Civil Review No. 55 and 56 of 2013. Case: The State of Jharkhand through the Chief Secretary & Others Vs Brajnesh Chandra Vidyarthi Chandra Bhushan Kumar and Ashok Kumar Nag, [Alongwith Civil Review No. 56 of 2013]. Jharkhand High Court
| Case Number | Civil Review No. 55 and 56 of 2013 |
| Counsel | For Appellant: Mr. Jai Prakash, AAG and Mrs. Debolina Sen, JC to AAG and For Respondents: M/s. Anoop Kr. Mehta, Rajiv Ranjan and Rahul Kr., Advocates |
| Judges | Aparesh Kumar Singh, J. |
| Issue | Code of Civil Procedure, 1908 (CPC) - Order XLVII Rules 1, 47, XLVII; Constitution of India - Articles 226, 309, 311, 310, 310(2), 311(2) |
| Judgement Date | October 22, 2013 |
| Court | Jharkhand High Court |
Judgment:
Aparesh Kumar Singh, J.
-
Heard counsel for the parties. These review petitions are preferred by the State of Jharkhand, the respondent in the writ petitions being WPC No. 1181/2013 and WPC 1280/2013 which were decided by the common judgment dated 28th June 2013. Before proceeding to discuss the grounds seeking review, as advanced by the review petitioner, it would be appropriate to notice what was under challenge in the writ petitions.
-
The writ petitioners/respondents herein, had assailed the common impugned notification dated 16th February 2013 issued by the Deputy Secretary, Department of Sports, Art, Culture and Youth Affairs, Government of Jharkhand, whereby their services as Chairman and Member of the Jharkhand State Youth Commission were terminated in exercise of powers under Rule 4(vi) of the Jharkhand State Youth Commission Rules, 2012.
-
The common grounds for assailing the impugned notification raised on behalf of the writ petitioners were that as per the Rules of 2012, Commission has the tenure of three years and the Chairman/Member should be within the maximum age of 40 years. According to the writ petitioners, they were appointed as Chairman and Member of the Jharkhand State Youth Commission by notification contained at Memo No. 21 dated 8th January 2013 issued under the signature of Deputy Secretary of the same Department, under the orders of His Excellency The Governor of Jharkhand in exercise of powers under Rule 3 of 2012 Rules. The writ petitioners had assailed the impugned action inter-alia on the grounds that the removal of the petitioners as Chairman/Member of the Commission invoking Rule 4(vi) of the 2012 Rules, was arbitrary, without any notice and in purported exercise of Doctrine of Pleasure by the respondent State. It was their contention that Rule 4(v) lays down condition which entails disqualification for removal from the post of Chairman or Member of the said Commission. Proviso to the aforesaid Rules stipulates opportunity of hearing before any action is taken. Writ petitioners had argued that the Doctrine of Pleasure as conceived under the Constitution of India and as referred to in Part-XIV of Chapter-I of the Constitution of India relating to service under the Union and the State, is not an unqualified power; rather are subject to restriction imposed by the Constitution and to be read into the Rules framed under Article 309 of the Constitution of India.
-
The respondent State took time to file their response and after filing of the counter affidavit, took further time to file supplementary counter affidavit to bring on record their stand. The matter was adjourned on more than one occasion to enable them to bring on record their stand and thereafter supplementary counter affidavit was also filed. Order nos. 4 & 5 dated 10th April 2013 and 26th April 2013 are being quoted here-under:
04/10.04.2013 Learned counsel appearing on behalf of the respondent State submits that certain more facts are required to be brought on record by way of supplementary counter affidavit, for which the case may be adjourned.
Accordingly, let the case appear after one week.
In the meantime, as per the undertaking given by the counsel for the respondent State, no appointment shall be made to the Youth Commission.
05/26.04.2013 Learned AAG Mr. A. Allam, after some argument seeks some time to obtain instruction and if necessary file further affidavit. Learned counsel for the petitioner has also sought to address the Court by relying upon certain judgments of the Hon'ble Supreme Court.
In that view of the matter, let both cases appear on 17th June 2013.
In the meantime, interim order dated 10.4.2013 shall continue and parties will exchange their pleadings as also list of judgments on which they seek to rely.
-
Writ petitions were thereafter heard and decided by the impugned judgment. The respondent State in the affidavit filed on their behalf had sought to justify the invocation of the power conferred under Rule 4(vi) of the 2012 Rules to remove the writ petitioners after giving them one month notice or salary in lieu thereof. It was also argued that it was not necessary to give opportunity of hearing to the petitioners as the impugned actions are not undertaken in exercise of Rule 4(v) for removing the Chairman or Members of the Youth Commission on established grounds of disqualification enumerated thereunder. During course of submission, learned State Counsel also submitted that appointments were made without following the proper procedure for public post. However, no foundational facts were brought on record in support of such submission even after filing of counter affidavit and supplementary counter affidavit. In such circumstances, the writ petitions were heard and decided on the question, whether the respondent State is entitled to invoke the Doctrine of Pleasure for removing the petitioners from the post of Chairman/Member by giving them one month salary under Rule 4(vi) of the Rules 2012. This Court after discussing the relevant provisions contained in Part-XIV Chapter I of the Constitution of India which relates to service under Union and the State as also law laid down by the Hon'ble Supreme Court in that regard in a number of judgments in the case of Moti Ram Deka & others vs. North Eastern Frontier Railway & others (AIR 1964 SC 600), Union of India vs. Tulsi Ram Patel [(1985) 3 SCC 398], B.P. Singhal vs. Union of India & another [(2010) 6 SCC 331] and Delhi Transport Corporation vs. D.T.C. Mazdoor Congress & others (AIR 1991 SC 101), held that the invocation of the said Rule without giving any opportunity of hearing or notice to the petitioners, is arbitrary and violative of principles of natural justice and deserves to be interfered in exercise of its power under Article 226 of the Constitution of India. This Court also found that the respondents had failed to bring on record any foundational facts/reasons for exercising such powers which could be the subject matter of judicial review under Article 226 of the Constitution of India. The impugned notification was accordingly quashed. Extracts of Paragraph-11, 14, 15 and 16 of the judgment impugned which deals with the question, are quoted here-under for better appreciation of the issues which were raised, canvassed and decided by this Court in the...
To continue reading
Request your trial