Delhi High Court
Indira Gandhi National Centre For Arts ... vs Union Of India (Uoi) And Ors. on 15 March, 2007
Equivalent citations: AIR 2007 (NOC) 2379 (DEL.) (DB)
Author: Swatanter Kumar
Bench: Swatanter Kumar, H.R. Malhotra
JUDGMENT Swatanter Kumar, J.
1. Mr. K.N. Valsakumar, the General Secretary of the Employees' Union of the Indira Gandhi National Centre for Arts (hereinafter referred to as the 'IGNCA') and who is also an employee of the said organization, has approached this Court under Article 226 of the Constitution of India praying for issuance of a writ of mandamus or certiorari thereby quashing the order dated 2.2.2005 issued by the Union of India nominating and appointing respondent No. 3 Dr. (Mrs.) Kapila Vatsyayan as a member of respondent No. 2- Trust and further directing respondent No. 1 to hold an enquiry by an independent agency into the financial irregularities of the affairs of the Trust.
2. To substantiate the prayer, the petitioner has averred in the writ petition that IGNCA was set up on 24.3.1987 to serve as a major resource centre to promote preservation and development of arts for which a deed of declaration was made and a resolution was issued by the Govt. of India, Ministry of Human Resource Development on 19th March, 1987 and the Trust was thus set up on or about 24.2.1987. The deed of declaration giving its objects, functions and clauses in relation to appointment of trustees and office bearers of the Trust, has been placed on record as Annexure P1 to the Writ petition. According to the petitioner, a Trust which was established to realize all-round cultural enrichment of India and to create inner resources of human beings, has become a place for personal promotion and patronage and even the Government of India is not granting the requisite funds to the Trust. Respondent No. 3 had been appointed as Member Secretary of the IGNCA Trust initially for a period of one year in the year 1990 which was extended for two years w.e.f. 1.4.1991. With effect from 1.4.1993, she was appointed as an Academic Director for a period of five years. However, before expiry of the said period on 9.2.1994, she relinquished the charge of the said post and was appointed to continue as a Trustee being one of first seven trustees of the Trust. In a special meeting of the Trustees, certain amendments were made in the deed of declaration and she was made Life Trustee on 18.5.1995. This amendment was impermissible and appointment of respondent No. 3 as a Life Trustee was contrary to Clause 7.1 to 7.4 of the Deed of Declaration as the tenure of the Trustee is 10 years. The amendment was made as a result of vested interests. The petitioner had earlier filed a writ petition being CW No. 4305/1998 challenging the validity of the amendments and the said petition was dismissed in default. It is also the case of the petitioner that during the pendency of that petition, the Government of India issued order on 7.1.2000 cancelling the amendments and it directed that clauses of the original deed of declaration would continue to be in force and the amendment of 18.5.1995 would be ignored. The Government of India on 7.1.2000 also ordered to retire 12 of 19 trustees including respondent No. 3. The order of the Government was also based upon and refers to the clauses of the original deed which restrict the tenure of a member of the trust to ten years and where after member trustee cannot continue in office. However, the Government of India reappointed respondent No. 3 as Member of the Trust on 2.2.2005. Publication to that effect was made in the Extra Ordinary Gazette of India and where after on 27.6.2005 she was nominated as member of the Executive Committee of the Trust and thereafter was elected as Chairperson of the Executive Committee of the Trust on 30.7.2005. According to the petitioner, she has misappropriated the funds of the Trust thereafter. She planned construction and executed a monstrous construction of nearly a hundred crores through an American Architect, private contractor and Chairman, Building Committee. The respondent No. 3 misled the then President of IGNCA, Mrs. Sonia Gandhi on various issues. The respondent No. 3 appointed a Superintendent Engineer and elevated him illegally to the position of Additional Secretary to the Government. The persons holding high offices have vested interests and they want to manage and control the Trust as it has 24.7 acre of prime land in the heart of Delhi and has even other assets worth more than 100 crores and has also 10 acres of prime land in Bangalore which again is being misused. There are massive financial irregularities and illegalities which have been committed during her term and her continuation in Trust is not in public interest. On these grounds, the petitioner has questioned her appointment as Member of the Trust and the subsequent orders passed by the Trust and the UOI, renominating and appointing her as President of the Executive Committee.
3. The petitioner claims to have a locus standi to file the present writ petition as according to him he has sufficient interest in maintaining the present case before the Court being an employee as well as the General Secretary of the Union of the employees of the Trust. According to the petitioner, this petition is not motivated and in view of the principles enunciated in the cases of Dr. (Mrs.) Meera Massey, Dr. Abha Malhotra, Dr. S.C. Bhadwal and Ors. v. Dr. S.R. Mehrotra and Ors. , Dattaraj Nathuji Thaware v. State of Maharashtra and Ors. and Confederation of Ex-Servicemen Associations and Ors. v. Union of India (UOI) and Ors. and for bonafide reasons, he is entitled to maintain this petition before this Court.
(i) The main plank of submission on behalf of the petitioner is that in terms of the clauses of the original Trust Deed dated 24.3.1987, the age of retirement of every trustee is 10 years, thus, appointment of a life trustee is violative of the terms of the Deed.
(ii) There was no amendment, as the amendment itself was opposed to the terms of the Trust Deed and any amendment contrary to the original Deed would be impermissible. Even if it is assumed that the amendments could be made, the same were withdrawn and nominations were cancelled by the Government of India, as such the appointment of respondent No. 3 ipso facto would come to an end.
(iii) Even the concept of reappointment in the case of her Member of the Trust is foreign to the provisions of the Trust Deed as wherever the framers of the Trust intended to use the concept of reappointment, they specifically provided for the same. Reference is made to Clause 8 relating to appointment/reappointment of the President of the Trust. The expression 'new trustees' used in relation to appointment and term of Members of the Trust cannot be equated or treated interchangeable to the expression 'reappointment'. It is further stated that in any case, for the irregularities committed by the respondent No. 3 she cannot continue to be involved in the affairs of the Trust and proper investigation should be made in that regard.
4. Before we examine the merits of the contentions raised, we may notice the stand of the respondents in the present writ petition. As already noticed, different counter affidavits were filed on behalf of different respondents.
5. Joint Secretary to the Ministry of Culture, Government of India (respondent No. 1) has filed an affidavit on behalf of the Union of India. In the said counter affidavit after referring to the objects and reasons of the Trust, it is stated that the petitioner has made wild and reckless allegations in the writ petition without any substance and the petition is malafide. Even the locus standi of the petitioner to file the present petition is challenged. It is stated that as far as the tenure of the office of a trustee is concerned, Clause 7.2 provides that they would enjoy a period of at least 10 years and immediately upon the expiry of the period of 10 years from the date of creation of the Trust, such member would retire. One third of the total number of the Trustees were to retire on the expiry of 10 years. The persons to be appointed on consequential vacancies were to be nominated by the Government of India. Out of the remaining trustees, another 1/3rd of the total number were also to retire upon the expiry of 10 years but the consequential vacancies were to be filled up by nomination of a new Trustee by the retiring members against the vacancy caused by the retirement. If such a nomination was not coming from the retiring trustee, Government could still nominate a trustee even in that place. Under Clause 7.4, if a trustee vacated his office before his term of office would expire in normal course, then the said vacancy could be filled by nomination of a new Trustee either by taking recourse to Clause (i) or Clause (ii) of Article 7.2. However, the newly appointed trustee would only enjoy the remaining period which was available to the outgoing trustee. It is stated that respondent No. 3 who was Secretary in the Department of Arts at the relevant time was appointed as a Member Secretary of the Trust initially for a period of one year which was extended to two years with effect from 1.4.1990. It has also been stated that the respondent No. 3 had retired from the service of the Government on 31.3.1990 and thus the initial appointment was made after the third respondent had ceased to be in the service of the Government.
6. Respondent No. 3 is stated to be a well qualified person with adequate experience. She possessed a D.Litt (Onerous Causer) from the Banaras Hindu University, Ravindra Bharati and Manipur and was also awarded D.Litt. (honoris causa) by the University of Michigan, USA. She had been actively engaged in various international cultural relations programmes of the Government of India and took an active part in the work of Indian Council for Cultural Relations and organized programmes on a bilateral as well as multilateral basis. She has to her credit authorship of over 15 publications in respect of various aspects of arts, culture and humanities and has worked both at national and international level. Jawaharlal Nehru fellowship was conferred on her and she was also conferred with the Rockwell Award for cultural studies. In regard to her appointment and continuation in office, it will be relevant to refer to the following paragraphs of the counter affidavit:
As already pointed out hereinabove, the third respondent was one of the first trustees of the Trust. Clause 7.2. of the Trust Deed as stated hereinabove provided that a trustee would enjoy a period of at least 10 years. The third respondent was appointed as a trustee in the first instances on 19th March 1987. By virtue of Clause 7.2 of the Deed, the third respondent was entitled to hold the said office of a trustee for a period of 10 years.
21. It may be pointed out that a special meeting was held of the trustees on 18th May, 1995. Consequent to the special meeting, some of the clauses of the Trust Deed were amended and in particular Clauses 7,8,9, 24 and 25 of the original deed of declaration stood amended. The amendments postulated in the first place that there would be three kinds of trustees, namely, life trustees, ex-officio trustees and co-opted trustees. By virtue of a new Clause 7.1, it was stipulated that the trustees appointed by the initial Government order dated 19th March 1987 would be called life trustees and every such trustee would hold office for life. By virtue of the amended Clause 8, the tenure of the President of the Trust was re-stipulated. By virtue of the amended Clause 9, the trustees were responsible for appointment as a Member Secr5etary. By virtue of the amended Clause 24, the objects and other terms of the deed could be amended or altered or modified by a majority of three fourths members of the Trust present in voting at a meeting specially convened for that purpose. Clause 25 which initially had provided for the control of the visitor over the functioning of the Trust was deleted. The said amendments were approved by the Government of India by a letter dated 2nd June 1995. The supplemental deed amending the Trust Deed came to be registered by an amendment deed. A true copy of the supplemental Deed of Declaration dated 18th May, 1995 is enclosed herewith as Annexure R-5. A true copy of the letter dated 2nd June 1995 by which the Government of India conveyed its approval to the amendments to the Deed of Declaration is annexed herewith as Annexure R-6.
22. As already pointed out, the third respondent was appointed as a Member Secretary of the IGNCA initially for a period of one year w.e.f. 1st April, 1990, which was later extended to 2 years. The third respondent was appointed thereafter as an Academic Director w.e.f. 1st April, 1993 for a period of 5 years. A true copy of the order No. 1/77/92-SD/AM dated 15th January, 1993 by which the Third Respondent was appointed as the Academic Director is annexed herewith as Annexure R-7. Incidentally, the post of the Academic Director was created in the 5th meeting of the Trust held on 24th August, 1991. On 9th February, 1994, the third respondent relinquished charge as Member Secretary but continued to function as an Academic Director.
23. On 28th August, 1996, the appointment of the third respondent was continued as an Academic Director although by an order dated 25th September, 1998, the status of the third respondent was altered because she stated that she would continue to work, not in a tenure post carrying remuneration but honourably for the Trust. A true copy of the said order No. 1/77/92-SD/AM dated 25th September 1998 is annexed hereto and marked as Annexure R-8.
7. After the letter of the government dated 6.11.2004 superseding its previous order of 7.1.2000 directing the trustees to retire, on 2.2.2005, the third respondent and Sh. Ram Niwas Mirdha were appointed as trustees. Dr. Karan Singh and Ustad Amjad Ali Khan were also appointed as trustees by the order issued by the government on 5.5.2005. On 26.10.2005, the trustees of the Trust met and Sh. Jaipal Reddy, the then Union Minister of Information & Broadcasting and Culture resigned and Dr. Kapila Vatsayan, Respondent No. 3, was appointed as the President of the IGNCA Trust.
8. On the basis of the above averments, which according to the Union of India are duly supported by the records and letters annexed to the counter affidavit, they pray that the writ petition be dismissed with costs.
9. The stand taken by respondent Nos. 2 & 3 in the counter-affidavit filed by them is that the petition cannot be treated as a Public Interest Litigation. Furthermore, the petition is full of false, fictitious and concocted allegations. The calibre and achievements of respondent No. 3 have been recognized by all at national and international platforms. It is also stated that criminal proceedings against the petitioner and other office-bearers are pending in furtherance to FIR No. 196/1998 where they had assaulted the then Member Secretary, manhandled and assaulted the Director (Admn.) and used abusive and derogatory slogans against the Chief Administrative Officer. The trial is stated to be pending before the Court of competent jurisdiction. Respondent No. 3 is again averred to be a lady of very high esteem and is a great academician and literary person. She is dedicated to the noble cause of human welfare and has a very good image and reputation and sense of reverence in the minds of public at large. She is known for her outstanding contribution in the field of Culture and the Article For five decades, she is stated to be actively involved in international cultural relations, both bilateral and multilateral. She has negotiated more than 40 agreements and has been closely associated with Russia and East Europe. She was responsible for organizing many exhibitions in Festivals in India and U.K., particularly in regard to the image of Man. She was also the Secretary of Indo-US Sub- Committee of Museums and was instrumental in establishing Indira Gandhi Rashtriya Manav Sangrahalaya (National Museum of Man) in Bhopal. An objection has also been taken on the ground that the petition is a motivated action as the petitioners have not challenged the appointment of any other person appointed by the same Office Order dated 2.2.2005 except respondent No. 3. The petitioners are themselves the beneficiary of the respondent Trust and as such, cannot invoke the jurisdiction of the Court under the garb of Public Interest Litigation. A number of Trustees have been reappointed and/or appointed and there is no challenge to the system of governance of the institution. The allegations with regard to misappropriation of funds and integrity of the respondent No. 3 are seriously disputed. In fact, para Nos. 21 to 24 of the counter affidavit can be noticed at this stage:
21. The contents are without substance. Attention is invited to the following clause in the DEED OF DECLARATION of IGNCA:
AND WHEREAS the Govt. of India has also decided to construct a building Complex in the area of approximately 10.10 hectares of land adjoining the Central Vista in New Delhi described in the schedule hereunder written for permanently housing the IGNCA Offices and activities;
Consequent to the above, the Govt. of India appointed a Building Committee to monitor the said Project. There is no evidence, on records of Respondent No. 2, that Respondent No. 3 was in any way responsible for planning or execution of the construction of IGNCA building.
The empowered Building Project Committee appointed by the Govt. of India was responsible for all appointments in the BPC. Respondent No. 3 was not the competent authority to make these appointments, as alleged.
22. The Petitioner have revealed great ignorance in regard to the reputation which IGNCA achieved and enjoyed for its outstanding work in scholarship, in building a unique Reference Library and in multi-media exhibitions.
The ill-mentioned News Reports needs to be taken no cognizance of when balanced with unconditional appreciation and acclaim received by the institution during tenure of Respondent No. 3.
23. No comments.
24. Allegations are not based on facts. No one could make himself or herself a Life Trustee. There was no leakage of funds or financial irregularity.
In fact it was her frugal management which enables the institution to enhance its reserve funds for the future. For this she deserves the gratitude of the nation and not unfounded allegations of the employees who have been the beneficiaries of the institution.
10. It is also averred that during the pendency of the Writ Petition, the petitioner's Union through one of its Members - Mr. Rajeev Bhandari - had given interviews on TV channels and made false and baseless allegations and, in fact, had also interfered with the administration of justice and caused prejudice to the respondents.
11. In light of the above facts, now we may refer to the relevant clauses of the Trust Deed dated 19.3.1987, the original Deed, in regard to which a Resolution was passed by the Ministry of Human Resource Development, Government of India on that very day. Clause 3 of the Trust Deed deals with objects of the Trust which primarily is to provide a forum for creative and critical dialogue among diverse arts and to evolve methods for development of art at different levels. Clause 7 deals with the number of Trustees and their tenure while Clause 7.2 deals with tenure of office of the Trustees and nomination of new Trustees. The said Clause 8 deals with the appointment of the President of the Trust and some emphasis was placed upon the Clause by the counsel for the petitioner as it uses the expression 'reappointment' in contradistinction to new Trustees as used in Clause 7.2. Thus, relevant Clauses read as under:
The number of Trustees and tenure
7. The total number of Trustees for the time being of These Presents shall not be less than seven and not more than twentyone. The first appointment of all the Trustees will be made by the Government of India.
7.1 Trustees may be individuals, institutions, bodies corporate, organisations or agencies within India who may be affiliated to or collaborating with the IGNCA for the pursuit and realisation of its objects as set out in this Deed.
Tenure of Office of Trustees and nomination of new Trustees 7.2 On the expiry of each period of ten years from the date of creation of the Trust herein mentioned, the number of Trustees to retire and the consequential vacancies to be filled in shall be determined in the manner mentioned below:
(i) One-third of the total number of Trustees to retire and the consequential vacancies to be filled by nomination of new Trustees by the Government of India. Any fraction contained in that one-third shall be rounded off as one.
(ii) Another one-third of the total number of Trustees also to retire and the consequential vacancies to be filled by nomination of a new Trustee by the retiring members against the vacancy caused by his/her retirement. In the absence of such nomination by a stipulated date, it shall be lawful for the Government of India to nominate a new Trustee to fill the particular vacancy. Any fraction contained in that one-third shall be rounded off as one.
7.3 The Trustees to retire on the expiry of each period of ten years shall be determined by lots, in default of and subject to any agreement among themselves.
7.4 If a Trustee vacates his office before his term of office will expire in the normal course, the resulting vacancy arising thereof may be filled by the nomination of a new Trustee by the respective authorities, as specified in Clause (i) or Clause (ii) of Article 7.2, as the case may be, subject however that the new Trustee so nominated shall hold office only for the remaining period as would have been held in the normal course by the Trustee who vacated the office.
President of Trustees
8. Notwithstanding anything herein contained, the first President of the Trust shall be appointed by the Government of India from amongst the Trustees for a period of ten years and shall be eligible for re-appointment for a further period of ten years. Thereafter, the President of the Trust shall be appointed by the Trustees from amongst themselves for such period and upon such terms and conditions as may be decided by the Trustees.
8.1 In the absence of the President to preside over the meetings of the Trustees, the members for the time being present at a particular meeting shall elect the President for the purpose of that meeting from amongst themselves.
12. Clause 24 provides for amendment of the Trust Deed and empowers amendment, alteration or modification of the Original Deed and reads as under:
24. The objects and other terms of this Deed may be amended, altered, or modified by a majority of 3/4 members of the IGNCA Trust present and voting at a meeting specially convened for the purpose. Such amendments, alterations or modifications shall come into effect only with the prior written approval of the Government of India.
13. The material facts are really not in controversy as it is not in dispute that respondent No. 3 was appointed as Member Secretary of the Trust initially for a period of one year which was extended for two years w.e.f. 1.4.1991. Thereafter, she was appointed as Academic Director for a period of five years w.e.f. 1.4.1993. In the sixth meeting of the Trust held on 9.2.1994, she continued to be Trustee by virtue of one of the First Seven Trustees of the Trust. In terms of Clause 24 of the Trust Deed, the Body of the Trust decided to amend Clause 7.1 to 7.4 of the Deed of Declaration on 18.5.1995. According to this, the Clause containing that a person would not be Member/Trustee for more than 10 years was amended and it was introduced that the Trust could appoint Life Trustees. This Declaration of Amendment was granted due approval by the Government vide its letter dated 2nd June, 1995 which reads as under:
Kindly refer to your letter No. IGNCA/Trust-7/95, dated May 30, 1995. I was present at the Special Meeting of the IGNCA Trust, held on 18th May, 1995 at 3-Rajendra Prasad Road, New Delhi when the alternations in the Deed of Declaration of the IGNCA Trust were approved unanimously.
I have great pleasure in communicating to you the Government of India's approval to the alternations.
With kind regards, Yours sincerely, Sd/-
(Madhavrao Scindia) Smt. Sonia Gandhi, President, Indira Gandhi National Centre for the Arts Trust, 10, Janpath, New Delhi-110011
14. The Clause was given effect to and timely appointments were made in furtherance to the amended Clause. The amended Clause reads as under:
The Trustees and their tenure
7. The total number of Trustees for the time being of These Presents shall not be less than seven or more than twentyone. There shall be three categories of Trustees, namely, Life Trustees, ex-officio Trustees and co-opted Trustees, as provided in Articles 7.1, 7.2 and 7.3.
7.1 The persons appointed by the Government of India in the Ministry of Human Resource Development by Resolution No. F.16-7/86-Arts date of the 19th March, 1987, and the replacements for any of them made under Article 7.4, shall be called Life Trustees and every such Trustee shall hold office for life.
7.2.1 The holders of office for the time being of the undermentioned offices shall be the ex-officio Trustees:
1.Union Minister for Human Resource Development
2.Union Minister for External Affairs/Union Minister for Urban Affairs and Employment
3.Chairperson of the University Grants Commission.
4.Chairperson of the Lalit Kala Academi or Chairperson of the Sangeet Natak Akademi or Chairperson of the Sahitya Akademi
5.Vice-Chancellor of the University of Delhi or Jamia Milia Islamia or Jawaharlal Nehru University Note: Persons at No. 2, 4 and 5 shall be selected on a rotational basis for a period of five years each by the Life Trustees.
7.2.2 Every ex-officio Trustee shall function as such for the duration of his office and shall have the right to attend, participate and vote in any meeting of the Trustees.
7.3 The Life Trustees and the ex-officio Trustees may, in a meeting, co-opt, for such periods as may be determined by them, other Trustees who may be from individuals, institution bodies, corporate, organizations or agencies within India, who may be affiliated to or collaborating with the IGNCA for the pursuit and realisation of its objects as set out in this Deed.
7.3.1 Thereafter the Trustees in position may co-opt further Trustees and their number shall be such that the total number of all Trustees shall not exceed twenty-one.
7.4 If any of the first Trustees resigns, refuses to serve or dies, or otherwise becomes incapable of acting as such, then, and in every such case of a vacancy, it shall be competent for those Trustees to appoint a new Trustee to fill up such vacancy and on such appointment, every such new Trustee shall become and be a Life Trustee for the purpose of These Presents. During the interval of time between the occurrence of a vacancy as aforesaid and the appointment of a new Trustee, the constitution of, and any decision taken by, the Trustees shall not be invalid by reason only of such vacancy.
7.4.1 Notwithstanding anything contained in the foregoing every Trustee functioning as such on the 1st January, 1995, other than the seven persons referred to in Article 7 or their replacements made before that date, shall continue to be a Trustee till the expiry of a period of 10 years from the date of creation of the Trust, that is till the 19th of March, 1997.
15. We may notice at this stage that the affidavit itself of the Government filed in the present Writ Petition still fully supports the Order approving the amendments proposed by the Trust. Of course, these amendments were challenged in the High Court in CWP No. 4305/1998 and during the pendency of the said Writ Petition, the Government had passed the Order dated 7.1.2000 stating that the amendments were not proper and the Trustees, 12 out of 19, including respondent No. 3 would retire. Even the Order dated 7.1.2000 was superseded by another Order passed by the Government on 6.11.2004. In the Order dated 7.1.2000, the amendments were stated to be ultra vires and the Government had nominated new Trustees. Vide Order dated 2.2.2005, the Government reappointed respondent No. 3 as Member/Trustee and a publication in the Official Gazette was published. It is clear from the record that on 27th June, 2005, she was nominated as Member of the Executive Committee and thereafter on 30th July, 2005, she was elected as Chairperson of the Executive Committee of IGNCA and from that time she is continuing to function as such.
16. Firstly, we would have to examine the appointment of respondent No. 3 as a Life Member.
17. In the trust deed executed on 19th March, 1987, respondent No. 3 Dr. (Mrs.) Kapila Vatsyayan was shown as one of the trustees. This was duly accepted by the resolution of the Government of India, Ministry of Human Resource Development on that very day. Vide special meeting of the trust held on 18th May, 1995, amendments were carried out and Clause 7 of the trust deed was amended. The amended clause provided for appointment of three categories of trustees namely life trustees, ex-officio trustees and co-opted trustees. In terms of Clause 7.1, the life trustee was to hold office for life. Certain other amendments were also made in the trust deed. These amendments, as already noticed, were accepted by the Ministry concerned vide its letter dated 2nd June, 1995. The approval was clear and unconditional. Once the amendments were approved and the body of the trust exercised their power in terms of the amended clause, then exercise of such power can hardly be questioned after such a prolonged delay. Respondent No. 3 was, thus, appointed as a 'life trustee' of the Trust by the competent forum in terms of the amended trust deed during the period when it was in force. The trust deed did not provide for any methodology for removal of a life trustee. Once a person is appointed as a life trustee under the terms of the amended trust deed which was in force, the same cannot be wiped out except by a due process provided under the trust deed and otherwise in accordance with law. The amended trust deed, thus, was unquestionably in force right from 1995 to 2000. Vide its order dated 7.1.2000, the concerned Ministry of the Government felt that the amendments are ultra vires as they changed the basic character of the trust deed and, thus, being null and void. It was also stated that the 12 trustees shall retire including respondent No. 3. The amendments were questioned by the present petitioner in CWP 4305/1998 which was withdrawn without any specific order of the court. The order dated 7.1.2000 does not invalidate the amendments made in the year 1995 by specific language. The clause relating to retirement would be applicable to the class of the persons who were to retire in terms of Clause 7.2 and 7.3 of the deed of declaration on the expiry of each period of ten years. The action taken in accordance with the clauses of the amended deed had to be set at naught by the Government by passing a specific order and not merely by inference. The trust deed does not vest any power in the Government to do other acts except nominating the trustees in terms of the trust deed. The appointments of trustees in terms of the amended trust deed was never questioned by the Government till 2000 and the amended clauses were duly implemented and acted upon by all relevant persons. Even the order of the Government granting approval to the clauses of the trust deed was never withdrawn or cancelled by the Government. Even in the counter affidavit filed on behalf of UOI, it is no-where stated that the Government had reviewed the said order for any proper and valid reasons and then passed the order dated 7.1.2000. The order dated 7.1.2000 is vague and does not invalidate the earlier order of the Government. It neither refers to the life members already appointed nor even suggests that the order is in supersession to the earlier order passed by the competent authority in the Government. It is a settled administrative norm that the Government can review its earlier orders but for valid reasons. It is equally a settled principle that the element of administrative actions or orders should be free of arbitrariness and unfairness. The competent authority has to apply its mind while exercising its powers to the aspect whether an order which has been in existence for a considerable time and has been acted upon by all concerned, should or should not be recalled or set at naught, specifically or impliedly, in public interest and for valid reasons. Both the order of the Government i.e. dated 2.6.1995 and the order dated 7.1.2000 cannot co-exist. The order dated 7.1.2000 would have to be treated prospective because its language/ intent does not, in any way, suggest that it can be given effect to retrospectively or even retroactively. Certain rights have accrued to the parties during the period 1995 to 2000 and those rights could not be taken away by such casual exercise of power, though it is even argued before us that the Government had no power to pass such an order in accordance with the terms of the trust deed. In the counter affidavit filed by the Government as late as in February, 2006 it has been specifically stated that the supplement deed amending the trust deed came to be registered by an amendment deed of 18th May, 1995 to which the Government of India conveyed its approval on 2nd June, 1995. None of these acts of the Government have been questioned or recalled by the competent authority much less for any valid and proper reasons. The order dated 7.1.2000 was specifically superseded vide order dated 6.11.2004.
18. This order besides setting at naught the order dated 6.11.2004 and retiring 21 trustees of the Trust in public interest, further directed that the Trust be reconstituted with 9 other trustees, including the Member Secretary of the Trust. In continuation to this order, on 2.2.2005, the Government nominated two more members in the Trust including respondent No. 3. After her induction as a Member, vide meeting of the Trust dated 30.7.2005, she was unanimously elected as the Chairperson of the Executive Committee. The fact of the matter, thus, remains that the order appointing her as a life member has not been set aside by any competent authority and the amendments which were found to be ineffective or void ab initio, were set at naught and rendered inconsequential by the order of the government in the year 2004. Even if by necessary implication it is assumed that the order of life membership was rendered ineffective then equally true would be that the order dated 6.11.2004 rendered the order of 7.1.2000 as ineffective and inconsequential. This however, we are noticing subject to our specific finding that no order which actually can sling the life membership of respondent No. 3 was passed by any competent authority in accordance with law and in terms of the Trust Deed.
19. In alternative to the above conclusion, we now would proceed to examine the controversy raised in regard to her appointment as a member of the Trust vide order dated July 2005. The main contention raised is that the term of the office of a Member of the Trust is regulated by Clause 7.2 of the Original Deed. Clause 7.3 in terms of which each trustee is to retire on the expiry of a period of 10 years, shall be determined by draw of lots. In default of this and subject to any agreement amongst themselves, the Government would have the power to nominate the members who would exercise such a right for the remaining period of the tenure of the original trustee where the vacancy is caused by vacation of Office. Clause 7.2 further provides the mechanism in relation to retirement of the members of the Trust in groups of 1/3rd. Thus, a trustee is expected to retire on completion of his period of 10 years but this condition is subject to any agreement which may be arrived at between themselves i.e. the members of the Trust Deed. It is a settled principle of law that the Trust Deed is the paramount document which would control all fields of the Trust created under the Trust Act. The right of the Government to interfere is very limited and is so indicated in the Deed itself. In the backdrop of this factual matrix, the arguments advanced is that a member of the Trust cannot be reappointed, as the reappointment is not permissible and support is sought to be taken from use of language by the framers of the Trust Deed in relation to the Office of the President where under Clause 8 of the Deed there is specific provision for reappointment of the President. According to the petitioner, respondent No. 3 was appointed as a Trustee on 17.3.1987 and her 10 years term as per Clause 7.2 would come to an end in the year 1997 where after she ought to retire and could not be reappointed as there is no power under the Trust Deed for reappointment of a trustee.
20. It is not in dispute that she was inducted on 19.3.1987. Before she could complete her term of 10 years she was appointed as a life trustee on 18.5.1995. The order retiring her was recalled or superseded by a subsequent order and she was again appointed as a trustee and then as the Chairperson of the Executive Committee in the year 2005. On the petition of the petitioner for grant of stay, the Court on 25.10.2005 passed the following order:
25-10-2005 Present : Mr. Manoj Kumar for the petitioner.
Mr. Kailash Gambhir for respondent No. 1.
Mr. Anil Gupta for respondents No. 2 and 3.
+W.P.(C) No. 20242/2005 & CM 13183/2005 Notice be issued to respondents to show cause as to why rule nisi be not issued. Mr. Kailash Gambhir accepts notice on behalf of respondent No. 1 and Mr. Anil Gupta accepts notice on behalf of respondents No. 2 & 3. Counter affidavit be filed within four weeks. Rejoinder be filed within four weeks thereafter.
Election of respondent No. 3 as President will be subject to outcome of the writ petition.
Renotify on 7.2.2006.
21. The above order was never questioned by the petitioner and the respondent No. 3 has been working as President of the Executive Committee for all this period. The language of Clause 7.2 provides for retirement of trustees on the expiry of a period of 10 years in the manner and extent as specified in that clause. Under Clause 7.2 (i), 1/3rd of the total number of the trustees were to retire and the consequential vacancies to be filled by nominations of new trustees by the retiring members against the vacancies caused by their retirement. In contradistinction to the word 'new', expression 'reappointment for a further period of 10 years' has been used in Clause 8 relating to appointment of President of trustees. This expression "reappointment" signifies the element of continuity i.e. the President of the Trust could be reappointed without any break in tenure and could continue for a period of 20 years provided the Government of India from amongst the trustees reappoints a person to that post. This implies that a trustee member, whether under the amended or the unamended Clauses of 7.2 cannot continue at a stretch for a period in excess of 10 years and a new trustee is to be appointed after expiry of each member's term. In other words, the element of continuity is not indicated in the language of Clause 7.2. The respondents relied upon the judgment of the Supreme Court in the case of P. Venkaiah v. G. Krishna Rao and Ors. where the Court deliberated on the meaning of expression 'new' and held as under:
Further, in our opinion the language of the rule, if considered in the context in which it is used, clearly indicates that the new entrants referred to therein are new entrants to the stage carriage business.
Mr. Natesan, learned Counsel for the first respondent, contended that if we read the rule regarding new entrants as well as the rule relating to business or technical experience together then it would be clear that "new entrant" referred to in Rule 212 (1) (ii) (a) is a new entrant to the motor transport business. We are unable to accept that contention as correct. If Mr. Natesan's contention is correct then even an operator of a scooter rickshaw would be deprived of the benefit of the rule. This could never have been the intention of the rule-making authority.
With respect we fully endorse this view and that disposes of contention B.
8. In relation to contention C learned Counsel for the appellant C has drawn our attention to the dictionary meaning of the word 'new'. The Oxford English Dictionary lists the following, amongst others, against that word:
not existing before; now made, or brought into existence, for the first time... not previously known; now known for the first time.
If these were the only meanings of the word, the contention might have considerable force. But the word 'new' is also stated in the same dictionary to mean:
Coming as a resumption or repetition of some previous act or thing; starting afresh...restored after demolition, decay, disappearance, etc... other than the former or old: different from that previously existing, known, or used.
Thus a set of things which is different from that immediately preceding it may well be called new. Furthermore, a situation which once existed and then ceased to exist (disappeared) my properly attract the word 'new' on reappearance. Seen in this light the adjective 'new' would certainly be applicable to a person who was once in the line of operators of stage carriages but who has long ceased to be so and who seeks entry into that line afresh; and in our opinion this connotation of the word is not excluded by the context in which the word has been used in Rule 212. We have, therefore, no reason to depart from or qualify the observations made by the Division Bench on the point.
22. The Trust Deed does not carry any clause for disqualification or debarring. It is difficult to infer that the various clauses of the Trust Deed contemplate any restriction or bar even by necessary implication. Yes, a trustee could not continue without vacating the office for a period in excess of 10 years.
23. The essence of management of Trust is indicated in Clause 24 of the Trust Deed where a majority i.e. 3/4th members of the Trust can amend, alter or even modify the Trust Deed, of course, subject to prior written approval of the government. It is further of some significance that 1/3rd of the total number of the trustees on expiry of the initial term are to fill up the consequential vacancies by nomination of a new trustee. What is apparently debarred is continuation in office. In the present case, even if for the sake of arguments, it is assumed that the order dated 7.1.2000 retiring the said respondent was valid then, after a lapse of 5 years i.e. vide order dated 2.2.2005 she was again nominated by the Government. Direct nominations by the Government forms one class of nominees, while the other class of nominees would be the ones nominated by the retiring members. Thus, there is no element of continuity in her appointment.
24. In the present case, the power to amend is specifically given to the members of the Trust and prior approval of the Government is required before amended provisions can be enforced. Both these ingredients were duly satisfied in the year 1995 itself before the applicant was nominated as a 'life trustee'. The learned Counsel appearing for the petitioner has not brought to our notice any provision or rule, including the rules of business, which prohibits a head of the Department holding the relevant portfolio from granting such approval for and on behalf of the Government.
25. As a result of her appointment in the year 2005, she was further elected as the Chairperson of the Executive Committee at the request of the Members of the Committee, as recorded in the minutes of 30.7.2005.
26. The learned Counsel appearing for the petitioner relied upon the judgment of the Supreme Court in the case of State of Bihar v. Maharajadhiraja Sir Kameshwar Singh of Darbhanga and Ors. (1952) 1 Supreme Court Cases 889 to contend that colourable exercise of power would vitiate any action and even a piece of legislation. He laid emphasis on paragraphs 76 of the said judgment.
27. Having heard the learned Counsel appearing for the parties, we are of the view that the said judgment has no application on facts and law to the present case. In that case, the Court was clearly of the opinion that the subordinate legislation was a colourable piece of legislation and in face of the fact that the law making authority was of a limited/qualified character, the Court also held that such power has to be strictly construed and the court could look into the form and appearance to determine whether or not the legislation was colourable or disguised.
28. In view of the above orders, it is clear that the said respondent had even quit the trust membership once and thereafter was again nominated. It may be usefully noticed here that respondent No. 3 was appointed as a life member of the Trust in the year 1995. The writ petition earlier filed by the petitioner being Civil Writ No. 4305/1998 was withdrawn after the order dated 7.1.2000. But, the question of amendments was not pressed for by the petitioner before the court. Later, she was again nominated as a Member, correctness of which order was not questioned by the petitioner for a considerable time. The Trust Deed was actually amended by them and the government gave its approval to the amendments at the relevant time. Thus, we are unable to see the element of colourable exercise of power or arbitrariness in various actions of the respondents. Ex facie, her appointment as 'Life Trustee', as made at the relevant time, does not suffer from any legal infirmity.
29. The learned Counsel appearing for the respondents while relying upon the judgment of the Supreme Court in the cases of Dattaraj Nathuji Thaware v. State of Maharashtra and Ors. ; Gurpal Singh v. State of Punjab ; Ashok Kumar Pandey v. State of W.B. and Dr. B. Singh v. Union of India and Ors. that the petitioner has no locus standi to question the appointment of the respondents as a trustee or her continuation in the office. Further it is argued that the Public Interest Litigation is not maintainable as the petitioner does not satisfy the basic ingredients stated by the Supreme Court in these judgments. In fact, the petition is stated to be a malicious and frivolous litigation. On the contrary, the learned Counsel appearing for the petitioner relied upon the judgments in the cases of Dr. (Mrs.) Meera Massey, Dr. Abha Malhotra, Dr. S.C. Bhadwal and Ors. , Dattaraj Nathuji Thaware v. State of Maharashtra and Ors. and Confederation of Ex.-Servicemen Associations and Ors. v. Union of India (UOI) and Ors. argue that the petitioner-Union has locus standi to file the petition in public interest as well as for the reason that they are employees of the Trust and the petitioner is the General Secretary of the Union. Thus, they have every right to question the legality and correctness in relation to the affairs of the Trust. The petitioner emphasized upon the financial irregularities stated to have been committed in the affairs of the Trust in this regard.
30. As far as the question of locus standi and maintainability of the petition is concerned, it has been rendered more or less academic in as much as we have already answered the contentions raised before us on the merits of the case. Similarly, we also do not consider it necessary to answer the point of locus standi as we find no merit in the writ petition itself. As far as the financial irregularities alleged in the petition are concerned, firstly they are vague, secondly, it was not disputed before us that the Accountant Controller General had found some objections and he had sent his objections along with the comments of the Trust to the Government for appropriate action. It is also pointed out in the reply filed by the respondents that a Committee was constituted for the purposes of construction. It has been pointed out that the Government had appointed a Building Committee to monitor the project. It is the main plank of arguments of the respondents in relation to the financial irregularities that there is no involvement of respondent No. 2 for planning or execution of the said construction work. The appropriate authority, that is the concerned Ministry, is already seized of the matter and thus, it will not be appropriate for this Court to preempt any appropriate orders by the competent authority.
31. For the reasons afore-stated, we find no merit in this petition. The same is dismissed while leaving the parties to bear their own costs.