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Madhya Pradesh High Court · body

2019 DIGILAW 315 (MP)

State of M. P. v. Bhatnagar

2019-04-12

RAJEEV KUMAR SHRIVASTAVA, SANJAY YADAV

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JUDGMENT 1. There is a delay of 23 days in filing Writ Appeal No. 604/2019, condonation whereof is being sought vide I.A. No. 1619/2019. For the reasons which find mention in paragraphs No. 2 and 3 of the application which prevented the appellant from filing the appeal within a period of limitation, sufficient cause is made out. Consequently, delay is condoned. I.A. No. 1619/2019 stands disposed of. 2. This order shall lead to final disposal of Writ Appeal No. 604/2019 and Writ Appeal No. 57/2019. 3. Both the appeals are directed against the order dated 13.12.2018 passed in Writ Petition No. 3717/2018. 4. Learned Single Judge was in seisin with the challenge to the appointment of respondent No. 2 Smt. Swaraj Mathur as Member (Female), Juvenile Justice Board and Child Welfare Committee. Respon-dent No. 2 was nominated as Member (Female) vide Notification No. 2373-2786-2017-50(2), dated 11.10.2017 published in Madhya Pradesh Gazette dated 13.10.2017, by the State Govern-ment in exercise of power conferred in it by sub-sections (1) and (2) of section 27 of the Juvenile Justice (Care and Protection of Children) Act, 2015 read with rule 88 (10) of the Juvenile Justice (Care and Protection of Children) Model Rules, 2016 made thereunder. 5. The notification was challenged on the ground that the same was dehors the stipulations contained in sub-rule (7) of rule 88 of the rules 2016, which mandates: “(7) The Selection Committee shall, on the basis of the evaluation procedure and criteria, select and recommend a panel of names in order of merit to the State Government for appointment as Members of the Board of Chairperson or Members of the Committee as the case may be.” 6. Learned Single Judge, on the findings that the Selection Committee instead of adhering to rule 88 (7) as it appears in the English version of the Rules 2016, followed the stipulations contained in the Hindi translation of the rule which provides. ^^¼7½ p;u lfefr cksMZ ds lnL;ksa ;k lfefr ds v/;{k ;k lnL;ksa ds :i esa fu;qfDr ds fy,] tSlk Hkh ekeyk gks] ewY;kadu ÁfØ;k vkSj ekunaMksa ds vk/kkj ij iSuy esa ls ukeksa dk p;u vkSj flQkfj'k jkT; ljdkj dks djsxhA** 7. ^^¼7½ p;u lfefr cksMZ ds lnL;ksa ;k lfefr ds v/;{k ;k lnL;ksa ds :i esa fu;qfDr ds fy,] tSlk Hkh ekeyk gks] ewY;kadu ÁfØ;k vkSj ekunaMksa ds vk/kkj ij iSuy esa ls ukeksa dk p;u vkSj flQkfj'k jkT; ljdkj dks djsxhA** 7. Taking note of marked difference in respect of the procedure to be adhered to in the English version whereunder the Selection Committee was under statutory obligation on the basis of the evaluation procedure and criteria, to select and recommend a panel of names in order of merit to the State Govern-ment for appointment of Members of the Commi-ttee whereas the procedure followed was only preparing a panel and recommen-ding the name as per Hindi translation of rule 88 (7) of the Rules 2016, learned Single Judge set aside the nomination of respondent No. 2 as Member being dehors the Rules, observing: 7. In fact, learned counsel for the petitioner has placed reliance on the provisions contained in the Official Languages Act, 1963, which provides in section 3 that the English language may, as from the appointed day, continue to be used in addition to Hindi for all official purposes of the Union in which it was being used immediately before that day; and for the transaction of business in Parlia-ment. It is submitted that section 5 (1) (b) provides for a translation in Hindi published under the authority of the President in the Official Gazette on and after appoin-ted day of any order, rule, regulation or by-law issued under the Constitution or under any central Act, shall be deemed to be authorita-tive text thereof in Hindi. Thus, for the purpose of any rules promulgated by the authority of Central Govern- ment, as is the case of Model Rules framed by the Central Government in exercise of the powers conferred by the provisions of sub-section (1) of section 110 of the Juvenile Justice (Care and Protection of Children) Act, 2015, English version will have predomin-ance over Hindi version, as has been held by the Hon'ble Supreme Court in the case of Prabhat Kumar Sharma v. U.P.S.C. and others as reported in (2006) 10 SCC 587 , wherein it has been held that English language continues to remain authori-tative text in respect of Acts of Parliament. 8. 8. On the other hand, learned counsel for the State has placed reliance on the Division Bench judgment of this court at Principal seat in the case of Chief Municipal Officer v. Hindustan Copper Limited and others (W. P. No. 1349/2017). 9. After hearing learned counsel for the parties and perusing the material placed on record, this Court is of the opinion that judgment cited by the learned Govt. Advocate in the case of Chief Municipal Officer (supra) is not applicable to the facts and circumsta-nces of the case, inasmuch as it is not the case of the State that they have framed their own rules on the basis of Model Rules and therefore, Hindi version as per the authorization of the Governor of the State in terms of the provisions contained in Article 348 (3) of the Constitution of India shall be authoritative version. In the present case, since State has also adopted the Model Rules framed by the Central Government, then English version alone shall be authentic version and since sub-rule (7) of rule 88 provides for recommending the name of eligible candidates in the order of merit, then the person, whose name is recommen-ded at S. No. 1 shall be deemed to be more meritorious, unless otherwise clarified by the Selection Committee. Therefore, this petition deserves to be allowed and is allowed. State to bear cost of this petition payable to the petitioner which is quantified at Rs. 10,000/- 8. When these findings are tested on the touchstone of provisions contained under Article 348 (1) (b) of the Constitution which mandates that “the authoritative texts— (i) of all Bills to be introduced or amendments thereto to be moved in either House of Parliament or in the House or either House of the Legislature of a State, (ii) of all Acts passed by Parliament or the Legislature of a State and of all Ordinances promulgated by the President or the Governor of a State, and (iii) of all orders, rules, regulations and bye-laws issued under this Constitution or under any law made by Parliament or the Legislature of a State, shall be in the English language.” And provisions contained under section 3 of the Official Language Act, 1963, cannot be faulted with. 9. 9. The contention on behalf of the appellant-State that, the State of Madhya Pradesh having adopted its official language to be Hindi, it is the Hindi translation of rule 88 (7) of 2016 Rules which is applicable and is adhered to, though sound attractive; however, when tested on the anvil of sub-section (1), section 110 of 2015 Act which stipulates: “The State Government shall, by notification in the Official Gazette, make rules to carry out the purposes of this Act. Provided that the Central Government may, frame model rules in respect of all or any of the matters with respect to which the State Government is required to make rules and where any such model rules have been framed in respect of any such matter, they shall apply to the State mutatis mutandis until the rules in respect of that matter are made by the State Government and while making any such rules, they conform to such model rules.” (emphasis supplied) And in absence of the State of Madhya Pradesh having framed separate rules, the stipulations contained in Model Rules 2016 are applicable mutatis mutandis; which being Central Rules, the official language whereof is English, in our considered opinion, the English version shall prevail in place of Hindi translation which connotes different perception. 10. One more aspect deserves to be addressed. Learned Single Judge, in opening paragraph of the order dated 13.12.2018, mentions that the petitioner is seeking writ in the nature of quo warranto; whereas, in fact the relief sought is in the nature of the mandamus and direction. The petitioner being one of the candidates questioned the procedure adhered to by the Committee in selecting the member. The petitioner thus sought quashment of nomination of respondent No. 2 on the ground of procedural ultra vires and also sought direction for appointment. For a writ of quo warranto, as held in University Of Mysore & Anr. v. C. D. Govinda Rao & Anr. ( AIR 1965 SC 491 ) that the petitioner has to satisfy the Court, inter alia, that the office in question is a public office and is held by usurper without legal authority. Present is not such a case. Be that as it may. v. C. D. Govinda Rao & Anr. ( AIR 1965 SC 491 ) that the petitioner has to satisfy the Court, inter alia, that the office in question is a public office and is held by usurper without legal authority. Present is not such a case. Be that as it may. Since the petitioner is able to establish violation of rule 88 (7) of the Rules 2016 in making selection and since trite it is that when a power is given to do a certain thing in a certain manner, the thing must be done in that way or not at all. (For the proposition, please see: Nazir Ahmed v. King Emperor [ AIR 1936 PC 253 (1)], State of Uttar Pradesh v. Singhara Singh [ AIR 1964 SC 358 ], Dhanajaya Reddy v. State of Karnataka [ (2001) 4 SCC 9 ], learned Single Judge, in our considered opinion, was well within his jurisdiction in quashing the nomination of respondent No. 2 as Member (Female), Juvenile Justice Board and Child Welfare Committee. 11. However, we do not approve the imposition of cost on the State of Madhya Pradesh, because it was the Committee which had adhered to wrong procedure, the action of the State is consequential thereof. In view whereof, we set aside the order imposing cost. 12. Since the nomination of respondent No. 2 is quashed because of the procedural ulta vires, we direct the State to take steps afresh by calling fresh application expeditiously for nomination of Member (Female), Juvenile Justice Board and Child Welfare Committee, preferably within three months from the date of communication of this order. 13. Both the appeals are disposed of finally in above terms. No costs. 14. Interim order stands vacated.