Karnataka High Court
Sunil S/O. Annappa Sank vs The State Of Karnataka on 25 November, 2025
Author: M.Nagaprasanna
Bench: M.Nagaprasanna
1
Reserved on : 21.11.2025
Pronounced on :25.11.2025
IN THE HIGH COURT OF KARNATAKA DHARWAD BENCH
DATED THIS THE 25TH DAY OF NOVEMBER, 2025
BEFORE
R
THE HON'BLE MR. JUSTICE M. NAGAPRASANNA
WRIT PETITION No.108099 OF 2025 (S - RES)
BETWEEN:
SUNIL
S/O. ANNAPPA SANK
AGED ABOUT 51 YEARS,
OCC. ADVOCATE / AGRICULTURE,
R/O. H. NO.CS3656/A/2/BC
SANK GALLI, ATHANI - 591 304
TALUK ATHANI, DISTRICT - BELAGAVI.
... PETITIONER
(BY SRI PRASHANT S. KADADEVAR, ADVOCATE)
AND:
Digitally signed by
VISHAL NINGAPPA
PATTIHAL
Location: High
Court of Karnataka,
Dharwad Bench, 1 . THE STATE OF KARNATAKA
Dharwad
REPRESENTED BY CHIEF SECRETARY
GOVERNMENT OF KARNATAKA
VIDHANA SOUDHA,
BENGALURU - 560 001.
2 . THE DEPARTMENT OF LAW,
2
JUSTICE AND HUMAN RIGHTS
(ADMINISTRATIVE-2)
VIDHANA SOUDHA,
BENGALURU - 560 001
REPRESENTED BY ITS
UNDER SECRETARY.
3 . D.B.THAKKANNAVAR
AGED MAJOR,
OCC. ADVOCATE
R/O. SHREERAM NAGAR,
VIKRAMPUR, ATHANI - 591 304
DISTRICT BELAGAVI.
... RESPONDENTS
(BY SRI GANGADHAR J.M., AAG ALONG WITH
SMT.GIRIJA S.HIREMATH, AGA FOR R1 AND R2;
SRI GIRISH A. YADAWAD, ADVOCATE FOR R3)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND
227 OF THE CONSTITUTION OF INDIA PRAYING TO 1) ISSUE WRIT
IN THE NATURE OF CERTIORARI BY QUASHING THE NOTIFICATION
DATED 29.10.2025 BEARING NO.LAW-LD/583/2024 (BAG-2)
PASSED BY THE RESPONDENT NO.2 (ANNEXURE-E) IN THE
INTEREST OF JUSTICE AND EQUITY.
THIS WRIT PETITION HAVING BEEN HEARD AND RESERVED
FOR ORDERS ON 21.11.2025, COMING ON FOR PRONOUNCEMENT
THIS DAY, THE COURT MADE THE FOLLOWING:-
3
CORAM: THE HON'BLE MR JUSTICE M.NAGAPRASANNA
CAV ORDER
The petitioner, who had been entrusted with the Office
of the Additional District Government Pleader, at XI
Additional District and Session Court, Belagavi, Sitting at
Athani, District Belagavi, knocks at the doors of this Court,
to challenge the notification dated 29-10-2025, issued by the
2nd respondent, by which - within a breathless span of 24
hours, the appointment of the petitioner made on
28.10.2025, is rescinded, and the 3rd respondent is
appointed to the said post.
2. Shorn of unnecessary details, facts in brief, are as follows:
On 06-07-2024, a long-standing demand for establishing a
Courts of Sessions at Athani, finally crystallized into reality. With
this establishment arose, the concomitant need for appointing an
Additional District Government Pleader (hereinafter referred to as
the 'Government Pleader' for short). Pending such appointment,
4
the Government placed the already serving Government Pleader on
additional Charge on 19-09-2024.
3. Owing to the necessity of appointment of a regular
Government Pleader, the petitioner, a practicing Advocate since
1999, finding himself eligible on all fours, tenders a representation
09-10-2024 bringing to the notice of the second respondent, of his
experience and eligibility to be considered, for appointment as
Additional District Government Pleader. Upon the representation
submitted by the petitioner, it appears, correspondences emerge
between the District Judge and the Department of Law and Justice
of the Government of Karnataka for finalization of appointment. The
series of communications between the two as aforesaid culminates
in a notification dated 28-10-2025 appointing the petitioner as
Government Pleader for a period of 3 years or until further orders,
whichever would be earlier. The petitioner assumes charge and
appears in several matters as a Government Pleader on the
strength of his appointment on the very same day. When things
stood thus, as a bolt from the blue, another Notification surfaces
the next morning i.e., on 29-10-2025, abruptly withdrawing his
5
appointment and substituting him with the 3rd respondent. It is this
action that has compelled the present writ petition.
4. Heard Sri Prashant S. Kadadevar, learned counsel
appearing for the petitioner, Sri Gangadhar J.M., learned Additional
Advocate General along with Smt. Girija S.Hiremath, learned
Additional Government Advocate appearing for respondent Nos.1
and 2 and Sri Girish A. Yadawad, learned counsel appearing for
respondent No.3.
SUBMISSIONS:
PETITIONER:
5. The learned counsel for the petitioner, taking this Court
through the documents appended to the petition, would seek to
demonstrate that the 3rd respondent had not even filed his
application. On the application/representation filed by the
petitioner, the entire proceedings were drawn up. Drawing up of
the proceedings, led to issuance of notification dated 28-10-2025.
The 3rd respondent brings in political influence and gets the
appointment of the petitioner withdrawn and gets a Notification
issued appointing him as Additional District Government Pleader.
6
The learned counsel submits that the impugned action is on the
face of it arbitrary and has to be annulled. The appointment of the
petitioner had come about in accordance with law. It cannot be
taken away illegally by the impugned Notification. He would submit
that the only proceeding drawn was on the date on which the
petitioner was appointed and the change of appointment was due to
the tippani of the Minister. He would seek to place reliance upon
plethora of judgments, all of which would bear consideration in the
course of the order, qua their relevance.
RESPONDENTS:
THE STATE - ADDITIONAL ADVOCATE GENERAL:
6. The learned Additional Advocate General defending the
impugned action would submit that there is a distinction between
appointment under Rules 26 and 28 of the Karnataka Law Officers
(Appointment and Conditions of Service) Rules, 1977 ('the Rules'
for short). He would submit that the appointment of the
Government Pleader is at the pleasure of the State as, at any time,
it can be withdrawn. No right of the petitioner is taken away by the
withdrawal of his appointment, since admittedly it is at the pleasure
7
of the State. He would seek to place reliance upon Rule 26 of the
Rules, which directs that any person can be appointed whenever
required by the Government and would also draws strength from
Rule 28 of the Rules by contending that Additional District
Government Pleaders and Assistant Government Pleaders are to be
appointed at the pleasure of the Government whenever necessary.
He would also seek to place reliance upon several judgments qua,
its 'pleasure' term to contend that whoever comes at the pleasure
power must be ready to go back on the pleasure door.
THE THIRD RESPONDENT:
7. The learned counsel appearing for the new appointee, the
3rd respondent would vehemently refute the submissions of the
learned counsel for the petitioner in contending that his
appointment was delayed by 24 hours and it is his proceeding that
was taken to the logical conclusion for appointment. It cannot be
said that the petitioner went through the selection process and
therefore, it is an appointment that has tenure and the tenure
cannot be curtailed. It is his submission that an appointment at the
pleasure of the Government, renders no right to any person; it may
8
be the 3rd respondent or it may be the petitioner. He would submit
that no fault can be found with the action of withdrawing the
appointment of the petitioner and appointing the 3rd respondent.
8. I have given my anxious consideration to the submissions
made by the respective learned counsel and have perused the
material on record.
9. The material facts are largely beyond dispute and the
controversy narrows to a single imperative question "does the
impugned action withstand the constitutional prohibition
against arbitrariness".
10. Certain skeletal facts are necessary to be noticed to
consider the said issue. As observed hereinabove, the Athani Court
began to function on 06-07-2024. The need for a regular Additional
District Government Pleader arose on establishment of the Court at
Athani, elevating it to the Court of Sessions albeit the District Judge
was sitting at Athani. The petitioner submits his application on
09-10-2024 itself. The application reads as follows:
9
"To,
Shri. H. K. Patil
The Hon'ble Cabinate Minister,
For Law and Parliamentary Affairs
And Tourism Departments State of Karnataka,
Vidhan Soudha Bangaluru.
Subject: Appointment for ADGP to XITH Addl.
District and Session Court Belagavi
Sitting At: Athani, Dist: Belagavi.
Respected Sir,
I Shri. Sunil Annappa Sank Advocate Athani, Dist :
Belagavi submit this earnest appeal as under.
That Hon'ble High Court of Karnataka and Hon'ble
Government of Karnataka was pleased to establish the XIth
Addl. District and Session Judge Court Athani and started
on 06-07-2024.
That the said Hon'ble Court established at Athani to give
justice to the public litigants of Athani and Kagwad taluka at
their door steps. As the Hon'ble District Court Chikkodi and
Belagavi were at 140 to 195 KM from the last villages of
Athani and Kawad taluka. Hence for the same reason
appointment of Additional District Govt. Pleader is
indispensable. Therefore for time being by the order of
your good office vide LAW-LAD/467/2024 dated : 19-09-
2024 the additional charge to attend the cases before
Hon'ble XIth Addl. District and Session Judge Court Athani
is given to AGP Senior Civil Court Athani till further order.
Therefore it is just and necessary to appoint ADGP
to Hon'ble XIth Addl. District and Session Judge Court
Athani.
That I am practicing advocate since 1999 to till this day
at Athani before Hon'ble Prl. Senior Civil Judge, Addl. Senior
Civil Judge and Prl. Civil Judge & JMFC, 1st Addl. to 4th Addl. Civil
10
& JMFC Courts Athani and Prl. Civil Judge and JMFC Court
Kagwad, and Hon'ble VIIth Addl. District and Session Judge
Court Chikkodi and Hon'ble XIth Addl. District and Session
Judge Court Athani.
That I am having experience of practice in both Civil and
Criminal all types. I have also experience of practice since 22
years before Hon'ble District and Sessions Court particularly
before Hon'ble VIIth Addl. And Session Court Chikkodi and XIth
Addl. District and Session Judge Court Athani till this day.
That I have also experienced of representing the Govt.
cases in land acquisition cases as I was appointed as special
Govt. Counsel for UKP to Athani Civil cases by its order
LAW- 126, LAG 2013 on 08-09-2014 for 3 years or till
further orders.
Due to said opportunity given to me I honestly
defended the Government and became successful in
dismissal of 08 bogus double petitions.
That I am practicing since last 25th years from the date of
issuance of Sanad on 19-11-1999 from Karnataka Bar Council
bearing my Reg. No: KAR: 4832/1999.
That I am interested to defend the Govt. of Karnataka
before XIth Addl. District and Session Judge Court Athani
for all type of cases with all integrity and with honesty.
I have 2 junior colleagues working with me. I am ready to
abide all the rules, regulations and instructions present and
future likely to be given by the Hon'ble Government of
Karnataka time to time.
I have enclosed requisite document for justification of my
this appeal.
Hence I earnestly appeal to your good selves that I
may be appointed as a ADGP to XIth Addl. District and
Session Judge Court Athani.
Hence the application.
11
Place: Athani
Date: 09-10-2024
Your's faithfully
Sd/-
Shri. Sunil A. Sank
Advocate, Athani."
(Emphasis added)
The application appended to it a certificate of practice, which
reads as follows:
"CERTIFICATE
This is to certify that, Shri. Sunil Annappa Sank, he has
been practicing as an Advocate, in the court of XIth Addl District
and Session Court Belagavi, Sitting At : Athani, Prl. Senior Civil
Judge, Addl. Senior Civil Judge And M.A.C.T Athani, and Prl.
Civil Judge And J.M.F.C. And Addl. 1st, 2nd, 3rd, 4th and 5th
Civil Judge and J.M.F.C. Athani. And he is member of Bar
Association, Athani. He has been practicing from 21-11-1999 to
till today. And his membership registration number 4832/1999,
he is enrolled on 19-11-1999, in the Karnataka State Bar.
Hence this Certificate."
On the application made by the petitioner, the District Judge
communicates to the Department of Law with regard to the
necessity of appointment on 01-03-2025. The communication reads
as follows:
12
"From,
The Prl. District & Sessions Judge
Belagavi.
To,
The Under Secretary to the Government.
Law. Justice & Human Rights Department
(Administrative-2).
Bengaluru.
Respected Sir
Sub: Submission of Information as called for in
the matter of sanction of one post of
Additional District Government Pleader to the
XI Addl. District & Sessions Judge, Belagavi
(to sit at Athani). Reg.
Ref: 1) Letter No: LAW-LCD/583/2024 dated
14.02.2025 of Government of Karnataka
2) Letter No: 179/2025 dated 01.03.2025 of
XI Addl. District & Sessions Judge, Belagavi
(to sit at Athani)
*****
With reference to the above subject and references, I am
submitting herewith the following information in the matter of
sanction of one post of Additional District Government Pleader
to the XI Addl. District & Sessions Judge, Belagvi (to sit at
Athani) as called for by the Government of Karnataka vide letter
referred above at reference No: 1.
01) Performance Metrics put in place for
sanction/continuation Not available
13
02) Minimum No: of case to be handled by each
pleader 113 cases
03) ೊಸ ಾ ಹು ೆಗಳನು ಸೃ ಸಲು ಸಹಮ ೋರು ರುವ ಾ ಾಲಯಗಳ ನ
ಪ ಕರಣಗಳ #ವರ:
427 cases of all category in Civil nature.
Further, I hereby submit my opinion that, it is
required to sanction of one post of Additional District
Government Pleader to the XI Addl. District & Sessions
Judge Court, Belagavi (to sit at Athani).
This is for your information and to take further needful.
Yours faithfully.
Sd/- 1.3.2025
(T.N. Inavally)
Prl. District & Sessions Judge.
Belagavi"
(Emphasis added)
This results in an appointment of the petitioner on 28-10-
2025, as Additional District Government Pleader for a period of 3
years from the date he assumes charge. The appointment is under
Rule 26 of the Rules. The Notification of appointment of the
petitioner dated 28.10.2025, reads as follows:
"ಅ'ಸೂಚ ೆ
) ೕ ಸು*ೕಲ ಅಣ+,ಾ- ಸಂಕ, ವ/ೕಲರು, ನಂ .3656/A/2/BC, ಸಂಕ ಗ , ಅಥ1, 2ೆಳ3ಾ#
4ೆ ಇವರನು 2ೆಳ3ಾ# 4ೆಯ 11 ೇ ೆಚು6ವ7 4ಾ ಮತು ಸತ ಾ ಾಲಯ (9:;ಂ< - ಅಥ1)
ಇ ನ ಅವರ 4ಾ ಸ ಾ=7 ವ/ೕಲರ ಹು ೆ3ೆ ಕ ಾ=ಟಕ ಾನೂನು ಅ' ಾ7ಗಳ ( ೇಮ ಾ ಮತು
14
?ೇ@ಾ ಷರತುಗಳB) *ಯಮಗಳB, 1977ರ *ಯಮ 26(2)ರನCಯ ಪ ದತ@ಾದ ಅ' ಾರವನು
ಚ4ಾE9 ಹು ೆಯ ಪ Fಾರವನು ವG9 ೊಳBHವ I ಾಂಕIಂದ Jಾ73ೆ ಬರುವಂLೆ ಮೂರು ವಷ=ದ
ಅವ'3ೆ ಅಥ@ಾ ಮುಂIನ ಆ ೇಶದವOೆ3ೆ ಇ@ೆರಡರ ಾವQದು Rದ4ೋ ಅ ಯವOೆ3ೆ
ೇSಸ4ಾ ೆ.
ಕ ಾ=ಟಕ Oಾಜ ,ಾಲರ ಆ ೇUಾನು?ಾರ
ಮತು ಅವರ ೆಸ7ನ ,
ಸG/- 28/10/25
(ಆI ಾOಾಯಣ)
ಸ ಾ=ರದ ಅ'ೕನ ಾಯ=ದ)=
ಾನೂನು, ಾ ಯ ಮತು
Vಾನವ ಹಕುWಗಳ ಇ4ಾXೆ (ಆಡYತ-2)"
(Emphasis added)
The petitioner then begins to appear as Additional District
Government Pleader in 4 to 5 cases on the said date. What comes
out as a shocker or a bolt from the blue is within 24 hours, the
appointment of the petitioner is withdrawn and the 3rd respondent
is appointed. The Notification of appointing the 3rd respondent -
the impugned notification dated 29.10.2025, reads as follows:
"ಅ'ಸೂಚ ೆ
) ೕ ಸು*ೕಲ ಅಣ+,ಾ-, ಸಂಕ, ವ/ೕಲರು, ನಂ. 3656/A/2/BC, ಸಂಕ ಗ , ಅಥ1, 2ೆಳ3ಾ#
4ೆ ಇವರನು 2ೆಳ3ಾ# 4ೆಯ 11 ೇ ೆಚು6ವ7 4ಾ ಮತು ಸತ ಾ ಾಲಯ (9:;ಂ<- ಅಥ1)
ಇ ನ ಅಪರ 4ಾ ಸ ಾ=7 ವ/ೕಲರ ಹು ೆ3ೆ ಕ ಾ=ಟಕ ಾನೂನು ಅ' ಾ7ಗಳ ( ೇಮ ಾ ಮತು
?ೇ@ಾ ಷರತುಗಳB) *ಯಮಗಳB, 1977ರ *ಯಮ 26(2)ರನCಯ ಪ ದತ@ಾದ ಅ' ಾರವನು
ಚ4ಾE9 ಹು ೆಯ ಪ Fಾರವನು ವG9 ೊಳBHವ I ಾಂಕIಂದ Jಾ73ೆ ಬರುವಂLೆ ಮೂರು ವಷ=ದ
15
ಅವ'3ೆ ಅಥ@ಾ ಮುಂIನ ಆ ೇಶದವOೆ3ೆ ಇ@ೆರಡರ ಾವQದು Rದ4ೋ ಅ ಯವOೆ3ೆ ೇS9
ೊರ]9ರುವ I ಾಂಕ: 28.10.2025ರ ಅ'ಸೂಚ ೆ ಸಂXೆ . 4ಾ- ಎ_ ಎ ] /583/2024 (Fಾಗ -2)ನು
Gಂಪ`ೆಯ4ಾ ೆ.
ಮುಂದುವOೆದು, ) ೕ ]. a. ಠಕWಣ+ವರ, ವ/ೕಲರು, ) ೕOಾಮ ನಗರ, #ಕ ಮಪQರ, ಅಥ1
Lಾಲೂಕು - 591304, 2ೆಳ3ಾ# 4ೆ ಇವರನು 2ೆಳ3ಾ# 4ೆಯ 11 ೇ ೆಚು6ವ7 4ಾ ಮತು ಸತ
ಾ ಾಲಯ (9:;ಂ< ಅಥ1) ಇ ನ ಅವರ 4ಾ ಸ ಾ=7 ವ/ೕಲರ ಹು ೆ3ೆ ಕ ಾ=ಟಕ ಾನೂನು
ಅ' ಾ7ಗಳ ( ೇಮ ಾ ಮತು ?ೇ@ಾ ಷರತುಗಳB) *ಯಮಗಳB, 1977ರ *ಯಮ 26(2)ರನ ಯ
ಪQದತ@ಾದ ಅ' ಾರವನು ಚ4ಾE9 ಹು ೆಯ ಪ Fಾರವನು ವG9 ೊಳBHವ I ಾಂಕIಂದ Jಾ73ೆ
ಬರುವಂLೆ ಮೂರು ವಷ=ದ ಅವ'3ೆ ಅಥ@ಾ ಮುಂIನ ಆ ೇಶದವOೆ3ೆ ಇ@ೆರಡರ ಾವQದು
Rದ4ೋ ಅ ಯವOೆ3ೆ ೇSಸ4ಾ ೆ.
ಕ ಾ=ಟಕ Oಾಜ ,ಾಲರ ಆ ೇUಾನು?ಾರ
ಮತು ಅವರ ೆಸ7ನ ,
ಸG/- 29/10/25
(ಆI ಾOಾಯಣ)
ಸ ಾ=ರದ ಅ'ೕನ ಾಯ=ದ)=
ಾನೂನು, ಾ ಯ ಮತು
Vಾನವ ಹಕುWಗಳ ಇ4ಾXೆ (ಆಡYತ-2)"
(Emphasis added)
Both these notifications refer to Rule 26 of the Rules. It is
therefore, necessary to notice Rule 26 of the Rules. Rule 26 reads
as follows:
"26. Appointment of District Government
Pleader, etc.- (1) The number of posts of District
Government Pleaders, Additional District Government
Pleaders and Assistant Government Pleaders in the State
and their particulars shall be as specified in Schedule VI.
16
(2) The Deputy Commissioner shall, whenever
required by the Government, invite applications from
eligible practising advocates of the place, for the post of
District Government Pleaders, Additional District
Government Pleaders and Assistant Government Pleaders
specifying the date before which such application should
be made and forward the applications so received to the
District Judge along with his remarks about their
suitability for appointment to the concerned post. On
receipt of the same, the District Judge shall forward them
to the Government in the Department of Law and
Parliamentary Affairs appending his remarks regarding his
suitability of each of them for the concerned post. The
Government shall thereafter' make the appointments
having regard to the remarks of District Judge and the
Deputy Commissioner.
"(3) Notwithstanding anything contained in
sub-rule-2, but subject to other provisions of these
rules, the Government may in cases of urgency
appoint in consultation with the concerned District
Judge, any advocate as District Government Pleader
or Additional District Government Pleader for a
period not exceeding one year".
(Emphasis supplied)
Rule 26, under Chapter-VII of the said Rules deals with
appointment of District Government Pleader. The duties are also
enumerated under the Rules. Rule 28 specifically deals with
Additional District Government Pleader. It reads as follows:
28. Additional District Government Pleaders
and Assistant Government Pleaders. - (1) The
17
Government may, appoint in any place as many
Additional District Government Pleaders and
Assistant Government Pleaders as are considered
necessary.
(2) An Additional District Government Pleader or
an Assistant Government Pleader appointed to assist a
District Government Pleader, shall work under the
control and supervision of the District Government
Pleader to whom he is attached. The distribution of work
among the District Government Pleader and an
Additional District Government Pleader or Assistant
Government Pleader appointed to assist such District
Government Pleader shall subject to any instructions by
the Government be made by such Government Pleader.
(3) The duties of an Additional District Government
Pleader or an Assistant Government Pleader shall
ordinarily be restricted to the court or courts at the
places for which he is appointed and he shall appear on
behalf of-
(a) the Government or a Government officer in the
court or courts at such places in all suits,
appeals, and other civil proceedings to which
Government or a Government officer is party
in his official capacity:
Provided that the Deputy Commissioner or the
District Judge concerned or the Government may
direct the District Government Pleader to appear in
any case in which his appearance is considered
essential and in such case the Additional District
Government Pleader or the Assistant Government
Pleader, as the case may be, shall appear along with
the District Government Pleader to assist him and
act under his directions in all matters connected with
such case.
18
(b) send in the first week of January, April, July
and October every year a list of Government
cases pending in the court for which he is
appointed indicating therein the number of the
cases and the names of parties thereto."
(Emphasis supplied)
While it is true that the appointments under Rule 26
are made at the pleasure of the Government, such pleasure
is not unfettered, it is hemmed in by the golden thread of
Article 14 of the Constitution of India, which sternly
prohibits arbitrariness. The Constitution does not condone
the State action that is whimsical, capricious or devoid of
discernible reasoning. Jurisprudence is replete on the issue and
this welter contains both the arbitrary actions being annulled,
notwithstanding the doctrine of pleasure, and actions sustained on
doctrine of pleasure. A Constitution Bench of the Apex Court in the
case of B.P. SINGHAL v. UNION OF INDIA1, answers the
questions that fell for consideration, as found in paragraph 11
therein and they read as follows:
1
(2010) 6 SCC 331
19
"Questions for consideration
11. The contentions raised give rise to the following
questions:
(i) Whether the petition is maintainable?
(ii) What is the scope of "doctrine of pleasure"?
(iii) What is the position of a Governor under the
Constitution?
(iv) Whether there are any express or implied
limitations/restrictions upon the power under
Article 156(1) of the Constitution of India?
(v) Whether the removal of the Governors in exercise
of the doctrine of pleasure is open to judicial
review?
We will consider each of these issues separately."
(Emphasis supplied)
The Apex Court formulates the scope of doctrine of pleasure
to be a question to be answered qua the appointment of a Governor
of a State. Answering the said issue, the Apex Court has held as
follows:
"(ii) Scope of doctrine of pleasure
16. The pleasure doctrine has its origin in English law,
with reference to the tenure of public servants under the
Crown. In Dunn v. R. [(1896) 1 QB 116 : (1895-99) All ER Rep
907 (CA)] , the Court of Appeal referred to the old common law
rule that a public servant under the British Crown had no
tenure but held his position at the absolute discretion of the
Crown. It was observed: (QB pp. 119-20)
20
"... I take it that persons employed as the petitioner
was in the service of the Crown, except in cases where there
is some statutory provision for a higher tenure of office, are
ordinarily engaged on the understanding that they hold their
employment at the pleasure of the Crown. So I think that
there must be imported into the contract for the employment
of the petitioner, the term which is applicable to civil servants
in general, namely, that the Crown may put an end to the
employment at its pleasure. ... It seems to me that it is the
public interest which has led to the term which I have
mentioned being imported into contracts for employment in
the service of the Crown. The cases cited shew that, such
employment being for the good of the public, it is essential for
the public good that it should be capable of being determined
at the pleasure of the Crown, except in certain exceptional
cases where it has been deemed to be more for the public
good that some restriction should be imposed on the power of
the Crown to dismiss its servants."
(emphasis supplied)
17. In Shenton v. Smith [1895 AC 229 (PC)], the Privy
Council explained that the pleasure doctrine was a necessity
because, the difficulty of dismissing those servants whose
continuance in office was detrimental to the State would, if it
were necessary to prove some offence to the satisfaction of a
jury (or court) be such, as to seriously impede the working of
the public service.
18. A Constitution Bench of this Court in Union of
India v. Tulsiram Patel [(1985) 3 SCC 398 : 1985 SCC (L&S)
672] explained the origin of the doctrine thus: (SCC p. 425,
para 8)
"8. ... In England, except where otherwise provided by
statute, all public officers and servants of the Crown hold
their appointments at the pleasure of the Crown or durante
bene placito ('during good pleasure' or 'during the pleasure of
the appointor') as opposed to an office held dum bene se
gesserit ('during good conduct'), also called quadiu se bene
gesserit ('as long as he shall behave himself well'). When a
person holds office during the pleasure of the Crown, his
appointment can be terminated at any time without assigning
cause. The exercise of pleasure by the Crown can, however,
21
be restricted by legislation enacted by Parliament because in
the United Kingdom Parliament is sovereign...."
(emphasis supplied)
19. In State of Bihar v. Abdul Majid [AIR 1954 SC 245 :
1954 SCR 786] , another Constitution Bench explained the
doctrine of pleasure thus: (AIR p. 250, para 13)
"13. The rule that a civil servant holds office at the
pleasure of the Crown has its origin in the Latin
phrase durante bene placito (during pleasure) meaning that
the tenure of office of a civil servant, except where it is
otherwise provided by statute, can be terminated at any time
without cause assigned. The true scope and effect of this
expression is that even if a special contract has been made
with the civil servant the Crown is not bound thereby. In
other words, civil servants are liable to dismissal without
notice and there is no right of action for wrongful dismissal,
that is, that they cannot claim damages for premature
termination of their services."
20. H.M. Seervai, in his treatise Constitutional Law of
India (4th Edn., Vol. 3, pp. 2989-90) explains this English
Crown's power to dismiss at pleasure in the following terms:
"27.4. ... In a contract for service under the Crown,
civil as well as military, there is, except in certain cases where
it is otherwise provided by law, imported into the contract a
condition that the Crown has the power to dismiss at
pleasure. ... Where the general rule prevails, the Crown is not
bound to show good cause for dismissal, and if a servant has
a grievance that he has been dismissed unjustly, his remedy
is not by a law suit but by an appeal of an official or political
kind. ... If any authority representing the Crown were to
exclude the power of the Crown to dismiss at pleasure by
express stipulation, that would be a violation of public policy
and the stipulation cannot derogate from the power of the
Crown to dismiss at pleasure, and this would apply to a
stipulation that the service was to be terminated by a notice
of a specified period of time. Where, however, the law
authorises the making of a fixed term contract, or subjects
the pleasure of the Crown to certain restrictions, the pleasure
is pro tanto curtailed and effect must be given to such law."
22
21. Black's Law Dictionary defines "pleasure
appointment" as the assignment of someone to employment
that can be taken away at any time, with no requirement for
notice or hearing.
22. There is a distinction between the doctrine of
pleasure as it existed in a feudal set-up and the doctrine of
pleasure in a democracy governed by the rule of law. In a
nineteenth century feudal set-up unfettered power and
discretion of the Crown was not an alien concept. However, in a
democracy governed by rule of law, where arbitrariness in any
form is eschewed, no Government or authority has the right to
do what it pleases. The doctrine of pleasure does not mean a
licence to act arbitrarily, capriciously or whimsically. It is
presumed that discretionary powers conferred in absolute and
unfettered terms on any public authority will necessarily and
obviously be exercised reasonably and for the public good.
23. The following classic statement from Administrative
Law (H.W.R. Wade & C.F. Forsyth, 9th Edn., pp. 354-55) is
relevant in this context:
"The common theme of all the authorities so far
mentioned is that the notion of absolute or unfettered
discretion is rejected. Statutory power conferred for public
purposes is conferred as it were upon trust, not absolutely--
that is to say, it can validly be used only in the right and
proper way which Parliament when conferring it is presumed
to have intended. Although the Crown's lawyers have argued
in numerous cases that unrestricted permissive language
confers unfettered discretion, the truth is that, in a system
based on the rule of law, unfettered governmental discretion
is a contradiction in terms. The real question is whether the
discretion is wide or narrow, and where the legal line is to
bedrawn. For this purpose everything depends upon the true
intent and meaning of the empowering Act.
The powers of public authorities are therefore
essentially different from those of private persons. A man
making his will may, subject to any rights of his dependants,
dispose of his property just as he may wish. He may act out
of malice or a spirit of revenge, but in law this does not affect
his exercise of his power. In the same way a private person
has an absolute power to allow whom he likes to use his land,
to release a debtor, or, where the law permits, to evict a
23
tenant, regardless of his motives. This is unfettered
discretion. But a public authority may do none of these things
unless it acts reasonably and in good faith and upon lawful
and relevant grounds of public interest. ... The whole
conception of unfettered discretion is inappropriate to a public
authority, which possesses powers solely in order that it may
use them for the public good.
There is nothing paradoxical in the imposition of such
legal limits. It would indeed be paradoxical if they were not
imposed."
(emphasis supplied)
24. It is of some relevance to note that 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 clauses (1) and (2) of Article 311. Even in
regard to cases falling within the proviso to clause (2) of Article
311, the application of the doctrine is not unrestricted, but
moderately restricted in the sense that the circumstances
mentioned therein should exist for its operation. The Canadian
Supreme Court in Wells v. Newfoundland [(1999) 3 SCR 199 :
(1999) 177 DL 4th 73 (Can SC)] has concluded that "at
pleasure" doctrine is no longer justifiable in the context of
modern employment relationship.
25. In Abdul Majid [AIR 1954 SC 245 : 1954 SCR 786] ,
this Court considered the scope of the doctrine of pleasure,
when examining whether the rule of English law that a civil
servant cannot maintain a suit against the State or against the
Crown for the recovery of arrears of salary as he held office
during the pleasure of the Crown, applied in India. This Court
held that the English principle did not apply in India. This Court
observed: (AIR pp. 249-50, paras 11-12)
"11. It was suggested that the true view to take is that
when the statute says that the office is to be held at pleasure,
it means 'at pleasure', and no rules or regulations can alter or
modify that; nor can Section 60 of the Code of Civil
Procedure, enacted by a subordinate legislature be used to
construe an Act of a superior legislature. It was further
suggested that some meaning must be given to the words
'holds office during His Majesty's pleasure' as these words
cannot be ignored and that they bear the meaning given to
24
them by the Privy Council in I.M. Lall case [High Commr. for
India v. I.M. Lall, (1947-48) 75 IA 225] .
12. In our judgment, these suggestions are based on a
misconception of the scope of this expression. The expression
concerns itself with the tenure of office of the civil
servant and it is not implicit in it that a civil servant serves
the Crown 'ex gratia' or that his salary is in the nature of a
bounty. It has again no relation or connection with the
question whether an action can be filed to recover arrears of
salary against the Crown. The origin of the two rules is
different and they operate on two different fields."
(emphasis supplied)
This shows the "absoluteness" attached to the words "at
pleasure" is in regard to tenure of the office and does not affect
any constitutional or statutory restrictions/limitations which
may apply.
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.
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:
25
"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."
28. This Court in Parshotam Lal Dhingra v. Union of
India [AIR 1958 SC 36], 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)."
29. Again, in Moti Ram Deka v. North East Frontier
Railway [AIR 1964 SC 600], 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
26
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."
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.
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.
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
27
or extend the type of protection against removal,
granted to one category of offices, to another category.
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.
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."
(Emphasis supplied)
28
The Apex Court holds that doctrine of pleasure,
however, is not a license to act with unfettered discretion to
act arbitrarily, whimsically or capriciously. The said judgment
has been followed by a Division Bench of this Court in B.K. UDAY
KUMAR v. STATE OF KARNATAKA2. The Division Bench
considering nomination of Director in KPTCL holds as follows:
"8. Firstly, we must advert to the second ground on which
the writ petition was allowed. For that purpose it is necessary to
refer to the Articles of Association of BESCOM. What is material
is clause (b) of Article-74 which reads thus:
"(b) So long the entire paid up share capital in the
Company is held by the Government of Karnataka or by the
Central Government or by the Government of Karnataka
and the Central Government, or by a subsidiary of a wholly
owned Government company, the Government of Karnataka
shall have the right to nominate and appoint one or more of
the Directors to the Office of the Chairman of the Board of
directors or Managing Director or Whole Time Directors of
the Company for such term and on such remuneration
and/or allowance as it may think fit and may at any time
remove him/them from office and appoint another/others in
his/their place(s)":
9. Thus, it provides that the Government of Karnataka
shall have the right to nominate and appoint one or more
Directors to the office of the Chairman of the Board of Directors
or the Managing Director or fulltime Director of the company
and may, at any time, remove them from the office and appoint
other persons in their places. It is this power which was
exercised by the State Government to remove the
3rd respondent-petitioner from the post of the Director
(Technical) BESCOM and to appoint the appellant to the said
post. Therefore, we will have to consider the law laid down by
2
2020 SCC OnLine Kar. 43
29
the Apex Court on the doctrine of pleasure to decide this
question arising in this appeal.
10. A proposal was prepared by the BESCOM. Paragraph
26 of the proposal was for appointment of the 3rd respondent as
the Managing Director of KAVIKA and paragraph-27 of the
proposal was for appointment of the appellant as the Director
(Technical) BESCOM. The English translation of the
remarks/order of the Hon'ble Chief Minister reads thus:
"Para No. 26 and 27 are approved".
11. There is no serious dispute that while according
approval, in exercise of doctrine of pleasure by invoking
clause (b) of Article 74, no reasons were recorded by the
Hon'ble Chief Minister. Even the proposals did not contain
any reasons. The main contention is that the appointment
of the 3rd respondent as the Director (Technical) BESCOM
was at the pleasure of the Government which could be
cancelled anytime. It is, therefore, necessary to refer to
the decision of the Apex Court in the case of B.P.
Singhal (supra). The issue before the Apex Court was
concerning appointment of the Hon'ble Governor. In
paragraph 16 onwards, the Apex Court referred to the
law relating to the doctrine of pleasure. Thereafter, the
Apex Court distinguished the doctrine of pleasure, as
prevailing in England and as prevailing in India. In
paragraph 22, the Apex Court held thus:
"22. There is a distinction between the doctrine
of pleasure as it existed in a feudal set-up and the
doctrine of pleasure in a democracy governed by rule of
law. In a nineteenth century feudal set-up unfettered
power and discretion of the Crown was not an alien
concept. However, in a democracy governed by rule of
law, where arbitrariness in any form is eschewed, no
Government or Authority has the right to do what it
pleases. The doctrine of pleasure does not mean a
licence to act arbitrarily, capriciously or whimsically. It
is presumed that discretionary powers conferred in
absolute and unfettered terms on any public authority
will necessarily and obviously be exercised reasonably
and for the public good".
(emphasis supplied)
30
12. In paragraph 23, the Apex Court relied upon the well
known classic treatise on Administrative Law by Mr. H.W.R.
Wade and C.F. Forsyth. Then, in paragraph 24, the Apex Court
held thus:
"24. It is of some relevance to note that 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 clauses (1) and (2) of Article
311. Even in regard to cases falling within the proviso to
clause (2) of Article 311, the application of the doctrine is not
unrestricted, but moderately restricted in the sense that the
circumstances mentioned therein should exist for its
operation. The Canadian Supreme Court
in Wells v. Newfoundland [1999 (177) DL (4th) 73(CanSC)]
has concluded that "at pleasure" doctrine is no longer
justifiable in the context of modern employment relationship".
(emphasis supplied)
13. The sum and substance of what Is held by the Apex
Court is that the decision of the Government by invoking the
doctrine of pleasure must be tor good and compelling reasons
and it cannot be at the sweet will, whim and fancy of the State
Government, but it can only be for valid reasons and the power
referable to doctrine of pleasure can be used reasonably and
only for public good.
14. Now coming back to the facts of the present case,
one situation can be that the proposal contains valid reasons
and the Hon'ble Chief Minister approves the reasons. To make
the exercise lawful, the file must show application of mind by
the Hon'ble the Chief Minister. The other contingency can be
that even the proposal contains no reasons, but the order of the
Hon'ble Chief Minister reflects the reasons. In this case, both the
things are absent. Hence, it is a case of arbitrary exercise of the
so-called doctrine of pleasure, which is not permissible in law. In
fact it amounts to use of doctrine of pleasure at the whims and
fancies of the State. Therefore, on this ground, we are inclined
to hold that the view taken by the learned Single Judge is
absolutely correct.
31
15. As far as the first ground regarding violation of the
provisions of the said Act of 2013 is concerned, we have
carefully perused the memorandum of writ petition filed by the
3rd respondent. There is absolutely no factual foundation for the
said contention in writ petition. There is not even a contention
raised that before the 7th August, 2019, the appellant could not
have assumed the charge of the post of the Director (Technical)
BESCOM. The fact that the charge that was taken over by the
appellant on 23rd July, 2019 is suppressed. There are grounds
pleaded in support of the challenge in the petition only in
paragraphs 9 to 12 and none of the said paragraphs even refers
to violation of provisions of the said Act of 2013. The findings
recorded by the learned Single Judge regarding violation of the
said Act of 2013 are based on the documents produced before
the learned Single Judge. Violation of provisions of the said Act
of 2013 is not merely a legal issue but it is based on the facts. If
the learned Single Judge wanted to go into the said issue, he
could have permitted the 3rd respondent to amend the writ
petition so that, the appellant and the BESCOM could have dealt
with the factual details. Only on this ground, the said finding of
the learned Single Judge, insofar as it relates to violation of the
said Act of 2013 is concerned, cannot be sustained.
16. According to us, one modification is necessary to the
impugned order. After setting aside the order of the Hon'ble
Chief Minister on the ground that there are no valid reasons
recorded for exercise of doctrine of pleasure, the learned Single
Judge ought to have directed the authorities to place the
proposals submitted by the BESCOM before the Hon'ble Chief
Minister for his decision, so that one way or the other, a
decision could have been taken by the Hon'ble Chief Minister in
accordance with law."
(Emphasis supplied)
The Division Bench was following the earlier Division Bench
judgment of the High Court of Bombay in DNYANESHWAR
32
DIGAMBER KAMBLE v. STATE OF MAHARASHTRA3. The Division
Bench in the said judgment has held as follows:
"8. Now, we come to the decision of the Apex Court in
the case of B.P. Singhal. In Writ Petition No. 326 of 2015 and
other connected matters decided by this Court on 8th May, 2015
to which one of us (A.S. Oka, J.) was a party, this Court has
considered a case where the Chairman and Members of the
Maharashtra State Road Transport Corporation were removed
by the State Government by invoking the doctrine of pleasure.
It may be that on facts, the Apex Court in the case of B.P.
Singhal was considering the case of a Constitutional post.
However, what is material is the ratio of the decision. This Court
in Writ Petition No. 326 of 2015 and other connected petitions
has considered the law laid down by the Apex Court in
paragraphs 22, 23 and 34 of the decision in the case of B.P.
Singhal. Paragraphs 19 to 21 of the decision of this Court in Writ
Petition No. 326 of 2015 read thus:--
"19. As far as the doctrine of pleasure is concerned, it
will be necessary to make a reference to the decision of the
Constitution Bench of the Apex Court in the case of the B.P.
Singhal (supra). In the said decision, the Apex Court has
considered the scope of the doctrine of pleasure in the light of
the provisions of the Constitution of India. In paragraph 22,
the Apex Court has made a distinction between the doctrine
of pleasure in a feudal set up and the doctrine of pleasure in a
democracy governed by the Rule of law. Paragraph 22 of the
decision of the Apex Court reads thus:
"22. There is a distinction between the doctrine of
pleasure as it existed in a feudal set-up and the doctrine of
pleasure in a democracy governed by the rule of law. In a
nineteenth century feudal set-up unfettered power and
discretion of the Crown was not an alien concept. However, in
a democracy governed by rule of law, where arbitrariness in
any form is eschewed, no Government or authority has the
right to do what it pleases. The doctrine of pleasure does
not mean a licence to act arbitrarily, capriciously or
whimsically. It is presumed that discretionary powers
3
(2016) 1 Mah LJ 602
33
conferred in absolute and unfettered terms on any
public authority will necessarily and obviously be
exercised reasonably and for the public good."
(emphasis added)
20. Thereafter in paragraph 23, the Apex Court relied
upon a classic statement from the well known commentary on
the Administrative Law by H.W.R. Wade. The said paragraph
reads thus: "23. The following classic statement
from Administrative Law (H.W.R. Wade and C.F. Forsyth, 9th
Edn., pp. 354-55) is relevant in this context: "The common
theme of all the authorities so far mentioned is that the
notion of absolute or unfettered discretion is rejected.
Statutory power conferred for public purposes is conferred as
it were upon trust, not absolutely--that is to say, it can validly
be used only in the right and proper way which Parliament
when conferring it is presumed to have intended. Although
the Crown's lawyers have argued in numerous cases that
unrestricted permissive language confers unfettered
discretion, the truth is that, in a system based on the rule of
law, unfettered governmental discretion is a contradiction in
terms. The real question is whether the discretion is wide or
narrow, and where the legal line is to be drawn. For this
purpose everything depends upon the true intent and
meaning of the empowering Act. The powers of public
authorities are therefore essentially different from those of
private persons. A man making his Will may, subject to any
rights of his dependants, dispose of his property just as he
may wish. He may act out of malice or a spirit of revenge, but
in law this does not affect his exercise of his power. In the
same way a private person has an absolute power to allow
whom he likes to use his land, to release a debtor, or, where
the law permits, to evict a tenant, regardless of his motives.
This is unfettered discretion. But a public authority may do
none of these things unless it acts reasonably and in good
faith and upon lawful and relevant grounds of public
interest.... The whole conception of unfettered discretion is
inappropriate to a public authority, which possesses powers
solely in order that it may use them for the public good.
There is nothing paradoxical in the imposition of such legal
limits. It would indeed be paradoxical if they were not
imposed."
21. In paragraph 24 Apex Court held that the
doctrine of pleasure in its absolute unrestricted
34
application does not exists in India. Ultimately in
paragraph 34 Apex Court held thus:
"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.
(emphasis added)
9. After considering the law laid down by the Apex Court
in paragraph 22, this Court has held thus:--
"Therefore, the law laid down by the Apex Court is that
the withdrawal of pleasure cannot be at the fancy of the State
Government. It can be only for valid reasons. In paragraph 22
of the decision, the Apex Court clearly held that the said
power can be used reasonably and only for public good."
10. Thus, the law laid down by the Apex Court is that the
withdrawal of pleasure cannot be at the sweet will, whim and
fancy of the State Government and it can only be for valid
reasons. Moreover, the power of withdrawal of pleasure can be
used reasonably and only for public good. We must note here
that though the decision of this Court in Writ Petition No. 326 of
2015 has been challenged by the State Government before the
Apex Court, admittedly there is no ad-interim relief granted by
the Apex Court.
11. Going back to the facts of the case, it is the specific
stand of the State Government that for passing the impugned
order, the doctrine of pleasure has been invoked. As held
earlier, in the noting dated 18th November, 2014 as well as in
the affidavit, no reason has been set out by the State
Government for removing the petitioner. It is true that the order
of appointment records that the tenure of the post will be for
three years or till further orders, whichever is earlier. When the
35
admitted position is that the removal of the petitioner is on
account of withdrawal of pleasure, the law laid down by the
Apex Court will clearly apply to the facts of the case. We may
note that in paragraph 34 of the judgment in the case of B.P.
Singhal, the Apex Court held that the doctrine of pleasure in its
absolute unrestricted application does not exist in India.
Therefore, the petition must succeed and we pass the following
order:--
(i) The impugned order dated 12th December, 2014 is
hereby quashed and set aside;
(ii) We make it clear that the judgment and order will not
preclude the State Government or the Hon'ble Governor
from taking appropriate action of removal of the
petitioner in accordance with law;
(iii) We are informed that regular appointment of the
Chairman of the third respondent has not been made and
only a charge has been given to the Secretary of the
Social Justice Department;
(iv) We grant time of two months to the State Government to
restore the charge of the post of the Chairman to the
petitioner;
(v) The petition is allowed in the above terms. There will be
no order as to costs."
Long before the judgment in the case of B.K. UDAY KUMAR
(supra), a co-ordinate Bench of this Court in K.C. SHANKARE
GOWDA v. THE STATE OF KARNATAKA4 has held as follows:
"12. From the amendment as made, it is seen that the
category of the nominees in (i) to (iv) of 'Other members'
remains to be the same but only the nominating authority is
substituted with 'Government' instead of 'Chancellor' as it
existed earlier which is clear from the words for which emphasis
is supplied. Sub-Section (3) which existed in the original Section
27 and continues to exist after the amendment also, which
provides that the term of office of the members of the Board
other than Ex-officio members shall be three years. This would
4
ILR 2017 KAR 2439
36
mean that the 'Other Members' who were nominated by the
Chancellor were assured the term of three years and the
curtailment at pleasure is not indicated. As such the right has
vested with such of those members who were nominated, to
hold office as nominated members for a period of three years
from the date of nomination unless the contingencies for
removal as provided under sub-Section (7) to Section 27 had
arisen and the procedure contemplated was followed.
13. The Notification dated 26.06.2014 under which the
subject nomination was initially made is also for a period of
three years by specifying the starting date for computation of
the period of three years as 05.07.2014. Hence, in the
background of the legal position analysed above if the instant
facts are taken note, a right has vested in the persons
nominated under the Notification dated 26.06.2014 under the
substantive provision contained in the Act to remain on the
Board for a period of three years. The amendment as has been
made is only to substitute the name of the nominating authority
from 'Chancellor' to that of the 'Government', which right is to
be exercised prospectively when the nominations are to be
made to the vacant positions in the Board of Management from
the 'Other Members' category. Neither the status nor the
qualification of the members to be nominated has been changed
by the amendment so as to effect the existing right.
14. Sri. V. Lakshminarayana, Learned Senior Counsel,
despite the said position, in order to contend that a nominated
member will hold office only during the pleasure of the
nominating authority and cannot claim to continue in office
when the pleasure is withdrawn, has relied on the decision of
this Court in the case of T. Krishnappa v. State of
Karnataka [(2000) 7 Kant LJ 132] . In that light, it is contended
that by the Notification dated 13.01.2016 the nomination of
different persons has been made in substitution of the earlier
nominees, by which the pleasure exercised earlier is withdrawn.
In that view, it is contended that the subsequent
Notification/Order dated 21.01.2016 withholding the Notification
dated 13.01.2016 is not sustainable. Though in that regard the
Rules of Business and decisions are cited to contend that the
nomination made by the Government cannot be kept in
abeyance by a Secretary to the Government, the detailed
consideration in that regard will be necessary only if the
37
Notification dated 13.01.2016 is held sustainable to supersede
the Notification dated 26.06.2014.
15. In this backdrop, I have carefully examined the
contentions in the light of the decision in the case of T.
Krishnappa (supra). In that case, the right as claimed by the
nominated member under Section 10 of the Karnataka
Agricultural Produce Marketing (Regulation) Act, 1966 for the
benefit of the extended period of one year arose for
consideration therein. This Court in that context took note of the
contents of Section 10(4)(a) of the Act which provides for
nomination of the members of the first Committee for a period
of two years from the date of notification under sub-Section (1)
subject to 'pleasure' of the State Government and in that
context held that the extended period of one year also under the
proviso should be considered to be at the pleasure of the
Government. The entire consideration therein was in the context
of 'pleasure nominees'. The provision considered in that case
reads thus,
"10. Constitution of the first market
committee:--(4)(a) Save as otherwise provided in this Act
[but subject to the pleasure of the State Government] the
members of the first market committee shall hold office for a
period of two years from the date of notification under sub-
section(1):
Provided that the State Government may by
notification extend the term of office of the members by such
period or periods not exceeding [Two years] in the
aggregates."
(emphasis supplied)
16. On the other hand, in the instant case, though
the nomination to be made prior to amendment was by
the Chancellor and presently it is by the Government, the
period for which the nomination is made is for three
years and not at the pleasure of either of the nominating
authority. The removal of a nominated member, as
noticed is only in the manner s provided under sub-
Section (7) to Section 27 of the KVAFSU Act on the
ground of misbehavior, misconduct or otherwise after
holding an enquiry. Despite no such contingency having
arisen and the period of three years under the
Notification dated 26.06.2014 not having come to an end,
38
another Notification dated 13.01.2016 nominating
persons to the same category will not be in terms of the
provisions and scheme of the Act. Through the
amendment in question the change made is only about
the authority to nominate and the scheme as such has
remained the same. In such circumstance, when the
Notification dated 13.01.2016 is found to be not in
accordance with law, the decision to keep it in abeyance
through the Notification/Order dated 21.01.2016 cannot
be found fault with nor is there need to interfere with the
same as it would be open for the official respondents
themselves to recall the same at the appropriate stage
after the period of three years as required under the
Notification dated 26.06.2014 is spent and thereafter to
bring the nomination under the Notification dated
13.01.2016 into effect at that stage as a fresh nomination
after the earlier period has elapsed. While computing the
period of three years, the period, if any denied to the
nominees under the Notification dated 26.06.2014 due to
the interruption caused in view of the present action shall
also be noted and benefit of the lost period be provided to
them to remain on the Board for the entire three years
term. Keeping in view the interim orders that were
passed during the pendency of these petitions, in order to
save the actions taken it is clarified that if the nominees
under the Notification dated 13.01.2016 have
participated in any meetings of the Board, such decisions
taken shall however remain valid for administration
purposes."
(Emphasis supplied)
On a coalesce of the judgments rendered by the Apex Court
or the Division Bench of the High Court of Bombay or the Division
Bench of this Court, what would unmistakably emerge is, that the
doctrine of pleasure cannot be arbitrarily invoked to denominate
any person, who is nominated for a fixed term.
39
11. The other line of judgments rendered by the Apex Court
and that of the co-ordinate Bench of this Court are, in the case of
STATE OF U.P. v. U.P. STATE LAW OFFICERS ASSOCIATION5
the Apex Court holds as follows:
"17. The Government or the public body represents
public interests, and whoever is in charge of running their
affairs, is no more than a trustee or a custodian of the public
interests. The protection of the public interests to the
maximum extent and in the best possible manner is his
primary duty. The public bodies are, therefore, under an
obligation to the society to take the best possible steps to
safeguard its interests. This obligation imposes on them the
duty to engage the most competent servants, agents,
advisers, spokesmen and representatives for conducting their
affairs. Hence, in the selection of their lawyers, they are duty-
bound to make earnest efforts to find the best from among
those available at the particular time. This is more so because
the claims of and against the public bodies are generally
monetarily substantial and socially crucial with far-reaching
consequences.
... ... ...
19. It would be evident from Chapter V of the said
Manual that to appoint the Chief Standing Counsel, the
Standing Counsel and the Government Advocate, Additional
Government Advocate, Deputy Government Advocate and
Assistant Government Advocate, the State Government is
under no obligation to consult even its Advocate-General much
less the Chief Justice or any of the judges of the High Court or
to take into consideration, the views of any committee that
"may" be constituted for the purpose. The State Government
has a discretion. It may or may not ascertain the views of any
of them while making the said appointments. Even where it
chooses to consult them, their views are not binding on it. The
5
(1994) 2 SCC 204
40
appointments may, therefore, be made on considerations
other than merit and there exists no provision to prevent such
appointments. The method of appointment is indeed not
calculated to ensure that the meritorious alone will always be
appointed or that the appointments made will not be on
considerations other than merit. In the absence of guidelines,
the appointments may be made purely on personal or political
considerations, and be arbitrary. This being so those who
come to be appointed by such arbitrary procedure can hardly
complain if the termination of their appointment is equally
arbitrary. Those who come by the back door have to go by the
same door. This is more so when the order of appointment
itself stipulates that the appointment is terminable at any time
without assigning any reason. Such appointments are made,
accepted and understood by both sides to be purely
professional engagements till they last. The fact that they are
made by public bodies cannot vest them with additional
sanctity. Every appointment made to a public office,
howsoever made, is not necessarily vested with public
sanctity. There is, therefore, no public interest involved in
saving all appointments irrespective of their mode. From the
inception some engagements and contracts may be the
product of the operation of the spoils system. There need be
no legal anxiety to save them."
The Apex Court holds that nomination by itself from its nature
is that the nominees do not have any vested right to continue as it
is not akin to a fixed tenure as found in statutory appointments. A
Division Bench of this Court in the case of THE STATE OF
KARNATAKA v. DR. DEEPTHI BHAVA6 has held as follows:
"12. The nomination to the Senate or Syndicate is made
from certain category of persons namely persons having
special interest in health sciences, from amongst the graduate
6
W.A.No.617 of 2021 decided on 25-09-2021
41
of health sciences, experts in the field of health sciences for
the purpose of representation of foresaid category of persons.
It is not an appointment as the word in common parlance
connotes. A person nominated either to the Senate or to the
Syndicate does not have any vested right to the post. The
nomination is a honorary nomination and is without any
financial benefit. It is pertinent to note that plea of vested
right to hold a nominated post has been rejected by Supreme
Court in Cheviti Venkanna Yadav v. State of Telangana
and others (2007)1 SCC 283.
13. It is well settled legal proposition that rights created
by a statute can also be limited or curtailed by such statute
and in the absence of some other competing right under the
statute or under the Constitution of India, a right to the post
cannot be claimed. It is equally well settled legal proposition
that doctrine of pleasure can be impliedly read in a provision
and once the doctrine of pleasure is applicable, neither the
principles of natural justice nor question of giving an
opportunity before removal would arise. [See: Krishna S/o
Bulaji Borate v. State of Maharashtra and others (2001)
2 SCC 441].
14. It is pertinent to note that taking into account the
fact that appellants have been nominated to the post in
question and they do not have any substantive right to hold
the post, and in the absence of any minimum tenure being
prescribed in Section 31, the doctrine of pleasure can be
impliedly read into Sections 21 and 24 of the Act. In the
absence of any specific provision in the Act for removal of the
nominated members prior to reconstitution of Senate or
Syndicate, the provisions of Sections 21 and 24 of the Act
have to be read along with Sections 16 and 21 of the General
Clauses Act, 1897. Therefore, the State Government has
power to recall the nominations of persons, nominated to the
Senate and Syndicate even before reconstitution of Senate or
Syndicate in its entirety.
15. Even otherwise, taking into account the nature of
constitution of the Senate and Syndicate, as it comprises the
ex-officio as well as nominated members, even partial
reconstitution of Senate or Syndicate is permissible. At this
stage, it is relevant to take note of the notification dated 23-
42
10-2020 by which nomination of the appellants was recalled.
The aforesaid notification reads as under:
NOTIFICATION
In exercise of the powers conferred under Section 21(1)(x) of
Rajiv Gandhi University of Health Sciences Act, 1994, in the
public interest and in the interest of academic activities of
RGUHS, the earlier notification dated 16-10-2018 is cancelled,
the following members amongst the graduates of health
sciences are nominated as a member of Senate of RGUHS with
immediate effect and until further orders.
Sl. Name and Address
No
1 Dr. Aravinda Shenoy, MBBS,
MD (Paediatrics) DM
(Neonatology) H.No.115, Old
Airport Road, Kodihalli,
Bengaluru-560 071
2 Dr. G.A. Deepashree,
MBBS,MD (Paediatrics) DM
(Nephrology), H.No.166, 3rd
Block, 17th Main Road, 49th
Cross, Rajajinagar, Bengaluru-
560 010.
3 Dr. Venkataswamy Reddy,
MBBS, MS (Ophthalmology)
H.No.836, 6th Main Road, Modi
Hospital Road, West of Chord
Road, Rajajinagar, Bengaluru-
560 086.
4 Dr. S.Murali, MBBS, MD
(Internal Medicine) DM
(Neurology) (CMC) FRCP
(Edin), PGPX (ULCA), H.No.
520, 6th 'E' Road, 6th Block,
Koramangala, Bengaluru 560
094.
5. Dr. M.K. Mahendra (At present
Senate Member) Continued as
Senate Member
43
By the order and in the name of the
Honourable Governor of Karnataka,
(M.Jyothiprakash)
Under Secretary-2,
Medical Education Department.
xxxxx"
Thus, it is evident that the aforesaid notification is
neither stigmatic nor leads to any penal consequences. The
principles of natural justice also do not apply to the facts of
the case. Therefore, the nomination which was made under
the provisions of the Act is sought to be annulled as per
provisions of the Act. The respondents have made vague
allegations with regard to mala fides and have not been able
to substantiate the same. In the instant case, there is nothing
on record to suggest that power to recall the nomination has
been exercised in an arbitrary manner. Even otherwise, the
respondents, in the absence of any interim order in this
appeal, have substantially completed their tenure in Senate
and Syndicate of the University and the tenure of the
respondents even otherwise would have expired on 15-10-
2021. For this reason also, no interference is called for in the
impugned notifications dated 23-10-2020. The action of the
appellants is in conformity with the provisions of the Act and
does not result in infraction of any of the rights of the
respondents."
The Division Bench upturns the order of the learned single
Judge holding that the nominees would hold office with the pleasure
of the State and cannot be seen to project any right that is taken
away when those nominations are cancelled. The Division Bench
holds that principles of natural justice also do not apply to
cancellation of nominations unless it is shown that it is exercised in
an arbitrary manner.
44
12. A co-ordinate bench of this Court in the case of PALLAVI
VASTRAD Vs. THE STATE OF KARNATAKA7, while answering an
identical issue considers the entire spectrum of the law and holds as
follows:
".... .... ....
9. The issue that requires consideration is as to whether
the action of taking away the petitioners from the Executive
Council is to be considered as arbitrary, capricious or
unreasonable?.
10. The petitioners have contributed in the field of
education. They were nominated as members of Executive
Council of VTU vide notification dated 25.03.2023 as per Section
19(3)(d) of the Act of 1994 for a period of 3 years and the same
expires with the term of 9th Executive Council of VTU. That in
the month of May 2023, elections were held for the Members of
Assembly. A new Government came into power in the State of
Karnataka and started undoing what was done by the previous
Government under the pressure of various political parties. On
24.05.2023, respondent No.2 issued a notification whereby the
appointments and nominations made by the preceding
Government to various committees in various universities were
revoked. Pursuant to the said notification dated 24.05.2023,
the membership of the petitioners on 9th Executive Council of
VTU was revoked vide notification dated 02.06.2023. The
respondent No.6 vide notification dated 26.08.2023 vide
Annexure-E, nominated respondents No.4 and 5 as Members of
Executive Council of VTU under Section 19(3)(d) of Act of 1994,
in place of petitioners. In order to consider the case in hand, it
is necessary to examine Section 19 of the Act, which reads as
under:
7
W.P.No.11958 of 2023, disposed on 08-11-2023
45
'Section 19(3)(d) enumerate that there can be only three
representatives of Government of Karnataka nominated by the State
Government one of whom shall be the Director of Technical Education.'
Sub section 4 provides, the term of office of the Members
of the Executive Council shall be 3 years. From the perusal of
the Act of 1994, there is no specific procedure contemplated to
nominate a person. The person thus nominated by the
nominating authority will therefore remain on the executive
council until he/she enjoys the pleasure of nominating authority.
11. Section 47 deals with the vacating of office, which
reads as under:
'Section 47 enumerate the post of membership falls vacant if any
member resigns or convicted by Court of law for an offence which
involves moral turpitude'.
12. Though there is no provision prescribed under the
Act of 1994, for removal of membership of the Executive
Council, Section 16 of the General Clauses Act, 1897, which
deals with power to appoint to include power to suspend or
dismiss, which reads as under:
"16. Power to appoint to include power to suspend or
dismiss. - Where, by any Central Act or Regulation, a power to make
any appointment is conferred, then, unless a different intention
appears, the authority having for the time being power to make the
appointment shall also have power to suspend or dismiss any person
appointed whether by itself or any other authority in exercise of that
power."
Section 16 provides that if a person is appointed under any Act
or Regulation, the authority may have power to suspend or
dismiss.
13. Section 21 deals with the power to issue, to include
power to add to, amend, vary or rescind the notifications,
orders, rules or byelaws, which reads as under:
"21. Power to issue, to include power to add to, amend,
vary or rescind notifications, orders, rules or bye-laws. - Where,
by any Central Act or Regulations a power to issue notifications,
orders, rules or bye-laws is conferred, then that power includes a
power, exercisable in the like manner and subject to the like sanction
46
and conditions (if any), to add to, amend, vary or rescind any
notifications, orders, rules or bye-laws so issued."
Section 21 empowers an authority which has power to issue
notification, has undoubted power to rescind or modify the
notification in the like manner.
14. The Hon'ble Apex Court in the case of RASID JAVED
VS. STATE OF UTTAR PRADESH AND ANOTHER reported in AIR
2010 SC 2275 held that, the authority which has a power to
issue a notification has the power to rescind or modify the
notification in the like manner. Though the nominating authority
i.e., State issued the notifications nominating the petitioners as
members of Executive Council. Subsequently, in view of change
in the Government the nominating authority withdrawn the
membership of the petitioners as Executive Members of Council
and nominated respondent Nos.4 and 5. In view of the same,
the petitioners are required to accept the position gracefully as
there is no requirement to terminate either with or without the
compliance of principles of natural justice like in the case of
appointment of post.
15. The Hon'ble Apex Court in the case of Cheviti
Venkanna Yadav Vs. State of Telangana and others
reported in (2017) 1 SCC 283 in para Nos.33 and 34 held as
under:
"33. The aforesaid argument suffers from a fallacy. The members
were not elected. They were not appointed by any kind of selection.
They were chosen by the State Government from certain categories.
The status of the members has been changed by amending the word
'appointed' by substituting it with the word 'nominated'. Thus, the
legislature has retrospectively changed the meaning. In our considered
opinion, by virtue of the amendment, the term which has been
reduced for a nominated member stands on a different footing. In Om
Narain Agarwal Vs. Nagar Palika, Shahjahanpur (SCC p.254, para 11)
it has been held that if an appointment has been made initially by
nomination, there can be no violation of any provision of the
Constitution in case the legislature authorized the State Government
to terminate such appointment at its pleasure and to nominate new
members in their place. It is because 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. The
Court further observed that such provision neither offends any article
of the Constitution nor is the same against any public policy or
democratic norms enshrined in the Constitution.
47
34. The word 'appointment' has been substituted by
'nomination'. It is an appointment by nomination. It is from certain
categories for the purpose of representation. It is not appointment as
the word ordinarily connotes. The legislature, in its wisdom, has
substituted the word 'appointment' and made it 'nomination with
retrospective effect'. To enable it to curtail or reduce the term, the
procedure for removal remains intact. A nominee can go from office by
efflux of time when the period is over. That is different than when he
is removed. A nominated member, in praesenti, can also be removed
by adopting the procedure during the period. Otherwise, he shall
continue till his term is over; and the term is one year. The plea of
vested right is like building a castle in Spain. It has no legs to stand
upon and, therefore, we unhesitatingly repel the said submission."
16. It is well settled legal proposition that rights
created by statute can also be curtailed by such a statute and in
the absence of some other competing right under the statute or
under the Constitution of India, right to the post cannot be
claimed. It is equally well settled legal proposition that doctrine
of pleasure can be impliedly read in a provision and once the
doctrine of pleasure is applicable neither the principles of
natural justice nor question of giving an opportunity before
removal would arise and does not provide any provision for
removal of members of Executive Council. In the absence of
any specific provision which provides for removal of Executive
Council, clause 16 and 21 of the General clauses Act, 1897
would apply.
17. The Hon'ble Division bench of this Court in writ
Appeal No.617/2021 in the case of THE STATE OF KARNATAKA VS.
DR. DEEPTI BHAVA AND OTHERS , held that in the absence of any
specific provision in the Act for removal of the nominated
members prior to reconstitution of senate or Syndicate, the
provisions of Sections 21 and 24 of the Act have to be read
along with Sections 16 and 21 of the General Clauses Act, 1897.
Therefore, the State Government has power to recall the
nominations of the persons, nominated to the senate or
Syndicate even before reconstitution of senate or Syndicate in
its entirety. As observed above, the VTU Act does not contain a
clause to removal of the Member of the Executive Council.
Sections 16 and 21 of the General Clauses Act, 1987, have to be
read into and the power to nominate carries with it the power to
remove. Applying the provisions of the Sections 16 and 21 of
the General Clauses Act, the Government is well within its
48
power to remove or to withdraw the petitioners' membership of
the Executive Council.
18. The learned counsel for the petitioners placed
reliance on the judgment of the Hon'ble Apex Court in the case
of B.P. SINGHAL (SUPRA). The said judgment does not come to
the rescue of the petitioners in any way. The said judgment was
rendered in the context of removal of the Governor of a State.
Governor is appointed by the President under Article 55 of the
Constitution of India and the Governor will act as a link between
the Union Government and State Government.
19. In the case of KUMARI SHRILEKHA VIDYARTHI AND
OTHERS VS. STATE OF UTTAR PRADESH AND OTHERS, reported in
(1991) 1 SCC 212, the District Government Counsel were
appointed following the issuance of notifications, prescription of
qualifications and experience and preparations of the panels etc.
The procedure prescribed by legal remembrancer's manual was
scrupulously followed while making appointment to the offices of
the Government Counsel.
20. In the instant case, it is not the case of the
petitioners that applications were called for from the desirous
educationist for being nominated to the member of the
Executive Council. The judgments placed and relied upon by the
learned counsel for the petitioners are not applicable to the
present case in hand.
21. The Co-ordinate bench of this Court in the case of
A.M BHASKAR AND OTHERS VS. STATE OF KARNATAKA,
DEPARTMENT OF EDUCATION (UNIVERSITY) reported in ILR 2013
KAR 4182 had considered the judgments of the Hon'ble Apex
Court as referred above and held that the said judgments have
been rendered in the case of appointment and not nomination
and further held that the petitioners have no legally vested
right to demand that they be continued as the members of the
Syndicate for the fixed period of 3 years. The petitioners are
neither elected nor appointed, they are nominated and they will
hold the office so long as Government does not withdraw its
pleasure. The said decision is aptly applicable to the case in
hand.
49
22. The learned Senior counsel for the petitioners
submits that no reasons have been assigned for withdrawal of
membership of the petitioners and he places a reliance on the
judgment of the Hon'ble Division bench of Bombay High Court in
the case of DNYANESHWARI DIGAMBER KAMBLE VS. STATE OF
MAHARASHTRA AND OTHERS reported in 2015 SCC ONLINE
BOMBAY 6597 wherein it is held that withdrawal of pleasure
cannot be at the sweet will, whim and fancy of the State
Government and it can only be for valid reasons. Moreover, the
power of withdrawal of pleasure can be used reasonably and
only for public good and further he has placed reliance on the
judgment of this Court in the case of D.K.UDAYKUMAR VS. STATE
OF KARNATAKA reported in (2020) 3 KLJ 100, wherein the
Hon'ble Division bench has reiterated the proposition of law laid
down in the case OF DNYANESHWARI DIGAMBER KAMBLE referred
(supra). The judgments relied upon by the learned senior
counsel for the petitioners are not applicable to the present case
in hand.
23. Learned Advocate General has placed a reliance on
the judgment of the Hon'ble Apex Court in the case of STATE OF
UP VS. UP STATE LAW OFFICERS ASSOCIATION, reported in
(1994) 2 SCC 204 wherein it is held that, when the
nominations are made exercising the pleasure, they do not have
vested right to that position and the nominating authority has
the inherent right to terminate their appointment at any time.
24. The Hon'ble Apex Court in the case of OM NARAIN
AGARWAL VS. NAGARPALIKA SHAHAJAHANPUR reported in (1993)
2 SCC 242 held that unequal cannot be treated equally, which
is to say that nominated members cannot claim equity and the
security of the elected members. He has placed reliance on the
judgment of this Court in the case of H.RAJAIAH AND ORS. VS.
STATE OF KARNATAKA AND ORS., reported in ILR 2000 KAR
4989 wherein it is held that the scope of judicial review in the
matters of nominations must be limited and cancellation of
nomination cannot be invalidated, merely because of allegations
of political consideration.
25. Further, the learned Advocate General placed
reliance on the judgment of the Hon'ble Division Bench of
this Court in the case of STATE OF KARNATAKA VS. DR.
DEEPTHI BHAVA AND OTHERS in W.A.No.718/2021 connected
50
with other writ appeals, wherein it is held that there was
no vested right to the nominated to the post when there
is no procedure for removal of nominated members, the
doctrine of pleasure can be impliedly read into the
provision. Considering the judgments placed on record by
the learned Advocate General, the issuance of nominating
respondent Nos.3 and 4 and withdrawal of the petitioners
as membership as a member of executive is legally valid
under Section 19(3) of VTU Act, read with Sections 16
and 21 of the General Clauses Act. The removal of
petitioners is a non-stigmatic and non-punitive. The
petitioners have not made out any grounds to entertain
the writ petition. Accordingly, the writ petition is
dismissed."
(Emphasis supplied)
Another co-ordinate bench in the case of PROF.Y.S.SIDDE
GOWDA VS. STATE8, while answering somewhat similar
circumstance, has held as follows:
".... .... ...
37. The matter can also be viewed from a different
angle. If the nomination under Section 3(1)(ii) and 7(3)
are the same, the term "Vice-Chairman" would not have
found a place in Section 7(3). In other words, when a
person is already occupying the office of the Vice-
Chairman by virtue of a nomination made under Section
3(1)(ii), there was no question of the Vice-Chairman once
again being appointed under Section 7(3). The fact that
Section 7(3) contemplates the appointment of Vice-
Chairman for a term of five years indicates that merely
because a person is nominated under Section 3(1)(ii),
that does not automatically translate into an appointment
as contemplated under Section 7(3). Unless a specific
order of appointment in terms of Section 7(3) has been
8
W.P.No.22090 of 2023 disposed on 05-12-2023
51
made, the Vice-Chairman would only be a person
nominated by the Government under Section 3.
38. However, even assuming that the petitioner was
appointed under Section 7(3), the next question that would
arise is whether the petitioner would still have the statutory
right to hold Office till 31.10.2027.
39. Section 11 of the Act details the terms and
conditions of the Vice-Chairman, the Executive Director
and the members. It is to be noticed that apart from
these three posts [including that of the Vice-Chairman
nominated under Section 3(1)(ii)] and 10 Academicians
of repute who are nominated by the Government, all the
other members of the Council are entitled to become
members by virtue of the Office that they hold. In other
words, apart from the Vice-Chairman and 10
Academicians, all the other members are official
members. The Executive Director is to be appointed by
the Government and such appointee could either be a
serving or retired Senior Administrative Officer not below
the rank of a Principal Secretary. It is, thus, clear that it
is only the Vice-Chairman and the 10 Academicians
mentioned above who can be construed as non-official
members.
40. Section 11(4) would be relevant for the purpose of this
case and the same reads as follows -
"11(4) Subject to the pleasure of the Government, a non-
official member shall hold the office for a term of five years or till
the expiry of the term of the body represented by him whichever
is earlier."
41. Sub-section (4) starts with the phrase "subject to
the pleasure of the Government" and this clearly
indicates that a non-official member of the Council would
be entitled to hold the Office for a term of five years or till
the expiry of the term of the body represented by him,
whichever is earlier.
42. It is to be borne in mind that official members will
continue to be the members of the Council by virtue of
the office that they hold and there is therefore no
52
question of them being members at the pleasure of the
Government.
43. What can be gathered from this is that a specific provision
is made only in respect of the non-official members of the
Council regarding their tenure and their right to be a part of the
Council. Since Sub-section (4) categorically states that non-
official members can hold their office for a term of five years,
subject to the pleasure of the Government, it is clear that even
if a person is appointed to be a member of the Council and he
happens to be a non-official member, his right to hold the office
would be subject to the pleasure of the Government.
44. Thus, even if it is assumed that the petitioner was
appointed by the Government under Section 7 (3), by virtue of
sub-section (4) of Section 11, the petitioner (being a non-official
member) can hold the Office subject to the pleasure of the
Government even if the statutory provision prescribes the period
of tenure as 5 years.
45. Since, as per the discussion made above and as
could also be seen from the Notification that the
petitioner was nominated under Section 3(1)(ii) and was
not appointed as provided under Section 7(3), the
petitioner would not have a right to hold the Office for a
period of 5 years or until 31.10.2027, if he does not have
the confidence of the Government.
46. Even if it is assumed that the petitioner was
appointed under Section 7(3), as Section 11(4) expressly
provides for a non-official member's appointment to hold
office would be subject to the pleasure of the
Government, it is manifestly clear the petitioner would
not have a right to hold the office of the Vice Chairman if
he has lost the confidence of the Government.
47. Learned counsel for the petitioner, however, sought
to place reliance on the judgment rendered in B.P.
Singhal (supra), B.K. Uday Kumar (supra) and T. Suneel
Kumar (supra) to contend that even if it is assumed that
the theory of doctrine of pleasure is attracted in the case
of the petitioner's appointment, nevertheless, the State is
required to show compelling reasons for renewing the
53
petitioner and since no such reason is put forth, the order
passed by the State Government cannot be sustainable. It
is highlighted that removal of a nominated person, even
at the pleasure of the Government, would be subject to
judicial review and the same cannot be done in an
arbitrary or capricious manner. A Division Bench of this
Court in W.A. No.669/2022 has held as follows-
"6. It is not in dispute that the appellants have
been nominated by respondent no.1 as the syndicate
members of respondent no.2-University. Section 39(1)
of the Act of 2000 provides that any member
nominated under the Act of 2000, shall hold the office
during the pleasure of the nominating authority
concerned. Section 39(1) of the Act of 2000 reads as
under:
"39. Restriction of holding the membership of
the authorities.- (1) Any member nominated to any
of the authorities under this Act shall hold office
during the pleasure of the nominating authority
concerned."
7. An identical issue was considered by the
Division Bench of this Court in W.A.No.617/2021 and at
paragraphs 13 & 14, it has been observed as under:
"13. It is well settled legal proposition
that rights created by a statute can also be limited or
curtailed by such statute and in the absence of some
other competing right under the statute or under the
Constitution of India, a right to the post cannot be
claimed. It is equally well settled legal proposition
that doctrine of pleasure can be impliedly read in a
provision and once the doctrine of pleasure is
applicable, neither the principles of natural justice
nor question of giving an opportunity before removal
would arise. (See: 'KRISHNA S/o BULAJI BORATE Vs.
STATE OF MAHARASHTRA AND OTHERS' (2001) 2
SCC 441).
14. It is pertinent to note that taking into
account the fact that appellants have been
nominated to the post in question and they do not
have any substantive right to hold the post, and in
the absence of any minimum tenure being
prescribed in Section 31, the doctrine of pleasure
can be impliedly read into Sections 21 and 24 of the
Act. In the absence of any specific provision in the
54
Act for removal of the nominated members prior to
reconstitution of Senate or Syndicate, the provisions
of Sections 21 and 24 of the Act have to be read
along with Sections 16 and 21 of the General Clauses
Act, 1897. Therefore, the State Government has
power to recall the nominations of persons,
nominated to the Senate and Syndicate even before
reconstitution of Senate or Syndicate in its
entirety."
8. In the case of A.M.BHASKAR & OTHERS VS THE
STATE OF KARNATAKA, DEPARTMENT OF EDUCATION
(UNIVERSITIES), REP. BY THE CHIEF SECRETARY &
OTHERS2, this Court in paragraph 53 has observed as under:
"53. The petitioners have no legally vested right to
demand that they be continued as the members of the
Syndicate for fixed period of three years. The petitioners
are neither elected nor appointed. They are nominated and
they would hold the office so long as the Government does
not withdraw its pleasure. The Apex Court in the case of
Om Narain Agarwal (supra) has held that the nominated
members of a municipal board fall in a different class and
that therefore they cannot claim equality with the elected
members. The Apex Court has negatived the submission
that there would be a constant fear of removal at the will
of the State Government and that it would demoralize the
nominated members in the discharge of their duties."
The judgments in B.P.Singhal's case and B.K.Uday Kumar's
case supra have been rendered in cases of appointment
and not nomination, and therefore, as rightly contended by
the learned Additional Advocate General, the same cannot
be made applicable to the instant case. In the case of
nomination, there is no such prescribed process and the
nomination would be done at the pleasure of the
nominated authority, and therefore, the nominating
authority would also have the power to remove the
nominee at its pleasure. Under the circumstances, we are
of the considered view that the learned Single Judge was
fully justified in dismissing the writ petition and we find no
reason to interfere with the said order. Accordingly, the
writ appeal is dismissed."
48. In light of the fact that the Notification which is
relied upon by petitioner only stated that he had been
appointed under Section 3(1)(ii), thereby meaning that
he was not appointed under Section 7(3) and since he
has also not been subsequently appointed under Section
7(3), it is clear that the judgments upon which reliance is
55
placed i.e., B.P.Singhal (supra) and B.K.Uday Kumar
(supra), as distinguished by the Division Bench, would
squarely apply. The Division Bench has, in fact, gone on
to state that in the case of nomination, the nominating
authority would have the power to remove the nominee
at its pleasure and having regard to this ratio laid down
by the Division Bench, the State Government was
justified in removing the petitioner."
This Court in the case of DR.C.JAGADEESH VS. STATE9,
following the afore-quoted judgments of the Apex Court, other High
Courts and of this Court, has held as follows:
"20. On a coalesce of the judgments rendered by
the Apex Court, the Division Bench of this Court and
that of the High Court of Bombay and the co-ordinate
benches of this Court, what would unmistakably emerge
is, a nominee qua his nomination cannot have an
indefeasible right to continue. It is at the pleasure of the
Government, which can be withdrawn, as is done in the case
at hand. Though the submissions made by the respective
learned counsel representing the petitioners would seem
acceptance in the first blush, a deeper delving into the matter
would clearly indicate that no right of the petitioners is taken
away, for this Court to step in, in exercise of its jurisdiction
under Article 226 of the Constitution of India and obliterate
the action impugned. The nomination of the petitioner in
W.P.No.10994 of 2023 to the Central Relief Committee is
subject to pleasure of the State Government, as ordained in
the statute itself. Therefore, the petitioner therein, on the
score that he has become a Chairman does not have any right
to so continue, on the score that the Chairman is an
appointment and the members are nominated. The Chairman
is appointed from out of the nominees. Therefore, the
Chairman cannot derive a higher right contending that it is an
appointment and a member is a nominee. He is a nominee,
appointed as a Chairman, amongst the nominees. Therefore,
9
W.P.No.10837 of 2023 & connected matter, disposed on 05th April, 2024
56
the birthmark of the petitioner as a nominee does not get
effaced merely because he is appointed as the Chairman.
Therefore, the said writ petition, on the face of it, does not
merit any consideration and is to be dismissed.
21. Petitioners in Writ Petition No.10837 of 2023 are
nominated initially for a period of 3 years or until further
orders, whichever would be earlier. The words 'until further
orders' is removed. The removal of the words 'until further
orders' does not mean that it would be a nomination for a
period of 3 years, which would be inflexible. A nomination is a
nomination. A nomination cannot be equated to an
appointment. Any statutorily recognized tenure to a
nominee would derive a right to such nominee, not a
term fixed in the order of nomination, which would
always be at the pleasure of the State. No doubt, the
nominations cannot be whimsically or arbitrarily,
without according any reasons, be denominated. Those
are cases which emerge from a fixed statutory tenure,
despite it being a nomination, which is not the fact in
the case at hand."
(Emphasis supplied)
On a blend of the judgments rendered by the Apex Court,
Division Bench of this Court, the High Court of Bombay, coordinate
benches of this Court and this Court as quoted hereinabove, what
would unmistakably emerge is a nominee qua his nomination
cannot have an indefeasible right to continue when it is at the
pleasure of the Government, which can be withdrawn at any time.
13. The stark difference, in the case at hand, is that the
appointment of the petitioner is not a nomination. It is an
appointment under the Rules - Rule 26. Though the appointment
57
would indicate that it is for a period of three years or until further
orders, it would not mean that the State can act arbitrarily. The
arbitrariness is so palpable and demonstrable in the case at hand,
the appointment of the petitioner which cannot be termed to be
illegal by any means or contrary to the statute, is taken away by
a stroke of pen, not in a month, or a year, but within 24
hours. If this cannot be termed to be an arbitrary action, on the
part of the State, I fail to understand what else can be.
14. Submissions galore from the hands of the learned counsel
appearing for the third respondent that there is no proceeding
drawn to appoint the petitioner as Additional District Government
Pleader. The State Government has placed before the Court entire
note sheet for its perusal. The note sheet is replete with
proceedings drawn in favour of the petitioner on his application. The
only change that comes about is by the following paragraphs of the
note sheet dated 29.10.2025:
".... .... ....
17) )ೕ ಸು*ೕಲ ಅಣ+,ಾ-, ಸಂಕ, ವ/ೕಲರು, (KAR-4832/1999).
3656/A/2/BC, ಸಂಕ ಗ , ಅಥ1, 2ೆಳ3ಾ# 4ೆ ಇವರನು ಕ ಾ=ಟಕ ಾನೂನು ಅ' ಾ7ಗಳ
( ೇಮ ಾ ಮತು ?ೇ@ಾ ಷರತುಗಳB), *ಯಮಗಳB 1977 ರ *ಯಮ 26(2) ರನ ಯ 2ೆಳ3ಾ#
58
4ೆಯ, ಅಥ1 11 ೇ ೆಚು6ವ7 4ಾ, ಮತು ಸತ ಾ ಾಲಯ, (9:;ಂ<-ಅಥ1) ಇ ನ ಅಪರ 4ಾ
ಸ ಾ=7 ವ/ೕಲರ ಹು ೆ3ೆ ೇಮಕ Vಾ] I ಾಂಕ: 28.10.2025ರಂದು ೊರ]9ರುವ ಆ ೇಶವನು
Vಾಪ=]9, ಅಥ1 #dಾನ ಸFಾ eೇತ ದ Vಾನ Uಾಸಕರ ೋ7 ೆಯಂLೆ ) ೕ ].a. ಠಕWಣ+ವರ,
ಾ ಯ@ಾIಗಳB, ಅಥ1 ಇವರನು Vಾನ 11 ೇ ೆಚು6ವ7 4ಾ ಮತು ಸತ ಾ ಾಲಯ, 2ೆಳ3ಾ#
(9:;ಂ<-ಅಥ1) ಇ 3ೆ ಅಪರ 4ಾ ಸ ಾ=7 ವ/ೕಲರ ಹು ೆ3ೆ ೇಮಕ Vಾ] ಮರು ಆ ೇಶ
ೊರ]ಸುವಂLೆ Vಾನ ಾನೂನು, ಾ ಯ ಮತು Vಾನವ ಹಕುWಗಳ ಇ4ಾXಾ ಸfವರು :ಪ-1 13ರ
ಅ ೇ)9ರುLಾOೆ.
18) ಈ G ೆ 4ೆಯ ) ೕ ಸು*ೕಲ ಅಣ+,ಾ- ಸಂಕ, ವ/ೕಲರು, (KAR-4832/1999) .
3656/A/2/BC, ಸಂಕ ಗ , ಅಥ1, 2ೆಳ3ಾ# 4ೆ ಇವರನು ಕ ಾ=ಟಕ ಾನೂನು ಅ' ಾ7ಗಳ
( ೇಮ ಾ ಮತು ?ೇ@ಾ ಷರತುಗಳB), *ಯಮಗಳB 1977 ರ *ಯಮ 26(2) ರ?ೆಯ 2ೆಳ3ಾ# 4ೆಯ
ಅಥ1 11 ೇ ೆಚು6ವ7 4ಾ ಮತು ಸತ ಾ ಾಲಯ, (9:;ಂ<-ಅಥ1) ಇ ನ ಅಪರ 4ಾ ಸ ಾ=7
ವ/ೕಲರ ಹು ೆ3ೆ ೇಮಕ Vಾ] I ಾಂಕ: 28.10.2025 ರಂದು ೊರ]9ರುವ ಅ'ಸೂಚ ೆಯನು
Gಂಪ`ೆದು Vಾನ ಾನೂನು, ಾ ಯ ಮತು Vಾನವ ಹಕುWಗಳ ಇ4ಾXಾ ಸfವರು :ಪ-1 13ರ
ಅ ೇ)9ರುವನCಯ ) ೕ ]. a. ಠಕWಣ+ವರ, ವ/ೕಲರು, ) ೕOಾಮ ನಗರ, #ಕ ಮಪQರ, ಅಥ1 Lಾಲೂಕು
591304, 2ೆಳ3ಾ# 4ೆ ಇವರನು 2ೆಳ3ಾ# 4ೆಯ 11 ೇ ೆಚು6ವ7 4ಾ ಮತು ಸತ ಾ ಾಲಯ
(9:;ಂ< - ಅಥ1) ಇ ನ ಅಪರ 4ಾ ಸ ಾ=7 ವ/ೕಲರ ಹು ೆ3ೆ ಕ ಾ=ಟಕ ಾನೂನು ಅ' ಾ7ಗಳ
( ೇಮ ಾ ಮತು ?ೇ@ಾ ಷರತುಗಳB) *ಯಮಗಳB, 1977ರ *ಯಮ 26(2)ರನCಯ ಪ ದತ@ಾದ
ಅ' ಾರವನು ಚ4ಾE9, ಹು ೆಯ ಪ Fಾರವನು ವG9 ೊಳBHವ I ಾಂಕIಂದ Jಾ73ೆ ಬರುವಂLೆ
ಮೂರು ವಷ=ದ ಅವ'3ೆ ಅಥ@ಾ ಮುಂIನ ಆ ೇಶದವOೆ3ೆ ಇ@ೆರಡರ ಾವQದು Rದ4ೋ
ಅ ಯವOೆ3ೆ ೇSಸಲು ಮತು I ಾಂಕ: 28.10.2025ರಂದು ೊರ]9ರುವ ಅ'ಸೂಚ ೆಯನು
Gಂಪ`ೆಯಲು ಕರಡು ಅ'ಸೂಚ ೆಯನು ಅನುRೕದ ೆ3ಾ ಕಡತವನು ಸ ಸ4ಾ ೆ.
ಸG/- 29/10/25
(ಆI ಾOಾಯಣ)
ಸ ಾ=ರದ ಅ'ೕನ ಾಯ=ದ)=
ಾನೂನು, ಾ ಯ ಮತು Vಾನವ
ಹಕುWಗಳ ಇ4ಾXೆ (ಆಡYತ-2)"
(Emphasis added)
59
The appointment of the petitioner is made on 28-10-2025.
The Minister directs that the appointment should be withdrawn and
the third respondent should be appointed. What follows
immediately is, withdrawal of the appointment of the petitioner and
appointment of the 3rd respondent by the impugned order. The
submission is that the petitioner's application was long after the
application submitted by the 3rd respondent. This is again contrary
to the record. The application of the 3rd respondent is said to be on
29-04-2025, which remained an application till it was processed in
the aforesaid paragraph of the note sheet. The petitioner's
application is in the year 2024; it is on 09-10-2024. All the
proceedings for appointment have been drawn on the application of
the petitioner and not of the 3rd respondent. The submission of the
learned counsel for the 3rd respondent that his application earlier
submitted is contrary to the record and the submission that the
application of the petitioner was not processed, is again contrary to
the record.
15. The learned counsel for the 3rd respondent relies on a
judgment rendered by the coordinate Bench in SHANTREDDY v.
60
STATE OF KARNATAKA - W.P.No.202928 of 2023, decided on
21-12-2023 in which the coordinate bench rejects an identical plea
of a Government Pleader to continue in the post. The said
judgment is distinguishable on facts of the case at hand without
much ado. The petitioner therein had assumed charge of the post
on 01-03-2023 and was entitled to continue upto 01-03-2026. He
was removed on 07-10-2023, which was 7 months after his
appointment. The coordinate bench holds that this by no means,
held to be arbitrary. It was a pleasure term and the incumbent had
to give way to another person. Therefore, the said judgment would
not become applicable to the facts obtaining in the case at hand.
The State has also placed plethora of judgments on the issue of
pleasure and its power to terminate a nominee or de-nominate any
person, appoint a law officer or remove a law officer. All the said
judgments are distinguishable again without much ado.
16. In the case at hand, the appointment made after
due process, was extinguished the very next day, not for
administrative exigency, not for legal infirmity, but solely on
account of a sudden change of mind, resting on a tippani
61
from the Minister. If such caprice is permitted judicial
shelter, then the doctrine of pleasure would transmute into
an instrument of unbridled executive whim, reducing the
Constitutional safeguards to a rhetoric. This Court, cannot
be a mute spectator to such executive freewheeling. Judicial
intervention becomes not merely appropriate, but imperative
in such cases.
17. In the tapestry of adjudication, some cases glide
quietly into the annals of routine, while others stand as
reminders of the first principle. The subject petition, is a
firm reminder of those first principles, that public power
even when draped in the language of "pleasure" is never
licensed to stray into arbitrariness. The Constitution is ever
watchful, and ever restraining. The events, in the case at hand,
that unfolded over a fleeting span of 24 hours, reveal more
than administrative irregularity, it destroys delicate balance
between the executive prerogative, and the Constitutional
discipline. When State action shifts this swiftly and without
explanation, the vital question is, is this discretion or is it
62
arbitrariness, and an unequivocal and emphatic answer is "the
action is arbitrary". The appointment made is on one day,
and undone the next day, within a span of just 24 hours. The
petitioner so appointed, as Government Pleader, assumed charge,
appeared in the Court and was abruptly removed without reason
and the 3rd respondent is appointed, all in 24 hours. Perhaps, this
is first case in the annals of judicial review of such gross arbitrary
exercise of power; in 24 hours the State changes its own orders, to
its whim.
The State must remember that, Article 14 of the
Constitution of India is that golden thread that is woven
through the entire fabric of Constitution of India and every
bead of the State action should pass through that golden
thread, any action of the State cannot be arbitrary.
63
18. For the aforesaid reasons, the following:
ORDER
(i) Writ Petition is allowed.
(ii) Notification dated 29-10-2025 appointing the 3rd
respondent as Additional District Government Pleader is
obliterated and the appointment of the petitioner as
such in terms of the order dated 28-10-2025 is
restored.
(iii) The petitioner shall be entitled to all consequential
benefits that would flow from this order.
Sd/-
(M.NAGAPRASANNA)
JUDGE
nvj
CT:MJ
