LAKSHMI ROY Vs. STATE OF BIHAR

JUDGEMENT

(1.) The petitioner is Chairman of the Bihar Public Service Commission. He was appointed on the post on 24-1-1997. On 11-11-2000 he was taken into custody by the CBI in connection with a criminal case. RC 43 (A)/97/Pat, relating to the irregularities in the Engineering Entrance Examination. At the relevant time the petitioner was Principal, Regional Institute of Technology, Jamshedpur. After the Investigating Agency i.e. CBI failed to submit chargesheet within the period of 90 days the petitioner was granted bail in terms of S. 167(2) Cr. P.C. on 12-2-2001. On the next day, he joined the office purporting to "resume his duties" with information to the State Government, the Governor etc. In the meantime, after the petitioner was taken into custody, respondent No. 4 Raja Ram Prasad had been appointed as Incharge Chairman of the Commission till further orders. A dispute arose between the petitioner and respondent No. 4 as to performance of the duties of the Chairman. According to the petitioner, in terms of Article 316 (1A) of the Constitution the appointment of respondent No.4 as Incharge Chairman came to an end upon his (petitioner) resuming the duties of the post, according to respondent No.4, since he had been appointed as Incharge Chairman till further orders his such appointment could cease only after issuance of a notification allowing the petitioner to resume his duties. The petitioner, in the circumstances, has come to this Court seeking direction to restrain respondent No.4 from functioning as Incharge Chairman of the Commission, to declare all decisions taken by respondent No.4 on or after 13-2-2001 as null and void and unconstitutional, and to further declare that the notification dated 28-11-2000 has become infructuous and inoperative with effect from 13-2-2001.

(2.) The case came up before the Vacation Judge on 30-5-2001 and adjourned to enable the respondents to file counter affidavit. The pendency of the case was not to stand in the way of the respondent/competent authority in passing order. The State Government has filed its counter affidavit. The Commission and respondent No.4 also have filed their respective counter affidavit.

(3.) It is not in dispute that a temporary or ad hoc appointment of an Incharge Chairman in the situations envisaged under Clause (1A) of Article 316 of the Constitution can be made as stop-gap arrangement. It is also not in dispute that in the instant case situation had arisen warranting appointment of an Incharge Chairman. The appointment of respondent No.4 as Incharge Chairman, as such, is not under challenge. The case of the petitioner is that after he resumed his duties, he cannot be obstructed in any manner from performing the duties of Chairman as the temporary appointment of respondent No.4 came to an end upon his resumption of duties in terms of the provisions of clause (1A) of Article 316. The case of the State Government is that the acts committed by the petitioner, which are subject matter of investigation in the aforementioned criminal case RC 43(A)/97/Pat constitute _misbehaviour' within the meaning of Article 317 of the Constitution in respect of which report has been submitted to the Government of India. The further case of the Commission is that unless the notification dated 28-11-2000 is cancelled or annulled, the petitioner cannot perform the duties of the Chairman. Since respondent was appointed Incharge Chairman under the orders of the Governor, the matter was reported to the Governor and the decision is awaited.