Research › Search › Judgment

Andhra High Court · body

2024 DIGILAW 1400 (AP)

Gajjala Venkata Lakshmi v. State Of AP

2024-10-03

SUBBA REDDY SATTI

body2024
JUDGMENT : The Writ Petition is filed seeking the following relief: “…to issue a Writ order or direction, more particularly one in the nature of WRIT OF MANDAMUS declaring the Memo No.WDC01/2383646/2024/Prog dated 23.9.2024 holding the services of the petitioner as Chairperson, AP Women’s Commission despite her tenure lasts till 16.03.2026 as per Section 6(1) of the Andhra Pradesh Women's Commission Act, 1998 (as amended by Act 9 of 2023) as unjust, arbitrary. No.1 the impugned in memo illegal and being in violation of the Fundamental Rights of the petitioner guaranteed under Article, 16, 19 and 21 of the Constitution of India besides being in violation of Section 6(1) of the Andhra Pradesh Women's Commission Act, 1998 (as amended by Act 9 of 2023) and consequently set aside the impugned memo No.WDC01/2383646/2024/Prog-ll/A2, dated 23.09.2024 directing the 1st respondent to continue the services of petitioner as Chairperson, A.P. Women's Commission till the completion of tenure of the petitioner till 16.03.2026 in accordance with Section 6(1) of the Andhra Pradesh Women's Commission Act, 1998 (as amended by Act 9 of 2023) with all consequential benefits …” 2. Averments, in brief, in the affidavit are that the petitioner was appointed as Chairperson to the Andhra Pradesh State Women’s Commission vide G.O.Ms.No.13 dated 15.03.2024 by the 1st respondent under Section 6(1) of the Andhra Pradesh State Women’s Commission Act, 1998 (for short “the Act”). The petitioner assumed charge on 16.03.2024 and has been rendering the duties. The 1st respondent issued Memo No.WDC01/2383646/2024/Prog.II/A2, dated 23.09.2024, impugned in the writ petition, holding the petitioner's service as Chairperson of the Commission for the remaining period. The impugned memo is contrary to the tenure prescribed by the statute under Section 6 (1) of the Act. The authority ignoring Section 6 (1) of the Act, issued the order/memo under Section 6 (3) of the Act. Before the petitioner was appointed as the Chairperson, earlier incumbent Smt.V.Padma was appointed vide G.O.Ms.No.14 dated 08.08.2019 for a tenure of 5 years, after the resignation of earlier incumbent by name Smt.N.Rajakumari. The petitioner is appointed for two years. With these averments, the above writ petition was filed. 3. Heard Sri Jada Sravan Kumar, learned counsel for the petitioner and the learned Advocate General for Respondents. 4. Learned counsel for the petitioner while elaborating the submissions would contend that the petitioner’s appointment was made as per Section 6 (1) of the Act. The petitioner is appointed for two years. With these averments, the above writ petition was filed. 3. Heard Sri Jada Sravan Kumar, learned counsel for the petitioner and the learned Advocate General for Respondents. 4. Learned counsel for the petitioner while elaborating the submissions would contend that the petitioner’s appointment was made as per Section 6 (1) of the Act. As per Section 6 (1) of the Act, every member shall hold the office for 2 years, which may further be extended for a maximum of 2 years. The petitioner was appointed on 15.03.2024 as Chairperson of the Commission and she assumed charge on 16.03.2024. Thus, the tenure of the petitioner is up to 14.03.2026. He would further submit that the petitioner’s appointment is not as per Section 6 (3) of the Act and hence, the impugned memo is liable to be set aside. 5. Per contra, Sri D.Srinivas the learned Advocate General would contend that Section 5 of the Act deals with the constitution of the Commission and Section 6 of the Act deals with tenure. He would submit that earlier incumbent Smt.V.Padma was appointed as Chairperson of the Commission by G.O.Ms.No.14 dated 08.08.2019 for 5 years. Smt V.Padma assumed charge on 26.08.2019 and her tenure normally would have been continued till 25.08.2024. Smt V.Padma resigned as Chairperson by letter dated 29.02.2024 and the same was accepted by the Government with effect from 04.03.2024, and thereafter, the petitioner one of the members in the Commission was appointed for the balance period. Learned Advocate General placed the note for circulation at the Government level and thus, would contend that there is no illegality or irregularity in the memo impugned in the writ petition. 6. Now, the point for consideration is: Whether the memo impugned in the writ petition suffers from any illegality warranting interference by this Court while exercising judicial review under Article 226 of the Constitution of India? 7. The Andhra Pradesh State Women’s Commission Act, 1998 (Act 9 of 1998) provided for the constitution of a Women’s Commission to improve the status of women in the State of Andhra Pradesh and to inquire into unfair practices affecting women and for matters connected therewith or incidental thereto. It was published in Andhra Pradesh Gazette, Part-IV-A, Extraordinary dated 30.09.1996. 8. Section 5 of the Act deals with the constitution of the Commission. It was published in Andhra Pradesh Gazette, Part-IV-A, Extraordinary dated 30.09.1996. 8. Section 5 of the Act deals with the constitution of the Commission. Section 5 (1) prescribes that the Government shall, by notification, constitute a commission consisting of a Chairperson and not more than six other women members to be nominated by the Government, of whom, one member from Scheduled Castes, one from Scheduled Tribes, one from the backward classes and one from the Minorities communities. Section 5 (2) prescribes that 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. 9. Section 6 of the Act deals with term of office and conditions of service of members. Initially, as per Section 6 (1) of the Act, term of office of every member is for 5 years. The period of 5 years was amended by Andhra Pradesh Women’s Commissioner (Amendment) Act, 2023 (Act 9 of 2023) with effect from 24.04.2023. As per the amendment, tenure is limited to two years and may further be extended for a maximum period of two years. Section 6(2)(i) speaks about resignation and Section 6(2)(ii) speaks about removal. Section 6 (3) of the Act prescribes that a vacancy arising because of the 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. 10. The proviso to Sec 6(3) makes it clear that a person so appointed shall hold the office for the remaining period of the term of the person in whose place such person is appointed. 11. Keeping in view of the provisions of the Act, this Court proceeds further to delve into factual aspects as well as legal aspects. Smt.N.Rajakumari, appointed as Chairperson of Women’s Commission vide G.O.Ms.No.4 dated 27.01.2016, submitted resignation letter dated 07.08.2019. Thereafter, 1st respondent appointed Smt.V.Padma as Chairperson of the Andhra Pradesh Women’s Commission under Section 5 of the Act for a period of five years from the date of assumption of office. Smt V.Padma assumed charge on 26.08.2019, and thus, 5 years period of V.Padma as Chairperson would be upto 25.08.2024. Thereafter, 1st respondent appointed Smt.V.Padma as Chairperson of the Andhra Pradesh Women’s Commission under Section 5 of the Act for a period of five years from the date of assumption of office. Smt V.Padma assumed charge on 26.08.2019, and thus, 5 years period of V.Padma as Chairperson would be upto 25.08.2024. A perusal of the G.O., appointing of Smt V.Padma, as Chairperson makes it more than discernable that the appointment was made in adherence of Sec 5 of the Act and the tenure was fixed as per Sec 6(1) of the Act. 12. Be that as it may, Smt V.Padma, Chairperson submitted her resignation on 29.02.2024 and the same was accepted with effect from 04.03.2024 vide G.O.Ms.No.8, Dept., for WCDA & SC (Prog.II) dated 14.03.2024. Thereafter, the petitioner was appointed as Chairperson vide G.O.Ms.No.13 Department for Women, Children, Differently Abled and Senior Citizens (Prog.II) dated 15.03.2024. In Paragraph-5 of the G.O., it was stated as follows: “5. Now, therefore, Government, in exercise of powers conferred under Section 6 (1) of the Andhra Pradesh Women’s Commission Act, 1998 as amended by Act No.9 of 2023, hereby appoint Smt. Gajjala Venkata Lakshmi, Member, APWC, as the Chairperson, A.P Women’s Commission.” 13. Thus, a perusal of the extracted portion of the G.O. would make things clear that the petitioner was appointed under Sec 6(1) of the Act but not under Sec 5 of the Act. Indeed, there can be no appointment under Sec 6(1) of the Act. The appointment should be as per Sec 5 of the Act. 14. The contention of learned counsel for the petitioner that since the petitioner was appointed as per Section 6 (1) of the Act, the term of the petitioner to continue the office is two years, and thus, the memo impugned is liable to be set aside, this Court is not persuaded with the submission. 15. As per the scheme of the Act, as discussed supra, the constitution of the Commission shall be under Section 5 of the Act and by a notification. Section 2 (e) of the Act defines that ‘Notification’ means the notification published in the Andhra Pradesh Gazette and the word “notified” shall be construed accordingly. 16. When Smt.V.Padma was appointed as Chairperson, in the said G.O., it was mentioned that she was appointed as Chairperson under Section 5(1) of the Act and the term of the Chairperson is for 5 years. 16. When Smt.V.Padma was appointed as Chairperson, in the said G.O., it was mentioned that she was appointed as Chairperson under Section 5(1) of the Act and the term of the Chairperson is for 5 years. In contradiction, when it comes to the petitioner’s appointment, the appointment was not made under Section 5 of the Act. It is not the case of the petitioner that she was appointed as the Chairperson of the Commission under Sec 5 of the Act. No such pleading was made in the writ affidavit. When Smt V.Padma was nominated/appointed as the Chairperson, the petitioner was one among the other members in the Women’s Commission. The resignation of the Chairperson of the Women’s Commission was accepted with effect from 04.03.2024. 17. It is pertinent to mention here that even the note file produced before this Court, signed by the Chief Minister, would reflect that the appointment of the petitioner as Chairperson, is till further orders. In the Note File in Paragraphs 4 and 5, it was mentioned that there is no provision for the appointment of a Chairperson (FAC), and therefore, the petitioner may be appointed for 2 years. However, the authority approved for appointment of the Chairperson till further orders. 18. Thus, given the discussion made supra, it can be safely concluded without any hesitation that the petitioner was appointed as Chairperson after accepting the resignation of Smt.V.Padma, who was appointed under Section 5 of the Act for 5 years to the leftover period i.e. balance period. 19. Section 6 (3) of the Act comes into play, which reads thus: “A vacancy arising by reason of resignation or removal of any member of the Commission under sub-section (2) or otherwise shall be filled up in accordance with the provisions contained in Section 5.” Provided that a person so appointed shall hold the office for the remaining period of the term of the person in whose place such person is appointed.” 20. Given the discussion supra, coupled with the material on record, the appointment of the petitioner as Chairperson is for the remaining period under Sec 6(3) of the Act only but not a fresh appointment in terms of Section 5 of the Act. Given the discussion supra, coupled with the material on record, the appointment of the petitioner as Chairperson is for the remaining period under Sec 6(3) of the Act only but not a fresh appointment in terms of Section 5 of the Act. Since the petitioner’s term to hold of Chairperson, by efflux of time, comes to an end by 25.08.2024, the Memo issued by the 1st respondent instructing the Director, WD & CW & the Secretary, APWC to take action, does not suffer from any illegality. 21. It is a settled principle of law that the existence of a right, be it fundamental or legal or other statutory, and infringement of such right is the foundation to exercise judicial review under Article 226 of the Constitution of India. 22. In State of U.P. and others Vs. Harish Chandra and others, (1996) 9 SCC 309 , the Hon’ble Apex Court held as follows: "10. ... Under the Constitution, a Mandamus can be issued by the court when the applicant establishes that he has a legal right to the performance of legal duty by the party against whom the mandamus is sought and the said right was subsisting on the date of the petition." 23. In Union of India Vs. S.B. Vohra, (2004) 2 SCC 150 , the Hon’ble Apex Court considered a similar issue and held that for issuing a Writ of Mandamus in favour of a person, the person claiming must establish his legal right in himself. Then only a Writ of Mandamus could be issued against a person, who has a legal duty to perform, but has failed and/or neglected to do so. 24. In the case at hand, the petitioner was appointed as Chairperson of the Women’s Commission for the balance period and since the period is completed by efflux of time, there is no infringement of the right as claimed by the petitioner to invoke the extraordinary jurisdiction of this Court. In the considered opinion of this court, the writ petition lacks merit and deserves to be dismissed. 25. Accordingly, the Writ Petition is dismissed. No costs. As a sequel, pending miscellaneous petitions, if any, shall stand closed.