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Himachal Pradesh High Court · body

2004 DIGILAW 27 (HP)

DIWAN CHAND VERMA v. STATE OF H. P.

2004-02-26

M.R.VERMA, V.K.GUPTA

body2004
JUDGMENT V.K. Gupta, C.J. (Oral) - Respondent No. 2 has been served. Affidavit of service has also been filed. However, no one appears on behalf of respondent No. 2. 2. The petitioner, who is a practicing Advocate of this Court, has filed this petition pro bono publco in which the following reliefs have been claimed: "(i) That the impugned Annexure-PC, dated 27th September, 2003 may be quashed and set aside; (ii) That the respondent State may be directed to appoint a Chairperson for the H.P. State Human Rights Commission strictly in conformity with the provisions of the Protection of Human Rights Act, 1993; (iii) Any other relief as may be deemed just and proper keeping in view the facts and circumstances of the case may also be granted in favour of the petitioner." 3. Notification No. HOM-C(F)6-1/94, dated 5th August, 2003, under Section 21(1) of the Protection of Human Rights Act, 1993 (1993 Act for short) was issued by the Governor of H.P. whereby the Himachal Pradesh State Human Rights Commission (State Commission for short) was constituted. For ready reference, the text of this Notification is reproduced as hereunder: "Government of Himachal Pradesh Department of Home-C-Section. No. HOM-C (F) 6-1/94 Dated Shimla-2, the 5th August, 2003 NOTIFICATION In exercise of the powers conferred under Section 21(1) of the Protection of Human Rights Act, 1993 (No. 10 of 1994), the Governor, H.P. is pleased to order the constitution of the Himachal Pradesh State Human Rights Commission with its headquarter at Shimla. Notification regarding appointment of Chairperson/Members for the said Commission, their terms and conditions shall be issued separately. By order Arvind Kaul Additional Chief Secretary (Home) to the Government of Himachal Pradesh. Endst. No. As above Dated Shimla-2, the 5th August, 2003." 4. As the second paragraph of the aforesaid Notification itself stipulated, Notification with respect to the appointment of Chairperson and Members of the Commission was to be issued separately. That was done almost a month-and-a-half later. By the issuance of Notification No. HOM-C(F)6-1/94, dated 17th September, 2003, which, for facility of ready reference, is reproduced hereunder, four persons were appointed as Members of the Commission. That was done almost a month-and-a-half later. By the issuance of Notification No. HOM-C(F)6-1/94, dated 17th September, 2003, which, for facility of ready reference, is reproduced hereunder, four persons were appointed as Members of the Commission. This notification reads thus: "Government of Himachal Pradesh Department of Home (C-Section) No. HOM-C (F) 6-1/94 dated Shimla-171002, the 17th September, 2003 Notification In continuation of this department notification of even number, dated 5.8.2003, the Governor, Himachal Pradesh in exercise of the powers conferred by sub-section (1) of Section 22 of the Protection of Human Rights Act, 1993 (Act No. 10 of 1994) and on the recommendations of the Committee constituted under Section 22 of the Act ibid, is pleased to appoint the following as Members of the Himachal Pradesh State Human Rights Commission:- 1. Honble Mr. Justice (Rtd.) A.L. Vaidya, former Chairman, HPAT. R/o Distt. Mandi, Himachal Pradesh. 2. Sh. B.S. Chauhan, Retired District and Sessions Judge, Tara View, Khalini, Shimla-2. 3. Sh. I.D. Bali, Advocate, H.P. High Court, Shimla-1. . 4. Smt. Chandra Prabha Negi, R/o Village Sangla, Distt. Kinnaur, Himachal Pradesh. The terms and conditions of service of the aforesaid members shall be issued separately. By order Arvind Kaul Additional Chief Secretary (Home) to the Government of Himachal Pradesh. Endst. No. As above Dated Shimla-2, the 17.9.2003." 5. Ten days later a third Notification, being Notification No. HOM-C(F)6-1/94, dated 27th September, 2003, was issued, in purported exercise of the powers purportedly vesting in the State Government under sub-section (1) of Section 25 of the 1993 Act, whereby Shri Justice A.L. Vaidya (Retired) (respondent No. 1 herein), who was appointed as a Member of the Commission vide Notification dated the 17th of September, 2003 (supra), was made to act as the Chairperson of the Commission "until the appointment of a Chairperson". This notification reads thus; "Government of Himachal Pradesh Department of Home (C-Section) No. HOM-C(F) 6-1/94 dated Shimla-171002, the 27th September, 2003 Notification In exercise of the powers conferred by sub-section (1) of Section 25 of the Protection of Human Rights Act, 1993 (No. 10 of 1994) the Governor, Himachal Pradesh is pleased to authorise Justice A.L. Vaidya (Rtd.), Member, HP. State Human Rights Commission to act as the Chairperson of the State Human Rights Commission until the appointment of a Chairperson. By order Arvind Kaul Additional Chief Secretary (Home) to the Government of Himachal Pradesh. Endst. State Human Rights Commission to act as the Chairperson of the State Human Rights Commission until the appointment of a Chairperson. By order Arvind Kaul Additional Chief Secretary (Home) to the Government of Himachal Pradesh. Endst. No. As above Dated Shimla-2, the 27th September, 2003." 6. The Protection of Human Rights Act, 1993, insofar as its long title suggests, is a piece of legislation to provide for the constitution of a National Human Rights Commission, State Human Rights Commissions in States, and Human Rights Courts, for better protection of human rights and matters connected therewith or incidental thereto. Chapters I to IV of 1993 Act deal with and relate to the National Human Rights Commission. Chapter V deals with State Human Rights Commission. Section 21 contained in Chapter V, insofar as it is relevant for our purpose stipulates about the constitution of a State Human Rights Commission and its composition. Sub-section (1) and (2) of Section 21 of 1993 Act read thus: "21. Constitution of State Human Rights Commission. - (1) A State Government may constitute a body to be known as the...... (name of the State) Human Rights Commission to exercise the powers conferred upon, and to perform the functions assigned to, a State Commission under this Chapter. (2) The State Commission shall consist of - (a) a Chairperson who has been a Chief Justice of a High Court; (b) One Member who is, or has been, a Judge of a High Court; (c) One Member who is, or has been, a district Judge in the State; (d) Two members to be appointed from amongst persons having knowledge of, or practical experience in, matters relating to human rights." 7. Under Sub-section (2) the power to appoint the Chairperson and the Members has been vested with the Governor of the State and this power has to be exercised by him after obtaining recommendation of the Committee constituting of the four persons mentioned in subsection (1) of Section 23, namely, Chief Minister of the State, Speaker of the Legislative Assembly, Minister Incharge of the Department of Home Affairs and the leader of the opposition in the Legislative Assembly Section 23 of the Act deals with the removal of the Members of the State Commission and Section 24 relates to the term of office of the Members was which we are not concerned in this petition. 8. 8. Section 25 of 1993 Act provides for a Member of the Commission to discharge the functions of the Chairperson in "certain circumstances". Section 25 being of most vital importance as far as this case is concerned, is reproduced" hereunder and reads thus : "25. Member to act as Chairperson or to discharge his functions in certain circumstances. - (1) In the event of the occurrence of any vacancy in the office of the Chairperson by reason of his death, resignation or otherwise, the Governor may, by notification, authorise one of the Members to act as the Chairperson until the appointment of a new Chairperson to fill such vacancy. (2) When the Chairperson is unable to discharge his functions owning to absence on leave "or otherwise, such one of the Members as the Governor may, by notification, authorise in this behalf, shall discharge the functions of the Chairperson until the date on which the Chairperson resumes his duties." 9. In the aforesaid factual backdrop and the above stated legal position, let us now consider and examine the issues, involved for consideration in this case. The core issue is very simple. It is as to whether Himachal Pradesh State Human Rights Commission has been validly constituted, by virtue of, or under Notification 5th August, 2003 read with Notifications dated 17th September, 2003 and 27th September, 2003 (supra), and/or whether Shri Justice A.L. Vaidya, respondent No. 2, has been validly entrusted with the responsibility of acting as the Chairperson of the Commission and whether he can, under the aforesaid factual backdrop and in the face of the aforesaid legal position, validly and rightfully be permitted to act as the Chairperson of the Commission. 10. 10. To get an insight into the background and circumstances under which the Commission was constituted and., the Members were appointed, as also the background and the circumstances leading to the issuance of the Notification dated 27th September, 2003 (supra), we summoned the original records of the State Government from out of which, as far as the relevant facts of this case are concerned, we culled out two opinions of the Law Department of the Government of Himachal Pradesh because in para-9 of the reply filed by respondent No. 1, a specific averment has been made that the issue with respect to the authorization of respondent No. 2 to act as the Chairperson of the Commission was examined by the Home Department in consultation with the law Department and it was only after the Law Department had advised and approved the proposal of the Home Department for authorizing one Member to act as Chairperson, the Notification dated 27th September, 2003 was issued by the State Government. To appreciate the true contours of this controversy, we reproduced here in below the relevant extract from Para-9 of the Reply, which reads thus: "9..........The matter regarding authorising one member to act as the Chairperson was examined by the-Home Department in consultation with the Law Department. It was only after having considered the provisions of Sections 9, 21 and 25 of the said Act in light of the present contingency, the Law Department advised/approved the proposal of authorising one member to act as Chairperson in terms of Section 25 of the Act. Accordingly, the impugned notification dated 27.9.2003 was issued........" 11. Because of the aforesaid specific averment, we wanted to see the opinion of the Law Department and it is in this background that we summoned the original record. Two opinions have been rendered by the Law Department, one on 26th July, 2003 and another on 26th September, 2003. For proper appreciation, we reproduce both the opinions. The opinion dated 26th July, 2003 read thus: "Discussed with the Secretary (Law). If approved the AD may be advised as under:- "Examined in the Law Department. The proposition raised by the AD at N-174 (ante) has been examined in the light of the provisions of Section 9, 21 and 25 of the Protection of Human Rights Act, 1993. The opinion dated 26th July, 2003 read thus: "Discussed with the Secretary (Law). If approved the AD may be advised as under:- "Examined in the Law Department. The proposition raised by the AD at N-174 (ante) has been examined in the light of the provisions of Section 9, 21 and 25 of the Protection of Human Rights Act, 1993. So far as the provisions of Section 25 of the Act is concerned these provisions cannot be applied to meet the situation posed by the AD because the words "any vacancy" proceeded with the word "occurrence" clearly implies that the vacancy as referred to said Section is relatable to subsequent event i.e. vacancy "which occurred after filling up the vacancy of Chairman initially, on the events specified in the Section itself. So far as the provision of Section 9 is concerned in the said provisions the word "existence of any vacancy" has been used. The word "vacancy" has not been defined either in the Act or in the General Clauses Act, 1897. In ordinary dictionary meaning the word "vacancy" has been defined to mean the State or condition of being vacant or un-occupied. The word "vacant" has further been assigned a meaning as containing nothing empty, unfilled. In the opinion of this department the existence of vacancy would mean when a vacancy has come up for filing up after decision is taken to constitute commission. The AD is advised that decision be taken to constitute a Commission and thereafter efforts be made to fill up the post of Chairperson and other Members. If alter making efforts no eligible person is found for the office of the Chairperson then the AD can constitute a commission with other Members minus Chairperson. In such a situation, the action of the AD will be cured by Section 9 and non-appointment of Chairperson will be covered by the expression existence of any vacancy, which will validate the proceedings of the Commission. The AD is advised to take further action in the matter accordingly." Sd/- (Purushottan Chaudhary) ALR-cum-US. (Law) to the Government of HP." Opinion dated 26th September, 2003 reads as under: "Government of Himachal Pradesh Law Department ADS File No. Home-C-F (6)-1/94/Loose Dy. No. 1523 dated 26.9.2003. Subject: - Appointment of Members to the State Human Rights Commission-votting of draft Notification. The AD is advised to take further action in the matter accordingly." Sd/- (Purushottan Chaudhary) ALR-cum-US. (Law) to the Government of HP." Opinion dated 26th September, 2003 reads as under: "Government of Himachal Pradesh Law Department ADS File No. Home-C-F (6)-1/94/Loose Dy. No. 1523 dated 26.9.2003. Subject: - Appointment of Members to the State Human Rights Commission-votting of draft Notification. The facts of the case may kindly be perused from N-1 to 12 of the ADs file. The AD has added on file a Notification under sub-section (1) of Section 25 of the Protection of Human Rights Act, 1993 authorise Justice A.L. Vaidya (Retired) Member to the State Human Rights Commission to act as Chairperson of the Commission. This Department has examined the draft notification under the relevant provisions of the Act. 12. If approved the AD may be advised as under: "Examined in the Law Department. This Department in its opinion dated 26.7.2003 has already tendered opinion in the context of provisions of Sections 9, 21 and 25 of the Protection of Human Rights Act, 1993 on File No. Home-C (F) 6-1/94-ll-Loose. If the words "in the event of occurrence": are interpreted in general connotations then it can logically and reasonably be understood to mean the vacancy as referred to in said section is relatable to subsequent event i.e. vacancy which occurred after filing up the office of Chairman initially. The word "vacancy" has not been defined either in the Act or in the General Clauses Act, 1897. However, the expression "Posts and Vacancy" came up for consideration before the Constitution Bench of the Supreme Court in case R.K. Sabharwal and others v. State of Punjab and others, AIR 1995 SC 1371, while examining the policy of reservation, the Hon’ble Supreme Court was pleased to observe that the expression "Posts and Vacancy" are often used in execution instructions. The words "Posts" means an appointment, job, office or employment. A position to which a person is appointed. "Vacancy" means an unoccupied post or office. The plain meaning of the two expressions make it clear that there must be a posit in existence to enable the vacancy to occur. There is no dispute that the State Government has already constituted a Commission vide notification dated 5.8.2003 and with the constitution of a Commission the post of Chairperson has come into existence in terms of Section 21 of the Act. There is no dispute that the State Government has already constituted a Commission vide notification dated 5.8.2003 and with the constitution of a Commission the post of Chairperson has come into existence in terms of Section 21 of the Act. If the word "vacancy" is understood in the context of meaning to the word "post and vacancy" assigned by the Constitution Bench then the word "vacancy" used in Section 25 can be given a meaning that the vacancy has occurred on the date when the Commission was constituted and the Governor can authorise one of the Member of the Commission to act as Chairperson after ensuring that sincere efforts have been made to fill up the post of Chairperson and no eligible person has been found as per the requirement of the Act. Thus if the Commission is constituted with the acting Chairperson by resorting to the remedy available in Section 25 then such a defect in the constitution of the Commission even from the initial stage is protected by Section 9 of the Act. This Department has made best efforts to re-concile the meaning to the word "vacancy" used in Section 25 and as understood in dictionary meaning and as explained by the Honble Supreme Court even though in different context in the matter of reservation of posts. In view of the above back ground the question of resorting to the provisions of Section 25 has been considered in this Department and in the opinion of this Department the existence of situation as explained above reasonably justify the State to resort to the provision of Section 25. Accordingly draft notification both- in English and Hindu versions is vetted. Sd/- (Pursuhottam Chaudhary) ALR-cum-US, (Law) to the Government of H.P." 13. Except appreciating and endorsing, in its true perspective, the first part of the opinion dated 26th July, 2003, which is in consonance with Section 25 of the 1993 Act, we are simply baffled by the contents of the two opinions, particularly second part of the opinion dated 26th July, 2003 insofar as it tries to invoke Section 9 of the 1993 Act and the entire opinion dated 26th September, 2003, because the confusion has been worse compounded by this opinion, especially as it flies in the face of the first part of that opinion dated 26th July, 2003 and is patently contrary to it. Actually we made z. sincere endeavor to understand and appreciate the logic and reasoning of the two opinions, especially the second part of the opinion dated 26th September, 2003 but to our total dismay, we found ourselves simply unable to graphs the pill and substance of this opinion. We could not appreciate, understand or follow even the basic, elementary edifice of this opinion. Be that as it may, the Law Department appears to have totally misinterpreted Section 25 of the Act in its second opinion as well as it patently and erroneously invoked Section 9 of the Act totally out of context Since Section 9 of the Act has been invoked by the Law Department, it would be advantageous to look at Section 9 of the Act which roads thus : "9. Vacancies, etc. not to invalidate the proceedings of the Commission. - No act or proceedings of the Commission shall be questioned or shall be invalidated merely on the ground of existence of any vacancy or defect in the constitution of the Commission." 14. We can summarily deal with Section 9 at this very stage and by simply observing that the existence of any vacancy or defect in the constitution of the Commission, as is mentioned therein, is relatable only to a stage which may arise after the constitution of the Commission, and not prior to its constitution. Only after the Commission has been validly constituted, at a stage subsequent to its valid constitution, if a vacancy has arisen or there creeps in some defect in its constitution, Section 9 saves the proceedings of the Commission from any vice of legal infirmity owning to any such vacancy or any defect in the constitution of the Commission. Section 9, therefore, had no applicability to the issues involved in this case (as the Commission had not been admittedly constituted, even on the own showing of the respondents, till the date the opinion was rendered) and it was, therefore, totally wrong on the part of the Law Department in invoking Section 9 of the Act in so far as the facts of the present case were concerned. 15. That brings us to the crore issue involved in this case which revolves around a plain reading of Section 25 of the Act read with primarily Section 21 of the Act. 15. That brings us to the crore issue involved in this case which revolves around a plain reading of Section 25 of the Act read with primarily Section 21 of the Act. First and for most, a very clear stipulation in Section 21 of the Act is suggestive of the fact that a State Government has to consist of mandatorily a Chairperson (who has been a Chief Justice of a High Court) and Members, whose categories, are mentioned in Clauses (b), (c) and (d) of sub-section(2) of. Section 21. The expression "the State Commission shall consist of" (Emphasis supplied) being mandatory in nature, conveys clear Legislative intent in unmistakable terms that the Commission would not come into being nor shall it be deemed to be in existence unless and until its Chairperson, in addition to the Members, has been validly appointed. The only person, who is eligible to be appointed as a Chairperson of the Commission, is one who has been a Chief Justice of a High Court. Factually it is undisputed that respondent No. 2 has not been a Chief Justice of the High Court. If Notifications dated 5th August, 2003 and 17th September, 2003 are read together, insofar as the appointment of the four persons mentioned in the Notification dated 17th September, 2003 as Members of the Commission are concerned, perhaps no defect can be found in the issuance of these two Notifications per se nor can any defect be found in the matter of appointment of the four persons as the Members of the Commission. To that extent, therefore, only to the limited extent of examining the correctness and validity of the aforesaid two Notifications and appointment of the four person a as Members of the Commission, the Notification dated 17th September, 2003 may have to be read in isolation in the sense that even though it does appoint four persons as Members of the Commission, by itself neither this Notification nor the earlier Notification dated 5th August, 2003 bring about the existence of the Commission as such because the existence of the Commission cannot be brought about except with the appointment of the Chairperson. The composition of the Commission is complete only after the Chairperson is appointed. The composition of the Commission is complete only after the Chairperson is appointed. The four persons appointed as Members of the Commission vide Notification dated 17th September, 2003 actually cannot constitute or be deemed to constitute the part of the Commission because even after their appointment as Members of the Commission, Commission cannot be considered to have come into being, awaiting as it does the appointment of the Chairperson. Only after the Chairperson is appointed, would the Commission be deemed to have come into existence and, therefore, on and from the moment the Chairperson is appointed, the four members earlier appointed would constitute as a part of the Commission because only from the stage onwards can be Commission be said to have been validly constituted and to come into existence. To that extent, therefore, we have no hesitation in holding that despite the issuance of the Notifications dated 5th August, 2003 and 17th September, 2003 the State Commission could not be and cannot be considered to have been validly constituted because the Chairperson was not appointed and the appointment of the Chairperson, a person who has been a Chief Justice of the High Court, being a mandatory requirement under law, a sine qua non to the coming into existence of the Commission the appointment of the four persons, mentioned in the Notification dated 17th September, 2003, was a ritual, an exercise, or at best an event which remained incomplete, directly linked as it was with the appointment of the Chairperson. . 16. This now brings us to the validity of the Notification dated 27th September, 2003. The State Government has invoked sub-section (1) of Section 25 of the Act in authorizing respondent No. 2 to act as the appellant of the Commission "until the appointment of a Chairperson" (Emphasis supplied). This Notification itself indicates and reveals the mind of the State Government admits that the Commission was constituted without a Chairperson as its head. This admission on the part of the State Government, in the Notification itself, clearly is suggestive of a situation that the Commission was not validly constituted. 17. Section 25 of the Act stipulates a situation where a Member can be asked to discharge the functions of the Chairperson "in certain circumstances". This admission on the part of the State Government, in the Notification itself, clearly is suggestive of a situation that the Commission was not validly constituted. 17. Section 25 of the Act stipulates a situation where a Member can be asked to discharge the functions of the Chairperson "in certain circumstances". Circumstances have been enumerated in sub-section (1) of Section 25 of the Act when it mentions that in the event of the occurrence of any vacancy in the office of the Chairperson "by reason of his death, resignation or otherwise, the Governor may authorize a Member to act as the Chairperson (Emphasis supplied). The occasion to authorize a Member to act as the appellant is relatable to the occurrence of the vacancy in the office of Chairperson by reason of the incumbents death, resignation or otherwise. The expression "otherwise" following "death" and "resignation" has to be read ejusdem generis and therefore, the since qua non of authorizing a Member to act as the Chairperson is the occurrence of a vacancy and the vacancy concur either by reason of death or resignation or some identical or similar situation. In any event, the question of occurrence of a vacancy either by death or by resignation or by some, similar or identical situation can arise only if the Chairperson had originally been appointed. In the present case, since no Chairperson was at all appointed, invoking Section 25(1) of the Act and authorizing a Member of the Commission, who admittedly was not eligible to be appointed as the Chairperson, was totally against the letter and spirit of Section 25 and other provisions of the Act. .18. Mr. M.S. Chandel, learned Advocate General, appearing for respondent No. 1, has submitted before us that the State Government under a compelling circumstance had to resort, to-this stratagem of authorizing respondent No. 2 to act as the Chairperson because the State Government could not find a former Chief Justice who would be available to be appointed as the Chairperson of the Commission. Whether a former Chief Justice was available or not, the fact remains that in the absence of the appointment of a Chairperson, the Commission could not be deemed to have been properly constituted and similarly without the Chairperson having validly been appointed in terms of Sections 21 and 22 (both read together), the vacancy not having thus occurred, Section 25 could not have been invoked. Respondent No. 2, therefore, could not have been authorized to act as the Chairperson of the Commission. 19. Based on the aforesaid reasons, therefore, we have no doubt in our minds that the Commission, right from 5th August, 2003 uptil date, has not been validly constituted and similarly we also have no doubt in our minds that respondent No. 2 could not have been authorized to act as the appellant of the Commission. 20. This petition had a limited scope. The only point which fell for our consideration, as is manifestly clear from the aforesaid discussion, is as to whether without appointing the - Chairperson can the Commission be deemed ever to have come into existence and similarly could respondent No. 2 be validly entrusted the responsibility of acting as a Chairperson of the Commission. We have dealt with both these questions and given our answers to them. No other point fell for our consideration in this case, not the least the validity or correctness of the two Notifications dated 5th August, 2003 and 17th September, 2003. Since the validity or correctness of these two notifications did not fall for our consideration, we have not pronounced any views on these two notifications except by way of some passing references in the body of this judgment wherein we have made certain observations which prima facie reveal that perhaps none of these two notifications suffer from any vice or invalidity. Therefore, we have no hesitation in holding and observing that insofar as the notification dated 17th September, 2003 is concerned, this read with notification dated 5th August, 2003 are intact and should not be construed to have been upset by us in any manner but at the risk of reiteration, we hasten to add that despite the nomination/appointment of the four Members, their role or function as Members of the Commission does not start so long as the Commission is not validly constituted unless its Chairperson is appropriately appointed. Actually these four persons, till the Commission is properly and validly constituted, do not even acquire the status of Members. At best, they can be treated as Members - designate, and nothing more. 21. Actually these four persons, till the Commission is properly and validly constituted, do not even acquire the status of Members. At best, they can be treated as Members - designate, and nothing more. 21. Accordingly, we issue a declaration to the aforesaid effect and direct that until, in the light of the aforesaid observations, the State Commission is properly and validly constituted, .neither, respondent No. 2 shall act as the Chairperson of the State Commission nor the State Commission shall be deemed to have come into existence. 22. All the necessary consequences shall follow. 23. Petition allowed but without any order as to costs. -