Judgment:
ORDER
B.M. Lal, J.
1. Interpretation of tenure where language used therein is clear and unambiguous prescribing maximumperiod of outer limit but not internal limit, is involved in this case.
2. Besides this, where the appointment is not governed by any statutory provision or guideline, but is made purely on personal or political considerations, the appointment itself being arbitrary, whether can such appointee complain if the termination of such appointment is also equally arbitrary, and whether can such appointee raise objection to his exit when admittedly his entry itself is by back door, are the next question involved inthis case?
3. By this petition under Article 226 of the Constitution of India, the petitioner has prayed for issuance of a writ, order or direction in the nature of certiorari quashing impugned office memorandum dated 2-3-1994 issued by the respondents contained in Annure-8 to the writ petition, whereby tenure of Oil Selection Board for selection of dealers/distributors of petroleum products constituted by the respondents on 1-1-1993 vide Annexure-4 to the writ petition, has been terminated vide impugned Annexure-8 dated 2-3-1994, with the result tenure of the office of Chairman-Justice Shamsul Islam Jafri, a retired Judge of this Court and members Sri Ram Nihor Rajkesh and present petitioner Sri Anil Kumar Singh Yadav has come to an end.
3A. No doubt, this petition is filed only by one of the members namely Sri Anil Kumar Singh Yadav Challenging the termination of the Oil Selection Board, but by seeking the relief of quashing the impugned office memorandum contained in Annexure-8 the petitioner is also indirectly trying to restore the position of the Chairman as well as another member of the terminated Oil Selection Board.
4. In short the case of the petitioner is that respondent No. 1 vide letter No. P-19011/82. I.O.C. dated 9-2-1993 advised the constitution of Oil Selection Board (here-in-after referred to as the Board) for selection of dealership and distributorship of pertroleum products.
5. For brevity of the case, it is necessary to give brief history of the Constitution of Oil Selection Board. Originally only two Boards were constituted, one for northern India and the other for southern India. Thereafter two more Boards were constituted, one for eastern and the other for Western India. However, again these Boards were reconstituted and the number of Boards was increased from four to six and the Headquarters of the Boards were located at Delhi, Chandigarh, Ahmadabad, Bombay, Calcutta and Madras.
6. In January, 1993 the Board were again reconstituted being headed by a retired High Court Judge as its Chairman and a repre-sentative of S.C./S.T. or other weaker sections and a prominent public figure would be the members of the Board, Quorum of the Board would be two and in the absence of the Chairman, senior member of the Board shall function as Chairman of the Board. Ultimately the Boards have been constituted State-wise and thus in all 18 Boards were constituted for the whole country.
7 . The respondent No. 1 on 1-1-1993 issued a memorandum specifying constitution of the Board for the State of U.P. Hon. Mr. Justice S.I. Jafri, a retired Judge of this Court was appointed as Chairman and one Mr. Ram Nihor Rakesh was appointed as member being representative of S.C./S.T./ other weaker section and the present petitioner Anil Kumar Singh Yadav was appointed as a member of the Board being a prominent public figure. The Heradquarter of the Board is located at Lucknow. Copy of the constitution of the Board is Annexure-2 to this writ petition.
8. Clause 4 of this memorandum contains the terms and conditions of the appointment of the members to be mentioned in Annexure-2 to the memorandum. This Annexure-2 to the memorandum has been filed as An-nexure-3 to this writ petition.
9. A bare perusal of this Annexure-3 to the petition, makes it manifest that these appointments are restricted to a period not exceeding two years from the commencement of the work. Admittedly, with effect from 1-1-1993 the Board headed by Hon. Mr. Justice S.I. Jafri resumed the office, meaning thereby the total period of two years would come to an end on 31-12-1994.
10. But vide impugned office memora-dum dated 2-3-1994 contained in Annexure-8 the tenure of the Board for the State of U.P. was terminated with immediate effect in public interest, with the result Chairman Hon. Mr. Justice S. I. Jafri and members Sri Ram Nihar Rakesh and petitioner Anil Kumar Singh Yadav ceased to function as Chairman and members respectively. Hence this petition has been filed by one of the members of the Board namely Sri Anil Kumar Singh Yadav as narrated above.
11. This petition was heard on 9-3-1994 on the question of admission and stay. Appearance was made on behalf of the respondents and one month's time was sought by the learned counsel representing the respondents for filing counter-affidavit. The time as prayed for was granted. Meanwhile it was directed that no fresh Board be constituted for this State. However, it was made clear that this order may not be interpreted that dissolved Board is reinstated.
12. A short counter affidavit was filed on behalf of the respondents stating that before the interim order passed in this case could be served on the respondents, Hon. Mr. Justice S. H. Abidi a retired Judge of Patna High Court, was appointed as Chairman and one Jai Narain Tiwari ex-M.L.A. -- Sisauli, district Sultanpur (U.P.) was appointed as member of the Board and they resumed the office on 9-3-1994. The memorandum of appointment has been annexed as Annexure C.A.-2 to the counter affidavit. It has also been stated that since the appointment of Chairman and member of the Board has been made, therefore the interim order passed by this Court has become infructuous.
13. Since arguments have been advanced on merits of the case, therefore, it is not necessary to deal separately the stay matter and its consequences, but considering the arguments on merits advanced on behalf of the respective parties, this petition is being decided finally.
14. Learned counsel appearing for the petitioner Sri R. K. Jain a senior counsel of this Court, contended that without any rhyme or reason the respondents arbitrarily terminated the tenure of the Chairman and members of the Board vide impugned office memorandum contained in Annexure-8 to the writ petition. He also contended that the impugned order of termination not only suffers from the principles of 'AUDI ALTER AM PARTEM' which mandates that no one shall be condemned unheard and which is one of the basic principles of natural justice, but is also violative of Article 14 of the Constitution of India being discriminatory.
15. In support of his submission, the learned counsel further urged that since purpose constituting the Board was to maintain fairness, therefore, it was implicit that members of the Board should have been given definite tenure, and hence the tenure of two years given to the Board cannot be curtailed arbitrarily, and if the respondents are held to have vested with such arbitrary power it would become impossible for any Board to function independently without any pressure of the respondents. In this respect, it is also submitted that out of 18 Boards seven Boards have been terminated.
16. It is also submitted that the tenure which is fixed for two years cannot be curtailed or terminated before expiry of the period of two years. In the instant case, the Board was constituted which assumed charge with effect from 1-1-1993, therefore, before 31-12-1994 tenure of the present Board cannot be curtailed or terminated.
17. Learned counsel representing the respondents while advancing arguments on merits, contended that these appointments are not statutory appointments but are purely based on personal or political consideration,thus keeping in view the nature of the appointment, it can be terminated at any time even before two years, and thus no question of violation of Article 14 of the Constitution of India or the principles of natural justice, arises in this case. The writ petition is wholly misconceived and is liable to be dismissed.
18. Having heard rival contentions raised by learned counsel for respective parties, this Court has reached the conclusion that this petition has no force and is liable to be dismissed for the following reasons.
19. In a recent pronouncement in State of U.P. v. U.P. State Law Officer Association (supra) (sic) vide para 19 of the Judgment. Their Lordships of the Apex Court held that:
'In the absence of guidelines, the appointments may be made purely on personal or political considerations, and be arbitrary. This being so, these 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.'
20. The aforesaid observations of the Apex Court remind us the doctrine of 'Pleasure'. Latin phrase 'Pithly Durantc Bene Placiato' connotes the principles of 'Pleasure'. No doubt, where the appointment is statutory, the Statute governs or regulates the appointment, and the application of the doctrine of pleasure is subject to the restrictions imposed by Article 310(2) and 311(1)(2) of the Constitution of India, and therefore before termination order of a civil servant, procedure must be complied with as laid down in Article 311 of the Constitution and the Rules framed under Article 309 of the Constitution of India. So that field that is covered by Article 311 of the Constitution, would be excluded from the operation of the absolute doctrine of 'Pleasure.'
21. But in the present era of expanding horizon where administratively variety of appointments are made and 'pleasure' is not controlled by any statutory rule or by any guidelines, but the appointment is purely on personal or political consideration, certainlysuch appointments may be done away by applying the doctrine of 'pleasure'. Thus, in such termination the field is covered by the operation of the absolute doctrine of 'pleasure.'
22. Thus, where the appointment is not governed by Articles 309, 310 & 311 of the Constitution of India as in the instant case, the respondents are certainly competent in terminating the appointment of the petitioner applying the doctrine of 'pleasure', and therefore the impugned order dated 2-3-1994 is also covered by the doctrine of 'pleasure' as well besides other grounds. We may further observe here that notwithstanding existing of a contract of appointment, the respondents are free to terminate that contract of appointment evert before the expiry of the tenurial period and the same cannot be complained of seeking relief of reinstatement (See Vaish Degree College v. Laxmi Narayan, AIR 1976 SC 888).
23. In the instant case, initial constitution of the Board dated 1-1-1993 whereby Hon. Mr. Justice S. I. Jafria Chairman, and members Sri Ram Nihor Rakesh & Anil Kumar Singh Yadav, were appointed, was not a statutory one rather was based on purely personal or political considerations. The learned counsel for the petitioner also could not lay his hands in pointing out that the appointment was ever made under any statutory provision of law or even in the absence of any statutory provision the guidelines issued under certain executive instructions framed under Article 77 of the Constitution of India, and thus in the absence of statutory provisions such guidelines may be construed as statutory one.
24. Thus, the plea raised by learned counsel appearing for the petitioner that in tenurial appointments where maximum limit is fixed, before expiry of the said limit termination cannot be made, has to be examined.
25. In support of his contention, learned counsel for petitioner Sri R. K. Jain relied upon Annexure-4 dated 1-1-1993, by which the dissolved Board was constituted. We haveperused this office memorandum minutely. It no where mentions the period for which the Chairman and the members of the Board were appointed. However, a capy of the terms & Conditions of appointment of the Chairman & members of the Board has been filed as Annexure-3 to the writ petition. This An-nexure-3 to the writ petition provides tenure of the Chairman and Members of the Board in the following words:
'Restricted to a period not exceeding two years from the commencement of work.'
26. Thus, a bare reading of this clause demonstrates that outer limit for the maximum period of two years is prescribed or fixed. The words used 'restricted to a period not exceeding' giving much emphasis on 'not exceeding' denotes that there is no internal limit fixed and this indeed gives right to the respondents to terminate the appointment at any time even before expiry of two years, but since two years is the external limit, the appointment cannot be continued for more than two years.
27. Therefore under the terms & conditions, the maximum limit of tenure for which the appointment is to be made has been restricted to a period not exceeding two years. but there is no restriction regarding minimum limit of tenure, and therefore, in between two years the appointment can be terminated. However, in the instant case though the tenure has been prescribed for two years but actually while constituting the Board no period is mentioned, meaning thereby at the most the Board could have worked for two years but since there is no internal limit fixed, therefore, in between also the Board can be dissolved terminating the appointment at any time applying the doctrine of pleasure, and the petitioner cannot complain that termination is either contrary to the definition of tenure or that the termination violates Article 14 of the Constitution of India in any manner.
28. The learned counsel for the petitioner while using the word 'discrimination' in different phraseology taking use of legal glossary.could not substantiate the point in issue that how the respondents have discriminated the petitioner in any manner whatsoever in terminating the appointment so as to bring the case within the rigours of Article 14 of the Constitution particularly when Annexure 3 does not restricts the minimum period and therefore, the appointment is terminable at any time even before expiry of two years' period which is the maximum limit.
29. Besides this, the learned counsel for the petitioner also could not substantiate that how the principles of natural justice are violated. At this stage, we may observe here that every order passed administratively cannot be subjected to the rigours of principles of natural justice, and thus violation of the doctrine 'Audi Alteram Partem'does not apply in this-case. (See Union of India v. Amrik Singh, AIR 1991 SC 564).
Indeed this Court is conscious of the fact that equal protection is extended not only to the privileges offered by the State in granting licences, entering into business, inviting tenders, entering into contracts relating to Govt. business, issuing quotas, but executive actions violating' the principles of equality before the law or equal protection of laws are also open to challenge on the basis of Article 14 of the Constitution of India. But the question of violating equality and discrimination comes where similarly situated persons are treated differently. In the instant case, this Court fails to understands as to how Article 14 of the Constitution has been violated treating the petitioner differently from other similarly situated persons, whereas observed above, the tenure as defined gives ample rights and jurisdiction to the respondents to terminate the appointment in between the two years where internal limit has not been fixed.
30. Sri R. K. Jain, learned counsel for the petitioner in support of his contention cited Dr. L. P. Agrawal v. Union of India, AIR 1992 SC 1872 and Mahavir Auto Store v. Indian Oil Corporation, AIR 1990 SC 1031.
31. In Dr. L. P. Agrawal's case (supra) the petitioner was appointed for a period of five years or till he attains the age of 62 years andthere were Rules providing the method of direct recruitment for filling the post and by virtue of the Rules the post held by the petitioner as a tenure post. In that context it was ruled that once a person is appointed to a tenure post, his appointment to the said office begins when he joins and it comes to an end on the completion of the tenure unless curtailed on justifiable grounds.
32. But the facts of the instant case arequite different. In this case, there is nomention about the tenure in the appointmentorder as observed above. However, terms &conditions; of the appointment restricts themaximum period of appointment that is notbeyond two years, but it no where restricts theminimum period. Thus, Dr. L. P. Agrawal'scase (AIR 1992 SC 1872) (supra) is of no availto the petitioner.
33. As far as Mahavir Auto Stores's case (AIR 1990 SC 1031) (supra) is concerned, this case is also of no help to the petitioner, as the controversy involved in that case was quite different. In that case there was an abrupt stoppage of supply by the Indian Oil Corporation to a firm which was carrying on business of sale and distribution of lubricants for 18 years. In the instant case, there is no such controversy at all.
34. Besides the aforesaid discussion, by implication the doctrine of 'pleasure' comes into play and by virtue of his appointment, the petitioner does not acquire any right to hold the post for a particular period as the nature of appointment itself was terminable at any time in the absence of any prescribed internal limit.
35. Lastly, it was argued by the learned counsel for the petitioner Sri R. K. Jain that the tenure fixed cannot be curtailed so as to ensure fairness and to avoid pressure of the ministry concerned.
36. In this regard, suffice it to say that terms and conditions of the appointment which were accepted by the petitioners, were couched in such a language that only maximum period was fixed and not the minimum period, and thereby it was indicative of the fact that the appointment was terminable atany time. In case those terms & conditions were not acceptable to the petitioner, he should have rejected the offer of the appointment at the very outset but once having accepted those terms and conditions, it is not open for the petitioner now to challenge the same. The petitioner cannot be allowed to blow hot and cold in the same breath. Nor fairness in discharging the functions of the Board is jeopardised if termination is made within two years, has not been explained by the learned counsel. It is also not specified that on account of some unwanted pressure of the ministry concerned which was not accepted by the petitioner, the Board was dissolved. In the absence of such pleadings the point raised is of no avail to the petitioner.
37. A part from what has been stated above, we may observe here that the appointments which are made purely on personal or political consideration, do not create any legal right in the appointee to challenge the same before a court of law for reinstatement. Thus, on this score as well, this petition is incompetent.
38. Consequently from the discussion aforesaid and adverting to the questions framed at the outset of the judgment, this Court holds that the petitioner cannot claim as of right to hold the office for a complete period of two years applying the doctrine of pleasure, and this Court further holds that those who got their entry through back door, must go by the same door.
39. As a result thereof, this petition fails and is dismissed. There shall be no order as to costs.
40. Petition dismissed