“Need Of The Hour”: Madras High Court Upholds Amendment Bringing Chairman, Members Of PSC Under Purview Of State Vigilance Commission & DVAC

The bench of Chief Justice SV Gangapurwala and Justice Bharatha Chakravarthy noted that the amendment did not affect the rights of the Chairman and members nor did it change the service conditions. The court observed that only an investigation agency was being provided for and thus the amendment could not be said to be arbitrary.

“As discussed above, rights of the petitioners are not affected nor eroded and, moreover, the petitioners cannot claim immunity. Only because the investigating agency is provided for, it would not change the service condition nor it can be said that substantive rights of the petitioners are affected or impinged. All the other requirements of the statute for lodging the criminal case are still required to be complied with,” the court observed.

The court was hearing two batches of petitions. The first batch had challenged a government order of the Administrative Reforms (M) Department dated August 9, 2011, by which the Government brought the Chairman and Members of the TNPSC under the purview of the State Vigilance Commission and the Director of Vigilance and Anti-Corruption.

The second batch of petitions challenged the amendment to the TNPSC Regulations by which the exemption granted to the Chairman and Members was deleted and they were brought under the purview of the State Vigilance Commission and DVAC.

The petitioners, who were Chairman and members of the TNPSC submitted that they were consciously excluded in the TNPSC Regulation and the executive instructions could not override the statutory regulations. It was also submitted that the terms and conditions of their service could not be altered to their detriment.

With respect to the amendment, it was submitted that the amendment could not take effect from a retrospective date. It was further argued that a vested right could not be eroded by subsequent legislation.

The petitioners also argued that the TNPSC, being a statutory constitutional functionary, it was necessary to insulate and safeguard the autonomy and independence of the TNPSC from political pressure.

The Additional Advocate General submitted that the Chairman and Members of the TNPSC are included in the definition of “public servant” under the Prevention of Corruption Act and thus, even if the executive orders/amendments were not made, they would be under the purview of the Act.

The court observed that a Government Order could not override the statutory provisions. Additionally, an executive order could be issued and enforced only when a statutory provision was silent. The court noted that when the GO was issued, the Regulations that then existed had exempted the Chairman and members of the TNPSM from the purview of the State Vigilance Commission and DVAC. Thus, the court observed that the GO could not have superseded the TNPSC Regulations.

“Although G.O.Ms.No.98, dated 9.8.2011 is issued under executive power referable to Article 162 of the Constitution of India, it could not have superseded the TNPSC Regulations 1954. In view of the above, G.O.Ms.No.98, dated 9.8.2011 cannot be upheld. The same would be in the teeth of the TNPSC Regulations 1954 and, as such, would be illegal and would suffer from the vice of arbitrariness. As such, the same deserves to be set aside and it is hereby set aside,” the court said.

The court also observed that the Chairman and members of TNPSC were public servants within the definition of the Prevention of Corruption Act and could be prosecuted for the offenses under the Act. Thus, the court noted that the State Vigilance Commission and the DVAC would only be making an investigation and enquiry into the allegations and complaints filed against them.

The court thus observed that by bringing in amendments to the regulations no new offence was added or service condition was altered. The court added that the amendment was not prejudicial to the members but a need of the hour.

Further, with respect to the contention of retrospective application, the court observed that the would only apply when a vested right was affected. In the present case, the court observed that a change of investigating agency was a matter of procedure and no person had a vested right in any course of procedure.

Thus, though the court set aside the Government Order, it upheld the amendments brought in by the Governor and in effect upheld the decision to bring in the Chairman and members of the TNPSC within the purview of State Vigilance Commission and DVAC.

Counsel for the Petitioner: Mr.R.Sudhinder for Mr.K.Ashok Kumar

Counsel for the Respondent: Mr.S.Silambannan Addl. Advocate-General assisted by Mr.K.M.D.Muhilan Addl. Government Pleader, Mr.R.Muniyapparaj Additional Public Prosecutor assisted by Mr.Sylvester John

Citation: 2024 LiveLaw (Mad) 20

Case Title: Dr P Perumalsamy v The Government of Tamil Nadu and Others

Case No: W.P.Nos.24516 of 2011

Click here to read/download the judgment