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PETITIONER: DR. D.C. SAXENA

       Vs.

RESPONDENT: STATE OF HARYANA & ORS.

DATE OF JUDGMENT08/05/1987

BENCH: KHALID, V. (J) BENCH: KHALID, V. (J) PATHAK, R.S. (CJ)

CITATION:  1987 AIR 1463            1987 SCR  (3) 346  1987 SCC  (3) 251        JT 1987 (2)   425  1987 SCALE  (1)1106  CITATOR INFO :  D          1988 SC1401  (8)  D          1992 SC1872  (16)

ACT:     Haryana Board of School Education Act, 1969, ss. 4A  and 9  Distinction between--Whether removal of Chairman  of  the Board pursuant to a general policy is violative ors. 9.     Words and Phrases--"Terms of service"--Whether  includes tenure of service.

HEADNOTE:     The  Haryana Board of School Education Act, 1969  by  s. 4(A) stipulates that the Chairman, Vice-Chairman and Members of  the Board shall hold office during the pleasure  of  the State  Government.  Section 9 of the Act provides  that  the State  Government may remove a member whose  continuance  in office  is  not in the interest of the Board  provided  that before  making such order, the reasons for removal shall  be communicated and he shall be given an opportunity of tender- ing  an explanation in writing which shall be considered  by ’the State Government.     In  exercise of powers conferred by the sub-section  (4) of s. 3 of the Act, the appellant was appointed as  Chairman of the Haryana Board of School Education for a period of two years. On his appointment as Chairman, he resigned his  post as  Professor-Director  of the Punjabi  University  Regional Centre, Bhatinda and took over as Chairman on 11th December, 1985.  The  appointment  letter stated that  the  terms  and conditions of the appointment will be notified later on.     The  appellant  received a communication  dated  24.3.86 from  the Education Department that the Government may  cur- tail  his tenure of office at any time. Subsequently he  was served  with an order stating that his terms of  office  hod been curtailed with immediate effect and that he would cease to  function  as Chairman from 8.6.86. Similarly,  with  the termination  of  the appellant’s services, the  services  of Chairmen  of  several other Boards  and  organisations  were terminated.  The  appellant challenged the  aforesaid  order before the High Court in a writ petition which was dismissed in limine. 347

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   In  appeal  to this Court, he contended;  (i)  that  the curtailment of the original period fixed, altered his  posi- tion to his detriment and that this was done mala fide; (ii) that the word ’term’ did not indicate the period of  service and  therefore,  the government did not have  the  requisite authority  to curtail his tenure; and (iii) that the  proce- dure  laid down under s. 9 of the Act was not  followed  and consequently his removal was void. On the other hand, it was argued by counsel for the respondents: (i) that  appellant’s tenure  of  service could be curtailed at any  time  by  the government;  (ii)  that appellant’s tenure  of  service  was curtailed  alongwith  the Chairmen of 11  other  Boards  and corporations  pursuant  to a general decision taken  by  the State  Government dispensing with the service  of  non-offi- cials; (iii) that in the absence of any challenge to Rule 4A of the Act, the order of curtailment was valid in law  since the appellant can be in service only during the pleasure  of the government. Dismissing the appeal, this Court,     HELD:  1. Section 4A is an insurmountable hurdle in  the way of the appellant. If s. 4A is valid, the order of remov- al  of the appellant has to be upheld. The validity  of  the section  has  not been challenged by  the  appellant  either before  the High Court or before this Court.  Therefore  the judgment of the High Court is upheld. [353D]     2.  The expression ’terms of service"  clearly  includes tenure of service. [353F]     3. It is apparent on a comparison of the terms of s.  4A and s. 9 that while the former deals with the general  power of  the  State  Government to terminate the  tenure  of  the Chairman, Vice-Chairman and Members, the latter carves out a special  field  dealing with a category of cases  where  the State  Government may remove a member whose  continuance  in office  is not in the interest of the Board. A case  failing within  s.  9 is a case where removal must  be  for  reasons personal  to  the member and flow from his conduct  or  such other factor which requires that, in the interest of justice and  fair play, he should be given an opportunity to  tender an  explanation. In the view that s. 9 carves out a  special field, s. 4A is left with an abridged scope. So abridged, it deals with cases other than those where the continuance of a member  calls for termination in the interest of  the  Board and  requires  that such member be given an  opportunity  of tendering an explanation before such removal. Section 4A can be  said  to include cases where the tenure of  a  Chairman, Vice-Chairman  or  a  member is  liable  to  termination  on grounds of general policy. [352E-H; 353A] 348     In the instant case, the termination of the  appellant’s tenure  was neither prompted by mala fides nor was  punitive in  nature.  The appellant’s services  were  dispensed  with because  of a general decision taken by the government  dis- pensing  with the services of non-officials and non MLAs  as Chairman of the Boards and Corporations excluding the Kuruk- shetra  Development Board and the Tourism Corporation,  Har- yana. [353B-C]     [The Court expressed the hope that the Punjabi Universi- ty  will  be generous enough to  accommodate  the  appellant properly.]

JUDGMENT:     CIVIL  APPELLATE JURISDICTION: Civil Appeal No. 3178  of 1986.

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   From  the  Judgment  and Order dated  19.6.1986  of  the Punjab and Haryana High Court in C.W.P. No. 3096 of 1986. Appellant-in-person.     Dr.  Y.S. Chitale, Harbanslal and Ravinder Bana for  the Respondents. The Judgment of the Court was delivered by     KHALID,  J.  1.  The appellant appeared  in  person  and argued his case with clarity and competence. At times he was emotionally surcharged. He perhaps, feels that he had a  raw deal  at the hands of the authorities. In the Special  Leave Petition  he has given in great detail his  high  qualifica- tions and meritorious achievements in the various offices he held. Shorn of these details the necessary facts, in  brief, for the disposal of this appeal are as follows:     2.  The appellant was appointed as Chairman of the  Har- yana  Board  of School Education as per order  dated  10-12- 1985.  At  that time he was holding the post  of  Professor- Director  of the Punjabi University  Regional Centre,   Bha- tinda.  On his appointment as the Chairman of the said Board he resigned his post as Professor-Director and took over  as the Chairman of the Board on 11th December, 1985. His origi- nal  appointment was for a period of 2 years. The  order  of appointment reads as follows:               "In  exercise of the powers conferred by  sub-               section (4) of section 3 of the Haryana  Board               of School Education Act,               349               1969  (as  amended  from time  to  time),  the               Governor of Haryana is pleased to appoint  Dr.               D.C.   Sexena,  Professor-Director,    Punjabi               University   Regional   Centre,  Bhatinda,  as               Chairman of the Haryana Board of School Educa-               tion,  in place of Shri Anil  Razdan,  I.A.S.,               with.  immediate effect for the period of  two               years.               2. The terms and conditions of his appointment               will be notified later on." While  he  was holding the office as Chairman of  the  Board thus, he received a communication dated 24-3-1986, from  the Education Department of the Haryana Government informing him that the Government may curtail his tenure of office at  any time. The relevant portion of the order reads as follows:-               "No. 19/40/83-Edu. III(5). In continuation  of               Haryana  Government  order No.  19/40/83  Edu.               III(5)  dated  10th  December,  1985,  and  in               exercise  of the powers conferred by sub  sec-               tion (4) of Section 3 of the Haryana Board  of               School  Education Act, 1969 (as  amended  from               time  to  time), the Governor  of  Haryana  is               pleased  to prescribe the following terms  and               conditions  of appointment of Dr. D.C.  Saxena               as Chairman of the Board of School  Education,               Haryana, from the date he took over charge  as               such:               Tenure of Office                        His  tenure of office shall be for  a               period of two years from the date of  assuming               charge.  The Govt. may, however,  curtail  the               tenure at any time.                xxxxxxx    xxxxxxx       xxxxxxxxxx                xxxxxxx    xxxxxxxx      xxxxxxxxx                xxxxxxx  xxxxxxxxxx      xxxxxxxxx                xxxxxxx  xxxxxxxxxx       xxxxxxxxx     The appellant objected to this by his letter dated  3-4- 1986, to the Commissioner-cum-Secretary,  Education  Depart-

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ment,  Haryana, Chandigarh, marking a copy of the then Chief Minister  of Haryana. On 7th June, 1986, he was served  with an  order  that his term of office had been  curtailed  with immediate effect and that he would cease to 350 function as Chairman from 8-6-1986. This order is  extracted below:               "In  exercise of the powers conferred by  Sec-               tion 4-A of the Haryana Board of School Educa-               tion  Act,  1969, and in accordance  with  the               terms of appointment under the heading "Tenure               of  Office,"  issued vide order  No.  19/40-83               Edu.  111(5) dated the 24th March,  1986,  the               Governor of Haryana is pleased to curtail  the               tenure of office of Dr. D.C. Saxena as  Chair-               man,  Haryana Board of School  Education  with               immediate  effect  and orders  that  he  shall               cease  to  function  as  such  with  immediate               effect from 8-6-1986.                        Shri  Vivek Mehrotra, I.A.S.,  Direc-               tor, School Education, Haryana, will hold  the               charge  of  office of  the  Chairman,  Haryana               Board  of School Education in addition to  his               own duties till further orders." The  appellant challenged this order by filing a writ  peti- tion in Punjab and Haryana High Court on 10th June, 1986.  A Division Bench of the High Court issued notice and  directed status quo, as on that day, to continue. On 19th June, 1986, the matter was listed before another Division Bench and  the writ  petition was dismissed in limine. This appeal by  spe- cial leave arises from the said order.     3. The appellant’s case is that his original appointment was  for two years at a time when he was holding  a  presti- gious  post, that he relinquished that post and took  charge of the new post, that the curtailment of the original period fixed  altered  his position to his detriment and  that  all this  was done mala fide. The appellant took us through  the facts  in  detail  to highlight the case of  mala  fides  to persuade  us  to accept his case that  the  curtailment  and removal  was punitive and that it was done in  violation  of the law as laid down by this Court in various decisions.     4. The case of the State, as disclosed in the  affidavit filed  by them, is that the affairs of the Board  of  School Education,  Haryana  are governed by the  Haryana  Board  of School  Education Act, 1969 (hereinafter referred to as  the Act).  Sub-section  (4) of Section 3 of the  Act  stipulates that  the Chairman and Vice-Chairman of the Board  shall  be appointed  by  the  State Government, upon  such  terms  and conditions as it may think fit and they shall hold office at the pleasure of the State Government. It was in exercise  of the  powers conferred under Sub-Section (4) of Section 3  of the Act that the appellant was 351 appointed  Chairman. In the appointment letter, it had  been specifically  provided that the terms and conditions of  the appointment would be notified later. Subsequently, by commu- nication dated 24th March, 1986, he was told that his tenure of service could be curtailed at any time by the Government. The  State  Government had taken a general decision  on  6th June,  1986, dispensing with the services  of  non-official/ non-MLAs as Chairman of the Boards and Corporations  exclud- ing  Kurukshetra Development Board and Tourism  Corporation, Haryana.  It  is stated in the Counter Affidavit  that  this general  order  was  examined by  the  Secretary,  Education Department, to see whether the consequent termination of the

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appellant  would be legal and in public interest or  whether an  exception could be made in his case in the  interest  of the  Board. After the examination of the relevant  files  in the  Education  Department, it was decided that  the  appel- lant’s  services could also be dispensed with by  curtailing his tenure. Along with him, Chairmen of eleven other  Boards and Corporations were also dropped. It was pursuant to  this decision  that  his  tenure of service  was  curtailed  with immediate effect by the communication dated 7th June,  1986. It is stated that Section 4-A of the Act enabled the Govern- ment  to  do this. In the absence of any challenge  to  this rule,  the order of curtailment was valid in law  since  the appellant  could be in service only during the  pleasure  of the Government.     5.  The first respondent in this appeal is the State  of Haryana  and the second respondent a member of the  Legisla- tive  Assembly and the son of the present Chief Minister  of Haryana. The appellant was appointed Chairman of the  Board, when  Shri  Bhajan  Lal was the Chief  Minister.  The  order informing  him  that his tenure would be for two  years  and that the Government could "curtail this tenure at any  time" was also issued when Shri Bhajan Lal was the Chief Minister. In the original order of appointment, it was indicated  that the  tenure of his office would be for two years. Only  four months  later he was alerted by another order that the  Gov- ernment  could curtail his tenure at any time. He must  have been aware of Section 4-A which reads as follows:-               "4-A.  Chairman, Vice-Chairman and members  to               hold  office during pleasure of State  Govern-               ment.  Notwithstanding anything  contained  in               Section 3 or Section 4 or any other  provision               of  this Act, the Chairman, Vice-Chairman  and               members of the Board shall hold office  during               the pleasure of the State Government." 352 An argument was attempted to be advanced before us that  the procedure  laid  down in Section 9 was not followed  in  his case and that this omission rendered his removal bad. For  a better appreciation of this contention, we quote section 9:               "9. Power to remove members: If, in the  opin-               ion  of the State Government, the  continuance               in office of any person as a member is not  in               the  interest of the Board, the State  Govern-               ment may, in consultation with the Board, make               an  order removing such person from such  mem-               bership;               Provided  that before making such  order,  the               reasons  for  his proposed  removal  shall  be               communicated  to him and he shall be given  an               opportunity  of  tendering an  explanation  in               writing which shall be duly considered by  the               State Government." It is clear that the proviso to the Section makes it obliga- tory on the State Government to communicate the reasons  for the proposed removal of a member and to give him an opportu- nity of tendering his explanation in writing and also a duty on  the State Government to consider it. It was argued  that the  Chairman of the Board is also a member and his  removal without complying with the procedure laid down in Section  9 is against law and has to be set aside.     6.  The contention that Section 9 has been  violated  is wholly without force because, in our opinion, Section 9 does not come into play at all in this case. It is apparent, on a comparison  of the terms of Section 4-A and Section 9,  that while  the former deals with the general power of the  State

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Government  to terminate the tenure of the  Chairman,  Vice- Chairman and members, the latter carves out a special  field dealing with a category of cases where the State  Government may  remove a member whose continuance in office is  not  in the  interest of the Board. A case falling within Section  9 is a case where removal must be for reasons personal to  the Member and flow from his conduct or such other factor  which requires that, in the interest of justice and fair play,  he should be given an opportunity to tender an explanation.  In the view that Section 9 carves out a special field,  Section 4-A  is left with an abridged scope. So abridged,  it  deals with  cases  other  than those where the  continuance  of  a member  calls for termination in the interest of  the  Board and  requires  that such member be given an  opportunity  of tendering  an explanation before such removal.  Section  4-A can be said to include cases where the tenure of a Chairman, 353 Vice-Chairman  or  a  member is  liable  to  termination  on grounds  of general policy. On the facts and  circumstances, it  is clear that the termination of the appellant’s  tenure was  the result of the policy decision taken by the  Govern- ment to bring in a new class of Chairmen in different Boards in the State. From the material on record we are not  satis- fied  that  the termination of the  Appellant’s  tenure  was prompted by mala fides or was punitive in nature. The Appel- lant’s  services  were dispensed with because of  a  general decision  taken by the Government dispensing with the  serv- ices of non-officials and non-MLAS as Chairmen of the Boards and Corporations excluding the Kurukshetra Development Board and  the  Tourism Corporation, Haryana. Similarly  with  the termination  of  the Appellant’s services  the  services  of Chairmen  of  several other Boards  and  Organisations  were terminated.     It is clear, therefore, that if Section 4-A is valid the order  of  removal of the Appellant has to  be  upheld.  The validity of Section has not been challenged by the Appellant either before the High Court or before us except in a casual manner  in the Written Submissions filed before this  Court. The High Court has rightly held that Section 4 is an  insur- mountable  hurdle  in  the way of the  Appellant.  We  have, therefore, although with extreme reluctance having regard to the personal merit of the Appellant, to uphold the  Judgment of the High Court.     7.  The appellant, in desperation, put  forward  another plea, that the expression "terms and conditions of  service" would  not  take within its ambit "tenure  of  service".  In other  words,  his  case was that the word  "term"  did  not indicate  the  period  of service and  that  therefore,  the Government  did not have the requisite authority to  curtail his  tenure. This plea was met by the  respondents’  counsel saying  that the word ’term’ included the tenure of  service also.  Both sides invited us to Dictionaries in  support  of their respective cases. We do not think it necessary to seek support from the Dictionary for this purpose. The expression "terms  of service" clearly includes tenure of  service.  We regret, we cannot help the appellant on this plea either.     8. In view of the peculiar facts of this case, we do not think it necessary to consider the various authorities cited before  us  regarding the violation of  Article  311(2)  and violation of natural justice. We are extremely unhappy  that such a situation has come to pass. Perhaps, the  appellant’s grievances  are well founded. He left his  prestigious  post and  joined  the Board expecting to be there for  two  years when  he  had a raw deal at the hands  of  the  authorities. However, on an application of the provisions of the  Haryana

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Board of School Education (Amend- 354 ment) Act, 1980 we find it difficult to rescue the appellant from  his  predicament. We trust and hope  that  the  Punjab University will be generous enough to accommodate him  prop- erly. The  appeal has to fail and is dismissed without any  orders as to costs. M.L.A.                                        Appeal    dis- missed. 355