IN WP (ST) 1517 OF 2023 - BOM HC- Appointments to high public offices like Chairman of a Board or Commission, which were not made by following any competitive selection process and for which no minimum tenure was prescribed, were at the govt’s pleasure and could be terminated at any time without any cause shown: Bombay High Court rejects plea against Maharashtra Govt decision
Justice G.S. Patel and Justice Neela Gokhale [20-06-2023]

Read Order: Ramhari Dagadu Shinde v State of Maharashtra

Simran Singh

New Delhi, June 21, 2023: The Bombay High Court has dismissed a plea challenging an order of the Maharashtra government cancelling the petitioners’ appointment as Members and Chairman of the State Commission for Scheduled Castes and Scheduled Tribe, holding that in view of the legal position that the Commission neither had statutory nor constitutional recognition the order cancelling the appointments could not be said to be illegal, unlawful or otherwise vulnerable.

The Division Bench of Justice G.S. Patel and Justice Neela Gokhale held that no fundamental right to continue on the said posts was vested in the petitioners thus the Government Order (GO) dated 02-12-2022 cancelling their appointment could not be held to be arbitrary or discriminatory.

Perturbed by changes in administration in the State, reversal/modification of various policies of the government, etc., which invariably followed a change in the government, the petitioners were aggrieved by the cancellation of various appointments of non-official Members and other Members of the Statutory Boards, Committees, Commissions etc. It was contended that such changes were made only with a view to accommodate supporters and workers of the ruling dispensation. The petition was replete with instances of series of decisions taken by the Chief Minister/Deputy Chief Minister in discontinuing, cancelling, and modifying decisions of the earlier government, which the petitioners complain to be against public interest. One such decision was cancellation of appointment of the petitioners as Members/Chairman of the Commission.

It was averred that the Government in Maharashtra changed in the year 2022 and respondent 4 was sworn in as the Chief Minister on 30-06-2022. It was the case of the petitioners that upon taking over the reins of the government, the Chief Minister and the new administration cancelled appointments of as many as 197 Presidents and non-official members appointed on 29 Project Level (Planning Review) Committees in the Tribal Sub-plan Projects. The petitioners complained that such an abrupt decision of cancellation of appointments was taken without affording an opportunity of hearing or assigning any reasons and was, therefore, in breach of the principles of natural justice. Similarly, the appointment of the petitioners to the posts of Chairman/Members of the Commission was cancelled by the GO  dated 02-12-2022 and it was this GO that was assailed in the present petition.

The Bench noted that the Commission was neither statutory nor mandated by any provision of the Constitution. “Neither the constitution of the Commission nor the appointment of the petitioners had any statutory basis. The petitioners were nominated at the sole discretion of the government without following any selection procedure or inviting applications from the general public. Such an appointment had to be treated as one under the pleasure of the government and not in the nature of any employment or appointment under Part XIV of the Constitution", observed the Court.

The Bench did not agree with the contention of the petitioners that the tenure of 3 years had not expired. There was nothing in the GO appointing them on their posts to indicate that the tenure of 3 years was a ‘minimum tenure’. It was distinct from the meaning of ‘tenure’ ordinarily prescribed in statutory appointments.

The Bench was of the view that the nomination of the petitioners to their posts without following any competitive process and in pure discretion and subjective satisfaction of the earlier government did not create nor vests any right or entitlement in the petitioners to continue on their posts. In fact, the existence of the Commission itself was at the pleasure of the Government. The very inception of the Commission was by an executive order and could thus also be dismantled by an executive order. The nomination of the petitioners to the posts in question was also by an executive order of the Government; it, too, could be cancelled by an executive order of the Government. For this reason, the petitioners had no fundamental or legal right to the posts. Consequently, there was no requirement of any justification or of giving an opportunity of hearing to the petitioners for their removal.

The Bench stated that a change in social policy followed by a change in government was part of the democratic process and a change in implementation of policies and programmes per se could not be charged as arbitrary or mala fide.

The Bench noted that another petition had already been filed by the petitioners and others seeking similar and additional reliefs. The petition was pending before another Bench of the same Court. The respondents brought the attention of the Court that the petitioners had challenged the cancellation of their appointment in that petition as well and this statement had not been rebutted by the petitioners. “This is nothing but an abuse of the process of law and deserves to be decried. It is unacceptable for the Petitioners to file multiple Petitions seeking similar reliefs on the same grounds.”

The Bench navigated through the decision of the High Court of Punjab and Haryana in the matter of Som Dutt v. State of Haryana which had held that appointments to high public offices like the Chairman of a Board/Commissions etc., and which were not made by following any competitive selection process for which no minimum tenure was prescribed, were at the pleasure of the government and could be terminated at any time in exercise of the doctrine of pleasure without any cause shown.

The Bench referred to State of Karnataka v. Ameerbi which had held that since the recruitment rules were ordinarily applicable to employees of the State and were not applicable to persons not holding a post under a statute, the State was not required to comply with the constitutional scheme of equality as adumbrated by Articles 14 and 16 of the Constitution of India.