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2012 DIGILAW 1848 (RAJ)

SAHI RAM BISHNOI v. STATE OF RAJASTHAN

2012-08-27

SANGEET LODHA

body2012
Judgment 1. This writ petition is directed against notification dated 20.11.09 issued by the Government of Rajasthan, whereby in exercise of the power conferred by clause (a) of sub-section (1) of Section 4 of Rajasthan Bhoodan Yagna Act , 1954 ('the Act of 1954') read with Section 18 of Rajasthan General Clauses Act, 1955 (“General Clauses Act”), the notification dated 4.10.08 nominating the petitioner herein on the post of Chairperson of Rajasthan Bhoodan Yagna Board ('the Board'), stands withdrawn. 2. The Act of 1954 was enacted by the State legislature with an object to facilitate the activities in connection with the Bhoodan Yagna initiated by Acharya Vinoba Bhawe and to provide for constitution of Bhoodan Yagna Board, the donation of the land to the said Board, the distribution of land received in donation to landless persons or for community purposes and to provide for matters ancillary thereto. 3. The Board established and incorporated in terms of Section 3 of the Act consists of the Chairman, the Secretary and six or more but not exceeding ten members to be nominated by the State Government. The nomination of Chairman, the Secretary and the members is notified by the State Government in the Rajasthan Gazette. As per sub-section (3) of Section 4, the term of Chairman, Secretary and members nominated is four years from the date of the notification issued under sub-section (2) of Section 4 and they are eligible for re-nomination. 4. The petitioner was nominated as Chairman of the Board by the State Government vide notification dated 4.10.08 issued in exercise of the power conferred by clause (a) of sub-section (1) of Section 4 of the Act of 1954, notified in the Rajasthan Gazette, for a period of four years. Pursuant thereto, the petitioner assumed the charge of the office on 6.10.08. However, nomination of the petitioner as Chairman has been withdrawn vide notification dated 20.11.09 issued by the State Government in purported exercise of the power conferred by clause (a) of sub-section (1) of Section 4 of the Act of 1954 read with Section 18 of General Clauses Act. Hence, this petition. 5. However, nomination of the petitioner as Chairman has been withdrawn vide notification dated 20.11.09 issued by the State Government in purported exercise of the power conferred by clause (a) of sub-section (1) of Section 4 of the Act of 1954 read with Section 18 of General Clauses Act. Hence, this petition. 5. Learned counsel for the petitioner contended that the petitioner having been appointed as Chairman of the Board with the tenure of four years in terms of sub-section (3) of Section 4 of the Act of 1954, the State Government had no authority to withdraw the same without assigning any reason. Learned counsel submitted that the Chairman, Secretary or the members of the Board once appointed for the term specified, their tenure cannot be curtailed by withdrawing the notification appointing them on the said posts. Learned counsel urged that the office bearer of the Board cannot be removed except in the circumstances referred to in Second proviso to Section 4 after following the due procedure and after giving an opportunity of hearing to the persons holding the office of Chairman, Secretary or member, as the case may be. Learned counsel submitted that the impugned action of the respondents in curtailing the tenure of the petitioner by issuing the impugned notification in the garb of Section 18 of the General Clauses Act is illegal, mala fide, arbitrary, discriminatory and falls foul of Article 14 of the Constitution of India. In support of his contention, learned counsel relied upon a decision of the Hon'ble Supreme Court in the matter of “Union of India & Anr. v. Shardindu”, AIR 2007 SC 2204 and the decisions of this court in the matter of “Manik Chand Surana v. State of Rajasthan”, 1993 (2) WLC (Raj)49, “Rajendra Singh Rajpurohit v. State of Rajasthan”(S.B.C.Writ Petition No.7061/09) decided on 14.12.10. Learned counsel urged that in terms of Section 5, the State Government is empowered to dissolve the Board and reconstitute the Board in accordance with the provisions of the Act but it has no power to bring the statutory term of the office bearers of the Board to an end by withdrawing the nomination without assigning any reasons. 6. Learned counsel urged that in terms of Section 5, the State Government is empowered to dissolve the Board and reconstitute the Board in accordance with the provisions of the Act but it has no power to bring the statutory term of the office bearers of the Board to an end by withdrawing the nomination without assigning any reasons. 6. On the other hand, learned Additional Advocate General submitted that the nomination of the petitioner as Chairman of the Board was made solely on political considerations without undertaking any selection process by then party in power and therefore, the notification issued withdrawing the nomination for parity of considerations with the change of the Government cannot be faulted with. Learned AAG would submit that the petitioner was holding the office at the pleasure of the Government and since by virtue of Section 18 of the General Clauses Act, power to appoint includes power of suspension, removal and dismissal therefore, the action of the Government in withdrawing the nomination is well within its jurisdiction. Learned AAG submitted that though in the impugned notification, the term withdrawal has been used but in effect, it amounts to removal of the petitioner from the office of the Chairman of the Board. Learned AAG submitted that even otherwise, the petitioner who has been nominated as Chairman was holding the office at the pleasure of the Government and therefore, before his removal from the office, no opportunity of hearing was required to be given and the State Government is under no statutory obligation to assign any reasons for the action taken. In support of his contention, learned AAG has relied upon a decision of the Hon'ble Supreme Court in the matter of “M/s Heckett Engineering Company v. Their workmen”, AIR 1977 SC 2257 and a decision of this court in the matter of “S.D.Kapoor v. The Chancellor, Jai Narain Vyas University”, 1997(1) WLC 218 . Learned counsel submitted that second proviso to Section 4 of the Act of 1954 deals with the removal of members of the Board from the office under certain circumstances and therefore, its applicability cannot be extended to other offices such as Chairperson of the Board. 7. I have considered the rival submissions, perused the material on record and gone through the decisions cited at the bar. 8. 7. I have considered the rival submissions, perused the material on record and gone through the decisions cited at the bar. 8. Section 4 of the Act of 1954 deals with Constitution of Board, nomination of Chairman, Secretary and members of the Board, the term of office, and removal from office of any member of the Board by the State Government in the circumstances specified. The controversy involved in this petition rolls round the provisions of Section 4 of the Act of 1954, which may be beneficially quoted: “Constitution of the Board:- (1) The Board shall consist of the following, namely:- (a) The Chairman and the Secretary to be nominated by the State Government. (b) Six or more but not exceeding ten members to be nominated by the State Government. (2) The nomination of the Chairman, the Secretary and the members shall be notified in the Rajasthan Gazette. (3) The Chairman, the Secretary and members of the Board shall hold office for four years from the date of the notification under sub-section(2), and shall be eligible for nomination: Provided that the Chairman, the Secretary and members of the Board nominated under notification No.F.8 (26)Rev/B-68, dated 22nd June, 1976 of the Revenue (Group-IV) Department of the Government of Rajasthan, published in the Rajasthan Gazette (Extraordinary) Part IV C of the even date shall hold office for a period of sixty days from the commencement of the Rajasthan Bhoodan Yagna (Amendment and Validation) Act, 1984, or until a new Board is constituted, whichever is earlier. Provided further that the State Government may, remove from office any member of the Board who has been adjudged and insolvent or has been convicted of a offence involving moral turpitude and also any member who - (a) has become physically or mentally incapable of acting as such member, or (b) has so abused his position as to render his continuance in office detrimental to the public interest, or (c) has failed to perform his duties.” 9. It is a cardinal principle of construction that the words of statute are first understood in their natural, ordinary or popular sense and the phrases and sentences are construed according to their grammatical meaning unless that leads to some absurdity or there is something in the context or in the object of the statute to suggest the contrary. It is a cardinal principle of construction that the words of statute are first understood in their natural, ordinary or popular sense and the phrases and sentences are construed according to their grammatical meaning unless that leads to some absurdity or there is something in the context or in the object of the statute to suggest the contrary. The intention of the legislature is primarily to be gathered from the language used in the statute which means that attention should be paid to what has been said as also to what has not been said.(vide Mohammad Ali Khan & Ors. v. Commissioner of Wealth Tax, New Delhi, (1997)3 SCC 511 ) It is equally well settled that when the words used are not ambiguous literal meaning has to be applied and the court cannot read something in the provision, which is not there. 10. Indisputably, as per provisions of sub-section (1) of Section 4, the Board constituted shall consist of the Chairman, Secretary and six or more but not exceeding ten members to be nominated by the State Government. As per sub-section (3), the tenure of the Chairman, Secretary and members of the Board shall be four years from the date of notification under subsection (2). It is pertinent to note that Second proviso to subsection (3) empowers the State Government to remove from office any member of the Board who has been adjudged insolvent or has been convicted of an offence involving moral turpitude and who has become physically or mentally incapable of acting as such member or has so abused his position as to render his continuance in office detrimental to the public interest or has failed to perform his duties. However, a plain reading of the said proviso also makes it abundantly clear that it deals with the removal of the members of the Board and does not specifically include the Chairman and Secretary nominated by the Government within its purview. 11. However, a plain reading of the said proviso also makes it abundantly clear that it deals with the removal of the members of the Board and does not specifically include the Chairman and Secretary nominated by the Government within its purview. 11. It is true that the Chairman, Secretary and members of the Board are all nominated by the State Government and obviously, the provision as aforesaid has been incorporated with a view that a person nominated should not be permitted to hold the office if he is rendered incapable on account of any of the circumstances referred to hereinabove and therefore, there is absolutely no reason as to why the Chairman and Secretary of the Board should be excluded from the purview of proviso to sub-section 12 (3) of Section 4. But then, the matter which should have been but has not been provided for in a statute cannot be supplied by the courts, as to do so will be legislation and not construction. (vide Justice G.P.Singh, Principles of Statutory Interpretation, 12th Edition). Suffice it to say that there is a legislative casus omissus but, this court cannot remedy the defect by stretching or interpolating the words, it is for the legislature to fill the gap or omission in the provisions of the Act. In this view of the matter, this court is not inclined to hold that the proviso to subsection (3) of Section 4 which deals with removal of members of the Board in the circumstances specified covers within its ambit the Chairman and the Secretary of the Board as well. 12. Coming to the contention of the learned AAG that the petitioner was nominated at the pleasure of the Government and therefore, by virtue of clause 18 of the General Clauses Act, the State Government being nominating authority is empowered to remove the petitioner without assigning any reasons. Indisputably, in terms of sub-section (3) of Section 4 of the Act of 1954, the tenure of the office of Chairman, Secretary and members shall be four years from the date of notification issued under sub-section(2) of Section 4 and they shall be eligible for re-nomination. The language of sub-section (2) & (3) of Section 4 shows that the pleasure doctrine has not been specifically incorporated in the statute. The language of sub-section (2) & (3) of Section 4 shows that the pleasure doctrine has not been specifically incorporated in the statute. In other words, the statute nowhere provides that the Chairman, Secretary and members of the Board shall hold the office at the pleasure of the State Government and their statutory tenure of four years could be curtailed by the State Government exercising its discretion without assigning any reasons. 13. It is true that by virtue of Section 18 of General Clauses Act, the authority appointing is empowered to remove, suspend or dismiss the person appointed. But then, it only recognizes the power of the appointing authority to suspend, remove or dismiss the person appointed, it in no manner confers any power on the appointing authority which is not already there. This aspect of the matter stands settled by various decisions of this Court and the Hon'ble Supreme Court. 14. In Manik Chand Surana's case (supra), this court while considering an issue relating to removal of the Chairman of the Rajasthan Khadi and Village Industries Act, 1955, while dealing with the ambit and scope of Section 18 of the General Clauses Act, observed:- “10. It may also be stated that S.18 of the Rajasthan General Clauses Act does not confer a new right. It only furnishes a rule of interpretation and enacts that a power of appointment includes and implies within itself the power of removal and wherever an authority is empowered to make certain appointment, automatically it get authority to exercise the power of removal in respect of the person so appointed. In other words, S.18 of the Rajasthan General Clauses Act only enunciates the well-established rule of general law that an authority with power to appoint a person can also suspend or dismiss him, but in each case, we have to look to the Act or the rules under which an appointment has been made or conditions prescribed for an appointment, suspension or dismissal. Therefore, where a person holds an office under the provisions of a statute, which fixes certain modes and methods for appointment, dismissal or removal, such provisions must be complied with in regard to all these matters. The power of removal in the appointing authority is, therefore, subject to conditions of service prescribed in the Act or rules or guidelines and other constitutional protections available to the employee.”(emphasis added) 15. The power of removal in the appointing authority is, therefore, subject to conditions of service prescribed in the Act or rules or guidelines and other constitutional protections available to the employee.”(emphasis added) 15. Considering the question of removal of the Chairman of the Board without assigning any good cause and without following the principle of natural justice, just with the change of government, the court observed:- “34. It cannot be disputed that the petitioner was holding a public office. Though it cannot be said that a public office is equated with a 'civil post', but the office of the Chairman of the Board undoubtedly involves the duties of public nature and of vital importance to the public. The various functions of the Board illustrate the importance and public nature of the office. I have held in the earlier part of the judgment that the Chairman has a tenure of two years from the date of his appointment. Therefore, I am of the confirmed view that the action of the respondents terminating the service of the petitioner without any good cause and without following the principles of natural justice is arbitrary and invalid. I do not agree with Mr. Mehta that it is a political post and simply by a change in the Government , the holder of this post can be removed without assigning good cause and following the principle of natural justice. On the contrary, the functions of the Board and the nature of duties of the Chairman require a continuity on the post. After submission of S.4 by the Amending Act of 1968, a whole time appointment to the post of Chairman of the Board is made, in view of the vast functions and duties, attached with this office. Therefore, judged from this angle also, the order of removal of the petitioner is invalid and cannot be sustained.” (emphasis added) 16. The ratio decidendi in Manik Chand Surana's case (supra), has been further followed by this court in Rajendra Singh Rajpurohit's case (supra). 17. In S.D.Kapoor's case relied upon by the learned AAG, this court held that power of removal is necessary concomitant of power to appoint within Section 18 of General Clauses Act provided, such removal order is passed reasonably and not arbitrarily. However, the court categorically held that the pleasure doctrine is not importable u/s 18 & 23 of the General Clauses Act. 18. However, the court categorically held that the pleasure doctrine is not importable u/s 18 & 23 of the General Clauses Act. 18. In M/s. Heckett Engineering's case (supra), relied upon by learned AAG, the Hon'ble Supreme Court while following its earlier decision in Lekhraj Satramdas Lalvani vs. Deputy Custodian-cum-Managing Officer, AIR 1966 SC 334 and a decision of Federal Court in Kutoor Vengayil Rayarappan Nayanar v. Kutoor Vengayil Valia Madhavi Amma, (1949 FCR 667: AIR 1950 FC 140), observed that “It is now firmly established that the power to terminate service is a necessary adjunct of the power of appointment and is exercised as an incident to or consequence of that power.” 19. Thus, indisputably, the authority appointing or nominating is empowered to remove, suspend or dismiss the person appointed/nominated or withdraw the nomination made. But then, the manner in which the power vested is exercised by the authority concerned is always subject to judicial review and no governmental authority can be permitted to exercise the implied power of suspension, removal or dismissal of the person appointed at its whims and fancy. Even the subjective satisfaction of the State Government in this regard must be based on relevant material on record. The record must reflect that such circumstances existed, which necessitated exercise of the power invoking pleasure doctrine so as to safeguard the interest of the Board or the larger public interest. The reasons for removal or withdrawal of nomination may not be communicated but at least, the record must show that why a person appointed/nominated to a public office exercising the powers conferred by a Statute is being removed from the office, pre maturely. Indisputably, there is nothing on record to justify the petitioner's removal except the stand taken by the AAG before this court that the petitioner was nominated for political considerations and therefore, with the change of the party in power, he could be removed from the office on the same considerations. 20. It is to be noticed that the Act of 1954 has been enacted with the specific object to properly regulate the donation of the land and distribution thereof to the landless persons or for community purposes. 20. It is to be noticed that the Act of 1954 has been enacted with the specific object to properly regulate the donation of the land and distribution thereof to the landless persons or for community purposes. Needless to say that while constituting the Board, the State Government is under an obligation to take into consideration the capability of the persons sought to be nominated as Chairman, Secretary or members of the Board to devotedly work in furtherance of the activities in connection with the Bhoodan Yagna initiated by Shri Acharya Vinoba Bhawe and therefore, to say that the nomination of the various office bearers of the Board could be made by the State Government solely on political considerations of the party in power, in considered opinion of this court, runs contrary to the object and the spirit of the Act of 1954. Whichever may be the party in power, we have “the Government of laws and not of men” and therefore, while taking the decision, larger interest of the public is of paramount consideration and the same cannot be solely based on political considerations of the party in power. Be that as it may, the nomination of the Chairman of the Board must have preceded by the objective consideration of the capability of the person appointed to perform the duties assigned under the statute and therefore, the contention of the learned AAG that the petitioner was appointed solely on political considerations and therefore, his nomination is permissible to be withdrawn by the change of the party in power on political considerations cannot be countenanced by this court. 21. In the instant case, the petitioner had already assumed the charge of the office on 6.10.08 and had continued in the office for about a period of more than one year. It is not the case of the respondents that petitioner was found acting in a manner prejudicial or detrimental to the interest of the Board. Thus, the withdrawal of the nomination by the State Government at this stage, which has evil and civil consequences, in such a perfunctory manner solely on political considerations, without there being existence of the circumstances necessitating exercise of such power is not sustainable in the eye of law. 22. In view of the discussion above, the writ petition succeeds, it is hereby allowed. 22. In view of the discussion above, the writ petition succeeds, it is hereby allowed. The impugned notification dated 20.11.09 withdrawing the nomination of the petitioner from the post of Chairman of Rajasthan Bhoodan Yagna Board made vide notification dated 4.10.08, is quashed. The petitioner shall continue as Chairman of Rajasthan Bhoodan Yagna Board till the expiry of his tenure unless removed from the office earlier in accordance with law. Needless to say that the petitioner shall be permitted to assume the charge of the office of the Chairman of the Board forthwith. No order as to costs.