Research › Browse › Judgment

Himachal Pradesh High Court · body

1999 DIGILAW 3 (HP)

SAROJ SHARMA v. STATE OF HIMACHAL PRADESH

1999-01-01

KAMLESH SHARMA, SURINDER SARUP

body1999
JUDGMENT Ms. Kamlesh Sharma, A.C.J.—In the above writ petition, the petitioner is aggrieved by the Notification dated 15.5.1998 (Annexure P-I) whereby in exercise of the powers conferred by Section 20 of the Himachal Pradesh General Clauses Act, 1968 (hereinafter called the Act’), the Notification dated 17.12.1997 (Annexure P-B) purported to have been issued under Section 3 of the H.P. State Commission for Women Act, 1997 (hereinafter referred to as Act No. 22 of 97) was rescinded. 2. By the Notification dated 17.12.1997 (Annexure P-B), the Governor, Himachal Pradesh was pleased to constitute the H.P. State Commission for Women of which the petitioner was appointed as Chairperson besides two other ladies as Members. Assailing the Notification dated 15.5.1998 (Annexure P-I), the petitioner has sought for the following reliefs: “(i) That the impugned Annexure P-I, dated 15th May, 1998 may be quashed and set aside; (ii) That the respondents may be directed to enforce/implement Annexure P-B, dated the 17th December, 1997 in letter and spirit and to permit the petitioner to discharge the duties of Chairperson of the H.P. State Commission for Women for a period of three years; (iii) That this Honble Court may declare the H.P. State Commission for Women Act, 1996 as having come into force from the date it has received the assent of the President of India or in the alternative the respondent-State may be directed to appoint a date for enforcement of the H.P. State Commission for Women Act, 1996 forthwith; (iv) That this Honble Court may kindly declare the constitution of the State Commission for Women, vide Annexure P-B, valid and the respondents may be restrained from reconstituting the Commission; (v) That the respondents may be directed to pay the petitioner the salary and allowances @ Rs. 10,000/- per month w.e.f. 26.12.97 with interest @ 18% p.a.; (vi) That the respondent-State may be directed to frame the Rules as covered under Section 21 of the H.P. State Commission for Women Act, 1996 and also to settle the terms and conditions of the petitioner with regard to salary/honorarium and allowances, etc. 10,000/- per month w.e.f. 26.12.97 with interest @ 18% p.a.; (vi) That the respondent-State may be directed to frame the Rules as covered under Section 21 of the H.P. State Commission for Women Act, 1996 and also to settle the terms and conditions of the petitioner with regard to salary/honorarium and allowances, etc. including providing of Government accommodation; (vii) That the respondents may be directed to provide infrastructure to the H.P. State Commission for Women for its smooth functioning for carrying out the mandatory provisions of the H.P. State Commission Act, 1996; (viii) That the respondents may be restrained from appointing new Chairperson of the H.P. State Commission for Women; (ix) That the respondents may be directed to produce the entire record pertaining to the Constitution of the H.P. State Commission for Women as also the record of the case for allotment of Government accommodation to the petitioner for the kind perusal of this Honble Court....". 3. So far as the factual matrix of the case is concerned, there is no dispute that Act No. 22 of 97 was passed by the H.P. Legislative Assembly and thereafter, it received the assent of the President on 9.10.1997. According to sub-section (3) of Section 1 of Act No. 22 of 1997, it shall come into force on such date as the State Government may, by notification in the official Gazette, appoint. Admittedly, no such date has been appointed by the State Government by issuing the requisite Notification and the Act has not come into force. But, in anticipation, the Governor, Himachal Pradesh was pleased to accord sanction for creation and filling in of temporary posts for the office of the Womens Commission as stated in the letter dated 28.10.1997 written by the Commissioner-cum-Secretary (Welfare) to the Government of Himachal Pradesh to the Director, Social and Womens Welfare, Himachal Pradesh. Thereafter, Notification dated 17.12.1997 was issued whereby the Governor of Himachal Pradesh constituted the H.P. State Commission for Women with immediate effect, of which the petitioner was appointed as Chairperson and two other ladies mentioned therein as Members. Thereafter, Notification dated 17.12.1997 was issued whereby the Governor of Himachal Pradesh constituted the H.P. State Commission for Women with immediate effect, of which the petitioner was appointed as Chairperson and two other ladies mentioned therein as Members. In pursuance to the Notification dated 17.12.1997, the petitioner wrote to the Chief Secretary to the Government of Himachal Pradesh on 3.1.1998 (Annexure P-C) that she has assumed the charge as Chairperson of the H.P. State Commission for Women 26.12.1997 and requested that she may be allotted Government accommodation as per her entitlement at the earliest. By another Notification dated 17.1.1998 (Annexure P-D) the Governor, Himachal Pradesh, ordered that Sh. Krishan Lal, HAS, Joint Director, Social and Women’s Welfare, Himachal Pradesh, will function as the Member Secretary to the H.P. State Commission for Women with immediate effect. But later on, by Notification dated 28.4.1998 (Annexure P-F) he was relieved and in his place the Undersecretary, H.P. Backward Classes Commission, Shimla, was given additional charge of the Member-Secretary of the H.P. State Commission for Women with immediate effect. In the meantime, it was also ordered by Notification dated 16.2.1998 (Annexure P-E) that the Chairperson of the H.P. State Commission for Women will function as the Head of Department. The petitioner has also placed on record communications dated 1.5.1998 and 6.5.1998 (Annexures P-G and P-H) exchanged between her and the Commissioner-cum-Secretary (Welfare) to the Government of Himachal Pradesh for taking accommodation on rent for her official residence at Shimla. But, before anything could materialize, the appointment of the petitioner as Chairperson was put to an end as a result of the impugned Notification dated 15.5.1998 (Annexure P-I). 4. The petitioner has assailed the Notification dated 15.5.1998 on a number of grounds, as stated in Paragraph 20 of the writ petition which will be examined hereinafter. 5. The first point urged on behalf of the petitioner is that Section 20 of the Act could not be invoked to rescind the Notification dated 17.12.1997 whereby the H.P. State Commission for Women was constituted and the petitioner was appointed as Chairperson thereof under Section 3 of Act No. 22 of 97. 5. The first point urged on behalf of the petitioner is that Section 20 of the Act could not be invoked to rescind the Notification dated 17.12.1997 whereby the H.P. State Commission for Women was constituted and the petitioner was appointed as Chairperson thereof under Section 3 of Act No. 22 of 97. Referring to a catena of case law of Supreme Court, the learned Counsel for the petitioner has argued that Section 20 of the Act, which is para materia to Section 21 of the General Clauses Act (Central), embodies only a rule of construction which could not be applied for rescinding the Notification dated 17.12.1997 whereby the H.P. State Commission for Women was constituted and the petitioner was appointed as its Chairperson under Section 3 of Act No. 22 of 97, as once appointment of Chairperson and non-official members is made, it will be for three years, if not otherwise specified, as provided under sub-section (1) of Section 4 of Act No. 22 of 97, during which period the Chairperson or non-official members may either resign as provided under sub-section (2) or be removed for the reasons given in sub-section (3) thereof. Since in Act No. 22 of 97 there is no provision for rescinding the Notification issued under Section 3 for constituting the H.P. State Commission for Women and appointing the Chairperson and nominated members. Section 21 of the Act could not be invoked to prematurely put an end to the H.P. State Commission for Women as well as the appointment of its Chairperson and the nominated Members. The learned Counsel has further argued that even though Act No. 22 of 97 had not come into force. Yet, the State Commission was within its powers to create posts for the office of the H.P. State Commission for Women vide Notification dated 28.10.1997 (Annexure P-A) and constitute the H.P. State Commission for Women as well as appoint its Chairperson and nominated Members under Section 21 of the Act, which is para materia to Section 22 of the General Clauses Act (Central) and thereafter, take further action in respect of declaring the Chairperson as Head of Department and taking steps for hiring accommodation for her official residence. The learned Counsel has also cited a number of judgments delivered by the Apex Court and various High Courts laying down the scope of Section 21 of the Act, Section 22 of the General Clauses Act (Central). 5A. On the other hand, the learned Advocate-General has vehemently urged that since Act No. 22 of 97 had not come into force, the constitution of the Commission and the appointment of the petitioner as its Chairperson and the other two ladies as nominated Members by Notification dated 17.12.1997 (Annexure P-B) was in anticipation and was to take effect from the date of coming into force of Act No. 22 of 97 by issuing a Notification under sub-section (3) of Section 1 thereof which has not been done so far, as such, the impugned Notification dated 15.5.1998 could be issued by invoking Section 21 of the Act and reference to the provisions of Act No. 22 of 97 which had yet to come into force was not necessary. According to the learned Advocate-General, the Notification dated 17.12.1997 constituting the H.P. State Commission for Women and appointing the petitioner as Chairperson though purported to have been issued under Section 3 of Act No.22 of 97, yet, in the absence of the said Act in force, the limitations prescribed in the said Act were not attracted for rescinding the said Notifications. It has also been pointed out that the constitution of the Commission and the appointment of the petitioner as Chairperson and other ladies as nominated Members was done in hot haste in order to accommodate the petitioner for extraneous reasons without examining the legal position. Even the tenure of the Chairperson and the nominated Members and terms and conditions of their appointment were not prescribed by taking necessary steps to make the Rules as provided under Section 21 of Act No. 22 of 1997. 6. In order to appreciate the respective contentions of the learned Counsel for the parties, first we will make a reference to Section 21 of the Act. [Section 22 of the General Clauses Act (Central)]. It is: “21. 6. In order to appreciate the respective contentions of the learned Counsel for the parties, first we will make a reference to Section 21 of the Act. [Section 22 of the General Clauses Act (Central)]. It is: “21. Making of rules or bye-laws and issuing of orders between passing and commencement of enactments.—Where by any Himachal Pradesh Act; which is not to come into force immediately on the passing thereof, a power is conferred to make rules or bye-laws, or to issue orders with respect to the application of the Act, or with respect to the establishment of any Court or office or the appointment of any Judge or Officer thereunder, or with respect to the person by whom, or the time when, or the place where, or the manner in which, or the fees for which, anything is to be done under the Act, then that power may be exercised at any time after the passing of the Act, but rules, bye-laws or orders so made or issued shall not take effect till the commencement of the Act." 7. This provision is very useful. It is an enabling provisions, its intent and purpose being to facilitate the making of rules, bye-laws and orders before the date of commencement of the enactment in anticipation of its coming into force. In other words, it validates the rules, bye-laws and orders made before the enactment comes into force provided they are made after the passing of the Act and are preparatory to the Act coming into force. The words "with respect to" prescribe the limit and scope of the power given by the section. Orders can only be issued with respect to time or the manner anything is to be done under the Act, and it does not authorize or empower the State Government to pass substantive orders against any person in exercise of the authority conferred by any provision of the Act. 8. Orders can only be issued with respect to time or the manner anything is to be done under the Act, and it does not authorize or empower the State Government to pass substantive orders against any person in exercise of the authority conferred by any provision of the Act. 8. In State of Rajasthan v. The Mewar Sugar Mills Ltd., Bhopalsagar, AIR 1969 S.C. 880, it was held by the learned Judges of the Supreme Court that by the application of Section 22 of the General Clauses Act, the rules published by the Rajasthan Government on March 28, 1955 in the Rajasthan Gazette must be held to be validity made in exercise of the rule-making power of the State Government but these had not taken effect till the enforcement of the Rajasthan Sales Tax Act, 1954 on 1st April, 1955. It was also held that Section 22 is a Section dealing not merely with construction but with interpretation also. In H.K. Swaranavar Nashar and others v. State of Mysore and another, AIR 1963 Mysore 49, the rules made five days before the coming into force of the Mysore Motor Vehicles (Taxation on Passengers and Goods) Act, 1961 were held valid by the High Court by invoking Section 22 of the General Clauses Act, which expressly confers on a rule-making authority, where there is an interregnum between the date of its enactment and date of enforcement, the authority to make rules even during that interregnum. Similarly, in Jiyajirao Cotton Mills Ltd. Birla Nagar, Gwalior v. Employees State Insurance Corporation through its Local Manager, Gwalior, AIR 1962 Madhya Pradesh 340, it was held that by virtue of the provisions of Section 22 of the General Clauses Act, the powers exercised for appointment of employees of the Insurance Court by the State Government before the coming into force of the Employees State Insurance Act shall be valid but the appointments made in exercise of the power would take effect only on the coming into force of the said Act. In this case, reliance was placed on Amarendra Nath Roy Chowdhury v. Bikash Chandra Ghose and another, AIR 1957 Calcutta 534. In this case, reliance was placed on Amarendra Nath Roy Chowdhury v. Bikash Chandra Ghose and another, AIR 1957 Calcutta 534. ~ In Kishore Singh v. Revenue Board, Rajasthan and another, AIR 1953 Rajasthan 37, the Notification issued before the coming into force of the Rajasthan Board of Revenue Ordinance, 1949 was held to be valid although it was to come into force only on coming into force of the Ordinance. 9. We need not multiply the case law interpreting and laying down the scope of Section 21 of the Act [Section 22 of the General Clauses Act, (Central)], as by now it is well settled that Section 22 of the General Clauses Act authorizes the Government to issue orders with respect to the application of any Act or with respect to the establishment of any Court or office or to the appointment of any Judge or Officer therein, after the passing of the Act. There is distinction between the commencement of the Act and the passing of it. Various orders which are required to bring a particular law into operation may be made in view of the provisions of Section 22 of the General Clauses Act, after the passing of the Act, though the commencement of the Act may be at a later stage but such orders take effect from the commencement of the Act. In view of this, it cannot be disputed that issuing of Notification dated 17.12.1997, constituting the Commission and appointing the petitioner as Chairperson and two other ladies as nominated members thereof, in anticipation of coming into force of Act No. 22 of 97, was within the powers of the State Government but the establishment of the Commission and appointment of the petitioner as its Chairperson and other two ladies as nominated members was to take effect from the date of coming into foce of Act No. 22 of 97 which has, admittedly, not happened as yet as no Notification appointing the date for coming into force of Act No. 22 of 97 has been issued and published in the official Gazette, as provided under sub-section (3) of Section 1 of Act No. 22 of 97. 10. 10. Therefore, the question arises whether the Notification dated 17.12.1997 purported to be issued under Section 3 of Act No. 22 of 97 could be rescinded by invoking Section 20 of the Act [Section 21 of the General Clauses Act (Central)]. To answer this question, we may refer to Section 20 of the Act, which is as under: "20. Power of make to include power to add to, amend, vary or rescind order, rules, or bye-laws.—Where, by any Himachal Pradesh Act, a power to issue Notifications or make orders, rules, or bye-laws is conferred, then that power includes a power, exercisable in the like manner and subject to the like sanction and conditions (if any), to add to, amend, vary or rescind any notification, orders, rules, or bye-laws so issued or made.” 11. This Section provides that if by any act or regulation, power to issue Notification, orders, rules or bye-laws is conferred, then that power includes a power to add to, amend, vary or rescind any notification, orders, rules bye-laws so issue. However, this power is to be exercised in the like manner and subject to the like sanction and conditions which existed when the notification, order, rule or bye-law was originally issued. This Section is of general application and it embodies a rule of construction which could be applied if the construction cannot be arrived at or determined with reference to the context or subject-matter of the particular statute. The question whether the provisions of this Section apply to a power conferred in an enactment has to be construed having regard to the scheme and object of the enactment as well as the context in which the power is conferred. The question whether the provisions of this Section apply to a power conferred in an enactment has to be construed having regard to the scheme and object of the enactment as well as the context in which the power is conferred. In State of Bihar v. D.N. Ganguly and others, AIR 1958 S.C. 1018; Gopi Chand v. Delhi Administration, AIR 1959 SC 609 and Lachmi Narain and others v. Union of India and others (1979) 2 SCC 953, cited by the learned Counsel for the petitioner, it is made clear that Section 21 of the General Clauses Act embodies only a rule of construction and the nature and extent of its application must be governed by the relevant statute which confers the power to issue the notification and, no doubt, the power to issue includes the power to rescind and it is always open to the Government to rescind the Notification but this power is subject to important qualification in the words "exercised in the like manner and subject to the like sanction and conditions.." In other words, the rule of construction embodied in Section 21 of the General Clauses Act can apply to the provisions of a statute only where subject-matter or context of such provision is in no way inconsistent with such application. (Please also see : State of Kerala and others v. K. G. Madhavan Pillai and others, (1988) 4 SCC 669 and State of Madhya Pradesh v. Ajay Singh and others, (1993) 1 SCC 302). 12. There can be no dispute to the interpretation given to Section 20 of the Act, (Section 21 of the General Clauses Act (Central) but this has no application in the present case as Act No. 22 of 97 has not come into force as yet and the limitation prescribed therein will not be applicable for rescinding the Notification dated 17.12.1997 which was validly issued in view of the provisions of Section 21 of the Act but had not become effective. In this view of the matter, the learned Advocate-General is right in urging that the Notification dated 17.12.1997 though purported to be issued under Section 3 of Act No. 22 of 97 was, in fact, issued under Section 2 1 of the Act, [Section 22 of the General Clauses Act (Central)] could be rescinded under Section 20 of the Act, (Section 21 of the General Clauses Act) as there is no limitation prescribed under Section 21 of the Act, (Section 22 of the General Clauses Act (Central). The learned Advocate-General is also right in urging that in none of the judgments referred to hereinabove the facts are nearer to the facts of the case in hand as in all those cases the notification/orders rescinded were issued under the Acts in force. In this view of the matter, we have no hesitation to hold that the Notification dated 17.12.1997 could be rescinded by the impugned Notification dated 15.5.1998 by virtue of which the constitution of the Commission and appointment of the petitioner as Chairperson and other two ladies as nominated members, were put to an end before these became effective. 13. In view of these findings, the other points argued by the learned Counsel for the petitioner that the appointment of the petitioner as Chairperson of the Womens Commission was put to an end in violation of the principles of natural justice, arbitrarily and in colourable exercise of power, do not arise and need not be discussed. Similarly, there is no question of promissory estoppel and legitimate expectations of the petitioner in view of our findings that her appointment had not become effective and could be put to an end before the coming into force of Act No. 22 of 97. We also need not refer to another point agitated before us that the principles of doctrine of pleasure do not apply to the present case for putting an end to the appointment of the petitioner as Chairperson of the H.P. State Commission of Women in view of our findings that her appointment had not become effective. Therefore, there is no question of either removing her or dispensing with her services. 14. In the result, there is no merit in this writ petition and it is rejected. Parties are left to bear their own costs. Petition dismissed.