SHIVA BALAK CHOUDHARY Vs. STATE OF BIHAR

JUDGEMENT

(1.) SHIVA Balak Choudhary -appellant no. 1 came to be appointed as Member, Bihar Public Service Commission, on 19th August, 2002. Devnandan Sharma -appellant no. 2 was appointed as Member, Bihar Public Service Commission, on 8th August, 2002. Both these appellants are accused in three First Information Reports (being Vigilance P.S. Case No. 19/2005, 10/2006 & 12/2006). Both of them are facing trial in the court of Special Judge (Vigilance), Patna in these criminal cases. In this situation, the Governor of Bihar made a request to the President of India for their removal under Article 317(1) of the Constitution of India. Upon receipt of the proposal from the Governor of Bihar, the President of India made a reference under Article 317(1) to the Supreme Court being Reference Case No. 1 of 2007. That the said reference is pending before the Supreme Court and notices to all concerned in the reference have been served is not in dispute.

(2.) AFTER reference having been made by the President of India to the Supreme Court under Article 317(1), the Governor decided to suspend the appellants in exercise of the powers conferred on him under Article 317(2) of the Constitution of India and, accordingly, a notification was issued on 5th February, 2008 suspending the appellants as Members of Bihar Public Service Commission with immediate effect.

(3.) MR . Naresh Dikshit, counsel for the appellants, did not dispute the power of the Governor in suspending the Members of the State Public Service Commission under Article 317(2) of the Constitution of India after the reference having been made by the President of India to the Supreme Court under Article 317(1). However, his contention is that before the power of suspension under Article 317(2) is exercised, the Governor must have had the supporting report of the Supreme Court which he did not have and that renders the order of suspension bad in law. He heavily relied upon a decision of the Supreme Court in the case of Dr. Ramashray Yadav, Chairman, Bihar Public Service Commission (Special Reference No. 1 of 1997), reported in : (2000) 4 SCC 309 [: 2000(2) PLJR (SC)74]. His main emphasis was on the observations made by the Supreme Court in paragraph -3 of the report which reads thus: