IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION Nos. 1708, 1709, 1711, 1712, 1713, 1716, 1717, 1718, 1719, 1720, 1721, 1722, 1723, 1724, 1727, 1728, 1729, 1775, 1791, 1806, 1807, 1815, 1816, 1949 and 1950 of 1998. (in all 25 matters) For Approval and Signature: Hon'ble MR.JUSTICE M.S. SHAH Sd/- ============================================================ 1. Whether Reporters of Local Papers may be allowed to see the judgements? Yes 2. To be referred to the Reporter or not? Yes 3. Whether Their Lordships wish to see the fair copy of the judgement? No 4. Whether this case involves a substantial question of law as to the interpretation of the Constitution of India, 1950 of any Order made thereunder? No 5. Whether it is to be circulated to the Civil Judge? No -------------------------------------------------------------- DATTAJI CHIRANDAS Versus STATE OF GUJARAT -------------------------------------------------------------- Appearance: M/S P.M RAVAL, M.R BAROT, K.G. VAKHARIA, H.M MEHTA AND MR S.I. NANAVATI WITH MR TUSHAR MEHTA AND MR Y.S. LAKHANI for Petitioners MR S.N. SHELAT, ADDL. ADVOCATE GENERAL WITH MR P.G. DESAI, GOVT. PLEADER for THE STATE OF GUJARAT. MR K.N. RAVAL WITH MR R.J. OZA AND MR. Y.N. OZA with Mr V.H. Desai for the newly added respondents. -------------------------------------------------------------- CORAM : MR.JUSTICE M.S.SHAH Date of Judgment: 07/04/98 COMMON CAV JUDGMENT : These petitions under Articles 226 of the Constitution challenge the orders passed by the State Government replacing the Chairmen of about 12 statutory Boards and Corporations and 13 Government Companies/Societies. All these petitions were taken up for final disposal with the consent of the learned counsel for the parties. .RS 2 #. The facts giving rise to these petitions would be stated in detail later on, but broadly stated, it is the case of the petitioners in most of these petitions that the term of their office as Chairman was fixed for two/three years as the case may be. Reference is also made to the relevant statutory provisions under which the concerned Boards/Corporations have been established providing for the term of office and reference is also made to the orders of appointment stipulating the term of two/three years, as the case may be. In case of Chairmen of Government Companies, the matters are governed by the Memorandum and Articles of Association of the respective companies which do not provide for fixed tenure, but reliance is placed on the orders of appointment appointing the petitioners for a fixed period of three years. There are a few cases being Special Civil Applications No. 1722.98, 1724/98 and 1727/98 where no tenure was fixed in the order of appointment. All the petitions being disposed of by this judgment are broadly class GROUP A - Petitions where the offices involved are statutory offices where the relevant statute has provided for term of office and such term is also provided for eithe in the initial appointment order or subsequent orde issued by the Government : ------------------------------------------------------------------------ Sr. SCA No. Name of the Act Term as per No. Corporation Act/Rules ------------------------------------------------------------------------ 1. 1708/98 Gujarat Induatrial Gujarat Industrial 2 Years Development Corpn. Development Act, 1962. 2. 1709/98 Gujarat State Ware- Warehousing Corpo- As may be housing Corporation ration Act, 1962. prescribed AAAAAAAAAAAAAAAAAAA 3. 1815/98 Ahmedabad Urban Gujarat Town 3 Years Development Authority Planning & Urban Development Act, 1976 & Gujarat Town Planning & Urban Development (Term of office & Condition of Service of the e- Urban Development Authority) Rules, 1977. 4. 1816/98 Surat Urban Deve- -do- -do- lopment Authority 5. 1775/98 Rajkot Urban -do- -do- Development Authority 6. 1714/98 Gujarat State State Financial 2 Years Financial Corp. Corporations Act, 1951 7. 1716/98 Gujarat Backward Gujarat Backward -- Class Development Class Dev.Corpn. Corporation. Act. 8. 1718/98 Gujarat Municipal Gujarat Municipal Not exce- Finance Board Finance Board Act, eding 5 1979 years. 9. 1719/98 Khadi & Gramodyog Bombay Khadi & As the 9. 1719/98 Khadi & Gramodyog Bombay Khadi & As the 9. 1719/98 Khadi & Gramodyog Bombay Khadi & As the 9. 1719/98 Khadi & Gramodyog Bombay Khadi & As the 9. 1719/98 Khadi & Gramodyog Bombay Khadi & As the 9. 1719/98 Khadi & Gramodyog Bombay Khadi & As the 9. 1719/98 Khadi & Gramodyog Bombay Khadi & As the 9. 1719/98 Khadi & Gramodyog Bombay Khadi & As the 9. 1719/98 Khadi & Gramodyog Bombay Khadi & As the 9. 1719/98 Khadi & Gramodyog Bombay Khadi & As the 9. 1719/98 Khadi & Gramodyog Bombay Khadi & As the 9. 1719/98 Khadi & Gramodyog Bombay Khadi & As the 9. 1719/98 Khadi & Gramodyog Bombay Khadi & As the 9. 1719/98 xed 9. 1719/98 Board Village Ind stries Govt. may Act, 1960. direct. 10. 1807/98 Gujarat Slum Gujarat Slum Area 3 Years Clearance Board (Improvement, Clearance and Re- Development Act, 1973. ----------------------------------------------------------------------- GROUP B - Petitions challenging removal of the respective petitioners from the office of the Chairman of Governmen Companies where the Articles of Association of th concerned companies or the Memorandum of Constitution o the Government Societies registered under the Societie Registration Act, 1860 do not provide for any fir ny fir any fir any fir any fir any fir any fir any fir any fir any fir any fir any fir any fir any fir any fir any fir any fir any fir any fir any fir any fi any fir any fir any fir any fir any fir any fir any fir any fir any fir any f r any fir any fir any fir any fir any fir any fir any fir any fir any fir any ir any fir any fir any fir any fir any fir any fir any fir any fir any fir any fir any fir any fir any fir any fir any fir any fir any fir any fir any fir an fir any fir any fir any fir any fir any fir any fir any fir any fir any fir a y fir any fir any fir any fir any fir any fir any fir any fir any fir any fir ny fir any fir any fir any fir any fir any fir any fir any fir any fir any fir any fir any fir any fir any fir any fir any fir any fir any fir any fir any fi any fir any fir any fir any fir any fir any fir any fir any fir any fir any f r any fir any fir any fir any fir any fir any fir any fir any fir any fir any ir any fir any fir any fir any fir any fir any fir any fir any fi for appointment and removal but in the orders of thei appointment the Government has specified a fixed term o three years from the date of intial appointment, thoug the term was not specified in the first order o appointment. ------------------------------------------------------------------------ Sr. SCA No. Name of the Rules No. Corporation ------------------------------------------------------------------------ 1. 1712/98 Gujarat Sheep & Wool Memorandum & Articles of Development Corpn.Ltd. Association of the Company 2. 1717/98 Gujarat State Leather -do- Industry Development Corporation Ltd. 3. 172 Development Corpn. Ltd. 4. 1723/98 Gujarat State Civil -do- Supplies Corporation 5. 1729/98 Gujarat Tractor Corpn. -do- Ltd. 6. 1791/98 Gujarat State Police -do- Housing Finance Corpn.Ltd. 7. 1950/98 Gujarat State Rural -do- Industries Marketing Corporation Ltd. 8. 1721/98 Gujarat Gopalak Vikas Constitution of Society Board registered under the Societies Registration Act, 1860. 9. 1711/98 Gujarat University -do- Granth Nirman Board 10. 1728/98 Gujarat State Registered under Societies G jarat State Registered under Societies Gujarat State Registered under Societies Gujarat State Registered under Societi s Gujarat State Registered under Societies Gujarat State Registered under Societies Gujarat State Registered under Soc eties Gujarat State Registered under Societies Gujarat State Registered under Societies Gujarat State Registered under Societies Gujarat State Registered under Societies Gujarat State Registered under Societies Gujarat State Registered u der Societies Gujarat State Registered under Societies Gujarat St te Registered under Societies Gujarat State Register d under Societies Gujarat State Registered under Societies Gujara State Registered under Societies Gujarat State Regi tered under Societi-- ty Board Act & Bombay Public Trust Act. 11. 1806/98 Gujarat Matikam & -- Kalakari Board 12. 1949/98 Gujarat Thakore -- Samaj Vikas Board ------------------------------------------------------------------------ GROUP - C - This group consists of petitions where there is no order appointing concerned petitioners for any fixed period. ---------------------------------------------------------- Sr. SCA No. Name of the Act No. Corporation ---------------------------------------------------------- 1. 1722/98 Gujarat Schedule Gujarat SC Caste Dev. Corpn. Dev. Corpn. Act, 1985 2. 1724/98 Gandhidham Gandhidham Development (Dev. & control Authority on erection of Buldgs.) Act, 1957 3. 1727/98 Gujarat State Memorandum & Petroleum Articles of Assocn. Corpn. Ltd. of the Company. --------------------------------------------------------- #. The following petitions were argued as representative petitions :- Group A Special Civil Application No. 1708 of 1998 is filed by Shri Dattaji Chirandas who has been replaced as Director and Chairman on the Board of Directors of the Gujarat Industrial Development Corporation (GIDC) established under the Gujarat Industrial Development Corporation Act, 1962. Dattaji Chirandas was initially appointed as Chairman of the GIDC as per notification dated 3.5.1997 wherein his appointment as Chairman was until further orders, but subsequently by Resolution dated 14.8.1997, the petitioner's tenure was fixed for two years with effect from the date of appointment i.e. from 3.5.1997 and, therefore, it is contended that the petitioner is entitled to hold the office of Chairman of the GIDC till 2.5.1999. But by the impugned notification dated 6.3.1998, the petitioner has been replaced by Mr C.K. Koshi. (ii) Special Civil Application No. 1815 of 1998 is filed by Shri Natvarbhai Ramdas Patel who has been replaced from the office of Chairman of the Ahmedabad Urban Development Authority established under the Gujarat Town Planning Act. (iii) Special Civil Application No. 1709 of 1998 is filed by Shri Harshad Brahmbhatt who has been replaced from the office of Chairman of the Gujarat Warehousing Corporation. Group B Special Civil Application No. 1791 of 1998 is filed by Shri Jayvantsinh S. Gohil who has been replaced from the office of Member and Chairman of the Gujarat State Police Housing Corporation which is a Government Company registered under the Companies Act, 1956. Group C Special Civil Application No. 1724 of 1998 is filed by Dr Rajendra Shah who has been replaced from the office of Chairman, Gandhidham Development Authority established under the Gandhinagar (Development and Control of Erection of Buildings) Act, 1957. #. In the aforesaid petitions in the group, the petitioners have averred that inspite of the fact that the petitioners are holding the respective offices for a fixed term, even before expiry of the term they are sought to be removed pursuant to the announcement made by Shri Keshubhai Patel, after being sworn in as the Chief Minister of Gujarat on 4.3.1998, that the appointments made by the previous Government shall be cancelled and new appointments shall be made by the present Government. It is submitted that the respondents have no authority in law to remove the petitioners before expiry of the term stipulated in the order of appointment and also fixed in the concerned statute under which the concerned Board/Corporation is established. It is further submitted that even if the respondents have any such power, the respondents have no power to remove the petitioners from the respective offices without following the due procedure prescribed by law. By an amendment in Special Civil Application No. 1708 and in Special Civil Application No. 1791 of 1998, the petitioners have also averred that on the date when the impguned orders were passed on March 6/7, 1998, there was no Council of Ministers in existence nor had the Governor made any allocation of business under Rule 5 of the Government of Gujarat Rules of Business, 1990. #. The State of Gujarat has appeared on caveat and affidavits are filed in reply to each petition, pointing out that the previous Government had appointed the petitioners as Chairmen/Vice-President of the various Boards, Corporations and Government Companies by way of nomination on political considerations. Their appointments were made for implementation of the policy of the then Government and that the same practice is to be continued and, therefore, for effective implementation of the policies of the present Government, the Chairmen and Directors appointed by the previous Government have to be replaced in public interest. It is further averred that with the swearing in of the Chief Minister, the Council of Ministers came in existence and relying on the past practice, it is averred that the other Ministers are appointed after a few days. It is further averred that in all cases the impguned orders were implemented on the date of issuance of the notifications or on the next day. #. At the hearing of these petitions, Mr P.M. Raval, Mr. M.R. Barot, Mr. K.G. Vakharia, Mr. H.M. Mehta and Mr. S.I. Nanavati with Mr Tushar Mehta and Mr Y.S. Lakhani have raised the following contentions :- I (i) When the impugned orders were passed on March 6-7, 1998, there was no Council of Ministers to aid and advise the Governor as contemplated by Article 163 (1) of the Constitution and, therefore, the impugned orders issued in the name of the Governor were not legal and valid. The Chief Minister alone having been sworn in on March 4, 1998, the Governor could not have passed the impugned orders without the aid and advice of the Council of Ministers, which was formed only on March 13, 1998. Hence, the impugned orders passed in the interregnum have no existence in the eye of law. (ii) Relying on the provisions of Rule 5 of the Gujarat Government Rules of Business, 1990 providing that the Governor shall, on the advice of the Chief Minister, allocate amongst the Ministers and Ministers of State the business of the Government by assigning one or more departments to the charge of a Minister or a Minister of State, tt is submitted that since the Governor had not made such allocation of business to the Chief Minister and other Ministers when the impugned orders were passed on March 6-7, 1998, the Chief Minister had no authority to give any aid and advice to the Governor for passing the impugned orders. II The respondents have not passed any order removing the petitioners from the respective offices held by them. Without first removing the petitioners, the respondents could not have appointed other persons as Chairmen of the various Boards/Corporations/Government Companies and, therefore, also the impugned orders appointing new Chairmen in place of the petitioners are illegal and invalid. III (i) The petitioners were appointed as Chairmen/Vice-President of the respective Boards/Corporations/Government Companies for a tenure of two or three years, as the case may be and, therefore, the respondents had no power or authority to remove the petitioners from the offices in question before expiry of the period stipulated in the order of appointment. (ii) In any view of the matter, in case of statutory Boards/Corporations where the statute under which the concerned body is established, a specific period is stipulated for incumbent of the office and the Government has appointed the concerned petitioners as Chairman of that body for a period of two/three years. Hence, it is not open to the respondents to terminate the appointment of the petitioners before expiry of the period stipulated in the statute as well as in the appointment order. #. On the other hand, Mr S.N. Shelat, learned Additional Advocate General with Mr P.G. Desai, Government Pleader, Mr K.N. Raval and Mr. Y.N. Oza have made the following submissions :- I The Council of Ministers was formed the moment Shri Keshubhai Patel was sworn in as the Chief Minister on March 4, 1998. There is no constitutional requirement that the Council of Ministers must have more than one minister. So long as the Governor has not appointed other Ministers at the advice of the Chief Minister, the Chief Minister can give aid and advice to the Governor. It is only when other Ministers are appointed by the Governor at the advice of the Chief Minister that the question of allocation of portfolios would arise and that it is only at that stage that Rule 5 of the Gujarat Government Rules of Business, 1990 would come into operation, but prior thereto the Chief Minister is the sole repository of the power. II The petitioners were dignitaries appointed to high public offices and it is a consistent practice and convention that when they are to be replaced by other persons, the incumbent of the office is not removed from the office, but another person is appointed in place of the previous incumbent. Even when the petitioners were appointed as Chairmen of the respective Corporations/Boards/Government Companies, their initial appointment orders were on the aforesaid lines. Their predecessors in office were also not ordered to be removed from the respective offices, but the petitioners were appointed in place of the previous incumbents. III The power of the Government to appoint Chairmen/Directors of the statutory Boards/Corporations/Government Companies includes the power to remove the incumbents. All the petitioners were appointed in the respective offices on purely political considerations for smooth implementation of the policies and programmes of the previous Government. Accordingly, the present Government has the power to replace the incumbents of the respective offices by other persons so as to ensure smooth implementation of the policies and programmes of the present Government. CONTENTION I #. The learned counsel for the petitioners have vehemently urged that in view of the provisions of Part VI Chapter II of the Constitution, particularly the provisions of Articles 163 (1), 164, 166(3) and 167(c) of the Constitution, the Governor cannot exercise his powers under Article 154 of the Constitution without the aid and advice of the Council of Ministers. The relevant Articles read as under :- "163. Council of Minister to aid and advise Governor.- (1) There shall be a Council of Ministers with the Chief Minister at the head to aid and advise the Governor in the exercise of his functions, except in so far as he is by or under this Constitution required to exercise his functions or any of them in his discretion. (2) & (3) xxx xxx xxx xxxxxxx 164. Other provisions as to Ministers. (1) The Chief Minister shall be appointed by the Governor and the other Ministers shall be appointed by the Governor on the advice of the Chief Minister, and the Ministers shall hold office during the pleasure of the Governor. Provided that ... .... .... ....... (2) The Council of Ministers shall be collectively responsible to the Legislative Assembly of the State. (3) to (5) xxx xxx xxx xxxxxxx 166. Conduct of business of the Government of a State.- (1) All executive action of the Government of a State shall be expressed to be taken in the name of the Governor. (2) xxx xxx xxx xxx xxxxxxx (3) The Government shall make rules for the more convenient transaction of the business of the Government of the State, and for the allocation among Ministers of the said business in so far as it is not business with respect to which the Governor is by or under this Constitution required to act in his discretion. 167. Duties of Chief Minister as respects the furnishing of information to Governor, etc.- It shall be the duty of the Chief Minister of each State - (c) if the Governor so requires, to submit for the consideration of the Council of Ministers any matter on which a decision has been taken by a Minister but which has not been considered by the Council." It is submitted that the Chief Minister is at the most the head of the Council of Ministers, but the Chief Minister by himself is not the Council of Ministers as there must be atleast two Ministers in the Council of Ministers. The Chief Minister is certainly to head the Council of Ministers, but the Chief Minister is not a substitute for the Council of Ministers. In this connection reliance is also placed on the decisions of the Apex Court in AIR 1970 SC 1102, AIR 1971 SC 1002, AIR 1964 SC 72 and on the decision of the Madras High Court in AIR 1985 Madras 187. #. Mr PM Raval has further developed his argument on the basis of Rule 5 of the Gujarat Government Rules of Business, 1990 which reads as under :- "5(1) The Governor shall, on the advice of the Chief Minister, allocate amongst the Ministers and Ministers of State the business of the Government by assigning one or more departments to the charge of a Minister or a Minister of State : Provided that nothing in this rule shall be deemed to prevent - (i) the assigning of one department to the charge of more than one Minister or more than one Minister of State : (ii) the assigning of any department or of business appertaining to a department to a Minister as well as to a Minister of State : (iii) the Chief Minister from assigning temporarily to the charge of a Minister, a Minister of State or a Deputy Minister the Department, or as the case may be, any business, appertaining to a Department when the Minister-in-charge thereof is incapable of acting due to unavoidable absence or any other reason for some temporary period." It is strenuously urged that in view of the aforesaid constitutional rules framed under Article 166 (3) of the Constitution, in absence of any allocation of portfolios by the Governor, the Chief Minister had no power or jurisdiction to give any aid or advice to the Governor on March 6-7, 1998 when the impugned orders were passed since the Council of Minister was formed on March 13, 1998 and the allocation of business amongst the Ministers was done by the Governor thereafter. ##. It is vehemently submitted by the learned counsel for the petitioners that there cannot be any Council of Ministers when only the Chief Minister is sworn in without any other Ministers. The very concept of collective responsibility of the Council of Minister is the heart of the parliamentary form of democracy. Whenever a no confidence motion is moved, it is against the Council of Ministers and not against the individual Chief Minister or Prime Minister. Similarly, when the Government sends any matter back for reconsideration under Article 167(c), it is for reconsideration of the Council of Ministers and there can be no such reconsideration if the Council of Ministers is not in existence and only the Chief Minister is sworn in without any other Ministers. ##. On the other hand, Mr Shelat, learned Additional Advocate General has submitted that the Constitution does not prescribe any maximum or minimum number of Ministers for formation of the Council of Ministers. Reliance is placed on "The Practice and Procedure of Parliament" by M.N. Kaul and S.L. Shakdher, Fourth Edition, 1991 Page 121, wherein it is observed :- "The Council of Ministers consists of all the categories of Ministers of the Government of India whether they are `Member of Cabinet' or `Ministers of State' or `Deputy Ministers'. The Constitution does not lay down the number of Ministers - either the minimum or the maximum that should comprise the Council of Ministers. The size of the Council of Ministers is left to the Prime Minister who determines it according to the requirements from time to time." The learned Additional Advocate General has also sought to buttress the above submission by relying on the affidavit dated march 19, 1998 of Mr G.J. Patel, Under Secretary, State of Gujarat pointing out the practice and convention which has developed that the Chief Minister is sworn in first and thereafter other Ministers are appointed, and the following instances are cited :- Name of the Chief Date of Date of appoint- Minister appointment ment of other as Chief Ministers Minister ----------------- ------------ ---------------- 1. Shri Babubhai 18th June 1975 19th June 1975 Jashbhai Patel 2. Shri Amarsinh 7th July 1985 7th July 1985 Bhilabhai Chaudhari 3.