Jharkhand High Court
Phool Singh vs The State Of Jharkhand Through The ... on 4 August, 2021
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P.(S). No. 2873 of 2020
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Phool Singh ......... Petitioner.
Versus
1. The State of Jharkhand through the Chief Secretary, Ranchi.
2. The Director, Department of School Education and Literacy, Govt. of
Jharkhand, Ranchi.
3. The Principal Secretary, Department of School Education and Literacy,
Govt. of Jharkhand, Ranchi.
4. The Additional Secretary, Department of School Education and Literacy,
Govt. of Jharkhand, Ranchi.
5. The Jharkhand Academic Council through its Chairman, having its
office at Gyandeep Campus, Bargawan, Namkum, Ranchi.
6. Dr. Shankar Lal.
.......... Respondents.
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CORAM: THE HON'BLE MR. JUSTICE DR. S.N.PATHAK
(Through: Video Conferencing)
For the Petitioner : Mr. Ajit Kumar, Sr. Advocate
Mr. Sameer Sahay, Advocate
Ms. Kumari Sugandha, Advocate
For the State : Mr. Mithilesh Singh, GA-IV
For the JAC : Mrs. Richa Sanchita, Advocate.
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07/ 04.08.2021 Heard the parties.
2. Despite valid service of notice, respondent No. 6 has chosen not to appear
before this court either himself or through a counsel to place his case; hence, this
Court proceeded to pass final order after hearing counsel for the rest of parties on
the basis of merits of the case.
3. Petitioner has prayed for quashing the memo dated 03.09.2020 (Annexure-
7), whereby the respondent no. 4 has illegally and arbitrarily terminated the
remaining tenure of the petitioner and has removed him from the post of Vice-
Chairman, Jharkhand Academic Council. Petitioner has further prayed that after
quashment of the said memo, the respondents may be directed to reinstate him on
his post with all consequential benefits.
It has been further prayed for quashing the notification dated 03.09.2020
(Annexure-8), whereby the respondent no. 4 has arbitrarily appointed respondent
No. 6 as the new Vice-Chairman, Jharkhand Academic Council for a period of
three years.
4. The facts of the case lie in a narrow compass. The petitioner has been in
teaching profession since 1977 and has served as the Principal of Rajkamal
Saraswati Vidya Mandir, Dhanbad, a CBSE affiliated school since 1989. It is the
case of the petitioner that Department of School Education and Literacy, Govt. of
Jharkhand, Ranchi vide its notification dated 09.09.2015 has appointed the
petitioner as the Vice-Chairman, Jharkhand Academic Council, Ranchi for a
period of three years from the date of assuming the charges. The said appointment
has been made under Section 11(3) of Clause-9 of Jharkhand Academic Council
(Amendment) Act, 2006. Consequently, vide memorandum dated 15.09.2015, the
petitioner took the charge of Vice-Chairman, Jharkhand Academic Council,
Ranchi and completed three years tenure on the said post without any complain
from any side. Thereafter, the Department of School Education and Literacy,
Govt. of Jharkhand, Ranchi, finding services of the petitioner satisfactory, vide its
notification dated 15.09.2018 appointed the petitioner for another term of three
years and the petitioner took charge of the said post on 15.09.2018 itself.
5. It is the further case of the petitioner that before completion of
tenure of three years in his second term, the respondent No. 4 vide notification
dated 03.09.2020 cancelled remaining tenure and removed the petitioner from the
post of Vice-Chairman. However, to the utter surprise of the petitioner,
respondent No. 4 went ahead and appointed respondent No. 6 as the new Vice-
Chairman, Jharkhand Academic Council vide notification dated 03.09.2020 on
the same day itself.
Aggrieved by the impugned notifications dated 03.09.2020 by which the
petitioner has been illegally and arbitrarily removed from the post of Vice-
Chairman and respondent No. 6 has been appointed in his place on the said post,
he has knocked the door of this Court.
6. Mr. Ajit Kumar, learned senior counsel appearing for the petitioner
submits that impugned notifications dated 03.09.2020, by which the petitioner has
been removed from the post of Vice-Chairman of Jharkhand Academic Council
and in his place respondent No. 6 has been appointed, are illegal, arbitrary and
not sustainable in the eyes of law. Learned senior council submits that by virtue
of Section 4(1) of the Jharkhand Academic Council (Amendment) Act, 2006, the
Vice-Chairman is a member of Jharkhand Academic Council and his
appointment, removal, terms and conditions of service, are solely governed by the
said Act. Learned senior counsel further argues that the petitioner has been
removed from his post without giving any prior notice or opportunity of hearing
to him. No allegations have been made against the petitioner while he was
holding the post of Vice-Chairman and hence, the petitioner cannot be said to be
disqualified to hold the post as the petitioner had already completed tenure of
three years on the said post and finding his service satisfactory, the respondent-
authorities have extended the same for another term of three years. Learned
senior counsel further argues that the impugned notification is cryptic,
mechanical and is not supported by any reasons and the same has been issued in
colourable exercise of power of the government, to remove the petitioner
midway, before completion of his tenure. Learned senior counsel further argues
that it is a settled law that a person holding a public post cannot be removed
arbitrarily, illegally or at the sweet will of the government and any such order
removing a person from the public post comes within the purview of judicial
review.
7. Learned senior counsel further submits that appointment to the post of
Vice-Chairman is at the pleasure of the State Govt., however, the doctrine of
pleasure does not provide a license to the government to act arbitrarily,
capriciously or whimsically. The application of the said doctrine cannot be at the
sweet will, whims and fancy of the authority but can only be for valid reasons.
The Hon'ble Supreme Court in catena of its decisions has held that the absolute,
unrestricted application of the doctrine of pleasure does not exist in India and the
same is subject to the rule of law and Article 14 of the Constitution. Learned
senior counsel further argues that though the statute provides that the appointment
of Vice-Chairman is at the pleasure of the government, however, the same also
provides that the term of appointment is for a period of three years and that any
member can be removed only upon disqualification of any kind as provided in the
Act itself but in the impugned notification, it is nowhere mentioned that petitioner
has been found disqualified for holding the post of Vice-Chairman. Learned
senior counsel lastly submits that for the aforesaid reasons, the impugned
notifications are fit to be quashed and set aside.
8. To buttress his arguments, learned senior counsel places heavy reliance on
the following judgments:
(I) Union of India & Anr. Vs. Shardindu [(2007) 6 SCC 276];
(II) Chandra Bhushan Kumar & Anr. Vs. State of Jharkhand & Ors.
[2013 SCC Online Jhar. 1013]
(III) Mrs. Lakshmi Singh Vs. the State of Jharkhand & Ors. [W.P.(C).
No. 1294 of 2007]
9. Per contra, counter-affidavit has been filed.
10. Mr. Mithilesh Singh, learned counsel appearing for the respondent-State
vehemently opposes the contention of learned senior counsel appearing for the
petitioner. Justifying the impugned notifications, learned counsel submits that
petitioner, who was holding public post has been removed vide notification
bearing memo No. 1712 dated 03.09.2020 without any stigma or disqualification
attached to him by invoking the doctrine of pleasure by the order of Her
Excellency, the Governor of Jharkhand and with the recommendation of Hon'ble
the Chief Minister, Jharkhand. Learned counsel further argues that there is no
provision under the Jharkhand Academic Act, which prohibits the State Govt.
from removing the Vice-Chairman before completion of his tenure after extension
and as such, the respondents have acted well within the powers conferred under
the Jharkhand Academic Council Act, there was no violation of principle of
natural justice or Article 14 of the Constitution. Learned counsel lastly submits
that for the aforesaid facts and circumstances, the instant writ application is
devoid of any merit and is liable to be dismissed.
11. To strengthen his arguments, learned counsel appearing for the respondent-
State places heavy reliance on the following judgments:
(I) Om Narain Agarwal & Ors. Vs. Nagar Palika, Shahjahanpur &
Ors., [ (1993) 2 SCC 242];
(II) Deepak Prakash Vs. the State Jharkhand, Secretary of Mines and
Geology, Jharkhand [2007 SCC Online Jhar. 500].
12. Be that as it may, having heard the rival submissions of the parties and
upon perusal of the documents brought on record, this Court is of the considered
view that the case of the petitioner needs consideration.
13. Before dealing with the issues involved in this case, it has to be examined
that what were the terms and conditions for appointment of the petitioner. The
petitioner was dully appointed as per the Jharkhand Academic Council
(Amendment) Act, 2006. Section 11(1)(3) of the said Act which reads as under:
11(1)(3) Appointment, term and service conditions of Vice
Chairman:-
(i) The Vice-Chairman shall be appointed by the State
Government.
(ii) The Vice-Chairman shall be a whole-time officer and shall
hold office at the pleasure of the State Govt. for a term not
exceeding three years from the date on which he first assumes
charge of the office.
(iii) On the expiration of the first term he may be appointed at
the pleasure of the State Government for a term not exceeding
three years.
(iv) The State Government shall appoint such person as Vice-
Chairman who has sufficient experience of education
administration.
(v) The Salary and other service conditions of the Vice-
Chairman shall be equivalent to the Pro-Vice-Chancellor of a
University in Jharkhand.
(vi) In addition to his own duties he will be in charge of the
Regional office of the Council at Dumka.
(vii) He will act under the over all superintendence of the
Chairman and perform such other duties as may be assigned to
him by the Chairman from time to time.
(viii) Other conditions of the service shall be determined by the
State Government.
14. It is an admitted position that as per Section 11(1)(3) of the said Act, the
Vice Chairman shall be a whole-time Officer and shall hold office at the
pleasure of the State Govt. for a term not exceeding three years from the date
on which he first assumes charge of the office.
The present petitioner was earlier appointed by the State Govt. for a fixed
tenure of three years and thereafter taking into consideration his suitability for the
post, his term was extended for further period of three years. Admittedly, it is not
in dispute that the Vice Chairman shall hold office at the pleasure of the State
Govt. but it has to be seen whether such power can be exercised in consonance
with statutory provisions or the same has to be exercised as per the wishes of the
State Govt. This Court is of the view that the pleasure of the State Govt. has to be
exercised very sparingly.
15. The said issue fell for consideration before the Hon'ble Apex Court in case
of Union of India & Anr. Vs. Shardindu, reported in (2007) 6 SCC 276,
wherein their Lordships have held as under:
"15. Section 5 deals with disqualification for office of members.
Section 6 lays down the vacation of office of member. We are not
concerned with rest of the provisions of the Act as they deal with
various functions and other connected matters of education. In
purported exercise of the powers under Section 31 of the Act the
Central Government framed the rules known as the National Council
for Teachers Education Rules, 1997 (hereinafter referred to as "the
Rules"). Rule 5 of the Rules lays down the conditions of service of the
Chairperson, the Vice-Chairperson and the Member-Secretary, like
their pay, dearness allowance, house rent allowance and city
compensatory allowance and other terminal benefits. Rule 6 deals
with travelling and daily allowances to members. Rule 7 deals with
the powers and duties of the Chairperson. Therefore, from the scheme
of the Act and the Rules it is apparent that the appointment of the
Chairperson of the NCTE is a tenure post for a period of four years or
any person attaining the age of sixty years whichever is earlier.
Section 5 deals with disqualification and none of the disqualifications
mentioned in that section have been incurred by the respondent.
Neither he has been convicted nor sentenced to imprisonment for an
offence which in the opinion of the Central Government, involves
moral turpitude, nor has he been undischarged insolvent, nor was he
of unsound mind and has been removed or dismissed from the service
of the Government or a body corporate owned or controlled by the
Government, and has in the opinion of the Central Government such
financial or other interest in the Council as is likely to affect
prejudicially the discharge by him of his functions as a member nor
has committed any financial irregularity while working as
Chairperson. Therefore, the respondent has not incurred any of the
disqualifications as mentioned above. Section 6 deals with vacation of
office of member. Section 6 lays down that the Central Government
can remove if any person has incurred any of the disqualifications as
mentioned in Section 5. Proviso to Section 6(a) further clarifies that
the incumbent shall be removed on the ground that he has become
subject to the disqualification mentioned in clause (e) of that section,
unless he has been given a reasonable opportunity of being heard in
the matter or refuses to act or becomes incapable of acting or is
without obtaining leave of absence from the Council, absent from
three consecutive meetings of the Council or in the opinion of the
Central Government has so abused his position as to render his
continuance in office detrimental to the public interest. Therefore,
under these contingencies if a member is to be removed, then notice is
required to be given to the incumbent. On the basis of the analysis of
Sections 5 and 6 it is more than clear that the respondent has not
incurred any of these disqualifications.
22. This is an objective statement of law that in changing world it is
difficult to foresee future contingencies but if such contingency has not
been anticipated then can a court sit in to make it good. In the present
case it is true that the contingency which has arisen i.e. the incumbent
who has been appointed being a statutory appointment or saddled
with investigation for his past conduct, can this be made a good
ground for cutting short his tenure?
25. Our attention was also invited to a decision of this Court
in Padma Sundara Rao v. State of T.N. [(2002) 3 SCC 533]. Their
Lordships held that casus omissus cannot be supplied by the court.
The provisions of the statute have to be read as a whole and in its
context. When language of the provision is plain and unambiguous the
question of supplying casus omissus does not arise. The court can
interpret a law but cannot legislate. Therefore, the submission of
learned Additional Solicitor General that since the contingency which
has arisen in the present case was not foreseen by the draftsmen or by
Parliament, therefore, the casus omissus may be supplied by this
Court i.e. since the incumbent has been facing the charge, his tenure
should be cut short. We regret we cannot cure the lacunae by
exercising the power under Article 142 of the Constitution and uphold
the order of termination especially when such contingency has not
been made a ground for disqualification for holding the post.
Therefore, the submission of learned Additional Solicitor General
cannot be accepted.
26. Learned Additional Solicitor General next submitted that the
appointment of the respondent was purely on deputation basis and
since the deputation period has been terminated the appointing
authority has full right to terminate his deputation. Therefore, the
respondent can be sent back to his parent Department i.e. the State of
Uttar Pradesh. We regret to say that this appointment of the
respondent cannot be said to be purely an appointment on deputation
basis. Strictly speaking, it is not a deputation post because the
incumbent has been selected under the Act and he has not come on
deputation as such though loosely it can be said to be on deputation in
the sense that since the incumbent holds his lien in the State of Uttar
Pradesh and the State of Uttar Pradesh has permitted him to join the
post for a fixed period of four years or till he attains the age of
superannuation i.e. sixty years. Since the respondent holds a lien in
the State of U.P. therefore, to some extent he can be said to be on
deputation but it is not in the sense of deputation as in the case of an
all-India service person who is sent on deputation to the Central
Government or to other organisation. It is an independent selection
under the statute and the State of U.P. has permitted the respondent to
join his assignment as he holds a lien and after completion of the
period of four years he will come back to the State till he attains the
age of superannuation. If the incumbent was to retire within the period
of four years perhaps it would not have been necessary to have moved
the State of U.P. for its permission to join this assignment. Even after
expiry of four years the respondent is left with some period of service.
Therefore, formal permission was sought from the State of U.P. to
permit the incumbent to join the post for a fixed term. Therefore, it is
the permission by the State of U.P. to join the post and in case the
incumbent comes back he can join the service under the State of U.P.
Therefore, it is almost like a permission and not in strict terms of
deputation but loosely it can be termed as deputation. This is not the
situation when the period of deputation can be cut short and the
incumbent can be sent back to his parent Department i.e. the State of
U.P. unlike the officers of an all-India service. This appointment is for
a fixed tenure after due selection under the Act. Therefore, this kind of
deputation stands on an entirely different category. However, learned
Additional Solicitor General tried to justify that a person who is sent
on deputation has no right to continue in the post and his period of
deputation can be cut short and he may be repatriated back to his
parent Department.
33. Lastly, learned Additional Solicitor General submitted that Article
142 of the Constitution should be exercised in the present case as
there is no such provision for the contingency which has arisen in the
matter and the termination of the respondent should be upheld. In this
connection, our attention was invited to a decision of this Court
in Supreme Court Bar Assn. v. Union of India [(1998) 4 SCC 409].
This was a case where their Lordships exercised the inherent power
under Article 142 of the Constitution. The Constitution Bench held
that this Court in exercise of power under Article 142 of the
Constitution cannot ignore any substantive statutory provision dealing
with the subject. It is a residuary power, supplementary and
complementary to the powers specifically conferred on the Supreme
Court by statutes in order to do complete justice between the parties
wherever it is just and equitable to do so. It is only intended to prevent
any obstruction to the stream of justice. None of such contingencies
exist in the present case so as to invoke the power under Article 142 of
the Constitution. This case stands reaffirmed in Textile Labour
Assn. v. Official Liquidator [(2004) 9 SCC 741]".
As a logical sequitur it can be clearly said that if procedure for termination
of appointment exists in statutory provisions, termination can be done only
according to those provisions and none else.
The same view was reiterated by this Court in case of Lakshmi Singh &
Anr. Vs. State of Jharkhand & Ors., reported in 2007 SCC Online Jhar. 451.
The relevant paragraphs of the said judgment is reproduced herein below:
"7. On perusal of the impugned Notification (Annexure-4), it is
evident that by the said Notification, earlier Notification dated 16th
September, 2006 (Annexure-2) has been cancelled with immediate
effect. By the said Notification dated 16th September, 2006 (Annexure-
2), the Commission was constituted by appointing Petitioner No. 1 as
Chairman and Petitioner No. 2 as one of the Members. The
Petitioners' were, thus, appointed as public authority to hold a public
office under the provisions of the statute, namely, Jharkhand State
Women Commission Act, 2005. It is now well-settled that a person
holding a public office cannot be removed arbitrarily, illegally or at
the sweet will of the Government and any such order removing a
person from the public office comes within the purview of judicial
review. Once there is an existence of public element attached to the
office or post, i.e., it is suffice to attract Article 14 of the Constitution.
Any arbitrariness; irrationality, illegality or unreasonableness
affecting the rights of the persons holding public office or their
removal in violation of the principle of natural justice brings the
impugned Order within the ambit of judicial review. Objection and
contention of the learned Advocate General that the impugned
Notification (Annexure-4) is a policy decision of the Government and
that the same cannot be brought within the scope of judicial review, as
hardly any relevance and substance in the facts and circumstances of
the instant case. The decision of the Supreme Court in the case
of BALCO Employees' Union (Supra) referred to and relied upon by
the learned Advocate general was rendered on different factual
background. That was a case in which disinvestments of the
Government in BALCO was in question. The Government had taken a
policy decision to disinvest and transfer 51 per cent share of M/s. Bha
rat Aluminum Company Ltd. (BALCO), which was an economic policy
of the Government, and it was held that wisdom and advisability of
economic policies are ordinarily not amenable to judicial review
unless it can be demonstrated that the policy is contrary to any
statutory provision or the Constitution. In this context, it was observed
that in a democracy, it is the prerogative of each elected Government
to follow its own policy and change in Government may result in the
shift of focus in economic policy. Any such change may result in
adversely affecting some vested interests. Unless any illegality is
committed in the execution of the policy or the same is contrary to
law, is mala fide or decision bringing about change cannot per se be
interfered with by the Court. It was further held that it is neither
within the domain of the Courts nor the scope of the judicial review to
embark upon an enquiry as to whether a particular public policy is
wise or whether better public policy can be evolved. Nor are the
Courts inclined to strike down a policy at the behest of a Petitioner
merely because it has been urged that a different policy would have
been fairer or wiser or more scientific or more logical.
9. In a democratic setup of Government, the State or public office is
accountable to the people, who command sovereignty. The powers
vested in the Government or public office has to be exercised only in
public interest and for public good. Even in the policy matter,
application of Article 14 of the Constitution cannot be entirely
excluded. Every action of the State or any instrumentality of the State
must be informed by reason. Actions uninformed by reason come
within the scrutiny of the writ jurisdiction under Articles 226 or
Article 32 of the Constitution. The basic requirement of Article 14 is
non-arbitrariness and fairness in action by the State, which means fair
play in action."
Further, in the case of Dwarkadas Marfatia and Sons v. Board of
Trustees of the Port of Bombay, reported in (1989) 3 SCC 293, the Hon'ble
Apex Court observed as follows:
"11. Where there is arbitrariness in State action, Article 14 springs in
and judicial review strikes such an action down. Every action of the
executive authority must be subject to rule of law and must be
informed by reason. So, whatever be the activity of the public
authority, it should meet the test of Article 14".
Further para-13 of the judgment passed by this Hon'ble Court in case of
Lakshmi Singh's case (supra), reads as under:
"13. In the case of Kumari Shriiekha Vidyarthi (supra), a circular,
terminating the appointments of all Government Counsel (Civil,
Criminal and Revenue), issued by the Government of Uttar Pradesh
was questioned in writ jurisdiction of the Supreme Court under
Article 32 of the Constitution of India. After examining catena of
decisions, on the subject for and against, it was held that en bloc
removal of Government Counsel was arbitrary and the action is not
reasonable under Article 14 of the Constitution. The Apex Court
reviewed the impugned circular and decided the validity and
quashed the same, restoring status quo. Converging to consideration
of the validity of the impugned Notification, contained in Annexure-
4, in the light of the aforementioned discussions, it is held that the
impugned Notification does not disclose any reason for cancellation
of the constitution of the Commission, which resulted into the
termination of the Petitioners from their respective posts. The said
Notification is also not supported by any express statutory provision,
nor any provision of the Act has been brought to my notice to justify
such removal even without informing any reason and giving any
opportunity of hearing to the Petitioners to whom the said
Notification has adversely affected and visited with civil
consequences. The said-Notification does not stand to the test of
reasonableness and fair play to exclude arbitrariness and to exclude
the scope of judicial review. The impugned Notification, thus, does
not meet the test of Article 14 of the Constitution of India; being
uninformed by reason and unsupported by any statutory provision.
The impugned Notification dated 27th February, 2007, contained in
Annexure-4, thus, cannot sustain and is, hereby, quashed. This writ
Petition is allowed."
Further, this Hon'ble Court in case of Chandra Bhushan Kumar & Anr.
Vs. The State of Jharkhand & Ors., reported in 2013 SCC Online Jhar. 1013
has held as under:
"6. Learned counsel for the petitioner has relied upon a judgment
rendered by the Hon'ble Supreme Court in the case of Central Inland
Water Transport Corporation Ltd. v. Brojo Nath Ganguly reported
in A.I.R. 1986 SC 1571 (para 19, 99, 106, 11 and 113 thereof). By
relying upon the opinion of the Hon'ble Supreme Court rendered in
the said judgment it is submitted that the rules under which the power
has been exercised cannot be allowed to confer absolute, arbitrary
and unguided power upon the respondent-State. They cannot be
resorted to in violation of one of the great Rules of natural justice -
"audi alteram partem" Rule. In the absence of proper opportunity to
show cause and hearing the exercise of such power becomes arbitrary
and violative of Article 14 of the Constitution of India. Learned
counsel for the petitioner has further relied upon the judgment
rendered by the Constitution Bench of the Hon'ble Supreme Court in
the case of Delhi Transport Corporation v. D.T.C. Mazdoor
Congress reported in A.I.R. 1991 SC 101 (Para 186, 194, 225, 229,
263 thereof). He has further supported his aforesaid contention by
relying upon the majority opinion rendered in the said case that the
impugned action of the respondent trespasses upon the rights
guaranteed under Part XIV Chapter I of the Constitution of India
relating to security of tenure of office of person serving under Union
or State. Learned counsel has further relied upon a decision of the
Hon'ble Supreme Court in the case of Union of
India v. Shardindu reported in (2007) 6 SCC 276 (Para 15, 22, 25,
26, 33 thereof). It is submitted that the curtailment of tenure of the
petitioners by such an arbitrary action on the part of the respondents
cannot be saved by invoking Rule 4(vi) of the Rules of 2012. Learned
counsel has further relied upon another decision of the Constitution
Bench of the Hon'ble Supreme Court rendered in the case of B.P.
Singhal v. Union of India reported in (2010) 6 SCC 331 (Para 23,
24, 25, 32, 33 thereof). It is further contended on behalf of the
petitioners by relying upon the statement of learned author H.W.R.
Wade and C.F. Forsyth which has been quoted in the aforesaid
judgment that the whole concept of unfettered discretion is
inappropriate to an exercise of power by public authority. The
doctrine of Pleasure in its absolute unrestricted application does not
exist in India. The said doctrine is severely curtailed in the case of
government employment, as will be evident from clause (2) of Article
310 and clause (1)(2) of Article 311. It is further submitted that
Doctrine of Pleasure in respect of office held under the State are
subject to restriction and cannot be arbitrarily and unreasonably
exercised to curtail the constitutional guarantee conferred under the
said Article. Learned counsel for the petitioner has also relied upon
the judgment rendered by the learned Single Judge of this Court
in W.P.C. No. 1294 of 2007 reported in 2007 (3) JLJR 156
(Annexure-5). In the said case the appointment of the Chairman and
Member of the Jharkhand State Women Commission under Jharkhand
State Women Commission Act, 2005 were revoked before expiry of
their terms without giving notice or opportunity of hearing. The said
impugned action were held to be bad in law being uninformed by any
reasons and giving no opportunity of hearing to the petitioners.
11. The question, therefore, which falls for consideration is whether
the respondent-State is entitled to invoke the Doctrine of Pleasure by
removing the petitioners from the post of Chairman/Members by
giving them 1 month salary under Rule 4(vi) of the Rules of 2012. As
stated herein above, the Rules have been framed in exercise of power
under Proviso to Article 309 of the Constitution of India. The Part
XIV Chapter I of the Constitution relates to the service under the
Union and the State. Article 310 provides for recruitment and
conditions of service of the person serving under Union or State.
Article 310 provides for tenure of office of person serving under the
Union or the State. It provides that any person holding any civil post
under a State or Union holds office during the pleasure of the
Governor of the State. Article 310(2) provides that notwithstanding
the person holding civil post under the Union or State and holding
office during the pleasure of the President or Governor of the State, as
the case may be, if the President or the Governor, as the case may be
deem it necessary in order to secure services of the person having
special qualification, provide for the payment to him of compensation,
if before the expiration of an agreed period that post is abolished or
he is, for reasons not connected with any misconduct on his part,
required to vacate that post. Article 311 provides for manner in which
the member of Civil service of the Union or State or holding the Civil
post under the Union or State shall be dismissed or removed or
reduced in rank. Article 311(2) provides that no such action can be
taken except after an inquiry in which he has been informed of the
charges against him and given reasonable opportunity of being heard
in respect of those charges. The second proviso to the Article 311
provides for the conditions in which such an inquiry can be dispensed
with. For better appreciation relevant provisions of Article 309 to 311
are quoted herein below:-
"Article 309:-Recruitment and conditions of
service of persons serving the Union or a State:-
Subject to the provisions of this Constitution, Acts of
the appropriate Legislature may regulate the
recruitment, and conditions of service of persons
appointed, to public services and posts in connection
with the affairs of the Union or of any State:
Provided that it shall be competent for the
President or such person as he may direct in the case
of services and posts in connection with the affairs of
the Union, and for the Governor of a State or such
person as he may direct in the case of services and
posts in connection with the affairs of the State, to
make rules regulating the recruitment, and the
conditions of service of persons appointed, to such
services and posts until provision in that behalf is
made by or under an Act of the appropriate
Legislature under this article, and any rules so made
shall have effect subject to the provisions of any such
Act.
Article 310. Tenure of office of persons serving
the Union or a State.- (1) Except as expressly
provided by this Constitution, every person who is a
member of a defence service or of a civil service of
the Union or of an all-India service or holds any post
connected with defence or any civil post under the
Union holds office during the pleasure of the
President, and every person who is a member of a
civil service of a State or holds any civil post under a
State holds office during the pleasure of the Governor
of the State.
(2) Notwithstanding that a person holding a civil
post under the Union or a State holds office during
the pleasure of the President or, as the case may be,
of the Governor of the State, any, contract under
which a person, not being a member of a defence
service or of an all-India service or of a civil service
of the Union or a State, is appointed under this
Constitution to hold such a post may, if the President
or the Governor, as the case may be, deems it
necessary in order to secure the services of a person
having special qualifications, provide for the payment
to him of compensation, if before the expiration of an
agreed period that post is abolished or he is, for
reasons not connected with any misconduct on his
part, required to vacate that post.
Article 311. Dismissal, removal or reduction in
rank of persons employed in civil capacities under
the Union or a State.- (1) No person who is a member
of a civil service of the Union or an all-India service
or a civil service of a State or holds a civil post under
the Union or a State shall be dismissed or removed by
an authority subordinate to that by which he was
appointed.
(2) No such person as aforesaid shall be dismissed
or removed or reduced in rank except after an inquiry
in which he has been informed of the charges against
him and given a reasonable opportunity of being
heard in respect of those charges.
Provided that where it is proposed after such
inquiry, to impose upon him any such penalty, such
penalty may be imposed on the basis of the evidence
adduced during such inquiry and it shall not be
necessary to give such person any opportunity of
making representation on the penalty proposed:
Provided further that this clause shall not apply-(a)
where a person is dismissed or removed or reduced in
rank on the ground of conduct which has led to his
conviction on a criminal charge; or (b) where an
authority empowered to dismiss or remove a person
or to reduce him in rank is satisfied that for some
reason, to be recorded by that authority in writing, it
is not reasonably practicable to hold such inquiry; or
(c) where the President or Governor, as the case
may be, is satisfied that in the interest of the security
of the State it is not expedient to hold such inquiry.
(3) If, in respect of any such person as aforesaid, a
question arises whether it is reasonably practicable to
hold such inquiry as is referred to in clause(2), the
decision thereon of the authority empowered to
dismiss or remove such person or to reduce him in
rank shall be final".
12. As stated herein above the aforesaid provisions framed under
Part XIV of the Constitution ensure protection of security of tenure
to the member holding civil post under the Union or State. The
tenure of such persons holding the civil posts under the Union or
State can be curtailed only in the manner provided thereunder. The
Rules which are framed governing the recruitment and service
conditions under proviso to Article 309 of Constitution have to be
essentially inconformity with the constitutional protection
guaranteed to the persons holding such civil posts. The very question
relating to the interpretation of the provision of Article 309 and
Doctrine of Pleasure contained in Article 310 and Article 311 have
been interpreted by the Hon'ble Supreme Court right after the
inception of the Constitution. The said Doctrine was interpreted by
the Constitution Bench of the Hon'ble Supreme Court in the case
of Moti Ram Deka v. North Eastern Frontier Railway reported in
A.I.R. 1964 page 600. In the said case Rule 148(3) and 149(3) of the
Indian Railway Establishment Code(Vol-1) were under
consideration. Under Rule 148(3) the service of Railway employee
could be terminated after giving notice for the period specified.
Under Rule 149(3) the termination of service of the employees'
concern can be brought about by serving them with notice for the
requisite period or paying them salary for the said period in lieu of
notice under Rule 149(4). The question which was considered in the
said appeal was whether the termination of service of a permanent
Railway servant under Rule 148(3) or 149(3) amounts to his removal
under Article 311 of the Constitution of India. It was also held that
the pleasure of the President was clearly controlled by the provision
of Article 311 and it was not absolute but to be exercised in
accordance with requirement of Article 311.
13. The aforesaid provisions have been under consideration by
the Hon'ble Supreme Court in a number of judgments and also in the
case of B.P. Singhal v. Union of India (supra) which related to the
removal by Governor by invoking Doctrine of Pleasure by
withdrawal of the Presidential pleasure. The judgment rendered by
Hon'ble Mr. Justice R.V. Ravindran on behalf of the Constitution
Bench after a thorough review of the scope of Doctrine of pleasure
as interpreted by the judgments earlier rendered by the Hon'ble
Supreme Court came to a definite conclusion that the Doctrine of
Pleasure in its absolute unrestricted application does not exist in
India. By referring to number of judgments rendered by the Hon'ble
Supreme Court in the case of Union of India v. Tulsi Ram
Patel reported in (1985) 3 SCC 398, in the case of Moti Ram
Deka v. North Eastern Frontier Railway reported in A.I.R. 1964 SC
600, in the case of Parshotam Lal Dhingra v. Union of
India reported in A.I.R. 1964 SC 600 the Constitution Bench of
Hon'ble Supreme Court has held as under:-
"Para 26:- The Constitution refers to offices held
during the pleasure of the President (without
restrictions), offices held during the pleasure of the
President (with restrictions) and also appointments to
which the said doctrine is not applicable. The articles
in the Constitution of India which refer to the holding
of office during the pleasure of the President without
any restrictions or limitations are Article 75(2)
relating to Ministers, Article 76(4) relating to the
Attorney General and Article 156(1) relating to
Governors. Similarly Articles 164(1) and 165(3)
provides that the Ministers (in the States) and
Advocate General for the State shall hold office
during the pleasure of the Governor.
Para 27. Article 310 read with Article 311
provides an example of the application of "at
pleasure" doctrine subject to restrictions. Clause (1)
of Article 310 relates to the tenure of office of persons
serving the Union or a State, being subject to doctrine
of pleasure. However, clause (2) of Article 310 and
Article 311 restricts the operation of the "at
pleasure" doctrine contained in Article 310(1). For
convenience, we extract below clause (1) of Article
310 referring to pleasure doctrine and clause (2) of
Article 311 containing the restriction on the pleasure
doctrine:
"310. Tenure of office of persons serving the
Union or a State.--(1) Except as expressly provided
by this Constitution, every person who is a member of
a defence service or of a civil service of the Union or
of an all-India service or holds any post connected
with defence or any civil post under the Union holds
office during the pleasure of the President, and every
person who is a member of a civil service of a State or
holds any civil post under a State holds office during
the pleasure of the Governor of the State.
311. Dismissal, removal or reduction in rank of
persons employed in civil capacities under the Union
or a State.--(1)
(2) No such person as aforesaid shall be dismissed
or removed or reduced in rank except after an inquiry
in which he has been informed of the charges against
him and given a reasonable opportunity of being
heard in respect of those charges."
Para 28. This Court in Parshotam Lal
Dhingra v. Union of India, referred to the
qualifications on the pleasure doctrine under Article
310: (AIR p. 41, para 9)
"9. ... Subject to these exceptions our
Constitution, by Article 310(1), has adopted the
English common law rule that public servants hold
office during the pleasure of the President or
Governor, as the case may be and has, by Article 311,
imposed two qualifications on the exercise of such
pleasure. Though the two qualifications are set out in
a separate article, they quite clearly restrict the
operation of the rule embodied in Article 310(1). In
other words the provisions of Article 311 operate as a
proviso to Article 310(1)."
Para 29. Again, in Moti Ram Deka v. North East
Frontier Railway, this Court referred to the
qualifications to which pleasure doctrine was
subjected in the case of government servants, as
follows: (AIR p. 600)
"The rule of English law pithily expressed in the
Latin phrase durante bene placito ('during pleasure')
has not been fully adopted either by Section 240 of the
Government of India Act, 1935 or by Article 310(1) of
the Constitution. The pleasure of the President is
clearly controlled by the provisions of Article 311,
and so, the field that is covered by Article 311 on a
fair and reasonable construction of the relevant
words used in that article, would be excluded from the
operation of the absolute doctrine of pleasure. The
pleasure of the President would still be there, but it
has to be exercised in accordance with the
requirements of Article 311."
Para 30. The Constitution of India also refers to
other offices whose holders do not hold office during
the pleasure of the President or any other authority.
They are: the President under Article 56; Judges of
the Supreme Court under Article 124; the
Comptroller and Auditor General of India under
Article 148; High Court Judges under Article 218;
and Election Commissioners under Article 324 of the
Constitution of India. In the case of these
constitutional functionaries, it is specifically provided
that they shall not be removed from office except by
impeachment, as provided in the respective
provisions.
Para 31. The Constitution of India thus provides
for three different types of tenure: (i) those who hold
office during the pleasure of the President (or the
Governor); (ii) those who hold office during the
pleasure of the President (or the Governor), subject to
restrictions; (iii) those who hold office for specified
terms with immunity against removal, except by
impeachment, who are not subject to the doctrine of
pleasure.
Para 32. The Constituent Assembly Debates
clearly show that after elaborate discussions, varying
levels of protection against removal were adopted in
relation to different kinds of offices. We may
conveniently enumerate them: (i) Offices to which the
doctrine of pleasure applied absolutely without any
restrictions (Ministers, Governors, Attorney General
and Advocate General); (ii) Offices to which the
doctrine of pleasure applied with restrictions
(Members of defence services, Members of civil
services of the Union, Member of an All India service,
holders of posts connected with defence or any civil
post under the Union, Member of a civil service of a
State and holders of civil posts under the State); and
(iii) Offices to which the doctrine of pleasure does not
apply at all (President, Judges of the Supreme Court,
the Comptroller and Auditor General of India, Judges
of the High Courts, and Election Commissioners).
Having regard to the constitutional scheme, it is not
possible to mix up or extend the type of protection
against removal, granted to one category of offices, to
another category.
Para 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
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.
Para 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".(under
line not part of the original text, has been added to
provide emphasis).
14. The existence of such rule was also subject matter for
interpretation by the Hon'ble Supreme Court in the case of Central
Inland Water Transport Corporation Ltd. v. Brojo Nath Ganguly
reported in A.I.R. 1986 SC 1571 (supra). In para 99 of the said report,
while interpreting the provisions of Rule 9(i) the Hon'ble Supreme
Court held that the said Rule confers absolute, arbitrary and unguided
power on the Corporation and it violates one of the 2 great Rules of
natural justice "audi alteram partem" Rule. Such rule was also
described as "Henry VIII" clause. The said judgment rendered by the
Hon'ble Supreme Court has also been approved by the Constitution
Bench in the case of Delhi Transport Corporation v. D.T.C. Mazdoor
Congress reported in A.I.R. 1991 SC 101 (supra).
15. In the facts of the present case, as has been noted herein above
while invoking the said Rule without giving any opportunity of hearing
or notice to the petitioners, the respondents have failed to bring on
record any foundational facts or reasons for exercising such power. In
other words the impugned action are not informed by any reasons
which can be subject matter of judicial review under Article 226 of the
Constitution of India. Such an arbitrary exercise of power to terminate
the tenure of appointment of these petitioners prematurely without any
opportunity of hearing or notice, therefore cannot be sustained in law
as well as on facts. The reference of Article 310(2) by the learned
counsel for the State is also wholly misplaced as admittedly the
conditions prescribed under the said provisions are not applicable to
the facts of the case for justifying the impugned action under the
provision of Rule 4(vi) of the Rules of 2012 as the petitioners have been
removed by only giving 1 month salary and not any compensation.
Though the Rules have not been challenged by the petitioners but the
exercise of power under the said Rules have to be inconformity with the
Principle of Natural Justice by giving opportunity of hearing or notice
to the petitioner and cannot be exercised in an unguided, uncanalized
manner without any foundational basis for exercise of such power.
Therefore, the impugned notification in exercise of powers under Rule
4(vi) of the Rules of 2012 cannot be upheld in the eye of law. In the
background of the aforesaid facts, reasons and the judgment rendered
by the Hon'ble Supreme Court of India on the specific issue of the scope
of Doctrine of Pleasure the impugned actions are wholly unsustainable
in law being arbitrary and violative of Principle of Natural Justice and
deserve to interfered with in exercise of powers of judicial review under
Article 226 of Constitution of India."
16. Reliance of learned counsel for the respondent-State on the judgment of
the Hon'ble Apex Court passed in case of Om Narain Agarwal & Ors. Vs.
Nagar Palika, Shahjahanpur & Ors., reported in (1993) 2 SCC 242 and
judgment passed by this Court in case of Deepak Prakash Vs. State of
Jharkhand, reported in 2007 SCC Online Jhar. 500 are of no help to him, as in
those cases, the Governor had the power under Article 35(e)(iv) of the Articles of
Association of the Corporation which does not talks of providing or giving
opportunity to the person concerned before his removal and as such, there is no
need to comply with the principle of natural justice neither any reason was to be
assigned.
17. Relevant paragraphs of judgment passed in case of Deepak Prakash Vs.
State of Jharkhand, reported in 2007 SCC Online Jhar. 500 are reproduced
herein below:
"23. From the above decisions of the Supreme Court, the following
mandates have emerged.
(a) The provisions that the person concerned shall hold
office during the pleasure of the Government would not
offend any Article of the Constitution, nor the same is
against any public policy or democratic norms enshrined
in the Constitution.
(b) There is no question of any violation of the principles
of natural justice in not affording any opportunity to the
nominated member before his removal, nor removal
under the pleasure doctrine puts any stigma on the
performance or character of the nominated member.
(c) Removal neither casts any stigma, nor leads to any
penal consequences. This clearly reveals that the doctrine
pleasure is implicit in this section. Only when the stigma
is cast, then the question of giving opportunity to such an
incumbent would arise.
24. In view of the above, the doctrine of pleasure is applied in this
case and as such, there is no question of invoking the principles of
natural justice, as there is no stigma cast on the person concerned. In
this case, admittedly, the Governor did not cast any stigma on the
petitioner; on the other hand, the Governor passed the order of removal
after allowing him to act for 5 years by exercising his discretion, that
too on the recommendation of the State Government. As such, the
question of Page 0180 hearing or opportunity and of recording reason
in the order impugned would not at all arise especially when there is no
adverse remark passed as against the person removed in the order of
removal.
27. In this context, it would be relevant to refer to one observation
made by the Supreme Court in the case of Om Narain Agarwal and
Ors. v. Nagar Palika, Shahjahanpur and Ors. reported in (1993) 2
SCC 242, being quite relevant to be considered, which is as follows:
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 demoralize 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 removal at the pleasure of
the competent authority under the law, and it cannot be
said that they are bound to become demoralized 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."
18. The aforesaid judgments are not applicable in the instant case. Here the
appointment and removal was to be done as per the Statute. Jharkhand Academic
Council (Amendment) Act, 2006 provides for appointment and removal of Vice
Chairman and as such, no order passed dehors the Rules or Act is tenable in the
eyes of law. Section 12(4) of the said Act deals with the procedure to remove any
member from his post, which reads as under:
"12(4) Removal of the Member;-
(A) The State Government may, on the recommendation of the
Council or suo motto remove any member from his post if such a
member has been found guilty of such conduct as would in the
opinion of the State Government disqualified him to continue as
member.
(C) The name of the member removed under sub-section (A) shall
be published in the official Gazette by the State government and
the post of the member removed shall fall vacant with effect from
the date of notification in the Gazette."
19. Admittedly, in the instant case the Act was never taken into consideration.
Merely because it provides that the appointment and removal shall be at the
pleasure of the State Govt., the Doctrine of pleasure cannot be applied at the
wishes of State Govt. rather, the same has to be tested in the four corners of the
Constitution as well as the Statutes. Since the same has not been done, the order
of removal is not tenable in the eyes of law and the same is fit to be quashed and
set aside.
20. As sequitur to the aforesaid observations, rules, guidelines, legal
propositions and judicial pronouncements, memo dated 03.09.2020 (Annexure-7)
and notification dated 03.09.2020 (Annexure-8) are hereby quashed and set aside.
As a sequel to the quashment of the aforesaid orders, the respondents are
directed to reinstate the petitioner to his original post with all consequential
benefits, in accordance with law. Further, the appointment of respondent No. 6 is
hereby declared as null and void.
21. Resultantly, the instant writ application stands allowed.
(Dr. S.N. Pathak, J.)
Kunal/-
