Appeal Nos
724 725 of 1992
From the Judgment and Order dated 131190  10890 of the Central Administrative Tribunal New Bombay in MP No 85590  OA No 799 of 1989
NM Ghatate Anand Prasad and SV Deshpande for the Appellant
TC Sharma and Ms A Subhashini for the Respondents
The Judgment of the Court was delivered by KULDIP SINGH J
Special leave granted in both the matters
BG Kajrekar joined service as Chief of Police on August 1 1954 in Dadra and Nagar Haveli
He worked in that capacity upto April 19 1966
Thereafter he was sent on deputation to the Central Reserve Police 62 Neemuch Madhya Pradesh
He came back to his original post in Dadra and Nagar Haveli on November 17 1967 and worked as Chief of Police upto April 6 1971
He was transferred to Delhi Armed Police on April 7 1971 where he worked as Deputy Superintendent of Police till his retirement on July 31 1977
He has thus put in about twenty three years of service
Kajrekar was not given pension on the ground that throughout his service he worked on officiating basis and was never appointed substantively to any of the posts held by him
Kajrekar challenged the action of the respondents denying pension to him before the Central Administrative Tribunal Bombay
The Tribunal rejected his application on the ground that he retired from service without holding lien on any substantive post and as such was not entitled to pension under Rule 13 of the Central Civil Services Pension Rules 1972 the Rules
The application of Kajrekar was disposed of ex parte by the Tribunal and his prayer for restoration and hearing was also rejected
These appeals by way of special leave petitions are against the orders of the Central Administrative Tribunal
It is not disputed that the post of Chief of Police under Dadra and Nagar Haveli Administration was declared permanent with effect from June 14 1967
On that date the appellant had already put in about thirteen years of service but his case for confirmation was not considered on the ground that there were no Recruitment Rules for the post in existence
The Recruitment Rules for the post of Chief of Police under the Administration of Dadra and Nagar Haveli came into force on January 19 1980
The said Rules provided by transfer on deputation as the method of recruitment to the post of Chief of Police
The Recruitment Rules have no relevance to the question of confirmation of the appellant as he had retired from service on January 31 1977 much before the coming into force of the Recruitment Rules
It was incum bent on the respondents to have considered the question of confirmation of the appellant before his retirement specially when he was being retired after serving the respondents for twenty three years
It was wholly arbitrary on the part of the respondents to have kept the appellant as an unconfirmed employee for a period of twenty three years on the ground that there were no Recruitment Rules for the post he was holding
The Union Territory of Dadra and Nagar Haveli in its counter filed in this Court has stated that after the publication of the Recruitment Rules 63 a Departmental Promotion Committee was convened on July 4 1981 for considering the question of confirmation of the appellant as Chief of Policy
The Departmental Promotion Committee did not recommend the appellant for confirmation on the ground that during the course of his service two departmental enquiries were instituted against the appellant
The enquiries could not be completed before the appellant s retirement and the findings were made available thereafter
The proceedings of the Departmental Promotion Committee further show that as a result of the enquiries Rs 4000 was to be deducted from the gratuity amount of the appellant as a measure of punishment
The Departmental Promotion Committee found that the confidential reports of the appellant for the last three years were good but the Committee declined to recommend confirmation because of the two enquiries
It is not disputed that the findings in the two enquiries were never communicated to the appellant during the period of his service
Those were served on him only after retirement
The question of his confirmation which was due in the year 1967 could not have been linked with the enquiries which were initiated at a much later stage
The Departmental Promotion Committee should have considered the appellant for confirmation on the basis of the record of the appellant as existed in the year 19671968
There is no material before us to show that the service record of the appellant prior to 1970 was adverse in any manner rather the averments made by the appellant in the rejoinder to the effect that there was nothing adverse against him on the record prior to 1971 have not been controverted
Even the Departmental Promotion Committee found the confidential reports of the appellant for the last three years as good
We are of the view that on the availability of a permanent post of Chief of Police on June 14 1967 the appellant was entitled to be confirmed against the said post
It was wholly arbitrary for the respondents to have deferred the question of confirmation of the appellant on the ground that there were no Recruitment Rules
We therefore hold that the appellant having served the respondents for about thirteen years on June 14 1967 when the post of Chief of Police was made permanent and there being nothing adverse against him at that point of time he was entitled to be confirmed in the said post
In that view of the matter the appellant was a confirmed employee when he retired from service on July 31 1977
We therefore direct the respondents to treat the appellant as having 64 been retired as a confirmed employee and fix his pension and other post retiral benefits on that basis
We further direct the respondents to complete the pension case of the appellant within three months from today and pay him all the arrears of the pension within two months thereafter alongwith 12 interest on the said arrears
We allow the appeals with costs which we quantify as Rs 10000
GN Appeals allowed


Summary:
In January 1989 in accordance with First Proviso to Section 9 of the United Provinces Act 1916 one Smt
Sarla Devi was nominated by the State Government as the sole Woman member for the Municipal Board
On 1521990 UP Ordinance No 2 of 1990 later on replaced by UP Act No 19 of 1990 amended the proviso of Section 9 of the Act substituting a new proviso providing for the nomination of two Women members by the State Government
The Amendment Act also added a fourth proviso to the Section which provided that the nomination of the two women members was at the pleasure of the State Government
On 1921990 the Government issuing a general notification and cancelled nominations of Women members in several Municipal Boards
Cancelling the nomination of Smt
Sarla Devi Smt
Abida and Smt
Hazra Khatoon were nominated by the Government on 1941990
On 2271991 under Section 87 A of the Act a no confidence motion against one Mohd Iqbal the President of the Board was initiated by some members before the District Magistrate
The District Magistrate fixed 1281991 for consideration of the confidence motion
On 281991 the Government nominated Smt Shyama Devi and Smt
Baijanti Devi as the two women members of the Board cancelling the nominations of Smt
Abida and Smt Hazra Khatoon
35 On 981991 Mohd Iqbal President of the Municipal Board against whom the non confidence motion was pending filed a writ petition in the High Court challenging the constitutional validity of the fourth proviso to Section 9 of the Act and also challenged the notification dated 281991
Further he challenged the proceedings of no confidence motion initiated against him
The High Court did not grant any stay of no confidence proceedings but ordered that the outcome of the no confidence proceedings shall be subject to the result of the writ petition
In the meeting fixed on 1281991 by the District Magistrate to consider the no confidence motion 20 members of the Board voted in favour of the no confidence motion out of the total strength of 37 members of the Board
The newly nominated Women members by notification dated 281991 participated in the meeting whereas Smt Abida and Hazra Khatoon neither attended the meeting nor claimed any right to attend the same
The no confidence motion dated 1281991 was passed against Mohd Iqbal
One Om Narain The appellant No 1 in CA Nos
714 16 of 1993 who was the Vice President of the Board was elected as the President in the vacancy
The appellant Om Narain took charge of the office of the President of the Board and continued to function as the president
Mohd Iqbal the former President filed another writ petition challenging the no confidence motion dated 1281991 passed against him
Abida and Smt Hazra Khatoon also filed a writ petition challenging the notification dated 281991 which cancelled their nominations and nominated Smt
Shyama Devi and Smt
Baijanti Devi in their places
A Division Bench of the High Court considered all the three writ petitions two by the former President and one by the former women members
Agreeing with the decision in Dr Smt
Rama Mishra vs State of UP Writ Petition No 11114 of 1990 disposed on 9121991 allowed the writ petitions quashing the notification dated 281991 and declaring Mohd Iqbal to be the president of the Board
The review application flied by the appellants was dismissed by the High Court
36 Being aggrieved against the High Court s decision the former Vice President and the Women members nominated by notification dated 281991 approached this Court in these appeals CANos
714 716 of 1993 by special leave
The C No 717 of 1993 was by another Woman member of another Municipal Board having aggrieved against the judgment of the High Court dated 9121991 passed in Dr Rama Mishra s case
The appellants contended that the view taken in Dr Rama Mishra s case was not correct and the view taken in Prem Kumar Balmiki vs State of UP WP No 1067 of 1991 disposed of on 13111991 was correct that the State Legislature was competent to insert fourth proviso and to lay down that the nominated members shall hold office during the pleasure of the State Government that if the initial appointment by nomination was made on political considerations political considerations should be allowed to operate in terminating such appointments made by nomination that there was no violation of any principle of natural justice nor such provision was arbitrary so as to be violative of Article 14 of the Constitution and that the only requirement under the second proviso to Section 9 of the Act was that if none or only one of the members elected under clause b was a woman the State Government was to nominate by notification two Women members or one more Woman member as the case may be so that the number of Women members in the Board was not less than two and that the State Government did not violate the provision
The private respondents submitted that once the power of nominating the Women members was exercised by the State Government such nominated members could not be removed prior to the completion of the term of the Board unless they were removed on the grounds contained under section 40 of the Act that the State Government could not be allowed to remove a nominated member at its pleasure without assigning any reason and without affording any opportunity to show cause that once a Woman member was nominated she got a vested right to hold the office of a member of the Board and the State Government could not be given an uncanalised uncontrolled and arbitrary power to remove such member that such arbitrary power without any guidelines would be contrary to the well established principles of democracy and public policy and that it would hamper the local bodies to act independently without any hindrance from the side of the Government
37 Allowing the appeals this Courts HELD 101
The right to seek an election or to be elected or nominated to a statutory body depends and arises under a statute
The initial nomination of the two Women members itself depended on the pleasure and subjective satisfaction of the State Government
If such appointments made initially by nomination are based on political con siderations there can be no violation of any provision of the Constitution in case the Legislature authorised the State Government to terminate such appointment at its pleasure and to nominate new members in their place
50G H 102
The nominated members do not have the will or authority of any residents of the Municipal Board behind them as may be present in the case of an elected member
In case of an elected member the Legislature has provided the grounds in Section 40 of the Act under which the members could be removed But so far as the nominated members are concerned the Legislature in its wisdom has proved that they shall hold office during the pleasure of the Government
51B 103
Such provision neither offends any Article of the Constitution nor the same is against any public policy or democratic norms enshrined in the Constitution
There is also no question of any violation of principles of natural justice in not affording any opportunity to the nominated members before their removal nor the removal under the pleasure doctrine contained in the fourth proviso to Section 9 of the Act puts any stigma on the performance or character of the nominated members
It is done purely on political considerations
51D 104
In Dr Rama Mishra s case the High Court wrongly held that the pleasure doctrine incorporated under the fourth proviso to Section 9 of the Act was violative of the fundamental right of equality as enshrined in Article 14 and Article 153 of the Constitution
51E Dr Smt
Rama Mishra vs State of UP Writ Petition No 11 114 of 1990 decided on 9121991 by the Allahabad High Court over ruled
Prem Kumar Balmiki vs State of UP Writ Petition No 1067 of 1991 decided on 13111991 by the Allahabad High Court approved
The special provision contained for nominating one or two 38 women members as the case may be provided in Section 9 of the Act would be protected from challenge under clause 3 of Article 15 of the Constitution
52B 106
The provision of pleasure doctrine incorporated by adding proviso four does not in any manner take away the right to representation of women members in the Board but it only permits the State Government to keep the nominated women members of its own choice
52C 107
The right of equality enshrined under Article 14 of the Constitution applies to equals and not to unequals
The nominated members of the Board fall in a different class and cannot claim equality with the elected members
52E 108
Even in the case of highest functionaries in the Government like the Governors the Ministers the Attorney General and the Advocate General discharge their duties efficiently though removable at the pleasure of the competent authority under the law and it cannot be said that they are bound to demoralise or remain under a constant fear of removal and as such do not discharge their functions in a proper manner during the period they remain in the office
52G 109
The motion of no confidence being supported by 20 members which admittedly constituted a majority of the total strength of the members of the Board being 37 the no confidence motion has been rightly carried out and as a result of which Mohd Iqbal was not entitled to continue as President of the Board
Similarly Smt
Abida and Smt
Hazra Khatoon having been rightly removed as nominated members they are no longer entitled to continue as nominated members of the Municipal Board Shahjahanpur and in their place Smt
Shyama Devi and Smt
Baijanti Devi shall be entitled to continue as nominated members of the Board
53C D