role in consultation on disciplinary matters.
Constitution makes provision for a JPSC to cater to needs of two or more states. JPSC is formed by an act of parliament. It submits reports to state governors. President decides composition, tenure, conditions of service, removal. Chairman and Members have a term of six years or till 62. They can be suspended or removed by president. Or they can resign by writing to president.
A radical change has taken place in the constitutional law relating to Services by the 42nd Constitution Amendment Act, 1976, which inserted into the Constitution Art, 323A
To take out the Constitution and adjudication of disputes relating to the recruitment the Administrative and conditions of service of the public services of the Union and of the States from the hands of the CiVil Courts and the High Courts and to place It before an Administrative Tribunal for the Union or of a State
This provision of the Constitution was to come into effect only if it was implemented by a law made by Parliament. That law has been enacted by Parliament In 1985 and brought into force on October 2, 1985, by setting up a Central Administrative Tribunal
According to this Administrative Tribunal Act. 1985 (as amended in 1900). the Central Administrative Tribunal will adjudicate disputes and complaints with respect to the 'recruitment and conditions of service of persons appointed to public services in connection with the affairs of the Union', excepting
Members of the Defence Forces.
Officers and servants of the Supreme Court or of any High Court
Members of the secretarial staff of Parliament or of any Legislature of any State or Union Territory.
Excluding the above categories, any public servant of the Union who is aggrieved, in the matter of his appointment, removal or reduction in rank or the like, shall have to be contented with administrative justice by a Tribunal instead of by a Court of law. The only Court to which the aggrieved person might run, as a last resort, is the Supreme Court.
The decisions of the Administrative Tribunal can, therefore be challenged only before the Supreme Court and the High Court shall not be competent to interfere . But subsequently, the position turned out to be otherwise as the Supreme Court declared the "exclusion of Jurisdiction" clauses in all the legislations enacted in pursuance of these Articles, unconstitutional to the extent they excluded the jurisdiction of the High Courts and the Supreme Court
As stated already, it shall be the duty of the Union Commission to present annually to the President a report as to the work done by the Commission
On receipt of such report the President shall cause a copy thereof together with a memorandum explaining, if any advice of the Commission was not accepted, the reason for such non-acceptance, to be laid before each House of Parliament
A State Public Service Commission has a similar duty to submit an annual report to the Governor and the latter has a duty to lay a copy of such report before the State Legislature with a memorandum explaining the cases. if any, where the advice of the Commission was not accepted by the Govemment
As stated earlier, the function of the Public Service Commission is only advisory and the Constitution has no provision to make it obhgatory upon the Government to act upon the advice of the Commission in any case.
The reason is that, under the Parliamentary system of government, it is the Cabinet which is responsible for the proper administration of the country and its responsibility is to Parliament
They cannot, therefore, abjure this ultimate responsibility by binding themselves by the opinion of any other body of persons.
On the other hand, in matters relating to the recruitment to the Services and the like, it would be profitable for the Ministers to take the advice of a body of experts
It is in this light that Sir Samuel Hoare Justified the parallel provisions as to the Public Service Commissions in the Government of India Act, 1935
"Experience goes to show that they are likely to have more influence if they are advisory than if they have mandatory powers. The danger is that if you give them mandatory powers you then set up two govemmcnts."
But, though the Simon Commisston was conscious or the fact that left alone, the Ministers might use their position "to promote family or communal interests at the expense of the efficiency or just administration of the services", no safeguard was prescribed in the Government of India Act, 1935 against a flagrant disregard of the recommendations of the Commissions by the Government.
In view of the possibility of such abuse, the Constitution has provided the safeguard (referred to above) of the Commission's Report being laid before Parliament (or State Legislarure), through the President (or the Governor) as the case may be.
The Government is under an obligation, while presenting such Report, to explain the reasons why in any particular case the recommendation of the Commission has been overridden by the Government.
In view of this obligation to submit to Parliament an explanation for non-acceptance of the advice of the Commission, the number of such cases may be said to have been kept at a minimum.
Notwithstanding the above safeguard. there is criticism from certain quarters that patronage is still exercised by the Government by resorting to some devices
(a) One of these Is the system of making ad hoc appointments for a temporary period without consulting the Public Service Commission, and then approaching the Commission to approve of the appointment at a time when the person appointed has already been in service for some time and the recommendations of his superiors are available to him, in addition to the experience already gained by him in the work, which puts him at an advantage over the new candidates.
The Supreme Court has been deprecating this practice of making ad hoc appointments.
(b)Sometimes the rules laying down the qualifications for the office to which such appointment has been made is changed retrospectively to fit in the appointee.
(c) Another complaint is that sometimes the Reports are presented before Parliament (or State Legislature as the case may be) long after the year under review.
This, however, does not appear to be permissible under the Constitution. So far as the duty of the Commission to report to the President or the Governor is concerned, the Constitution says that it must be done annually.
Hence, his obligation cannot be postponed for more than a few months from the end of the period under Report
The duty of the President or the Governor is to present the Report to Parliament Or the State Legislature "on receipt of such Report".
Though no specific time-limit is imposed it is clear that It must be done as soon as possible after the receipt of the annual Report and it cannot be construed that the obligation is discharged by presenting the Report two or three years after the receipt or by presenting the Reports for two or three years in a lump.
The presentation before the Legislature must also be an annual affair, and, if the President-or the Governor makes delay, it should be the concern of the appropriate Legislature to demand an explanation for such delayed presentation, apart from anything else
If the Legislature slumbers, the entire machinery of Parliamentary government will succumb not to speak of any particular object of scrutiny by the Legislature.
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