# DR. RASH LAL YADAV v. STATE OF BIHAR AND ORS

- **Citation:** [1994] Supp. 1 S.C.R. 231
- **Court:** Supreme Court of India
- **Decided:** 1994-06-23
- **Case number:** Civil Appeal No. 4771 of 1992
- **Bench:** A.M. Ahmadi, M.M. Punchhi
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/dr-rash-lal-yadav-v-state-of-bihar-and-ors-12393
- **Pages:** 21

## Headnote

Bihar Non-Government Secondary Schools (Taking over of Management and Control) Act, 1981 : Sectio'!s 10(6) and 7.
A
B
Bihar School Service Board-Chairman-Appointment for a tenure of C
three years-Functioning of Chairman-Detrimental to the interest of
Board-RemovaHleld : State Government's power of removal is not unguided and absolute-Opportunity to show cause before removal held excluded-Removal can be done within the tenure perioJ-Doctrine of
pleasure-Applicability of
Consh"tution of India, 1950 : Article 14. Statute-{]nguided and absolute powe.-Section 10(7) of the Bihar Non-Government Secondary School
(Taking over of Management and Control) Act, 1981-Held not violative of
Article 14.
Service Law-Tenure post-Removal before expiry of tenure-f'e1.nissibility of
Administrative la~atural justice-Where the Statute expressly or by
implication excludes natural justice-Statute cannot be invalidated for this
D
E
omission on the ground of aroitrariness.
F
The appellant was appointed as chairman of the Bibar School Service Board for a term of there years. Snbseqnent to bis appointment
Government received complaints against him regarding mismanagement,
conducting farce interviews, improper behaviour with other Board Mem·
hers, and inviting applications for appointment of teachers in defiance of G
the Government's direction. On the basis of the complaints received the
Government concluded that the manner in which the appellant was
functioning was not condncive to the proper working of the Board l\Or was
it in public interest. Accordingly, the Government by its order dated April
4, 1991, passed in exercise of its power under sob- section (7) of Section H
231
232
SUPREME COURT REPORTS [1994) SUPP. 1 S.C.R.
A 10 of the Bihar Non-Government Secondary Schools (Taking over of
Management and Control) Act, 1981, removed him from service.
B
The appellant questioned the validity of the order before the High
Court which examined the material on which the State Government's
decision for removal was founded and came to the conclusion that (I) there
was justification for the exercise of the power and therefore, the State
Government was justified in ordering his removal; and (ii) the material
placed before it did not prove the allegation of malice or lack of bona fide.
The High Court rejected the contentions of the appellant that (1)
C Section 10(7) was ultra vires Article 14 because it conferred unguided and
absolute power of removal on the Government; (ii) the doctrine of pleasure
applies only to Government servants and cannot be extended to statutory
offices; (iii) since the appellant was appointed on a tennre post he was
entitled to continue on the post till the expiry of the period; (iv) the order
was passed in violation of natural justice because no opportunity to show
D cause was given to him; and (v) even in the absence of a specific provision
the requirement of natural justice must be read into the said provision.
In coming to its conclusion the High Court took note of changes
brought about in the Act which was preceded by the Ordinance viz., (i) in
E
sub-section 6 of section 10 of the Act while duration of the appointment of
Chairman for 3 years as provided in Ordinance was retained, the words
'or during the pleasure of the State Government' were added i.e. for the
. first time Pleasure Doctrine was incorporated in the Act; (ii) in snb·section
(7) of section 10 of the Act two changes were introduced: (a) the Chairman
could be removed by giving one month's notice or one month's salary in
F
lieu of notice and (b) the proviso incorporating the rule of natural justice,
namely of giving reasonable opportunity of showing cause, was deleted.
In appeal to this Court it was contended on behalf of the appellant
that the requirement of giving an opportunity to show cause, though not
G specifically provided for, must be read into the Act otherwise the Act may
be rendered ultra vires as conferring absolute and unfettered power on the
State Government.
On

## Text

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DR. RASH LAL YADAV
v.
STATE OF BIHAR AND ORS.
JUNE 23, 1994
(A.M. AHMADI AND"M.M. PUNCHHI, JJ.]
Bihar Non-Government Secondary Schools (Taking over of Management and Control) Act, 1981 : Sectio'!s 10(6) and 7.
A
B
Bihar School Service Board-Chairman-Appointment for a tenure of C
three years-Functioning of Chairman-Detrimental to the interest of
Board-RemovaHleld : State Government's power of removal is not unguided and absolute-Opportunity to show cause before removal held excluded-Removal can be done within the tenure perioJ-Doctrine of
pleasure-Applicability of
Consh"tution of India, 1950 : Article 14. Statute-{]nguided and absolute powe.-Section 10(7) of the Bihar Non-Government Secondary School
(Taking over of Management and Control) Act, 1981-Held not violative of
Article 14.
Service Law-Tenure post-Removal before expiry of tenure-f'e1.nissibility of
Administrative la~atural justice-Where the Statute expressly or by
implication excludes natural justice-Statute cannot be invalidated for this
D
E
omission on the ground of aroitrariness.
F
The appellant was appointed as chairman of the Bibar School Service Board for a term of there years. Snbseqnent to bis appointment
Government received complaints against him regarding mismanagement,
conducting farce interviews, improper behaviour with other Board Mem·
hers, and inviting applications for appointment of teachers in defiance of G
the Government's direction. On the basis of the complaints received the
Government concluded that the manner in which the appellant was
functioning was not condncive to the proper working of the Board l\Or was
it in public interest. Accordingly, the Government by its order dated April
4, 1991, passed in exercise of its power under sob- section (7) of Section H
231
232
SUPREME COURT REPORTS [1994) SUPP. 1 S.C.R.
A 10 of the Bihar Non-Government Secondary Schools (Taking over of
Management and Control) Act, 1981, removed him from service.
B
The appellant questioned the validity of the order before the High
Court which examined the material on which the State Government's
decision for removal was founded and came to the conclusion that (I) there
was justification for the exercise of the power and therefore, the State
Government was justified in ordering his removal; and (ii) the material
placed before it did not prove the allegation of malice or lack of bona fide.
The High Court rejected the contentions of the appellant that (1)
C Section 10(7) was ultra vires Article 14 because it conferred unguided and
absolute power of removal on the Government; (ii) the doctrine of pleasure
applies only to Government servants and cannot be extended to statutory
offices; (iii) since the appellant was appointed on a tennre post he was
entitled to continue on the post till the expiry of the period; (iv) the order
was passed in violation of natural justice because no opportunity to show
D cause was given to him; and (v) even in the absence of a specific provision
the requirement of natural justice must be read into the said provision.
In coming to its conclusion the High Court took note of changes
brought about in the Act which was preceded by the Ordinance viz., (i) in
E
sub-section 6 of section 10 of the Act while duration of the appointment of
Chairman for 3 years as provided in Ordinance was retained, the words
'or during the pleasure of the State Government' were added i.e. for the
. first time Pleasure Doctrine was incorporated in the Act; (ii) in snb·section
(7) of section 10 of the Act two changes were introduced: (a) the Chairman
could be removed by giving one month's notice or one month's salary in
F
lieu of notice and (b) the proviso incorporating the rule of natural justice,
namely of giving reasonable opportunity of showing cause, was deleted.
In appeal to this Court it was contended on behalf of the appellant
that the requirement of giving an opportunity to show cause, though not
G specifically provided for, must be read into the Act otherwise the Act may
be rendered ultra vires as conferring absolute and unfettered power on the
State Government.
On behalf of the State it was contended that (i) the requirement of
giving the delinquent Chairman an opportunity to show cause before
H exercise of power of removal should not be read into Section 10(7) because
R.L.YADAV(DR.) v.STATEOFBIHAR
233
the Legislature has consciously done away with the requirement for the A
reason that having regard to the sensitive functions assigned to the Board
immediate action may become necessary in case the functioning of the
Chairman was detrimental to the interest of the Board and (ii) the power
conferred on State under Section 10(7) is not without guidelines because
the power can be exercised only if the condition precedent for the exercise B
of that power exists, namely, conduct of Chairman which is detrimental to
the interest of the Board.
Dismissing the appeal, this Court
HELD : 1. The decision of the High Court is based on the assessment C
of facts and ordinarily this Court is loathe to re- evaluate the same unless it
is shown that the High Court's appreciation offacts has resulted in miscarriage of justice. No such case is made out by the appellant. (251-B-C]
2. Unless the law expressly or by necessary implication excludes the
applications of the rule of nature justice, Courts will read the said require- D
ment in enactments that are silent and insist on its application even in
cases of administrative action having civil consequences. (249-D)
3. By omitting the proviso to sub-section (7) of Section 10 of the
Ordinance and incorporating the provision regarding giving of one E
month's notice or notice pay, the Legislature gave a clear indication that
If the Chairman/Member was incapable of working or refused to work or
worked in a manner detrimental to the interest of the Board, the State
Government shall have the power to remove him without the need to
comply with the requirement of giving an opportunity to show cause. The
legislative history leaves nothing to doubt that the legislature did not F
expect the State Government to seek the incumbent's explanation before
exercising the power of removal under the said provision. The High
Court's view is right in this behalf. (245-D-E; 249-E-F]
4. If the statute, expressly or by necessary implication omits the G
application of the rule of natural justice, the Statute will not be invalidated
for this omission on the ground of arbitrariness. (246-G)
A.K Kraipak v. Union of India, A.I.R. (1970) SC 150 = (1970) S.C.R.
457 and State of Orissa v. Dr. (Miss) Binapani Dei, (1967) 2 S.C.R. 625,
referred to.
H
A
B
234
SUPREME COURT REPORTS (1994] SUPP.1 S.C.R.
5. The concept of natural justice Is not a static one but is an ever
expanding concept. In the initial stages it was thought that it bad only two
elements, namely, (l) no one shall be a judge in bis own cause and (ii) no
one shall be condemned unheard. With the passage of time a third element
was introduced, namely, of procedural reasonableness because the main
objective of the requirement or rule of natural justice is to promote justice
and prevent its miscarriage. Therefore, when the legislature confers power
in the State Government to be exercised In certain circumstances or
eventualiti~s it would be right to presume that the legislature intends that
the said power be exercised in the manner envisaged by the statute. If the
statute confers drastic powers it goes without saying that much powers
C must be exercised in a proper and fair manner. Drastic substantive laws
can be suffered only if they are fairly and reasonably applied. In order to
ensure fair and reasonable application of such laws court have, over a
period of time, devised rules of fair procedure to avoid arbitrary exercise
of such powers. [245-F-G-H; 246·A·Bl
D
6. True it Is, the rule of natural justice operate as checks. on the
freedom of adminltrative action and often prove time-consuming but that
is the price one has to pay to ensure fairness In administrative action. And
this fairness can be ensured by adherence to the expanded notion of rule
of natural justice. Therefore, where a statute confers wide power on an
E administrative authority coupled with discretion, the possibility of its
arbitrary use can be controlled or checked by Insisting on their being
·exercised in a manner which can be said to be procedurally fair. [246-B-C)
7. Where the statute is silent and a contrary intention cannot be
p
implied, the requirement of the applicability of the rule of natural justice
is read into it to ensure fairness and to protect the action from the charge
of arbitrariness. Courts. presume this requirement in all its width as
impled unless the enactment supplies indications to the contrary as in the
present case. [246-C·D)
G
H
Union. of Indif. v. J.N. Sinha & Ors., [19711 1 s.c.R. 791; Swadeshi
Cotton Mills & O' . v. Union of India & Ors., [1981) 1 S.C.C. 664 and
Mohinder Singh Gill v. Election Commissioner of India, [1978) 1 S.C.C. 405,
referred to.
8. It is obvious from the plaln1language of sub-section (7) of Section
R.L. YADAV(DR.) v. STATEOFBIHAR
235
10 that the matter is left to the subjective satisfaction of the State GovernA
ment which subjective satisfaction must be reached on relevant material
on record and not the whim and swe.etwill of the Government. The power
cannot be exercised unless relevant material is placed bofore the State
Government on the basis of which the State Government as a reasonable
person is able to conclude that one or more of the conditions mentioned B
in the sub-section exists and therefore, it is necessary to exercise power of
removal to safeguard the Board from harm. The power is clearly coupled
with the twin dnty, firstly to ensure that circumstances do exist for the
exercise of the power of removal of the Chairman or Member, as the case
may be and secondly to safeguard the institution from harm that may be
caused by the continuance of such Chairman or Member on the Board. In C
the ultimate analysis the power has to be exercised in public interest and
for public good because the State Government is duty bound to protect the
image and credibility of the Board so that people's faith in the Board is
not shaken. Of course, if the exercise of such power is challenged in Court,
the State Government will have to satisfy the Court that it exercised the D
power bona fide and on material relevant to establish to existence of the
factual situation necessary for exercise of the said power. That can at best
be the extent of judicial scrutiny. (250-E·F·G·H; 251-A)
9. By the changes introduced in sub-sections (6) and (7) of Section
10 of the Act the Legislature made it clear that the appointment of the E
Chairman/Member could be terminated at any time during the pleasure
of the State Government by one month's notice or on payment of one
month's salary in lieu of notice, notwithstanding the tenure contemplated
thereunder. [245-C]
F
10. On a plain reading of sub-section (6) it becomes immediately
clearly that the initial tenure will not exceed three years hut this shall be
during the pleasure of the State Government which means that the State
Government shall have the right to curtail the tenure to less than three
years also. Therefore, neither the Chairman nor the members have any
right to continue for three years. A contrary interpretation would clearly G
violate the letter and spirit of the law. True it is that the said sub-section
could have been better worded but the language does convey the legislative
purpose quite clearly. [259-H; 250-A, B·C)
·
R.P. Raja v. State of Bihar, (1967) PKJR 275, referred to.
H
236
SUPREME COURT REPORTS [1994] SUPP. 1 S.C.R.
A
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 4771 of
1992.
From the Judgment of and Order dated 24.3.92 of the High Court
of Patna in C.W.J.C. No. 2634 of 1991.
B
B.B. Sinha, S.K. Bhattacharjee and S.C. Patel for the Appellant.
c
D
E
F
D.P. Gupta, Solicitor General, B.B. Singh and Kumar Rajesh Singh
for Res. Nos. 1 and 2.
Gopal Subramaniam and L.R. Singh for Res. Nos. 4 & 6.
A. Sharan for Res. No. 5.
Ranjit Kumar for Res. Nos. 7 & 8.
The Judgment of the Court was delivered by
AHMADI, J. Three writ petitioners were filed by (i)° Dr. Radha
Krishna Poddar (ii) Shri Ambika Prasad and (iii) Dr. Rash Lal Yadav
challenging their removal from the Chairmanship of the Bihar School
Service Board constituted under the provisions of the Bihar Non-Government Secondary Schools (Taking Over of Management and Control) Act,
1981, hereinafter called 'the Act'. These three petitions which were heard
by a Division Bench of the Patna High Court came to be dismissed by a
common judgment rendered on March 24, 1992. The petitioners of the first
two petitions have not preferred any appeal against the said judgment but
the petitioner of the third petition Dr. Rash Lal Yadav has preferred the
present appeal under Article 136 of the Constitution. It is, therefore, not
necessary for us to refer to the facts of the petitioners of the first two writ
petitions. We will, therefore, confine ourselves to the factual position
relevant to the appeal filed by Dr. Rash Lal Yadav, hereinafter called 'the
appellant'. The appellant was the Head of the Department in Maithili in
Kunwar Singh College, Lakhisarai, before his selection and appointment
G as Chairman of the Bihar School Service Board, hereinafter called 'the
Board', for a term of three years from the date he assumed charge of his
office, vide Notification dated November 18, 1990. Prior to his appointment
this Office was occupied by the other two petitioners Dr. Radha Krisljna
Poddar and Shri Ambika Prasad Pandey. Both of them had been removed
from the Chairmanship of the Board on account of several charges of
H mismanagement which were the subject matter of vigilance inquiries. How-
'
' )'
\
\
\
"
•
I
__ ,'
'
R.L. YADAV(DR.) v. STATEOFBIHAR [AHMADl,J.).
237
ever, after the appellant took over as the Chairman of the Board, he too A
took certain actions the propriety whereof came to be questioned. Notwithstanding the difficult financial condition of the Board, he, it was
alleged, decided to shift the Board's office to another premises on a
monthly rent of Rs. 16,000 as against Rs. 8,000 paid for the premises where
the Board's office was earlier situate. It was also alleged that he withdrew
Rs. 1 lakh and paid the same by way of advance for furnishing the new B
office. Complaints were also received by the Government from a large
number of candidates that the interviews conducted by the appellant were
a farce, inasmuch as almost 150 candidates were interviewed on each day
rendering the entire process and empty formality. It was alleged that some
of the experts who participated in the interviews complained to the C
Government that they were not permitted by the Chairman to question the
candidates. Only formal question were put to the candidates and they were
hurriedly despatched. They made several complaints regarding the abrasive
manner in which the Chairman behaved with the other Board members as
well as the candidates. They complained that apart from the fact that his
behaviour was not proper he was more interested in finding out the caste D
or community to which the candidate belonged rather than assessing the
merit for appointment. Smt. Saroj Bala Sinha one of the members even
complained that the appellant did not have any discussion with the members of the Board regarding the procedure to be followed at the interviews
no did he consult the members in the matter of selection of candidates.
Even the signatures of the members of the Board were not obtained on the E
final list prepared by the Board." Another member of the Board Dr. P.
Lakha by his letter dated March 23, 1991 reported to the Government that
'the appellant wanted him to sign certain papers relating to the decisions
taken by the Board prior to his joining. This, according to him, caused him
avoidable embarrassment. Since 30 marks out of 100 were reserved for
personal interview, the marks assigned at the interview were of considerable significance as they could make or mar the future of a candidate. The
Government having received these complaints and having known the manner in which the interviews were conducted .and the behaviour of th~
appellant vis-a-vis other m~mbers of the Board, concluded that the manner
F
in which the appellant functioned was not conducive to the proper working G
of the Board nor was it in public interest. It was also alleged that the
appellant had invited applications for appointment of teachers of various
schools in which 'plus 2' course was being taught. The appellant was
informed by letter dated February 18, 1991 that in such schools posts of
lecturers had been created only in four subjects, namely, Physics,. H
238
SUPREME COURT REPORTS (1994] SUPP. 1 S.C.R.
A
Chemistry, Maithili and Ancient History. Despite this clear instruction the
appellant called the candidates for interview for selection in the subject of
Geography. This was clearly in defiance of the Government's direction
contained in the letter of February 18, 1991. Appellant also enhanced
application fee and interview fee to Rs. 25 and Rs. 100 respectively and
invited applications for subjects for which no clearance was obtained from
B the Government, thus collecting a sum of approximately Rs. 40 lakhs, four
times the sum he would have collected under the old rates which would
have been sufficient to meet the expenses of the Board. Even though earlier
a grant of Rs. 6 hlhs was withheld because the then Chairmen were facing
prosecutions a grant of Rs. 5 lakhs was released on the appellant taking
C over as Chairman to defray the expenses relating to the salary and allowances of the staff and other expenditures. In view of the above, the Government felt that there was no option but to remove the appellant forthwith
before he caused any further embarrassment to the Government
and
harassment to the other members of the Board. The appellant was, therefore, removed as Chairman of the Board by Notification No. 75 dated April
D 4, 1991 issued under sub-section (7) of section 10 of the Act. Simultaneously, a new Chairman was appointed in his place vide Notification No. 76 and
he claims to have taken charge on the same days i.e., April 4, 1991.
The appellant denied these allegations in his writ petition and tried
E to justify the decision to shift the office of the Board to the new premises
on a higher rent. He also denied the allegation made against him in regard
to the conduct of interviews, his behaviour vis-a-vis the other members of
the Board and the enhancing of the application and interview fees. He
questioned the validity of the order by which he came to be removed on
F
diverse grounds including the ground that the same was in blatant violation
of the principle of natural justice. His counsel at the hearing of the petition
raised four submisi;ions in.the main, namely, (i) Sub-section (7) of section
10 of the Act if interpreted to confer an absolute power of removal upon
the State Government, the same would be wholly arbitrary and unreasonable and in total violation of the principle of natural justice, (ii) the
G doctrine of pleasure applied only to the cases of Government servants/public servants employed under the State and not to persons who
were statutory authorities, such as the Chairman of the Board, (iii) even if
it is assumed that the doctrine of pleasure applied there being no guidelines
prescribed for the exercise of such power, the power could only be exerH cised consistently with the rule of natural justice, and (iv) in any case the
R.L. YADAV(DR.) v. STATEOFBIHAR [AHMADI,J.]
239
order was tainted with malice both in law and fact. So far as the ground A
of malice is concerned, the appellant alleged that the Cabinet Minister in
Charge of Secondary education was responsible for his removal _as the
appellant did not succumb to his pressures to select for appointment his
favourites. Annoyed by the appellant's unbending and upright attitude and
fmding no other alternative to have his way, the said Minister exercised B
ma/a fide the power conferred by sub-section (7) of selection 10 of the Act
to remove him and appoint his man as the Chairman of the Board. In
support of his say he has produced certain chits and letters written by the
said Minister and his Cabinet colleagues recommending certain persons
including the son-in-law of the former for selection to various posts. Lastly C
it was contended by the appellant that since he was appointed on a tenure
post he was entitled as of right to continue on the post till the expiry of
the period for which he was appointed and could not be removed in an
arbitrary and summary manner. He also denied the allegation made by Smt.
Saroj Bala, Dr. Lakha and other members of the Board about his abrasive
or rude behaviour. In short the appellant denied all the allegations made D
againsi"him in the State's counter which were not specifically admitted.
On the first question regarding the application of the pleasure
doctrine, the High Court, departing from the view expressed in the case of
RP. Raja v. The State of Bihar, (1967) PLJR 275, held that it was difficult
E
to subscribe to the view that the application of the doctrine is limited only
to members of public service and cannot be extended to other officers such
as the Chairman of the Board. In the view of the High Court there was
nothing in the doctrine to inhibit the State Legislature to treat it as a pure
service concept limited in its application to public service under the State.
It was, therefore, open to the Legislature to extend it to the office in F
question. On the question of application of the principles of natural justice
the High Court noticed that while that requirement was specifically found
in section 10(7) of the Ordinance that preceded the Act, it was deliberately
dropped while enacting the Act thereby manifesting the Legislative intendment not to apply the same. The High _Court, therefore, rejected the G
submission that the said requirement must be read into the said provisions
to save it from the vice of being ultra vires Article 14 of the Constitution.
According to the High Court before power is exercised urider section-10(7)
of the Act the State Government must satisfy itself on the basis of material
on record that the continuance of the person as Chairman of the Board
H
240
SUPREME COURT REPORTS [1994] SUPP. 1 S.C.R.
A
would prove detrimental to the Board's interest. If the State's action is
challenged it would be necessary for the State to satisfy the court by
production of the material, that it had acted bonafide and not arbitrarily.
Before exercise of power under section 10(7) the Government must satisfy
itself that there existed relevant material on record establishing the factual
B requirements necessary to reach the conclusion that his further con- .
tinuance in office would be detrimental to the interest of the Board. Once
that is shown no further enquiry is permissible and the order can only be
questioned on the ground of malice. Next, on a proper reading of the
provisions of the Act, the High Court ruled that the Act did not confer
unguided and absolute power of removal but the power was coupled with
C a duty to act only if the material on record went to show that his continuance in office would be detrimental to the Board's interest. Therefore,
the contention that section 10(7) was ultra vires Article 14 cannot be
countenanced. Nor can to be questioned on the ground that it violates the
principles of natural justice. The High Court points out that the Board
D
performs a public function and if the Chairman of the Board is found
acting in a manner prejudicial or detrimental to the interest of the Board,
a duty is cast on the government to protect public interest by removing
such a Chairman. Albeit before such action is taken the Government must
satisfy itself from the material placed before it that it must exercise the
extraordinary power vested in it by the Act to protect public interest. The
E High Court also found as a fact that such material did exist to justify the
Government's action. The High Court also found as a fact that the material
placed before it did not prove the allegation of malice or lack of bona ft des.
In this view of the matter the High Court dismissed the writ petition. Hence
this appeal by special leave.
F
The Act was preceded by an Ordinance called the Bihar NonGovernment Secondary Schools (Taking-over of Management and Control) Ordinance, 1974. Prior to the enactment of the said Ordinance No.
113 of 1974 which was made effective from May 21, 1974 all High Schools
G in the State of Bihar, save and except those established by the State
Government, were managed and controlled by the Managing Committees
appointeol for that purpose by the school Managements which also acted
as the appointing and disciplinary authority for the teaching and non
teaching staff of such schools. Once the ordinance was promulgated an
autonomous Board came to be created which was conferred certain power
H in regard to the management and control of non-Government High
R.L YADAV(DR.) v.STATEOFBIHAR[AHMADI,J.]
241
Schools. This Ordinance was converted into an Act known as the Bihar A
Secondary Board Act, 1976 whereunder the State Government was invested with the power to frame rules. Instead of framing rules as envisaged
by the said statute instructions were issued from time to time. Thereafter
another Ordinance called the Bihar Non-Government Secondary Schools
(Taking-over of Management and Control) Ordinance (Ordinance No. 146 B
of 1980) was promulgated on August 14, 1980. The relevant part of Section
10 of that Ordinance needs to be noticed at this stage :
"10. Establishment and function of School Service Board.
(1) The State Government shall by notification in the official C
Gazette establish a Board to be called the School Service Board
(hereinafter referred to as the Board) from a date to be appointed
by the State Government.
(2) The Board shall be a corporate body having perpetual succession and common seal and shall sue and be sued by that name.
D
(3) The Board shall have Chairman and four members who shall
be appointed by the State Government.
( 4) xxxxxxxxxx
(5) xxxxxxxxxx
E
( 6) The term of the office of the Chairman and members of the
Board shall be three years from the date they take charge of their
office. On expiry of the said period the State Government may
extend their term but the total period of such term of office shall p
not exceed six years.
(7) If the State Government is satisfied that the Chairman or any
member of the Board is incapable of working or refuses to work
or works in a manner which in the opinion of the State Government
is detrimental to the interest of the Board the State Government G
may by Notification in the official gazette remove the Chairman or
such member from his office at any time.
Provided that before issue of such notification the State Government shall give the Chairman or Member a reasonable opportunity
to show cause why he should not be removed."
H
242
SUPREME COURT REPORTS [1994] SUPP. 1 S.C.R.
A The said Ordinance was replaced by the Act i.e., The Bihar Non-Government Secondary Schools (Taking over of Management and Contra!) Act,
1981 (Act No. 33 of 1982). While the provisions of the Ordinance were
mostly reproduced in the Act certain changes were brought about in
sub-sections ( 6) and (7) of section 10 which are significant and may be
B
reproduced at this stage :
"(6) The term of office of the Chairman and members of the Board
shall be three years from the day they take charge of their office
or during the pleasure of the State Government. On expiry of the
said period the State Government may extend the term of the
C
Chairman or any member of the Board, but the total period of
such term of office shall not exceed six years.
(7) If the State Government is satisfied that the Chairman or any
member of the Board is incapable of working, or refuses to work,
D
or works in a manner which, in the opinion of the State Government, is detrimental to the interest of the Board, then the State
Government by issuance of a notification in the Official Gazette
at any time remove such Chairman or member by giving him one
month's written notice or one month's pay in lieu of notice with
effect from the date mentioned in the Notification."
E
The language of sub-section ( 6) shows that the pleasure doctrine was
incorporated in the statute for the first time and sub-section (7) empowered the State Government, if satisfied that the Chairman or any
member of the Board is incapable of working or refuses to work or works
F in a manner which is detrimental to the interest of the Board, ~o remove
such Chairman or member, as the case may be, by giving him one month's
written notice or one month's pay in lieu of notice with effe~t from the date
to be specified in the notification. It'is important to note that the proviso
which existed after sub-section (7) in the Ordinance has been deliberately
omitted in the Act. That provision found in the Ordinance incorporated
G the rule of natural justice. By deliberately omitting the said provision
requiring the giving of reasonable opportunity to show cause to the Chairman or member of the Board against whom action is proposed, the
legislature intended to do away with the requirement and instead
provisions was made for giving one month's notice or one month's pay in
H
lieu of notice. Under Section 10 of the Act the provisions in regard to
•
R.L. YADAV (DR.) v. STATE OF BIHAR [AHMADI, J.]
243
appointment and removal underwent changes. Sub-section (3) of section A
10 of the Act makes provision for the appointment of the Chairman and
members of the Board, sub-section ( 6) thereof indicates the tenure of the
appointment to be three years or during the pleasure of the State Government and sub-section (7), as stated earlier, provides for the removal of the
Chairman or the member in certain circumstances. There is no specific B
provision in the Act requiring the giving of an opportunity to show cause
before an order of removal is passed. This, urged counsel, was a change
consciously brought about, by the Legislature because earlier the Ordinance did provide for the giving of such an opportunity. The impact of
this change will have to be considered at the appropriate stage. It may,
however, be mentioned at this stage that according to the appellant such a C
requirement, though· not specifically provided for, must be read into the
Act, for otherwise the Act may be rendered ultra vires as conferring
absolute and unfettered powers to the State Government to remove a
Chairman or member of the Board at its whim, caprice of sweetwill. On
the other hand the contention of the State Government is that it was D
perfectly open to the State Legislature to omit the ·requirement regarding
the giving of a show cause notice before exercise of power under sub-section (7) of section 10 of the Act because the Board performs a public duty
and if the conduct of the Chairman or the member is such as would erode
the credibility of the Board it becomes the solemn duty of the State E
Government to take immediate action by removing the delinquent Chairman or member and thereby restbre its credibility. It was further contended
that the Legislature took a conscious decision to do away with the requirement of giving an opportunity to show cause before the exercise of th.e
removal power for the reason that having regard to the sensitive functions
assigned to the Board immediate action may become necessary to arrest
the fall in the credibility of the Board. Situations may develop which cannot
brook delay and prompt action alone would serve the interest of the Board.
F
In such a situation if the need to issue a show cause notice before taking
action is insisted upon, such a procedure may prove to be time-consuming
and consequently injurious to the interest of the Board. Presumably for this G
reason and from experience the State Legislature took a conscious decision
to do away with the requirement of prior show cause notice. However,
contended counsel, it must be borne in mind that the power can be
exercised only if the condition precedent for the exercise of that powe'r
exists, namely, conduct which is detrimental to the interest of the Boar'd. H
244
SUPREME COURT REPORTS [1994] SUPP. 1 S.C.R.
A
Unless there is material before the State Government to enable it to come
to the conclusion that the conduct is detrimental to the interest of the
Board no such action, as is permitted by sub-section (7) of section 10, can
be taken. If that be so and if that is the correct construction of sub-section
(7) it is difficult to conclude that the power conferred under that sub-secB
c
tion is absolute and wit_hout guidelines, the guideline being that there must
be material in the possession of the State Government which, if accepted
to be correct, would go to show that the conduct of the Chairman/Member
of the Board would prove ·detrimental to the interest of the Board if
allowed to continue. Counsel, therefore, submitted that there is no need to
read into sub-section (7), the requirement of giving the delinquent Chairman/Member an opportunity to show cause before exercise of power of
removal under the said sub-section. These were, broadly speaking, the
contentions urged before u5.
On a plain reading of section 10 of the Ordinance (1980) it seems
D clear to us that intention of the State Government was to establish a School
Service Selection Board, a body corporate having perpetual succ~ssion and
a common seal, comprising of a Chairman and four Members who would
be paid remuneration of Rs. 2500 and Rs. 2250 per month, respectively;
other terms and conditions being subject to determination by the State
E
Government. The tenure of office was to be three years extendable for a
further period not exceeding six years in all. Sub-section (7), however,
empowers the State Government to remove the Chairman/Member from
office 'at any time' if he or she is incapable of working or refuses to work
or works in a manner detrimental to the interest of the Board notwithstanding the initial tenure of three years or the extended tenure. The words 'at
F
any time' were intended to convey that the power was exercisable during
the subsistence of the employment once the sine-qua-non for the exercise
of power, namely, incapacity or refusal to work or that the manner in which
he worked was detrimental to the Board's interest, was shown to exist.
Of course the proviso to sub-section (7) was a clieck on the exercise of this
power of removal, in that, it required the Chairman/Member to be given a
G reasonable opportunity to show cause why he should not be removed.
Therefore, before a notification removing the Chairman/Member could be
issued, the principle of natural justice had to be satisfied by giving a show
caus~ notice. On the Ordinance being replaced by the Act, sub-sectim{s
( 6) and (7) of section 10 underwent changes, in that, in sub-section ( 6)
H
while retaining the duration of initial appointment as three years the words
f
R.L. YADAV(DR.) v. STATEOFBIHAR [AHMADI,J.]
245
'or during the pleasure of the State Government' came to be added. Thus A
the sub-section provided that the term of the office of the Chairman/Member shall be three years or during the pleasure of the State Government
extendable upto six years. In sub-section (1) two changes were introduced;
firstly in the body of the sub-section it'J.C provided that the Chair
man/Member could be removed by giving one month's notice in writing or
one month's pay in lieu of notice and secondly the proviso which incor
porated the requirement of the rule of natural justice, namely, of giving the
Chairman/Member a reasonable opportunity of showing cause, was totally
deleted. By these two changes introduced in sub-sections ( 6) & (7) of
section 10 of the Act the Legislature made it clear that the appointment
B
of the Chairman/Member could be terminated at any time during the C
pleasure of the State Government by one month's notice or on payment of
one month's salary in lieu of notice, notwithstanding the tenure con
templated thereunder. Secondly by omitting the proviso to sub-section (7)
of section 10 of the Ordinance and incorporating the provision regarding
giving of one month's notice or notice pay, the Legislature gave a clear D
indication that if the Chairman/Member was incapable of working or
refused to work or worked in a manner detrimental to the interest of the
Board, the State Government shall have the power to remove him without
the need to comply with the requirement of giving an opportunity to show
cause. This deliberate and conscious departure from the provisions in
sub-section (7) of section 10 of the Ordinance by the omission of the
E
proviso while enacting that very provision of the Act was, concluded the
High Court, indicative of the Legislative intendment not to incorporate the
said requirement of the rule of nature justice in the exercise of power of
removal from the office of the Chairman/Member of the Board.
The concept of natural justice is not a static one but is an ever
expending concept. In the initial stages it was thought that it had only two
elements, namely, (i) no one shall be a judge in his own cause and (ii) no
one shall be condemned unheard. With the passage of time a third element
F
was introduced, namely, of procedural reasonableness because the main
objective of the requirement of rule of natural justice is to promote justice
G
and prevent its miscarriage. Therefore, when the legislature confers power
in the State Government to be exercised in certain circumstances or
eventualities, it would be right to presume that the legislature intends that
the said power be exercised in the manner envisaged by the statute .. If the
statute confers drastic power it goes without saying that such powers must
H
246
SUPREME COURT REPORTS [1994) SUPP. 1 S.C.R.
A
be exercised in a proper and fair manner. Drastic substantive Jaws can be
suffered only if they are fairly and reasonably applied. In order to ensure
fair and reasonable application of such laws courts have, over a period of
time, devised rules of fair procedure to avoid arbitrary exercise of such
powers. True it is, the rules ·of natural justice operate as checks on the
freedom of administra!ive action and often prove time-consuming but that
B is the price one has to'pay to ensure fairness in administrative action. And
this fairness can be ensured by adherence to the expended notice of rule
of natural justice. Therefore, where a statute confers wide powers on an
administrative authority coupled with wide discretion, the possibility of its
arbitrary use can be controlled or checked by insisting on their being
C exercised in a manner which can be said to be procedurally fair. Rules of
natural justice are, therefore, devised for ensuring fairness and promoting
satisfactory decision-making. Where the statute is silent and a contrary
intention cannot be implied the requirement of the applicability of the rule
of natural justice is read into it to ensure fairness and to protect the action
from the charge of arbitrariness. Natural justice has thus secured a foothold
D to supplement enacted law by operating as an implied mandatory requirement thereby protecting it from the vice of arbitrariness. Courts presume
this requirement in all its width as implied unless the enactment supplies
indications to the contrary as in the present case. This Court in A.K.
Kraipak v. Union of India, AIR (1970) SC 150 = [1970] SCR 456 after
referring to the observations in State of Orissa v. Dr. (Miss) Binapani Dei,
E (1967] 2 SCR 625 observed as under :
"The aim of the rules of natural justice is to secure justice or to
put it negatively to prevent miscarriage of justice.