Prem Kumar Balmiki v. State of U. P. — 1991 DIGILAW 1380 (ALL)

JUDGMENT S.C. Mathur, J. 1. Prem Kumar Balmiki, Smt. Tarini Pandey and Smt. Rabia Khatoon, nominated members of the Municipal Board, Gonda. (for short, 'Board') have approached this Court under Article 226 of the Constitution to challenge two notifications issued by the State Government on 53199] under the provisions of U.P. Municipalities Act, 1916 (Act 11 of 1916), (for short, 'Act'). By one notification nomination of the petitioners as members of the Board bas been cancelled and by the other notification Smt. Asha Kant Srivastava, Smt Shahla Naseer and Sri Shyam Lal Balmiki have been nominated in place of the petitioners. In short, the petitioners are aggrieved by their ouster from the membership of the Board. 2. The facts about which there is no dispute between the parties are as follows: Gonda is a city within the meaning of Section 2(4) of the Act. It has a Municipal Board which is constituted in accordance with the provisions of the Act. Some members of the Board are elected and some are nominated by the State Government. Last election for constituting the Board was held in November, 1988 when twenty members were elected. Amongst the elected members there was no woman and no member belonging to Safai Mazdoor Class. Therefore, in exercise of the power available under the First and Third provisos to Section 9 of the Act the State Government nominated Smt. Asha Kant Srivastava, oppositeparty No. 3, as a representative of women and Sri Shyam Lal Balmiki, oppositeparty No. 5, as representative of Safai Mnzdoor class to the Board through notification dated 411989. On 1921990 the State Government issued notification canceling all nominations of women and Safai Mazdoors to various Municipal Boards of the State. Thereafter the present three petitioners were nominated through notification dated 1841990. When the petitioners had served barely for about one year the impugned notifications were issued resulting in the ouster of the present petitioners and induction of oppositeparties 3 to 5 in their place. 3. The two notifications dated 531991 have been challenged on the following grounds: (i) The term of the nominated members of the Beard, as of elected members of the Board, is coterminus with the term of Board and it can be curtailed only in accordance with the provisions of the Act. The only provision for removal of a member of the Board is Section 40 which is not attracted. The only provision for removal of a member of the Board is Section 40 which is not attracted. (ii) The Act contains specific provisions for removal of President and members of the Board and for curtailing the term of the Board and therefore Section 21 of the General Clauses Act which has been invoked in the first notification is not applicable ; and (iii) there is repugnancy between the Fourth proviso to Section 9 and Section 38 of the Act, (iv) Order is hit by Article 14 and principles of natural justice. 4. Although the State Government, whose notifications are challenged, has been impleaded as oppositeparty no. 1 it has not filed any counter affidavit to opposed the writ petition. Counter affidavit has been filed only on behalf of the newly nominated members, oppositeparties nos. 3 to 5. On their behalf it has been submitted by their learned counsel Sri H.P Srivastava that the office of member of the Board is a statutory office and the right to hold such office is governed by statutory provisions. There is no fundamental or common law right the hold such an office. A nominated member has no vested fight to hold the nominated office Under Section 21 of the Genera Clauses Act the State Government is competent to rescind the earlier nomination. The matter has now been put beyond the pale of doubt by adding the Fourth Proviso to Section 9 through the Uttar Pradesh Urban Local SelfGovernment Laws (Amendment) Act, 1990. Accordingly neither Article 14 of the Constitution is attracted nor principles of natural justice. In support of his submissions the learned counsel has cited authorities. 5. Before we take up the rival submissions of the learned counsel for the parties we may notice a few provisions of the Act. 6. The State Government declares any local area to be a Municipality under Section 3 of the Act through notification. Section 6 lays down that in every Municipality there shall be a Municipal Board and every such Board shall be a body corporate by the name of the Municipal Board of the place by a reference to which the Municipality is known. Such Municipal Board shall have perpetual successions and a common seal. Sec. 7 prescribes mandatory duties of the Municipal Board and Section 8 prescribes discretionary functions of the Board. Section 9 deals with normal composition of the Board. Such Municipal Board shall have perpetual successions and a common seal. Sec. 7 prescribes mandatory duties of the Municipal Board and Section 8 prescribes discretionary functions of the Board. Section 9 deals with normal composition of the Board. Under this provision the Board comprises (1) President, (2) the elected members who shall not be less than 10 and more than 40 as the State Government may by notification in the official Gazette specify, (3) exofficio members comprising all members of the House of People and the State Legislative Assembly whose Constituencies include the whole or part of the limits of the Municipality, (4) exofficio members comprising all members of the Council of States and the State Legislative Council who have their residences within the limits of the Municipality. Under the First Proviso to Section 9 as amended by the Uttar Pradesh Urban Local SelfGovernment Laws (Amendment) Act, 1990 the State Government is authorised to give representation to women by making nomination. The maximum number of women who can be nominated is two. This power of nomination is exerciseable only if no women has been elected to the Board or if only one woman has been elected. If no woman has been elected the State Government may nominate two women and if one woman has been elected the State Government's right of nomination is confined to one. Under the Third Proviso the State Government is competent to give representation to Safai Mazdoor class. This right of representation also arises only when no member of the Safai Mazdoor class has been elected to the Board. The nomination is to be made by notification. Through the Amending Act of 1990, referred to hereinabove, a new Proviso has been added after Proviso Third as follows: Provided also that a member nominated under this section, whether before or after 1521990, shall hold office during the pleasure of the State Government, but not beyond the term of the Board. 7. Section 9A provides for reservation of seats for Scheduled Castes. In the present petition we are not concerned with this provision. Section 10A prescribes the term of the Bo rd which is five years. Under the Proviso it is competent for the State Government to extend from time to time the term of the Board by notification in the official Gazette. Sec. 30 Vests power in the State Government to dissolve or supersede the Board. Section 10A prescribes the term of the Bo rd which is five years. Under the Proviso it is competent for the State Government to extend from time to time the term of the Board by notification in the official Gazette. Sec. 30 Vests power in the State Government to dissolve or supersede the Board. The consequences of supersession are mentioned in Section 31. One of the consequence is that all the members of the Board including the President vacate their office Section 31A prescribes consequences of dissolution of the Board. The consequence prescribed in clause (a) is that all members of the Board including the President vacate their offices as such. The vacation of offices under both the sections is without prejudice to eligibility for reelection or renomination. Section 38 prescribes the term of office of members elected or nominated to fill casual vacancies. This section after the amendment made in 1990 read as follows: The term of office of a member elected to fill a casual vacancy or a vacancy remaining unfilled at the General Election shall begin upon the declaration of his election under the Act and shall be the remainder of the term of the Board. Section 39 deals with resignation by a member of the Board. Section 40 deals with removal of a member of the Board. The circumstances in which a member may be removal are prescribed in clauses (a) to (h) of subsection (1). Subsection (3) also deals with removal of a member from the Board on fulfilment of condition prescribed therein. Subsection (5) deals with suspension of member. Section 41 deals with disabilities of members removed under Section 48. 8. From a survey of the above provisions it is apparent that the term of an elected or nominated member is coterminus with the term of the Board. The normal term of the Board is five years but it may be curtailed as well as extended. If the term of the Board is curtailed by dissolution or supersession the term of the member is also curtailed. Similarly if the term of the Board is extended the term of the member is also extended. Apart from curtailment of the term by dissolution or supersession of the Board the term of a member may also be curtailed by his submitting resignation and by his removal from office. Similarly if the term of the Board is extended the term of the member is also extended. Apart from curtailment of the term by dissolution or supersession of the Board the term of a member may also be curtailed by his submitting resignation and by his removal from office. Section 40 specifically confers power upon the State Government for removal of a member from office. Section 40 applies to elected as well as nominated members. In respect of a nominated member power of curtailment of term is reserved under the Fourth Proviso to Section 9. This proviso has been reproduced hereinabove and it says that a nominated member shall hold office during the pleasure of the State Government. From this clause it is apparent that a nominated member can hold office only so long as the State Government would desire him to hold that office. The pleasure doctrine contained in the proviso is contained in several other enactments also including the Constitution of India. Under Article 75(2) of the Constitution, Ministers of the Central Government hold office during the pleasure of the President. Similarly under Article 164(1) the Ministers in the States of Indian Union hold office crating the pleasure of the Governor. Under Article 76(1) the President appoints Attorney General for India and in view of clause (4) of the said Article this office is held 'during the pleasure of the President. Corresponding provision in respect of Advocates General for the States is contained in Article 165. The Governor of the State appoints him under clause (1) and in view of the provision contained in clause (3) the office is held during the pleasure of the Governor. Governors for the States are appointed by the President under Article 155. Under Article 156(1) the Governor holds office during the pleasure of the president. The a pleasure doctrine specifically came up for consideration before the Rajas than High Court in Surya Narain Chaudhary v. Union of India and others (AIR 1982 Rajasthan). Under clause (3) of Article 156 a Governor is appointed for a term of five years from the date on which he enters upon his office. The term of office of Sri Raghukul Tilak, who was Governor of Rajasthan, was terminated earlier than five years. This termination was challenged by Sri Surya Narain Chaudhary. Under clause (3) of Article 156 a Governor is appointed for a term of five years from the date on which he enters upon his office. The term of office of Sri Raghukul Tilak, who was Governor of Rajasthan, was terminated earlier than five years. This termination was challenged by Sri Surya Narain Chaudhary. Dealing with the pleasure doctrine it has been observed in paragraph26 of the Report as follows: The Governor's appointment and also by necessary implication his removal is during pleasure of the President; The Presidential pleasure in matter of removal of the Governor is not regulated or controlled by any provision in the manner as provided under Article 311 in relation to Civil (Administration) Services. The above provision for his removal or dismissal is an obvious requisition of the unregulated and uncontrolled Presidential pleasure, exercisable at any moment without cause or without any stated reasons. If this were not so, the Governor will have most secured term of office, more secure than any office held by a member of civil service. He will be irremovable, although Judges holding offices during good behaviour would be removable in accordance with procedure established by Article 124(4). The condition of his term of appointment being during pleasure any provision or procedure if provided for his removal would be unnecessary and superfluous. He has no security of tenure and no fixed terms of office. He may be removed by an expression of Presidential displeasure. His removal at pleasure gives no cause of action. The impugned Presidential Notification albeit a bold expression of displeasure is a complete answer to all doubts, in disputes, challenges and contentions against his removal. Neither the Presidential order can be challenged in any Court, nor can it be refuted in any House of State/Legislature/Parliament. Legally the Presidential order is conclusive. 9. Again in paragraph28 it has been observed The pleasure condition of a Governor's term makes any proceeding or procedure or rules of natural justice for his removal unnecessary. From the observation contained in paragraph26 it appears that the order of removal of Sri Raghukul Tilak from the office of Governor was not a simple order of termination but it contained stigma inasmuch as there was expression of displeasure on his performance. Even then it was held that rules of natural justice were not attracted. From the observation contained in paragraph26 it appears that the order of removal of Sri Raghukul Tilak from the office of Governor was not a simple order of termination but it contained stigma inasmuch as there was expression of displeasure on his performance. Even then it was held that rules of natural justice were not attracted. The order impugned in the present writ petition does not cast any stigma against the petitioners. It simply puts an end to their membership. 10. Bapjan Ali v. The State of Assam and others AIR 1985 Gauhati 99 was also a case of nomination by the Governor, the nominated person holding office at the pleasure of the Governor. The challenge against the termination of this nomination was rejected by a Division Bench of the High Court making the following observation in paragraph's of the Report: '.............. ............The Governor nominated the petitioner in the Ad Hoc Committee of the Mahkuma Parishad at his pleasure. The nomination of the petitioner in the Ad Hoc Committee was the pleasure of the Governor, so also the termination of the office......., Surya Narain Chaudhary's case (Supra) has been allied upon for negativating the plea of the petitioners. 11. Apart from the right to end nomination available under the plea sure doctrine contained in the Fourth Proviso to Section 9 the power to terminate the nomination was available to the Government under Sec. 21 of the General Clauses Act, 1897 also. This provision, apart from the Fourth Proviso, has also been invoked in passing the impugned order. Section 21 reserves power to add, amend, vary or rescind any notification, order Rule or byelaw. The principle contained in Section1 21 is contained in Section 16 also wherein it is provided that a power to make any appointment includes the power to suspend of dismiss any person who has been appointed unless a different intention appears. The pleasure doctrine along with Section 16 of the General Clauses Act came up for consideration before a Division Bench of the Delhi High Court in Ghanshyam Singh v. Union of India and others AIR 1991 Delhi 59. Section 4(3) of the Multi State Cooperative Societies Act (51 of 1984) conferred power upon As Central and the State Government to make nominations of the Board of a Society covered under the Act. The nominated person held office during the pleasure of the respective Government. Section 4(3) of the Multi State Cooperative Societies Act (51 of 1984) conferred power upon As Central and the State Government to make nominations of the Board of a Society covered under the Act. The nominated person held office during the pleasure of the respective Government. In this case the petitioner had sought to equate nomination with employment under the Government. This plea was rejected with the observation. We are of the view that the contention of Mr. Thakur that the nomination of the petitioners as Director be construed as an employment under the Government although attractive, is to be rejected. Even if the nomination is to be equated with the word appointment it cannot be held that it was an employment under the Government. Again in paragraph36 it has been observed as follows: The initial nomination of the petitioner herein and for that matter nomination of any official or nonofficial on the Board of Directors was at the will of the Government. The Government have an inherent power to revoke the same as per S. 16 of the General Clauses Act. Thus in this case along with pleasure doctrine Section 16 of the General Clauses Act was also relied upon for upholding termination of nomination of a person to an office. Reliance was placed upon an earlier decision of the same Court in Bar Council of Delhi v. The Bar Council of India, AIR 1975 Delhi 200. In the latter case the question that arose for consideration was whether in the absence of any specific provision a motion of no confidence could be brought against elected chairman. It was held by the Delhi Court that the power to elect inherently contained in it the power to remove by a motion of no confidence. Relying upon this proposition it has been observed by the Delhi High Court that even in the absence of subsection (3) of Section 41 a nomination till further orders was liable to be revoked under subsection (1) of Section 41 which conferred the power of nomination. We are in respectful agreement with the view taken by the Delhi High Court in both the case. 12. In M/s Meckett. Engineering Co. v. Their Workmen AIR 1977 SC 2257 it has been observed at page 2261 Column 1. We may also in this connection recall the provisions of Section 16 of the General Clauses Act, 1897. We are in respectful agreement with the view taken by the Delhi High Court in both the case. 12. In M/s Meckett. Engineering Co. v. Their Workmen AIR 1977 SC 2257 it has been observed at page 2261 Column 1. We may also in this connection recall the provisions of Section 16 of the General Clauses Act, 1897. Whether or not the section in terms applied to the aforesaid Standing Orders of the Company which are certified under Section 5(3) of the Industrial Employment Standing Orders Act, 1946 may be a moot point but the general doctrine underlying the Section can well be made applicable to a case of the present nature for it is now firmly established that the power to terminate service is a necessary adjunct of the power of appointment and is exercised as an incident to or consequence of that power. 13. The proposition of law emerging from the above authorities may be stated thus: It is settled law that the power to do a thing includes the power to undo that thing. Thus the power to appoint or nominate a person to a post or office includes necessarily the power to remove or dismiss from that post or office. The power to pass an order includes he power to rescind that order. These general principles have been given statutory recognition in Section 16 and 21 of the General Clauses Act, 1897. The general power to undo a thing or to remove or dismiss from office is subject to restrictions which may be imposed by contract, by terms of appointment or by Statute. This is specifically provided in Section 16 where it is said unless a different intention appears. The U.P. Municipalities Act does not exhibit an intention different from the general principles mentioned herein. Rather the incorporation of pleasure doctrine in the Fourth Proviso puts the matter beyond the pale of doubt. It reinforces general proposition that the power to nominate carries necessarily with it the power to terminate that nomination. 14. The office of member of Municipal Board is a political office. Appointment to a political office carries with it political hoards. Such appointments are invariably made on political considerations and their termination is also actuated by political considerations. It reinforces general proposition that the power to nominate carries necessarily with it the power to terminate that nomination. 14. The office of member of Municipal Board is a political office. Appointment to a political office carries with it political hoards. Such appointments are invariably made on political considerations and their termination is also actuated by political considerations. If appointment itself is made on political considerations we see no reason why political considerations should not be allowed to operate in termination of the nomination. The nomination as well as termination of the nomination fall within the field of subjective satisfaction of the nominating authority. In such a situation there is no question of invoking the principles of natural justice or of arbitrariness contained in Article 14 of the Constitution. 15. In view of the above we are of the opinion that none of the grounds raised by the petitioner has any substance. We may, however, briefly touch some of the points raised in the grounds enumerated hereinabove. 16. It is no doubt true that the term of the nominated members is coterminus with the term of the Board but this is subject to exercise of the power available under the General Law as well as under the Act itself. We have indicated hereinabove that the term can be curtailed under the Fourth Proviso to Section 9 as well as in exercise of the power available under Section 21 of the General Clauses Act. Section 40 is indeed a provision for removal of a member of the Board but the removal under this provision is confined to the conditions prescribed in the section. The power to remove conferred under Section 40 is in addition to the power available under the Fourth Proviso to Section 9 While Section 40 applies to nominated as well as elected members the Fourth Proviso applies only to nominated members. Accordingly, the first ground of challenge fails, 17. It is no doubt true that Section 21 of the General Clauses Act is subject to the provisions of special enactments. Accordingly when there is conflict between Section 21 and a Special Enactment it is the Special Enactment that will prevail and not Section 21. In the present case there is no conflict, what is provided in Section 21 is reinforced by the provisions contained in the Fourth Proviso to Section 9. Accordingly when there is conflict between Section 21 and a Special Enactment it is the Special Enactment that will prevail and not Section 21. In the present case there is no conflict, what is provided in Section 21 is reinforced by the provisions contained in the Fourth Proviso to Section 9. Accordingly the second ground of challenge also fails. 18. The plea of repugnancy between Section 9 and Section 38 of the Act was based upon the misconception that Section 38 had not been amended, Unamended Section 38 was applicable to elected as well as nominated members, but the amended provision applies only to elected members Accordingly the basis of the challenge disappears and the third ground of challenge also fails. 19. We have held hereinabove that nominations to political office cannot be challenged on the ground of arbitrariness or violation of principles of natural justice. Accordingly the fourth ground of challenge also is not available to the petitioners. 20. In view of the above the petition is dismissed with costs to opposite parties 3 to 5 which are assessed at Rs. 500 (Rupees five hundred). We have been influenced in imposing this costs by the fact that two of the petitioners had themselves similarly ousted two of the opposite parties and got induction in their place as members of the Board. Interim order, if any operating, shall stand discharged. Sd S.C. Mathue. Sd K.C. Bhargava, 121191 Hon'ble S.C. Mathur, J, Hon'ble P.P. Gupta, J. 21. Immediately after the judgment had been pronounced the learned counsel for the petitioner prayed for certificate of fitness for filing appeal before their Lordships of the Supreme Court. Put up tomorrow before the concerned Bench for consideration of this prayer. Sd S.C. Mathur. Sd P.P. Gupta. 12.1191 Hon'ble S.C. Mathur, J. Hon'ble E.C. Bhargava, J. 22. We have considered the prayer for certificate made yesterday. Our judgment does not raise any substantial question of law of genera importance which needs to be decided by their Lordships of the Supreme Court. In fact we have relied upon a judgment of their Lordships ( AIR 1977 SC 2257 ). Accordingly the certificate prayed for is refused. Sd S. C. Mathur. Sd K.C. Bhargava. 131191 (Petition dismissed.)