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2004 DIGILAW 62 (HP)

ROMESH CHANDER v. STATE OF H. P.

2004-04-01

K.C.SOOD, V.K.GUPTA

body2004
JUDGMENT V.K. Gupta, CJ.—The petitioners who at the relevant time were Members of Himachal Pradesh State Commission for Backward Classes ("Commission" for short), have filed this petition under Article 226 of the Constitution of India seeking the following reliefs : "(a) To quash Annexure P-12, Notification dated the 14th August, 2003 published on the 16th August, 2003 bearing No. Kalyan-Ch. (10)-1/99-Loose. To quash Annexures P-13 to P-15 whereby the present petitioners have been removed as members of respondents No. 2 Commission and to quash Annexure P-16 whereby the present respondents No. 3 to 5 have been appointed as Members of the said Commission. (b) To direct respondent No. 1 to carry out recommendations made in P-6, P-7, P-8, P-9, P-10 and P-11 being matter of great importance affecting the rights of backward classes and to fulfill the mandate of the Supreme Court. (c) To call for the records of the respondents 1 and 2 pertaining to the matters relating to the present case. (d) To pass any order as may be deemed fit by this Honble Court in favour of the petitioners and against the respondent in the peculiar facts and circumstances relating to the case. (e) Allow cost of the petition in favour of the petitioners and against the respondents." 2. Vide Notification No. Kalyan-Ch(10)-6/90-III dated September 30, 1993, pursuant to the judgment dated November 16, 1992 passed by the Supreme Court of India in Writ Petition No. 930 of 1990; Indra Sawhney and others v. Union of India and others, the Government of Himachal Pradesh issued Himachal Pradesh State Commission for Backward Classes Order, 1993 ("1993 order" for short) whereby it constituted the commission to exercise the power conferred upon it and to perform the functions assigned to it under 1993 Order in accordance with the direction given by the Supreme Court in the aforesaid case. Undoubtedly, 1993 Order is a pure and simple Executive Order, in the form of an Administrative Instruction and purportedly it has been issued in the purported exercise of the power vested in the State Government under Article 16(4) of the Constitution of India. 3. Clause 4(1) of 1993 Order, as it originally stood, read as under: "4(1) Every member shall hold office for a term not exceeding three years at a time from the date he assumed office." (Emphasis supplied) 4. 3. Clause 4(1) of 1993 Order, as it originally stood, read as under: "4(1) Every member shall hold office for a term not exceeding three years at a time from the date he assumed office." (Emphasis supplied) 4. Sub-clause (3) of Clause 4 of 1993 Order which gave the power to the State Government to remove a person from the Office of Member reads thus : "(3) The State Government shall remove a person from the Office of 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 to declared by a competent court; (d) refuses 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) has, in the opinion of the State Government; or so abused the position of Chairperson or Member as to render that persons continuance in office detrimental to the interests of backward classes or the public interest: Provided that no person shall be removed under this clause until that person has been given an opportunity of being heard in the matter." 5. As is, therefore, evident, sub-clause (3) (supra) permitted the State Government to remove a person from the Office of a Member if that person incurred any disqualification or suffered from any disability as is mentioned in clauses (a) to (f) thereof and also that before removing such a person he has to be given an opportunity of being heard in the matter. 6. Various amendments were brought about and incorporated, from time to time in 1993 Order but in the present case we are concerned with the amendment brought about vide Notification No. Kalyan-Ch(10)-l/99-Loose, Dated 14th August, 2003, being H.P. State Commission for Backward Classes (First Amendment) Order, 2003 whereby sub-clause (1) of Clause 4 of 1993 Order was substituted to read as under: "4(1) Notwithstanding anything contained in sub-clause (3) of this clause, every member shall hold office during the pleasure of the State Government for a term not exceeding three years from the date he assumed office." (Emphasis supplied) 7. Basically, it is this amendment brought about by the aforesaid Notification dated August 14,1993 which is under challenge in this petition. 8. Basically, it is this amendment brought about by the aforesaid Notification dated August 14,1993 which is under challenge in this petition. 8. What is noticeable, by a process of comparison between what was contained in sub-clause (1) of Clause 4 of 1993 Order as it originally stood, and the same after its amendment by virtue of the impugned Notification dated August 14, 2003, is that whereas under the original sub-clause (1) a period of three years, "at a time" was prescribed and provided for a Member of the Commission to hold office, under the amended sub-clause the tenure of a Member was made subject to the pleasure of the State Government, even though the period of three years was left unchanged but the expression "at a time" succeeding the period of three years was deleted from the amended sub-clause. The significance of the deletion of the expression "at a time" which succeeded "three years" as was occurring in the original sub-clause clearly meant that under the unamended sub-clause the Members were eligible for re-appointment because the only embargo was relatable to "at a time" appointment. Under the amended sub-clause, expression "at a time" not being there any more, the appointment period at the out-set under any circumstance could not be more than three years and that too subject to the pleasure of the State Government. 9. Coming to the facts of this case, what we find is that even though the petitioners were appointed as Members of the Commission on earlier occasions also, for our purposes in this petition, it would suffice to take note of Notification No. Kalyan-Cha(10)-l/99 dated December 15,2001 whereby all the three petitioners, in continuation of the earlier Notification dated March 13, 2001, were appointed as Members of the Commission, till further orders, with effect from December 18, 2001. For ready reference, we reproduce hereinbelow the text of this Notification which reads thus: "Government of Himachal Pradesh Deptt. of Social, Women Welfare Dated : Shimla-02, No. Kalyan-Ch(l)-l/99 the 15th December, 2001. "...........In continuation of this Department notification of even number, dated 13th March, 2001, the Governor, Himachal Pradesh is pleased to appoint the following members in the H.P. State Commission for Backward Classes till further orders w.e.f. 18th December, 2001:— 1. Sh. Mohinder Lal, IAS (Retd.), Village and P.O. Kasumpati, Shimla-9 Member 2. Dr. Gulshan Kumar, Guler, District Kangra, H.P. Member 3. Sh. Sh. Mohinder Lal, IAS (Retd.), Village and P.O. Kasumpati, Shimla-9 Member 2. Dr. Gulshan Kumar, Guler, District Kangra, H.P. Member 3. Sh. Ramesh Chaudhary, Advocate, Village and P.O. Amb., Distt. Una, H.P. Member 2. The terms and conditions of appointment of the members of the Commission will remain the same as notified vide this Department Notification No. Kalyan-Ch(10)-l /99, dated 10th August, 2000. By Order Harinder Hira, Commr.-cum-Secretary (Welfare) to the Government of Himachal Pradesh. 10. The Notification dated December 15, 2001 was followed by Notification No. Kalyan-Ch(10)-l/99 dated October 24, 2002 whereby the petitioners were appointed as Members of the Commission for "another" term of three years w.e.f. November 1, 2002. The text of this Notification reads thus: "GOVERNMENT OF HIMACHAL PRADESH DEPARTMENT OF SOCIAL WOMEN AND SC WELFARE No. Kalyan-Ch(10)-l/99 Dated : Shimla 17, 1002, the 24th Oct. 2002. NOTIFICATION In continuation of this Department Notification of even number, dated 15th December, 2001 the Governor Himachal Pradesh is pleased to re-appoint the following Members in the H.P. State Commission for Backward Classes for another term of three years with effect from 1st November, 2002:— 1. Shri Monindra Lai, IAS (Retd.) Village and P.O. Kasumpti, Shimla-9. Member 2. Dr. Gulshan Kumar Guler, Distt. Kangra, (H.R) Member 3. Shri Ramesh Chaudhry, Advocate Village and P.O. Amb, Distt. Una (H.P) Member By Order Secretary (Welfare, to the Government of Himachal Pradesh." 11. Now comes the turning point in the aforesaid career of the petitioners as Members of the Commission. Vide Notification • No. Kalyan-Ch(10)-l/ 99-L dated September 1, 2003, they were removed from the office of the Members of the Commission, by invoking the "pleasure doctrine" of the State Government. The three petitioners were removed by issuance of three different Notifications dated September 1, 2003. We are reproducing hereinbelow Notification No. Kalyan~Ch(10)-l /99-L dated September 1,2002 with respect to Romesh Chander petitioner only because other two Notifications are identical. This Notification reads thus: "Government of Himachal Pradesh Department of Social Women and S.C. Welfare No. Kalyan-Ch(10)-l/ 99-L Dated : Shimla-2, the 1st September, 2003. NOTIFICATION Whereas tenure of Sh. Ramesh Chaudhry, Advocate, Village and P.O. Amb, Distt. Una, H.P who was appointed as a Member of the Himachal Pradesh State Commission for Backward Classes firstly for a period of one year vide the Deptt. NOTIFICATION Whereas tenure of Sh. Ramesh Chaudhry, Advocate, Village and P.O. Amb, Distt. Una, H.P who was appointed as a Member of the Himachal Pradesh State Commission for Backward Classes firstly for a period of one year vide the Deptt. Notification No. Kalyan-Ch(10)-6/90-III dated 22.12.1998, has been extended from 18.12.1999 till date as per details given below:— Terms Notification Issued 1 year No. Kalyan-Ch(10)-6/90-III, dated 22.12.1998 till further No. Kalyan-Ch(10)-6/90-III, order dated : 18.12.1999 1 year (with effect from 10.12.2000) -do- dated : 13.3.2001 till further-do- dated : 15.12.2001 order (with effect from 18.12.2001) 3 years (with effect from 1.11.2002) -do- dated : 24.10.2002 2. Whereas, under sub-clause (1) of Clause 4 of the H.P. State Commission for Backward Classes (1st Amendment), Order 2003; the tenure of a member has been prescribed as "not exceeding three years" and shall hold office during the pleasure of the State Government. 3. And whereas, it is considered expedient in public interest to remove Shri Ramesh Chaudhry from the office of the member of the H.P. State Commission for Backward Classes. 4. Now, therefore, in exercise of the powers vested in him vide Clause 4(1) of the H.R State Commission for Backward Classes (1st Amendment) Order, 2003 and all the powers enabling him in this behalf, the Governor of Himachal Pradesh is pleased to remove said Shri Ramesh Chaudhry as member of the H.R State Commission for Backward Classes with immediate effect. By Order C.R Pandey, Secretary (Welfare) to the Government of Himachal Pradesh." 12. As a sequel to the issuance of the aforesaid three Notifications removing the three petitioners as Members of the Commission, vide Notification No. Kalyan-Ch(10)-l/99-L of the same date on which the petitioners were removed i.e. September 1, 2003, three persons being respondents No. 3 to 5 were appointed as Members of the Commission for a term of three years from the date they assumed the office. This Notification is reproduced herein below for ready reference: Government of Himachal Pradesh Department of Social Women and S.C. Welfare No. Kalyan-Ch(10)-l/ 99-L Dated : Shimla-2, the 1st September, 2003. This Notification is reproduced herein below for ready reference: Government of Himachal Pradesh Department of Social Women and S.C. Welfare No. Kalyan-Ch(10)-l/ 99-L Dated : Shimla-2, the 1st September, 2003. NOTIFICATION In exercise of the powers vested in him under Clause 3(3)(b) read with Clause 4(1) of the Himachal Pradesh State Commission for Backward Classes Order, 1993, the Governor of Himachal Pradesh is pleased to appoint the following Members in the H.R State Commission for Backward Classes for a term of three years from the date they assume office. 2. The Governor of Himachal Pradesh is further pleased to order that the members of the Commission shall hold office during the pleasure of the State Government. 1. Sh. Jivanand Jiwan, Retd. IAS, R/o New Shimla, Shimla, H.P. 2. Ms. Manbhari Devi, V and P.O. Kakrain, Tehsil Palampur, Distt Kangra, H.P. 3. Sh. Onkar Thakur, Advocate, Tehsil Amb, Distt. Una, H.P. By Order C.R Pandey, Secretary (Welfare) to the Government of Himachal Pradesh." 13. Mr. R.L. Sood, learned Senior Counsel appearing for the petitioners very vehemently argued before us that the removal of a Member was provided for only in sub-clause (3) of Clause 4 of 1993 Order and that too based on the reasons and grounds mentioned therein and also in accordance with the procedure prescribed therefor. According to Mr. Sood therefore, the aforesaid being the only provision containing removal power as also the procedure therefor, amendment of sub-clause (1) of Clause 4 whereby the pleasure doctrine was introduced ran counter to the aforesaid sub-clause (3) of clause (4) and, this being illegal, the impugned amendment should be quashed and struck down and consequently the impugned removal orders be also set aside and quashed. 14. No doubt, it is true that sub-clause (3) of Clause 4 did provide a mechanism and machinery for the removal of a person from the office of a Member if that person attracted any disqualification or suffered any disability as is mentioned in clauses (a) to (f) thereof, and further, such removal could not be resorted to unless that person had been afforded an opportunity of hearing. This provision, however did not impinge upon the power and jurisdiction of the State Government in introducing the "pleasure doctrine" by amendment of sub-clause (1) since sub-clauses (1) and (3) of Clause 4 have to be read independent of each other and also these have to be harmoniously constructed and by thus actually applying the rule of harmonious construction, both have to be assigned their independent role within the ambit of their separate applications, and by applying this touchstone, what we find is that removal of a member under sub-clause (3) can be by way of either incurring a disqualification or suffering a disability, and such removal under sub-clause (3) could bring with it the vice of stigma also and it could thus be open to an aggrieved Member in a given situation to complain of arbitrariness or non-observance of principles of natural justice if he was removed under sub-clause (3). 15. Sub-clause (1) however stood on a different footing altogether and occupied a different field. Removal of a Member under sub-clause (1), based purely as per "pleasure doctrine" could not be considered, in the eyes of law as an act of punishment nor would it bring or attach with it the vice of stigma, thus not entitling the removed member from complaining of either arbitrariness or any violation of the principles of natural justice, unless of course it is manifestly established, beyond any doubt that this removal, based on pleasure doctrine was patently based upon, or linked with a colourable or mala fide exercise of power or was a camouflage. 16. Both therefore, sub-clause (1) and sub-clause (3) operate in different and separate fields. 17. Dealing with the issue relating to the vires and legality of the impugned Notification amending sub-clause (1) and introducing the pleasure doctrine therein, what we find is that the Government was well within its right in bringing about this amendment because, 1993 Order being a simple Administrative Order, in the form of an Executive Instruction, did not contain any inhibiting provision in the amending power of the State Government, especially because its origin and source cannot be traced to any legislative power of the State, 1993 Order not being statutory in character in the sense that it was not issued in the exercise of any statutory power of the Government, nor was it by way of plenary, subordinate or delegated legislation. The amending power of the Government therefore not circumscribed in this case, no one could be allowed to complain that the State did not have the power, authority or jurisdiction to introduce the pleasure doctrine with respect to the tenure of a Member of the Commission. This also did not in any way conflict with sub-clause (3) because both the powers, operated in their separate fields, both exercisable in different situations) based on different parameters. Introducing the concept of pleasure doctrine with respect to the term of a Member of the Commission, in our considered opinion did not in any way also compromise or tinker with pith and substance of 1993 Order nor did it violae the substance or the intent of 1993 Order. It can also not be said that the impugned amendment in any manner infringed or violated any Constitutional provision or for that matter any binding direction of the Supreme Court in Indira Sawhney case (supra). 18. In the case of Om Narain Agarzval and others v. Nagar Palika, Shahjahanpur and others, reported in 1993 (2) SCC 242, their Lordships of the Supreme Court while dealing with the concept of pleasure doctrine in relation to the amendment of Section 9 of the United Provinces Municipalities Act, 1916, by which 4th proviso was added to it (in the year 1990) which provided that the nomination of women members was at the pleasure of the State Government clearly took a view that the nominated members of a Board fell in a different class and category and cannot claim equality with the elected members. Actually Mr. R.L. Soods submission before us has clearly been dealt with by their Lordships in the said Judgment by observing that the constant fear of removal, because of the pleasure doctrine, at the will of the State Government is a misplaced apprehension, and or similarly the apprehended consequence of demoralisation because of such fear in the discharge of their duties as the Members of the Board, While dealing with this question, their Lordships observed as under: "The High Court in Dr Rama Mishra case took a wrong view in holding that the fourth proviso to Section 9 of the Act was violative of Article 15(3) of the Constitution under an erroneous impression that this provision in any manner curtailed the representation of women members in the Board. We are not impressed with the reasoning given by the High Court that the fourth proviso to Section 9 of the Act in any manner deprived the fundamental right of equality as enshrined in Article 14 of the Constitution . It is well established that the right of equality enshrined under Article 14 of the Constitution applies to equals and not to unequals. The nominated members of the Board fall in a different class and cannot claim equality with the elected members. We are also not impressed with the argument that there would be a constant fear of removal at the will of the State Government and is bound to demoralize the nominated members in the discharge of their duties as a member in the Board. We do not find any justification for drawing such an inference, inasmuch as, such contingency usually arises only with the change of ruling party in the Government. Even the highest functionaries in the Government like the Governors, the Ministers, the Attorney General and the Advocate General discharge their duties efficiently, though removable at the pleasure of the competent authority under the law, and it cannot be said that they are bound to become demoralised or remain under a constant fear of removal and as such do not discharge their functions in a proper manner during the period they remain in the office." 19. In the case of Krishna v. State of Maharashtra and others, reported in 2001(2) SCC 441, their Lordships of the Supreme Court while dealing with the scope and ambit of the pleasure doctrine have clearly taken a firm view that the removal under the pleasure doctrine is always without a stigma and without any penal consequences and the rights created upon the Members by the very nature of their appointments are created in the Statute and hence that very creator can always limit or curtail such rights. It has also been held that in case of pleasure doctrine where a person is removed on that ground, he cannot project any grievance that no opportunity was given to him. If any right which is the creature of a statute is limited or curtailed by that very statute in the absence of any other right under that very statute or the Constitution of India, such a Member cannot claim any right based on the principle of natural justice. If any right which is the creature of a statute is limited or curtailed by that very statute in the absence of any other right under that very statute or the Constitution of India, such a Member cannot claim any right based on the principle of natural justice. The following observations are apposite and we quote: "Once the doctrine of pleasure is applicable neither the principle of natural justice would step in nor any question of giving an opportunity before removal would arise. It is significant when stigma is cast then sub-section (3) of Section 10 specially provides for giving an opportunity to such incumbent before passing an order or removal, under Section 10, while there is no such corresponding sub-section under Section 6. Thus intent of legislature is very clear which re-inforces the inferences which we have drawn that doctrine of pleasure is implicit under Section 6....." 20. A Division Bench of this court in the case of Suresh Bhardwaj v. H.P. University and others, reported in 1994 (1) Sim. L.C. 185, on the question of subjective satisfaction of the appointing authority with respect to an identical situation held as under: "Taking into consideration various clauses of Articles of Association, Court held that it was entirely left to the subjective satisfaction of the Government whether a particular woman can be said to be a prominent "social worker" or whether she enjoys "All India status" for the purpose. Similarly, it was within the satisfaction of the Government to decide whether such a woman had "adequate administrative experience and organisational abilities". No details and guidelines were furnished in the Articles of Association and the Government was to decide said question on subjective satisfaction only. In view of the fact that it was left to the subjective satisfaction of the Government, as a necessary corollary the Government had power to remove such person from the office of Chairperson and the said decision cannot be said to be the subject to judicial scrutiny or review ability by a Court." 21. We have, therefore, no hesitation in holding that the impugned Notification amending sub-clause (1) does not suffer from any vice of arbitrariness nor can it be held or declared to be unconstitutional or illegal or invalid. 22. We have, therefore, no hesitation in holding that the impugned Notification amending sub-clause (1) does not suffer from any vice of arbitrariness nor can it be held or declared to be unconstitutional or illegal or invalid. 22. In so far as the question of removal of the petitioners as Members of the Commission is concerned, it has been brought about by the invocation of the pleasure doctrine emanating as it were from sub-clause (1) of clause (4). No fact has been brought to our notice nor has any material been placed before us whereby even remotely or indirectly it could be suggested that the petitioners have been removed in colourable exercise of the power or that their removal is based upon or linked with any mala fide consideration. We, therefore, are not persuaded to interfere in the removal order of the petitioners. 23. Mr. R.L. Sood, learned Senior Counsel, also submitted that in the impugned removal order dated September 1, 2003 it has been observed that "it is considered expedient in public interest to remove......" (Emphasis supplied). According to Mr Sood, the use of the expression "public interest" as a co-relation to the removal of the petitioners amounts to casting a stigma and should actually be construed as a removal under sub-clause (3) and not sub-clause (1). This submission of Mr. Sood cannot find favour with us and for the simple reason that the last para of the impugned order clearly and in unmistakable terms suggests that the removal has been resorted to in exercise of the power vested in the State Government in sub-clause (1). This apart, none of the categories mentioned in clauses (a) to (f) of sub-clause (3) being there, surely the petitioners have not been removed on any ground other than by the invocation of pleasure doctrine. We, therefore, have no hesitation in holding and declaring that the use of the expression "public interest" as occurring in para 3 of the impugned order is superfluous and could have best been avoided since it does not convey any meaningful purpose. We, therefore, have no hesitation in holding and declaring that the use of the expression "public interest" as occurring in para 3 of the impugned order is superfluous and could have best been avoided since it does not convey any meaningful purpose. In any case, we have also no hesitation in holding and declaring that the petitioners removal did not bring with it any stigma because it was pure and simple removal under sub-clause (1) by invocation of pleasure doctrine and it was not based on any disqualification or on account of any disability or based on any such ground. It should therefore not be construed as a removal in "public interest" in the sense in which the petitioners apprehend it to be. 24. For the aforesaid reasons, the writ petition is dismissed but without any order as to costs.