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2017 DIGILAW 1314 (GAU)

T. C. Tok v. State of Arunachal Pradesh

2017-09-20

AJIT BORTHAKUR

body2017
JUDGMENT : Ajit Borthakur, J. 1. Heard Mr. Jakir Hussain, learned counsel appearing for the petitioner and Mr. Kardak Ete, learned Senior Additional Advocate General, Arunachal Pradesh, assisted by Ms. Anima Mize, learned Additional Senior Government Advocate appearing for the State respondents. Brief facts leading to filing of this writ petition is that the petitioner, herein, was appointed as Chairman, State Council for IT & e-Governance (for short 'SCITeG'), Arunachal Pradesh, in public interest, with immediate effect until further order, vide No. CAB/G-05/2014, dated 16.11.2015, by the Chief Secretary, Government of Arunachal Pradesh, with the condition that his appointment as Chairman will be in the rank of Minister of State with an honorarium of Rs. 50,000/- p.m. plus other entitlements. The said SCITeG is funded by the Government of Arunachal Pradesh and hence, it is covered under Article 12 of the Constitution of India. As per the said order, the petitioner assumed the charges of the Chairman, the Secretary, IT, Government of Arunachal Pradesh, all on a sudden issued Notification, dated 12.2.16, whereby the appointment of petitioner was withdrawn with immediate effect upon imposition of President Rule in the State of Arunachal Pradesh on receiving approval of his Excellency the Governor of Arunachal Pradesh vide U.O. No. 84, dated 12.2.2016, with immediate effect 2. According to the petitioner, the SCITEG have the Memorandum of Association (MoA, for short) approved by the Government of Arunachal Pradesh. Article 4 d (iii) & (iv) of the MoA are as follows: (iii) The Chairman and the members of the Executive Committee appointed or nominated by the State Government under clauses (a) and (c) respectively shall hold office for a period of 3 (three) years. (iv) All members (not being ex-officio members) shall after completing their period of office for 3 (three) years be eligible for re-appointment re-nomination. Article 3 (g) 7 (h) of the said MoA are as follows:- (g) whenever a member desires to resign from the membership of the council, he/she shall address his/her resignation to the Secretary and present it to him. His/her resignation shall take effect only on its acceptance by the Chairman of the Council. (h) Any vacancy in the membership of the Council either by resignation or otherwise shall be filled in by appointment of nomination by the authority entitled to do so. 3. According to Mr. His/her resignation shall take effect only on its acceptance by the Chairman of the Council. (h) Any vacancy in the membership of the Council either by resignation or otherwise shall be filled in by appointment of nomination by the authority entitled to do so. 3. According to Mr. Hussain, learned counsel, the petitioner was withdrawn from the post of Chairman without specifying any ground. More particularly, neither any opportunity of hearing was given to him or any Show Cause Notice was issued to him which amounts to violation of principles of natural justice of the petitioner. According to him, the Chairman and members of the Executive Committee appointed or nominated by the State Government under clauses (a) & (c) respectively, as per Article 4 (d) (iii) of the MoA, shall hold office for a period of 3 (three) years. 4. According to Mr. Hussain, learned counsel, there is no provision in the MoA to cut-short the tenure of the Chairman at any time by withdrawing/removing of Chairman and the State Government cannot exercise the power arbitrarily and whimsically to withdraw the appointment of the petitioner by violating the principles of natural justice. 5. According to Mr. Hussain, the word "tenure" means a term during which the office is held and once a person is appointed to a tenure post, his appointment in the said post begins when he joins and it comes to an end on the completion of tenure unless curtailed on justified, ground and he only goes out of the office on completion of his tenure. Since the authority had issued the impugned Notification, dated 12.02.2016, without any justifying ground, the same is liable to be set aside and quashed and the petitioner may be reinstated as Chairman of SCITeG to enable him to complete the tenure of (three) years as prescribed in the MoA and a further direction may be given to pay him the monthly emoluments and other financial benefits/arrear as per his entitlement. 6. Another contention of Mr. Hussain is that the authority is bound by the MoA of SCITeG and as the impugned Notification, dated 12.02.2016, is unconstitutional, therefore, the same is liable to be set aside and quashed. 6. Another contention of Mr. Hussain is that the authority is bound by the MoA of SCITeG and as the impugned Notification, dated 12.02.2016, is unconstitutional, therefore, the same is liable to be set aside and quashed. Further argument of learned counsel is that the said post is not covered by doctrine of pleasure and termination of the petitioner from the post of Chairman, as such, is unconstitutional and not sustainable in the eye of law. According to him, doctrine of pleasure has not given the license to the authority concerned to act arbitrarily rather it must be exercised for the welfare of the citizens. 7. At this stage, Mr. Hussain, contends that in similarly situated cases as in WP (C) 124 (AP) 2016 and WP (C) 139 (AP) 2016, this Court, vide judgment and order, dated 10.08.2016, set aside the termination orders of the petitioners and directed them to continue to hold the posts of Chairman and further directed the authority concerned to pay the monthly emoluments and other financial benefit arrears as per their entitlement. 8. According to Mr. Hussain, learned counsel, the Government of Arunachal Pradesh has not filled-up the said post of Chaiman of SCITeG till date and in fact, the petitioner was appointed as Chairman upon approval of the Cabinet but the termination order was issued without any approval of the Cabinet which is unconstitutional and therefore, the termination order, impugned herein, is liable to be set aside and quashed by this Court, in exercise of extra-ordinary power under Article 226 of the Constitution of India and as stated above, a direction may be given to the authority concerned for immediate reinstatement of the petitioner as Chairman of SCITeG. 9. In the affidavit-in-opposition filed by respondent No. 3, the State Respondent has raised preliminary, objections to the effect: "(i) That the case projected in the instant writ petition embarks on a purported right claimed by the writ petitioner on having the right to continue as the Chairman of the State Council for IT & e-Governance (in short "SCITeG" following the withdrawal of the pleasure by the Governor of Arunachal Pradesh by vide notification No. SCITeG/08/2011-12, dated 12.01.2016 - (Annexure-C), after the imposition of President Rule on 26.01.2016, in the State of Arunachal Pradesh. Such a factual position does not, in law, clothe the petitioner with any right to claim for continuance in the office of the Chairman of the SCITeG-a Government of Arunachal Pradesh autonomous body after withdrawal of the pleasure by the Governor of Arunachal Pradesh. (ii) That it is ludicrous on the part of the petitioner to vie for being continued as Chairman of the SCITeG when he held that the office during the pleasure of the State Government and whose appointment was made in violation of Article 4 clause (a) of the Memorandum of the SCITeG purely on political considerations. Such suppression of facts as has been resorted to by the petitioner is suffered to warrant dismissal of the writ petition. (iii) That the petitioner has not filed the instant writ petition within a reasonable time assailing withdrawal of pleasure upon the petitioner by the Governor of Arunchal Pradesh, on 12.02.2016, pertinently, the petitioner is sleeping over his right for last 7 months and therefore, filed the instant petition meaning thereby an inordinate delay on the part of the petitioner in filing the instant petition and as such delay has not satisfactory been explained. Therefore, this Hon'ble High Court may be pleased to decline interference with or grant relief to the petitioner in the exercise of its jurisdiction at a belated stage is likely to cause confusion and public inconvenience and bring in injustice in the society. (iv) That it is to state that the petitioner has not made official of the SCITeG as necessary parties as respondent in the writ petition by invoking the principles, enshrined in the proviso to Order 1 Rule 9 of the Code of Civil Procedure, 1908, which provide that impleadment of a necessary party is mandatory and in case of nonjoinder of necessary party, the petitioner plaintiff may not be entitled for the relief sought by him. The petitioner plaintiff may not be entitled for the relief sought by him. The litigant has to ensure that the necessary party is before the Court, be it is plaintiff or a defendant, otherwise the proceedings will have to fail. Hence, the writ petition is liable to be dismissed by this Hon'ble Court. The petitioner plaintiff may not be entitled for the relief sought by him. The litigant has to ensure that the necessary party is before the Court, be it is plaintiff or a defendant, otherwise the proceedings will have to fail. Hence, the writ petition is liable to be dismissed by this Hon'ble Court. (v) That the deponent begs to state that the instant writ petition is not maintainable in the eye of law as because the petitioner before approaching this Hon'ble Court by way of writ petition under Article 226 of the Constitution of India has to establish that, as to how his right has been violated. Admittedly, the petitioner in the instant case, could not show reasonable grounds as to how his rights have been violated under Article 14, 16 and 21 of the Constitution of India, meaning thereby, the petitioner is not aggrieved by the action of the authorities, hence, the instant writ petition is liable to be dismissed on this ground only by this Hon'ble Court." 10. The respondent No. 3 in his affidavit-in-opposition categorically contends that the petitioner was appointed without following due process of appointment in violation of Article 4 Clause (a) of the MoA of SCITeG, purely, on political consideration at the pleasure of the Government. Hence, the applicability of Article 3 (g) & (h) (iii) of the MoA will have no force in law. Furthermore, the petitioner was not appointed by means of any selection process and the Apex Court in a catena of judgments held that for a valid and legal appointment, mandatory compliance of Article 14 and 16 of the constitution should be fulfilled as the equality clause enshrined in Article 16 requires that every such appointment be made by an opens advertisement as to enable all eligible persons to compete on merit. That apart, a person who is appointed in violation of Article 14 and 16, is not entitled to any relief including salary. 11. According to respondent No. 3, the chairman is to be appointed by the State Government from amongst the officers of the State Government departments or an eminent scientist, who, in the opinion of the State Government, has sufficient knowledge or practical experience in the field of IT and e-Governance and alleged matters. 11. According to respondent No. 3, the chairman is to be appointed by the State Government from amongst the officers of the State Government departments or an eminent scientist, who, in the opinion of the State Government, has sufficient knowledge or practical experience in the field of IT and e-Governance and alleged matters. Notwithstanding the above, it is well established that the petitioner was a back-door appointee in violation of constitutional schemes of employment and in violation of MoA of SCITeG, and as such, he has no right to hold, the post of Chairman. According to the said respondent, the petitioner nowhere stated that he holds the field or has disclosed his educational qualification to be appointed to the post of Chairman of SCITeG Therefore, the respondent 'authorities did not violate Articles 14, 16 and 311 of the Constitution of India, inter-alia, principles of natural justice vis-à-vis withdrawal of pleasure in respect of the petitioner by the Governor of Arunachal Pradesh during the Presidential proclamation in the State of Arunachal Pradesh. 12. According to the said respondent No. 3, as the petitioner was appointed illegally as Chairman of SCITeG in violation of laid down norms, therefore, he, does not has the legal right, to assail the decision of the State Government for withdrawing pleasure of the petitioner's appointment. Moreover, the appointment/termination of the petitioner comes within the principle of doctrine of pleasure and hence, he can be removed in terms of his appointment order by interpreting the words "until further orders." 13. According to the said respondent No. 3, the instant case does not come under the purview of the judgment & order, dated 10.08.2016, so passed by this Court in WP (C) 124 (AP) 2016 and WP(C) 139(AP) 2016, as the factual matrix in those cases stand on different footing. Considering the entire matter, the instant writ petition may be dismissed with cost. 14. The respondent No. 2 by filing the affidavit-in-opposition contends that the Department of the Information Technology and Communication, Government of Arunachal Pradesh, being the Nodal Department, would be in a better position to defend the case, at hand. Considering the entire matter, the instant writ petition may be dismissed with cost. 14. The respondent No. 2 by filing the affidavit-in-opposition contends that the Department of the Information Technology and Communication, Government of Arunachal Pradesh, being the Nodal Department, would be in a better position to defend the case, at hand. However, it has been stated that the Governor of Arunachal Pradesh, issued an O.M. dated 26.01.2016, to the effect that the Chief Minister and Council of Ministers, headed by the Chief Minister and all Parliamentary Secretaries, appointed by him, stood dismissed automatically with immediate effect as well as all the political appointees appointed by the Chief Minister, other Ministers, Parliamentary Secretaries, such as Advisors, OSDs, etc., whose term is co-terminus with that of the Chief Minister, concerned Ministers, Parliamentary Secretaries, also stood terminated. In that context, the termination order dated 12.02.2016, of the petitioner is deemed to have been issued by the authority concerned. 15. Furthermore, the stand of the respondent No. 2 is that during proclamation of President's Rule in the State of Arunachal Pradesh, the State Cabinet ceased to function, as such, for withdrawing/terminating the petitioner's Chairmanship of SCITeG, cabinet approval was not required. 16. The Order of appointment of the petitioner to the post of Chairman, SCITeG, Arunachal Pradesh, dated 16.11.2015, issued by the Chief Secretary, Government of Arunachal Pradesh reads as herein below quoted:- "Order The Governor of Arunachal Pradesh is pleased to appoint Shri T.C. Tok, Social Activist and Public leader as Chairman, AP State Council of Information Technology & E-Governance, in public interest with immediate effect, until further order. The appointment is made with the following terms and conditions. (1) He will be in the rank of Minister of State with an honorarium of Rs. 50,000% (Rupees fifty thousand) only per month and entitled to TA/DA on official tour only at the rate as applicable to the Secretary to the State Government. (Ramesh Negi) Chief Secretary" 17. The appointment is made with the following terms and conditions. (1) He will be in the rank of Minister of State with an honorarium of Rs. 50,000% (Rupees fifty thousand) only per month and entitled to TA/DA on official tour only at the rate as applicable to the Secretary to the State Government. (Ramesh Negi) Chief Secretary" 17. Pursuant to the above order of appointment, the petitioner assumed the charge of Chairman, SCITeG, Arunachal Pradesh on 16.11.2015, and his aforesaid appointment was withdrawn with immediate effect, on prior approval of the Governor of Arunachal Pradesh, by notification dated 12.02.2016, issued by the Secretary (IT), Government of Arunachal Pradesh, which is impugned in the instant petition reads as follows: "Notification Consequent upon imposition of President's Rule in the State of Arunachal Pradesh, the Governor of Arunachal Pradesh is pleased to withdraw the appointment of Shri. T.C. Tok from the post of Chairman, State Council for IT & e-Governance, Itanagar with immediate effect. This issues, with the approval of His Excellency the Governor of Arunachal Pradesh vide U.O. No. 84 dated 12.02.2016. Sd/- Gaken Ete Secretary (IT) Govt. of Arunachal Pradesh Dated Itanager, the 12th Feb' 2016" 18. The above order of appointment, as its terms indicated, the petitioner's appointment to the post was not made by publishing advertisement or through selection process and appointed till the pleasure of the Government subsisted, that is, 'until further order' indicating thereby that no fixed tenure for continuation of his appointment so made or for a tenure of 3 (three) years in terms of Article 4 (d)(iii) of the MoA of the SCITeG, quoted above. Therefore, it is apparent that the petitioner was appointed to the said post purely on temporary basis and without following the set rules of appointment, more specifically Article 4 clause (a) of the MOA of the SCITeG and for an unspecified period till the Government pleased to allow him to continue in the post. Article 4(a) of the MOA of the SCITeG provides:- "4. Executive Committee There shall be an Executive Committee to function as the Governing Body of the Council. The Executive Committee shall consist of minimum 7 (seven) and maximum 113 (thirteen) members and shall consist of the following persons namely: (a) The chairman to be appointed by the State Govt. from amongst the officers of the State Govt. Executive Committee There shall be an Executive Committee to function as the Governing Body of the Council. The Executive Committee shall consist of minimum 7 (seven) and maximum 113 (thirteen) members and shall consist of the following persons namely: (a) The chairman to be appointed by the State Govt. from amongst the officers of the State Govt. Departments or an eminent scientist, who in the opinion of the State Govt. have sufficient knowledge or practical, experience in the field of IT and e-Governance and allied matters." 19. It is pertinent to be mentioned that the petitioner in his petition has not contended to have possessed the requisite eligibility qualification for appointment to the post of Chairman of SCITeG Therefore, it appears that the petitioner's appointment to the said post was based on political consideration, without due process of law, and as such, the termination or withdrawal of the appointment notification was not in the manner provided in the rules of MOA of SCITeG. 20. In Union of India v. Tulsiram Patel, reported in (1985) 3 SCC 398 , the Apex Court succinctly explained the distinction between a statutory appointment and pleasure appointment thus (summarised)- "The distinction between statutory appointment and pleasure appointment has to be kept in mind. The pleasure appointments are such where the incumbents are appointed at the pleasure of the President, like Governors etc. As against this, statutory appointments are made under the statute and the service conditions of the incumbents are governed by the statute. They are not pleasure appointments. Governor appointed under the Constitution is purely pleasure appointment or appointment of such nature which the incumbent holds at the pleasure of the President or the Governors as the case may be. Such appointments may be cut short." 21. In the backdrop of the facts alleged by the petitioner, the basic issue that arises is whether appointment withdrawal notification in respect of the petitioner was bad in law for non-specifying any ground and failure to observe principles of natural justice and if so whether he is entitled to be re-instated with all consequential benefits as Chairman, SCITeG, Arunachal Pradesh to complete the tenure of 3 (three) years fixed as per Article 4(d)(iii) of the MOA of SCITeG? 22. 22. It is noticed that by notification vide G.S.R. 105 (E) : dated 26.01.2016, issued by the Ministry of Home Affairs, India, the President of India proclaimed the President's Rule in the State of Arunachal Pradesh under Article 356 of the Constitution of India and pursuant thereto, the Governor of Arunachal Pradesh issued an Office Memorandum vide GOV-AP/2015, dated 26.01.2016 to the effect that the Chief Minister and the Council of Ministers, headed by the Chief Minister and all Parliamentary Secretaries, appointed by him stood dismissed automatically with immediate effect. The aforesaid Office Memorandum, at the same time, also resulted in termination of all political appointees. It is also inter alia noticed from the Order of the President of India vide GSR 106 (E), dated 26.01.2016, that pursuant to the aforesaid proclamation of the President's rule in the State, all the functions of the Government of the State of Arunachal Pradesh and all the powers exercisable by the Governor under the Constitution were made to the superintendence, direction and control of the President, which were exercisable also by the Governor of the State, meaning thereby that during the Proclamation of the President's Rule in the State, the State Cabinet ceased to function and all powers of the State Government vested with the Governor of the State and in consequence whereof the political appointment of the petitioner stood withdrawn in principle vide the aforesaid Office Memorandum, who by virtue of the political position enjoyed the rank of the Minister of State as Chairman of SCITeG. In other words, the post held by the petitioner was on political nomination of the State Government, without any process of selection prescribed by selection rules and specifying the term of office, and as such, his appointment and termination certainly fall within the doctrine of pleasure enshrined in Article 310(1) of the Constitution. Therefore, the ground of withdrawal of the petitioner's appointment "consequent upon imposition of the President's Rule in the State of Arunachal Pradesh" on the order of the Governor of the State cannot be termed as arbitrary, malafide, capricious or whimsical action. In State of Bihar & Ors. Therefore, the ground of withdrawal of the petitioner's appointment "consequent upon imposition of the President's Rule in the State of Arunachal Pradesh" on the order of the Governor of the State cannot be termed as arbitrary, malafide, capricious or whimsical action. In State of Bihar & Ors. v. Chandrashewar Pathak, reported in (2014) 13 SCC 232 , the Apex Court held that no person can be appointed even on temporary or ad hoc without inviting applications from all eligible candidates and in absence of any advertisement or selection process, his appointment cannot be protected and he can validly be terminated. It is noticed that the petitioner has not impleaded the Department of Information Technology and Communication, which is the Nodal Department and the SCITeG, Arunachal Pradesh, which is an autonomous body despite being necessary party, and in absence of them, the petitioner's right to relief cannot effectively be adjudicated and enforced at a belated stage after his appointment was withdrawn on 12.02.2016. The petitioner, it is seen, has not even explained the reason, which prevented him in filing the petition within a reasonable time after so withdrawal of his appointment. 23. In the backdrop of rival contentions of the parties and discussions made thereon, and the right of the Governor in withdrawing his pleasure, in respect of the political nominations or appointment to any post as in the case of the present petitioner, whose appointment was without fixed tenure, is absolute and unrestricted in the absence of any procedure or rule laid down in the Constitution as to the manner of withdrawal of such pleasure, it can be inferred that there was no violation of the principles of natural justice, when his appointment without fixed tenure, but 'until further order' was withdrawn following proclamation of the President's Rule in the State of Arunachal Pradesh. This Court's earlier judgments in WP (C) No. 124 (AP) 2016 and WP (C) No. 139 (AP) 2016 were being in different factual matrix, the common judgment rendered therein is not applicable to the present petitioner. Reference to Uttam Kumar Sarkar v. Ratan Kumar Barman, 2005 (2) GLT 168 may be apposite in this context. For the reasons, set forth above, the writ petition stands dismissed. No cost. Petition Dismissed.