ORDER
Dipak Misra, J.
1. Termination of the nomination of the petitioner as councillor of Nagar Panchayat, Dindori by the competent authority in the Department of the Local Self Government communicated by the Collector, Mandla to the vide letter No. SC/97/1565, dated 11-12-1997, is the subject matter of challenge in the present petition.
2. The factual backdrop is rather simple. The petitioner was nominated as the councillor of Nagar Panchayat, Dindori by order dated 30-11-1996 by the competent authority of the Local Self Government Department in exercise of power Under Section 19(1 )(b) of the M. P. Municipalities Act, 1961 (hereinafter referred to as ‘the Act’). As set forth in the petition after being so nominated the petitioner actively participated in the meetings of the council and gained experience. At this juncture, to his utter surprise the Collector, Mandla vide his letter dated 10-12-1997 communicated to the Chief Municipal Officer, Dindori, after making reference to the order passed by the competent authority in the Department of Local Self Government, that the nomination of the petitioner to the Nagar Panchayat, Dindori has been terminated and put an end to. A copy thereof was communicated to the petitioner vide letter dated 11-12-1997 which has been brought on record as Annexure P-5.
3. Assailing the aforesaid order, Mr. Ashok Lalwani and Mr. Manoj Dubey, Learned counsel for the petitioner, raised a singular contention that the said order is vitiated as no opportunity of hearing was afforded to the petitioner.
4. The matter was listed on 11-3-1998 and on that date a question arose whether the principle of natural justice was required to be followed at the time of termination of the nomination in view of the language contained in Section 19(2) of the amended Act. The matter stood adjourned from time to time and eventually it was heard and the learned counsel for the respondent accepted the position that an opportunity of hearing was not given.
5. The learned counsel for the petitioner have urged with vehemence that in absence of compliance with the principles of natural justice the order vide Annexure P-5 is indefensible, Mr. V. Awasthy, learned Deputy Government Advocate for the State, appearing for respondent No. 1 submitted that nominated member continues during the pleasure of the Government and hence, the question for calling for explanation or affording reasonable opportunity of hearing does not arise.
6. The pivotal question that calls for determination is whether a nomination of a member can be terminated without affording him an opportunity of hearing. Before I advert to deal with the question posed, it is to be kept in mind that the petitioner was nominated vide Annexure P-3 dated 30-11-1996 and his nomination stood terminated vide letter dated 5-12-1997 as per Annexure P-5. At the time of nomination the provision of Section 19, which dealt with composition of the Municipal Councils and Nagar Panchayat read as under :
“19. Composition of Municipal Councils and Nagar Panchayats. – (1) A Council shall consist of :
(a) Councillors chosen by direct election from the wards;
(b) Not more than four persons in the case of Municipal Councils and not more than two persons in the case of Nagar Panchayats having special knowledge or experience in municipal administration nominated by the State Government:
Provided that only a person residing within the Municipal area and being otherwise not ineligible for election as a Councillor may be nominated.
(c) Members of the House of the people and the Members of the Legislative Assembly of the State representing constituencies which comprise wholly or partly the municipal area;
(d) Members of the Council of States registered as electors within the municipal area.
(2) Persons referred to in Clauses (b), (c) and (d) of Sub-section (1) shall be deemed to be councillors, but shall not have the right to vote in the meetings of the Council.”
By the time the termination was effected the relevant provision, relating to composition of Municipal Council or Nagar Panchayat, Section 19 read as under:
“19. Composition of Municipal Councils or Nagar Panchayats. – (1) A Municipal Council or Nagar Panchayat shall consists of :
(a) President, that is Chairperson, elected by direct election from the Municipal area;
(b) Councillors elected by direct election from the wards;
(c) Not more than four persons in the case of Municipal Councils and not more than two persons in the case of Nagar Panchayats having special knowledge or experience in Municipal Administration nominated by the State Government: Provided that only a person residing within the Municipal area and being otherwise not ineligible for election as a Councillor may be nominated.
(d) Members of the House of the people and the Members of the Legislative Assembly of the State representing constituencies which comprise wholly or partly the municipal area;
(e) Members of the Council of State registered as electors within the Municipal area.
(2) The persons nominated under Clause (c) of Sub-section (1) shall hold office during the pleasure of the State Government.
(3) Persons referred to in Clauses (c), (d) and (e) of Sub-section (1) shall be deemed to be councillors, but shall not have the right to vote in the meetings of the Council.”
(4) If any municipal area fails to elect a President or any ward fails to elect a Councillor, fresh election proceeding shall be commenced for such municipal area or ward, as the case may be, within six months to fill the seat and until the seat is filled it shall be treated as casual vacancy :
Provided that the proceedings of election of Vice President, or any of the Committee under the Act shall not be stayed, pending the election of such seat.”
The aforesaid amendment came into existence with effect from 21-4-1987. The distinguishing feature which has been brought by way of amendment is that in the earlier provision there was nothing in regard to continuance of the nominated members and from a conjoint reading of Section 19, 40 and 41 of the earlier Act, it is quite clear there was no distinction between an elected member and a nominated member except that the latter had no right to vote in the meetings of the council. But in the amended statute by incorporation of the provision Under Section 19(2) it has been postulated that the nominated member shall hold office during the pleasure of the State Government. It is contended by Mr. Awasthy, learned Dy. Government Advocate, that once the doctrine of pleasure is made applicable the nominated member does not have a right to be heard before any order is passed relating to continuance of his office for the simple reason he holds the office during the pleasure of the State Government.
7. The heart of the matter is whether the doctrine of pleasure as has been vehemently urged by the learned Dy. Government Advocate would be applicable to the case at hand. In the earlier Act, Section 41 dealt with the removal of a councillor and by a cursory glance to the said provision it is plain as noon day that both the categories of councillors were covered but in the amended provision Section 41 is confined to removal of an elected councillor by the Collector on certain circumstances and an appeal has been provided under Sub-section (4) of Section 41 to the State Government. It is to be noted here that Section 36 of the Amended Act prescribes the duration of the Municipality to be five years from the date of appointment for its first meeting. Thus, an elected councillor is entitled to continue for the whole term subject to the embargo contained in Section 36 and the provisions of removal as enjoined under Section 41 of the Act.
Thus, it is crystal clear that by the Amended provision a real distinction has been drawn between the elected members and the nominated members. I may hasten to add here that at the time of discontinuance or termination of the petitioner the amended provision has already come into existence. As the petitioner has no vested right, there remains no iota of doubt that the petitioner has to be governed by the amended provision.
8. It is contended by the learned counsel for the petitioner that in a democratic state a councillor of a Municipality cannot unceremoniously be asked to discontinue. In the case at hand, as is reflected from Annexure P-5 it is a termination simpliciter, in fact, it is discontinuance of the nomination to put it differently, putting an end to the period of nomination. True it is every action has to be founded on fairness and reasonableness and has to be tested at the professed ideals of the constitutional backdrop. Any arbitrary action which violates the rights of a citizen cannot be countenanced. In a democratic set up rule of law has to prevail as a society progress in its efflorescence. The interest for discipline of law engulfs in its ambit and sweep the concept of natural justice. If any authority has the power to decide and determine it has to do so in a judicious manner and in such duty it is implicit that he has to follow the principles of natural justice before passing any order or taking any action against a person which might prejudicately affect him. It is also to be kept in mind that principles of natural justice can be excluded either expressly or impliedly. It would depend upon the language used in the statute or in the rules. As the present scenario is, a nominated person is to hold office during the pleasure of the State Government. As stipulated in Under Section 19(1)(c) a person is nominated to the municipal or in Nagar Panchayat by the State Government, the State Government is also not at liberty to nominate anyone. The person who is nominated is required to have special knowledge or experience in municipal administration. There is a rider that he must be a person within municipal area and shall not be otherwise ineligible for election as a Councillor. A person so nominated holds the office during the pleasure of the State Government. It has to be kept in mind that the doctrine of pleasure is engrafted in Article 310 of the Constitution of India. It relates to tenure of office of a person serving the Union or the State. The term ‘holds office during the pleasure’ in Article 310(1) of the Constitution is subject to the exception carved out under Clause 2 of Article 311 of the Constitution. This view is fortified by the decision rendered in the case of Union of India v. Tulsiram Patel, AIR 1985 SC 1416. I may hasten, to add here that all these principles are attracted to the service-holder when he is removed or dismissed from service. The pleasure of doctrine in that case has a different connotation altogether and, therefore, an enquiry has been contemplated. In the case at hand, the controversy relates to the continuance of a councillor by a nominated member. He continues during the pleasure of the State Government. There is nothing in the Act or Rules stipulating any other conditions. On a scrutiny of the scheme of the Act it is perceptible that a clear distinction has been made between the two categories of the councillor, namely, the elected councillor and the nominated councillor. There is no provision for giving opportunity of showing cause. There is no provision for appeal which is available to an elected councillor. As a nominated member enters the council with a different background, having special knowledge or experience in municipal administration, no conditions precedent have been provided as has been done in the case of removal of a councillor. A nominated member is nominated to serve the municipality by assisting municipality with his experience. He is not thereafter facing an election. His continuance is subject to the pleasure of the State Government. It has to be co-terminus with the pleasure of the State Government and once steps are taken in exercise of doctrine of pleasure the nominated member cannot have any grievance. He ceases to function. It is also to be kept in mind, while exercising of such doctrine of pleasure no stigma is attachable, no comment can be given on a nominated member relating to his ability, capacity, efficiency, integrity or any other action done by him. It has to be a termination simpliciter. An end comes by applicability of pleasure doctrine. The extinction is simple, no other reflections. I may hasten to add here that use of the words ‘holds the office during the pleasure of the State Government’ principles of natural justice is impliedly ostracized. The same are not made applicable, and therefore, the question of calling for a show-cause or giving a reasonable opportunity to offer an explanation does not arise. In fact, that is beyond the scope and ambit of the said provisions.
9. In view of my preceding analysis, the order passed in Annexure P-5 is impeccable and stands close scrutiny and does not warrant interference by this Court. Accordingly, the writ petition is dismissed, being devoid of merit, without any order as to costs.