Bombay High Court
Sampat Paraji Jawalkar And Others vs State Of Maharashtra And Others on 6 May, 2016
Bench: S.V. Gangapurwala
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO. 2949 OF 2015
1. Sampat Paraji Jawalkar,
Age : 57 Years, Occu.: Service,
R/o. 190, "Shreekrupa" Ulkanagari,
Aurangabad, District : Aurangabad.
2. Praveen Gopalrao Shelke,
Age : 48 Years, Occu. : Service,
R/o. Vishnunagar, Basmathnagar,
District : Hingoli.
3. Gulab Rajabhau Bhoyar,
Age : 48 Years, Occu. : Service,
R/o. Kallamnuri, Tq. : Kallamnuri,
Dist. : Hingoli.
4. Mohd. Irfankhan Mohd. Subhankhan,
Age : 45 Years, Occu. : Service,
R/o : Roshangate, Aurangabad,
Dist. : Aurangabad.
5. Anand Daulatrao Kharat,
Age : 32 Years, Occu. : Service,
R/o. Sidharthnagar, N-12, Hudco,
Aurangabad, Dist. : Aurangabad. .. Petitioners
Versus
1. The State of Maharashtra,
Through its Secretary,
School Education and Sports
Department, Mantralaya, Mumbai.
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2. The Director of Education,
Maharashtra State Pune.
3. The Deputy Director of Education,
Aurangabad Division, Aurangabad.
4. The Maharashtra State Board of
Secondary and Higher Secondary
Education Aurangabad Divisional
Board, Station Road, Aurangabad,
Through its Divisional Secretary. .. Respondents
Shri V. D. Sapkal, Advocate for Petitioners.
Shri S. G. Karlekar, A.G.P. for Respondent Nos. 1 to 3.
Shri Anup Nikam, Advocate for the Respondent No. 4.
WITH
WRIT PETITION NO. 3274 OF 2015
1. Kiran Narayanrao Patil,
Age : 40 Years, Occu.: Service,
R/o. 1033, Shivneri Road, Sainagar,
Cidco, N-6, Aurangabad,
District : Aurangabad.
2. Gajanan S/o Madhavrao Patil,
Age : 52 Years, Occu. : Service,
R/o. 54, Shakarnagar, Aurangabad,
Tq. and Dist. : Aurangabad.
3. Mohd. Taleb Taher Miya Saudagar,
Age : 34 Years, Occu. : Service,
R/o. Darga Road, Jalna,
Tq. and Dist. : Jalna. .. Petitioners
Versus
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1. The State of Maharashtra,
Through its Secretary,
School Education and Sport's
Department, Mantralaya, Mumbai.
2. The Director of Education,
Maharashtra State Pune.
3. The Deputy Director of Education,
Aurangabad Division, Aurangabad.
4. The Maharashtra State Board of
Secondary and Higher Secondary
Education Aurangabad Divisional
Board, Station Road, Aurangabad,
Through it's Divisional Secretary. .. Respondents
Shri Abhijit G. Choudhari and D. J. Choudhari, Advocates for
Petitioners.
Shri S. G. Karlekar, A.G.P. for Respondent Nos. 1 to 3.
Shri Anup Nikam, Advocate for the Respondent No. 4.
WITH
WRIT PETITION NO. 2988 OF 2015
1. Uddhav S/o. Ramkisan Mhaske,
Age : 38 Years, Occu.: Service as Assistant
Teacher in Rangnath Maharaj Secondary
and Higher Secondary School,
Waghul, Tq. and Dist. Jalna.
2. Satyandra S/o Devidasrao Patil,
Age : 48 Years, Occu. : Service as Assistant
Teacher in Sow Kai. S. K. College Beed,
Tq. and Dist. : Beed.
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3. Prabhakar S/o Dinkar Ambhore,
Age : 34 Years, Occu. : Service as Assistant
in Smt. Shakuntalabai Bordikar Kanya
Vidyalaya, Jintur, Tq. and Dist. : Parbhani.
4. Manoj S/o Shivajirao Birari,
Age : 38 Years, Occu. : Service as Assistant
Teacher in Mohatadevi Vidyalaya Marol Fata,
Tq. : Paithan, Dist. : Aurangabad.
5. Raiskhan Nasirkhan,
Age : 30 Years, Occu. : Service as Assistant
Teacher in National Urdu High School,
Tq. : Sillod, Dist. : Aurangabad .. Petitioners
Versus
1. The State of Maharashtra,
Through its Secretary,
School Education and Sports
Department, Mantralaya, Mumbai.
2. The Maharashtra State Board of
Secondary and Higher Secondary
Education Aurangabad Divisional
Board, Station Road, Aurangabad,
Through its Divisional Secretary. .. Respondents
Shri Amol N. Kakade, Advocate for Petitioners.
Shri S. G. Karlekar, A.G.P. for Respondent No. 1.
Ms Surekha P. Mahajan, Advocate for the Respondent No. 2.
CORAM : S. V. GANGAPURWALA AND
A. M. BADAR, JJ.
DATE RESERVED FOR JUDGMENT : 04.02.2016
DATE ON JUDGMENT PRONOUNCED : 06/05/2016
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ORAL JUDGMENT (Per S. V. Gangapurwala, J.) :
. Rule. Rule made returnable forthwith. With the consent of
parties taken up for final hearing.
2. The petitioners are nominated as members of the Standing
Committee by the respondent No. 4/Board in view of Section 6 of
the Maharashtra Secondary and Higher Secondary Education
Boards Act, 1965 (for the sake of brevity hereinafter called as
"Said Act"). The State Government vide publication of
notification in the Government Gazette dated dated 05 th March,
2015 cancelled the membership of these petitioners, who are
nominated members. The same is assailed in the present writ
petitions.
3. Mr. Sapkal, the learned counsel for petitioners submits
that, the term of the nominated members as per Section 8 of the
said Act is four years. Though Sub-Section 1A of the Section 8 of
the said Act gives powers to the Government to terminate the
membership of the nominated members even prior to the
stipulated period of four years, however, the said powers are not
unfettered. The Government while exercising it's powers has to
notify the reasons. According to the learned counsel the doctrine
of pleasure cannot be invoked in an arbitrary manner. There has
to be some acceptable material to invoke the doctrine of pleasure.
The public interest did not demand it and so the doctrine of
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pleasure could not have been invoked by the respondent. The
learned counsel relies on the judgment of Division Bench of this
Court in Writ Petition No. 6277 of 2000 dated 22nd June,
2001. The learned counsel also relies on the judgment of the
Division Bench of this Court in Writ Petition No. 326 of 2015
with connected writ petitions dated 08th May, 2015. According
to the learned counsel, in the affidavit in reply filed by the State
also no reasons are forthcoming for invoking Sub-section 1A of
Section 8 of the said Act. The learned counsel further submits
that, the doctrine of pleasure is not a license to act with
unfettered discretion or to act arbitrarily. The doctrine of
pleasure does not dispense with the need of the cause for
withdrawal of the pleasure. According to the learned counsel the
power under Sub-section 1A of Section 8 of the said Act will have
to be exercised in a rare and exceptional circumstances and that
too for valid and compelling reasons. The learned counsel relies
on the judgment of the Apex Court in a case of B. P. Singhal
Vs Union of India and another reported in (2010) 6
SCC 331. The learned counsel submits that, in the present case
also as no reasons are forthcoming, nor anything is produced
before this Court showing that the authority has applied its mind
while exercising it's powers of Sub-section 1A of Section 8 of the
said Act. The impugned order cannot withstand and deserves to
be set aside.
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4. Mr. Karlekar, the learned Assistant Government Pleader
submits that, the petitioners are nominated members. It is not
that by undergoing some selection or competition they have been
nominated. They have been nominated at the pleasure of the
Government U/Sec. 6 of the said Act. Sub-Section 1A of Section 8
of the said Act empowers the Government to terminate their
membership before the lapse of four years. The petitioners being
the nominated members do not have the right of post, as such,
cannot agitate regarding their termination of membership. The
learned A. G. P. relies on the order of the Division Bench of this
Court in Writ Petition No. 1935 of 2014 dated 05 th March,
2014. The learned A. G. P. further submits that, the right
created by the statute can be limited and curtailed by the
statute. No stigma is attached for the removal under Sub-Section
1A of Section 8 of the said Act, nor it leads to any penal
consequences. The doctrine of pleasure is implicit in the said
provision. Once the doctrine of pleasure is applicable, neither the
principles of natural justice would step in, nor any question of
giving an opportunity before removal would arise. The learned
A. G. P. relies on the judgment of the Apex Court in a case of
Krishna Bulaji Borate Vs. State of Maharashtra and
others reported in (2001) 2 SCC 441.
5. We have considered the submissions canvassed by the
learned counsel for respective parties. Before we advert to the
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propositions put forth by the learned counsel for respective
parties, it would be appropriate to refer to the relevant
provisions.
The Maharashtra Secondary and Higher
Secondary Education Boards Act, 1965
1. .........
2. ........
6. (1) A Divisional Board shall consist of
a Chairman appointed by the State
Government, and of the following members,
that is to say :--
Class I---Ex-officio Members.
(i) All Regional Deputy Directors of
Education in the Division.
(ii) Two Education Officers designated
by the State Government amongst officers
serving in the Division as Parishad
Education Officers of the Zilla Parishads,
2[and the Educational Inspector, Greater
Bombay.]
Class 111---Nominated Members.
4[(i) Six members nominated by the State
Government from amongst the
principals,headmasters and headmistresses in
the Division, of whom two shall be
principals of junior colleges.]
6[(ii) Eight members nominated by the
State Government, from amongst the teachers
in the Division, of whom four shall be
teachers in junior colleges.]
8[(iv) Two members nominated by the State
Government, from amongst the representatives
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of the managing bodies of secondary schools
and junior colleges recognised by the
Divisional Boards in the Division, of whom
one shall be the representative of the
managing bodies of junior colleges.]
10[Provided that, a person shall cease to
hold office as a member of the Divisional
Board, if be ceases to be a principal,
headmaster, headmistress or teacher or
representative of the managing body where he
is nominated from such persons and such
person shall inform the Chairman in writing
under his own band of his, having so ceased
to be the member of the Board, within a week
therefrom.]
(2) The names of persons (not being
ex-officio members) who have been i [* * *]
nominated, from time to time, as members of
a Divisional Board shall be published by the
State Board in the Official Gazette.
2(3) Notwithstanding anything contained
in this Act, all nominated members of every
Divisional Board, holding office,
immediately before date of commencement of
the Maharashtra Secondary and Higher
Secondary Education Boards (Amendment) Act,
1986, shall cease to be such members and
vacate their offices on the date on which
new members are nominated by the State
Government under sub-section (1), as amended
by the said Act.]
8. (1) The members of the State Board and
of each of the Divisional Boards, not being
members ex-officio, shall hold office for a
term of four years from, the date on which
their names are published in the Official
Gazette.
2[(1A) Notwithstanding anything contained
in sub-section (1), the nominated members of
the State Board or of the Divisional Boards
shall hold office during the pleasure of the
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Government and their term of office may, at
any time, before the expiry of the period of
four years, be terminated by the State
Government, by an order published in the
Official Gazette.]
(2) The members shall be entitled to
such compensatory allowance as may be
determined by 3[regulations.)
6. Section 3 of the Act of 1965 empowers the State
Government to establish a board by notification in the official
Gazette for the whole state by the name of the Maharashtra
State Board of Secondary and (Higher Secondary) Education. So
also U/Sec. 3(2) of the Act of 1965, the State Government by
notification in the official Gazette can establish a board for each
of the divisions under such name as may be prescribed. Sec. 3A
of the Act of 1965 empowers the State Government to constitute
a new division under the Act of 1965 by notification in the official
Gazette. As per Sec. 6 of the Act of 1965, the Divisional Board
consists of a Chairman and Ex-officio members, so also
nominated members. All Regional Deputy Directors of
Education int he division and two Education Officers designated
by the State Government are Ex-officio members. Six members
are nominated by the State Government from amongst the
Principal, Head Masters and Head Mistress in the division of
whom two shall be Principals of Junior Colleges. Eight members
are nominated by the State Government from amongst the
teachers int he division of whom four shall be teachers in junior
colleges and two members are nominated by the State
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Government from amongst the representatives of the Managing
bodies of secondary schools and junior colleges. The names of the
nominated members are required to be published by the said
board in the official Gazette. As per Sec. 8(1) of the Act of 1965,
the members of the Divisional Board not being ex-officio
members hold office for a term of four years from the date of
which their names are published in the official Gazette. Sec.
8(1A) empowers the State Government to terminate the
membership of the nominated members of the said board or of
the Divisional Board before the expiry of period of four years.
7. The petitioners herein are nominated as the members of
the Aurangabad Divisional Board as per notification published in
official Gazette dated 27.08.2014. As per Sec. 8(1) of the Act of
1965, they are entitled to hold the office for a term of four years
from the date of publication of notification in the official Gazette,
however, though notification nominating petitioners as members
of Divisional Board is published in the official Gazette on
27.08.2014, the State Government has terminated the
membership of the petitioners as nominated members of the
Aurangabad Divisional Board vide publication in the official
Gazette dated 05.03.2015 i. e. within a span of six months. The
same is assailed in the present writ petition.
8. Reading the provisions of Sec. 8(1A) of the Act of 1965
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there is no manner of doubt, that the nominated members to the
Divisional Board like petitioners hold office at the pleasure of the
State Government. Though the term is of four years, they can be
removed at any time during the pleasure of the Government.
The provisions do not require any issuance of notice prior to the
termination of the membership of the nominated members to the
Divisional Board, nor it contemplates assigning any reasons for
the same. The petitioners are nominated by the Government and
the provisions also gives right to the Government to terminate
the membership of petitioner at its pleasure. The termination of
the membership of the petitioners is not stigmatic. The provision
does not require the State Government to adhere to the
principles of natural justice before terminating their
membership, nor it mandates issuance of any show cause notice.
The adherence to the principles of natural justice cannot be read
into the said provisions also. Once doctrine of pleasure is
applicable, then neither the principles of natural justice would
step in, nor any question of giving an opportunity before removal
would arise, as has been held by the Apex Court in a case of
Krishna Bulaji Borate Vs. State of Maharashtra and
others and relied by the learned A. G. P. referred to supra. In
the said case, the Apex Court was dealing with pari-materia
provisions of removal of nominated trustee under the Nagpur
Improvement Trust Act 1936. It is held that, where the doctrine
of pleasure is applicable and the removal does not cause any
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stigma, nor leads to any penal consequences, then in that case,
the petitioner cannot claim opportunity before removal, nor
principals of natural justice would apply.
9. The question is even if "at pleasure" doctrine is applied,
then whether the State Government has unbridled power of
removal without any cause or reason. Whenever the law bestows
discretion in any authority, the said discretion cannot be an
arbitrary or unregulated discretion, but the same has to be
exercised fairly. There cannot be a concept of unfettered and
unbridled discretion, where the rule of law exists. The
Constitutional Bench of the Apex Court in a case of B. P.
Singhal Vs Union of India and another has in para 22
and 48 observed as under.
"22. 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 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
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
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"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. The doctrine
of pleasure, however, is not a license 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 persons 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.
48. 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 Ex parte Daly
[2001 (3) All ER 433], 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 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
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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."
10. 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 membership of the nominated
members. The order need not state the cause for removal of the
nominated members, but the cause must exist or the cause for
exercising the power to terminate their membership.
11. The cause to remove must exists. Though the cause or the
reasons for removal may not be disclosed, it is imperative that
cause should exist. The Government in exercise of its powers
U/Sec. 8(1A) of the Act of 1965 should not act in an arbitrary or
unreasonable manner.
12. There is no manner of doubt that the nomination of these
petitioners was at the pleasure of the Government and their
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removal is also at the pleasure of the Government. The Apex
Court in a case of B. P. Singhal Vs Union of India and
another referred supra has held that, where "at pleasure"
doctrine applies, there is no need to assign any reason, nor to
state the cause for removal. Even principles of natural justice do
not apply. The scope of judicial review of withdrawal of pleasure
is virtually nil in such cases. The Court would exercise its power
of judicial review in such cases, if the aggrieved person
demonstrates prima facie that his removal was either arbitrary,
malafide or whimsical. In the present case, the respondent/State
has filed affidavit through Deputy Director of Education. The
relevant portion of the affidavit in reply reads as under :
"7. I say that, the Act provides that, absolute
discretion is vestes in the Government with regard
to the appointment and termination of tenure of
the nominated members on the State and
Divisional Boards. It is not incumbent upon the
State to assign any reason for such exercise of its
discretion. It is presumed that, the State has
acted in a reasonable manner. The Act does not
provide for issuance of notice or hearing to the
members whose tenure has been curtailed."
13. As observed above, cause need not be stated while
removing the nominated members, nor reasons need be assigned,
but cause should exist. The respondents in their affidavit could
have stated the cause for removal. The cause for withdrawal of
pleasure in case of such nominated councilor is wider. The same
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may be loss of confidence, etc. But the cause must exist. As
cause need not be stated in the order of removal, nor reasons
need be assigned, the respondents in the affidavit could have
stated the cause. However, the respondents have only stated
that, the petitioners are removed as they hold the office during
the pleasure of the Government. "At pleasure" doctrine cannot
be exercised arbitrarily. As the affidavit also does not state the
cause, we had asked the learned A. G. P. to produce the original
record, if it, states the cause for removal. Though the matter was
adjourned on many occasions so as to enable the respondents to
produce the record, the same was never produced.
14. In normal course, we would certainly not have exercised
our power of judicial review, however, as no cause is forthcoming,
we had called for the record. The record was also not produced.
The petitioners have pleaded that, action of the respondents is
arbitrary. Prima facie it appears that, the respondents have
acted arbitrarily. The Apex Court in a case of B. P. Singhal
Vs Union of India and another referred to supra that
doctrine of pleasure is not a license to act arbitrarily. It does not
dispense with need for a cause for withdrawal. "At pleasure"
doctrine enable removal of person holding the office at the
pleasure of the 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
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removal or withdrawal of pleasure. But the cause should exist.
The withdrawal of pleasure cannot be at the sweet will, whim
and fancy of the authority, but can be for valid cause.
15. We had called for the record to know, whether the cause
existed as in the affidavit also it was nowhere stated. The record
is also not produced, we have no option but to set aside the
notification dated 05.03.2015 removing the petitioners as
nominated members to the extent of petitioners only. However,
this order would not be an impediment for the respondents to
take fresh action, if the cause exists.
Rule accordingly is made absolute in above terms. No
costs.
Sd/- Sd/-
[ A. M. BADAR, J. ] [ S. V. GANGAPURWALA, J. ]
bsb/May 16
