Delhi High Court
M.L. Sondhi vs Union Of India And Ors. on 31 January, 2002
Equivalent citations: 97(2002)DLT99, 2002(63)DRJ482, 2003(1)SLJ19(DELHI)
Author: Vikramajit Sen
Bench: Vikramajit Sen
JUDGMENT Vikramajit Sen, J.
1. The Petitioner has laid a challenge to the withdrawal, on 18.7.2001, by the Union of India of his nomination as the Chairman of the Indian Council for Social Science Research (for short ICSSR). Although no reasons were given in this impugned order some were spelt out in the Government Press Note of the same date. It has been stated that the Government had received numerous complaints regarding the functioning of the ICSSR from Members of its Council. These complaints included non submission of accounts and budget, the undertaking of a number of new projects without the approval of the Council, upgradation of pay scales of the staff of the Council, non observation of quorum and rules, injudicious spending of funds provided by the Government resulting in a resource crunch etc. Predicated on these complaints the Government found that there had been a failure of the administrative machinery in the ICSSR. The Petitioner, having allegedly failed to abide by the Ministry's direction, and having engaged in malicious and false propaganda in the media had lost the confidence of members of the Council. For these considerations the Government had, in exercise of the powers under General Clauses Act, 1897, decided to withdraw the nomination of the Petitioner.
2. The Petitioner has ascribed the action of the Government to his refusal to be subservient to the political and ideological diktats of some members of the ruling party. His grievance is that his nomination was withdrawn so as to replace him with some other pliable Chairman who is partisan to the agenda of the Government, or toe its line.
(A) Is the writ petition maintainable?
3. It was strongly contended by Shri P.P. Rao, learned Senior Counsel appearing for the temporary Chairman of ICSSR that since it was not "State" as contemplated in Article 12 of the Constitution of India, the writ petition is not maintainable. On a specific query addressed to Shri Harish Salve, the Solicitor General, as to whether this view is also subscribed to by the Union of India (Respondent No. 1), he has sagaciously parried the question by stating that since the Union of India has been imp leaded, this objection is rendered otiose. In the Written Submissions settled by him, it has been unequivocally contended that a writ can issue against the ICSSR. Mr. Rao's contention is that Respondent No. 1 has not exercised any Executive power under the Constitution or any Act of Parliament or any statutory regulation. The power exercised by Respondent No. 1 is derived from the Memorandum of Association and the Rules of the ICSSR, which is a Society registered under the Societies Registration Act. This power could have been conferred on any person even other than the Government of India. Therefore, when the Government passed the impugned order it was acting as one of the functionaries of the Society in consonance with the Memorandum of Association and the Rules. Such exercise of power even by the Government cannot be questioned in a writ petition unless it is held that the Council itself is "State" within the meaning of Article 12 of the Constitution. It was also Mr. Rao's contention that ICSSR is not a State as it does not discharge any sovereign functions. It does not impart education as an instrumentality of the State in the discharge of Constitutional responsibilities of the State. It is contended that the various Clauses in the Memorandum of Association show that the Government's role is advisory and its main task is to review the progress of social science research, to sponsor research programme in science and coordinate research activities in the said field, which could have been done by any charitable trust or foundation. The ICSSR, an autonomous institution, consisting of several members of the Council, receives grants from the Government as well as from three other sources. Reliance is placed by Mr. Rao on Hardwarilal v. G.D. Tapase, , Bhuri Nath and Ors. v. State of J & K and Ors., , Sabhajit Tewary v. Union of India and Ors., , Tekraj Vasandi Alias K.L. Basandhi v. Union of India and Ors., , Chander Mohan Khanna v. National Council of Educational Research and Training and Ors., .
4. On this aspect of the case Mr. Shanti Bhushan, learned Senior counsel appearing on behalf of Petitioner, has relied on Nagri Pacharini Sabha v. Vth Additional Distt. & Sessions Judge, Varanasi, (1991) Supp. 2 SCC 36, Sridhar v. Nagar Palika Jaunpur, , Shri Anadi Mukta Sadguru S.M.V.S.J.M.S. Trust v. V.R. Rudani, , All India Sainik Schools Employees' Association v. defense Minister-cum-Chairman Board of Governors, Sainik Schools Society, New Delhi and Ors., (1989) Supp. I SCC 205 and Francis John v. Director of Education, .
5. A small objection as to the maintainability of a writ petition challenging the dismissal of a Research Professor from the Centre for Policy Research had arisen in C.W.P. 5928/2000 entitled Brahma Chellaney v. Union of India and Ors., decided on 18th January, 2002. The ICSSR was also a Respondent therein. The precedents mentioned by both sides had substantially also been cited in that writ petition. I had observed that if each of these precedents were to be discussed that judgment would become needlessly and avoidably prolix, especially since the Restatement of the law is readily available in terms of the decision of the Apex Court in U.P. State Co-operative Land Development Bank Ltd. v. Chandra Bhan Dubey and Ors., . In these circumstances it would be most fruitful to reproduce the observations of the Hon'ble Supreme Court in extensio, since an answer to the gravamen of this contention can be found therein:-
"The language of Article 226 does not admit of any limitation on the powers of High Court for the exercise of jurisdiction there under though by various decisions of this Court with varying and divergent views it has been held that jurisdiction under Article 226 can be exercised only when body or authority, decision of which is complained, was exercising its power, in the discharge of public duty and that writ is a public law remedy. In Rohtas Industries Ltd. v. Rohtas Industries Staff Union, it was submitted before the Constitution Bench that an award under Section 10-A of the Industrial Disputes Act, 1947 savours of a private arbitration and was not amenable to correction under Article 226 of the Constitution. The Court said as under (at P. 429 of AIR):
"The expansive and extraordinary power of the High Court under Article 226 is as wide as the amplitude of the language used indicates and so can affect any person - even a private individual - and be available for any (other) purpose - even one for which another remedy may exist. The amendment to Article 226 in 1963 inserting Article 226(1-A) reiterates the targets of the writ power as inclusive of any person by the expressive reference to "the residence of such person". But it is one thing to affirm the jurisdiction, another to authorise its free exercise like a bull in a china shop. This Court has spelt out wise and clear restraints on the use of this extraordinary remedy and High Courts will not go beyond those wholesome inhibitions except where the monstrosity of the situation or other exceptional circumstances cry for timely judicial interdict or mandate. The mentor of law is justice and a potent drug should be judiciously administered. Speaking in critical retrospect and portentous prospect, the writ power has, by and large, been the people's sentinel on the qui vive and to cut back on or liquidate that power may cast a peril to human rights. We hold that the award here is not beyond the legal reach of Article 226, although this power must be kept in severely judicious leash."
In Life Insurance Corporation of India v. Escorts Ltd. another Constitution Bench had to say as under (at Pp. 1423 and 1424 of AIR):
"It was, however, urged by the learned counsel for the company that the Life Insurance Corporation was an instrumentality of the State and was, therefore, debarred by Article 14 from acting arbitrarily. It was, therefore, under an obligation to state to the Court its reasons for the resolution once a rule nisi was issued to it. If it failed to disclose its reasons to the Court, the Court would presume that it had no valid reasons to give and its action was, therefore, arbitrary. The learned counsel relied on the decisions of this Court in Sukhdev Singh, : Maneka Gandhi ; International Airport Authority and Ajay Hasia . The learned Attorney General, on the other hand, contended that actions of the State or an instrumentality of the state which do not properly belong to the field of public law but belong to the field of private law are not liable to be subjected to judicial review. He relied on O'Reilly v. Mackman, (1982 (3) All ER 1124); Davy v. Spelthone (1983) (3) All ER 278); I Congress del Partido, (1981)(2) All ER 1064; R.V. East. Berkshire Health Authority (1984 (3) All ER 425) and Radhakrishna Aggarwal v.
State of Bihar . While we do find considerable force in the contention of the learned Attorney General it may not be necessary for us to enter into any lengthy discussion of the topic, as we shall presently see. We also desire to warn ourselves against readily referring to English cases on questions of Constitutional Law, Administrative Law and Public Law as the law in India in these branches has forged ahead of the law in England, guided as we are by our Constitution and uninhibited as we are by the technical rules which have hampered the development of the English Law. In Shri Anandi Mukta S.M.V.S.S.J.M.S. Trust v. V.R. Rudani a two Judge Bench of this Court was considering the question of "issue of a writ of mandamus or writ in the nature of mandamus or any other appropriate writ or direction or order directing the appellant-Trust and its Trustees to pay to the respondents their due salary and allowances etc. in accordance with the Rules framed by the University and to pay them compensation under certain Ordinance of the University". The High Court before which the issue was raised held in favor of the respondents. This Court noted that the essence of the attack on the maintainability of the writ petition under Article 226 by the appellant was that it being a Trust registered under the Bombay Public Trust Act was managing the college where the respondents were employed was not amenable to writ jurisdiction of the High Court. In other words, the contention was that Trust being a private institution against which no writ of mandamus could be issued. In support of the contention, the appellant referred two decisions of this Court: Executive Committee of Vaish Degree College, Shamli v. Lakshmi Narain, and Deepak Kumar Biswas v. Director of Public Instructions, . This Court, however, distinguished those two decisions and said that the facts before it were different and that there was no plea for specific performance of contractual service by the respondents now in the case before it. Respondents were not seeking a declaration that they be continued in service and they were not asking for mandamus to put them back into the college. But they were claiming only the terminal benefits and arrears of salary payable to them. The question thus was whether the Trust could be compelled to pay by writ of mandamus? The Court noted the observations of Subha Rao, J. in Dwarkanath, HUF v.
I.T.O. Special Circle, Kanpur, :
"This article is couched in comprehensive phraseology and it ex facie confers a wide power on the High Courts to reach injustice wherever it is found. The Constitution designedly by used a wide language in describing the nature of the power, the purpose for which and the person or authority against whom it can be exercised. It can issue writs in the nature of prerogative writs as understood in England: but the scope of those writs also is widened by the use of the expression "nature", for the said expression does not equate the writs that can be issued in India with those in England, but only draws an analogy from them. That apart, High Courts can also issue directions, orders or writs other than the prerogative writs. It enables the High Courts to mould the reliefs to meet the peculiar and complicated requirements of this country. Any attempt to equate the scope of the power of the High Court under Article 226 of the Constitution with that of the English Courts to issue prerogative writs is to introduce the unnecessary procedural restrictions grown over the years in a comparatively small country like England with a unitary form of Government into a vast country like India functioning under a federal structure. Such a construction defeats the purpose of the article itself."
The Court also noted the observations of this Court in Praga Tools Corporation v. Sh. C.A. Imanual as under (at Pp. 1309-1310) of AIR):
"It is, however, not necessary that the person or the authority on whom the statutory duty is imposed need be a public official or an official body. A mandamus can issue, for instance, to an official of a society to compel him to carry out the terms of the statutes under or by which the society is constituted or governed and also to companies or corporations to carry out duties placed on them by the statutes authorizing their undertakings. A mandamus would also lie against a company constituted by a statute for the purpose of fulfillling public responsibility. (Cf. Halsbhury's Laws of England, 3rd Edn. Vol. II p. 52 and onwards).
The Court then said at p. 1613):
"The term "authority" used in Article 226 in the context, must receive a liberal meaning unlike the term in Article 12. Article 12 is relevant only for the purpose of enforcement of fundamental rights under Article 32. Article 226 confers power on the High Courts to issue writs for enforcement of the fundamental rights as well as non-fundamental, rights. The words "any person or authority" used in Article 226 are, therefore, not to be confined only to statutory authorities and instrumentalities of the State. They may cover any other person or body performing public duty. The form of the body concerned is not very much relevant. What is relevant is the nature of the duty imposed on the body. The duty must be judged in the light of positive obligation owned by the person or authority to the affected party. No matter by what means the duty is imposed, if a positive obligation exists mandamus cannot be denied."
And finally it said as under at Pp. 1613):
"Here again we may point out that mandamus cannot be denied on the ground that the duty to be enforced is not imposed by the statute. Commenting on the development of this law. Professor, De Smith states:
To be enforceable by mandamus a public duty does not necessarily have to be one imposed by statute. It may be sufficient for the duty to have been imposed by charter, common law, custom or even contract. "We share this view. The judicial control over the fast expanding maze of bodies affecting the rights of the people should not be put into watertight compartment. It should remain flexible to meet the requirements of variable circumstances. Mandamus is a very wide remedy which must be easily available 'to reach injustice wherever it is found'. Technicalities should not come in the way of granting that relief under Article 226. We, therefore, reject the contention urged for the appellants on the maintainability of the writ petition."
In Air India Statutory Corporation v.
United Labour Union, this Court speaking through a Bench of three-Judges said (at p. 469 of AIR SCW):
"The public law remedy given by Article 226 of the Constitution is to issue not only the prerogative writ provided therein but also any order or direction to enforce any of the fundamental rights and "for any other purpose." The distinction between public law and private law remedy by judicial adjudication gradually marginalised ad became obliterated. In lic v. Escorts Ltd. , this Court in paragraph 102 had pointed out that the difficulty will lie in demarcating the frontier between the public law domain and the private law field. The question must be decided in each case with reference to the particular action, the activity in which the State or the instrumentality of the State is engaged when performing the action, the public law or private law character of the question and the host of other relevant circumstances. Therein, the question was whether the management of LIC should record reasons for accepting the purchase of the shares? It was in that fact situation that this Court held that there was no need to state reasons when the management of the shareholders by resolution reached the decision. This Court equally pointed out in other cases that when the State's power as economic power and economic entrepreneur and allocator of economic benefits is subject to the limitations of fundamental rights, a private Corporation under the functional control of the State engaged in an activity hazardous to the health and safety of the community, is imbed with public interest which the State ultimately purposes to regulate exclusively on its industrial policy. It would also be subject to the same limitations as held in M.C. Mehta v. Union of India, ."
In view of the fact that control of the State Government on the appellant is all pervasive and the employees had statutory protection and, therefore, the appellant being an authority or even instrumentality of the State would be amendable to writ jurisdiction of the High Court under Article 226 of the Constitution. It may not be necessary to examine any further the question if Article 226 makes a divide between public law and private law. Prima facie from the language of the Article 226 there does not appear to exist such a divide. To understand the explicit language of the Article it is not necessary for us to rely on the decision of English Courts as rightly cautioned by the earlier Benches of this Court. It does appear to us that Article 226 while empowering the High Court for issued of orders or directions to any authority or person does not make nay such difference between public functions and private functions. It is not necessary for us in this case to go into this question as to what is the nature, scope and amplitude of the writs of habeas corpus, mandamus, prohibition, quo warranto and certiorari. They are certainly founded on the English system of jurisprudence. Article 226 f the Constitution also speaks of directions and orders which can be issued to any person or ]authority including in appropriate cases, any Government. Under Clause (1) of Article 367 unless the context otherwise requires, the General Clauses Act, 1897, shall subject to any adaptations and modifications that may be made therein under Article 372 apply for the interpretation of the Constitution as it applies for the interpretation of an Act of the Legislature of the dominion of India. "person" under Section 2(42) of the General Clauses Act shall include any company, or association or body of individuals, whether incorporated or not, Constitution is not a statute. It is a fountain head of all the statutes. When the language of Article 226 is clear, we cannot put shackles on the High Courts to limit their jurisdiction by putting an interpretation on the words which would limit their jurisdiction. When any citizen or person is wronged the High Court will step in to protect him be that wrong be done by the State, an instrumentality of the State, a company or a co-operative society or association or body of individuals whether incorporated or not, or even an individual. Right that is infringed may be under Part III of the Constitution or any other right which the law validly made might confer upon him. But then the power conferred upon the High Courts under Article 226 of the Constitution is so vast, this Court has laid down certain guide-lines and self-imposed limitations have been put there subject to which High Courts would exercise jurisdiction, but those guide-lines cannot be mandatory in all circumstances. High Court does not interfere when an equally efficacious alternative remedy is available or when there is established procedure to remedy a wrong or enforce a right. A party may not be allowed to by-pass the normal channel of civil and criminal litigation. High Court does not act like a proverbial 'bull in china shop' in the exercise of its jurisdiction under Article 226."
6. In All India Sainik Schools Employees case (supra) the Apex Court has placed the School in the category of 'State' within the meaning of Article 12 of the Constitution. It's decision was formed on the foundation of the School receiving its entire funding from the Government. It would be too simplistic to hold, as has been contended by Mr. Rao, that the decision would not apply since the students were being prepared for the purpose of feeding the National defense College. A Three-Judge Bench, presided over by the Chief Justice of the Hon'ble Supreme Court in Francis John's case (supra) has pointed that even a private school "which receives aid form the Government under the Grant-in-Aid Code, which is promulgated not merely for the benefit of the management but also for the benefit of the employees in the School for whose salary and allowances the Government was contributing form the public funds under the Grant-in-Aid Code cannot escape from the consequences flowing for the breach of the Code and particularly where the Director of Education who is an instrumentality of the State is participating in the decision making process". In Kumari Shrilekha Vidyarthi and Ors. v. State of U.P. and Ors. , the Hon'ble Supreme Court found that the District Government Counsel were holding posts of a public nature and their alleged removal contrary to Article 14 of the Constitution justified judicial review.
7. Reliance of Mr. Rao on Tek Raj Vasandi's case (supra) is arguable misplaced as it appears to me to militate against the Respondent's stand. Its ratio, is that a Society, registered under the Societies Registration Act, may be treated as 'State' if either the governmental business is undertaken by the Society or what is expected to be the public obligation of the State is undertaken to be performed as a part of the Society's function. In that case it was found on facts that the Institute of Constitutional and parliamentary Studies did not discharge such functions.
8.Significantly, the Constitution Bench of the Apex Court in Unni Krishnan, J.P. and Ors. v. State of Andhra Pradesh and Ors., has observed that the term 'authority' used in Article 226 of the Constitution must receive a liberal meaning, unlike in Article 12 of the Constitution, since the latter was relevant only for the purpose of enforcement of Fundamental Rights. The words 'any person or authority' used in Article 226 of the Constitution was held not to be confined only to statutory authorities and instrumentalities of the State but to all persons or bodies performing a public duty. It was held that educational institutions discharge public duties irrespective of their receiving aid from the State. As has been expressed by the Hon'ble Supreme Court itself, 'spectacular advances' have been made in the law pertaining to the writ jurisdiction of the Court and, therefore, referring back to cases of comparative antiquity should be abjured. It prolongs hearings, needlessly lengthens judgments and thereby delays the dispensation of justice.
9. It is ironic that the ICSSR, which was also a Respondent in Brahma Chellaney's case (supra) had adopted the position that that writ petition was maintainable. This stand was in the face of a strenuous challenge on behalf of the contesting Respondents in that petition, to the effect that a writ ought not to issued against the CPR, which could not be considered as 'State' or as a person falling in the other category of 'person' or 'authority' contemplated by Article 226 of the Constitution. A caveat was no doubt astutely lodged in those proceedings that the ICSSR ought not to be viewed as 'State' under Article 12 of the Constitution. The flowing extracts from the Written Submissions filed on behalf of ICSSR in the above mentioned decided writ petition being germane to this issued are reproduced in order to fully appreciate whether the ICSSR has a public character about it:
".....It is submitted that the ICSSR was established in the year 1969 with the objective to support and sponsor purposive and meaningful research in social science in India. The ICSSR is registered as a society under the Societies Registration Act, 1860.
It is submitted that the ICSSR is fully funded by the Government of India (Ministry of Human Resource Development) by way of grant. In turn, the ICSSR provides maintenance and developments grants to 27 Research Institutes spread all over the country. The other important programmes of the ICSSR are grant of fellowships, implementation of research projects, bring out publications in the field of social science. As part of the international collaboration, the ICSSR undertakes Cultural Exchange Programmes (C.P.E) with various countries in the field of Social Science. The ICSSR also has a documentation unit known as 'National Social Science Documentation Centre' at New Delhi. Sponsoring of 27 research institutes outside the scope of the University Grants Commission has been one of the major programmes of the ICSSR in enlarging the base of social science knowledge, improving the quality of research and promoting the inter-disciplinary perspective. These institutes constitute an important mechanism in implementing the ICSSR's policy of disbursal of research talents and building up of research capabilities in different regions of the country, particularly in the areas where social science research is not yet well developed.
The respondent No. 2 - Centre for Policy Research (C.P.R.) is one of the research institutes funded by the ICSSR. The C.P.R. is registered as a Society under the Societies Registration Act, 1860. The ICSSR provides maintenance and development grant to respondent No. 2 - C.P.R. Respondent No. 2 was covered under the programme of ICSSR for the year 1977-78. Thereafter the maintenance grant is provided to its core staff. Infact, the ICSSR gives 50% of the total expenditure of respondent No. 2 - C.P.R. as financial assistance. ....."
10. From a perusal of these digested arguments proffered on behalf of ICSSR in Brahma Chellaney's case (supra) the conclusion appears to he inescapable that ICSSR has a public personality and that its functions are public in character. The undertones which are broodingly omnipresent in the present legal wrangle is that the endeavor of the prevailing political regime is to formulate and disseminate a new approach and understanding to history and social sciences. This is sought to be achieved through the vehicle of the ICSSR but the road-block that was encountered by the regime is in the personage of the petitioner. Even if this dispute is made to recede into the shadows, it remains uncontrovertably obvious that the primary function of the ICSSR is to influence current social, historical and political thought on the national, as well global level. Its horizons are far more pervasive than that of an individual educational institution the role of which in comparison is restricted to its own students. The pre-eminent source of the funding of the ICSSR is from the State and even if there are three other benefactors it would not change the case. A perusal of the Memorandum of Association of ICSSR will manifest its public character. Clause 3 of Memorandum of Association states that of its many objects some of the are to review the progress of social science research and to given advice to its users in Government or outside; to advise the Government on all such matters pertaining to social science research as may be referred to ti from time to time, including collaborative arrangements in social science research with foreign agencies; and generally to take all such measures as may be found necessary form time to time to promote social research and its utilisation in the country. Clause 4 of the Memorandum of Association of ICSSR likewise show that the ICSSR is the umbrella under which numerous educational institutions exist. The ICSSR was envisioned as the encouragement both for fundamental and applied research in social sciences, which it was expected to promote in Universities even outside India. Clause 8 of the Memorandum of Association of ICSSR empowers the Government of India to give directives to the ICSSR in respect of its policies and programmes especially in those spheres which have not been mentioned in the Memorandum. Therefore, it is not a conundrum whether the ICSSR operates and exists under the pervasive control of the Government. In its Written Submissions, the Union of India has specifically contended that "Clause 7 and 8 of its Memorandum shows all pervasive control of the Government over its functioning, policies and programmes. Rule 2(b) of the Rules of the Society provides that the Chairman of the Council shall be appointed by the Government of India. Rule 3 provides that the Council shall consist, amongst others, of an eminent social scientist nominated by the Government of India." However, even if this remains a controversy, it can be steered around bearing in mind that regardless of whether there is all-pervasive control of the State, the ICSSR has a public personality and discharges a vital and all encompassing public duty. Without hesitation and equivocation I am satisfied that the ICSSR falls within the category of 'person' as envisaged in Article 226 of the Constitution.
(B) Whether the Memorandum of Association and Rules of the ICSSR permit or prohibit the withdrawal of nomination?
11. The Rules of the ICSSR applicable to the Chairman of the Council may now be reflected upon. Rule 3 of the Rules of the Society empowers the Government of India to nominate an eminent social scientist as the Chairman. Rule 13 thereof states that the term of office of the Chairman shall be for three years and that he shall be eligible for re-employment but not for more than two consecutive terms. The proviso to this Rule is important. It enunciates that notwithstanding the expiry of the period of three years, the Chairman shall continue in office until his successor is appointed and enters upon his office. Rule 7 of the Rules of the Society has a similar proviso pertaining to members of the Council. It is in these circumstances that Mr. Shanti Bhaushan has contended that the Constitution of ICSSR in terms indicated that the Chairman will continue in that office even after the expiry of the tenure, till a successor assumes the office. It does not envisage the removal of the Chairman before the expiry of his terms by the withdrawal of his nomination by the Government. He has fortified his argument by reference to Rule 8 of the Rules of the Society since even a casual vacancy in the Council or its Committees would arise, inter alia, only on his conviction in a criminal offence involving moral turpitude. It could have been mentioned in this very rule that a casual vacancy would occur on the withdrawal by the Government of its nomination. The absence is, no doubt, conspicuous. However events such as have come to pass in the facts of this case cannot always be anticipated. It will scarcely be surprising to find their introduction into the Rules of the ICSSR shortly hereafter. Hence, Mr. Salve's contention that the Constitution of the ICSSR positively permits the withdrawal of its nomination cannot be accepted. I am unable to appreciate how Mr. Rao could possible contend that the power to withdraw nomination is conferred on the Government of India by virtue of Clause 8(b) of the Memorandum of Association and Rules of the Society. This Rule states that a casual vacancy may arise on a resignation being addressed to the Member Secretary in writing, and its being accepted by the Council. Such an action emanates from the nominee and, therefore, cannot empower the nominator to cancel the nomination on his own initiative. Furthermore, the resignation may well be accepted or rejected by the Council. Keeping in perspective the arguments of the Solicitor General, the Government of India would but subscribe to such an argument as would fetter this powers in this regard, making it subject to the wishes, wisdom or wiles of the Council itself. An unqualified and unfettered power to nominate cannot obviously be circumscribed, curtailed and circumvented in this manner. It militates against the argument itself and supports the contention of the petitioner that consequent upon a nomination being made, the Government of India is devoid of the absolute power of recalling it. The petitioner has averred that a divergence between his opinion and vision and that of the Government cannot be considered sufficient cause for his removal. Reliance is placed on the Resolution of the Government of India dated 14th October, 1999 wherein the petitioner was nominated as the Chairman for a period of three years from the date of his taking over charge.
12. In my view, although the Memorandum of Association and Rules do not specifically state that a nomination once made cannot be withdrawn, but its tenor is that the nomination would normally not be interfered with or brought to a precipitate end. It is difficult to adhere to the view advocated by Mr. Salve that although there is a qualitative difference between 'vacation' and `removal' since only the former has been adumbrated, the latter must be construed as having been left unfettered. Given the fact that these eventualities cannot be equated, and as 'removal' is an extreme measure, it ought to have explicitly been dealt with in the Rules of the ICSSR. The immediately apparent contrast is to be found in the case of Krishna s/o Bulaji Borate v. State of Maharashtra and Ors., (2001) 2 SCC 441, in which there was a similar challenge to the removal of one of the Trustee's from the Nagpur Improvement Trust, which operates within the confines of the Nagpur Improvement Trust Act, 1936. This statute contains Sections 4 and 10, which are similar to the Rules of the ICSSR, in that the State Government has the powers to appoint persons to the Trust and in certain transpiration these Trustees can be removed. However, the said statute contains Section 6 which articulates and applies the pleasure doctrine. This is wholly missing form the ICSSR Rules. Section 6 of the said statute reads thus - "The term of officer of Chairman or any trustee appointed under Clause (e) of the Sub-section (1) of Section 4 shall be five years, provided that the Chairman or any other Trustee may be removed form office by the State Government at any time before the completion of such term." To borrow from the arguments of Mr. Salve, this Clause manifests and exemplifies the qualitative difference between the Constitution of the ICSSR and the Trust. After referring to the earlier decision of the Apex Court in Om Marain Aggarwal v. Nagar Palika Shahjahanpur, , the Hon'ble Supreme Court unhesitatingly applied the pleasure doctrine as incorporated in Section 6 of the said statute to reject the appeal of the removed Trustee. I can do no better than to reproduce the extract from Om Narian's case (supra) which had been relied upon by their Lordships in Krishna's case (supra):
"The initial nomination of the two women members itself depended on the pleasure and subjective satisfaction of the State Government. If such appointments made initially by nomination are based on political considerations, there can be no violation of any provision of the Constitution in case the legislature authorised the State Government to terminate such appointment at its pleasure and to nominate new members in their place. The nominated members do not have the will or authority of any residents of the Municipal Board behind them as may be present in the case of an elected member.... But so far as the nominated members are concerned, the legislature in its wisdom has provided that they shall hold office during the pleasure of the Government. It has not been argued from the side of the respondents that the legislature had no such power to legislate the fourth proviso. The attack is based on Articles 14 and 15 of the Constitution.
In our view, such provision neither offends any articles of the Constitution nor the same is against any public policy or democratic norms enshrined in the Constitution. There is also no question of any violation of principles of natural justice in not affording any opportunity to the nominated members before their removal nor the removal under the pleasure doctrine contained in the fourth proviso to Section 9 of the Act puts any stigma on the performance or character of the nominated members. It is done purely on political considerations."
13. However solely because of the absence of any Rule akin to the above referred Section 6 of the Nagpur Improvement Trust Act, and the resultant ambiguity, it would still not be possible to grant the petition on this premise. The only conclusion that can be drawn is that the ICSSR Constitution neither permits nor prohibits the withdrawal of a nomination. Indubitably, since the 'pleasure' principle is the norm, an assumption can be drawn that its incorporation into the ICSSR Memorandum of Association and Rules should be assumed. It will have to be seen from other attendant factors whether this can be legally achieved, such as that next following.
(C) Does the power to nominate include the power to remove?
14. This question generated the major controversy between the parties. The contention of Mr. Shanti Bhushan is that once a nomination has been effected no power remained with the nominator to recall or cancel it. He vehemently argues that if this were not so the nomination by the President of all the 12 members under Article 80 of the Constitution could be recalled and nullified, but that this has not been done till date. He has specifically relied on Section 16 of the General Clauses Act, 1987 in support of his contention. Reliance has been placed by him on the decisions of Division Benches in Kanta Devi and Anr. v. State of Rajasthan and Ors., , The State of Kerala v. V.P.P. Muhammed Kunhi, Trikarpur, 1970 S.L.R. 569, Hindurao Balwant Patil and Anr. v. Krishnarao Parshuram Patil and Ors., and Hira Devi and Ors. v. District Board, Shahjahanpur, . Learned Senior counsel for the Respondents, however, strenuously submitted that the power to remove necessarily co-exists with the power to nominate, except where the Constitution prohibits it explicitly. Mr. Salve essentially argues that this power is a derivative of the 'Pleasure Doctrine' which has been expressed, along with its limitations, in our Constitution. He has relied on the cases of Union of India v. K.S. Subramanian, , Allahabad Bank Officers' Association v. Allahabad Bank, , Krishna v. State of Maharashtra, (2001) 2 SCC 441, Bool Chand v. Chancellor, Kurushetra University, which has been relied on in B.D. Wadhwa and Ors. v. Hardayal Devgan and Ors., 2nd (1973) II 678.
15. Section 16 of the General Clauses Act, 1897, 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."
16. In Kanta Devi's case (supra) she had been nominated to a town municipality but before she could take the oath of office, her nomination was recalled. The Division Bench of the Rajasthan High Court saw "no reason why we should assume a power in the Government to cancel the appointment of a nominated member unless that power is conferred by law. The only provision, as we have already pointed out is Section 16 of the General Clauses Act, 1897 which gives power of dismissal and which will include removal by the appointing authority; but the power under Section 16 is subject to a different intention appearing in the law or order under which the appointment is made". In order to ascertain whether any 'different intention' existed in that case, the Division Bench looked into Section 14 of the Rajasthan Town Municipalities Act and found that it covered all the circumstances in which a member could be removed. It was for these reasons that it ruled that the Petitioner could not be removed by adopting the device of withdrawing of the Notification. The Court was of the opinion that the protection that was available to elected members should also extend to nominated members. A similar question arose before a Division Bench of the Patna High Court in Syed Shaukat Imam and Ors. v. State of Bihar and Ors., AIR 1969 Patna 347, where two persons who were duly appointed under Section 8(1)(a) of the Bihar Waqfs Act, 1947 were removed. The Court found that there was no provision in the Bihar Waqfs Act, 1947 for removal of the Sadr or members of the Majlis once they came to hold that office in due course. The Bench further observed that since a removal of the member of the Majlis was envisaged in Section 14 of the Bihar Waqfs Act, 1947 no other grounds for removal existed. It followed Kanta Devi's case (supra) and held the removal to be invalid. Yet another Division Bench, this time of the Kerala High Court, in Kunhi's case (supra) held that the Government had no power of removal of Mutawalis. Section 16 of the General Clauses Act, 1897 was considered. Section 11 of the Waqf Act, 1954 similarly state that "the members of the Board shall be appointed by the State Government by Notification in the Official Gazette". Section 12 thereof provides that the members of the Board shall hold office for five years and that the member shall, notwithstanding the expiry of his term, continue to hold office until his successor is appointed. It will be obvious that these provisions are similar to the Rules of the ICSSR except that tenure of the Chairman is for three years instead of five years. Construing these provisions the Division Bench held that the provisions made it abundantly clear that the termination before the expiry of the five years term was beyond the contemplation of the Act and, therefore, the State Government had no powers of removal other than those contained in Section 18 of the said Waqf Act. The removal was interdicted. In Hindurao's case (supra) the question that had arisen was whether, in the absence of any provision in the Act and the bye-laws of the Society, the Managing Committee could pass a resolution of no confidence against the duly elected Chairman and Vice-Chairman before the expiry of their terms. The Division Bench of the Bombay High Court was of the opinion that the right to elect the Chairman or Vice-Chairman was created by the Act itself, and, therefore, the right was subject only to any condition laid down in the Statute itself. It held that "the posts of Chairman and Vice-Chairman are creation of the Statute and that they were entitled to continue in office for the unexpired period of their tenure since no provision permitted their removal." Section 16 of the General Clauses Act was duly considered in this case. It was found that a 'different intention' could be gathered from the Statute and the bye-laws of the Society viz. that these persons could not be removed. It is this very reasoning which has also prevailed on a Single Judge in East India Film Studios v. P.K. Mukherjee and Ors., , to arrive at the conclusion that an Arbitrator, once appointed by the Government, could not be removed by it.
17. In Krishna's case (supra) the Hon'ble Supreme Court had, without any reference to Section 16 of the General Clauses Act, arrived at the verdict that if a person had been appointed for political considerations he could be removed for these very reasons. The contention that the doctrine of pleasure was incorporated in the Nagpur Improvement Trust Act, 1936 and, therefore, this was the distinguishing feature, had been rejected. The Court stated that in their opinion "this does not make any difference. It may be in this case Doctrine of Pleasure is explicit but if on any other statute it is implicit, which we have held in this case, the same would be equally applicable". A similar controversy had also arisen in Bool Chand v. Chancellor, Kurushetra University, .
The said provision of the General Clauses Act was applied by the Hon'ble Supreme Court. It also followed Ridge v. Baldwin, 1964 AC 40, in which dismissal were categorised into three compartments (a) dismissal of servant by his master, (b) dismissal from office held during pleasure, and (c) dismissal from an office where there must be something against a man to warrant his dismissal. The dismissal of a nominee, as in the case in hand, obviously falls within the second category. Since the appointment of the Petitioner as the Vice Chancellor of the University was made in ignorance of the fact that he had been made to resign as a Government officer, the Hon'ble Court was "unable to hold that a person appointed a Vice-Chancellor is entitled to continue in office for the full period of his appointment even if it turns out that he is physically decrepit, mentally infirm, or grossly immoral. Absence of a provision setting up procedure for determining the employment of the Vice-Chancellor in the Act or the Statutes or Ordinances does not, in our judgment, lead to the inference that the tenure of office of Vice-Chancellor is not liable to be determined". For my understanding I have paraphrased these observations to indicate that there must be a positively clear reason to water-down the otherwise unbridled power contained in Section 16 of the General Clauses Act which in many ways is the pleasure doctrine itself. Since the Court was of the view that there was no such reason, it declined to interfere in the dismissal/removal despite the fact that the tenure for which the Petitioner had been appointed as the Vice-Chancellor, had not expired. The fact that the Statutes of the University envisaged that the tenure would ordinarily be for a term of three years, as has been artfully pointed out by Mr. Shanti Bhushan, would not make any appreciable difference. Even though the Rules of ICSSR do not contain the work 'ordinarily', thus implying that the tenure is for a fixed period of three years and that too until the new incumbent is appointed, that would not by itself dilute the general power of the removal of a nominee, as articulated and expressed in Section 16 of the General Clauses Act. It is of significance that the Hon'ble Supreme Court arrived at a similar conclusion in Krishna's case (supra) even though Dr. Bhool Chand's case (supra) had not been cited before it, and the impact of Section 16 of the General Clauses Act had also not been considered.
18. In all these cases the Court had before it a Statute which regulate the appointment as well as the removal of the person concerned. In the case in hand no statutory provisions come into play. The wording of Section 16 of the General Clauses Act is such that the restriction on the general power to make any appointment, or to suspend or dismiss any person so appointed, can be diluted or interfered with only if different intentions can be drawn from attending circumstances. The general power of appointment and dismissal is the rule whereas restrictions on that power are the exceptions. Once this factor is kept in mind it will be evident that the aforementioned decisions relied upon by Mr. Shanti Bhushan do not apply to the present case. The Petitioner has not been appointed as the Chairman of the ICSSR by virtue of any provision of a Statute. Even if the Petitioner was appointed in terms of a Statute the next query must be whether the general power encapsulate in Section 16 of the General Clauses Act has been watered down in the Statute itself. In my opinion it would be flawed logic to concentrate only on looking for a provision permitting the Petitioner's removal since this would fly in the face of generality expressed in Section 16 of the General Clauses Act. Where appointments are made pursuant to a selection process, and where the tenure and rights of the successful candidate are protected by Statute, the general power to appoint, suspend and remove such a person would stand regulated by such provisions. Otherwise the power is left unregulated, unfettered and untrammelled. This is also the ratio of the decision of the Hon'ble Supreme Court in Krishna's case (supra).
19. Earlier in the judgment I had mentioned that Mr. Salve had sagaciously differed with the arguments of Mr. Rao on behalf of ICSSR. In fact the arguments were diametrically opposed to each other inasmuch as the stand of the Government was that the ICSSR is amendable to the writ jurisdiction of this Court. Although the stand of the Respondents is fundamentally incongruous, in view of the argument that a writ ought not to issue against ICSSR, it would be difficult for them to thereafter claim that the pleasure doctrine could be availed of to withdraw the nomination. That would amount to approbation and reprobation on behalf of the Respondents since the pleasure principle is normally associated with the State. Since the ICSSR is the person directly affected it may even have been appropriate for the Court to notice Mr. Rao's arguments, and ignore those of Mr. Salve and thereafter conclude that the appointment could not be at the pleasure of the ICSSR. Circumstances, however, compel me to consider and accept the submission made on behalf of the Union of India that Section 16 of the General Clauses Act empowers it to withdraw a nomination such as of the Petitioner as the Chairman of ICSSR.
(D) HAVE NATURAL JUSTICE DICTATES BEEN IGNORED?
20. It had been contended by Mr. Shanti Bhushan that the Petitioner's removal should be faulted and set aside since he was not granted a prior opportunity of being heard. Reliance has been placed on Shridhar's case (supra) in which the Hon'ble Supreme Court had set aside the Petitioner's removal from the post of Tax Inspector on this very ground. The Court had observed that it is an "elementary principle of natural justice that no person should be condemned with hearing. The Order of appointment conferred a vested right in the appellant to hold the post of Tax Inspector, that right could not be taken away without affording opportunity of hearing to him. Any order passed in violation of principles of natural justice is rendered void." Herein lies the difference between that case and the present. The Petitioner was nominated by the Government and his appointment was not protected by the Memorandum of Association and Rules of ICSSR or any statute. Support for this conclusion is available in Krishna's case (supra). The Hon'ble Supreme Court drew the distinction between exercising the pleasure doctrine clearly reserved in Section 6, and the stigmatic powers contained in Section 10 of the Nagpur Improvement Trust Act, 1936. It favored the opinion that only if "the removal caused stigma granting prior opportunity of being heard was essential. Otherwise the 'removal' neither casts any stigma nor leads to any penal consequences". Shridhar's case (supra) is of no relevance since the Petitioner did not have any vested right to remain in the post. His removal was non-stigmatic, notwithstanding the subsequent interest and coverage that it generated in the Press. The Petitioner's academic credentials are enviable and may even be incomparable. But he was nominated by the Government because of his political personality and cannot be heard to complain when the political winds blow him away. The Constitution Bench of the Hon'ble Supreme Court in Delhi Transport Corporation v. D.T.C. Mazdoor Congress and Ors., 1991 Supp. (1) SCC 600, had found a violation of the audi alteram partem rule in the statutory provision permitting termination of the services of a permanent employee by giving him one month's notice. This judgment, however, would not apply where the appointment is wholly discretionary in nature, not clothing the incumbent with any right, and cannot be deleterious to his interests since it was honorary in character.
(F) Is the petition maintainable on the grounds of the alleged non impleadment of ICSSR?
21. It has also been contended by Mr. Rao that on a perusal of the prayers it will be obvious that only the first part of the Notification dated 18.7.2001 has been challenged in the writ petition. It is his contention that since the second part, that is nominating Shri K.S. Sarma as Chairman, ICSSR as a purely temporary measure, pending the nomination of regular Chairman, has not been assailed, the petition is not maintainable. Reference must immediately be drawn to Section 6 of the Societies Registration Act, 1860 which states that every society registered under the Societies Registration Act, such as the ICSSR, may sue or be sued in the name of the President, Chairman etc. as shall be determined by the Rules and Regulations of the Society, and in default of such determination, in the name of such person as shall be appointed by the Governing Body for the occasion:
provided that it shall be competent for any person having a claim or demand against the Society, to sue the President or Chairman etc. if on application to the Governing Body some other person be not nominated to the defendant. The form of the array of parties, therefore, is in accordance with law. Being the temporary Chairman, the ICSSR can be sued in the name of the temporary Chairman. Furthermore, since this has been so done, the ICSSR has been duly imp leaded. Therefore, on both counts the objection does not have merit.
22. It has also been opined in other judgments of the Hon'ble Supreme Court that a pedantic approach to pleadings ought not to be taken. It is only sequential that if the petitioner's prayer for the quashing of the Order dated 8.7.2001 is allowed, the appointment of Shri K.S. Sarma would automatically be set aside.
(F) Is civil action the only avenue which should be traversed by the Government?
23. It is Mr. Rao's contention that upon incorporation the ICSSR must function as any other legal person. Therefore, if the grievance of the Government is that the Chairman was not discharging the duties expected of him, or if he was guilty of mal administration, the proper manner for his removal was to file a suit for injunction against his functioning as the Chairman. Reliance is placed on the decision of the Hon'ble Supreme Court in Nagri Pacharini Sabha's case (supra) in which it was observed that a litigant having a grievance of a civil nature has, independently of any statute, a right to institute a suit in the civil court unless its cognizance is either expressly or impliedly barred. In the light of the view preferred hereinabove on the question of the applicability of the pleasure doctrine as also the power to removal co-existing with the power to appoint, this question does not fall for consideration. Accordingly since the Government possesses the power to remove, or in other words to recall and withdraw its nomination, it was not mandatory for it to take recourse to the filing a civil suit. Furthermore, this very argument may militate against the Petitioner's contention that a writ petition is maintainable. There is no justification for holding that the Government should move the civil court and yet permitting the Petitioner to do otherwise.
CONCLUSION
24. It must be perpetually borne in mind by the Court, while exercising its obligation of judicial review, that the doctrine of 'separation of powers' should not be violated. This doctrine can be traced back to Aristotle, but its most famous exponent is the French thinker Montesquieu. In his celebrated work entitled De L'Esprit de Lois, 1748, he had segregated power into three categories - (1) legislative, (2) executive and (3) judicial. He advocated that to prevent abuse of power, things must be so ordered that power checks power. The American Constitution has translated this political theory into a jurisprudential reality. The Indian Constitution also does so, albeit with some adaptation necessary because of the partial merger of legislative and executive powers that is the fulcrum of a parliamentary form of government. It is all the more imperative that these three manifestations of power should not trespass into each others province, for fear of the entire machinery breaking down. Where therefore, decisions are purely political in character, it would be a transgression of judicial review if Courts enter upon a controversy which is essentially political in origin and character. Since the petition of Dr. Brahma Chellaney has been adverted to above, it may be necessary to explain that I perceive the watershed in the two dismissals in the enjoyment of a right to serve predicated on a selection and having an attending monetary value; and its antithesis in terms of a nomination originating on political affiliations and proximities and being of honorary content. It is for this reason that I am loathe and reluctant to exercise the extraordinary powers in a dispute having primarily political proportions.
25. The Petitioner indubitably possesses enviable and extraordinary academic credentials. The fact still remains that he was nominated as the Chairman because of his political connections. it may also be true that this removal may be entirely due to his resolute refusal to fall in line with prevailing political views. These considerations are not justiciable and should not influence the jural decision.
26. By way of summation, therefore, it is held that Article 226 is fully applicable to ICSSR; the Constitution of the Society does not specifically allow or prohibit the removal of its Chairman; the rules of natural justice do not require that an opportunity to be heard must be given to a nominee whose removal may be as arbitrary and unilateral as his appointment; there are no other 'reasons' as envisaged in Section 16 of the General Clauses Act, for curtailing the general right of appointment, suspension and removal. The dispute is essentially political in nature and the Court should steer clear from its vicissitudes, vagaries and fluctuating fortunes.
27. In these circumstances the writ petition and the application for stay are dismissed. However, there shall be no order as to costs.