Holding

Section 4A is a valid provision that allows removal of the Chairman at the pleasure of the State Government, and the phrase "terms of service" includes tenure, rendering the removal lawful.

Summary

Dr. D.C. Saxena was appointed Chairman of the Haryana Board of School Education for a two‑year term, with the appointment letter stating that the terms and conditions would be notified later. The State Government later issued a notice that his tenure could be curtailed at any time and subsequently ordered his removal along with several other non‑official chairmen on a general policy basis. Saxena challenged the order, contending that the curtailment was mala fide, that "terms of service" did not include tenure, and that the procedure under Section 9 of the Act was not complied with. The State argued that Section 4A of the Haryana Board of School Education Act, 1969, which places the Chairman, Vice‑Chairman and members at the pleasure of the Government, authorised the removal and that Section 9 applied only to special cases requiring a hearing. The Supreme Court held that Section 4A is valid, that "terms of service" clearly includes tenure, and that Section 9 does not govern removals made under the general policy power of Section 4A. Consequently, the Court dismissed the appeal, upholding the removal.

Issues considered

Whether Section 4A of the Haryana Board of School Education Act, 1969, which makes the Chairman hold office at the pleasure of the State Government, is valid and bars challenge to the removal.
Whether the expression "terms of service" includes the tenure of service.
Whether the removal of the Chairman must comply with the procedure laid down in Section 9 of the Act.
Whether the curtailment of the Chairman's tenure was mala fide or punitive.

Legislation cited

Haryana Board of School Education Act, 1969s. 4A, s. 9

Subjects

appointmentremovalpleasure of the governmentterms of servicetenureSection 4ASection 9administrative lawnatural justicepublic service

Judgment

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A DR. D.C. SAXENA
v.
STATE OF HARYANA & ORS.

MAY 8, 1987

B [R.S. PATHAK'., C.J. AND V. KHALID J.)

Haryana Board of School Education Act, 1969, ss. 4A and 9-
Distinction between-Whether removal 'of Chairman of the Board
pursuant to a general policy is violative of s. 9.

C Words and Phrases-"Terms of service"-Whether includes
tenure of service.

The Haryana Board of School Education Act, 1969 by s. 4(A)
-
stipulates that the Chairman, Vice-Chairman and Members of the
Board shall hold office during the pleasure of the State Government.
D Section 9 of the Act provides that the' State Government may remove a
member whose continuance in office is not in the interest of the Board
provided that before making such order, the reasons for removal shall
be communicated and he shall be given an opportunity of tendering an
explanation in writing which shall be ccnsidered by 'the State
Government.
E
Jn exercise of powers conferred by the su)>-section (4) of s. 3 ofthe
Act, the appellant was appointed as Chairman of the Haryana Board of
School Education for a period of two years. On his appointment as
Chairman, he resigned his post as Professor-Director of the Punjabi
University Regional Centre, Bhatinda and took over as Chairman on
F 11th December, 1985. The appointment letter stated that the terms and
conditions of the appointment will be notified later on.

The appellant received a communication dated 24.3.86 from the
Education Department that the Government may curtail his tenure of
office at any time. Subsequently he was served with an order stating
G that his terms of office had been curtailed with immediate effect and
that he would cease to function as Chairman from 8.6.86. Similarly,
with the termination of the appellant's services, the services of l" ·•
Chairmen of several other Boards and organisations were terminated.
The appellant challenged the aforesaid order before the High Court iu a
writ petitiim which was dismissed in Ii mine.
H

346
••

D.C SAXENA v. STATE OF HARYANA 347

' ) In appeal to this Court, he contended; (i) that the curtailment of A
the original period fixed, altered his position to his detriment and that
this .was done mala fide; (ii) that the word 'term' did not indicate the
period of service and therefore, the government did not have the re-
quisite authority to curtail his tenure; and (iii) that the procedure laid
down under s. 9 of the Act was not followed and consequently his
removal was void. On the other hand, it was argued by counsel for the B
.. >- respondents: (i) that appellant's tenure of service could be curtailed at
any time by the government; (ii) that appellant's tenure of service was
)- curtailed alongwith the Chairmen of 11 other Boards and corporations
pursuant to a general decision taken by the State Government dispens-

- ing with the service· of non-officials; (iii) that in the absence of any
challenge to Rule 4A of the Act, the order of curtailment was valid in
law since the appellant can be in service only during the pleasure of the
c
government.
~
Dismissing the appeal, this Court,

HELD: 1. Section 4A is an insurmountable hurdle in the way of D
the appellant. Ifs. 4A is valid, the order of removal of the appellant has
r to be upheld. The validity of the section has not been challenged by the
appellant either before the High Court or before this Court. Therefore
the judgment orthe High Court is upheld. (3530]

2. The expression 'terms of service" clearly includes tenure of E
service. [353F]
--~ 3. It is appareni on a comparison of the terms of s. 4A and s. 9
that while the former deals with the general power of the State Govern-
ment to terminate the tenure of the Chairman, Vice-Chairman and
'~ Members, the latter carves out a special field dealing with a category of F
cases where the State Government may remove a member whose con-
tinuance in office Is not in the interest of the Board. A case falling within
s. 9 is a case where removal must he for reasons personal to the member
and flow from his conduct or such other factor which requires that, in
the interest of justice and fair play, he should be given an opportunity to
tender an explanation. In the view that s. 9 carves out a special field, (i
• s. 4A is left with an abridged scope. So abridged, it deals with cases
'r- other than those where the continuance of a member calls for termina-
lion in the interest of the Board and requires that such member be given
an opportunity of tendering an explanation before such removal. Sec·
tion 4A can be said to include cases where the tenure of a Chairman,
Vice-Chairman or a member is liable to termination on grounds of H
general policy. [352E-H; 353AJ
-
348 SUPREME COURT REPORTS [1987] 3.S.C.R.

A In the instant case, the termination or the appellant's tenure was
neither prompted by mala tides nor was punitive in nature. The appel·
!ant's services were dispensed with because or a general decision taken
by the government dispensing with the services or non-officials and non·
MLAs 111 Chairman of the Boards and Corporations exclnding the
Kurukshetra Development Board and the Tourism . Corporation,
B Haryana. [353B·C]

[The Court expressed the hope that the Punjabi University will be
generous enough to accommodate the appellant properly.]

C of 1986.
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 3178
-
From the Judgment and Order dated 19.6.1986 of the Punjab
and Haryana High Court in C.W.P. No. 3096 of 1986.

Appellant-in-person.
D
Dr. Y.S. Chitale, Harbanslal and Ravinder Bana for the
Respondents.

The Judgment of the Court was delivered by

E KHALID, J. 1. The appellant appeared in person and argued
his case with clarity and competence. At times he was emotionally
surcharged. He perhaps, feels that he had a raw deal at the hands of
the authorities. In the Special Leave Petition he has given in great
detail his high qualifications and meritorious achievements in the vari-
ous offices he held. Shorn of these details the necessary facts, in brief,
F for the disposal of this appeal are as follows:

2. The appellant was appointed as Chairman of the Haryana
Board of School Education as per order dated 10-12-1985. At that time
he was holding the post of Professor-Director of the Punjabi Univer-
sity Regional Centre, Bhatinda. On his appointment as the
G Chairman of the said Board he resigned his post as Professor-Director
and took over as the Chairman of the Board on 11th December, 1985.
His original appointment was for a period of 2 years. The order of
appointment reads as follows:

"In exercise of the powers conferred by sub-section (4) of
H section 3 of the Haryana Board of School Education Act,
-
D.f:. SAXENA v. STAIB OF HARYANA [KHALID, J.] 349

) 1969 (as amended from time to time), the Governor of A
Haryana is pleased to appoint Dr. D.C. Sexena, Profes-
sor-Director, Punjabi University Regional Centre,
Bhatinda, as Chairman of the Haryana Board of School
Education, in place of Shri Anil Razdan, l.A.S., with
immediate effect for the period of two years.
B
2. The terms and conditions of his appointment will be
notified later on."

While he was holding 1he office as Chairman of the Board thus, he
received a communication dated 24-3-1986, from the Education
Department of the Haryana Government informing him that the C
Government may curtail his tenure of office at any time. The relevant
portion of the order reads as follows:-

"No. 19/40/83-Edu. III(5). In continuation of Haryana
Government order No. 19/40/83 Edu. III(5) dated 10th
December, 1985, and in exercise of the powers conferred D
by sub section (4) of Section 3 of the Haryana Board of
y School Education Act, 1969 (as amended from time to
time), the Governor of Haryana is pleased to prescribe the
following terms and conditions of appointment of Dr. D. C.
Saxena as Chairman of the Board of School Education,
Haryana, from the date he took over charge as such: E

Tenure of Office

His tenure of office shall be for a period of two years
from the date of assuming charge. The Govt. may, how-
ever, curtail the tenure at any time. F

xxxxxxxx xxxxxxxx xxxxxxxx
xxxxxxxx xxxxxxxx xxxxxxxx

xxxxxxxx xxxxxxxx xxxxxxxx
xxxxxxxx xxxxxxxx xxxxxxx'' G
'· 't
The appellant objected to this by his letter dated 3-4-1986, to the
Commissioner-cum-Secretary, Education Department, Haryana,
Chandigarh, marking a copy of the then Chief Minister of Haryana.
On 7th June, 1986, he was served with an order that his term of office
had been curtailed with immediate effect and that he would cease to H

·~ -,,- - ___________ ,.__..,,...._... ..... --""
350 SUPREME COURT REPORTS [1987) 3.S.C.R.

A function as Chairman from 8-6-1986. This order is extracted below: ~

"In exercise of the powers conferred by Section 4-A of the
Haryana Board of School Education Act, 1969, and in
accordance with the terms of appointment under the head-
ing "Tenure of Office," issued vide order No. 19/40-83
B Edu. III(5) dated the 24th March, 1986, the Governor of
Haryana is pleased to curtail the tenure of office of Dr.
D.C. Saxena as Chairman, Haryana Board of School Edu-
cation with immediate effect and orders that he shall cease
to function as such with immediate effect from 8-6-1986.

Shri Vivek Mehrotra, I.A.S., Director, School Edu-
c cation, Haryana, will hold the charge of office of the
Chairman, Haryana Board of School Education in addition
to his own duties till further orders."

The appellant challenged this order by filing a writ petition in Punjab
D and Haryana High Court on 10th June, 1986. A Division Bench of the
High Court issued notice and directed status quo, as on that day, to
continue. On 19th June, 1986, the matter was listed before another
Division Bench and the writ petition was dismissed in limine. This
appeal by special leave arises from the said order.

E 3. The appellant's case is that his original appointment was for
two years at a time when he was holding a prestigious post, that he
relinquished that post and tq_ok charge of the new post, that the
curtailment of the original period fixed altered his position to his detri-
ment and that all this was done ma/a fide. The appellant took us
through the facts in detail to highlight the case of ma/a fides to
F persuade us to accept his case that the curtailment and removal was
punitive and that it was done in violation of the law as laid down by this
Court in various decisions.

4. The case of the State, as disclosed in the affidavit filed by
them, is that the affairs of the Board of School Education, Haryana are
G governed by the Haryana Board of School Education Act, 1969
(hereinafter referred to as the Act). Sub-section (4) of Section 3 of the
Act stipulates that the Chairman and Vice-Chairman of the Board
shall be appointed by the State Government, upon such terms and
conditions as it may think fit and they shall hold office at the pleasure
of the State Government. It was in exercise of the powers conferred
H under Sub-Section (4) of Section 3 of the Act that the appellant was

-------~ --.,.,,.,..,..,~,=---::~ - - _,,, -
-
D.C. SAXENA v. STATE OF HARYANA (KHALID. J.( 351

1 appointed Chairman. In the appointment letter, it had been specifi- A
cally provided that the terms and conditions of the appointment would
be notified later. Subsequently, by communication dated 24th March,
1986, he was told that his tenure of service could be curtailed at any
time by the Government. The State Government had taken a general
decision on 6th June, 1986, dispensing with the services of non-official/
non-MLAs as Chairman of the Boards and Corporations excluding B
~
)-... Kurukshetra Development Board and Tourism Corporation, Haryana.
It is stated in the Counter Affidavit that this general order was ex-
~ amined by the Secretary, Education Department, to see whether the
consequent termination of the appellant would be legal and in public

- interest or whether an exception could be made in his case in the
interest of the Board. After the examination of the relevant files in the c
Education Department, it was decided that the appellant's services
could also be dispensed with by curtailing his tenure. Along with him,
~
• Chairmen of eleven other Boards and Corporations were also drop-
ped. It was pursuant to this decision that his tenure of service was
curtailed with immediate effect by the communication dated 7th June,

,. 1986. It is stated that Section 4-A of the Act enabled the Government D
to do this. In the absence of any challenge to this rule, the order of
curtailment was valid in law since the appellant could be in service only
during the pleasure of the Government.

5. The first respondent in this appeal is the State of Haryana and E
the second respondent a member of the Legislative Assembly and the
---~ son of the present Chief Minister of Haryan&. The appellant was
appointed Chairman of the Board, when Shri Bhajan Lal was the
Chief Minister. The order informing him that his tenure would be for
"'1 two years and that the Government could "curtail this tenure at any F
time" was also issued when Shri Bhajan Lal was the Chief Minister. In
the original order of appointment, it was indicated that the tenure of
his office would be for two years. Only four months later he Was
alerted by another order that the Government could curtail his tenure
at any time. He must have been aware of Section 4-A which reads as
follows:-
G
i
't "4-A. Chairman, Vice-Chairman and members to hold
office during pleasure of State Government. Notwithstand-
ing anything contained in Section 3 or Section 4 or any
other provision of this Act, the Chairman, Vice-Chairman
and members of the Board shall hold office during the plea-
sure of the State Government." H
·-
352 SUPREME COURT REPORTS [1987] 3.S.C.R.

A An argument was attempted to be advanced before us that the proce- A.
dure laid down in Section 9 was not followed in his case and that this
omission rendered his removal bad. For a better appreciation of this
contention, we quote section 9:

"9. Power to remove members: If, in the opinion of the
13 State Government, the continuance in office of any person ~ "'
as a member is not in the interest of the Board, the State
Government may, in consultation with the Board, make an J',.
order removing such person from such membership; ~

c
Provided that before making such order, the reasons for his
proposed removal shall be communicated to him and he -
shall be given an opportunity of tendering an explanation
in writing which shall be duly considered by the State
Government.''

It is clear that the proviso to the Section makes it obligatory on the
D State Government to communicate the reasons for the proposed re-
moval of a member and to give him an opportunity of tendering his .,.
explanation in writing and also a duty on the State Government to
consider it. It was argued that the Chairman of the Board is also a
member and his removal without complying with the procedure laid
down in Section 9 is against law and has to be set aside.
E
6. The contention that Section 9 has been violated is wholly
without force because, in our opinion, Section 9 does not come into ~---
\

play at all in this case. It is apparent, on a comparison of the terms of
Section 4-A and Section 9, that while the former deals with the general
power of the State Government to terminate the tenure of the
F Chairman, Vice-Chairman and members, the latter carves out a special
field dealing with a category of cases where the State Government may
remove a member whose continuance in office is not in the interest of
the Board. A case falling within Section 9 is a case where removal must
be for reasons personal to the Member and flow from his conduct or
such other factor which requires that, in the interest of justice and fair
G play, he should be given an opportunity to tender an explanation. In
the view that Section 9 carves out a special field, Section 4-A is left
with an abridged scope. So abridged, it deals with cases other than
those where the continuance of a member calls for termination in the
interest of the Eaard and requires. that such member be given an
opportunity of tendering an explanation before such removal. Section
H 4-A can be said to include cases where the tenure of a Chairman,
-
D.C. SAXENA v. STATE OF HARYANA [KHALID, 'J.) 353

..J Vice-Chairman or -a member is liable to termination on grounds of A
general policy. On the facts and circumstances, it is clear that the
termination of the appellant's tenure was the result of the policy deci-
sion taken by the Government to bring in a new class of Chairmen in
different Boards in the State. From the material on record we are not
satisfied that the termination of the Appellant's tenure was prompted
.. by mala fides or was punitive in nature. The Appellant's services were B
A dispensed with because of a general decision taken by the Government
dispensing with the services of non-officials and non-MLAS as
Chairmen of the Boards and Corporations excluding the Kurukshetra
Development Board and the Tourism Corporation, Haryana, Simi-

-. ).
larly with the termination of the Appellant's services the services of
Chairmen of several other Boards and Organisations were terminated.

It is clear, therefore, that if Section 4-A is valid the order of
c
removal of the Appellant has to be upheld. The validity of Section has
not been challenged by the Appellant either before the High Court or
before us except in a casual manner in the Written Submissions filed
before this Court. The High Court has rightly held thltt Section 4 is an D
insurmountable hurdle in the way of the Appellant. We have, there-
fore, although with extreme reluctance having regard to the personal
merit of ~he Appellant, to uphold the Judgment of the High Court.

7. The appellant, in desperation, put forward another plea, that
the expression "terms and conditions of service" would not take within E
its ambit "tenure of service". In other words, his case was that the
word "term" did not indicate the period of service and that therefore,
the Government did not have the requisite authorlty to curtail his
tenure. This plea was met by the respondents' counsel saying that the
word 'term' included the tenure of service also. Both sides invited us to
Dictionaries in support of their respective cases. We do not think it F
necessary to seek support from the Dictionary for this purpose. The
expression "terms of service" clearly includes tenure of service. We
regret, we cannot help the appellant on this plea either.

8. In view of the peculiar facts of this case, we do not think it
• '-. necessary io consider the various authorities cited before us regarding G
· T the violation of Article 311(2) and violation of natural justice. We are
extremely uphappy that such a situation has come to pass. Perhaps, the
appellant's grievances are well founded. He left his prestigious post
and joined the Board expecting to be there for two years when he had
a raw deal at the hands of the authorities. However, on an application
of the provisions of the Haryana Board of School Education (Amend- H

- .- . ,,...- --- - --------
-
-
354 SUPREME COURT REPORTS [1987] 3.S.C.R.

A ment) Act, 1980 we find it difficult to rescue the appellant from his
predicament. We trust and hope that the Punjab University will be
generous enough to accommodate him properly.

The appeal has to fail and is dismissed without any orders as to
costs.
B
M.L.A. Appeal dismissed.

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