B. Selvaganapathy v. The Chairperson, Tamil Nadu State Commission for Women & Ors.

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 22-07-2009CORAMTHE HONOURABLE MR. JUSTICE P.K. MISRAANDTHE HONOURABLE MR. JUSTICE R. SUBBIAHWRIT PETITION NO.29748 OF 2008andM.P.NO.1 OF 2008B. Selvaganapathy.. PetitionerVs.1.The Chairperson,Tamil Nadu State Commission for Women,Ground Floor, Office of the Agriculture Department Buildings,Chepauk, Chennai 600 005.2.The Chief Secretary to Government,Fort St. George,Chennai 600 009.3.Tmt.K.M. RamathlThe Chairperson,Tamil Nadu State Commission for Women,Ground Floor, Office of the Agriculture Department Buildings,Chepauk, Chennai 600 005.(Respondent No.3 impleaded as per court order dated 23.3.2009 in M.P.No.2/2008 in WP.29748/08).. RespondentsPetition filed under Article 226 of the Constitution of Indiafor the issuance of Writ of Quo Warranto to question the nominationof the present incumbent (Tmt.K.M. Ramathal) as Chairperson andholding the office of the Chairperson of the Tamil Nadu StateCommission for Women without proper authority. https://hcservices.ecourts.gov.in/hcservices/ For Petitioner: Mr.A.L. NamasivayamFor Respondent No.2: Mr.G. Masilamani Advocate General assisted by Mr.M. Dhandapani Special Govt. PleaderFor Respondents 1 & 3: Mr.T. Mathi- - -J U D G M E N TP.K. MISRA, JThe above writ petition has been filed for issuing a Writof Quo Warranto questioning the nomination of one Tmt.K. Ramathal asthe Chairperson of the Tamil Nadu State Commission for Women.2. When such matter was listed for hearing, it was foundthat the writ petitioner had not impleaded the incumbent, namely,Tmt.K.M. Ramathal as Respondent. However, since it was foundnecessary to implead such person, whose appointment to the post ofChairperson was in question, this Court suomotu impleaded theincumbent Tmt.K.M. Ramathal as Respondent No.3 in the writ petition.3. Petitioner is a practicing lawyer. As perG.O.Ms.No.72, Social Welfare and Nutritious Meal Programme, dated19.3.1993, the State Commission for Women was constituted, whichwas published in the Tamil Nadu Government Gazette Notification,dated 21.4.1993. Para 2 of the said Notification provides that theTamil Nadu Commission for women shall consist of a Chairperson, whoshall be a retired Judge, committee [There is an obvious printingmistake. The correct expression is obviously "committed".] to thecause of Women, to be nominated by the State Government. As perpara 3 of the said Notification, the Chairperson and every Membershall hold office for one year, from the date of their nomination.Para 6 of the said Notification is as follows :-"6. The Commission shall perform all or any of thefollowing functions, namely:-(a) investigate and examine all matters relating tothe safeguards provided for women under the Constitutionand other laws;(b) present to the State Government annually and atsuch other times as the Commission may deem fit, reportsupon the working of these safeguards and make in suchreports recommendations for the effective implementationof those safeguards for improving the conditions of women; https://hcservices.ecourts.gov.in/hcservices/ (c) review, from time to time, the existingprovisions of the Constitution and other laws affectingwomen and recommend amendments thereto so as to suggestremedial legislative measures to meet any lacunae,inadequacies or shortcomings in such legislations;(d) take up the cases of violation of the provisionsof the constitution and of other laws relating to womenwith the appropriate authorities;(e) look into the complaints relating to:-(i) deprivation of women's rights;(ii) non-implementation of laws enacted toprovide protection to women and also to achieve theobjective of equality and development;(f) call for special studies or investigations intospecific problems or situations arising out ofdiscrimination and atrocities against women and identifythe constraints so as to recommend strategies for theirremoval;(g) undertake promotional and educational research soas to suggest ways and ensuring due representation ofwomen in all spheres and identify factors responsible forimpeding their advancement;(h) inspect of cause to be inspected jail, remandhome, women's institution or other place of custody wherewomen are kept as prisoners or otherwise, and take up withthe concerned authorities for remedial action, if foundnecessary;(i) any other matter which may be referred to it bythe State Government."4. In the above background, it is specifically contendedin the writ petition that as per para 2 of the Notification only aretired Judge of the High Court is eligible to be appointed asChairperson of the Commission and, therefore, such person is noteligible to hold the office of the Chairperson. Apart from theabove, several allegations have been made relating to allegedmalfunctioning by the Chairperson. However, for the purpose ofdeciding the present case, it is not necessary to refer to any ofthose allegations. It has been further averred in the writ petitionthat the Chairperson is to hold the office for one year from thedate of nomination. On the aforesaid basis, it is contended thatapart from the fact Respondent No.3 was ineligible, she has alsocompleted the period of one year from her initial nomination asChairperson and, therefore, appropriate writ of Quo Warranto shouldbe issued.5. A counter affidavit was filed on behalf of RespondentNo.2, namely, the Chief Secretary to Government, by the AdditionalSecretary to Government in Social Welfare and Nutritious Meal https://hcservices.ecourts.gov.in/hcservices/ Programme Department. In such counter affidavit, it has been statedthat a statutory provision has now been made as per the Tamil NaduState Commission for Women Act, 2008 (Tamil Nadu Act 31 of 2008),whereunder the requirement regarding nomination of a retired Judgeas Chairperson has been done away with and instead it is providedthat "a Chairperson, who shall be an eminent woman committed to thecause of women to be nominated by the Government". Moreover, inSection 4 of Act 31 of 2008 it is also provided that the Chairpersonshall hold office for a period not exceeding three years. Eventhough the requirement as per the original G.O.Ms.No.72, dated19.3.1993, regarding appointment of a retired Judge as Chairpersonis not denied, it has been highlighted that subsequently severalother persons, who were not retired High Court Judges, had beenappointed as Chairperson of the State Commission for Women.Regarding the tenure it had been stated that, though initially thetenure was for one year, subsequently, by the letter issued by theGovernment such tenure was fixed at three years. It is alsocontended that at any rate in view of the subsequent statute, theperson now holding the office is eligible and, therefore, the writof Quo Warranto is not required to be issued.6. In the counter affidavit filed by Respondents 1 and 2,apart from taking a stand similar to that of Respondent No.2, it hasbeen stated that the present writ petition has been filed by thepetitioner not on account of any public interest, but in view of theprivate grievance of the petitioner on account of a matterconcerning the writ petitioner, which had already been dealt with bythe Chairperson.7. At the time of hearing of the writ petition, thelearned Advocate General appearing for Respondent No.2 has contendedthat G.O.Ms.No.72, dated 19.3.1993, was merely an executiveinstruction and even assuming that there was some violation of suchexecutive instruction while making the appointment, no writ of QuoWarranto should be issued inasmuch as it cannot be said that thereis violation of any statutory provision. In support of suchcontention, the learned Advocate General has placed reliance upon adecision of Kerala High Court reported in AIR 1970 Kerala 312 (ALEXBEETS v. M.A. URMESE AND ANOTHER). Learned Advocate General hasfurther contended that even assuming that the incumbent was noteligible under G.O.Ms.No.72, dated 19.3.1993, in view of thestatutory provision now made, under which the incumbent is very mucheligible, no writ of Quo Warranto need be issued inasmuch asissuance of such a writ may prove to be futile as the Government hasthe power to re-appoint the very same person under the statuteholding the field. In support of such contention, the learnedAdvocate General has placed reliance upon a Full Bench decision ofthe Delhi High Court reported in AIR 1975 Delhi 66 (P.L. LAKHANPALv. AJIT NATH RAY, CHIEF JUSTICE OF INDIA, NEW DELHI AND OTHERS). https://hcservices.ecourts.gov.in/hcservices/

8. An examination of G.O.Ms.No.72, dated 19.3.1993,clearly indicates that the Chairperson of the State Commission forWomen is expected to discharge certain public duties. Law is nowwell settled that in the absence of any statutory provision orstatutory rule, appropriate executive instructions can be issuedeven in the matters relating to service conditions in various publicoffices and other matters. It is also further well settled that inthe absence of any statutory provision or rule, the executiveinstructions are expected to be followed. In the above view of thematter, the contention raised by the Advocate General that forviolation of the executive instructions, no writ of Quo Warranto beissued by relying upon the decision of the Kerala High Court citedabove, may not prima facie be acceptable. However, in ourconsidered opinion, it may not be necessary to delve further intothis aspect as, according to us, the other objection raised by theAdvocate General appears to be on a much stronger footing.9. It is no doubt true that when the appointment ofRespondent No.3 was made, such appointment was contrary to theexecutive instructions, which had been notified in G.O.Ms.No.72,dated 19.3.1993. However, at present, such executive instructionhad been replaced by statutory provision and under such statutoryprovision, there is no requirement that only a retired Judge wouldbe eligible to be nominated as Chairperson of the State Commissionfor Women. Since under the present statute, namely, Act 31 of 2008,the present incumbent is eligible to be reappointed, issuance of QuoWarranto on the ground that she was not eligible to be appointed asper G.O.Ms.No.72, dated 19.3.1993, would be an exercise in futilityinasmuch as the very same person after being removed from the officeby virtue of issuance of Writ of Quo Warranto can be reappointed bythe State Government. As a matter of fact, in the counter affidavitof the second respondent it has been specifically stated that suchincumbent is eligible under the provisions of the statute and,therefore, she would be continuing in such post till she completesthe period of three years i.e., till January, 2010. This itself isa clear indication emanating from the State Government that there isno embargo for reappointment of such person. Even if a writ of QuoWarranto is issued, it would become infructuous by reappointing suchperson. Thus, keeping in view such specific stand of the Governmentand keeping in view the ratio of the Full Bench decision of theDelhi High Court, we do not think it is a fit case where the highprerogative writ of Quo Warranto could be issued. 10. In view of the aforesaid conclusion, the averments andcounter averments relating to functioning of Respondent No.3 and thealleged motive for the present petitioner for filing the writpetition need not be gone into. https://hcservices.ecourts.gov.in/hcservices/

11. The writ petition is accordingly dismissed. No costs.Consequently, connected Miscellaneous Petition is closed.dpkSd/Asst.Registrar/true copy/Sub Asst.RegistrarTo1.The Chief Secretary to Government,Fort St. George,Chennai 600 009.2.The Chairperson,Tamil Nadu State Commission for Women,Ground Floor, Office of the Agriculture Department Buildings,Chepauk, Chennai 600 005.+ 2 ccs to Mr. A.L. Namasivayam, Advocate SR No.33122/09RSI(CO)SR/31.7.2009JUDGMENT IN WP.NO.29748/2008