Mansoor Ahmad Mir, J. (C.J.)
1. The subject matters of this writ petition are notification No. WLF-F(2)-2/88-IV, dated 11th December, 2013 (Annexure P-2), whereby the petitioner has been removed from the office of Chairperson of H.P. State Commission for Women (hereinafter referred to as "the Commission") and notification No. WLF-F(2)-2/88-IV, dated 11th December, 2013 (Annexure P-3), whereby respondent No. 4 came to be nominated/appointed as Chairperson of the Commission. Further, the writ petitioner has sought writ of mandamus commanding respondents No. 1 to 3 to allow her to serve as Chairperson of the Commission for the period she was appointed in terms of notification No. WLF-F(2)-2/88-IV, dated 7th January, 2012 (Annexure P-1) and has also sought compensation on the grounds taken in the memo of writ petition.
2. The respondents have filed replies resisting the grounds taken in the memo of writ petition.
3. The main averment contained in the writ petition is that respondents No. 1 to 3 have, illegally and in breach of principle of natural justice, made the notification dated 11th December, 2013 (Annexure P-2) whereby the petitioner came to be removed, without following due process of law and without affording her an opportunity of being heard.
4. In paras 1 to 7 of the writ petition, details have been given how the petitioner was appointed as Chairperson of the Commission. In para 8, it is averred that the petitioner belongs to a political party, i.e. Bhartiya Janta Party and that is how she was appointed in terms of Annexure P-1, dated 7th January, 2012. In para 10, it is averred that due to change of guard, i.e. the Congress Party came into power and respondent No. 4, who belongs to said Party, replaced the petitioner. Thus, the averments contained in the writ petition are that the appointment of the writ petitioner was due to political considerations and same is true with respondent No. 4.
5. The respondents have resisted the averments contained in the writ petition on the ground that the appointment of the Chairperson of the Commission was to be made at the pleasure of Governor and ''doctrine of pleasure'' is applicable.
6. The petitioner came to be appointed due to political considerations and there is no need to issue prior notice. The concept of principle of natural justice is not applicable in the given circumstances of the case, more so, when the appointments have been made without following any selection process and procedure, but at the pleasure of the Government.
7. The moot question, which arises for consideration, is-whether respondents No. 1 to 3 had to issue a notice to the petitioner and provide her an opportunity of being heard before removal? The answer is in negative for the following reasons:
8. The provisions of the Himachal Pradesh State Commission for Women Act, 1996 (22 of 1997) (hereinafter referred to as "the Act") contains the procedure how appointments are to be made of the non-official members manning the Commission and also of the Chairman. It also contains how the Commission has to function and what are its powers. Rules have also been framed by the Government in terms of sub-Section (1) of Section 21 read with Section 4 of the Act, which deal with the salaries, allowances and conditions of service of Chairperson and Members and other matters relating to the functions, powers and the constitution of the Commission.
9. The said Act was amended by virtue of amendment on 7th June, 2008 and Section 4 sub-Section (1) of the Act was substituted. It is apt to reproduce Section 4(1) of the Act as under:
(1) The Chairperson and non-official members shall hold office during the pleasure of State Government but not exceeding three years.
10. While going through this provision of law, there is no ambiguity to the effect that the Chairperson and the non-official members of the Commission have to hold office during the pleasure of the State Government within the time frame not exceeding three years. Meaning thereby, the services of the Chairperson as well as the non-official members of the Commission are on the sweet will of the State Government, i.e. at the pleasure of the State Government. Thus, the ''doctrine of pleasure'' is applicable.
11. Learned counsel for the petitioner argued that the respondents-Authorities had to hear the petitioner before issuing the notification, whereby the petitioner was removed from the office of the Chairperson of the Commission (Annexure P-2) and had to follow due process of law, which has not been done. This was rebutted by the learned counsel for the respondents by stating that it is not necessary that the Chairperson or the non-official members of the Commission have to complete three years of service, but can be removed at the pleasure of the State Government at any time. Admittedly, the petitioner was appointed as the Chairperson hailing from Bhartiya Janta Party by the BJP Government, as mentioned in para 8 of the writ petition, and was removed by the Congress Party by appointing respondent No. 4 as the Chairperson of the Commission, as is mentioned in para 10 of the writ petition.
12. In both the cases, the petitioner as well as respondent No. 4 have not gone through selection process, have been appointed without following due process, at the pleasure of the Government.
13. The next question to be determined is--whether a person/appointee, who came to be appointed without following any selection process, can claim that he/she should be heard before he/she is to be removed?
14. The same question has been dealt with by the Apex Court in a case titled as
19. It would be evident from Chapter V of the said Manual that to appoint the Chief Standing Counsel, the Standing Counsel and the Government Advocate, Additional Government Advocate, Deputy Government Advocate and Assistant Government Advocate, the State Government is under no obligation to consult even its Advocate General much less the Chief Justice or any of the Judges of the High Court or to take into consideration, the views of any committee that "may" be constituted for the purpose. The State Government has a discretion. It may or may not ascertain the views of any of them while making the said appointments. Even where it chooses to consult them, their views are not binding on it. The appointments may, therefore, be made on considerations other than merit and there exists no provision to prevent such appointments. The method of appointment is indeed not calculated to ensure that the meritorious alone will always be appointed or that the appointments made will not be on considerations other than merit. In the absence of guidelines, the appointments may be made purely on personal or political considerations, and be arbitrary. This being so those who come to be appointed by such arbitrary procedure can hardly complain if the termination of their appointment is equally arbitrary. Those who come by the backdoor have to go by the same door. This is more so when the order of appointment itself stipulates that the appointment is terminable at any time without assigning any reason. Such appointments are made, accepted and understood by both sides to be purely professional engagements till they last. The fact that they are made by public bodies cannot vest them with additional sanctity. Every appointment made to a public office, howsoever made, is not necessarily vested with public sanctity. There is, therefore, no public interest involved in saving all appointments irrespective of their mode. From the inception some engagements and contracts may be the product of the operation of the spoils system. There need be no legal anxiety to save them.
20. ......................... It will thus be seen that the appointment of two sets of officers viz., the Government Counsel in the High Court with whom we are concerned, and the District Government Counsel with whom the said decision was concerned are made by dissimilar procedures. The latter are not appointed as a part of the spoils system. Having been selected on merit and for no other consideration, they are entitled to continue in their office for the period of the contract of their engagement and they can be removed only for valid reasons. The people are interested in their continuance for the period of their contracts and in their non substitution by those who may come in through the spoils system. It is in these circumstances that this Court held that the wholesale termination of their services was arbitrary and violative of Article 14 of the Constitution. The ratio of the said decision can hardly be applied to the appointments of the law officers in the High Court whose appointment itself was arbitrary and was made in disregard of Article 14 of the Constitution as pointed out above. What is further, since the appointment of District Government Counsel is made strictly on the basis of comparative merit and after screening at different levels, the termination of their services is not consistent with the public interests. We are, therefore, of the view that the High Court committed a patent error of law in setting aside the order dated July 23, 1990 terminating the services of the respondents-law officers.
(Emphasis added)
15. Applying the test in this case, the petitioner was also appointed at the pleasure of the Government and came to be removed by the same pleasure, cannot now claim that the order of removal has been passed in breach of the principle of natural justice.
16. The question of ''doctrine of pleasure'' came up for consideration before the Apex Court in a case titled as
11. .......................... The removal u/s 40 applies to elected as well as nominated members. In respect of a nominated member, power of curtailment of term has now been given to the State Government under the fourth proviso to Section 9 added after the third proviso through the amending Act of 1990. In the cases before us, we are concerned with the removal of nominated members under the fourth proviso to Section 9 of the Act and we are not concerned with the removal as contained in Section 40 of the Act. The right to seek an election or to be elected or nominated to a statutory body, depends and arises under a statute. 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. In case of an elected member, the legislature has provided the grounds in Section 40 of the Act under which the members could be removed. 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.
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13......................... It is well established that the right of equality enshrined under Article 14 of the Constitution applies to equals and not to unequals. The nominated members of the Board fall in a different class and cannot claim equality with the elected members. We are also not impressed with the argument that there would be a constant fear of removal at the will of the State Government and is bound to demoralise the nominated members in the discharge of their duties as a member in the Board. We do not find any justification for drawing such an inference, inasmuch as, such contingency usually arises only with the change of ruling party in the Government. Even the highest functionaries in the Government like the Governors, the Ministers, the Attorney General and the Advocate General discharge their duties efficiently, though removable at the pleasure of the competent authority under the law, and it cannot be said that they are bound to become demoralised or remain under a constant fear of removal and as such do not discharge their functions in a proper manner during the period they remain in the office.
17. The Apex Court in another case titled as
6. The concept of natural justice is not a static one but is an ever expanding concept. In the initial stages it was thought that it had only two elements, namely, (i) no one shall be a judge in his own cause and (ii) no one shall be condemned unheard. With the passage of time a third element was introduced, namely, of procedural reasonableness because the main objective of the requirement of rule of natural justice is to promote justice and prevent its miscarriage. Therefore, when the legislature confers power in the State Government to be exercised in certain circumstances or eventualities, it would be right to presume that the legislature intends that the said power be exercised in the manner envisaged by the statute. If the statute confers drastic powers it goes without saying that such powers must be exercised in a proper and fair manner. Drastic substantive laws can be suffered only if they are fairly and reasonably applied. In order to ensure fair and reasonable application of such laws courts have, over a period of time, devised rules of fair procedure to avoid arbitrary exercise of such powers. True it is, the rules of natural justice operate as checks on the freedom of administrative action and often prove time-consuming but that is the price one has to pay to ensure fairness in administrative action. And this fairness can be ensured by adherence to the expanded notion of rule of natural justice. Therefore, where a statute confers wide powers on an administrative authority coupled with wide discretion, the possibility of its arbitrary use can be controlled or checked by insisting on their being exercised in a manner which can be said to be procedurally fair. Rules of natural justice are, therefore, devised for ensuring fairness and promoting satisfactory decision-making. Where the statute is silent and a contrary intention cannot be implied the requirement of the applicability of the rule of natural justice is read into it to ensure fairness and to protect the action from the charge of arbitrariness. Natural justice has thus secured a foothold to supplement enacted law by operating as an implied mandatory requirement thereby protecting it from the vice of arbitrariness. Courts presume this requirement in all its width as implied unless the enactment supplies indications to the contrary as in the present case. This Court in
The aim of the rules of natural justice is to secure justice or to put it negatively to prevent miscarriage of justice. These rules can operate only in areas not covered by any law validly made. In other words they do not supplant the law of the land but supplement it.
These observations make it clear that if the statute, expressly or by necessary implication omits the application of the rule of natural justice, the statute will not be invalidated for this omission on the ground of arbitrariness.
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9. What emerges from the above discussion is that unless the law expressly or by necessary implication excludes the application of the rule of natural justice, courts will read the said requirement in enactments that are silent and insist on its application even in cases of administrative action having civil consequences. However, in this case, the High Court has, having regard to the legislative history, concluded that the deliberate omission of the proviso that existed in sub-section (7) of Section 10 of the Ordinance 1980 while re-enacting the said sub-section in the Act, unmistakably reveals the legislature''s intendment to exclude the rule of giving an opportunity to be heard before the exercise of power of removal. The legislative history leaves nothing to doubt that the legislature did not expect the State Government to seek the incumbent''s explanation before exercising the power of removal under the said provision. We are in complete agreement with the High Court''s view in this behalf.
10. The Act contemplates the setting up of a Board with perpetual succession and a common seal comprising a Chairman and four Members possessing certain qualifications set out in subsection (4) of Section 10. The remuneration to be paid to them has been indicated in sub-section (5) and sub-section (6) indicates the maximum term or duration of appointment. According to that subsection the term of office of the Chairman/Member shall be three years from the date of taking charge or during the pleasure of the State Government. On a plain reading of the said sub-section it becomes immediately clear that the initial tenure will not exceed three years but this shall be during the pleasure of the State Government which means that the State Government shall have the right to curtail the tenure to less than three years also. If it does not do so and if the incumbent completes the full tenure of three years, the State Government may extend the term for such period as it deems appropriate so, however, that the total period shall not exceed six years. Therefore, neither the Chairman nor the Members have any right to continue for three years. ..............................
18. This judgment is a clear answer to the arguments advanced by the learned counsel for the petitioner and the averments contained in the writ petition.
19. This Court has dealt with a case of like nature titled as
14................................ Section 21 does not create any bar to remove the member before expiry of two years. However, a bare reading of this section shows that the nominated member enjoys privilege at the pleasure of the State Government. It does not create a right much less fundamental right in the nominee to hold the office for two years and curtailment of the term of the nominee is inherent and implied. The only bar created by the Act is that the State Government cannot nominate member of the Executive Council for more than two years at a stretch.
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Person nominated under this section shall hold his office during the pleasure of the Government by which he has been so nominated.
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19. The said contention was negatived by the High Court of Delhi and the provision was held intra vires. The Court observed that it is true that the term of the office of elected members of the Board of Directors was for three years and was extendable also. That did not, however, mean that an absolute right had been created in favour of such persons and that no action could be taken against them during the said term. The term was subject to the pleasure of the Government and the Government had the "inherent power to recall or revoke that order." The Court also upheld the contention of the respondent that the exercise of power nominating respondent No. 3 in that case (in place of the petitioner) was made on the basis of subjective satisfaction only. Since it was in exercise of the powers vested in the Government, it was not open to judicial review excepting malafides. In the facts and circumstances of the case, the Court did not uphold the contention of malafides on the part of Shri Devi Lal the then Deputy Prime Minister and dismissed the petition filed by the petitioner. It appears that against the said decision, the petitioner even moved the Hon''ble Supreme Court of India and the said petition being SLP No. 4811 of 1990 also came to be dismissed by the Supreme Court.
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23. Thus, according to the Court the change in the personnel position is "inevitable part of change in the policy and programmes" of the Government. The Court further observed that if democratically elected government, felt that for effective implementation of its policies and programmes and change in the personnel was necessary, it could not be accused of malafide or pursuing an act of vendatta. The Court also relied on its earlier judgment rendered in Ghanshyam Singh''s case (supra) against which SLP was dismissed by the Supreme Court. Referring to the judgment of the Supreme Court in
To summarise, the appointment of a person as the Chairperson of the Central Social Welfare Board is neither an appointment nor an employment under the State. The Government has absolute discretion in the appointment and removal of such a person. There is no vested right in the Chairperson for continuing to hold the appointment for the entire period of three years........................". "Where it is within the absolute discretion of the Government to confer the alleged dignity or status, it is implied in the said discretion that so called dignity or status can also come to an end in the exercise of said discretion. It is the Government which in its discretion treated the petitioner as a ''prominent social worker of all India status and attributed adequate administrative and organisational abilities.'' After all the petitioner has not objectively established that she possesses any such qualifications. The suitability for the appointment to the said office of the Chairman, Central Social Welfare Board is inseparably connected with the policy framework of the Government. Every loss of office whether high or low creates subjective feeling of loss of social position. But here the considerations of high administrative discretion and policy transcend personal emotions of loss of status of the petitioner.
Similar view was taken by a single Judge of Gujarat High Court in
It becomes clear from reading of the entire Scheme of the Act that it is on the basis of the subjective satisfaction on the part of the State Government that an appointment of the Chairman of the Board is to be made. It is clear from clause (a) of sub-section (1) of section 4, which inter alia provides that State Government may appoint the Chairman, "appearing to it to be qualified by reason of wide administrate experience in a managerial capacity." Therefore, whether the person can be said to be qualified for such post or not or whether such person is having wide administrative experience in a managerial capacity or not, etc. is left by the Legislature to the State Government to decide. No objective criteria have been laid down so as to decide the facts in an objective manner by Courts or by applying the principles of judicial review. Similarly, the proviso to sub-section (1) of section 6 empowers the State Government in no uncertain terms to determine the term of the office of the Chairman of the Board earlier than three years. Thus, the statute has conferred power on the State Government in respect of appointment as well as determination of the office of the Chairman of the Board. It has nothing to do with any disqualifications. Similarly, there is no question of removal or dismissal also. The provisions of section 6 are abundantly clear and even though the term of the office of the Chairman is of 3 years, it is liable to be determined earlier by the State Government and, therefore, no writ order or direction can be issued by the High Court restricting, preventing or prohibiting the State Government from exercising its statutory power, which has been granted by the legislature under the proviso to section 6(1).
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27. As regards the second contention that the termination was without reasons and without affording an opportunity of pre-decisional hearing to the petitioner, it may be noticed that section 21 does not enjoin on the State Government duty to give explicit reasons while issuing orders under it. The State is the best Judge to decide as to when and in what circumstances the term of nominated member should be reduced. It is not the requirement of section 21 that a nominated member who holds office at the pleasure of the State Government shall be reviewed by a speaking order. In our opinion, reasons are not required to be disclosed nor pre-decisional hearing is required. In Om Narain Agarwal''s case (supra) the Supreme Court has observed that if appointments made initially by nominations are based on political considerations, there can be no violation of any provisions of the Constitution in case legislature authorised the State Government to determine such appointment at its pleasure and to nominate new members in its 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. In case of elected member the legislature has provided the grounds in section 40 of the Act under which the members could be removed. But so far as nominated members are concerned, the legislature in its wisdom has provided that they shall hold office during the pleasure of the Government Such provision neither offends any Article 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 any 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.
(Emphasis supplied)
20. Applying the test in this case, the State has exercised power of ''doctrine of pleasure'' in both the cases, i.e. in the case of the petitioner so also in the case of respondent No. 4. Annexure P-1 is the appointment order of the petitioner, dated 7th January, 2012. Annexure P-2, whereby the petitioner has been removed from the office of the Chairperson of the Commission, and Annexure P-3, whereby respondent No. 4 was appointed as Chairperson replacing the petitioner, cannot be questioned by a person, who was also appointed in the same fashion, and cannot complain about the principle of natural justice.
21. This Court also in another case titled as
22. A Division Bench of this Court has recently dealt with a case of similar nature in CWP No. 279 of 2013-H, titled as Joginder Singh Verma versus State of H.P. and another, decided on 2nd July, 2013, and has laid down the same principle.
23. Keeping in view the ratio laid down in the judgments rendered by the Apex Court and this High Court, we are of the considered view that the petitioner was sailing in the same boat in which respondent No. 4 is sailing and has no right to question the orders made by the State Government while exercising the ''doctrine of pleasure''.
24. Having glance of the above discussions, the writ petition deserves to be dismissed. Dismissed as such alongwith all pending applications. Interim directions, if any, shall stand vacated.
