Miss Pritam Dinkar Adhav v. Union of India & Ors

Judgment

) : 1 2 Heard learned counsel for the parties. Rule. Mr. Khandeparkar, Senior Counsel waives service on behalf of the Respondent Nos.1, 3 and 4. Mrs. Neeta SQ Pathan 2 Masurkar waives service on behalf of the Respondent No.2. Mr. Rajiv Patil, Senior Counsel waives service on behalf of the Respondent No.5. 3 Rule is made returnable forthwith with the consent of the parties and is taken up for final disposal. 4 At the outset, I may note that I am delivering a separate judgment, as my learned Sister and I have taken divergent views on the issues arising in the petition, and consequently, on the conclusion. 5 By this petition, the Petitioner has impugned the Notification dated 06.03.2025, issued by the Ministry of Defence, whereby the Petitioner’s name, as a nominated member of the Cantonment Board, Deolali, was substituted with that of Respondent No.5–Sachin Thakre. The Petitioner, therefore, seeks quashing and setting aside of the said Notification. Consequently, SQ Pathan 3 the Petitioner also seeks a direction to the Respondents to restore the Notification dated 03.01.2025, issued by the Respondent No.1, insofar as it nominates the Petitioner as a member of the Deolali Cantonment Board. 6 A few facts which have a bearing on and are necessary for deciding this petition, are as under: - On

05.02.2021, the Central Government (Respondent No.4) issued a notification varying the constitution of certain Cantonment Boards, which included the 2nd Respondent-Board. On 12.11.2021, the Central Government issued a notification nominating civilian members to certain Cantonment Boards, which included the 2nd Respondent-Board. Accordingly, the Petitioner was nominated as a member of the 2nd Respondent- Board, with effect from 12.11.2021 till 10.02.2022. SQ Pathan 4 On 07.02.2022, the Central Government, by a further notification again varied the constitution of the 2nd Respondent-Board, with effect from 11.02.2022, for a further period of six months. On 05.08.2022, the Central Government by a further notification again varied the constitution of 2nd Respondent- Board, for a further period of six months, with effect from

11.03.2022. Pursuant thereto, vide Notification dated 07.02.2023, the Petitioner came to be nominated again as a member of the 2 nd Respondent-Board, for a period of six months, with effect from

11.03.2023. It appears, and this fact is not disputed, that vide Notification dated 17.02.2023, the Central Government notified holding of ordinary elections to certain Cantonment Boards; SQ Pathan 5 however, by a subsequent Notification dated 17.02.2023, the same came to be rescinded, and hence, elections could not be held. Hence, vide Notification dated 03.08.2023, Central Government, by a further Notification, varied the constitution of the 2nd Respondent-Board for a period of six months, with effect from 11.08.2023. Accordingly, Central Government, Notification dated 04.08.2023, nominated the Petitioner as a member of the 2nd Respondent-Board for a period of six months, with effect from 11.08.2023. Again, by a further Notification dated 30.01.2024, the Central Government, varied the constitution of the 2nd Respondent-Board, for a period of one year, with effect from

11.02.2024. SQ Pathan 6 Accordingly, vide Notification dated 31.01.2024, the Petitioner came to be nominated as a member of the 2nd Respondent-Board for a period of one year, with effect from

11.02.2024. Pursuant thereto, the 2nd Respondent-Board, in its meeting, considered and noted the Notification dated

03.01.2025, appointing the Petitioner as a member of the said Board, for a period ending 10.02.2026. It appears that thereafter, Respondent No.4 was requested, vide email dated 29.01.2025, to give a recommendation for nomination of Respondent No.5 to the 2nd Respondent-Board. Vide communication dated 30.01.2025 issued by the office of the Respondent No.4 to Respondent No.3, the latter was called upon to examine the issue of recommendation of the Respondent No.5 and to give its opinion thereon. Accordingly, SQ Pathan 7 Respondent No.3 sent a letter dated 31.01.2025 to the 2 nd Respondent-Board, forwarding the communication dated

30.01.2025, for necessary action. On 24.02.2025, the Petitioner took oath as a member of the 2nd Respondent-Board, in a meeting of the said Board. Pursuant to the oath, the Petitioner has been functioning as a nominated member of the 2nd Respondent-Board. The Petitioner has thus been functioning as a member of the said Board since 2021. It is the Petitioner’s case that she learnt that the process for nominating Respondent No. 5 was under consideration due to political interference, although her tenure was to end on 10.02.2026. Pursuant to the said information, the Petitioner applied under the Right to Information Act, 2005, seeking certain documents pertaining to the process of SQ Pathan 8 nomination of Respondent No. 5 in her place. The Petitioner received the documents sought, including the opinion of the President of the 2nd Respondent-Board, which clearly opined that there was no reason to replace the Petitioner as the nominated member of the said Board. However, on 06.03.2025, the Central Government issued a notification substituting the Respondent No.5 as a nominated member of the 2nd Respondent-Board in place of the Petitioner. 7

Being aggrieved by the same, the Petitioner has filed this petition, challenging the aforesaid Notification. SUBMISSIONS OF MR. KUMBHAKONI, Learned Senior Counsel for the Petitioner: 8 Mr. Kumbhakoni assailed the impugned notification dated 06.03.2025, on several counts: SQ Pathan 9 (i) That once the Central Government had notified the varied constitution of the Respondent No. 2–Deolali Cantonment Board, vide Notification dated 03.01.2025 (with effect from

11.02.2025), for a period of one year, i.e., till 10.02.2026, pursuant to Section 13(3) of the Cantonments Act, 2006, (the Petitioner’s tenure was to continue until 10.02.2026), the impugned Notification dated 06.03.2025, issued under the very same provision, ‘substituting’ the Respondent No.5 in place of the Petitioner, was ex facie illegal, and without any jurisdiction/power / authority. (ii) That the power to vary the constitution of the Board, does not include the power to ‘substitute’ a member, more particularly, when a specific power to remove a member is provided under the Act. (iii) That under the Cantonments Act, the power to vary, SQ Pathan 10 i.e., to appoint a new person as a nominated member, would arise; only - (a) where a nominated member is sought to be removed, as provided under Section 34 of the Act; and (b) where a vacancy arises. Thus, unless and until the Petitioner is removed from her post, or the seat becomes vacant, the question of nominating the Respondent No. 5 in place of the Petitioner does not arise. (iv) That nomination could have been done only ‘in consultation with the General Officer Commanding-in-Chief, the Command (GOC-in-C)’, and no such consultation was undertaken. He submits that infact, the Respondent No. 2 Board had clearly opined that the name of the Respondent No.5 could be considered only after the expiry of the present Board’s term on

10.02.2026. (v) That two other members of the Board, appointed vide earlier Notification dated 03.01.2025, have not been SQ Pathan 11 replaced/substituted and that the Petitioner, without any valid reason, has been singled out by the said substitution. That the said act, therefore, smacks of arbitrariness and is wholly without jurisdiction/ power/ authority. Further, the Petitioner was not even issued a show cause notice, resulting in a clear breach of the principles of natural justice. (vi) That unless a specific power is conferred under the Act for ‘substitution’, which is completely absent, the impugned Notification has to be considered as one issued without any power/authority of law. The mere power to appoint/nominate will not, by itself, include the power to ‘substitute,’ since the power to nominate arises only in two contingencies: (a) on removal; and (b) on a resultant vacancy. (vii) That though the impugned Notification is styled as an ‘amendment’ by way of ‘substitution,’ in fact and in law, it SQ Pathan 12 amounts to a ‘removal’ of the Petitioner, which has been done without following the due procedure, much less the one prescribed under Section 34 of the Cantonments Act. (viii) That the language employed in Sections 34 r/w 35 of the Act, i.e., the ‘power of removal’, applies equally to ‘any member,’ including a nominated member, and not merely to an elected member. (ix) That when the Act contains a specific provision for the ‘removal’ of ‘any member’ under Section 34, there is no scope whatsoever for importing into the Act any provision of the General Clauses Act. That no doubt, the ‘power to appoint’ includes the ‘power to remove’; however, when the statute itself expressly provides the grounds and procedure for removal, including adherence to the principles of natural justice under Section 34(4), the provisions of the General Clauses Act cannot be invoked or read into the Cantonments Act. SQ Pathan 13 (x) That the principle of the ‘Doctrine of Pleasure’ and/or ‘Doctrine of At-Will’ will have no application, having regard to the clear and unambiguous provisions of the Act; that the said doctrine will apply only where the same is expressly incorporated in the statute/Act; or where it can be read into by necessary implication, by virtue of the language employed in the statute; and that if the said doctrine were to be read despite there being a specific provision under the Act, the same would amount to legislating, which cannot be done. (xi) That the impugned Notification has been issued without application of mind and constitutes an arbitrary exercise of power. (xii) Without prejudice to the aforesaid grounds, it is submitted that no satisfaction, as contemplated under Section 13(1) of the Act, has been recorded by the Central Government. SQ Pathan 14 9 Mr. Kumbhakoni, in support of his submissions, placed reliance on the following judgments: (i) Bhanwarlal v. State & Ors.1 (ii) B. Krishan v. Union of India & Ors.2 (iii) Ramesh Bhauraoji Girde & Anr. v. State of Maharashtra & Ors.3 (iv) State of Madhya Pradesh v. Ajay Singh & Ors.4 (v) Jeevanrao Vishwanathrao Gore v. State of Maharashtra & Ors.5 (vi) Dnyaneshwar Digamber Kamble v. State of Maharashtra & Ors.6 (vii) B. P. Singhal v. Union of India & Anr.7 (viii) Supertech Ltd. v. Emerald Court Owner Resident Welfare Association & Ors.8 (ix) Shaikh Mahemud s/o. Shaikh Mahebub v. State of Maharashtra.9 1 2 3 4 5 6 7 8 9