Himachal Pradesh High Court
_____________________________________________________________________ vs State Of Himachal Pradesh And Another on 22 November, 2018
Bench: Surya Kant, Ajay Mohan Goel
1
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
.
CWP No.: 1135 of 2018
Rserved on 15.11.2018
Date of Decision: 22.11.2018
_____________________________________________________________________
Amit Nanda .....Petitioner.
Vs.
State of Himachal Pradesh and another .....Respondents.
Coram: r
The Hon'ble Mr. Justice Surya Kant, Chief Justice
The Hon'ble Mr. Justice Ajay Mohan Goel, Judge
Whether approved for reporting?1
For the petitioner: Mr. Shrawan Dogra, Senior Advocate,
with M/s P.D. Nanda and Deven Krishan
Khanna, Advocates.
For the respondents: Mr. Ashok Sharma, Advocate General,
with M/s J.K. Verma, Ranjan Sharma,
Adarsh Sharma, Ritta Goswami, Nand
Lal Thakur and Ashwani Sharma,
Additional Advocate Generals & Mr.
Rajat Chauhan, Law Officer.
Ajay Mohan Goel, Judge:
Department of Social Justice and Empowerment, Government of Himachal Pradesh vide Notification dated 20.04.2016 (Annexure P1), set up a Commission, namely, 'The Himachal Pradesh State Commission for Scheduled Castes'. The Commission was to comprise of a Chairperson, who was to be nominated by the State 1Whether the reporters of the local papers may be allowed to see the Judgment?
::: Downloaded on - 22/11/2018 23:00:30 :::HCHP 2Government and three NonOfficial Members, also to be nominated by the .
State Government. Director, Scheduled Castes, Other Backward Classes and Minority Affairs, Himachal Pradesh was to be the Member Secretary.
As per the Notification, the term of the NonOfficial Members including Chairperson was to be three years. The State Government was empowered to remove the Chairperson or Member from the Commission in terms of Clause 3 thereof.
2. This was followed by issuance of another Notification dated 25th September, 2017 by the Department of Social Justice & Empowerment, vide which, the State Government constituted the Himachal Pradesh State Commission for Scheduled Castes and the petitioner was nominated as Chairperson thereof. It was mentioned in the Notification (Annexure P2) that the term of the office of the NonOfficial Members including Chairperson shall be three years.
3. The order of fixation of honorarium and other allowances/facilities of the Chairperson as also Members of the Commission was issued vide Notification dated 8th March, 2018.
4. Vide Notification dated 10th May, 2018, again issued by the Department of Social Justice & Empowerment, Government of Himachal Pradesh, the nominations of Chairman and NonOfficial Members of the Commission were "withdrawn with immediate effect" in supersession of earlier notification dated 25.09.2017.
::: Downloaded on - 22/11/2018 23:00:30 :::HCHP 35. Feeling aggrieved, the petitioner has filed this writ petition, .
inter alia, praying for quashing of the said Notification on the grounds that the issuance of Notification is arbitrary, an act of colourable exercise of power and in derogation of the provisions of Notification dated 20.04.2016.
6. The State has defended its decision, inter alia, on the grounds that the nomination was withdrawn by the Government in exercise of its executive powers to ensure effective implementation of policies and programmes undertaken by the Government. As per the State, Notification dated 25.09.2017 did not provide for the nomination to continue in perpetuity or that the nomination could not be curtailed or revoked before completion of three years. It is further the stand of the State that power to nominate includes the power to withdraw and as nomination is a privilege, it is subject to the pleasure of the nominating authority. Exercise of colourable power stands denied so also that the action was politically motivated. It is also the case of the State that the nomination was withdrawn in view of the policy decision of the Government to disband the services of nominated Chairman etc. and that the petitioner has to go the same way/manner in which he was nominated.
7. We have heard learned Senior Counsel for the petitioner as also learned Advocate General.
::: Downloaded on - 22/11/2018 23:00:30 :::HCHP 48. As directed by this Court, the original record, both pertaining .
to the nomination of the petitioner as also the issuance of impugned Notification was made available by the State and the same stands perused by us.
9. Official record demonstrates that vide Note No. 122, dated 17.05.2016, the proposal to invite applications for filling up the office of Chairperson and NonOfficial Members of the Himachal Pradesh State Commission for Scheduled Castes was submitted before the higher Authorities by the Department. Record does not disclose that any applications were invited.
10. Vide Note No. 123, the file was put up by the Secretary concerned for nomination of appropriate candidates as per qualifications and the Minister concerned vide Note No. 124 dated 01.07.2016 placed the matter before the Chief Minister.
11. This was followed with the nomination of the Chairperson and Members under the signatures of the Chief Minister on 21.09.2017 against Note No. 126, followed with written instructions by the Minister concerned against Note No. 127 that the Notification be issued immediately.
12. Record does not disclose that, as was proposed vide Note No. 122, any applications were invited for the office of Chairperson or Non Official Members from amongst the eligible persons. Record also does not ::: Downloaded on - 22/11/2018 23:00:30 :::HCHP 5 disclose as to how the name of the Chairperson or other Members .
cropped up to be considered for the purpose of nomination. There is no reference of the qualification of the petitioner or the fact that he belongs to Scheduled caste. Record suggests that perhaps the petitioner had filed an application but that was for being nominated as a NonOfficial Member.
13. We may clarify that we are not suggesting that the petitioner was either not qualified or not belonging to the Scheduled Caste category, but what we are trying to emphasize is that this is not borne out from the official record, which led to the issuance of the Notification of nomination of the petitioner as Chairperson.
14. The Commission has been set up vide Notification dated 20.04.2016. As per Clause 4 thereof, the Chairperson and NonOfficial Members are to be nominated from amongst persons of ability, integrity and standing in society and who have served for the welfare and upliftment of the Scheduled Castes having educational qualifications not below that of a graduate. This Clause further provides that the Chairperson shall be from the Scheduled Caste category having eminence in public life or a retired Government servant not below the rank of Principal Secretary to the State Government belonging to the Scheduled Caste category. Clause 4 of the Notification which deals with the ::: Downloaded on - 22/11/2018 23:00:30 :::HCHP 6 qualifications for nomination as Chairperson and NonOfficial Members .
reads as under:
"4. Qualifications for nomination as Chairperson and NonOfficial Members. (1) The Chairperson and NonOfficial Members shall be nominated from amongst persons of ability, integrity and standing in society and who have served for the welfare and upliftment of the Scheduled Castes, having educational qualifications not below that of a graduate.
(2) Subject to the provisions of clause (1),
(a) the Chairperson shall be from the Scheduled Castes categories having eminence in public life or a retired Government servant not below the rank of Principal Secretary to the State Government belonging to the Scheduled Castes categories; and
(b) NonOfficial Members of the Commission shall be eminent persons of ability, integrity and standing, who have served for the welfare and upliftment of Scheduled Castes and having atleast graduation degree in any stream:
Provided that the NonOfficial Member from the legal profession must have at least ten years standing as an Advocate or must have at least ten years experience in dealing with legal matters:::: Downloaded on - 22/11/2018 23:00:30 :::HCHP 7
Provided further that atleast two Non .
Official Members including Chairperson shall be from Scheduled Castes categories."
The language of Clause 4(1) clearly demonstrates that the nomination of the Chairperson has to be "from amongst persons" of ability, integrity etc., meaning thereby that nomination has to be from amongst a group of persons who are qualified for being nominated as Chairperson and such nomination can obviously be made by the Authority only if applications are invited by the Department from qualified persons so that the most suitable amongst them can be nominated as the Chairperson. As we have already mentioned above, record demonstrates that this exercise has not been undertaken by the Department before the nomination of the petitioner as the Chairperson. Vide impugned Notification dated 10 th May, 2018, the Government has withdrawn the nominations of the Chairperson and NonOfficial Members of the Commission. Thus, it is not a case where either the Chairperson or the Members of the Commission have been removed by the Government.
15. Though in this writ petition we are not judicially reviewing the nomination of the petitioner as the Chairperson, yet this Court cannot shut its eyes to the fact that perhaps the said nomination was not made by strictly following the procedure prescribed vide Notification dated 20.04.2016. It is in this background that now we have to examine ::: Downloaded on - 22/11/2018 23:00:30 :::HCHP 8 the legality of Notification dated 10th May, 2018. As we have already .
mentioned above, vide impugned Notification, it is not as if the Chairperson or NonOfficial Members of the Commission have been removed. Their nominations stand withdrawn by the State Government vide Notification dated 10th May, 2018. We may hasten to add at this stage that it is mentioned in the reply by the State that the said Notification was issued pursuant to a policy decision taken by the State to disband the services of all nominated Chairman(s)/Vice Chairman(s)/NonOfficial Members of all Board/Commissions and this policy decision has not been challenged by the petitioner.
16. At this stage, it is also important to state that a person is not per se appointed as a Chairperson of the Commission in issue. It is not a 'post' which is held by him. An eligible person is nominated to hold the office of the Chairperson of the Commission. This nomination is made by the State Government. The term of the office of the Chairperson is prescribed in the Notification as three years. This period of three years is not the minimum tenure but is the maximum and there is a proviso contained in Clause 3 of Notification dated 20.04.2016 (Annexure P1) that no Chairperson shall hold office for more than two terms.
17. The well recognized judicial tests to infer by implication as to whether appointment to an office is based on the 'pleasure doctrine' are:
::: Downloaded on - 22/11/2018 23:00:30 :::HCHP 9 "(a) where appointment is to be made by the
.
Government by nomination on the subjective satisfaction of the Government; and
(b) when there is no minimum term of office in the Statute.
As far as the first test is concerned, Clause 4 of Notification dated 20.04.2016 itself demonstrates that said nomination by the State Government is based on the subjective satisfaction of the Government from amongst eligible persons. Besides this, there is no minimum term of office in the Notification and the term of three years mentioned therein is the maximum.
18. A Division Bench of this Court in CWP No. 9668 of 2013G, titled as Dhaneshwari Thakur Vs. State of H.P. and others, decided on 15.07.2014 while answering the question as to whether a person/appointee, who came to be appointed without following any selection process, can claim that he/she be heard before he/she is removed, after relying upon the decision of the Hon'ble Supreme Court in State of U.P. and others versus U.P. State Law Officers Association and others, (1994) 2 Supreme Court Cases 204, has held that a person who is appointed at the pleasure of the Government and came to be removed by the same pleasure, cannot claim that the order of removal has been passed in breach of principles of natural justice.
::: Downloaded on - 22/11/2018 23:00:30 :::HCHP 1019. Hon'ble Supreme Court in Om Narain Agarwal and others .
versus Nagar Palika, Shahjahanpur and others (1993) 2 Supreme Court Cases 242 has held that when a person is appointed by the State in exercise of its power of 'doctrine of pleasure', it is not necessary that such an appointee should continue for the entire period and he can be removed at any time while exercising power of 'doctrine of pleasure'.
20. The principle of the power to remove an officer appointed at the pleasure of the State before completion of tenure has also been approved by this Court in Saroj Sharma versus State of Himachal Pradesh and another, 1999(2) Shim. L.C. 222, as also by a Division Bench of this Court against in CWP No. 279 of 2013H, titled as Joginder Singh Verma versus State of H.P. and another, decided on 2nd July, 2013.
21. Hon'ble Supreme Court in State of U.P. and others Vs. U.P. State Law Officers Association and others, (1994) 2 Supreme Court Cases 204 has held that those who come by the back door have to go by the same door and those who come to be appointed by such arbitrary procedure can hardly complain if the termination of their appointment is equally arbitrary.
22. Applying the above stated tests in this case, in our considered view, the State has exercised its power of 'doctrine of pleasure' for withdrawing the nomination of the petitioner as the Chairperson of ::: Downloaded on - 22/11/2018 23:00:30 :::HCHP 11 the Commission. Incidentally, in the present case, it is not as if the .
petitioner has been removed from the office in question.
23. In the light of the discussion held hereinabove, as also the case law discussed, in our considered view, the petitioner has no right to question the Notification dated 10th May, 2018, issued by the State Government while exercising the 'doctrine of pleasure', vide which the nomination of the petitioner has been withdrawn. Therefore, as we do not find any merit in the writ petition, the same is accordingly dismissed. No order as to costs. Miscellaneous applications, if any, also stand disposed of.
(Surya Kant) Chief Justice (Ajay Mohan Goel) Judge November 22, 2018 (bhupender) ::: Downloaded on - 22/11/2018 23:00:30 :::HCHP