Case: Union Of India  Vs. Shardindu

3. Brief facts which are necessary for disposal of this appeal are that the respondent herein was informed on 31.12.2003 that he has been selected as Chairperson of the NCTE for a period of four years or till he attains the age of 60 years, whichever is earlier. After this appointment the respondent herein was relieved by the Government of Uttar Pradesh on 21.1.2004 and he assumed the charge of Chairperson, NCET on 22.1.2004. It was alleged that the respondent while working as Director, State Council for Educational Research and Training in the State of Uttar Pradesh, Lucknow an inquiry was conducted by the State Vigilance Commission at the behest of Government of Uttar Pradesh in respect of examination of 2001, in 2004. The State Vigilance Commission submitted the report on 27.3.2005 and on the basis of that report, a First Information Report was registered on 19.9.2005 implicating seven persons including the respondent herein and a separate order was passed by the State Government placing the respondent under suspension pending commencement of disciplinary proceeding. When this fact came to the notice of the Union of India, it passed an order on 18.11.2005 terminating the deputation of the respondent as Chairperson, NCTE. This order was subject matter of challenge in the writ petitioner filed by the respondent before the Delhi High Court. In order to appreciate the controversy involved in the matter the impugned order dated 18.11.2005 is reproduced below:Ministry of Human Resource DevelopmentDepartment of Elementary Education & LiteracyO R D E RThe Central Government hereby terminates the deputations of Dr.Shardindu as Chairperson, NCTE, appointed on 22.1.2004 vide order4. The respondent filed a writ petition challenging this order before learned Single Judge that he was not on deputation, therefore, his tenure could not be terminated and he could not be repatriated back to the State of Uttar Pradesh. The principal submission of the respondent before the learned Single Judge was that the respondent was appointed undern (3) of Section 4 of the National Council for Teacher Education Act, 1993 (hereinafter to be referred to as the Act) and the services of the respondent could only be terminated in terms of Sections 5 & 6 of the Act. It was submitted that the respondent has not become disqualified under Section 5 of the Act, therefore, the Central Government could not remove a person under Section 6 of the Act. The plea of the appellants before learned Single Judge was that the respondent was on deputation, therefore, deputation period has been terminated and he has been repatriated back to his parent Department as Education Officer of the State Government. It was also submitted that the appointment of the respondent was a pleasure appointment of the President of India under Article 310 of the Constitution of India. The appointing authority being the Central Government, therefore, as per General Clauses Act, the appointing authority could terminate the services of an incumbent5. Learned Single Judge after considering the matter took the view that there was no question of invoking the pleasure doctrine in the present case under Article 310 of the Constitution of India and the respondent was not on deputation, therefore, his services could not be terminated and he could not be repatriated back to the State of Uttar Pradesh. It was also held that since the incumbent was appointed under the Act of 1993 and he had not incurred any of the disqualifications mentioned in the Act, therefore, his services could not be terminated. It was also held that as per the method of termination of an incumbent as provided under the Act, his services could only be terminated in the manner as provided under the Act and none else. Learned Single Judge allowed the writ petition and set aside the order passed by the Union of India. Against the order passed by learned Single Judge of the High Court, a writ appeal was filed by the appellants before the Division Bench of the High Court which confirmed the order passed by the learned Single Judge, by order dated 27.7.2006. Hence aggrieved against the impugned order dated 27.7.2006 passed by the Division Bench of the High Court of Delhi, the present Special Leave Petition was filed by the appellants.

Court's reasoning:
16. Section 5 deals with disqualification for office of Members. Section 6 lays down the vacation of office of Member. We are not concerned with rest of the provisions of the Act as it deals with various functions and other connected matters of education. In purported exercise of the powers under Section 31 of the Act the Central Government framed the Rules known as National Council for Teacher Education Rules, 1997 ( hereinafter to be referred to as the Rules). Rule 5 of the Rules lays down the conditions of service of the Chairperson, the, like their pay, dearness allowance, house rent allowance and city compensatory allowance and other terminal benefits. Rule 6 deals with traveling and daily allowances to Members. Rule 7 deals with the powers and duties of the Chairperson. Therefore, from the scheme of the Act and the Rules it is apparent that the appointment of the Chairperson of the NCTE is a tenure post for a period of four years or any person attaining the age of sixty years whichever is earlier. Section 5 deals with disqualification and none of the disqualifications mentioned in that section has been incurred by the respondent. Neither he has been convicted nor sentenced to imprisonment for an office which in the opinion of the Central Government, involves moral turpitude, nor has he beend insolvent, nor was of unsound mind and has been removed or dismissed from the service of the Government or a body corporate owned or controlled by the Government, and has in the opinion of the Central Government such financial or other interest in the Council as is likely to affect prejudicially the discharge by him of his functions as a Member nor has committed any financial irregularity while working as Chairperson. Therefore, the respondent has not incurred any of the disqualifications as mentioned above. Section 6 deals with vacation of office of Member. Section 6 lays down that the Central Government can remove if any person has incurred any of the disqualifications as mentioned in Section 5. Proviso to Section 6 (a) further clarifies that the incumbent shall be removed on the ground that he has become subject to the disqualification mentioned in clause (e) of that section, unless he has been given a reasonable opportunity of being heard in the matter or refuses to act or becomes incapable of acting or without obtaining leave of absence from the Council, absent from three consecutive meetings of the Council or in the opinion of the Central Government has abused his position as to render his continuance in office detrimental to the public interest. Therefore, under these contingencies if a member is to be removed, then notice is required to be given to the incumbent. On the basis of the analysis of Sections 5 & 6 it is more than clear that the respondent has not incurred any of these disqualifications17. Now, the position that emerges is that the respondent was appointed for a fixed tenure of four years or till he attains the age of sixty years whichever is earlier under Section 4 of the Act and while discharging his duties he did not incur any of the disqualifications as mentioned in Sections 5 & 6. Therefore, so far as this statutory appointment is concerned, it cannot be terminated because he had not incurred any of the disqualifications. But while he was working in the State of Uttar Pradesh an inquiry was conducted in 2004 for an incident said to have happened in 2001 and in that a vigilance report was submitted before the State of Uttar Pradesh and on that basis the respondent was placed under suspension and a disciplinary proceeding was also initiated against the respondent and others by the State of U.P. None of these acts comes within the purview of Sections 4,5 & 6. If there was any provision that for his previous misconduct his tenure could be cut short, then it is understandable that the Central Government could have exercised their powers. But in absence of such provision can a statutory appointment be cut short, specially when the incumbent has not incurred any disqualifications under the Act. It may appear to be embarrassing but nonetheless we can not ignore the statutory provisions. If the provisions of disqualification and removal were not there perhaps something could be done but in face of clear provisions bearing on the subject it will be travesty of justice to cut short the statutory appointment of an incumbent18. Learned Additional Solicitor General tried to support his submission on pleasure doctrine under Article 310 of the Constitution and submitted that the respondent has been appointed by the Central Government and therefore, it is the pleasure of the President to cut short his appointment. In this connection, learned ASG invited our attention to a decision of this Court in Union of India & Anr. v. Tulsiram Patel etc. [(1985) 3 SCC 398] especially to paragraphs 34 and 44. The distinction between statutory appointment and pleasure appointment has to be kept in mind. The pleasure appointments are such where the incumbents are appointed at the pleasure of the President, like Governors etc. As against this, statutory appointments are made under the statute and the service conditions of the incumbents are governed by the statute. They are not pleasure appointments. Governor appointed under the Constitution is purely pleasure appointment or appointment of such nature which the incumbent holds at the pleasure of the President or the Governors as the case may be. Such appointments may be cut short. Their Lordships in the aforesaid case have dealt with the distinction between the pleasure appointment and appointment under the civil services. Their Lordships held that in India the doctrine of pleasure appointment received Constitutional sanction under Article 310 but unlike in United Kingdom in India it is not subject to any law made by the Parliament but is subject to only whatever expressly provided by the Constitution. Therefore, the distinction has to be borne in mind, the doctrine of pleasure appointment as it existed in feudal set up and in the democratic set up. Their Lordships discussed the doctrine of pleasure appointment in U.K. where the incumbent was appointed at the pleasure of the King but in India this concept has been adopted under Article 310 of the Constitution and how it is to be exercised has also been laid down in the Constitution. Therefore, the concept of pleasure doctrine cannot be invoked in the present case. Every appointment made by the Central Government is in the name of the President but by that it does not mean that all the appointments are pleasure appointments de hors the Constitution or statutory rules bearing on the subject. In the present case, the appointment made was of statutory appointment and the service conditions of the Chairperson and Members have been laid down, likewise their removal has also been laid down on incurring certain disqualifications. Therefore, the submissions of learned Addl. Solicitor General has no legs to stand21. As against this, learned senior counsel for the respondent, Mr.Gupta has strenuously urged before us that in case of statutory appointment there is no scope to cut short except to terminate the services of the incumbent in the manner provided under the Act. In this connection, our attention was invited to a decision of this Court in Sukhdev Singh & Ors. v. Bhagatram Sardar Singh Raghuvanshi & Anr. etc. [ (1975) 1 SCC 421] wherein the Constitution Bench held that the termination of service of an incumbent by the Corporation created by statute without complying with the regulations framed by the Corporation cannot be made. The reason was that the termination contravened the provisions contained in the Regulations. In short, when the appointment is made, the service conditions are laid down. The termination of such appointment could only be made in the manner provided in the statute and by no other way. Once the regulations have been framed and detailed procedure laid down therein, then in that case if the services of an incumbent are required to be terminated then that can only be done in the manner provided and none else23. This is an objective statement of law that in changing world. it is difficult to foresee future contingencies but if such contingency has not been anticipated then can a Court sit in to make it good. In the present case it is true that the contingency which has arisen i.e. the incumbent who has been appointed being a statutory appointment or saddled with investigation for his past conduct27. Learned Addl. Solicitor General next submitted that the appointment of the respondent was purely on deputation basis and since the deputation period has been terminated and the appointing authority has full right to terminate his deputation. Therefore, the respondent can be sent back to his parent department i.e. the State of Uttar Pradesh. We regret to say that this appointment of the respondent cannot be said to be purely an appointment on deputation basis. Strictly speaking, it is not a deputation post because the incumbent has been selected under the Act and he has not come on deputation as such though loosely it can be said to be on deputation in the sense that since the incumbent holds his lien in the State of Uttar Pradesh and the State of Uttar Pradesh has permitted him to join the post for a fixed period of four years or till he attains the age of superannuation i.e. sixty years. Since the respondent holds a lien in the State of U.P. therefore, to some extent he can be said to be on deputation but it is not in the sense of deputation as in the case of an all India Service person who is sent on deputation to the Central Government or to other organization. It is an independent selection under the statute and the State of U.P. has permitted the respondent to join his assignment as he holds a lien and after completion of the period of four years he will come back to the State till he attains the age of superannuation. If the incumbent was to retire within the period of four years perhaps it would not have been necessary to have moved the State of U.P. for its permission to join this assignment. Even after expiry of four years the respondent is left with some period of service. Therefore, formal permission was sought from the State of U.P. to permit the incumbent to join the post for a fixed term. Therefore, it is the permission by the State of U.P. to join the post and in case the incumbent comes back he can join the service under the State of U.P.. Therefore, it is almost like a permission and not in strict terms of deputation but loosely it can be termed as deputation. This is not the situation when the period of deputation can be cut short and the incumbent can be sent back to his parent department i.e. the State of U.P. unlike the officers of an all India service. This appointment is for a fixed tenure after due selection under the Act. Therefore, this kind of deputation stands on an entirely different category. However, learned Addl. Solicitor General tried to justify that a person who is sent on deputation has no right to continue in the post and his period of deputation can be cut short and he may be repatriated back to his parent department34. Lastly, learned Additional Solicitor General submitted that Article 142 of the Constitution should be exercised in the present case as there is no such provision for the contingency which has arisen in the matter and the termination of the respondent should be upheld. In this connection, our attention was invited to a decision of this Court in Supreme Court Bar Association v. Union of India & Anr. [(1998) 4 SCC 409 ]. This was a case where their Lordships exercised the inherent power under Article 142 of the Constitution. The Constitution Bench held that this Court in exercise of power under Article 142 of the Constitution cannot ignore any substantive statutory provision dealing with the subject. It is a residuary power, supplementary and complementary to the powers specifically conferred on the Supreme Court by statutes in order to do complete justice between the parties wherever it is just and equitable to do so. It is only intended to prevent any obstruction to the stream of justice. None of such contingencies exists in the present case so as to invoke the power under Article 142 of the Constitution. This case stands reaffirmed in Textile Labour Association & Anr. v. Official Liquidator & Anr. [ (2004) 9 SCC 741] 35. Our attention was invited to a decision of this Court in M.C.Mehta v. Kamal Nath & Ors. [ (2000) 6 SCC 213 ]. In this case, their Lordships held that power under Article 142 of the Constitution cannot be exercised by the Supreme Court where issue can be settled only through substantive provisions of the statute. Therefore, there is no occasion for us to exercise power under Article 142 of the Constitution36. Learned Addl. Solicitor General invited our attention to a decision of this Court in Secretary, Ministry of Information and Broadcasting v. Gemini TV (P) Ltd & Ors. [ (2004) 5 SCC 714]. This was a case in which Election Commission of India was directed to suggest the modalities as regards the advertisements to be telecast on electronic media by cable operators and television channels. This was after reviewing the provisions of the Representation of People Act, 1951; Cable Television Networks (Regulation ) Act, 1995 and Cable Television Networks Rules, 1994; this Court issued certain directions under Article 142 of the Constitution. This case has hardly any relevance so far as the present case is concerned.