Karnataka High Court Upholds Government’s Right to Remove Commission Chairman at Pleasure Under Karnataka State Minorities Commission Act
Case title: MR. ABDUL AZEEM VS STATE OF KARNATAKA
Case no.: WRIT PETITION No.17396 OF 2023 (GM – RES)
Dated on: 28th May 2024
Quorum: Hon’ble. MR JUSTICE M. NAGAPRASANNA.
FACTS OF THE CASE
The petitioner claims to be a highly qualified citizen having M.A., LL.B. degree and retired as Assistant Police Commissioner and is known for his scientific investigation of high-profile criminal cases. The petitioner was also a Member of the Legislative Council and later in the year 2019 was appointed as the Chairman of the Commission for a period of three years (hereafter referred as the ‘first tenure’). The appointment was in terms of Sections 3 and 4 of the Karnataka State Minorities Commission Act, 1994 (hereinafter referred to as ‘the Act’ for short). The petitioner completes his first tenure on 15-10-2022. On completion of first tenure, an order comes to be passed continuing the petitioner as Chairman of the Commission for another term of three years, for it come to an end on 15-10-2025. When the petitioner was functioning as Chairman of the Commission, the men who man the Government changed. On 22-05-2023 a tippani emerges from the office of the Chief Minister which is communicated by the Chief Secretary to all the Departments. The communication was that the nominations made by the earlier Government will have to be annulled. In furtherance of the aforesaid communication/tippani a Notification comes to be issued on 22-05-2023 by which the continued nomination of the petitioner/2nd tenure is cancelled. The petitioner represents to the respondent/State on 24-05-2023 seeking to withdraw the said Notification. Owing to the representation, a Notification comes to be issued on 24-05-2023 withdrawing the Notification dated 22-05 2023 whereby the notification which cancelled the nomination of the petitioner for the second tenure comes to be withdrawn. The petitioner continues as Chairman of the Commission. The petitioner between the dates 22-05-2023 and 24-05-2023 had submitted a representation 23-05-2023 seeking consideration of the said representation to complete the term as a chairman for another 2 years and 5 months. When there was delay in consideration of the said representation, he had knocked at the doors of this Court in the subject petition by filing it on 05-08-2023. This Court initially issued notice to the respondents. During the pendency of the petition, it appears, the Government issues a Notification on 15-12-2023 cancelling the nomination of the petitioner as Chairman of the Commission. Therefore, the petitioner continues to function as Chairman of the Commission. The State files an application seeking vacation of the interim order and the petitioner files rejoinder to the statement of objections and objections to the application seeking vacation of the interim order. The matter was heard. When it was pointed out that there is no challenge to the order dated 15.12.2023, an amendment comes to be filed by the petitioner which is directed to be taken along with the main matter. With the consent of parties, the matter was heard.
ISSUES
- whether the petitioner would have any right to continue in the nominated post, which was at all times subject to the pleasure of the State?
LEGAL PROVISIONS
Constitution of India
ARTICLE 226: Article 226(1) it states that every High Court shall have powers to issue orders or writs including habeas corpus, mandamus, prohibition, quo warranto, and certiorari, to any person or any government for the enforcement of fundamental rights and other purpose.
Karnataka State Minorities Commission Act, 1994
Section 3: Constitution of the Commission
This section outlines the formation and composition of the Karnataka State Minorities Commission, including the appointment of the Chairman and other members.
Section 4: Term of Office and Conditions of Service of Chairman and Members
Sub-section (1): Specifies that the Chairman and other members shall hold office for a term of three years and that their tenure is subject to the pleasure of the Government. This implies that their term can be curtailed by the Government at any time.
Sub-section (2): Details other conditions of service for the Chairman and members, which may be prescribed by rules.
Section 5: Disqualifications for Office of Membership
This section lists specific grounds on which a member can be disqualified from holding office.
CONTENTIONS OF THE APPELLANT
The learned senior counsel appearing for the petitioner submits that the appointment of the petitioner was for a fixed tenure of three years on certain terms and conditions. It was continued for another period of three years on the same terms and conditions. Therefore, it becomes an appointment with fixed tenure and the order which withdraws or cancels the nomination or appointment as the case would be, is arbitrary and misuse of power of pleasure that is available to the State to remove any person who is nominated. The learned senior would seek to place reliance upon several judgments of the Apex Court and that of this Court, all of which would bear consideration qua their relevance. n the rejoinder to the submission of the learned Advocate General, the learned senior counsel would submit that the State in its application seeking vacation of the interim order has indicated that there were several misconducts or illegalities on the part of the petitioner while discharging his duties as Chairman. Therefore, the removal of the petitioner would come within Section 5 of the Act and if it is under Section 5, it could not have been passed without following the principles of natural justice. It is her submission that no notice even issued and the petitioner is removed casting a stigma. She would seek quashment of the order.
CONTENTIONS OF THE RESPONDENTS
The learned Advocate General would take this Court through the Act with particular reference to Section 4. The nomination of the petitioner even if it is for a term, the nomination is in terms of Section 4 of the Act. Section 4 of the Act itself indicates that the chairperson of the Commission will be functioning subject to the pleasure of the Government. Pleasure of the Government shall be that it would only be until further orders. He has been nominated and de-nominated now and no fault can be found with the order impugned cancelling the second tenure of the petitioner. He would also seek to place reliance upon several judgments, which would all bear consideration in the course of the order qua their relevance.
COURT’S ANALYSIS AND JUDGEMENT
Though the Apex Court has close to five decades ago considered the effect of doctrine of pleasure and has rendered judgments from time to time, it would suffice if reference is made to the Constitution Bench judgment rendered in 2010, in the case of B.P. SINGHAL v. UNION OF INDIA. It is not in dispute that the petitioner was appointed in terms of Section 4 of the Act supra. Sub-section (1) of Section 4 clearly indicates that the Chairman or other members shall hold office for a term of three years subject to pleasure of the Government. Therefore, the statute itself recognizes the right of the Government to tinker with the nomination prior to its expiry as it is subject to pleasure of the Government. There need not be any inference drawn whether it is a pleasure term or otherwise as the statute itself indicates that it is at the pleasure of the Government. The issue is, whether pleasure could be exercised at any time by the State in terms of Section 4(1) of the Act. Before embarking upon its consideration, I deem it appropriate to notice the line of law, both upholding the annulment of appointment / nominations and annulling such annulment of appointment / nominations by the Apex Court and this Court. The Apex Court holds that doctrine of pleasure however is not a licence to act with unfettered discretion to act arbitrarily, whimsically or capriciously. The said judgment has been followed by a Division Bench of this Court in B.K. UDAY KUMAR v. STATE OF KARNATAKA. The Apex Court holds that nomination by itself from its nature is that the nominees do not have any vested right to continue as it is not akin to a fixed tenure as found in statutory appointments. A Division Bench of this Court in the case of THE STATE OF KARNATAKA v. DR. DEEPTHI BHAVA. The Division Bench upturns the order of the learned single Judge holding that the nominees would hold office with the pleasure of the State and cannot be seen to project any right that is taken away when those nominations are cancelled. The Division Bench holds that principles of natural justice also do not apply to cancellation of nominations, unless it is shown that it is exercised in an arbitrary manner. The afore-quoted judgment in the case of KHUSRO QURAISHI was also concerning the nomination of Chairman of the Commission under the Act. The Division Bench holds that Section 4 itself uses the expression subject to pleasure of the Government. Therefore, it cannot be said that it is arbitrary on the part of the State to invoke the mandate of the statute. If the case of the petitioner is considered on the touch stone of the law laid down by the Apex Court and on the coalesce of the reasoning rendered therein what would unmistakably emerge is, that no right of the petitioner is taken away. The petitioner is a nominee who is nominated under Section 4 of the Act. Section 4 itself indicates that it is at the pleasure of the State. It is exercised and he is de nominated. Such de-nomination of a nominee cannot be questioned on the ground that it is arbitrary. Much reliance is placed by the learned senior counsel for the petitioner in the case of B.P. SINGHAL. The same would not merit any acceptance, as the said judgment is considered by three Division Benches of this Court subsequent to the judgment of the Apex Court and have all held that if the statute indicates that it is subject to the pleasure, a person who is nominated subject to such pleasure cannot make a hue and cry about cancellation of such nomination. The averment is that there are several misconducts and illegalities on the part of the petitioner. A statement in the application seeking vacation of interim order cannot generate a right in the petitioner, which the petitioner in law does not have. Even then, any such averment can never supersede the rigour or mandate of the statute. Taking cue from the aforesaid paragraph the learned senior counsel elaborates her submission by strenuously trying to bring in the case of the petitioner under Section 5 of the Act, to contend that if it is removal under Section 5, notice ought to have been issued. Section 5 deals with disqualification for office of membership. The reason for such disqualification is found in clauses (a) to (g) of sub-section (1) of Section 5 and if those clauses are to be invoked and the incumbent is to be removed, it is then a reasonable opportunity of being heard should be granted. The petitioner is not disqualified on any ground whatsoever. He has been de-nominated, and it is a de-nomination simpliciter exercising State’s right under Section 4 of the Act. This submission of the learned senior counsel for the petitioner, on this score also does not merit any acceptance. In the light of none of the submissions of the learned senior counsel for the petitioner being acceptable, the petition deserves to be rejected. The writ petition is dismissed. Interim order if any subsisting, shall stand dissolved. Consequently, pending applications, if any, also stand disposed.
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Judgement Reviewed by – HARIRAGHAVA JP
