JUDGMENT R.K. Agrawal, J.
1. By means of the present writ petition, the petitioners seek quashing of the notification Nos. 4266-Nau-9/2001-76 (1), 2001 dated 12.11.2001 and 4349-Nau-9/2001-76 (1)/2001, dated 12.11.2001, as also a writ of mandamus directing the respondents not to interfere with the functioning of the petitioners as members of the Nagar Palika Parishad, Atrauli, district Aligarh.
2. Briefly stated the facts giving rise to the present petition are as follows :
"All the five petitioners claim to have been nominated as members of Nagar Palika Parishad, Atrauli, district Aligarh by the State Government vide Notification Nos. 2567-Nau-9-2001-76 (1)/2001, dated 30.4.2001. They took oath as members of the Nagar Palika Parishad, Atrauli, Aligarh (hereinafter referred to as the "Nagar Palika Parishad") on 6.11.2001. However, on 12.11.2001, the State Government issued another notification being Notification No. 4266/Nav-9/2001/76/2001, wherein five new persons, who are respondent Nos. 4 to 8 in the present writ petition have been nominated as members of the Nagar Palika Parishad. Another notification was issued by the State Government on the same day being Notification No. 4349-Nau-9/2001-76 (1)/ 2001, by which the nomination of the present petitioners as members of the Nagar Palika Parishad had been cancelled."
3. We have heard Rajiv Ratan Singh, learned counsel for the petitioners and Sri M.K. Gupta, learned counsel appearing for the respondents.
4. Learned counsel for the petitioners submitted that pursuant to the Notification dated 30.10.2001, the petitioners had taken oath as member of the Nagar Palika Parshad on 6.11.2001 and, therefore, there was no vacancy of member in the Nagar Palika Parishad, which could have been filled up by the State Government by issuance of Notification No. 4266 on 12.11.2001. He further submitted that the Notification No. 2567 dated 30.10.2001 had not been cancelled before issuance of the Notification No. 4266 on 12.11.2001. Thus, the nomination of respondent Nos. 4 to 8 as members of Nagar Palika Parishad was wholly illegal and without jurisdiction. He further submitted that the State Government had cancelled the nomination of the petitioners as members of the Nagar Palika Parishad, Atrauli, Aligarh, subsequently, by issuance of another Notification No. 4349 on 12.11.2001, which is wholly arbitrary and mala fide. He submitted that the Notification No. 4349 was issued only to fill up the lacuna, which is not permissible under law. According to him under Section 9 of the Municipalities Act, 1916, after its amendment by U.P. Act No. 12 of 1994 by which the proviso added by U.P. Act No. 19 of 1990 w.e.f. 15.2.1990, which provided that a member nominated under this section shall hold office during the pleasure of State Government was deleted and, therefore, the members of the Nagar Palika Parishad once nominated cannot be removed prior to the expiry of the term as holding of office on the pleasure of the State Government has been done away by the State Legislature by U.P. Act No. 12 of 1994. He submitted that from a reading of Section 10A and Section 38 of the Municipalities Act, 1916, the term of the nominated members is coextensive with the term of the Nagar Palika Parishad and the term of the nominated members of the Nagar Palika Parishad can be curtailed only if such member resigned or is removed from the office of the membership of the Nagar Palika Parishad in the manner provided in Section 40 of the said Act. According to him in the present case as the petitioners have neither resigned nor they have been removed as provided under Section 40 of the Act, the State Government was not at all justified in cancelling their nominations and is a colourable device and cannot be permitted.
5. Sri M.K. Gupta, on the other hand, submitted that the petitioners, who were nominated members, held the office as members of the Nagar Palika Parishad during the pleasure of the State Government and they can be removed any time. The removal does not infringe any of their constitutional or legal rights. According to him under Section 21 of the General Clauses Act, the State Government has a power to remove or dismiss a person in the same manner as it has the power to nominate. In support thereof he relied upon a Division Bench decision of this Court in the case of Prem Kumar Balmiki v. State of U.P. and Ors.. 1992 (2) UPLBEC 1021 and of the Hon'ble Supreme Court in the case of Om Narain Agrawal and Ors. v. Nagar Palika Parishad, Shahjahanpur and Ors., AIR 1993 SC 1440. He further submitted that the Notification No. 4349 cancelling the nomination of the petitioners as members of the Nagar Palika Parishad was issued on 12.11.2001, i.e., on the same day on which the Notification No. 4266 was issued nominating the respondent Nos. 4 to 8 as members of the Nagar Palika Parishad. Since both the notifications were issued on the same day, it is not correct to say that the nomination of respondent Nos. 4 to 8 were made earlier and the cancellation of the nomination of the petitioners were made subsequently. According to him, the serial number of the notification does not necessarily mean that the notification, which is bearing later serial number, has been issued subsequent in point of time. Thus, he submitted that the notification dated 12.11.2001 is perfectly legal and justified and calls for no interference.
6. Having heard the learned counsel for the parties, we find that the petitioners were nominated as members of Nagar Palika Parishad on 30.10.2001 and took oath as members of the said Nagar Palika Parishad on 6.11.2001. Their nomination as member of the Nagar Palika Parishad was cancelled by the State Government vide notification dated 12.11.2001 bearing serial No. 4349 and the respondent Nos. 4 to 8 were nominated as members by the State Government vide Notification No. 4266 issued on the same day. In the case of Prem Kumar Balimiki (supra), a Division Bench of this Court was considering the question as to whether a nominated member of the Board can be removed by the State Government without expiry of the term of the Municipality or not. After examining various authorities on the question of doctrine of pleasure as also the powers available to the Government under Sections 16 and 21 of the General Clauses Act, the Court has held as follows :
"13. The proposition of law emerging from the above authorities may be stated thus ; It is settled law that the power to do a thing includes the power to undo that thing. Thus, the power to appoint or nominate a person to a post or office includes necessarily the power to remove or dismiss from that post or office. The power to pass an order includes the power to rescind that order. These general principles have been given statutory recognition in Sections 16 and 21 of the General Clauses Act, 1897. The general power to undo a thing or to remove or dismiss from office is subject to restrictions, which may be imposed by contract by terms of appointment or by statute. This is specifically provided in Section 16 where it is said "unless a different intention appears". The U.P. Municipalities Act does not exhibit an intention different from the general principles mentioned herein. Rather the incorporation of pleasure doctrine in the Fourth proviso puts the matter beyond the pale of doubt. It reinforces general proposition that the power to nominate carries necessarily with it the power to terminate that nomination.
14. The office of member of Municipal Board is a political office. Appointment to political office carries with it political hazards. Such appointments are invariably made on political considerations and their termination is also actuated by political considerations. If appointment itself is made on political considerations, we see no reason why political considerations should not be allowed to operate in termination of the nomination. The nomination as well as termination of the nomination fall within the field of subjective satisfaction of the nominating authority. In such a situation there is no question of invoking the principles of natural justice or of arbitrariness contained in Article 14 of the Constitution."
7. Applying the principles laid down by this Court in the case of Prem Kumar Balmiki and Ors. v. State of U.P. and Ors., to the facts of the present case, we have no hesitation to hold that even after the deletion of the proviso to Section 9 of the U.P. Municipalities Act, by U.P. Act No. 19 of 1994, a nominated member of the Nagar Palika Parishad can be removed by the State Government by exercising the power under Sections 16 and 21 of the General Clauses Act and a nominated member cannot insist upon to hold the office as a member of Nagar Palika Parishad for the full term. In the case of Om Narain Agrawal (supra), the Hon'ble Supreme Court has held that the nominated members of the Board fall in a different class and cannot claim equality with the elected members. The Apex Court was also not impressed with the arguments that there would be a constant fear of removal at the will of the State Government and is bound to demoralise the nominated members in the discharge of their duties as a member in the Board. While repelling such an argument the Apex Court held as follows :
"We do not find any justification for drawing such an inference, inasmuch as such contingency usually arises only with the change of ruling party in the Government. Even in the case of highest functionary in the Government like the Governors, the Ministers, the Attorney General and the Advocate General discharge their duties efficiently, though removable at the pleasure of the competent authority under the law, and it cannot be said that they are bound to demoralise or remain under a constant fear of removal and as such do not discharge their functions in a proper manner during the period they remain in the office."
8. The Apex Court approved the view taken by this Court in the case of Prem Kumar Balmiki (supra). Thus, in our considered opinion, the grounds taken by the petitioners for challenging the two notifications one-nominating the respondent Nos. 4 to 8 and the other cancelling the petitioners' nomination are misconceived. The two notifications in question have been validly issued and are within the powers of the State Government.
9. So far as the question of nomination of the respondent Nos. 4 to 8 by the notification were done prior to the cancellation of the petitioners' nomination, as the notification nominating the respondent Nos. 4 to 8 bears serial No. 4266 whereas the notification cancelling the petitioners' nomination bears serial No. 4349 being later is concerned, we find that both the notifications were issued by the State Government on the same day, i.e., 12.10.2001 and the mere fact that the notification cancelling the nomination of the petitioners bears a subsequent serial number will not mean that the said notification was issued subsequently.
10. In view of the foregoing discussions, we do not find any merit in this writ petition. It is dismissed. There shall be no order as to costs.