Research › Search › Judgment

Patna High Court · body

2008 DIGILAW 203 (PAT)

State Of Bihar v. Sardar Guru Dayal Singh

2008-01-30

CHANDRAMAULI KR.PRASAD, MIHIR KUMAR JHA

body2008
Judgment CHANDRAMAULI KR.PRASAD, J. 1. In exercise of the power conferred u/s. 4(1) of the Bihar State Minorities Commission Act, 1991 , hereinafter referred to as the Act, the State Government vide Notification dated, 18.08.2004 constituted Bihar State Minorities Commission and nominated Sohail Ahmad Khan and Prahlad Kumar Sarkar as Chairman and Vice-chairman of the Bihar State Minority Commission in exercise of power u/s. 4(2) of the Act. The term of office of Sohail Ahmad Khan was three years from 20.08.2004 and that of Prahlad Kumar Sarkar of three years from the date he assumes the charge of his office. Later on, by Notification dated, 3.09.2005 the State Government filled up the vacancies in the Commission. By the aforesaid Notification Sardar Guru Dayal Singh, Petitioner in CWJC No. 9336 of 2006, was nominated as Vice Chairman and Father Peter besides others as the Members of the Commission. 2. A Show Cause Notice dated, 2.03.2006 was issued to them, inter alia, alleging that the Commission had miserably failed to carry out the functions for which it was constituted. It stated that the Commission had entrusted the work of assessing the social, educational and economic status of the Muslims to Asian Development and Research Institute, hereinafter referred to as the Institute and though said Institute had given its report about two years earlier but the Commission had not submitted any report to the State Government. In the show cause it was also indicated that u/s. 17 of the Act the Commission was obliged to present annually a consolidated report of its functions but the purported annual report submitted two months earlier is in fact not a report, but compilation of the letters. In the aforesaid premise it was concluded that the purpose for which the Commission was constituted had not been achieved. In view of aforesaid, according to the show-cause notice, the continuation of the nominated members of the Commission is not desirable. Accordingly, Chairman, Vice-Chairman and all the members were asked to show cause as to why they be not removed from Office in public interest. 3. Sardar Guru Dayal Singh in his show cause dated, 11.03.2006 stated that he was nominated as the Vice-Chairman of the Commission by Notification dated, 3.09.2005 and the State Government did not cooperate him in carrying out the functions of the Commission. 3. Sardar Guru Dayal Singh in his show cause dated, 11.03.2006 stated that he was nominated as the Vice-Chairman of the Commission by Notification dated, 3.09.2005 and the State Government did not cooperate him in carrying out the functions of the Commission. It was contended that he had not completed even one year in the office from the date of his nomination and therefore, the question of his submitting the annual report did not arise at all. According to him, annual report was submitted after he joined the post of Vice Chairman. According to him, he cannot be held responsible for non-submission of the report of Institute submitted two years earlier at the time when he was not the Vice-chairman of the Commission. 4. Prahlad Kumar Sarkar in his show cause dated, 22.03.2006 took the stand that the Member Secretary of the Commission or for that matter any other employee of the Commission never brought to his notice about the report given by the Institute and as such, he cannot be held responsible for not furnishing to the State Government the said report. 5. Father Peter in his show cause stated that he was nominated as Member of the Commission by Notification dated, 3.09.2005 but on account of enforcement of the Code of Conduct due to election said Notification was handed over to him in the last week of December, 2005. He had also stated that he was not invited for attending any meeting of the Commission after his nomination. 6. Show causes filed by aforesaid Vice-Chairmen, namely, Prahlad Kumar Sarkar, Sardar Guru Dayal Singh and Father Peter were considered by the State Government and finding their explanations to be unsatisfactory, the State Government in exercise of its power u/s. 5(b) of the Act rescinded in public interest the nominations of Prahlad Kumar Sarkar and Sardar Guru Dayal Singh, the Vice Chairmen and Father Peter the Member of the Commission besides the Chairman and all others Members nominated by Notification dated, 18.08.2004 and Notification dated, 3.09.2005 by Notification dated, 22.07.2006. The State Government filled up the vacant posts of Chairman, Vice Chairmen and Members of the Commission by Notification dated, 5.08.2006 as published in the Bihar Gazette in its issue dated, 18.08.2006. By this Notification Father Peter was nominated as Vice Chairman of the Commission. 7. The State Government filled up the vacant posts of Chairman, Vice Chairmen and Members of the Commission by Notification dated, 5.08.2006 as published in the Bihar Gazette in its issue dated, 18.08.2006. By this Notification Father Peter was nominated as Vice Chairman of the Commission. 7. Sardar Guru Dayal Singh as also Prahlad Kumar Sarkar challenged their removal by filing separate Writ Petitions which were registered as CWJC No. 9336 of 2006 (Sardar Guru Dayal Singh V/s. State of Bihar and Ors.) and CWJC No. 10060 of 2006 (Prahlad Kumar Sarkar V/s. State of Bihar and Ors.) respectively. 8. Both the writ applications were heard together and by judgment dated, 9.07.2007, writ applications filed by Prahlad Kumar Sarkar was dismissed. However the writ application filed-by Sardar Guru Dayal Singh was allowed and he was directed to be reinstated as Vice-chairman for the term he was nominated vide Notification dated, 3.09.2005. 9. As stated earlier by Notification dated, 5.08.2006 Father Peter who was earlier nominated as the Member of the Commission was also removed alongwith other Office bearers but by Notification dated, 5.08.2006 he has been inducted as the Vice Chairman of the Commission. The learned Single Judge quashed his nomination as the Vice-Chairman. 10. While passing the impugned judgment the learned Judge has observed as follows: The ground of lack of adequate infrastructure sought to be urged on behalf of the Petitioner does not impress this Court. The Petitioner while holding the post of Vice Chairman enjoyed the benefits of the post and now virtually seeks to question the very commission of which he was a part. Moreover the Respondents in para 17 of their counter affidavit have disputed the contention of the Petitioner of lack of infrastructure and have averred that in fact apart from absence of lack of infrastructure the Petitioner himself received salary, emoluments, allowances etc. 11. While considering the plea of Sardar Guru Dayal Singh and dealing with the case of Father Peter this Court observed as follows: The Petitioner in CWJC No. 9336 of 2006 (Sardar Gurudayal Singh) quite obviously had not completed even one year in office and the Show Cause Notice came to be issued to him for non-compliance of Sec. 17 of the Act with regard to non submission of annual report. Nothing further is required at this stage to demonstrate the complete non-application of mind to the case of the Petitioner. Nothing further is required at this stage to demonstrate the complete non-application of mind to the case of the Petitioner. If the report had been submitted by the ADRI before induction of the Petitioner and the reports were not made available to the State Government by the Commission in terms of Sec. 17 of the Act or otherwise quite obviously the Petitioner was not answerable for the same. On the contrary, the State Government itself acknowledges that the report came to be submitted at a point of time after the Petitioner had been appointed as Vice Chairman. This Court further finds substance in the submission on behalf of the Petitioner that like the Petitioner Respondent No. 7 also in his show cause raised the issue of the inapplicability of the grounds for removal including Sec. 17 of the Act in view of their tenure when they had not even completed one year in office. Nonetheless Respondent No. 7 accepted his removal, did not challenge the same while the Petitioner challenges the same. In the circumstances this Court holds that the action of the Respondents in the removal of the Petitioner was quite arbitrary. If the Respondent No. 7 was found fit to be reinducted notwithstanding the satisfaction of the Respondents for the need to remove him in public interest when no other special ground has been urged on behalf of the Respondent No. 7 for his induction as Vice Chairman of the Commission, this Court finds it difficult to sustain the removal of the Petitioner more so when the Petitioner questions his removal while the Respondent No. 7 accepts his removal. To this Court, this appears to be a fundamental issue of crucial importance for determination in the present matter. The order of removal in so far as the Respondent No. 7 is concerned becomes final. If his reinstatement is bad there arises a vacancy immediately. If the order of removal of the Petitioner was bad he is entitled to reinstatement as a necessary consequence. In view of the fact that this Court has held that Respondent No. 7 did not challenge his removal and therefore it attained finality and secondly as the order of reinstatement of Respondent No. 7 is bad, the nomination of Respondent No. 7 by Notification dated, 5.08.2006 is consequently set aside. In view of the fact that this Court has held that Respondent No. 7 did not challenge his removal and therefore it attained finality and secondly as the order of reinstatement of Respondent No. 7 is bad, the nomination of Respondent No. 7 by Notification dated, 5.08.2006 is consequently set aside. State of Bihar and its Officers as also Father Peter, aggrieved by the aforesaid judgment, have preferred separate appeals under Clause X of the Letters Patent which have been registered as Father Peter V/s. State of Bihar and Ors., LPA No. 693 of 2007 and State of Bihar and Ors. V/s. Sardar Guru Dayal Singh, L.P.A. No. 837 of 2007. It seems that Prahlad Kumar Sarkar has accepted the judgment. 12. Both the appeals have been heard together and are being disposed off by this common judgment. 13. The learned Advocate General appears on behalf of the Appellants in LPA No. 837 of 2007, whereas the Appellant of L.P.A. No. 693 of 2007 is represented by Dr. Sadanand Jha. Mr. Ganesh Prasad Singh, Senior Advocate, appears on behalf of Respondent No. 1 in LPA No. 837 of 2007, whereas Dr. Sadanand Jha, appears on behalf of Respondent No. 2. Standing Counsel No. Ill appears on behalf of the State in LPA No. 693 Of 2007. 14. The learned Advocate General contends that the conclusion arrived at by the learned Single Judge while allowing the writ application filed by Sardar Guru Dayal Singh that he was not answerable for non-submission of the report in terms of Sec. 17 of the Act is erroneous in law. Dr. Jha, appearing on behalf of the Appellant Father Peter submits that though he was nominated as a Member of the Commission by Notification dated, 3.09.2005 but the Code of Conduct being in force said Notification was received by him in the last week of December, 2005. He also submits that he did not participate in any of the meeting of the Commission as he was not informed about any such meeting. It has also been pointed out that on account of failure of the Commission to carry out its obligation the nominations of the Chairman, Vice-Chairman and the Members were rescinded by the impugned order but later on, Father Peter was nominated as the Vice-chairman as he belonged to Christian Community and the State Government intended to nominate Members from all community. It has also been pointed out that the Chairman, Vice-Chairman and the Member are not to be treated equally, their responsibility being different, hence, nomination of Father Peter, later on as the Vice Chairman of the Commission cannot be faulted on the ground that earlier his nomination as Member was rescinded. 15. Mr. Singh, however, contends that Sardar Guru Dayal Singh cannot be held responsible for non-submission of the report by the Commission to the State Government in terms of Sec. 17 of the Act. He being not answerable for the same, the learned Single Judge rightly set aside the Notification rescinding his nomination. 16. Rival submission necessitates the examination of the Scheme of the Act. Section 5 of the Act provides for the term of Commission, whereas 5(1)(b) thereof confers power to the State government to remove the Chairman, Vice-chairman and any member of the Commission, if found guilty of neglect etc. in public interest. Same reads as follows: 5.Term of Commission- (1)xxx xxx xxx (a) xxx xxx xxx (b) if at any time, it appears to the State Government that the Chairman, Vice-Chairman or any Member of the Commission is unfit to hold his office or has been found to be guilty of misconduct or neglect of duties or abuse of power, which renders his removal from office of the Commission, necessary in public interest, the State Government may by Notification in the official gazette, remove him from such office. 17. Functions to be undertaken by the Commission are enumerated in Sec. 6 of the Act, which reads as follows: 6. 17. Functions to be undertaken by the Commission are enumerated in Sec. 6 of the Act, which reads as follows: 6. Functions of Commission.- (1) The functions of the Commission shall be as follows: (a) to examine the working of various safeguards provided in the Constitution of India, and the law passed by the State Legislature for protection of minorities of the State; (b) to make recommendations with a view to ensuring effective implementation and enforcement of such safeguards and laws, as mentioned in Sub-clause (a) (c) to undertake review of the implementation of policies and schemes of the State Government for the welfare of minorities of the State; (d) to conduct studies, researches and analysis and make recommendations for the socio-economic uplift of the minorities of the State; (e) to make such recommendations as may be deemed necessary and proper for ensuring protection of rights and interests of the minorities of the State; (f) to make recommendations for ensuring, maintaining and promoting communal harmony in the State; (g) to make periodical reports at prescribed intervals to the government. (2) The Government may by Notification in the official gazette, confer upon the Commission such additional functions in relation to the welfare and redress of grievances of the minorities of the State, as may be specified in the Notification. 18. The obligation cast on the Commission finds mentioned in Sec. 17 of the Act. It reads as follows: 17. Submission of Reports.- (1) The Commission shall present annually a consolidated report on the performance of its functions under this Act to the Government. (2) The Commission may, at its discretion, submit from time to time special reports on any matter of public importance to the Government. (3) On receipt of the annual report under Sub-sec. (1) or a special report under Sub-sec. (2), the Government shall lay a copy thereof, with an explanatory memorandum before each House of the State Legislature. 19. In sum and substance while setting aside the removal of Sardar Guru Dayal Singh and induction of Father Peter the learned Single Judge had held that as the Institute had given its report even before the induction of Guru Dayal Singh, he can not be held responsible. 19. In sum and substance while setting aside the removal of Sardar Guru Dayal Singh and induction of Father Peter the learned Single Judge had held that as the Institute had given its report even before the induction of Guru Dayal Singh, he can not be held responsible. Removal of Father Peter as member on the same ground as others and later on inducting him as Vice-chairman also persuaded this Court to hold both the actions i.e. Sardar Guru Dayal Singhs removal and Father Peters induction as arbitrary. The learned Single Judge also pointed out that Father Peter did not challenge his removal and he did not point out any special ground for his re-induction. 20. Having given my most anxious consideration, I am unable to subscribe to the reasoning and conclusion arrived at by the learned Single Judge. 21. It is relevant here to state that Sec. 17 of the Act contemplates presentation of a consolidated report on the performance of the functions of the commission annually. The Commission on 7.04.2006 had forwarded the report of the Institute and the annual report of the year 2003. Although according to Sardar Gurudayal Singh the aforesaid report was filed but in the opinion of the State Government it was not a report but compilation of various correspondences and letters. Undisputedly on 7.04.2006 when the annual report of 2003 was submitted to the State Government Sardar Guru Dayal Singh was already inducted as the Vice Chairman of the Commission. In my opinion, when Sec. 17 of the Act casts duty upon the Commission to present annually a consolidated report on the performance of its function under the Act, it is required to give formal presentation of facts on the performance of its function. The report allegedly submitted by the Commission purportedly u/s. 17 of the Act in the opinion of the State Government is not a report but compilation of various letters and correspondences. Sardar Guru Dayal Singh cannot absolve himself by simply saying that he was inducted as the Vice Chairman of the Commission by Notification dated, 3.09.2005 as the report was submitted on 7.04.2006 i.e. more than six months after he was nominated as its Vice Chairman. Sardar Guru Dayal Singh cannot absolve himself by simply saying that he was inducted as the Vice Chairman of the Commission by Notification dated, 3.09.2005 as the report was submitted on 7.04.2006 i.e. more than six months after he was nominated as its Vice Chairman. The State Government came to the conclusion that the report submitted is not a report but compilation of letters and official of the Commission had failed in carrying out the purpose for which they were nominated. The reasoning given and the conclusion arrived at by the State Government while rescinding the nominations of Sardar Gurudayal Singh and Father Peter cannot be said to be illegal calling for judicial review by this Court under its discretionary jurisdiction. Even if I assume that Sardar Gurudayal Singh and Father Peter were equally responsible, the nomination of Father Peter later on as the Vice Chairman shall itself would not vitiate the Notification rescinding the nomination of the former as the Vice Chairman. The principle that a Public Servant dismissed from service is ineligible for employment in future does not apply in the case of nomination of the Vice Chairman and members of the Commission. It has to be borne in mind that the degree of responsibility of the Vice Chairman and the Member of the Commission is different. The State Governments plea that it nominated Father Peter as the Vice Chairman as he belongs to minority Christian community and the State Government intended to nominate members from all community cannot be said to be fanciful. In my opinion in a country like India, where people of different shades and beliefs live, the State Governments endeavor to nominate persons from all community is in conformity with the principles cherished and the goals set but in the preamble of Constitution of India, being a secular democratic Republic. 22. The reasoning of the learned Single judge that the reinstatement of Father Peter was bad in fact suffers from an error on record. From the writ applications filed by the Appellant - Sardar Guru Dayal Singh, it is clear that he along with Father Peter were nominated as Vice Chairman and Member respectively till further orders by a Notification dated, 3.09.2005 which was in continuation to the nomination of the Chairman of the minority commission vide Notification dated, 18.08.2004. From the writ applications filed by the Appellant - Sardar Guru Dayal Singh, it is clear that he along with Father Peter were nominated as Vice Chairman and Member respectively till further orders by a Notification dated, 3.09.2005 which was in continuation to the nomination of the Chairman of the minority commission vide Notification dated, 18.08.2004. In fact by Notification dated, 3.09.2005 nine persons including the writ Petitioner, Sardar Guru Dayal Singh as Vice Chairman and remaining eight persons as Members of the minority commission by a common Notification dated, 22.07.2006 were nominated. Thus, the nomination of the entire minority commission which came to be constituted by two Notifications dated, 18.08.2004 and 3.09.2005 was set at naught by the State Government by a fresh Notification dated, 23.07.2006 and thereafter, by a fresh Notification, fresh nomination for the post of Chairman, two Vice Chairman and eight Members of the minority commission was made by a Notification dated, 5.08.2006 wherein Father Peter was also nominated as a Vice Chairman. Such fresh nomination of an altogether a new Minority Commission by the Notification dated, 5.08.2006 cannot be held to be an order of reinstatement of Father Peter. Thus, in no event, it can be said that Father Peter was reinstated in Minority Commission by giving fresh lease of life to the old minority commission which as stated above was given a descent burial by cancellation of nominations of the Chairman, two Vice Chairman and eight Members of the Old Minority Commission. 23. The analogy of the learned Single Judge with regard to reinstatement of Father Peter who in his opinion had same case as that of the writ Petitioner-Sardar Guru Dayal Singh does not seem to be also correct on facts specially when it is taken into consideration that these are not civil posts under the State and the applicability of the doctrine of pleasure in such nomination by the State Government cannot be made subject matter of a strict judicial review as is usually available in cases of termination of service of Government servants by this Court under Art. 226 of the Constitution of India. In my aforesaid view, I am supported by earlier judgment of Division Bench dated, 24.03.1992 in Dr. In my aforesaid view, I am supported by earlier judgment of Division Bench dated, 24.03.1992 in Dr. Radha Krishan Poodar V/s. the State of Bihar and Ors., CWJC No. 4491 of 1990 and its analogous cases, where while examining the cancellation of appointment of Chairman of the Board/Corporation, this Court in paragraph No. 50 had held as follows: 50. ...Chairman and members of the Board are appointed to perform a public duty and if the State Government is of the opinion that they have been working in a manner prejudicial to the interest of the Board which will necessarily be prejudicial to the public interest, their removal in those circumstances cannot be said to be unfair. The public interest must overrise the vested interests of such members to hold their offices. Having regard to the nature of appointment and the duty to be performed by the members of the Board, I have no doubt that if there is a clash between their personal interest and the public interest, the former must give way.... 24. It needs to be only mentioned that the aforementioned judgment of the Division Bench has been approved by the Supreme Court in the case of Dr. Raslal Yadav V/s. the State of Bihar and Anr., 1994 2 PLJR 76. Thus, taking into consideration both the facts enumerated above and on the principle as set out in the preceding paragraphs, I am of the opinion that the nomination of Father Peter as Vice Chairman in a fresh exercise of constituting the minority commission can not be said to be illegal only on the ground that earlier his nomination as member was rescinded by the State Government. 25. In the result, both the appeals are allowed. The order of the learned Single Judge quashing the Notifications dated, 22.07.2006 and 5.08.2006 removing Sardar Guru Dayal Singh as Vice Chairman and nomination of Father Peter respectively is set aside. The application filed by Sardar Guru Dayal Singh shall stand dismissed. There shall be no order as to cost.