HON'BLE SRI JUSTICE R. RAGHUNANDAN RAO
W.P.No.9912 of 2021
ORDER:
The petitioner, by way of G.O.Ms.No.252, dated 20.02.2020, was appointed as a member of the Trust Board of the 4th respondent-temple for a period of two (2) years with effect from the date of taking the oath of office. She took the oath of office on 05.03.2020 and was to be a member of the Trust Board till 04.03.2022.
2. The 1st respondent issued G.O.Rt.No.255, dated 08.05.2021, removing the petitioner as member of the Trust Board and appointed the 5th respondent in her place as a member of the Trust Board. This order, said to have been issued under Section 17 (1) of the Andhra Pradesh Charitable and Hindu Religious Institutions & Endowments Act, 1987 (for short „the Act‟), does not contain any reasons for issuance of this order.
3. The petitioner aggrieved by G.O.Rt.No.255, dated 08.05.2021 had approached this Court by way of the present writ petition.
4. It is the case of the petitioner that she was removed without any prior notice and without any opportunity of hearing being given to her. She also contends that she was removed for political reasons and political pressures, as no show cause 2 RRR,J.
W.P.No.9912 of 2021 notice was issued calling for explanation from her prior to her removal.
5. Notice was sent to the 5th respondent. However, the 5th respondent chose not to appear before this Court despite service of notice.
6. The learned Government Pleader for Endowments has produced written instructions from the 1st respondent.
7. The written instructions do not answer the charge of the petitioner that she was removed without any prior notice; without any opportunity being given to her to explain her case against any allegations that may have been made against her and without any reasons being set out in the impugned proceedings. No reasons for removal of the petitioner have been set out even in the written instructions.
8. The learned Government Pleader for Endowments would submit that Section 15(1)(i) of the Act states that the Government shall constitute Board of Trustees, who shall hold the office at its pleasure, except for founder family member or ex-officio member.
9. She would also rely upon the proviso to Section 17 (2) of the Endowment Act, which reads as follows:
"Provided that the Government may for good and sufficient reason in public interest remove a trustee from office before the expiry of the two year term".
10. She contends that in view of these two provisions, the appointment of any person, as a member of the Trust Board 3 RRR,J.
W.P.No.9912 of 2021 of the temple, would be at the pleasure of the Government and in view of this fact the removal of the petitioner would not require any reasons to be ascribed. The learned Government Pleader relies upon the Judgment of a learned Single Judge of this Court in Nuthalapati Damodar Naidu vs State of Andhra Pradesh (W.P.No.19007 and 19035 of 2019) and a Judgment of the Hon‟ble Supreme Court in the case of Om Narain Agarwal and others vs Nagar Palika Shahjahanpur1.
11. Sri G.Uma Sankar, learned counsel for the petitioner would submit that the petitioner is entitled to an opportunity of hearing and cannot be removed at the whims and fancies of the Government. He would further submit that even today the petitioner is not aware of the reasons for which her term has been reduced and why she had been removed.
Consideration of the Court:
12. The provisions relating to the present case are Section 15(1) (i) of the Act which reads as follows:
Appointment of Board of Trustees:- (1) In respect of a Charitable or Religious Institution or Endowment,-
(1) Where the income for the institution exceeds Rs.20.00 crores (Rupees Twenty Crores) per annum, the Government shall constitute a Board of Trustees consisting of fifteen (15) persons at its pleasure except for founder family member and ex-officio members.
and the proviso to Section 17(2) which has been extracted above.
1
AIR (1993) SC 1440
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W.P.No.9912 of 2021
13. The learned Government Pleader for Endowments contends that when a person is appointed to a post to be held at the pleasure of the appointing authority, the said person can also be removed without any reasons and without any kind of notice or opportunity being given to such a person. She contends that the doctrine of pleasure permits such removal and relies on the Judgment of the Hon‟ble Supreme Court in Om Narain Agarwal and others vs Nagar Palika Shahjahanpur (supra1). In this case, the removal of two nominated members of the Municipal Board of Shahjahanpur came up for consideration before the Hon‟ble Supreme Court. The contention raised by the members, who had been removed, was that, once the State Government had nominated members, they cannot be removed without assigning any reason and without affording any opportunity to show cause. This contention was negatived by the Hon‟ble Supreme Court by holding thus:
11. Section 39 deals with resignation by a member of the Board. Section 40 provides the grounds for removal of a member of the Board. Sub-section (5) of Section 40 deals with suspension of a member. From a perusal of the above provisions it is clear that the term of an elected or nominated member is coterminous with the term of the Board. The normal term of the Board is five years, but it may be curtailed as well as extended. If the term of the Board is curtailed by dissolution or supersession, the term of the member also gets curtailed. Similarly, if the term of the Board is extended, the term of the member is also extended. Apart from the curtailment of the term of a member of the Board by dissolution or supersession of the Board itself, the term of a member also gets curtailed by his resignation or by his removal from office. Section 40 specifically provides the grounds under which the State Government in the case of a city, or the prescribed authority in any other case, may remove a member of the Board. The removal under Section 40 applies to elected as well as nominated 5 RRR,J.
W.P.No.9912 of 2021 members. In respect of a nominated member, power of curtailment of term has now been given to the State Government under the fourth proviso to Section 9 added after the third proviso through the amending Act of 1990. In the cases before us, we are concerned with the removal of nominated members under the fourth proviso to Section 9 of the Act and we are not concerned with the removal as contained in Section 40 of the Act. The right to seek an election or to be elected or nominated to a statutory body, depends and arises under a statute. The initial nomination of the two women members itself depended on the pleasure and subjective satisfaction of the State Government. If such appointments made initially by nomination are based on political considerations, there can be no violation of any provision of the Constitution in case the legislature authorised the State Government to terminate such appointment at its pleasure and to nominate new members in their place. The nominated members do not have the will or authority of any residents of the Municipal Board behind them as may be present in the case of an elected member. In case of an elected member, the legislature has provided the grounds in Section 40 of the Act under which the members could be removed. But so far as the nominated members are concerned, the legislature in its wisdom has provided that they shall hold office during the pleasure of the Government. It has not been argued from the side of the respondents that the legislature had no such power to legislate the fourth proviso. The attack is based on Articles 14 and 15 of the Constitution.
12. In our view, such provision neither offends any Article of the Constitution nor the same is against any public policy or democratic norms enshrined in the Constitution. There is also no question of any violation of principles of natural justice in not affording any opportunity to the nominated members before their removal nor the removal under the pleasure doctrine contained in the fourth proviso to Section 9 of the Act puts any stigma on the performance or character of the nominated members. It is done purely on political considerations. In Dr Rama Mishra case [Writ Petition No. 11114 of 1990, Order dated December 9, 1991] the High Court wrongly held that the pleasure doctrine incorporated under the fourth proviso to Section 9 of the Act was violative of the fundamental right of equality as enshrined in Article 14 and Article 15(3) of the Constitution. We are unable to agree with the aforesaid reasoning of the High Court. Clause (3) of Article 15 is 6 RRR,J.
W.P.No.9912 of 2021 itself an exception to Article 14 and clauses (1) and (2) of Article 15 of the Constitution. Under Article 14, a duty is enjoined on the State not to deny any person equality before the law or the equal protection of the laws within the territory of India. Article 15(1) provides that the State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them. Article 15(2) provides that "no citizen shall, on grounds only of religion, race, caste, sex, place of birth or any of them, be subject to any disability, liability, restriction or condition with regard to (a) access to shops, public restaurants, hotels and places of public entertainments; or (b) the use of wells, tanks, bathing ghats, roads and places of public resort maintained wholly or partly out of State funds or dedicated to the use of the general public".
14. This Judgment was on the principle that when the appointment of the nominated members was based on the political considerations, removal of such persons in the manner set out above would not amount to a violation of any part of the constitution or public policy or democratic norms or principles of natural justice, as there would be no stigma on the character of the nominated members.
15. The learned Government Pleader also relied upon the Judgment of a Single Judge of this Court in the unreported Judgment of Nuthalapati Damodar Naidu vs State of Andhra Pradesh (W.P.No.19007 and 19035 of 2019) (supra 2). In this case, the Trust Boards of two temples had been superseded under the proviso for Section 135 of the Act, which provided that the Board may be superseded by the Government, in public interest, for reasons to be recorded in writing. When the said supersession was challenged, the learned Single Judge had taken the view that the said supersession was in public interest as the reason given, for such supersession, was that the boards 7 RRR,J.
W.P.No.9912 of 2021 were being superseded in order to give greater representation to all sections of society. It may also be noted that when the proviso to Sub Section 2 of Section 17 was sought to be raised, the learned Single Judge had held that the said provision was irrelevant to the case before him as the issue arises only under the proviso to Section 135 of the Endowments Act. As such, this judgement may not be of any avail to the Respondents.
16. The doctrine of pleasure, which was referred to in both the above cases, arose under the English law and has been followed, with variations, by the Courts in India. In B.P.Singhal vs. Union of India and another 2, a Constitution Bench of the Hon‟ble Supreme Court had extensively reviewed the said doctrine. In that case, the question before the Hon‟ble Supreme Court was whether the Governor of a State could be removed by the President, before the expiry of the term of five years, without following principle of natural justice and without giving an opportunity of being heard in respect of the reasons that would be set out in a show cause notice. The further question was whether such removal should be by way of a speaking order which can be subjected to judicial review.
17. The Constitution Bench while considering the doctrine of pleasure had held that, as far as offices set out in the constitution are concerned, the said offices can be placed in three categories. The first category being those who hold office during the pleasure of the President or Governor, the second 2 (2010) 6 SCC 331 8 RRR,J.
W.P.No.9912 of 2021 category being those who hold office during the pleasure of the President or Governor subject to restrictions and the third category being those who hold office for specified terms with immunity against removal and would not be subject to the doctrine of pleasure. Thereafter, the Constitution Bench had held that as far as the post of the Governor is concerned, the said office is held at the pleasure of the President and any person holding the said office can be removed without giving any reasons and without any opportunity being given to such a person. However, the Constitution Bench, while considering the doctrine of pleasure, had made certain observations, which are apposite to the present case:
22. There is a distinction between the doctrine of pleasure as it existed in a feudal set-up and the doctrine of pleasure in a democracy governed by the rule of law. In a nineteenth century feudal set-up unfettered power and discretion of the Crown was not an alien concept. However, in a democracy governed by rule of law, where arbitrariness in any form is eschewed, no Government or authority has the right to do what it pleases. The doctrine of pleasure does not mean a licence to act arbitrarily, capriciously or whimsically. It is presumed that discretionary powers conferred in absolute and unfettered terms on any public authority will necessarily and obviously be exercised reasonably and for the public good.
The Constitution Bench went on to hold:
33. The doctrine of pleasure as originally envisaged in England was a prerogative power which was unfettered. It meant that the holder of an office under pleasure could be removed at any time, without notice, without assigning cause, and without there being a need for any cause. But where the rule of law prevails, there is nothing like unfettered discretion or unaccountable action. The degree of need for reason may vary. The degree of scrutiny during judicial review may vary. But the need for reason exists. As a 9 RRR,J.
W.P.No.9912 of 2021 result when the Constitution of India provides that some offices will be held during the pleasure of the President, without any express limitations or restrictions, it should however necessarily be read as being subject to the "fundamentals of constitutionalism". Therefore in a constitutional set-up, when an office is held during the pleasure of any authority, and if no limitations or restrictions are placed on the "at pleasure" doctrine, it means that the holder of the office can be removed by the authority at whose pleasure he holds office, at any time, without notice and without assigning any cause.
34. The doctrine of pleasure, however, is not a licence to act with unfettered discretion to act arbitrarily, whimsically, or capriciously. It does not dispense with the need for a cause for withdrawal of the pleasure. In other words, "at pleasure" doctrine enables the removal of a person holding office at the pleasure of an authority, summarily, without any obligation to give any notice or hearing to the person removed, and without any obligation to assign any reasons or disclose any cause for the removal, or withdrawal of pleasure. The withdrawal of pleasure cannot be at the sweet will, whim and fancy of the authority, but can only be for valid reasons.
18. As can be seen from the above extracts, the doctrine of pleasure has not remained static, and has been restated by the Constitution Bench, to incorporate the requirements of the Rule of Law. Further, even according to the judgement in Om Narain Agarwal and others vs Nagar Palika Shahjahanpur (supra1), the doctrine of pleasure is applicable to those offices/posts where the appointments are made as part of a political process and fall within the category of offices/posts where the criteria for appointment is the whims and fancies of the powers that be. In such cases, persons holding such offices, having gained those offices solely on account of their proximity to those entrusted with the task of filling such offices/posts, 10 RRR,J.
W.P.No.9912 of 2021 cannot complain of violation of principles of natural justice etc., when they are removed.
19. The two questions that now come up before this court are firstly, whether the office of a trustee, under the Act, is an office granted to a person at the whims and fancies of the appointing authority and without any qualification or whether the office is granted on the basis of some criteria and secondly, whether trustees appointed under the Act, even if they are to be treated as holding the said office at the absolute pleasure of the appointing authority, can be removed without any reasons being ascribed.
20. The affairs of Hindu Religious Establishments and other charitable Institutions have been regulated by legislation for quite some time. The earlier Act governing this field was the Andhra Pradesh Charitable and Hindu Religious Institutions and Endowments Act 1966. As the working of the said Act was not found to be adequate, the Government had appointed a commission to review and suggest measures for better management of the temples and other institutions and other aspects including guidelines to be followed in the selection and appointment of trustees and code of conduct to be followed by them. The Commission, after a detailed study, had submitted its report which became the basis for a new enactment, which is the present Act.
21. In this background, the Act provides for an elaborate scheme for choosing the members of a trust board. Section 15 of 11 RRR,J.
W.P.No.9912 of 2021 the Act provides for constitution of trust boards, by different authorities, depending upon their income. Section 17 also requires that, while making these appointments, the appointing authority, has to keep in mind, the denomination to which the temple belongs and the wishes of the founder. Apart from this, the appointing authority has to ensure that the person sought to be appointed has the qualifications set out in section 18 and does not suffer from any of the disqualifications set out in section 19 of the Act.
22. The Government has also issued the Andhra Pradesh Charitable and Hindu Religious Institutions and Endowments Appointment of Trustees Rules, 1987, under Section 17 (3) of the Act. These rules require a public notification to be issued, calling for applications from interested persons to be appointed as trustees. The applications, submitted by interested persons, are to be scrutinised and the relative merits and demerits of the candidates, according to the guidelines set out in Rule 8 of these Rules, have to be evaluated before any appointment is made. The appointment of the members of the trust boards is not a distribution of spoils by the Government of the day. These appointments are to be made for the benefit of the institution. Rule 8 specifically provides that the appointing authority will verify whether the person being appointed as a trustee will be service minded with interest in the institution and willing and able to devote time and effort for the better management of the institution.
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W.P.No.9912 of 2021
23. There has been persistent criticism, against all governments, that these appointments are made more in the breach of these guidelines. However, that criticism whether well or ill founded, cannot be taken into account while noticing the provisions of law. In these circumstances, the appointment of members of Trust boards, under the Act, cannot be treated as a political decision to which the doctrine of pleasure would apply, in stricto sensu. However, since the enactment speaks of appointment at the pleasure of the appointing authority, and this Court is not dealing with a challenge to the said provision, the said provision would have to be reconciled with the fact that the initial appointment is not an act of grace or patronage. Another factor which needs to be taken into account would be the observations of the Constitution Bench, that withdrawal of pleasure cannot be "at the sweet will, whims and fancies of the authority, but can only be for valid reasons".
24. The manner of reconciling these contradictions is in the second question as to whether a member of the Trust Board can be removed without reasons. Section 15(1)(i) of the Act states that the appointment, while constituting the Board of Trustees, will be at the pleasure of the Government. The Proviso to Section 17(2) stipulates that the removal of a trustee from the office before the expiry of the term has to be for good and sufficient reasons in public interest. The provisions of Sections 15(1)(i) of the Act are to be read in conjunction with the proviso to Section 17(2) of the Act. This would mean that even though 13 RRR,J.
W.P.No.9912 of 2021 the member of a Trust Board is continuing at the pleasure of the appointing authority, the removal of such a member before the expiry of his term can be done only for good and sufficient reasons, which are in public interest. Such reasons cannot remain in the mind of the authority withdrawing pleasure. They need to be expressed and placed on record. There is another aspect which needs to be considered, an order of withdrawal of pleasure, without reasons, is always capable of being construed as being removal on account of some misdemeanour or mis- management by the person removed. Such a situation would cast a stigma on the character of the person removed. This possibility can be negated by reasons being recorded in the proceeding of premature termination of the term of the member.
25. Where the reasons for removal are related to the conduct of the person removed, the principles of natural justice would require an opportunity being given to the said person to defend his reputation and character. In such circumstances, where the withdrawal of pleasure is on account of the conduct of the person removed, the said person would be entitled for a notice before such removal and an opportunity to defend himself/herself.
26. It must also be held that if the reasons set out in the order of withdrawal of pleasure cast a stigma on the character of the person removed from office or they are irrelevant reasons or reasons which are not valid, the removed person would have the right to agitate his grievances before an appropriate court. Any 14 RRR,J.
W.P.No.9912 of 2021 order of removal, of members of the trust board, which does not contain reasons, would be in violation of the requirements of the proviso to section 17 (2) of the Act and also the judgement of the Constitution Bench of the Hon‟ble Supreme Court.
27. In the present case, no such reasons are available in the order of removal. In the absence of any such reasons, it would have to be held that the order of removal is not in accordance with the requirements of the proviso to Section 17(2) of the Act and the judgement of the Constitution Bench of the Hon‟ble Supreme Court.
28. In the circumstances, the said order of removal is set aside with a direction to the respondents to immediately reinstate the petitioner as a member of the Trust Board in the place of the 5th respondent, who shall forthwith cease to be a member of the Trust Board of the respondent-temple.
29. Accordingly, the writ petition is allowed. There shall be no order as to costs.
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R. RAGHUNANDAN RAO, J
1st September, 2021
RJS
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W.P.No.9912 of 2021
HON'BLE SRI JUSTICE R. RAGHUNANDAN RAO
W.P.No.9912 of 2021
1st September, 2021
RJS