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2005 DIGILAW 252 (GAU)

Uttam Kumar Sarkar v. Ratan Kumar Barman

2005-03-22

AFTAB H.SAIKIA

body2005
JUDGMENT A.H. Saikia, J. 1. Heard Mr. K.H. Choudhury, learned Sr. Counsel assisted by Mr. A. Sarma, learned Counsel appearing for the applicant/respondent No. 3 in the writ petition. Also heard Mr. H.K. Barman, learned State Counsel for the State respondents and Mr. B.D. Konwar, learned Counsel for the opposite party/writ petitioner. By this Misc. application, the applicant has sought for alteration/modification/cancellation of the interim order dated 19.1.2005 which was subsequently allowed to continue vide order dated 4.2.2005 rendered in the connected writ petition i.e., WP(C) No. 464/05. 2. Only ground which has been pressed into service in this Misc. application for cancellation/modification of the interim order, as mentioned above, is that since the order under challenge i.e., 12.1.2005 has been passed by the Government by applying the doctrine of pleasure, this Court ought not to have entertained the writ petition by working Article 226 of the Constitution and thereby ought to have refrained from passing the interim order. 3. Before delving upon the point raised by the learned Counsel for the parties, it would be apposite and necessary to notice briefly the facts of the case. 4. Initially vide notification dated 9.7.2001, the Governor of Assam was pleased to constitute the Sub-Divisional Scheduled Caste Development Board, (for short 'Board'), Dhubri with as many as 20 members to be headed by the applicant as Chairman. When this Board was continuing by performing its duties so entrusted upon it under the Chairmanship of the applicant, suddenly vide notification dated 22.12.2004 the applicant was removed by the Govt. by appointing the writ petitioner/opposite party herein in place of the applicant. However, on 12.1.2005 by the impugned notification, the Govt. restored back to its earlier position by allowing the applicant as Chairman of the said Board and thereby the earlier appointment on 22.12.2004 of the writ petition was cancelled. 5. Being aggrieved by such cancellation, the writ petitioner/opp. party has moved this Court through the instant writ petition wherein the order dated 19.1.2005 has been passed by granting interim relief to the writ petitioner laying the impugned notification dated 12.1.2005. 6. Mr. Choudhury, learned Sr. Counsel praying for vacation of the interim relief, as mentioned above, has submitted that the impugned cancellation has been made by the Government on an application of doctrine of pleasure. 6. Mr. Choudhury, learned Sr. Counsel praying for vacation of the interim relief, as mentioned above, has submitted that the impugned cancellation has been made by the Government on an application of doctrine of pleasure. The reason for such action is that there is no rules or any executive guidance framed so far for constitution of the Board as well as appointment of Chairman to such Board and in absence of any such statutory rules or guidance, this Board alongwith the Chairman has been constituted definitely and clearly at the pleasure of the Governor and that has been clearly indicated in the impugned order itself. To bolster up his submission, the learned Sr. Counsel relied on the following decisions of this Court as well as the Apex Court. 1. Jogen Chandra Borah v. State of Assam : 1995 (3) GLT 256 : (1996) 1 GLR 1 , 2. Krishna v. State of Maharashtra and Ors. : (2001) 2 SCC 441 , and 3. Sri Biswajit Biswas v. State of Assam and Ors. disposed of on 19.9.2002 in Writ Appeal No (sic). 7. In Jogen Chandra Borah's case (supra) relying on a decision of a case in Kamal Chandra v. State of Assam, this Court held that while dissolving the Board which was constituted at the pleasure of the Governor, it was not necessary to observe the principles of natural justice arid to issue a show cause notice on the Chairman or members of the Board or to hear them. In paragraph 7 it is observed as under: 7. In the case of Kamal Chandra v. State of Assam, cited by Mr. Laskar, learned Counsel for the respondent No. 4, the question of locus standi of the ?petitioner who had been appointed as Chairman of the Sub-Divisional Tribal Development Board, Morigaon, by the Government of Assam to challenge the dissolution of the said Board, had not been raised, but it was held that the Sub-Divisional Tribal Development Board was constituted at the pleasure of the Governor and could be dissolved at his pleasure and the notification constituting the said Board did not confer any right on him to continue as Chairman of the Board till expired of the period mentioned in the notification constituting it. I respectfully agree with the aforesaid view expressed by Hansaria, J., in the case of Kamai Chandra v. State of Assam (supra) that a Chairman of a Sub-Divisional Tribal Development Board or Sub-Divisional Welfare Board for Scheduled Castes cannot claim any right to continue as Chairman inasmuch as the appointment and continuance as Chairman of such Board is at the pleasure of the Governor and accordingly the Governor could in exercise of his executive powers cancel the constitution or reconstitution of a Board. Similarly, I am in agreement with the aforesaid decision of Hansaria, J., in the case of Kamal Chandra v. State of Assam as well as the Division Bench decision of this Court in the case of Satyaswar v. State of Assam AIR 1974 Gau 20 , that while dissolving the Board, which was constituted at the pleasure of the Governor, it was not necessary to observe the principles of natural justice and to issue a show-cause notice to the Chairman or members of the Board or to hear them.... 8. The Apex Court in Krishna's case (supra) categorically held that when no stigma has been cast or no panel consequences has been laid in an application of doctrine of pleasure, neither the principle of natural justice would step in nor any question of giving an opportunity before removal would, arise. Paragraph 11 would be relevant to reproduce herein: 11. Once 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 of removal under Section 10, while there is no such corresponding Sub-section under Section 6. Thus, intent of legislature is very clear which reinforces the inference which we have drawn that doctrine of pleasure is implicit under Section 6. In Om Narain Agarwal v. Nagar Palika, Shahjahanpur this Court was considering, the provisions of Section 9 of the U.P. Municipalities Act, 1916 as introduced by U.P. Act 19 of 1990, which made provision for nomination of two women members by the State Government, and the fourth proviso provides that the nomination of such two members is at the pleasure of the State Government. This Court held: (SCCp. 254, paras 11-12). This Court held: (SCCp. 254, paras 11-12). The initial nomination of the two women members itself depended on the pleasure and subjective satisfaction of the State Government. If such appointments made initially by nominating are based on political consideration, there can be no violation of any provision of the Constitution in case the legislature authorized the State Government to terminate such appointment at its pleasure and to nominate new members in their place. 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.... But so far as the nominated members are concerned, the legislature 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. 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 nor the removal under the pleasure doctrine contained in the fourth proviso to Section 9 of the Act puts any stigma on the performance or character of the nominated, member. It is done purely on political consideration. 9. The Division Bench of this Court in Biswajit Biswas's case (supra) ruled that when there is no rule, regulation or statute under which the committee was to be constituted for a particular time frame, it is for the Governor to find out suitable person and nominate them as the members of the committee to carry out the objectives for which purpose the committee has been constituted and in doing so the Governor acts under pleasure of doctrine and in such cases, it is not necessary to attract the principle of natural justice so as to give reasons or such re-consideration of the bodies. 10. Supporting the interim order passed in favour of the writ petitioner, Mr. 10. Supporting the interim order passed in favour of the writ petitioner, Mr. Konwar, learned Counsel appearing for the writ petitioner, has forcefully contended that it is true when doctrine of pleasure is applicable, the rule of natural justice has no applicability but when the executive acts in an arbitrary and illegal manner and in complete violation of Article 14 of the Constitution, the Court has the power to intervene with such illegal action of the executive and in the instant case such arbitrariness and violation of Article 14 is writ large. His contention is that this impugned cancellation order i.e., 12.1.2005 has been passed without showing any masons whatsoever and even no notice or opportunity was given to the writ petitioner prior to taking such action which amounts to violation of the theory of natural justice. Though it happens to be based at the pleasure of the Governor, the Government has not power to take any action contrary to public policy and public interest that has reflected glaringly on the face of the impugned order itself. It is vehemently contended that after the removal of the applicant/respondent No. 4 from the Chairmanship, the writ petitioner/opposite party was allowed to hold the office of Chairmanship of the board but during his continuation in office only for 30 days, abruptly and whimsically, he has been removed from the office without assigning any compelling reasons. To substantiate} his argument, Mr. Konwar has relied on the series of decisions rendered by this Court as well as by Hon'ble Supreme Court Those are: 1. Satyeswar v. Government of Assam AIR 1974 Gau 20 2. Hochtief Gammon v. State of Orissa : 1975 (31) FLR 279 (SC) 3. Kamal Chandra v. State of Assam : AIR 1981 Gau 4 4. Union of India v. Tulsi Ram Patel : 1985 (51) FLR 362 (SC) 5. Anchar Ali v. State of Assam : AIR 1989 Gau 12 6. Dr. Rash Lal Yadav v. State of Bihar 1994 (69) FLR 406 (SC) 7. Krishna v. State of Maharashtra : (2001) 2 SCC 441 . 11. Relying on the above cited cases, Mr. Union of India v. Tulsi Ram Patel : 1985 (51) FLR 362 (SC) 5. Anchar Ali v. State of Assam : AIR 1989 Gau 12 6. Dr. Rash Lal Yadav v. State of Bihar 1994 (69) FLR 406 (SC) 7. Krishna v. State of Maharashtra : (2001) 2 SCC 441 . 11. Relying on the above cited cases, Mr. Konwar has argued that in this case the authority has miserably failed to adopt the principle of natural justice and, more so, no valid or cogent reason has been put forward in passing the impugned order and the same has resulted in the arbitrary exercise of the power by the Stale and thereby hitting the Article 21 of the Constitution of India. The entire exercise of cancelling the petitioner's appointment was based on contrary to the public good and interest. Besides, the writ petitioner, after obtaining the interim protection from this Court, has, been performing as the Chairman of the Board and doing all the necessary duties so entrusted to the Board and also he has the responsibility to conduct the ensuing examination. In view of the same, according to him, the interim order passed on 19.1.2005 which was extended until furthers by order dated 4.2.2005 would not be disturbed and if the same is upset at this stage, this writ petition would be rendered automatically infructuous. 12. I have given my thoughtful consideration to the submissions put forth by the learned Counsel for the contesting parties. On meticulous scanning of the rival pleadings so placed before this Court by the respective parties, and also upon perusal of the materials available on record, it appears, admittedly, no rule or regulation has been framed for the Constitution of the Board in question vis-a-vis Chairman and other members of the committee. In absence of such rules/or and regulation, or guidance as the case may be, the Board has been constituted by applying the principle of doctrine of pleasure and in an application of such doctrine, the Government is to find out a suitable person for the post of Chairmanship and other members. In absence of such rules/or and regulation, or guidance as the case may be, the Board has been constituted by applying the principle of doctrine of pleasure and in an application of such doctrine, the Government is to find out a suitable person for the post of Chairmanship and other members. That being so, by exercising, this pleasure doctrine, the Governor of Assam, initially was pleased to constitute a Board in the year 2001 i.e., on 9.7.2001 with the applicant as Chairman and he was allowed to continue till 21.12.2004., But surprisingly for the reasons best known to the concerned authority, by notification dated 22.12.2004 he has been removed and the writ petitioner was appointed and after allowing him to continue for about 20 days, this impugned notification dated 12.1.2005 has been issued by which the writ petitioner was removed and in his place earlier Chairman/the applicant has been retained to act as Chairman of the Board. 13. On bare perusal of the impugned notification and the earlier order so passed it clearly shows that the entire exercise was made by the authority at the pleasure of the Governor, meaning thereby that the executive has acted on application of doctrine of pleasure. That being the factual position, in the light of above cited cases, it appears that once Doctrine of Pleasure is pressed into service, the scope of granting opportunity of hearing does not come, in other words, in case of application of Doctrine of Pleasure principle of adoption of natural justice will be a mere formality. 14. For the reasons what has been discussed and observed above this Court is of the view that applicant has made out a prima facie case for vacation of the interim order. Consequently, the orders passed on 19.1.2005 and 4.2.2005 ate hereby vacated. However, it is made clear that any observation made in this order shall not come on the way in deciding the writ petition on merits. In the result, Misc. case stands allowed. Application allowed.