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Gauhati High Court · body

2001 DIGILAW 116 (GAU)

F. Lalthanzuala v. State of Mizoram and others

2001-04-27

D.BISWAS

body2001
Judgement The short question involved in this petition is whether the nominated Chairman of the Mizoram Agricultural Marketing Corporation Limited could be removed from office without notice at any time applying the "Doctrine of Pleasure." 2. I have heard Mr. C. Lalramzauva, learned counsel for the writ petitioner and also Mr. T. Valphei, learned A.A.G. 3. The petitioner is an elected member of the Mizoram State Assembly. By an order issued on 16th February, 1999, he was appointed as a Director in the Board of Directors and also as Chairman of the Mizoram Agricultural marketing corporation Limited with immediate effect and until further orders. Thereafter, in supersession of this notification, another notification was issued on 2nd December, 99 appointing the writ petitioner and others as Directors of the concerned Board with the petitioner as the Chairman. The petitioner continued in office as such till 20th July, 2000 when another notification was issued by the Governor replacing the writ petitioner by the private respondent. Being aggrieved, the petitioner has challenged the notification dated 20th July, 2000 on the ground that the petitioner could not be removed from office without an opportunity to show cause against the proposed removal. 4. Article 98 of the Memorandum of Association in so far it relates to the case at hand is quoted below: "98. (a) The Directors shall be appointed by Government and shall be paid such salary and/or allowances as the Government may, from time to time, determine. (b) The following shall be the first Directors of the Company :- ......................................................................................................................................................... ......................................................................................................................................................... ......................................................................................................................................................... (d) Government may, from time to time, appoint from amongst the Directors, a Chairman, a Managing Director, a whole time Director, or any Additional Managing Director, and determine the period for which they or any of them will hold their respective offices ......................................................................................................................................................... ......................................................................................................................................................... (g) Government shall have the power to remove any Director including the Chairman, the Managing Director or the whole time Director from office at any time in their absolute discretion." 5. It would appear from the clause (d) above that a Director of the Board is eligible for appointment as Chairman for a period to be determined by the Government. Clause (g) for removal of any Director including the Chairman from office at any time in the absolute discretion of the Government. 6. It would appear from the clause (d) above that a Director of the Board is eligible for appointment as Chairman for a period to be determined by the Government. Clause (g) for removal of any Director including the Chairman from office at any time in the absolute discretion of the Government. 6. There is no dispute that the petitioner was appointed as Chairman in the absolute discretion of the Government on political consideration. He is not the elected Head of the Board having mandate of the people behind him. The post of Chairman of a Board of a State Corporation is also not a post within the meaning of Article 309 of the Constitution of India. Therefore, the appointment to the post of chairman and removal therefrom are matters of pleasure of the governor. Hence, his replacement by the private respondent obviously has been made by applying the doctrine of Pleasure. 7. The learned counsel for the petitioner argued at length to drive home his contention that even in a case of this nature the petitioner having legitimate expectation was entitled to an opportunity to show cause. In this connection he has relied upon a Judgment of the Apex Court delivered in Punjab Communications Ltd. v. Union of India, reported in (1999) 4 SCC 727 : ( AIR 1999 SC 1801 ). This Judgment was delivered on a different context. The ratio therein cannot be the panacea in this case. 8. Mr. Valphei, learned A.A.G. pointed out that though the Doctrine of Legitimate Expectation has become a part of our law, in the given facts and circumstances of the case the said Doctrine cannot be invoked in the instant case since the petitioner was nominated by the State Govt. to hold the post of Chairman in exercise of the Doctrine of Pleasure. According to learned counsel, it is not a service within the meaning of Article 309 and, as such, removal without notice cannot be treated as violative of the provisions of the Constitution. In support of this contention, he has placed reliance on a decision of the Supreme Court in Om Narain Agarwal v. Nagar Palika, Shahjahanpur (1993)2 SCC 242 : ( AIR 1993 SC 1440 ). In the said Judgment, in para 11 and 12. In support of this contention, he has placed reliance on a decision of the Supreme Court in Om Narain Agarwal v. Nagar Palika, Shahjahanpur (1993)2 SCC 242 : ( AIR 1993 SC 1440 ). In the said Judgment, in para 11 and 12. the Apex Court observed as follows :- "11.....................................................................................................................................................................................................The nominated members do not have the will or authority of any residents of the Municipal Board behind them as may be present in the case of an elected member. In case of an elected member, the legislature has provided the grounds in S.40 of the Act under which the members could be removed. But so far as the nominated members are concerned, the legisiature in its wisdom has provided that they shall hold office during the pleasure of the Government. It has not been argued from the side of the respondents that the legislature had no such power to legislate the fourth proviso. The attack is based on Articles 14 and 15 of the Constitution. 12. In our view, such provision neither offends any Article of the Constitution nor the same is against any "public policy or democratic norms enshrined in the Constitution. There is also no question of any violation of principles of natural justice in not affording any opportunity to the nominated members before their removal nor the removal under the pleasure doctrine contained in the fourth proviso to S.9 of the Act puts any stigma on the performance or character of the nominated members. It is done purely on political consideration." 9. In addition, Mr. Valphei also referred to a Division Bench judgment of the Allahabad High Court in Anil Kumar Singh Yadav v. Union of India, AIR 1995 All 13 . It is considered relevant to quote herein below the following extract from the aforesaid judgment ;- "19. In a recent pronouncement in State of U.P. v. U.P. State Law Officer Association ( AIR 1994 SC 1654 at p. 1662) (supra) (sic) vide para 19 of the Judgment. Their Lordships of the Apex Court held that: "In the absence of guidelines, the appointments may be made purely on personal or political considerations, and be arbitrary. This being so, those who came to be appointed by such arbitrary procedure, can hardly complain if the termination of their appointment is equally arbitrary. Those who come by the backdoor have to go by the same door." 20. This being so, those who came to be appointed by such arbitrary procedure, can hardly complain if the termination of their appointment is equally arbitrary. Those who come by the backdoor have to go by the same door." 20. The aforesaid observations of the Apex Court remind us the doctrine of "Pleasure", Latin phrase "Pithly Durante Bene Placiato." Connotes the principles of "Pleasure", No doubt, where the appointment is statutory, the Statute governs or regulates the appointment, and the application of the doctrine of pleasure is subject to the restriction imposed by Article 310(2) and 311(1)(2) of the constitution of India, and therefore before termination order of a civil servant procedure must be complied with as laid down in Article 311 of the Constitution and the Rules framed under Article 309 of the Constitution of India. So that field that is covered by Article 311 of the Constitution, would be excluded from the operation of the absolute doctrine of "Pleasure." 21. But in the present era of expanding horizon where administratively variety of appointments are made and "Pleasure" is not controlled by any statutory rule or by any guidelines, but the appointment is purely on personal or political consideration certainly such appointments may be done away by applying the doctrine of "Pleasure". Thus, in such termination the field is covered by the operation of the absolute doctrine of "Pleasure". 10. The above decisions make it clear that when an appointment is made purely on political consideration, it shall be deemed to have been made in exercise of the absolute discretion of the Government. There is no dispute in the instant case that the appointment of the writ petitioner as Chairman was made on political consideration only. This otherwise means that the appointment was made in the absolute discretion of the Government and the petitioner was holding office at the pleasure of the Government, The provisions of Clause (g) of Article 98 carries with it the element of pleasure as it provides for removal in the absolute discretion of the Government. The petitioner has no reason to feel aggrieved, specially when such removal/ replacement does not attach any stigma, 11. In the result, the writ petition is dismissed. No costs. Petition dismissed.