Change In Social Policy After Change In Govt Part Of Democratic Process, Not Per Se Arbitrary: Bombay High Court

Change in social policy after change in government is part of a democratic process and cannot be charged as arbitrary or mala fide, the Bombay High Court recently observed.A division bench of Justice GS Patel and Justice Neela Gokhale upheld Eknath Shinde government’s order cancelling appointment of two members and the chairman of the Maharashtra State Commission for Scheduled Castes and Scheduled Tribes appointed by the Uddhav Thakeray government in 2021.“A change in social policy followed by a change in government is part of the democratic process and a change in implementation of policies and programmes per se cannot be charged as arbitrary or mala fide”, the court held.The court held that appointments made purely on the government’s discretion without following any competitive process can be cancelled by the government’s executive order without giving any justification.“Nomination of the Petitioners to their posts without following any competitive process and in pure discretion and subjective satisfaction of the earlier government does not create nor vests any right or entitlement in the Petitioners to continue on their posts…the Petitioners have no fundamental or legal right to the posts. Consequently, there is no requirement of any justification or of giving an opportunity of hearing to the Petitioners for their removal”, the court held.The court dismissed a writ petition filed by former members and chairman of the Commission challenging a Government Order (GO) dated December 22, 2022 cancelling their appointments to the posts.Petitioners Ramhari Shinde and Kishor Medhe were appointed as members and petitioner Jagannath Abhyankar was appointed as the chairman of the commission on October 28, 2021. The role of the commission was to study existing conditions of the Scheduled Castes and Scheduled Tribes in the state and the suggest measures to improve them.The petitioners claimed that changes in appointments of non-official members and other members of the statutory boards, committees, commissions etc. after change in the government was done only to accommodate supporters and workers of the ruling party. The petitioners submitted that after Eknath Shinde became the Chief Minister on June 30, 2022, the new administration cancelled 197 Presidents and non-official members appointed on 29 Project Level (Planning Review) Committees in the Tribal Sub-plan Projects. Such an abrupt cancellation of appointments without giving an opportunity to hear or assign reasons is against the principles of natural justice, the petitioners claimed.Advocate Satish Talekar for the petitioners contended that there was no reason to cancel decisions of the earlier government when the new government had not received any complaints against them. Such an action of the CM is against the law and public interest as decisions cannot be changed merely because they were taken by rival political parties in power before the present government took over, he argued.Talekar took the following grounds against cancellation of petitioner’s appointment– i) their tenure of 3 years has not expired, ii) the order cancelling the appointments does not give any reasons, iii) the petitioners’ conduct does not warrant such cancellation and, iv) the doctrine of pleasure cannot be a licence to act arbitrarily and with unfettered discretion.Advocate General Birendra Saraf contended that the posts are not civil posts and the commission members serve at the pleasure of the government. It is not a statutory commission and may be disbanded at any time, he said.The court noted that the petitioners’ appointment or the constitution of the commission has no statutory basis. The petitioners were nominated at the sole discretion of the government without following any selection procedure or inviting applications. Such an appointment is one under the pleasure of the Government and not in the nature of an employment or appointment under Part XIV of the Constitution, the court held.The court said that the tenure of 3 years in the GO appointing the petitioners was not ‘minimum tenure’. The court said that the existence of the commission itself is at the pleasure of the government. The Commission was constituted by an executive order and thus can also be dismantled by an executive order the court held. Similarly, the petitioners’ nomination to the post was by an executive order and can be cancelled by an executive order of the government, the court added.The petitioners have filed another petition in 2022 seeking similar and additional reliefs which is pending before another bench of the High Court. “This is nothing but an abuse of the process of law and deserves to be decried. It is unacceptable for the Petitioners to file multiple Petitions seeking similar reliefs on the same grounds”, the court opined.Therefore, the court held that the order cancelling the appointment of the petitioners’ is not illegal, unlawful, or otherwise vulnerable. The GO cancelling the...

Change In Social Policy After Change In Govt Part Of Democratic Process, Not Per Se Arbitrary: Bombay High Court

Amisha Shrivastava

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