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2003 DIGILAW 259 (HP)

MALVIKA PATHANIA v. STATE OF H. P.

2003-09-02

K.C.SOOD, V.K.GUPTA

body2003
JUDGMENT V.K. Gupta, CJ.—Under challenge n this petition is Notification No. WLF-F(2)-2/88-III dated 6th August, 2001, whereby in purported exercise of the statutory power vesting under Rule 4(3)(a) of H.P. State Commission for Women (Salaries and Allowances and Conditions of Service of Chairperson and Members) Rules, 1999 ("1999 Rules" for short), the petitioner has been removed from the office of Chairperson of H.R State Commission for Women (Commission, for short) and in her place, in purported exercise of power vesting in the State Government under Section 4(1) of H.R State Commission for Women Act, 1996 ("Act" for Short) and Rule 4(2) of 1999 Rules, respondent No. 3 has been appointed as the Chairperson of the Commission for a period of three years with immediate effect, i.e., with effect from the date of issue of aforesaid Notification on 6th August, 2003. 2. On 27th June, 2001 the petitioner was appointed as Chairperson of the Commission with effect from that date itself, for a period of one year on the terms and conditions as have been specified in 1999 Rules. On 18th June, 2002, the period of appointment of the petitioner as Chairperson of the Commission was extended upto 26th June, 2004, again on the terms and conditions as have been specified in 1999 Rules. For facility of reference, both the aforesaid Notifications, one dated 27th June, 2001 and the other of 18th June, 2002, the first appointing the petitioner originally as Chairperson of the Commission for a period of one year and the second extending her period as Chairperson uptil 26th June, 2004 are reproduced hereunder and read thus:—- "Government of Himachal Pradesh Department Social & Women Welfare. No. WLF-F(2)-2/88-III Dated Shimla-171002, the 27th June, 2001. NOTIFICATION In pursuance of Article 3(1) of the Himachal Pradesh State Commission for Women Act, 1996 (Act No. 22/97), the Governor, Himachal Pradesh is pleased to appoint Smt. Malvika Pathania, Gobind Bhawan, Village & Post Officer Jassoor, District Kangra, Himachal Pradesh as Chairperson of the Himachal Pradesh State Commission for Women with immediate effect for a period of one year on the terms & conditions specified in this Department Notification No. WLF-A(3)-2/97 dated 28.9.1999. By order Sd/- (Harinder Hira) Commissioner- cum-Secretary (Welfare) Government of Himachal Pradesh." "Government of Himachal Pradesh Department Social & Women Welfare No. WLF-F(2)-2/88-III Dated Shimla 171002, the 18th June, 2002. By order Sd/- (Harinder Hira) Commissioner- cum-Secretary (Welfare) Government of Himachal Pradesh." "Government of Himachal Pradesh Department Social & Women Welfare No. WLF-F(2)-2/88-III Dated Shimla 171002, the 18th June, 2002. NOTIFICATION In continuation of this Department notification of even number and in pursuance of Section 4(1) of the Himachal Pradesh State Commission for Women Act, 1996 (Act No. 22/97) and under Rule 4(2) of Himachal Pradesh State Commission for Women (Salaries and Allowances and Condition of Service of Chairperson and Members) Rules, 1999, the Governor, Himachal Pradesh is pleaded to extend the period of Smt. Malvika Pathania, Gobind Bhawan, Village & Post Officer Jessoor, District Kangra, Himachal Pradesh as Chairperson of the Himachal Pradesh State Commission for Women upto 26.6.2004 on the terms and conditions specified in this Department Notification No. WLF-A(3)-2/97, dated 28.9.1999. By order T.G. Negi Secretary (Welfare) Government of Himachal Pradesh." 3. 1996 Act was enacted by the Himachal Pradesh State Legislature with a view to constitute a State Commission for Women and to provide for matters connected therewith or incidental thereto. The preamble of the Act states that whereas it was expedient to provide for the constitution of the Commission with the aim of furthering the fundamental rights available and guaranteed to women and with respect to women and to give effect to the directive principles of State Policy as enshrined under Articles 38, 39, 39-A and 42 of the Constitution and to improve the status and dignity of women in the society etc. etc., it was considered necessary to constitute a State Commission for Women. Section 3 of the Act stipulated the constitution of the Commission to exercise the powers conferred under the Act. Sub-section (2) of Section 3, inter alia, provided for the composition of the Commission, which apart from some Members (with which we are not concerned in this case), the Commission was to consist of a Chairperson, who would be an eminent woman committed to the cause of women. Section 4(1) with which we are directly concerned in this case, provides for the appointment of a Chairperson and non-official member and stipulates that they shall hold office for such period not exceeding three years, as may be specified by the State Government. Section 4(1) with which we are directly concerned in this case, provides for the appointment of a Chairperson and non-official member and stipulates that they shall hold office for such period not exceeding three years, as may be specified by the State Government. Sub-section (3) of Section 4 lays down that the Chairperson or member of the Commission may be removed from office if one of the grounds as specified in clauses (a) to (f) were in existence. Proviso to sub-section (3) states that no person shall be removed under sub-section (3) until she has been given a reasonable opportunity of being heard in the matter. Since Section 4 would fall for our consideration, it is advantageous to reproduce the same:— "4(1) The Chairperson and every non-official member shall hold office for such period not exceeding three years as may be specified by the State Government. (2) The Chairperson or a non-official member may, at any time, by writing and addressed to the State Government, resign from the office of the Chairperson or of the office of the member. (3) Notwithstanding anything contained in sub-section (1), the State Government may remove a person from the office of the Chairperson or member if, that person— (a) becomes an undischarged insolvent; (b) is convicted and sentenced to imprisonment for an offence which, in the opinion of the State Government, involves moral turpitude; (c) becomes of unsound mind and stands so declared by a competent court; (d) refuse to act or becomes incapable of acting; (e) is, without obtaining leave of absence from the Commission, absent from three consecutive meetings of the Commission; or (f) in the opinion of the State Government, has so abused the position of the Chairperson or member as to render that persons continuance in office detrimental to the public interest or is otherwise unfit or unsuitable to continue as such Chairperson or member: Provided that, no person shall be removed under this clause until that person has been given a reasonable opportunity of being heard in the matter." 4. Section 21 of the Act gave to the State Government the power to make rules for carrying out the provisions of the Act and it is in the exercise of this power, that 1999 Rules were made by the Government of Himachal Pradesh. We are concerned in this case only with Rule 4, which reads thus: "4. Section 21 of the Act gave to the State Government the power to make rules for carrying out the provisions of the Act and it is in the exercise of this power, that 1999 Rules were made by the Government of Himachal Pradesh. We are concerned in this case only with Rule 4, which reads thus: "4. Tenure of office.—(1) Any person falling within th ecategories specified in sub-section (2) of Section 3 of the Act and who has not attained the age of sixty-five years may be nominated as the Chairperson or as a Member. (2) The Chairperson and every member shall, i^nless removed from office under sub-section (3) of Section 4 of the Act, hold office for a period not exceeding three years, or till the age of sixty-five years, whichever is earlier. (3) Notwithstanding anything contained in sub-rule (1)— (a) a person who has held the office of Chairperson shall not be eligible for re-nomination, and (b) a person who has held the office of a Member shall not be eligible for re-nomination as a Member. (4) If the Chairperson is unable to discharge his/her functions owing to illness or other incapacity the State Government shaH nominate any other Member to act as Chairperson and the Member so nominated shall hold office of Chairperson until the Chairperson resumes office. (5) If a vacancy occurs in the office of the Chairperson by reason of death or resignation, the State Government shall nominate any other Member to act as Chairperson and the Member so nominated shall hold office of the Chairperson until the vacancy is filled up by fresh nomination under sub-section (4) of the Section 4 of the Act." 5. In the light of the aforesaid factual matrix and the exposition of the provisions of the Act as well as 1999 Rules, let us now examine precisely as to what is the grievance of the petitioner. 6. In the light of the aforesaid factual matrix and the exposition of the provisions of the Act as well as 1999 Rules, let us now examine precisely as to what is the grievance of the petitioner. 6. The petitioners precise grievance is that Section 4(1) of the Act as well as Rule 4(2) of 1999 Rules guaranteed to the petitioner a tenure of three years for holding the office of the Chairperson of the Commission and since, in furtherance of the aforesaid two provisions and by exercising the power vesting in the State Government under the aforesaid two provisions, the petitioner was given extension on 18.6.2002 for a period upto 26.6.2004, her removal as Chairperson of the Commission prematurely on 6.8.2003 vide impugned notification of the same date is illegal and contrary to the Act and the Rules and violates her right of holding this office uptil 26.6.2001, i.e. for a period of three years commencing from 27.6.2001, the date on which she had been appointed for the first time. 7. The contention of the respondents on the other hand, as is also borne out from the receitals in the impugned notification, is that the explicit language employed in Rule 4(3) of 1999 Rules clearly stipulates that a person once appointed as Chairperson is not eligible for re-nomination and, therefore, at the end of her specified term of one year as contained in the notification dated 27.6.2001 (supra), the Government had no power, authority or jurisdiction to issue the notification dated 18.6.2002 (supra) because by the issuance of this notification, the Government renominated the petitioner, for which she was not eligible, even though in this notification what is mentioned is "extension of the period." 8. For facility of reference, we reproduce notification dated 6.8.2003, which roads thus: "Whereas Smt. Malvika Pathania, Govind Bhawan Village and P.O. Jassoor Distt. Kangra was appointed as Chairperson of the H.P. State Commission for Women for a period one year vide the department notification of even number dated 27.6.2001 and her tenure as Chairperson of H.P. State Commission for Women was extended vide this department notification of even number dated 18.6.2002 for a period of 3 years i.e. upto 26.6.2001. Whereas under Rule 4(3)(a) of H.P. State Commission for Women (Salaries and Allowances and Conditions of Services of Chairperson) Rules, 1999, a person who has held the office of Chairperson is not eligible for renomination. Whereas under Rule 4(3)(a) of H.P. State Commission for Women (Salaries and Allowances and Conditions of Services of Chairperson) Rules, 1999, a person who has held the office of Chairperson is not eligible for renomination. Whereas Smt. Malvika Pathania was appointed initially for a term of one year vide notification dated 27.6.2001 referred to above and her tenure cannot in this case exceed one year, therefore, extension of her tenure vide notification dated 18.6.2002 for a further period of three years tentamounts to renomination as use of word "extension" cannot change the prohibition regarding renomination under Rule 4(3)(a) ibid. Now, therefore, in view of the explicit provision under Rule 4(3)(a) of the H.P. State Commission for Women (Salaries & Allowances and Conditions of Service of Chairperson and Members) Rules, 1999 and Government of Himachal Pradesh in exercise of the powers conferred is pleased to remove Smt. Malvika Pathania from the office of Chairperson of H.P. State Commission for Women. The Governor, Himachal Pradesh, in exercise of the powers conferred under Section 4(1) of the Himachal Pradesh State Commission for Women Act, 1996 (Act No? 22 of 1997) and Rule 4(2) of Himachal Pradesh State Commission for Women (Salaries and Allowances and Condition of Services of Chairperson and Members) Rules, 1999, is further pleased to appoint Smt. Viplove Thakur, VPO Jandaur, Tehsil Jaswan, District Kangra, Himachal Pradesh as Chairperson of the Himachal Pradesh State Commission for Women for a period of 3 years with immediate effect as per terms and conditions specified in this Department Notification No. WLF A(B)2/97 dated 28.9.1999/ 9. This case does present to us a situation, where we have to harmoniously construct the legal provisions contained in Section 4(1) of the Act and Rule 4(3)(a) of 1999 Rules. Whereas, Section 4(1) of the Act does clearly suggest that the Chairperson shall hold the office for "such period not exceeding three years", Rule 4(3)(a) lays down that a person who has "held" the office of the Chairperson shall "not be eligible for renomination". The non-eligibility to renomination for holding the office of Chairperson, therefore, as has been provided for in Rule 4(3)(a) has to relate to the provisions contained in Section 4(1) of the Act. Now Section 4(1) clearly stipulates that a Chairperson shall hold office for such period "not exceeding three years", as may be "specified by the State Government". The non-eligibility to renomination for holding the office of Chairperson, therefore, as has been provided for in Rule 4(3)(a) has to relate to the provisions contained in Section 4(1) of the Act. Now Section 4(1) clearly stipulates that a Chairperson shall hold office for such period "not exceeding three years", as may be "specified by the State Government". The word "specified" has not been defined anywhere in the Act or in 1999 Rules. In the absence of any definition of this word either in the Act or 1999 Rules, therefore, we have to take and apply its normal grammatical meaning cognately and what we find by invoking this golden rule, the meaning of the words "as may be specified by the State Government in the appointment order issued appointing a person as the Chairperson of the Commission." In other words, what it means and should mean, is that whenever the State Government" by being given their naturalmeaning, have to be read to mean "as may be specified by the State Government issues an order or notification appointing a person as Chairperson of the Commission, in that order or notification it has to also specify that such person shall hold office for a specific period, of course, such period cannot exceed three years, as is the mandate of the Section. As is seen in the present case, the State Government by issuance of the notification dated 27.6.2001 had specified "one year" as the period for which the petitioner was to hold the office of the Chairperson of the Commission. If one understands the aforesaid meaning of Section 4(1) in the light ot the interpretation that we have given, one would have no difficulty in appreciating and understanding the true import of Rule 4(3)(a) because the irresistible conclusion that has to be drawn and arrived at, is that Rule 4(3)(a), when it talks of in-eligibility for renomination, relates this ineligibility to "having held the office of Chairperson". It was open to the State Government at the initial stage, in the first instance to have specified the period of even three years for appointment of the petitioner as the Chairperson but since it chose and specified the period to only "one year" the petitioner, by virtue of Rule 4(3)(a) of 1999 Rules made herself ineligible for renomination at the expiry of the said specified period of one year. Any other meaning or interpretation given to.Rule 4(3)(a) in the light of Section 4(1) can lead to absurd consequences, unwarranted by the spirit of the Act as well as legislative intent. We are saying so because, there can be situations where a person can be appointed as Chairperson of the Commission by specifying the period as full three years and yet she may claim or ask for her renominciiion. Actually, a plain reading of Section 4(1) of the Act suggests to us that even though the legislature has used the word "as may be specified by the State Government" the clear legislative intent is that in every order appointing a Chairperson, the State Government is obliged to specify the period for which the appointment has to remain valid and that being the case, at the end of the period, that person is not eligible for being renominated on this office. 10. We are similarly not impressed by the argument of Mr. Kuldeep Singh, learned Sr. Advocate that there is any inconsistency between Rule 4(3)(a) and Section 4(1). On a harmonious construction and by properly reconciling these two provisions we find that Rule 4(3)(a) is not at all repugnant to Section 4(1). When we read the provision in Rule 4(3)(a) that "a person who has held the office of Chairperson shall not be eligible for renomination" with the explicit language employed in Section 4(1) that the Chairperson........... "shall hold office for such period not exceeding three years as may be specified by the State Government" we find that the expression "not exceeding three years" read with the expression "as may be specified" clearly create a bar that a person cannot be appointed as a Chairperson of the Commission for a period exceeding three years and the period for which such a person has to be appointed has to be specified by the State Government in the appointment order. This stipulation, if properly construed in the spirit of the language of Section 4(1) would lead us to a harmonious construction that Rule 4(3)(a) actually represents and reflects the spirit of Section 4(1) that a person who has held the office for any specified period for which she was appointed, would not be eligible for renomination. According to us, therefore, there is no repugnancy between Rule 4(3)(a) and Section 4(1). 11. According to us, therefore, there is no repugnancy between Rule 4(3)(a) and Section 4(1). 11. The argument that by the Notification dated 18th June, 2002 the petitioner was not renominated and that only extension was granted in her tenure, does not appeal to us because the words "extension" and "renomination", as used in the context of Section 4(1) and Rule 4(3)(a) are synonymous in their intent and applicability. Even though in the notification dated 18.6.2002 undoubtedly the petitioner was granted extension in her tenure, what it actually meant was renomination. We are saying also because neither in the Act nor in 1999 Rules, there is any provision for grant of extension in the tenure of a person originally appointed as a Chairperson for any specified period. 12. Based on our aforesaid discussion, therefore, we have no hesitation in holding that the reasons assigned by the respondents for the removal of the petitioner are wholly justified and totally in accordance with the spirit of the Act as well as the Rules. 13. In the result, the petition fails and is accordingly dismissed, but without any order as to costs. CM.P. 1948/2003 14. In view of the dismissal of the writ petition, the present application is also dismissed. Petition dismissed.