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2022 DIGILAW 14 (AP)

Anchala Venkata Vani v. State of Andhra Pradesh

2022-01-04

R.RAGHUNANDAN RAO

body2022
ORDER : The Government of Andhra Pradesh issued G.O.Ms.No.35, dated 12.07.2016, appointing six members to the Andhra Pradesh Women’s Commission constituted under the Andhra Pradesh Women’s Commission Act, 1998 (for short, ‘the Act’). This G.O., in terms of Section 6 of the Act stated that the term of the members would be for a period of five years from the date on which the members assume office. Earlier, the Government had appointed a chairperson to the Commission by G.O.Ms.No.4, dated 27.01.2016, giving her a term of five years from the date on which she assumes offices. The Chairperson is said to have assumed office on 09.02.2016. As Smt. T.Anuradha, one of the members appointed under G.O.Ms.No.35, dated 12.07.2016, did not assume office, the petitioner herein was appointed in her place by the Government by way of G.O.Ms.No.25, dated 24.09.2018. This G.O. contained a stipulation that her term would be for a period of five years from the date of assumption of charge by the Chairperson. 2. On 10.02.2021, the Government issued memo No.WDC01/473240/Prog.II/A2/2018, informing the petitioner that she demits office on 10.02.2021 as the Chairperson of the Commission has assumed charge on 09.02.2016 and her term of office was ending on 10.02.2021. Aggrieved by the said memo, the petitioner had approached this Court by way of the present writ petition. Subsequently, the petitioner also amended her prayer to challenge Clause 4 of G.O.Ms.No.25, dated 24.09.2018. 3. The case of the petitioner is that the initial term of office set out in G.O.Ms.No. 35, dated 12.07.2016, was for a period of five years from assumption of office; the petitioner was appointed subsequently, on account of Smt. T.Anuradha not taking up the assignment and as such the petitioner would be entitled to complete the said term available to Smt. T.Anuradha, which at the very least would have been 12.07.2021 on the basis of Section 6(3) of the Act which stipulates that any person, who is appointed to fill up such a vacancy holds office for the remaining term of the person in whose place such person is appointed; this provision cannot be restricted by way of a G.O., or an executive instruction. 4. The stand of the respondents is that G.O.Ms.No.25, dated 24.09.2018 under which the petitioner was appointed clearly stipulated that her term was co-terminus with the term of the Chairperson which ended on 10.02.2021. 4. The stand of the respondents is that G.O.Ms.No.25, dated 24.09.2018 under which the petitioner was appointed clearly stipulated that her term was co-terminus with the term of the Chairperson which ended on 10.02.2021. The petitioner, having accepted the said term, cannot now turn around and seek a longer term and the same is hit by the principle of estoppel and the principle of approbate and reprobate. The respondents further contend that the petitioner having obtained the benefit of G.O.Ms.No.25, dated 24.09.2018, had not chosen to challenge any of the provisions of the said G.O. until 2021 and the same is hit by laches. 5. Before going into the submissions raised by the respondent as to the maintainability of the writ petition on the grounds of estoppel, approbate, reprobate and laches, it is necessary to see whether the Clauses in G.O.Ms.No.35, dated 12.07.2016, are in conformity with the provisions of the Act. Sections 5 and 6 of the Act reads as follows: 5. Constitution of the Commission - (1) For the purpose of this Act, the Government shall, by notification, constitute a commission to be known as the Andhra Pradesh Women's Commission which shall consist of a Chairperson and not more than six other women members residing in the state to be nominated by the Government of whom one shall belong to the Scheduled Castes and one from the Scheduled Tribes and one from the Backward Classes and one from the Minorities Communities. (2) The Chairperson shall be an eminent women committed to the cause of welfare of women with sufficient knowledge and experience in dealing with women's problems. (3) The members of the Commission shall be women of ability, integrity and standing who have served the cause of women or have had sufficient knowledge and experience in law or legislation, administration of matters concerning the advancement of women or leadership of any trade union or voluntary organization for women for protection, upliftment and promotion of common interests of women. 6. Term of office and conditions of service of members - (1) Every member shall hold office for a period of five years. (2) Notwithstanding anything contained in sub-section (1), a member may,- (i) by writing under her hand and addressed to the Government resign her office at any time; (ii) be removed from office in accordance with the provisions of section 11. (2) Notwithstanding anything contained in sub-section (1), a member may,- (i) by writing under her hand and addressed to the Government resign her office at any time; (ii) be removed from office in accordance with the provisions of section 11. (3) A vacancy arising by reason of resignation or removal of any member of the Commission under subsection (2) or otherwise shall be filled up in accordance with the provisions contained in section 5: Provided that a person so appointed shall hold office for the remaining period of the term of the person in whose place such person is appointed. (4) The members shall receive such remuneration and other allowances and shall be governed by such conditions of service as may be prescribed: Provided that such conditions of service shall not be varied to the disadvantage of a member after her appointment. 6. Initially, members were appointed to the Commission by G.O.Ms.No.35, dated 12.07.2016. One member, namely Smt.T.Anuradha did not take charge/join as a member of the Commission. In view of that vacancy, the petitioner was appointed as a member of the Commission by G.O.Ms.No.25, dated 24.09.2018. 7. Both the petitioner and the respondents proceeded before this Court on the basis of G.O.Ms.No.35 being issued under Section 6(3) of the Act. Section 6(3) applies where there is a vacancy arising due to resignation or removal of any member under Sub-Section 2 of Section 6 of the Act. It is only in relation to such a vacancy, the term of a member is restricted to the remaining period of the term of the person in whose place such a person is appointed. In the present case, the vacancy in the commission did not arise because Smt. T.Anuradha either resigned or was removed. In these circumstances, the restrictions on the period of the term of the petitioner on the ground that she is replacing Smt. T.Anuradha may not arise. The question whether Section 6(3) would be applicable to the present case or whether the petitioner would be entitled to a full term of 5 years from the date of her appointment may not arise in this case as the petitioner has restricted her prayer to be continued till 12.07.2021 only. 8. In the present case, G.O.Ms.No.25 reduced her term to that of the Chairperson, who assumed office in February 2016. 8. In the present case, G.O.Ms.No.25 reduced her term to that of the Chairperson, who assumed office in February 2016. There is no provision in the Act authorizing the executive to reduce the term of a member set out under Section 6 of the Act. In such circumstances, Clause 4 of G.O.Ms.No.25, reducing the term of the office of the petitioner, to that of the office of the Chairperson, is clearly without jurisdiction and beyond the power and authority of the Government. 9. The learned Government Pleader relied upon the judgments in Naib Subedar Lachhman Dass v. Union of India and others, AIR 1977 Supreme Court 1979; Hari Singh and others v. State of U.P. and others, AIR 1984 Supreme Court 1020; Vishwas Nagar Evacuee Plot Purchasers Association and another v. Uder Secretary, Delhi Admn. And others, AIR 1990 Supreme Court 849 and S.A.Rasheed v. Director of Mines and Geology and another, AIR 1995 Supreme Court 1739 to contend that the writ petition is not maintainable on account of laches. The aforesaid judgments cited by the learned Government Pleader are to the effect that where a Court finds laches on the part of the petitioner, it would be open to the Courts to reject the petition filed by the petitioner. These judgments would be applicable to the present case in the event of this Court finding that there were laches on the part of the petitioner. The petitioner was informed that her term was being reduced on 10.02.2021 and she had immediately approached this Court. In the circumstances, the question of laches would not arise. The contention of the learned Government Pleader is that laches should be considered on the ground that Clause 4 of G.O.Ms.No.25 was within her knowledge in 2018 itself and she cannot approach this Court after three years for setting aside the said Clause. This contention, though attractive at first blush, has to be rejected. It is apparent from the pleadings that the petitioner was under the impression that she was entitled for a full term along with the other members and did not understand the implications of Clause 4 of G.O.Ms.No.28. In such a situation tit cannot be held that there was inordinate delay on the part of the petitioner in approaching this Court. 10. In such a situation tit cannot be held that there was inordinate delay on the part of the petitioner in approaching this Court. 10. The learned Government Pleader relied upon Ram Sharan Maurya and others v. State of U.P. and others, 2020 Law Suit (SC) 702; Kiran Devi v. Bihar State Sunni Wakf Board and others, 2021 Law Suit (SC) 241; Jaipur Vidyut Vitaran Nigam Ltd and others v. Adani Power Rajasthan Limited and another, 2020 Law Suit (SC) 544; PSA Sical Terminals Pvt. Ltd. v. Board of Trustees of V.O.Chidambranar Port Trust Tuticorin and others, 2021 Law Suit (SC) 385 and Rachna and others v. Union of India and another, 2021 Law Suit (SC) 116 for contending that the writ petition is liable to be dismissed on the ground that the petitioner cannot be permitted to approbate and reprobate. A perusal of these judgments would also show that the question of approbate and reprobate would arise when a party takes a particular stand either in the same proceedings or earlier and then resiles from that stand and takes a contrary stand to protect her interest. In the present case, the petitioner did not take any stand either way. She simply took charge on the basis of the G.O issued in her favour and proceeded on the assumption that she would be entitled for a term which is co-terminus with the other members or at the very least till 12.07.2021. As such, the principles of approbate and reprobate would not apply to this case. 11. This Court had been informed that the petitioner has retired as a member of the Commission on 12.07.2021. The contention of the petitioner also was that she was entitled to be a member of the Commission on 12.07.2021 only. In that view of the matter, her term as a member of the Commission till 12.07.2021 is upheld. 12. The petitioner also moved I.A.No.4 of 2021 claiming that she had not been paid her honorarium and other emoluments from February, 2021 till she demitted office in July, 2021 and sought a direction to the respondents to release such payment to her. In view of the fact that the petitioner had discharged the functions of a member of the Commission till 12.07.2021, it would only be appropriate that she would be paid all the emoluments and perks that go with the post. In view of the fact that the petitioner had discharged the functions of a member of the Commission till 12.07.2021, it would only be appropriate that she would be paid all the emoluments and perks that go with the post. In these circumstances, this Writ Petition is allowed with the following directions: (1) Clause 4 of the G.O.Ms.No.25, dated 24.09.2018, is struck down as ultravires and beyond the power and authority of the 1st respondent; (2) The term of the petitioner is confirmed upto 12.07.2021; (3) The petitioner would be entitled to all emoluments/honorarium etc. on par with the other members of the Commission upto 12.07.2021; (4) The 2nd respondent, shall calculate the emoluments payable to the petitioner upto 12.07.2021 and remit the said amount to the petitioner within two months from the date of the receipt of this order. There shall be no order as to costs. Miscellaneous Petitions, if any pending, in this petition, shall stand closed.