ORDER
Navin Sinha, J.
Page 2621
1. In both these writ applications the interpretation of Section 5 (b) of the Bihar State Minority Commission Act, 1991 (hereinafter referred to as ‘the Act’) falls for consideration. Section 4 provides for nomination of a Chairman, two Vice Chairman and maximum of eight Members of the Commission by the State Government. Section 5(a) stipulates a term of three years for such nominated persons from the date they assume the charge of their office. Section 5(b) which is relevant for the present controversy is necessary to be set out below:
5(b) If at any time, it appears to the State Government that the Chairman. Vice-chairman or any Member of the Commission is unfit to hold his office or has been found to be guilty of misconduct or neglect of duties or abuse of power, which renders his removal from office of the Commission, necessary in Page 2622 public interest, the State Government may by notification in the official gazette, remove him from such office.
The Chairman. Vice Chairman or any Member of the Commission may be removed during the tenure of three years, if the Government was satisfied that he was unfit to hold the office, or had been found to be guilty of misconduct, or neglect of duties or abuse of power, which rendered his removal necessary in public interest.
2. Section 13 of the Act provides for filling up of vacancy or change in constitution of the Commission. Section 17 of the Act provides for submission of annual consolidated report of its performance and functions to the State Government.
3. The petitioner in CWJC No. 10060 of 2006 was nominated as the Vice Chairman of the Commission on 18.8.2004. The petitioner in CWJC No. 9336 of 2006 was nominated as Vice Chairman on 3.9.2005.
4. Both the petitioners were issued identical show cause notices for their removal on 2.3.2006. The notice stated that the present Chairman was in occupation since 1995 for the fourth term. The report with regard to the Social, Education and Economic Survey of Muslims submitted approximately two years ago by the Asiah Development Research Institute (hereinafter referred to as ADRI) to the Commission had not been forwarded to the State Government. No annual report were submitted under Section 17 of the Act. An annual report had been submitted about two months ago which in fact was only a collection of correspondence. It was therefore apparent that the Commission had completely failed to perform its duties and fulfil its purpose and therefore they were required to show cause as to why they be not removed in public interest. Both of them submitted their reply to the show cause notice. The reply in CWJC No. 10060 of 2006 raised the issue of lack of infrastructure preventing him from exercising; his powers as Vice Chairman, the absence of any meeting being called by the Commission to submit that the order of his removal dated 22.7.2006 was mala fide and for reasons not attributable to him. It was sought to be impressed upon the Court that he had been raising the issue of lack of infrastructure as one of the reasonls for non functioning of the Commission before the authorities. The petitioner having done what were within his competence cannot be faulted with for issues beyond his control.
5. The submission on behalf of the petitioner in CWJC No. 9336 of 2006 was that his order of removal was based on issues not germane or relevant, rendering it perverse. Relevant materials raised in the reply to the show cause had been ignored and irrelevant matters had been taken into consideration while passing the impugned order. In reply to the show cause notice, he had raised the issue that he had not even completed even one year in the office from the date of his nomination and therefore the question of his submitting the annual report simply did not arise. Secondly, the order of removal dated 22.7.2006 itself acknowledged that after issuance of the show cause notice a report was in fact submitted by the Commission. It is the contention of the petitioner that this is only evidence of his sincerity that this report came to be submitted only after the petitioner had joined the post pf Vice Chairman for issues which had not arisen during his tenure inasmuch as the report submitted by the ADRI had been placed before the Commission about two years ago as per the respondents themselves much before induction of the petitioner, for non submission of which in time under Section 17 of the Act quite obliviously the Page 2623 petitioner was not answerable. The respondents have therefore themselves acknowledged that the petitioner had acted with expedience and therefore there was no occasion for his removal.
6. The impugned order of their removal dated 22.7.2006 then came to be passed removing them in public interest.
7. In the effort to demonstrate the arbitrary nature of the impugned order and that it was based on complete non-application of mind it was submitted that the impugned order simply stated that the reply submitted by the petitioner’s was not satisfactory. There is no discussion or reasoning for this satisfaction. The issue raised by the petitioner’s have not been considered or dealt with in the impugned order. It was next submitted that the respondent no. 7 also impleaded as respondent No. 9 respectively had likewise been removed by the same show cause notice and who had raised similar issues as the petitioners. A copy of the reply to the show cause notice submitted by the respondent no. 7 acknowledged that he had not attended any meeting and that the question of applicability of Section 17 to him simply does not arise as he had been nominated only two months ago. Notwithstanding his removal by the same order dated 22.7.2006, respondent no. 7 did not challenge the same and accepted its correctness. Nonetheless, the respondents have reinstated respondent no. 7 by notification dated 5.8.2006 even after having found his show cause to be unsatisfactory, satisfied that he had failed to exercise his statutory duties under (SIC) the Act. This, it was submitted, was prima facie evidence of non application of mind on the face of the orders demonstrated that it suffered from arbitrariness, was perverse and was therefore fit to be set aside along with the. order of reinstatement of respondent no. 7.
8. Learned Counsel appearing on behalf of the respondent no. 7 acknowledged that the order of his removal dated 22.7.2006 has not been challenged and was accepted by him. The stand of respondent no. 7 is that it was the Government which brought him in, it was the Government which asked him to leave, it is the Government which has asked him to come back and no more.
9. Learned Counsel for the State in CWJC No. 10060 of 2006 disputed the contentions on behalf of the petitioner of lack of infrastructure and invited the attention of the Court to para 17 of the counter affidavit to submit that the petitioner was provided with sufficient staff who were all paid their salary including the petitioner himself along with emoluments, allowance etc. It was not individual act but the act of the Commission as a whole on the basis of which the Government had acted. Learned Counsel appearing on behalf of the State in CWJC No. 9336 of 2006 submitted that the petitioner could be removed at any time within the tenure of three years and did not have any indefeasible right to continue for three years. The State being satisfied of his inability and failure to discharge the statutory duty passed the impugned order.
10. This Court finds that the petitioner in CWJC No. 10060 of 2006 held the post of Vice Chairman since August 2004. It is not in controversy that no annual report was submitted in terms of Section 17 of the Act by the Committee of which he was Vice Chairman before the show cause notice dated 2.3.2006 came to be issued. The ground of lack of adequate infrastructure sought to be urged on behalf of the petitioner does not impress this Court. The petitioner while holding the post of Vice Page 2624 Chairman enjoyed the benefits of the post and now virtually seeks to question the very commission of which he was a part. Moreover the respondents in para 17 of their counter affidavit have disputed the contention of the petitioner of lack of infrastructure and have averred that in fact apart from absence of lack of infrastructure the petitioner himself received salary, emoluments, allowances etc. This Court further finds that the tenure of the petitioner shall also run out on 17.8.2007. Having considered the matter in its entirety this Court finds no merit in the writ application in so far as the petitioner in CWJC No. 10060 of 2006 is concerned. The writ application is dismissed.
11. The law with regard to the judicial review of an administrative act requires restraint. But where the illegality is apparent inasmuch as the decision maker has not correctly understood the law that regulates his decision making power, the order is bad. If the order suffers from irrationality it is again bad. It is only appropriate to refer to the principle of “Wednesbury unreasonableness” which is a judicial extension of the principle of irrationality summed up in Associated Provincial Picture Houses Ltd. v. Wednesbury Corporation (All ER pp. 680H-681A) as follows:
The court is entitled to investigate the action of the local authority with a view of seeing whether it has taken into account matters which it ought not to take into account, or conversely, has refused to take into account or neglected to take into account matters which it ought to have taken into account. Once that question is answered in favour of the local authority, it may still be possible to say that the local authority, nevertheless, have come to a conclusion so unreasonable that no reasonable authority could ever have come to it. In such a case, again, I think the court can interfere.
12. The Supreme Court in the case of Rameshwar Prasad (VI) v. Union of India , in the relevant extract of the judgement while considering the scope for “judicial review of administrative action has held as follows:
240. A person entrusted with discretion must, so to speak, direct himself properly in law. He must call his attention to matters which he is bound to consider. He must exclude from his consideration matters which are irrelevant to what he has to consider. If he does not obey those rules he may truly be said to be acting unreasonably. Similarly, there may be something so absurd that no sensible person could ever dream that it lay within the powers of the authority.
241. It is an unwritten rule of law, constitutional and administrative, that whenever a decision-making function is entrusted to the subjective satisfaction of a statutory functionary, there is an implicit obligation to apply his mind to pertinent and proximate matters only, eschewing the irrelevant and the remote.
13. The petitioner in CWJC No. 9336 of 2006 quite obviously had not completed even one year in office and the show cause notice came to be issued to him for non-compliance of Section 17 of the Act with regard to non submission of annual report. Nothing further is required at this stage to demonstrate the complete non-application of mind to the case of the petitioner. If the report had been submitted by the ADRI before induction of the petitioner and the reports were not made available to the State Government by the Commission in terms of Section 17 of the Act or otherwise quite obviously the petitioner was not answerable for the same. On the contrary, the State Government itself acknowledges that the report came to be submitted at a point of time after the petitioner had been appointed as Vice Chairman. Page 2625 This Court further finds substance in the submission on behalf of the petitioner that like the petitioner respondent no. 7 also in his show cause raised the issue of the inapplicability of the grounds for removal including Section 17 of the Act in view of their tenure when they had not even completed one year in office. Nonetheless respondent no. 7 accepted his removal, did not challenge the same while the petitioner challenges the same. In the circumstances this Court holds that the action of the respondents in the removal of the petitioner was quite arbitrary, if the respondent no. 7 was found fit to be reinducted notwithstanding the satisfaction of the respondents for the need to remove him in public interest when no other special ground has been urged on behalf of the respondent no. 7 for his induction as Vice Chairman of the Commission, this Court finds it difficult to sustain the removal of the petitioner more so when the petitioner questions his removal while the respondent no. 7 accepts his removal. To this Courts this appears to be a fundamental issue of crucial importance for determination in the present matter. The order of removal in so far as the respondent no. 7 is concerned becomes final. If his reinstatement is bad there arises a vacancy immediately. If the order of removal of the petitioner was bad he is entitled to reinstatement as a necessary consequence. In view of the fact that this Court has held that respondent no. 7 did not challenge his removal and therefore it attained finality and secondly as the order of reinstatement of respondent no. 7 is bad, the nomination of respondent no. 7 by notification dated 5.8.2006 is consequentially set aside. This Court having found the appointment of respondent no. 7 to be bad there is no occasion for this Court at present to go into the question of nomination of respondent no. 6.
14. The petitioner stands reinstated for his tenure in the nomination order dated 3.9.2005. The writ application stands allowed. There shall be no order as to costs.