Holding

The proviso to Article 316(1) is a directory guideline, not a strict rule, and blindness does not amount to an infirmity of body that disables a member from performing his duties; therefore, the appointment stands.

Summary

The Supreme Court examined the appointment of Dr. Shiva Jatan Thakur, a blind scholar, as the seventh non‑service member of the Bihar State Public Service Commission. The appellant challenged the appointment on two grounds: (i) that it violated the proviso to Article 316(1) of the Constitution, which requires that, as nearly as may be, half of the members be from the service category; and (ii) that the respondent’s blindness constituted an "infirmity of body" under Article 317(3)(c), rendering him unfit for office. The Court held that the proviso is a directory guideline, not a strict mandatory rule, and a temporary deviation from the exact 50 % ratio does not invalidate an appointment. It further clarified that "infirmity of body" means a disability that actually prevents the performance of duties, which blindness did not, especially given the respondent’s commendable service and national award. Consequently, the appointment was upheld and the appeal dismissed.

Issues considered

The proviso to Article 316(1) of the Constitution is mandatory or directory in nature.
Whether the appointment of a seventh non‑service member when the service‑category representation falls short of 50 % violates Article 316(1).
Whether blindness constitutes an "infirmity of body" under Article 317(3)(c) that disqualifies a person from appointment or warrants removal.
Whether the appointment of the respondent can be set aside on the above grounds.

Legislation cited

Constitution of Indias. Article 316(1), s. Article 317(3)(c)

Subjects

Constitution of IndiaArticle 316Article 317Public Service CommissionAppointmentDisabilityBlindnessDirectory provisionService vs non‑service membersRemoval of membersPublic interest litigation

Judgment

JAi SHANKAR PRASAD A
v.
STATE OF BIHAR AND ORS.

MARCH 19, 1993
B
[P.B. SAWANT AND N. VENKATACHALA, JJ.]

Constitution of India: Articles 316(1) & 317(3) (c}-Bihar State Public
'
Service Commission composed of eleven members-Appointment of seventh
non-service member-W/1ether violative of proviso to Article 316(1)-Blind
acknowledged scholar of English appointed as member of Public Service c
Commission-W/1etlzer unfit to continue in office by reason of infinnity of
~-. ·body.

Words & phrases: "Expression as nearly as may be one half.~eaning
in the context of Art. 316(1), Constitution of India. D
The proviso to clause (1) of Article 316 of the Constitution .requires
that 'as nearly as may be', one-half of the members of the Public Service
Commission shall be from service category. Clause (2) of the Article
entitles a member of a Public Service Commission to hold office for a term
of six years from the date on which he enters upon his office or he attains E
the age of superannauation provided therein whichever is earlier. Sub-
clause (c) of clause (3) of Article 317 provides for removal of a member of

- the Public Service Commission by reason of infirmity of mind or body.

Respondent No. 6, a blind, acknowledged scholar of English and F
Associate Professor in the Patna University, was appointed the seventh
non-service member of the Ribar State Public Service Commission on 4th
March 1991. "'he total strength of the Public Service Commission was
eleven. The other four members belonged to the services category. On 11th
September 1991, respondent No.5, the Chairman of the said Commission,
gave a certificate stating that the respondent has been performing his G
du,ies with exceptional excellence without letting his blindness hinder his
work and strongly recommended conferment of a national award in recog-
nition of his excellence despite his blindness. On 22nd October 1991 the
State Government addressed a letter to the Union Ministry of Home
Affairs recommending. hi.n for the prestigious national award of H
517
518 SUPREME COURT REPORTS [1993) 2 S.C.R.

A 'Padamshree' for his services as a member of the Public Service Commis- A.
sion. On 15th March 1992 the President of India conferred on him the
National Award.

On 14.th January 1992 the appellant, in a public interest ligigation,
challenged the appointment of respondent No. 6 as a member of the Bihar
B Public Service Commission. The High Court dismissed the writ petition.

In the appeal by special leave it was contended that the appointment
of the seventh member from the non-service category was violative of the
proviso to Article 316(1) of the Constitution. It was submitted that the
C expression 'as nearly as may be one-hair occurring in the said proviso has
been used to convey that a fraction may be ignored if the total number of
members cannot be exactly halved between service and non-service ~
categories. The argument was that if the representation of the service
members of. the Commission fell short of 50% then all person.s to be
D appointed on the Commission till the said proportion was made up, had
to be from the service category, that being their necessary qualification. It
was further contended that respondent No. 6 was totally blind even from
a date prior to his appointment and was unlit to be appointed by reason
of the said physical infirmity; The argument was that the blindness was an
infirmity of body. and if it was a ground for removal from office under
E Article 317(3) (c), it was much more a disqualification for appointment
and hence respondent No. 6 should be prevented from continuing in his
office.

In the affidavit filed on behalf of the State Government on 23rd
p January 1993 it was stated that although the proviso to Article 316(1) was
not mandatory, that by itself was not a good ground for departing from
the suggestion of the Constitution and hence the appointment of respon-
dent No. 6 as the 7th non-Government member was not justified. It was
further stated that at the time of the appointment, the aspect about his
blindness was not specifically considered as the same was stated in the
G bio-data of respondent No. 6 in very causal way and in such a manner that
it had escaped the attention of the constitutional authorities at the time of
recommending respondent No. 6 for appointment. The affidavit further
stated that while conducting the interviews, members of the Commission
had to visually interview each of the candidates to determine his
H suitability and after the appointment of respondent No. 6 it had come to
JAI SHANKAR v. STATE OF BIHAR 519

the notice of the respondent-State that the blindness of respondent No. 6 A
was clearly hampering the effective discharge of official duties by him.

It was contended for respondent No. 6 that it was on account of his
academic distinctions, and with the full knowledge that he was totally
blind from childhood that he was appointed as a member of the Public
Service Commission; that his blindness did not come in his way of dis- B
charging his duties effectively; that the only thing he could not do was to
assess the individual's external personality on the basis of the candidate's
external appearance, which was not a material requirement for the can-
didates for many posts; that his dependence upon the opinion of the other
members of the interview board for this aspect was not of a kind which c
vitiated the assessment of the interview board as a whole; that he had
made a representation to the President of India, the Governor of Bihar
~- and others, against the serious misconduct, gross malpractices and wilful
violation of the constitutional mandate by the Chairman of the Commis-
sion, and that it was this dispute with the Chairman, who was backed by
the Chief Minister of the State, which had led to the writ petition. D

Dismissing the appeal, the Court,

HELD: 1.1. Merely because at the time of appointment of respon-
• dent No. 6, there were four service members and six non- senrice members,
it cannot be said that he was disqualified for being appointed as the 7th
E

member from the non-service category. [531D)

1.2. The reasonable interpretation of the proviso to Article 316(1) of
the Constitution requiring that as nearly as may be one half of the
members of the Public Service Commission shall be from service category, F
is to treat it not as a strict rule to be enforced but as a binding guideline
to be followed in practice in spirit as far as possible and without
deliberately flouting it. [531D)

1.3. The expression "as nearly as may be" used .in the proviso itself
suggests that the proportion of 50% of the service members is not exact G
but approximate and is meant not to, be mandatory but directory. The
said proviso does not, in terms, say that in no case and at no point of time,
the said proportion should either go above or fall below 50%. The fraction
is and can be taken care of without the aid of the expression "as nearly as
may be", and a document like Constitution does not have to incorporate H
520 SUPREME COURT REPORTS [1993] 2 S.C.R.

A normal rules of interpretation. The need to have so% members from the A.
service category also cannot be. said to be of such paramount importance
to the composition of the Commission that the breach of it at any par-
ticular point of time would defeat the very object of constituting the
Commission. [528F-G, 529F]

B 1.4. Furthermore, when the members are appointed, they are bound
to differ in age, whether they belong to the service category, or the non-ser-
vice category. In the normal course, they would retire at different points
of time. At that time, a suitab!e person from the same category may not
be available to be appointed in their place. It is not always possible to
c make an advance list of persons of either category who are suitable for
such appointment. Hence the total strength of the Commission as well as
the number from each of the categories, are bound to vary from time to
time. At any given point ot time, therefore, it may not be possible to
maintain the proportion between the two <ategories strictly in accordance
D with the direction given in the Constitution. [529B-C]

1.5. By providing the proportion between the service and non-service
members of the Commission, the framers of the Constitution sought to
strike a balance amongst the two categories. However, on that acconnt, the
framers of the Constitution cannot be presumed to ensnre that on all
E occasions there shall be an exact balance of views between these two •
categories of members. It is unrealistic to believe that individuals "ith
difterent backgronnds always insist on the acceptance of the outlook
dictated by their background alone and refuse to share the viewpoint of
others. It is certainly not expected of the members of such high ranking
F constitutional body as the Public Service Commission. Furthermore, the
Service Commissions mostly sit in Committees and are aided and assisted
by experts from the concerned faculties, disciplines and departments. The -.,,
Committees take their decision collectively after due deliberations and
discussion. It is, therefore, the composition of these Committees and not
so much the composition of the Commission at any particular point of
G time that matters. [530C-E]

1.6. The appointing authority, therefore, cannot be said to have no )t
option, under any circumstance whatever, to allow reduction of repre-
sentation from the service category and a breach of the requirement
H contained in the proviso to Article 316(1) by reasons of appointment of a
JAI SHANKAR v. STA1'E OF BIHAR 521

member from non-service category would vitiate such appointment or the A
duties performed by such appointee as a member of the Public Service
Commission. [530G]

2. Responde~t No. 6 cannot be said to be unfit to carry on his duties
as a member of the Commission because of his blindness. Nothing con-
crete has been brought on record to show that he had failed to perform
B
his duties as a member of the Commission efficiently. Except the external
appearance of the candidates appearing before him, he is able to ascertain
the required merits or demerits of the candidates, as to the other members
of the Commission. The Commission operates through Committees. For
selecting the candidates for almost all disciplines and departments, the c
experts from the concerned departments sit in these Committees and the
opinion of the experts ordinarily prevails in such appointments since the
members of the Committees, who are the members of the Commission· do
not have the expertise in the relevant fields. This shows that all members
of the Commission sitting on the interview Committees have also to be D
guided in their opinion by the experts. If respondent No. 6 has to take
guidance only in the matter of external appearance of the candidates, all
members of the Commission have to be guided by the experts with regard
to the most vital equipment of the candidates, viz., the intellectual calibre
and the proficiency of the candidates in the relevant subjects. There is,
therefore, nothing wrong if only for external appearance, for which only a E
small percentage of the total marks is reserved, respondent No. 6 bas to
depend on the advice, opinion or guidance of other members of the
Committees and the Commission. [532B-E)

- 3.1. By 'infirmity of body' what is spoken of in sub-clause (c) of F
clause (3) of Article 317 of the Constitution is an infirmity which disables
the member from discharging his functions as such member effectively. It
is not every i~firmity of body or every loss of use of every limb of the body.
The defect or deficiency must be such as would disable the member from
earring out his duties satisfactorily and consistent with the trust reposed
in him. The said infirmity further must necessarily be such as has arisen G
after the appointment and not the one which existed at the time of the
appointment, unless of course, the Government was unaware of the same
at the time of appointment. [533A-B, DJ

3.2. In the instant case, not only the blindness of respondent No. 6 H

1.
522 SUPREME COURT REPORTS [1993) 2 S.C.R.

A does not prevent him from discharging his duties expected of him, but in .A.
fact the services rendered by him as such member have been eulogised and
commended for a national award by no other than the State Government
itself and the Chairman of the Commission, who had first hand knowledge
of his functioning. This is apart Crom the fact that the Governor who
appointed him on the advice of the Council or Ministers is presumed to
B have done so after satisfying himself that the loss or eyesight was not an
infirmity which would impede him in the dis~harge or his duties. [533C] t··

4.1. No responsible public authority could have made the claim that
none of the constitutional functionaries concerned was aware that respon·
C dent No. 6 was totally blind from his childhood, \\hen that fact must have
been widely known in the State and in all probability the extra-ordinary l
abilities exhibited by him despite his blindness must have been the main
reason for-his appointment as a member of the Public Service Commis-. -"'
sion. The State Government should not have considered it compulsive to
allow such blatantly rabid statements to be made on oath with impunity.
D The affiant by making such statement has made the constitutional
authorities look ridiculous and their functioning a mockery. [534H·G]

4.2. Neither the certificate given by respondent No. 5, the Chairman
of the Public Service Commission, on 11th September, 1991 nor the letter
E of the State Government to the Union Home Ministry dated 22nd October
1991, has been controverted by the Chairman and the State Government.
The averment in the affidavit that the blindness of respondent No. 6 is
hampering his work, therefore, has no basis. The belated claim of the

F
State Government against respondent No. 6 has its obvious roots in the
strained relations between him on the one hand and the Chairman and the
State Government on the other. [53SE-F]
-
S. The appellant and the respondent-State is directed to pay the y . J
costs of the appeal to respondent No. 6. [537C]

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1359 of
G
1993.

From the Judgment and Order dated 16.1.192 of the Patna High
Court in C.W.J.C. No. 446 of 1992.

H K.N. Chaubey, K. Pandeya and Mohan Pandey for the Appellant.
JA! SHANKAR v. STATE OF BIHAR [SAWANT, J.] 523
\
i /-.. Gobinda Mukhoty, N.N. Goswami, SK Bhattacharya, C.V.S. Rao, A
'
I
Ms. KK Manglam, LR. Singh, Vikas Singh, Yunus Malik, B.B. Singh, Ms.
Yimla Sinl!a and Ms. Kumud L Das for the Respondents.

The Judgment of the Court was delivered by

·sAWANT, J. Leave granted. B
' The appellant is a member of the Bar. He had filed a petition in the
nature of a' pulil~c interest litigation under Article 226 of the Constitution
of India before' the High Court of Patna praying for a writ of quo wa"a11to
challenging the appointment of respondent No. 6, Dr. Shiva Jatan Thakur
as a Member of the Bihar State Public Service Commission. The High c
Court dismissed the writ petition. Hence the present appeal.

2. The attack against the appointment of respondent No. 6 is b:lsed
on two grounds:

[a] on the date of his appointment i.e., 4th March, 1991, D
respondent No. 6 was the seventh non-service member.
. The total strength of the Public Service Commission
being eleven [including the Chairman], the appoint-

-- ment of the seventh member from the· non-service
category, was violative of the proviso to Article 316 [1]
of the Constitution which requires that as nearly as
E

may be, one half of the members shall be persons who
have held office for at least ten years either under the
Government of India or under a Government of the
State.
F
[b] respondent No. 6 was totally blind even from a date
prior to his appointment and was unfit to be appointed,
by reason of the said physical infirmity.

We are, accordingly, required to consider whether these two grounds G
were sufficient to disqualify respondent No. 6 from being appointed as a
member of the Commission.

3. In his counter-affidavit, respondent No. 6 has stated, among other
things, that he happens to be the son of a peon retired from the Railway.
We are informed by Shri Mukhoty, the learned counsel appearing for him, H
-·

524 SUPREME COURT REPORTS [1993] 2 S.C.R.

that he belongs to the backward community of barbers. He has been blind
since the age of eight years. In spite of his blindness, he was able lo pursue
his educational career successfully, and he earned degrees and diplomas.
He is a Ph.D. in English of the Patna University. He has been a University
college teacher in English and he was promoted to the post of Reader in
English on the completion of bare eight years of service. He was the first
B teacher of the Patna University who was unanimously recommended for
the award of D. Litt. on account of the excellence of his thesis written for
Ph.D. As a scholar in English, he has submitted papers to national and
international conferences. He is a life-member of the organisations who
sponsor these conferences. The Government of Bihar vi<:Ie its D.O. letter
C No. 2740 dated 22nd October, 1991 sent to the Union Ministry of Home
Affairs, had recommended him for the prestigious national award of
'Padmashree' for his services as a Member of the Public Service Commis-
sion. The President of India on 15th March, 1992 conferred on him
National Award which reads: "this national award is given to Dr. Shiva
D Jatan Thakur in public recognition of his outstanding performance as the
most efficient employee". He has also referred to the circumstances under
which his present appointment came to be challenged nearly 9-1/2 months
atier it was made. While he was appointed on 4th March, 1991, the writ
petition was filed in the High Court on 14th January, 1992. According to
him, he had made a representation to the President of India, the Governor
E of Bihar and others, against the serious misconduct, gross malpractice and
wilful violation of the constitutional mandate by the Chairman of the
Commission. The present writ petition was filed in the High Court 18 days
after a copy of the representatiop was received by the Chairman, among
others. It is his dispute with the Chairman who according to him is backed
F by the Chief Minister of the State which has led to the present writ petition.
He has also stated that the Chief Minister in his press interview given to
the local Urdu daily, viz., Qaumi Tanzeem and published on 27th March,
1992, had made his intentions public to move this Court against his ap-
pointment. Those averments arc not controverted.

G According to him further, it was on account of his academic <listinc-
tions, and with the full knowledge that he was totally blind from childhood,
that he was appointed as a Member of the Public Service Commission. He
has also stated that his blindness never came in his way either in the pursuit
of his studies or in his service as a teacher. His experience in the public
H Commission also showed that the said defect did not come in his way of
\..

JAI SHANKAR v. STATE OF BIHAR [SAWk'IT, J.] 525

discharging his duties effectively. In this connection, he points out that the A
only thing he cannot do is to assess the individual's external personality on
the basis of the candidate's external appearance which is not a material
requirement for the candidates for many posts. He has further added that
the Commission sits in Committees or interview boards and every Commit-
tee usually consists of four or five persons including members of the
Commission and experts from the req,ective departments. The marks
B
awarded to the candidates are agreed upon after due discussions and
deliberations in the interview board. The advice of the experts is a deter-
minat;ve factor ;n such decisions. When the members of the interview
board with : ,,,. technical and non-professional qualifications interview
cand;'13lt" for technical and professional posts, they do so with the aid and C
advice of the experts from the concerned departments. Hence, if he is
required to depend upon the opinion of the other members of the interview
board for the external appearance of the candidates, that is not a depend-
ence of a kind which vitiates the assessment of the interview board as a
whole. In any case, the dependence is not worse than the dependence of D
the members of the board on the opinion of the experts when they are not
qualified to adjudge the candidates for posts requiring the relevant exper-
tise.

4. The State Government has lent a tragicomic touch to the con-
troversy by filing its affidavit, the relevant contents of which deserve E
reproduction here for reasons more than one. The pathos is made poignant
by the fact that the affiant Shri R.C. Yaish, Resident CommiSsioner of the
State at New Delhi in his letter, which is placed ou record, has stated that
the draft affidavit was approved by Hon'ble the Chief Minister of the State.
He has also stated that he has been authorised by the Secretary of the F
concerned department to swear the affidavit. The relevant portion of the
~· affidavit reads as follows:

"That the respondent-State upon reconsideration of
the entire matter under controversy feels that the words
of the Constitution have to be interpreted in letter and G
spirit and any departure from the express words of the
Constitution wherever.such departure seems to be permis-
sible under the Constitution should be done only for sound
and good reasons. In the instant case, the departure with
regard to appointment of members of the Bihar Public H
526 SUPREME COURT REPORTS (1993] 2 S.C.R.

A Service Commission was made only because the proviso to
Article 316 (1) of the Constitution is not mandatory. Ac-
cordingly, while appointment the respondent no. 6 as the
seventh non-government member of the B.P.S.C. the man-
date of proviso to Article 316 (1) was not followed. It is felt
that the fact that proviso to Article 316 (1) not being
B
mandatory is by itself not a good ground for departing from
the suggestion of the Constitution and accordingly, the" ap-
poirttment of respondent no. 6 as member of the State
Public Service Commission cannot be justified. At the time
of appointment of respondent no. 6 as a member of the
c Bihar Public Service Commission he was the seventh non-
government member when at that time there were only
four government ·members in a total strength of eleven
members in the B.P.S.C.

Tha.t with regard to the infinnity of the respondent no.
D
6, it is submitted that at the time of appointment of respon-
de/11 no. 6, the aspect about his blindness was not specifi-
cal(y considered as the same was stated in the Bio-data of
the respondent no. 6 in a very casual way and in such a
manner that it had escaped the attention of the Constitu-
E tional authorities at the time of recommending the
·respondent no. 6 for appointment to the post of member
of the B.P.S.C. In this regard, it is submitted that the
· respondent no'. 6 in his Bio-data while praising his achieve-
ments had only stated that he is the first blind person to
'have been awarded Ph.D. There was no mention whether
F
· such blindness was subsequent to binh or whether such
blindness was congenital. There was also no details in the
Bio-data stating whether such blindness was complete or
•. the same was panial, temporary,. curable or not curable. In
. ·these facts, the aspect about the blindness of the respon-
G dent no. 6 was not specifically considered by any of the
· Constitutional Authorities who are involved in the appoint-
ment of a member to the State Public Service Commission.

That in this regard, it is further submitted that the
H nature of duty of a member of a Public Service Commis-
JAI SHANKAR v. STATE OF BIHAR [SAWANT,J.] 527

> sion is primarily to make selections for appointments to A
the various Govt. jobs of the State and accordingly, while
making such recommendations, the member of the State
Public Service Commission has to interview, the eligible
candidates. While conducting such interview, the member
of the State Public Service Commission is to visually inter-
view each candidate to determine his suitability. After the
B
appointment of the respondent no. 6, it has come to the
notice of the respondent-State that the blindness of the
respondent no. 6 is clearly hampering the effective discharge
of official duties by the respondent no. 6".
c
[Emphasis supplied]

r To appreciate the first attack against the appointment, it is necessary
to reproduce the provisions of Article 316 [1] and [2] of the Constitution
which relate to the appointment and the term of office of the members of
the Public Service Commissions. D
"316. Appointment and term of office of members. [l] The
Chairman and other members of a Public Service Com-
mission shall be appointed, in the case of the Union
Commission or a Joint Commission, by the President, and
E
in the case of a State Commission, by the Governor of the
State:

Provided that as nearly as may be one-half of the
members of every Public Service Commission shall be
persons who at the dates of their respect;ve appointments F
have held office for at least ten years either under the
Government of India or under the Government of a State,
and in computing the said period of ten years any period
before the commencement of this Constitution during
which a person has held office under the Crown in India G
or under the Government of an Indian State shall be
included.

[l-A] x x x x x x

[2] A member of a Public Service Commission shall hold H
528 SUPREME COURT REPORTS [1993] 2 S.C.R.

A office for a term of six years from the date on which he
enters upon his office or until he attains, in the case of
the Union Commission, the age of sixty-five years, and in
the case of State Commission or a Joint Commission, the
age of sixty-two years, whichever is earlier:

B Provided that -

[a] a member of a Public Service Commission may, by
, writing under his hand addressed, in the case of ·the
Union Commission or a Joint Commission, to the
c President, and in the case of a State Commission, to
the Governor of the State; resign his office;

[b] a member of a Public Service Commission may, be
removed from his office in the manner provided in
clause (1) or clause (3) of Article 317,
D
[3] x x x x x'

It is apparent from these provisions that the Chairman and other
members of the State Public Service Commission are appointed by the
Governor of the State, The appointments are obviously npde on the advice
E of the Council of Ministers of the State, The proviso to Clause [1] of tlle
Article requires that "as nearly as may be", one half of the members of the
Commission shall be persons who on the dates of their respective appoint-

F
ments have held office for at least ten years either under the Government
of India or under the Government of a State, For brevity's sake we may
refer to this category of members as service members, The expression "as
-
nearly as may be" itself suggest that the proportion of 50% of the service
members is not exact but approximate and is meant not to be mandatory
but directory, The said proviso does not, in terms, say that in no case and
at no point of time, the said proportion should either go above, or fall
below 50%, In the very nature of things, a strict adherence to the said
G direction is not practicable at any particular point of time, In the first
instance, the superannauation age of the member of the Commission is 62
years and his total tenure as a member cannot exceed six years, He has to
vacate his office either when his tenure comes to an end or when he attains
the age of 62 years whichever is earlier. When the members are appointed,
H they are bound to differ in age, whether they belong to the service category
•
JAi SHANKAR v. STATE OF BIHAR [SAWANT, J.] 529

or the non-service category. In the normal course, they would retire at A
different points of time. If it is insisted, as is done on behalf of the
appellant, that the said requirement must be followed strictly at all times,
it would be well-nigh impossible to do so. Every time a member, whether
belonging to the service or the non-service category, retires, there should
be available a suitable person from the same category to be appointed in B
his place. It is not always possible to make an advance list of persons of
either category who are suitable for such appointments. Hence, the total
strength of the Commission as well as the number from each of the
categories, are bound to vary from time to time. At any given point of time,
therefore, it may not be possible to maintain the proportion between the
two categories strictly in accordance with the direction given in the Con- C
stitution. It appgars that it is for this reason that the words "at least half'
used in the proviso to Section 265 [1] of the Government of India Act, 1935,
corresponding to the present proviso to Article 316 [1], have been sub-
stituted by the words "as nearly as may be one half'.

D
The learned counsel appearing for the appellant, however, submitted
that the expression "as nearly as may be one half' has been used to convey
that a fraction may be ignored if the total number of members cannot be
exactly halved between service and non-ser.1ce categories. We are afraid
that this argument is too simplistic. The fraction is and can be taken care
of without the aid of such expression and a document like the Constitution E
does not have to incorporate the. normal rules of interpretation. It is clear
that the framers of the Constitution realised that to make the provision

-- rigid was both inadvisable and unnecessary. We have already demonstrated
its impracticability. It can further hardly be suggested that the need to have
50% from the service category is of such paramount importance to the F
composition of the Commission that the breach of it at any particular point
of time would defeat the very object of constituting the Commission. The
purpose for which the said provision is made is obvious. It was realised by
the framers of the Constitution that the democratic system can be maintain
only if civil servants are appointed solely on the basis of their merit
adjudged by open compe,tition, and only if they can carry of the administra- G
tion according to Jaw independently, instead of under pressure of their
political superiors. Hence they provided for Public Service Commissions at
both the Union and the State level as autonomous bodies to enable them
to carry on their functions independently, fairly and impartially. Since the
Commission's main task was to recruit administrative personne~ it was H
530 SUPREME COURT REPORTS (1993] 2 S.C.R.

A necessary to have on the Commission members with sufficient administra-
tive experience. To induct persons of experience, it was imperative lo
provide that a certain proportion of the members of the Commission
. should have had an actual experience of running the administration, so that
the Commission is better able to adjudge the firness of persons to be
recruited in the administration. However, the very fact that the Service
B Commission was not proposed to be constituted of the members from the
service category exclusively, also shows that the framers of the Constitution
did not desire that the outlook of the service members alone should prevail
while recruiting the personnel. The view of the persons from outside the
administration was also considered to be equally imperative in selecting the
c personnel. A balance was, therefore, sought to be struck by providing the
proportion between the two categories of members. It would, however, be
naive to suggest on that account that the framers of the Constitution
presumed to ensure that on all occasions there shall be an exact balance
of views. It is unrealistic to believe that individuals with different back-
D grounds always insist on the acceptance of the outlook dictated by their
background alone and refuse to share the view- point of others. It is
certainly not expected of the members of such high ranking Constitutional
body as the Public Service Commission. We cannot also lose sight of the
fact that the Service Commissions mostly sit in Committees and are aided
and assisted by the experts from the concerned faculties, disciplines and
E departments. The Committees take their decision collectively after due
deliberations and discussions. It is, therefore, the composition of these
Committees and not so much the composition of the Commission at any
particular point of time that matters.

F Hence, we are unable to subscribe to the view that the proviso to
Article 316 (1] requiring that as nearly as may be one-half of the members
of the Public Service Commission shall be from service categnry le~ves no
option to the Appointing Authority under any circumstance whatever, to
allow reduction of representation from that category and a breach of the
said requirement by reason of appointment of a member from non-service
G category vitiates such appointment or the duties performed by such appoin-
tee as a member of the Public Service Commission.
'·~
The learned counsel for the appellant went so far as to contend that
the said requirement constituted a. Q!!alification, of the member to be
H appointed every time a vacancy is to be_ filled. According to- him, depending
JAI SHANKAR v. STATE OF BIHAR [SAWANT, J.j 531

upon the shortfall in the representation of the respective category, the A
member to be appointed has to be either from the service or non-service
category as the case may be and that is an essential qualification for his
- appointment. The argument was that if, for example, as in the present case,
the representation of the service members of the Commission fell short of
50%, then all persons to be appointed on the Commission till the said
proposition was made up, had to be from the service category, that being
B
their necessary qualification. It is not possible to accept this contention for
the simple reason that, as pointed out earlier, it may be possible to get a
suitable person either from service or non-service category over a period
of time and for want of suitable candidates from the concerned category,
the vacancies on the Commission may remain unfilled even if suitable c
persons from the other category are available during that period. The
...., reasonable interpretation of the said proviso, therefore, is to treat it not as
- a strict rule to be. enforced but as a binding guideline to be followed in
practice in spirit as far as possible and without deliberately flouting it.
Hence, it is not possible to hold that merely because al the time of D
appointment oi respondent No. 6, there were four service members and six
non-service members, he was disqualified for being appointed as the 7th
men1ber from the non-service category.

5. The second attack which is based upon the blindness of respondent
. No.6 is equally myopic. As has been pointed out earlier, respondent No. 6 has E
been blind from his childhood. In spite of his blindness, he acquired high
educational qualifications and in fact, at the time of his appointment, he was
an Associate Professor in the Patna University. He is an acknowledged
scholar of English. Although the Government has now come forward to
disown any knowledge about his complete blindness from the childhood, with F
which we will deal instantly, they must be presumed to have known the said
infirmity and should be deemed to have formed the opinion that in spite of his
blindness, he was fit to be a member of the Commission. We see no reason to
hold othenvise, in the circumstances pointed out by respondent No.6 in his
affidavit to which we have already referred. Nothing concrete has also been
brought on record to show that he has failed to perform his duties as a G
member of the Commission efficiently because of his blindness. On the other
·....,; hand, as has been pointed out earlier, the State Government itself had
recommended him for 'Padmashree' for his efficient discharge of the work as
a me~ber of the Commission and that too over a short span of few months.
We are, also in agreement with the contentJOn advanced on his behalf that H
532 SUPREME COURT REPORTS (1993] 2 S.C.R.

A except the external appearance of the candidates appearing before· him, he is
able to ascertain the required merits or demerits of the Candidates, as do the
other members of the Commission. The Commission, as it normally should,
operates through Committees, and as regards the external appearance, the
other members of the Committees give him the required information on the
basis of which he is able to assess the overall merit of the candidates. The
B external appearance of the candidates is also not of importance in all ap-
pointments. What is futher necessary to note is that for selecting the cm).-
didates for almost all disciplines and departments, the experts from the
concerned departments do sit in the Committees and the opinion of the
eXjlerts ordinarily prevails in such appointments since the members of the
c Committees, who are the members of the Commission, do not have the
expertise. in the relevant fields. This shows that all members of the Commis-
sion sitting on the interview Committees have also to be guided in their
opinion by the exp!:rts. If respondent No. 6 has to take guidance only in the
matter of external appearance of the candidates, all members of the Commis-
sion have to be guided by the experts with regard to the most vital equipment
D
of the candidates, 'viz., the intellectual calibre and the proficiency of the
candidates in the relevant subjects. There is, therefore, nothing wrong if only
for external appearance, for which only a small percentage of the total marks
is reserved, respondent No. 6 has to depend on the advice, opinion or
guidance of the other members of the Committees and the Commission. The
E decision of the interview board is always a collective one and is taken after
deliberation on the merits and demerits of the candidates which are
evaluated on the basis of various factors. We are, therefore, unable to see as
to ho\v, in the circumstances, respondent.No. 6 is unfit to carry on his duties
as a member of the Commission because of his blindness.
F 6.. The attack, however, was sought to be strengthened by relying on
the provisions of sub-clause [c] of Clause (3] of Article 317 of the Constitu-
tion which provides for removal of a member of the Public Service Com-
mission on the ground that he is, in the opinion of the President, unfit to
continue in office by reason of infirmity of mind or body. The argument
G was that the blindness was infirmity of body and if it is a ground for removal
from office, it is much more a disqualification for appointment and hence
respondent No. 6 should be prevented from continuing in his office. \-

We are afraid that the first premise on which this limb of the
H argument is based misses the obvious fact, viz., that by "infirmity of body"
JAI SHANKAR v. STAIB OF BIHAR [SAWANT, J.] 533

-"" what is spoken of in the sub-clause in question, is an infirmity which A
disables the Member from discharging his functions as such member
effectively. It is not every infirmity of body or every loss of use of any limb
of the body. The defect or deficiency must be such as would disable the
Member from carrying out his duties satisfactorily and consistent with the
trust reposed in him. We have already pointed out that not only the
B
blindness of respondent No. 6 does not prevent him from discharging his
duties expected of him, but in fact the services rendered by him as such
member have been eulogised and commended for a National Award by no
other than the State Government itself and the Chairman of the Commis-
sion who had the first-hand knowledge of his functioning. This is apart from
the fact that the Governor who~ppointed him on the advice of the.·Council
c
· of Ministers is presumed to have done so after satisfying himself that the
loss of eye-sight was not an infirmity which would impede him in the
discharge of his duties. The infirmity of body or mind which is referred to
in the sub-clause, further must necessarily be such as has arisen after the
appointment and not the one which existed at the time of the appointment, D
unless of course, the Government \Vas una\vare of the same at the time of
the appointment.

7. We may now turn to the affidavit filed on behalf of the State
Government. A reading of the said affidavit leaves no doubt in our mind
E
that it has been filed only to prejudice the case of respondent No. 6 before
us because, for some reasons, he has fallen fouf~( some persons in power.
As is evident from the portions of the affidavit reproduced above, firstly,
a case is sought to be made out there that respondent No.6 was appointed
as the 'non-Government men1ber' of the Commission only because the
proviso of Article 316 [1] is not mandatory. That may be so. But the F
affidavit then proceeds to state almost in relenting terms that although the
said prmoso is not mandatory, that by itself is not a good ground for
departing from the "suggestion of the Constitution" and hence the appoint-
ment of respondent No. 6 "as the 7th non-Government member" was not
justified. It is not clear as to when this wisdom dawned on the Government G
• for the first time. The record further does not show as to who had
suggested his name to the Governor and whether the dccisir.n was taken
by the Council of Ministers as a whole or by the Chief Minister or any of
his colleagues alone and \vhat advice \vas received or obtained by them, if
at all, while making the appointment. We are however, happy to know that H
534 SUPREME COURT REPORTS [1993] 2 S.C.R.

A the State Government "upon reconsideration of the entire matter under
controversy feels that the words of the Constitution have to be interpreted
in letter and spirit and any departure from the express words of Constitu-
tion ............... should be done only for sound and good reasons" . We only
hope that the Stale Government keeps that solemn declaration in mind for
all purposes and for all times to come and does not forget it .the moment
B the ink in the present proceedings dries.

But more breast-beating of the Government is on the second issue,
viz., the blindness of respondent No.6. The affidavit states that at the time
of the appointment "th.e aspect about his blindness was not specifically
C considered as the same was stated in the Bio-data of the respondent No.
6 in a very casual way and in such a manner that it had escaped the
attention of the Constitutional authorities at the time of recommending the
respondent No. 6 for appointment... ...... ". Not to be outdone by this
ludicrous averment, the affidm;t proceeds to state "that respondent No: 6
D in his bio-data while praising his achievements, .had only stated that ·he is
the first blind person to have been awarded Ph.D. There was no mention
whether such blindness was subsequent to birth or whether such blindness .1
was congenital... .. There was [sic] also no details in the Bio-data stating
whether such blindness was complete, or the same was partial, temporary,
curable or not curable." It is then the case of the State Government that
E "in view of these facts, the aspect about the blindness of the respondent
No. 6 was not specificallv. considered by any of the Constitutional'
authorities who are involved in the appointment of a member to the State
Public Service Commission". Since the affiant himself has brought into
11
picture the Constitutional authorities who are involved in the appointn1ent
F of a member to the State Public Service Commission" and has stated that
the aspect of the blindness of respondent No. 6 was not specifically
considered by them, we cannot help observing that the affiant by making
such statement haS made the Constitutional authorities look ridiculous and
their functioning a mockery in the eyes of the public. We are anguished
-
more on account of the fact that the State Government should have
G considered it compulsive to allow such blatantly rabid statements to be
made on oath with impunity. No responsible public authority could have
made the claim thal none of the Constitutional functionaries concerned was
aware that respondent No.6 was totally blind from his childhood, when that
fact fuust have been widely known in the State and in all probability the
H extra-ordinary abilities exhibited by him despite his blindness must have
JAI SHANKAR v. STATE OF BIHAR [SAWANT, J.] 535

been the main reason for his appointment as a member of the Public A
Service Commission. Any statement seems to be good enough, whether
. true or untrue, so long as it is considered serviceable for the immediate
purpose in hand. We refrain from making more comments which certainly
such affidavits deserve in ample measure, and let the affidavit speak for
itself.
B
The affidavit further states that while conducting the interviews,
members of the Commission have to visually interview each of the can-
didates to determine his suitability and a~ter the appointment Of respon-
dent No. 6 "it has come to the notice of the respondent-State that the
blindness of the respondent No. 6 is clearly hampering the effective dis- C
charge of official duties" by him. It is necessary to remember in this
connection that this affidavit has been filed on 23rd January, 1993. Respon-
dent No.6 had filed his affidavit on 7th October, 1992. In that affidavit,
respondent No. 6 has, among other things, referred to the certificate given
by respondent No.5, Dr. Ram Ashray Yadav, Chairman of the Public D
Service Commission on 11th September, 1991 where he has stated that
respondent No. 6 "has been performing his duties with exceptional excel-
lence without letting his blindness hinder his work. I strongly recommend
, that Dr. Thakur be awarded National Award in recognition of his excel-
lence despite his blindness." He has also referred in his affidavit to the
letter of 22nd October, 1991 of the State Government to the Union Home E
Ministry recommending him for the award of Padmashree" for his services
11

as a Member of the Public Service Commission. Neither the certificate nor
the letter has been controverted by the Chairman and the Government. In
the face of the certificate and the said recommendatory letter, it is difficult
to understand the basis on which it is now stated in the affidavit that the F

- - ..,.
'
blindness of respondent No.6 is hampering his work. There is, therefore,
no doubt in our mind that the affidavit has been filed for the only purpose
of seeking somehow the removal of respondent No. 6. Respondent No. 6
in his affidavit has alleged that he has since fallen out with respondent No.
5, the Chairman of the Commission and the Chairman is bent upon ousting
him from the Commission. To shows the animosity of the Chairman G
· towards him, he has given a list of events along with his affidavit. These
events have not been controverted. The High Court has referred to some
of these events in paragraph 6 of its judgment. Since they have a bearing
on the Governn1ent's comments on his performance, we may reproduce the
events catalogued by the High Court :- H
536 SUPREME COURT REPORTS [1993] 2 S.C.R.
'':;,..\
A "1. His P.A. has been replaced;

2. His chamber, which contains two almirahs containing
documents, has been locked up;

3. The service of the reader, who is to read to him
B documents and journals and other papers is not being
provided to· him and his services have been terminated;

.4. The use of staff car by him has been stopped;

5. His orderly has been transferred;
c
6. The Chairman of the Commission has issued instruc-
tions not to receive any document from him or to obey
his orders;

7. His telephone bill for the month of Oct. 1991, for Rs.
D 598 only has not been paid though a sum of Rs. 18,154
on account of telephone bill of the Chairman's
residence has been paid.

8. The newspaper allowance payable to him is not being
E paid;

9. He has not been allowed to attend the meetings of the
Commission held on 11th December, 20th December
and 31st December, 1991 and he is not aware when
any other meeting has beeri J;eld thereafter or not in
F as much as he has not been provided With any notice
in respect of the sa1ne;

10. He has been physically prevented from going to inside
[sic.] the campus of the Commission since 28th of
November, 1991.''
G
In the list of events accompanying his counter-affidavit he has also
referred to other incidents such as the attempted physical assault on him
by the Chairman during a meeting of the Commission, the threats of
physical liquidation administered from the telephonic line of the Chairman,
H the complaints made by him to the police, to the Chief Minister and to the
JAI SHANKAR v. STATE OF BIHAR [SAWANT, J.] 537

Governor etc. We do not desire to burden this judgment with the said A
details.

It is also not necessary to make any _comment upon the aforesaid
events since they speak for themselves. They only reinforce the conclusion
that the belated claim of the State Government that the appointment of
respondent No. 6 is inyalid and that his blindness hampers the discharge B
of his duties has its obvious roots in the strained relations between him on
the one hand and the Chairman and the State Government on the other.

8. While, therefore, dismissing the appeal, in the special facts of the
case, we also direct both the appellant and the respondent-State of pay
the costs of this appeal to respondent No.6 in the amounts of Rs.5,000 and c
Rs. 10,000 respectively.

P.S.S. Appeal dismissed.
#:;"fl, ..

y