RASH LAL YADAV Vs. STATE OF BIHAR

JUDGEMENT

(1.) Three writ petitions were filed by (i) Dr. Radha Krishna Poddar, (ii) Shri Ambika Prasad and (iii) Dr. Rash Lal Yadav challenging their removal from the Chairmanship of the Bihar School Service Board constituted under the provisions of the Bihar Non-Government Secondary Schools (Taking Over of Management and Control) Act, 1981, hereinafter called the Act. These three petitions which were heard by a Division Bench of the Patna High Court came to be dismissed by a common judgment rendered on March 24, 1992. The petitioners of the first two petitions have not preferred any appeal against the said judgment but the petitioner of the third petition Dr. Rash Lal Yadav has preferred the present appeal under Article 136 of the Constitution. It is, therefore, not necessary for us to refer to the facts of the petitioners of the first two writ petitions. We will, therefore, confine ourselves to the factual position relevant to this appeal filed by Dr. Rash Lal Yadav, hereinafter called the appellant. The appellant was the Head of the Department in Maithili in Kunwar Singh College, Lakhisarai, before his selection and appointment as Chairman of the Bihar School Service Board, hereinafter called the Board, for a term of three years from the date he assumed charge of his office, vide Notification dated November 18, 1990. Prior to his appointment this office was occupied by the other two petitioners Dr. Radha Krishna Poddar and Shri Ambika Prasad Pandey. Both of them had been removed from the Chairmanship of the Board on account of several charges of mismanagement which were the subject-matter of vigilance inquiries. However, after the appellant took over as the Chairman of the Board, he too took certain actions the propriety whereof came to be questioned. Notwithstanding the difficult financial condition of the Board, he, it was alleged, decided to shift the Boards office to another premises on a monthly rent of Rs. 16,000/ - as against Rs. 8,000/- paid for the premises where the Boards office was earlier situate. It was also alleged that he withdrew Rs. 1 lakh and paid the same by way of advance for furnishing the new office. Complaints were also received by the Government from a large number of candidates that the interviews conducted by the appellant were a farce, inasmuch as almost 150 candidates were interviewed on each day rendering the entire process an empty formality. It was alleged that some of the experts who participated in the interviews complained to the Government that they were not permitted by the Chairman to question the candidates. Only formal questions were put to the candidates and they were hurriedly despatched. They made several complaints regarding the abrasive manner in which the Chairman behaved with the other Board members as well as the candidates. They complained that apart from the fact that his behaviour was not proper he was more interested in finding out the caste or community to which the candidate belonged rather than assessing the merit for appointment. Smt. Saroj Bala Sinha one of the members even complained that the appellant did not have any discussion with the members of the Board regarding the procedure to be followed at the interviews nor did he consult the members in the matter of selection of candidates. Even the signatures of the members of the Board were not obtained on the final list prepared by the Board. Another member of the Board Dr. P. Lakha by his letter, dated March 23, 1991 reported to the Government that the appellant wanted him to sign certain papers relating to the decisions taken by the Board prior to his joining. This, according to him, caused him avoidable, embarrassment. Since 30 marks out of 100 were reserved for personal interview, the marks assigned at the interview were of considerable significance as they could make or mar the future of a candidate. The Government having received these complaints and having known the manner in which the interviews were conducted and the behaviour of the appellant vis a vis other members of the Board, concluded that the manner in which the appellant functioned was not conducive to the proper working of the Board nor was it in public interest. It was also alleged that the appellant had invited applications for appointment of teachers of various schools in which plus 2 course was being taught. The appellant was informed by letter dated February 18, 1991 that in such schools posts of lecturers had been created only in four subjects, namely, Physics, Chemistry, Maithili and Ancient History. Despite this clear instruction the appellant called the candidates for interview for selection in the subject of Geography. This was clearly in defiance of the Governments direction contained in the letter of February 18, 1991. The appellant also enhanced application fee and interview fee to Rs. 25/- and Rs. 100/- respectively and invited applications for subjects for which no clearance was obtained from the Government, thus collecting a sum of approximately Rs. 40 lakhs, four times the sum he would have collected under the old rates which would have been sufficient to meet the expenses of the Board. Even though earlier a grant of Rupees 6 lakhs was withheld because the then Chairmen were facing prosecutions a grant of Rs. 5 lakhs was released on the appellant taking over as Chairman to defray the expenses relating to the salary and allowances of the staff and other expenditures. In view of the above, the Government felt that there was no option but to remove the appellant forthwith before he caused any further embarrassment to the Government and harassment to the other members of the Board. The appellant was, therefore, removed as Chairman of the Board by Notification No. 75 dated April 4, 1991 issued under sub-section (7) of Section 10 of the Act. Simultaneously, a new Chairman was appointed in his place vide Notification No. 76 and he claims to have taken charge on the same day i.e., April 4, 1991.

(2.) The appellant denied these allegations in his writ petition and tried to justify the decision to shift the office of the Board to the new premises on a higher rent. He also denied the allegations made against him in regard to the conduct of interviews, his behaviour vis-a-vis the other members of the Board and the enhancing of the application and interview fees. He questioned the validity of the order by which he came to be removed on diverse grounds, including the ground that the same was in blatant violation of the principle of natural justice. His counsel at the hearing of the petition raised four submissions in the main, namely, (i) sub-section (7) of Section 10 of the Act if interpreted to confer an absolute power of removal upon the State Government, the same would be wholly arbitrary and unreasonable and in total violation of the principle of natural justice, (ii) the doctrine of pleasure applied only to the cases of Government servants/public servants employed under the State and not to persons who were statutory authorities, such as the Chairman of the Board, (iii) even if it is assumed that the doctrine of pleasure applied there being no guidelines prescribed for the exercise of such power, the power could only be exercised consistently with the rule of natural justice, and (iv) in any case the order was tainted with malice both in law and fact. So far as the ground of malice is concerned, the appellant alleged that the Cabinet Minister in-charge of Secondary Education was responsible for his removal as the appellant did not succumb to his pressures to select for appointment his favourites. Annoyed by the appellants unbending and upright attitude and finding no other alternative to have his way, the said Minister exercised mala fide the power conferred by sub-section (7) of Section 10 of the Act to remove him and appoint his man as the Chairman of the Board. In support of his say he has produced certain chits and letters written by the said Minister and his Cabinet colleagues recommending certain persons including the son-in-law of the former for selection to various posts. Lastly it was contended by the appellant that since he was appointed on a tenure post he was entitled as of right to continue on the post till the expiry of the period for which he was appointed and could not be removed in an arbitrary and summary manner. He also denied the allegation made by Smt. Saroj Bala, Dr. Lakha and other members of the Board about his abrassive or rude behaviour. In short the appellant denied all the allegations made against him in the States counter which were not specifically admitted.

(3.) On the first question regarding the application of the pleasure doctrine, the High Court, departing from the view expressed in the case of R. P. Raja vs. State of Bihar, 1967 Pat LJR 275, held that it was difficult to subscribe to the view that the application of the doctrine is limited only to members of public service and cannot be extended to other offices such as the Chairman of the Board. In the view of the High Court there was nothing in the doctrine to inhibit the State Legislature to treat it as a pure service concept limited in its application to public service under the State. It was, therefore, open to the Legislature to extend it to the office in question. On the question of application of the principles of natural justice the High Court noticed that while that requirement was specifically found in Section 10(7) of the Ordinance that preceded the Act, it was deliberately dropped while enacting the Act thereby manifesting the Legislative intendment not to apply the same. The High Court, therefore, rejected the submission that the said requirement must be read into the said provisions to save it from the vice of being ultra vires Article 14 of the Constitution. According to the High Court before power is exercised under Section 10(7) of the Act the State Government must satisfy itself on the basis of material on record that the continuance of the person as Chairman of the Board would prove detrimental to the Boards interest. If the States action is challenged it would be necessary for the State to satisfy the Court by production of the material, that it had acted bona fide and not arbitrarily. Before exercise of power under Section 10(7) the Government must satisfy itself that there existed relevant material on record establishing the factual requirements necessary to reach the conclusion that his further continuance in office would be detrimental to the interest of the Board. Once that is shown no further enquiry is permissible and the order can only be questioned on the ground of malice. Next, on a proper reading of the provisions of the Act, the High Court ruled that the Act did not confer unguided and absolute power of removal but the power was coupled with a duty to act only if the material on record went to show that his continuance in office would be detrimental to the Boards interest. Therefore, the contention that Section 10(7) was ultra vires Article 14 cannot be countenanced. Nor can it be questioned on the ground that it violates the principles of natural justice. The High Court points out that the Board performs a public function and if the Chairman of the Board is found acting in a manner prejudicial or detrimental to the interest of the Board, a duty is cast on the Government to protect public interest by removing such a Chairman. Albeit before such action is taken the Government must satisfy itself from the material placed before it that it must exercise the extraordinary power vested in it by the Act to protect public interest. The High Court also found as a fact that such material did exist to justify the Governments action. The High Court also found as a fact that the material placed before it did not prove the allegation of malice or lack of bona fides. In this view of the matter the High Court dismissed the writ petition. Hence this appeal by special leave.