Telangana High Court
Balde Siddilingam vs The State Of Telangana on 12 February, 2024
Author: Nagesh Bheemapaka
Bench: Nagesh Bheemapaka
HON'BLE SRI JUSTICE NAGESH BHEEMAPAKA
WRIT PETITION No. 1598 OF 2024
ORDER:
Vires of G.O.Rt. No. 158, Agriculture & Cooperation (MKT. 1) Department dated 12.01.2024 and the consequent proceedings No. GM-S-III/260303/2020, dated 12.01.2024 issued by the Director of Agriculture Marketing, Hyderabad is questioned in this Writ Petition.
2. Vide said G.O., the Government of Telangana withdrew its pleasure from the Members of Agriculture Market Committee, Jangoan, Jangoan District including Chairman and Vice-Chairman with immediate effect; consequently, the tenure of Members of Agricultural Market Committee, Jangaon including Chairman and Vice-Chairman stands curtailed and they will cease to hold the posts as such with immediate effect.
Further, by proceedings dated 12.01.2024, the Director of Agricultural Marketing Committee - 3rd respondent appointed the Regional Deputy Director of Marketing, Warangal as Person-
in-charge, Agricultural Market Committee, Jangaon, to manage day-to-day affairs of the Committee until the Market Committee is reconstituted.
23. It is stated that the 1st petitioner is Chairman, the 2nd petitioner is Vice-Chairman and other petitioners are members of the Committee constituted by G.O. Rt No. 117, Agriculture and Cooperation (MKT-1) Department, dated 14.03.2023. Petitioners, being non-political, were appointed on merit and have discharged their duties diligently. The Committee, post its inception, ensured timely payments to farmers and performed its duties without any complaints.
4. Though no counter affidavit is filed, as the issue involved is purely legal, this Court proceeds with the case.
5. Sri B. Nalini Kumar, learned Senior Counsel argued on behalf of learned counsel for petitioner Sri Dasharatha. He submits that the impugned G.O. is arbitrary and was issued in mala fide exercise of power under Section 5(11) of the Telangana (Agricultural Produce and Live Stock) Markets Act, 2014 (for short, 'the Act') and is in violation of Article 14 of the Constitution. Reference is made to the recent change in government after elections on 30.11.2023, leading to issuance of the impugned G.O. and proceedings, allegedly aimed at arbitrarily curtailing petitioners' tenure. Learned counsel relied on the judgment reported in M. Thirupathi Rao v. The State 3 of Telangana 1, which invalidated Clause 3 of Telangana Ordinance No. 1 of 2014 by which Chairman, Vice Chairman and Members of every Market Committee shall cease to hold office, hence, applying the said ratio, the impugned G.O. and the proceeding are liable to be set aside. It is submitted that Section 5(11) of the Act provides that Members of the Committee including Chairman and Vice-Chairman shall hold office during the pleasure of the government, the said pleasure is not absolute, cannot be exercised whimsically without reasons, arbitrarily or mala fide. In this case, Chairman, Vice-Chairman and members are nominated posts and they are pleasure posts, still the government is under obligation to follow the principles of natural justice. He relied, in this regard, on the judgment of the High Court of Maharastra in Sanjay v. State of Maharashtra 2 and that of the High Court of Andhra Pradesh in Dasari Raja Master v. State of Andhra Pradesh 3, wherein it has been held that withdrawal of pleasure cannot be at whim and fancy of authority but can only be for valid reasons.
According to learned counsel, in democracy, government is governed by rule of law; no government or authority has right to 1 2015 (1) ALT 589 2 2022(4) Mh.L.J 3 (2021) 4 ALD 196 4 do what it pleases and there is nothing like unfettered discretion.
It is submitted that withdrawal of pleasure should not be a tool for unfettered discretion, aimed at altering committee composition based on political allegiance. The impugned G.O. and proceedings, it is argued, impose civil consequences on petitioners without affording them an opportunity to be heard, thus violating principles of natural justice. Learned counsel highlighted the need to read principles of natural justice into Section 5(11) of the Act to prevent its unconstitutionality.
6. Learned Additional Advocate General Sri T. Rajnikanth Reddy submits that there is no violation of Article 14 of the Constitution and the principles of natural justice. He draws attention of this Court to the Telangana (Agricultural Produce and Livestock) Markets Act, 1966 and submits that Section 5 deals with appointment or nomination under the Act.
It reads as under:
" 5. (1) Every market committee shall consist of fourteen members and shall be constituted by the Government by notification in the following manner:-
(i) [eight] members to be nominated by the Government in consultation with the Director of Marketing from among the following categories of growers of agricultural produce, owners of livestock and products of livestock in the notified area, namely 5
(ii) two members to be nominated by the Government in consultation with the Director of Marketing from among the licensed traders in the notified area;
(iii) one member to be nominated by the Government from among the Presidents or Persons-in-charge, if any, for the time being performing the functions of Primary Agricultural Co-operative Societies or the Co-
operative Marketing Societies having areas of operation within the notified area;
(iv) the Assistant Director of Marketing having jurisdiction over the notified area or any other officer nominated in this behalf by the Director of Marketing
(v) the Assistant Director of Agriculture or Assistant Director of Horticulture or Assistant Director of Animal Husbandry or Assistant Director of Fisheries having jurisdiction over the notified area or any other officer nominated in this behalf by the concerned Head of the Department;
(vi) Chairperson of the Municipality or the Sarpanch of the Gram Panchayat, as the case may be, in whose jurisdiction the office of the market committee is located Provided that in the case of a Municipal Corporation constituted under any law relating to Municipal Corporation for the time being in force in the State, one person as may be nominated by the Corporation shall represent the Corporation in the Agricultural Market Committee concerned where a notified area comprises the Corporation also It is submitted that the State Government has power to terminate Members of the Committee including Chairman and Vice-Chairman nominated under Section 5 at the pleasure of the Government under Section 5 (11) of the Act, which reads as under:
" (11) Notwithstanding anything contained in any provisions of this Act, members of the Committee including the 6 Chairman and Vice-chairman shall hold the office during the pleasure of the Government Sri Rajnikanth Reddy relies on the judgment of the Hon'ble Apex Court in Om Narain Agarwal v. Nagar Palika Shahjahanpur 4 and submits that the right of nominated members is governed by the Statute and not Constitution.
According to him, nominated members are not entitled for any notice as their removal depends on pleasure of the government which is based on political consideration. Their removal does not put any stigma on their performance or character.
Relying on the judgment of the Hon'ble Supreme Court in B.P. Singhal v. Union of India 5, learned Additional Advocate General submits that loss of confidence will be a relevant criterion for withdrawal of pleasure and the ideology of the preset Committee may not be in sync with the policies or ideologies of the Government may also be a ground.
It is the contention of learned Additional Advocate General that in cases where 'doctrine of pleasure' is applicable, principles of natural justice have no application. Relevant judgment in this regard is Krishna v. State of Maharashtra 6.
4(1993) 2 SCC 242 5 (2010) 6 SCC 331 6 (2001) 2 SCC 441 7 It is finally submitted that no constitutional and / or statutory right of petitioners is violated and as per law laid down by the Hon'ble Supreme Court in matters of nominated posts where removal or termination is without any allegations and without attaching any stigma, principles of natural justice are not applicable. He relied on the judgment of the Supreme Court in Cheviti Venkanna Yadav v. State of Telangana 7 .
7. Having heard learned counsel on either side, the point that arises for consideration is whether there is violation of Article 14 of the Constitution and principles of natural justice.
8. It is the case of the respondents that government has power to terminate / remove the members of the Committee including Chairman and Vice-Chairman nominated under Section 5 'at the pleasure of the government'. Section 5(11) which was inserted by Act 5 of 2015 is clear about the said power.
9. The main contention of petitioners is that Section 5(11) provides that Members of the Committee including Chairman and Vice-Chairman shall hold office during the pleasure of the government, the said pleasure is not absolute, cannot be exercised whimsically without reasons, arbitrarily or 7 (2017) 1 SCC 283 8 mala fide. Though the said posts are nominated and pleasure posts, still the government is under obligation to follow the principles of natural justice.
10. In Sanjay's case (supra), relied on by learned counsel for petitioners, in paragraphs 16 to 18, it is held as under:
" 16. In the present case, absolutely no reason is forthcoming, nor the respondents have come with case as to what was the cause for terminating the Part Time Chairmanship of the petitioner. The State Government can only exercise this power on the basis of any relevant and strong material to suggest that continuation of such member would not be in public interest. There should be reason for removal of member.
17. The powers of removal of the office bearers of statutory board is to be exercised, firstly to ensure that the circumstances exist for the exercise of powers of removal and to safeguard the institution from continuation of such office-bearers.
18. As observed above, no reason has been set out by the State Government for removal of petitioner, when the admitted position is that the removal of the petitioner is on account of Doctrine of Pleasure. The law laid down by the Hon'ble Apex Court in case of B.P. Singhal (supra) would clearly apply to the facts of case that withdrawal of pleasure cannot be at the sweet will, whim and fancy of the authority but can only be for valid reasons. Mere using the word public interest can not become a ground for removal of petitioner from the Board. There should be valid reasons for removal."
11. In Dasari Raja Master's case, the Hon'ble High Court of Andhra Pradesh held as under:
" 59. In any view of the matter, in terms of the judgment of the Apex Court in B.P. Singhal v. Union of India (referred supra), 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 9 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 and public good."
12. Learned counsel for petitioners contend that Clause 3 of Telangana Ordinance No. 1 of 2014 by which Chairman, Vice Chairman and Members of every Market Committee shall cease to hold office, was invalidated by the Division Bench of this Court in M. Thirupathi Rao's case (supra). In the said judgment, it has been observed thus:
" On reading of the above clause-3 of the Ordinance, it appears to us that existing members, vice-chairmen and chairmen of the market committee are sought to be removed prematurely and in their place some other person or persons to be appointed to discharge the functions of the committee till reconstituted. In the writ affidavits we find that the chairman-cum-members of the market committee were appointed on various dates in 2013 except one being 7th petitioner in W.P. No. 24877 of 2014 who was appointed on 3.2.2012. Therefore, going by the provisions of sub-section (3) of Section 5 of the said Act they should remain in office for a period of three years from the date of appointment. Precisely all of them were to remain in office till 2016 except 7th petitioner in W.P. No. 24877 of 2014 till 2015 with rider of extension which might be granted for one year. We do not find the aforesaid amendment is sought to be given any retrospective effect. In absence of any stipulation thereof, it can safely be held that the said Ordinance has to take prospective effect. Even going by reduced term all the petitioners except one (7th petitioner in W.P. No. 24877 of 2014) are entitled to remain in office till 2015 if not 2016 in the event of extension is granted. The removal of all of the petitioners vide clause-3 by way of legislative action appears to be discriminatory as rightly contended by the learned counsel for the petitioners, as future appointees in the office of the members, vice-chairmen and chairmen are liable to be removed or denuded of their power under the existing provisions as provided under Sections 5, 6, 6(A) & 6(B) of the said Act whereas the above petitioners 10 are sought to be removed prematurely taking away procedural safeguard established by law against vulnerability of arbitrary, whimsical action of removal as provided in Sections 5, 6, 6(A) & 6(B). The petitioners and each of them have been picked up as a class to treat in discrimination with the class of future members, vice-chairmen and chairmen without any intelligible differentia as similar provision of removal has not been made by way of amendment like the present one for future members, vice-chairmen and chairmen who are kept with procedure safeguard as above against summary dismissal. Article 14 permits reasonable classification, but does not permit any classification without intelligible differentia as settled by Supreme Court firmly. We are unable to comprehend what is the difference between the present members, vice- chairmen and chairmen of the market committee and future members of the same committee for which different provision with regard to their removal, is required. No explanation is forthcoming for this impermissible differentiation, by counter affidavit, in absence thereof what petitioners contend is correct, that is for political purpose. Supreme Court in case of Dr. D.C. Wadhwa case (1 supra) has discarded forcefully this sort of classification as rightly contended by the learned lawyers for the petitioners. By clause-3 of the Ordinance, the petitioners and each of them have not been treated in equality with future appointees as above who belong to the same class in contravention of Article 14 of the Constitution of India. Article 14 of the Constitution of India reads as follows:
14. Equality before law. The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India."
13. On the subject, the learned Additional Advocate General relied on the judgments, cited supra, wherein it has been held as under:
Om Narain Agarwal v. Nagar Palika, Shahjahanpur 11 " 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 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 12 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 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".
13. Thereafter Article 15(3) provides that "nothing in this Article shall prevent the State from making any special provision for women and children". This means that in case any special provision is made for women, the same would not be violative on the ground of sex which is prohibited 13 under clauses (1) and (2) of Article 15 of the Constitution. Thus, the special provision contained for nominating one or two women members as the case may be provided in Section 9 of the Act would be protected from challenge under clause (3) of Article 15 of the Constitution. It may also be worthwhile to note that the provision of pleasure doctrine incorporated by adding the fourth proviso does not, in any manner, take away the right of representation of women members in the Board, but it only permits the State Government to keep the nominated women members of its own choice. The High Court in Dr Rama Mishra case (Writ Petition No. 11114 of 1990, Order dated December 9, 1991) took a wrong view in holding that the fourth proviso to Section 9 of the Act was violative of Article 15(3) of the Constitution under an erroneous impression that this provision in any manner curtailed the representation of women members in the Board. We are not impressed with the reasoning given by the High Court that the fourth proviso to Section 9 of the Act in any manner deprived the fundamental right of equality as enshrined in Article 14 of the Constitution. It is well established that the right of equality enshrined under Article 14 of the Constitution applies to equals and not to unequals. The nominated members of the Board fall in a different class and cannot claim equality with the elected members. We are also not impressed with the argument that there would be a constant fear of removal at the will of the State Government and is bound to demoralise the nominated members in the discharge of their duties as a member in the Board. We do not find any justification for drawing such an inference, inasmuch as, such contingency usually arises only with the change of ruling party in the Government. Even the highest functionaries in the Government like the Governors, the Ministers, the Attorney-General and the Advocate-General discharge their duties efficiently, though removable at the pleasure of the competent authority under the law, and it cannot be said that they are bound to become demoralised or remain under a constant fear of removal and as such do not discharge their functions in a proper manner during the period they remain in the office.
Krishna v. State of Maharashtra:
" 8. In the present case, the appellant was appointed under sub-section (2) of Section 4 read with clause (e) of sub-section (1) of Section 4 14 and was removed by order dated 9-2-2000 under Section 6 of the Act. Having considered the submissions for the parties and after perusing the language of the sections, we have no hesitation to hold, that the field of Section 6 and Section 10 are separate. The removal spoken under Section 6 is removal without any stigma while the removal under Section 10 is removal with penal consequences attaching stigma. If submission for the appellant is accepted, viz., Section 6 empowers and Section 10 lays down the conditions and procedure to remove, then removal of trustee could only be for penal consequences and not otherwise. If that be so, there could be no reason to enact Section 6 as Section 10 covers such cases. It is significant, the removal under Section 6 is confined only to such trustees who are covered under clause (e) of sub-section (1) of Section 4 and who are also nominated by the State Government. Rights of trustees falling under the aforesaid clause (e) are rights created under a statute and hence that very creator can always limit or curtail such right. In such cases, if a trustee is removed, he cannot project any grievance that no opportunity was given to him. If any right which is creature of statute, is limited or curtailed by that very statute, in the absence of any other right under that very statute or the Constitution of India, such trustee cannot claim any right based on the principle of natural justice.
9. The removal spoken of here neither casts any stigma nor leads to any penal consequences. This clearly reveals the doctrine of pleasure which is implicit in this section. In any statute expression of the will of the legislature may be explicit or it may be implicit. It is open for the courts, while interpreting any provision to spell or read with other provisions of the statute if so intended to read implicitly, in the absence of any explicit words that subserve the intent of the legislature.
11. Once doctrine of pleasure is applicable neither the principle of natural justice would step in nor any question of giving an opportunity before removal would arise. It is significant when stigma is cast then sub- section (3) of Section 10 specially provides for giving an opportunity to such incumbent before passing an order of removal under Section 10, while there is no such corresponding sub-section under Section 6. Thus intent of legislature is very clear which reinforces the inference which we have drawn that doctrine of pleasure is implicit under Section 6. In Om Narain 15 Agarwal v. Nagar Palika, Shahjahanpur [(1993) 2 SCC 242] this Court was considering the provisions of Section 9 of the U.P. Municipalities Act, 1916 as introduced by U.P. Act 19 of 1990, which made provision for the nomination of two women members by the State Government, and the fourth proviso provides that the nomination of such two members is at the pleasure of the State Government. This Court held: (SCC p. 254, paras 11-12) "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. ... 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.
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."
B.P. Singhal v. Union of India:
" The writ petition is filed as a public interest litigation in the wake of the removal of the Governors of the States of Uttar Pradesh, Gujarat, Haryana and Goa on 2-7-2004 by the President of India on the advice of the Union Council of Ministers. The petitioner sought:
(a) a direction to the Union of India to produce the entire files, documents and facts which formed the basis of the order dated 2-7-2004 of the President of India;
(b) a writ of certiorari, quashing the removal of the four Governors; and
(c) a writ of mandamus to the respondents to allow the said four Governors to complete their remaining term of five years.16
35. The Governor constitutes an integral part of the legislature of a State. He is vested with the legislative power to promulgate ordinances while the Houses of the Legislature are not in session. The executive power of the State is vested in him and every executive action of the Government is taken in his name. He exercises the sovereign power to grant pardons, reprieves, respites or remissions of punishment. He is vested with the power to summon each House of the Legislature or to prorogue either House or to dissolve the Legislative Assembly. No Bill passed by the Houses of the Legislature can become law unless it is assented to by him. He has to make a report where he finds that a situation has arisen in which the Government of the State cannot be carried on in accordance with the Constitution. He thus occupies a high constitutional office with important constitutional functions and duties.
40. It is thus evident that a Governor has a dual role. The first is that of a constitutional head of the State, bound by the advice of his Council of Ministers. The second is to function as a vital link between the Union Government and the State Government. In certain special/emergent situations, he may also act as a special representative of the Union Government. He is required to discharge the functions related to his different roles harmoniously, assessing the scope and ambit of each role properly. He is not an employee of the Union Government, nor the agent of the party in power nor required to act under the dictates of political parties. There may be occasions when he may have to be an impartial or neutral umpire where the views of the Union Government and the State Governments are in conflict. His peculiar position arises from the fact that the Indian Constitution is quasi-federal in character.
44. In such a scenario of myriad policies, ideologies, agendas in the shifting sands of political coalitions, there is no question of the Union Government having Governors who are in sync with its mandate and policies. Governors are not expected or required to implement the policies of the Government or popular mandates. Their constitutional role is clearly defined and bears very limited political overtones. We have already noted that the Governor is not the agent or the employee of the Union Government. As the constitutional head of the State, many a time he may be expressing views of the State Government, which may be neither his own nor that of the 17 Centre (for example, when he delivers the special address under Article 176 of the Constitution).
45. Reputed elder statesmen, able administrators and eminent personalities, with maturity and experience are expected to be appointed as Governors. While some of them may come from a political background, once they are appointed as Governors, they owe their allegiance and loyalty to the Constitution and not to any political party and are required to preserve, protect and defend the Constitution (see the terms of oath or affirmation by the Governor, under Article 159 of the Constitution). Like the President, Governors are expected to be apolitical, discharging purely constitutional functions, irrespective of their earlier political background. Governors cannot be politically active.
46. We therefore reject the contention of the respondents that Governors should be in "sync" with the policies of the Union Government or should subscribe to the ideology of the party in power at the Centre. As the Governor is neither the employee nor the agent of the Union Government, we also reject the contention that a Governor can be removed if the Union Government or party in power loses "confidence" in him.
70. We have however already rejected the contention that the Governor should be in sync with the ideologies of the Union Government. Therefore, a Governor cannot be removed on the ground that he is not in sync or refuses to act as an agent of the party in power at the Centre. Though Governors, Ministers and the Attorney General, all hold office during the pleasure of the President, there is an intrinsic difference between the office of a Governor and the offices of Ministers and the Attorney General. The Governor is the constitutional head of the State. He is not an employee or an agent of the Union Government nor a part of any political team. On the other hand, a Minister is a hand-picked member of the Prime Minister's team. The relationship between the Prime Minister and a Minister is purely political. Though the Attorney General holds a public office, there is an element of lawyer-client relationship between the Union Government and the Attorney General. Loss of confidence will therefore be a very relevant criterion for withdrawal of pleasure, in the case of a Minister or the Attorney General, but not a relevant ground in the case of a Governor.
18(v) Judicial review of withdrawal of President's pleasure
71. When a Governor holds office during the pleasure of the Government and the power to remove at the pleasure of the President is not circumscribed by any conditions or restrictions, it follows that the power is exercisable at any time, without assigning any cause. However, there is a distinction between the need for a cause for the removal, and the need to disclose the cause for removal. While the President need not disclose or inform the cause for his removal to the Governor, it is imperative that a cause must exist. If we do not proceed on that premise, it would mean that the President on the advice of the Council of Ministers, may make any order which may be manifestly arbitrary or whimsical or mala fide. Therefore, while no cause or reason be disclosed or assigned for removal by exercise of such prerogative power, some valid cause should exist for the removal. Therefore, while we do not accept the contention that an order under Article 156 is not justiciable, we accept the contention that no reason need be assigned and no cause need be shown and no notice need be issued to the Governor before removing a Governor.
76. This Court has examined in several cases, the scope of judicial review with reference to another prerogative power--power of the President/Governor to grant pardon, etc. and to suspend, remit or commute sentences. The view of this Court is that the power to pardon is a part of the constitutional scheme, and not an act of grace as in England. It is a constitutional responsibility to be exercised in accordance with the discretion contemplated by the context. It is not a matter of privilege but a matter of performance of official duty. All public power including constitutional power, shall never be exercisable arbitrarily or mala fide. While the President or the Governor may be the sole judge of the sufficiency of facts and the propriety of granting pardons and reprieves, the power being an enumerated power in the Constitution, its limitations must be found in the Constitution itself. The Courts exercise a limited power of judicial review to ensure that the President considers all relevant materials before coming to his decision. As the exercise of such power is of the widest amplitude, whenever such power is exercised, it is presumed that the President acted properly and carefully after an objective consideration of all aspects of the matter. Where reasons are given, 19 the Court may interfere if the reasons are found to be irrelevant. However, when reasons are not given, the Court may interfere only where the exercise of power is vitiated by self-denial on wrong appreciation of the full amplitude of the power under Article 72 or where the decision is arbitrary, discriminatory or mala fide (vide Maru Ram v. Union of India [(1981) 1 SCC 107 : 1981 SCC (Cri) 112] , Kehar Singh v. Union of India [(1989) 1 SCC 204 :
1989 SCC (Cri) 86] , etc.).
80. The extent and depth of judicial review will depend upon and vary with reference to the matter under review. As observed by Lord Steyn in Daly [R. Daly v. Secy. of State for the Home Department, (2001) 2 AC 532 :
(2001) 2 WLR 1622 : (2001) 3 All ER 433 (HL)] , in law, context is everything, and intensity of review will depend on the subject-matter of review. For example, judicial review is permissible in regard to administrative action, legislations and constitutional amendments. But the extent or scope of judicial review for one will be different from the scope of judicial review for the other. Mala fides may be a ground for judicial review of administrative action but is not a ground for judicial review of legislations or constitutional amendments. For withdrawal of pleasure in the case of a Minister or an Attorney General, loss of confidence may be a relevant ground. The ideology of the Minister or Attorney General being out of sync with the policies or ideologies of the Government may also be a ground. On the other hand, for withdrawal of pleasure in the case of a Governor, loss of confidence or the Governor's views being out of sync with that the Union Government will not be grounds for withdrawal of the pleasure. The reasons for withdrawal are wider in the case of Ministers and Attorney General, when compared to Governors. As a result, the judicial review of withdrawal of pleasure, is limited in the case of a Governor whereas virtually nil in the case of a Minister or an Attorney General.
83. We summarise our conclusions as under:
(i) Under Article 156(1), the Governor holds office during the pleasure of the President. Therefore, the President can remove the Governor from office at any time without assigning any reason and without giving any opportunity to show cause.20
(ii) Though no reason need be assigned for discontinuance of the pleasure resulting in removal, the power under Article 156(1) cannot be exercised in an arbitrary, capricious or unreasonable manner. The power will have to be exercised in rare and exceptional circumstances for valid and compelling reasons. The compelling reasons are not restricted to those enumerated by the petitioner (that is physical/mental disability, corruption and behaviour unbecoming of a Governor) but are of a wider amplitude. What would be compelling reasons would depend upon the facts and circumstances of each case.
(iii) A Governor cannot be removed on the ground that he is out of sync with the policies and ideologies of the Union Government or the party in power at the Centre. Nor can he be removed on the ground that the Union Government has lost confidence in him. It follows therefore that change in government at the Centre is not a ground for removal of Governors holding office to make way for others favoured by the new Government.
(iv) As there is no need to assign reasons, any removal as a consequence of withdrawal of the pleasure will be assumed to be valid and will be open to only a limited judicial review. If the aggrieved person is able to demonstrate prima facie that his removal was either arbitrary, mala fide, capricious or whimsical, the Court will call upon the Union Government to disclose to the Court, the material upon which the President had taken the decision to withdraw the pleasure. If the Union Government does not disclose any reason, or if the reasons disclosed are found to be irrelevant, arbitrary, whimsical, or mala fide, the Court will interfere. However, the court will not interfere merely on the ground that a different view is possible or that the material or reasons are insufficient.
14. This Court has gone through the judgments relied on by both the parties meticulously. Though learned counsel for petitioners' attack is on violation of Article 14 and principles of natural justice, the issue is no more res integra, as the 'doctrine of pleasure' was dealt with in catena of judgments, quoted supra, relied on by the learned Additional Advocate General.
21The contention of petitioners that 'withdrawal of pleasure cannot be at the sweet will, whim and fancy of the authority but can only be for valid reasons', was retaliated by the Hon'ble Supreme Court in the above-quoted judgments, wherein it has been categorically held, once doctrine of pleasure is applicable, neither the principle of natural justice would step in nor any question of giving an opportunity before removal would arise. If appointments 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. 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 removal under pleasure doctrine. As far as nominated posts are concerned, the Legislature in its wisdom has provided that they shall hold office during the pleasure of the government. The relevant provision i.e. Section 5(11) of the Act itself says that members of the Committee including Chairman and Vice Chairman shall hold office during the pleasure of the government. In B.P. Singhal's case, the Supreme Court touched the aspect of 'loss of confidence' which will be a relevant criterion for withdrawal of pleasure as the ideology of the present Committee may not be in 22 sync with the policies or ideologies of the newly-elected government. This Court therefore, of the opinion that learned counsel for petitioners failed to demonstrate that Article 14 of the Constitution is violated.
15. Learned counsel also tried to convince that Division Bench of this Court in M. Thirupathi Rao's case (supra) invalidated Clause 3 of Telangana Ordinance No.1 of 2014 by which Chairman, Vice-Chairman and Members of every Market Committee shall cease to hold office. In the said judgment, it was held that Chairman as well as Members cannot be removed otherwise than the procedure mentioned in the said Act during the period of three years and extended period. It is further alleged that by Clause 3, Chairman and Vice-Chairman namely, petitioners herein are removed by the aforesaid colourable piece of legislation as punitive measure. The said case is not applicable as there is a specific provision under Section 5(11) enabling the State to terminate at the pleasure of the government. The facts in the said case are not applicable to the present case. This Court therefore, safely comes to the conclusion that petitioners are not entitled to the relief claimed in the Writ Petition, which is liable to be dismissed.
16. The Writ Petition is accordingly, dismissed. No costs.
2317. Consequently, the miscellaneous Applications, if any shall stand closed.
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NAGESH BHEEMAPAKA, J 12th February 2024 ksld