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Madhya Pradesh High Court · body

2006 DIGILAW 548 (MP)

PRAMOD PUJARI v. STATE OF M P

2006-04-18

RAJENDRA MENON

body2006
Judgment ( 1. ) CHALLENGING the order, Annexure P-1, dated 23rd July, 2005 passed by the State Government removing the petitioners from the post of President, jan Bhagidari Samiti and instead appointing respondent Nos. 2 and 3 in their place, petitioners have filed this petition. ( 2. ) A notification was issued by the State Government on 30th september, 1996 (Annexure P-2) with the aim and object of providing a Scheme for the management of certain educational institutions functioning in the State. By the said Scheme, a jan Bhagidari Samiti was proposed to be established for development of educational institutions and to guide the institutes in its proper functioning. It was stipulated in the scheme that for every college, a Samiti known as the "jan Bhagidari Samiti" (hereinafter referred to as the Samiti)shall be constituted. The said constituted Samiti shall be registered as a society appointments of the petitioners are not in relation to any office of profit but even in case of such appointments action for terminating the tenure of appointment before the period is over can be taken only on relevant consideration and for reasons to be disclosed. It is argued that in the present case, the tenure of the petitioners have been brought to an end without disclosing any reason and as the petitioners had a right to continue for three years, terminating their tenure in such a manner amounts to arbitrary exercise of powers, and therefore, petitioners seek a writ of mandamus commencing the respondents to continue the petitioners to hold the post for which they have been appointed till the end of the tenure. In support thereof he has placed reliance on a judgments rendered by this Court in the. case of Rajendra Tiwari alias Raju Vs. State of M. P. and others, 2005 (3) M. P. H. T. 69 = 2005 (1) MPLJ 204 and Rajesh Sharma Vs. State of M. P. and others, 2005 (3) M. P. H. T. 84 and a judgment of the Supreme Court in the case of Khedut Mazdoor Chetna Sanghathan Vs. State of M. P. and others, 1994 JLJ 693 . ( 3. ) RESPONDENTS have refuted the aforesaid and it is stated by the respondents that the appointments in question does not confer any legal right on the petitioners. State of M. P. and others, 1994 JLJ 693 . ( 3. ) RESPONDENTS have refuted the aforesaid and it is stated by the respondents that the appointments in question does not confer any legal right on the petitioners. The appointment is at the pleasure of the Government and as no statutory right is available to the petitioners, termination of their appointments without disclosing any reason cannot be called in question and the same cannot be subjected to judicial review in a petition under Article 226 of the constitution. Shri Yogesh Chaturvedi, learned Counsel representing the respondent No. 2 argued that the appointment is not to any post of the State governments, it does not carry any remuneration, and therefore, the termination of such an appointment which is un-controlled by any statutory provision and the termination of which does not involve any civil consequenee cannot be subject matter of judicial review unless and until arbitrariness and malafides are established in the matter. Shri Yogesh Chaturvedi emphasised that the appointment of the petitioners are at the pleasure of the Government and if the government chooses to bring about an end to their tenure and terminates them, the respondents argued that no legal right or Constitutional right of the petitioners was violated by the respondent Nos. 2 and 3 and no interference into the matter is called for. ( 4. ) HAVING heard learned Counsel for the parties, it is thought proper to first examine the nature of appointment and the nature of the post held by the petitioners. ( 5. ) AS indicated hereinabove, the appointment of President and other members of the Jan Bhagidari Samiti is not controlled by any statutory provision, rule or regulation. Such an appointment is made purely on the basis of a scheme formulated by the State Government for the purpose of permitting participation by members of the public for carrying out certain activities of the Government college in various Districts. As is evident from the Scheme in question Annexure p-2, the Samiti does not have any statutory power but is basically established for the purpose of guiding the Government in the proper management of the institutes in question. It has been established for the purpose of development of education system and for the said purpose public participation is the paramount consideration for formation of the Samiti. It has been established for the purpose of development of education system and for the said purpose public participation is the paramount consideration for formation of the Samiti. The Samiti and the members thereof do not discharge any statutory function, they do not hold any office of profit and no remuneration is paid to them for discharging their functions. It is, therefore, clear that Samiti functions as an Advisory Body and the Government is empowered to follow or reject the decision of the Samiti. The Samiti does not have any power to appoint any staff nor is it empowered to make any appointment to the Institutions in question in which it is established. The Scheme further provides that the Samiti shall hold its sitting at least twice in a year. The samiti is in general to look into the activities of the Institutes. Two different samitis, i. e. , Financial Committee and Management Committee are created under the Scheme for looking after the Management function of the institutes. The question requiring determination by this Court is as to whether an order removing a person from the post on such a Samiti can be subject-matter of judicial review in a petition under Article 226 of the Constitution. The judgments cited by Shri Bharadwaj, in the case of John Mal, 2004 AIR SCW 3888, rajendra Tiwari alias Raju (supra), Rajesh Sharma (supra), are all cases in which the question of judicial review in the matter of appointment of Public prosecutors and District Govt. Advocates were involved. In the case of John Mal (supra), while considering the scope of judicial review in such matters, it has been held that the action of the State Government in not renewing the tenure or bringing about an end to the tenure can be subjected to judicial scrutiny only on the ground of arbitrariness in the decision. This judgment of the Supreme court was followed in the other two cases by this Court in the case of Rajesh sharma (supra) and Rajendra Tiwari alias Raju (supra), wherein the tenure government Advocates and the tenure of Public Prosecutors were brought to an end before the period of their appointment was over. This judgment of the Supreme court was followed in the other two cases by this Court in the case of Rajesh sharma (supra) and Rajendra Tiwari alias Raju (supra), wherein the tenure government Advocates and the tenure of Public Prosecutors were brought to an end before the period of their appointment was over. Interference was made in those cases by this Court on the round that no reason is disclosed for terminating the services of the persons concerned and basically the law laid down by the Supreme Court in the case of Kumari Shrilekha Vidyarthi, AIR 1991 SC 537 , was followed for interference in those cases. In the case of Kumari shrilekha Vidyarthi (supra), the Supreme Court while considering the question of non-assigning of reasons and the non-communication of reasons in the matter of termination observed that termination may be based on public policy, but termination of an appointment without the existence of any cogent reason in furtherance of the object for which the power is exercised would amount to arbitrary exercise of power, and therefore, against the public policy. It was under these circumstances interference was made in the said cases. However, in all those cases, the question of violation of statutory procedure contemplated for appointment and termination as contained in the Code of Criminal Procedure and the Legal Remembrancers Manual was taken note of and interference was made by the Supreme Court and by this Court. In the present case, the appointment of the petitioners and the post held by them is not based on any such statutory provision. Even though in the cases referred to by Shri bharadwaj, it has been held by this Court that bringing about an end to the tenure of a Public Prosecutor or Government Advocate without disclosing any reason amounts to arbitratory exercise of power. The question is as to whether the same principle can be made applicable in appointments of the nature as seen in the present petition where the petitioners appointment was at the pleasure of the Government and is uncontrolled by any statutory provision. The scheme in question, Annexure P-2 does not specify any procedure to be followed for appointment and there is nothing in the scheme which indicates that the appointment and termination has to be done after following a particular procedure. The scheme in question, Annexure P-2 does not specify any procedure to be followed for appointment and there is nothing in the scheme which indicates that the appointment and termination has to be done after following a particular procedure. It is, therefore, a pure administrative decision of the State government and in the return filed by the State Government even though it is stated that the Competent Authority thought it proper to change the constitution of the Jan Bhagidari Samiti, no reason is disclosed as to why the petitioners tenure is brought to an end. It is, therefore, becomes necessary to examine as to whether for bringing to an end the tenure of appointment of the nature as contemplated hereinabove, reasons are to be disclosed and whether nondisclosure of the reasons would amounts to arbitrary exercise of powers. ( 6. ) IN cases pertaining to appointment of Public Prosecutors and district Standing Counsels, the Supreme Court in the cases of Kumari Shrilekha vidyarthi (supra) and Johri Mal (supra), had referred to the nature of appointment of an Advocate, duties and functions discharged by the public Prosecutors and the public element involved in the matter of such appointment. It was after such considerations and in view of the public element involved that interference was made by the Supreme Court on the ground of non-disclosure of the reasons. In the present case, there is nothing available on record to indicate that any public element or public interest involved in the matter of functions discharged by a member and President of the Jan Bhagidari Samiti. ( 7. ) WHILE considering the question of judicial review into the action administrative in nature in the case of Johri Mal (supra), itself, the Supreme court has classified five grounds to which extent power of judicial review can be exercised under Article 226 of the Constitution. These are contained in paragraph 28 of the judgment. It has been held by the Supreme Court in the aforesaid case that power of judicial review is not intended to assume a supervisory role or done the robes of omnipresent. It has further been held that while exercising the power of the judicial review, this Court cannot sit over the decision of the administrative body as if it is exercising the appellate jurisdiction. It has further been held that while exercising the power of the judicial review, this Court cannot sit over the decision of the administrative body as if it is exercising the appellate jurisdiction. In clause (iv) of Paragraph 28, it has been held by the Supreme Court that a mere wrong decision is not enough to attract the power of judicial review. In paragraph 24 of the aforesaid judgment the Supreme Court has observed as under :- "the legal right of an individual may be founded upon a contract or a statute or an instrument having the force of law. For a public law remedy enforceable under Article 226 of the Constitution, the actions of the authority need to fall in the realm of public law be it a Legislative Act of the State, an Executive Act of the State or an instrumentality or a person or authority imbued with public law element. The question is require to be determined in each case having regard to the nature of and extent of authority vested in the state. However, it may not be possible to generalize the nature of the action which would come either under public law remedy or private law field nor is it desirable to give exhaustive list of such actions. " ( 8. ) IF the facts and circumstances of the present case is analyzed in the light of the observations made by the Supreme Court referred to hereinabove in the aforesaid paragraph, it would be clear that in the matter of appointment and curtailment of tenure of the petitioners, no legal right of the petitioners can be said to have been violated. It is well settled in law that when change to the administrative decision is made, this Court will not interfere in the matter and the scope of judicial review is limited to the extent of considering as to whether there is any illegality, irrationality or impropriety in the action taken, it is only when the action impugned for these false within any of the aforesaid three categories that interference can be made in such matters. That apart, while classifying an administrative action as irrational, this Court on the basis of material available on record has to come to a conclusion that the decision is so outrageous that it is in total defiance of logic or moral standards. That apart, while classifying an administrative action as irrational, this Court on the basis of material available on record has to come to a conclusion that the decision is so outrageous that it is in total defiance of logic or moral standards. One who wants an action to be invalidate or nullify any act or order must establish the charge of bad faith, an abuse or a misuse by the authority of its powers. It is only when these Factors are established that interference into administrative can be made. Keeping in view the scheme in question enumerated by the State Government and taking note of the fact that the appointments in question are made at the pleasure of the State Government, I am of the considered view that the principle laid down in the matter of appointment and termination of the Public prosecutors and the Government Advocates will not apply in the present case. Present is not a case where appointment of the petitioners confer any legal right to them nor does the appointment entitle them to have any financial benefit which is normally available to an Advocate or Public Prosecutor on his appointment nor does termination of such appointment having any civil consequence having the effect of taking away the financial benefits available to a person on cancellation of contract or termination of appointment, on the contrary appointment of the petitioners were purely at the pleasure of the Government and merely because government has not disclosed any reason for curtailing the tenure of the petitioners, this Court cannot interfere in the matter as the appointment of the petitioners does not confer any enforceable legal right to them merely because some social status is conferred on the petitioners due to such an appointment, inference cannot be drawn that withdrawal of this status amounts to reducing the status of petitioners in the society. On such assumption, the decision taken by the State Government for curtailing the tenure of the petitioners in accordance with the scheme formulated cannot be subject matter of judicial review. ( 9. On such assumption, the decision taken by the State Government for curtailing the tenure of the petitioners in accordance with the scheme formulated cannot be subject matter of judicial review. ( 9. ) IN the present case, I am of the considered view that the action impugned in this petition is a pure administrative discretionary action of the state Government and if the State Government chooses to change the constitution of the Bhagidari Samiti, the same cannot be subjected to judicial scrutiny in a petition under Article 226 of the Constitution in the absence of any mala fides or arbitrariness established. Mere non-disclosure of reasons in the facts and circumstances of the case cannot be a ground for interfering in the matter. ( 10. ) ACCORDINGLY in the facts and circumstances of the case finding no ground for interference, petition stands dismissed without any order as to costs. Writ Petition dismissed.