Calcutta High Court (Appellete Side)
Taraknath Das vs Union Of India & Ors on 6 May, 2016
IN THE HIGH COURT AT CALCUTTA
Constitutional Writ Jurisdiction
Appellate Side
W.P. No. 21481 (W) of 2015
With
CAN 4063 of 2016
With
CAN 4104 of 2016
Taraknath Das
Vs.
Union of India & Ors.
For the Petitioner : Mr. Debabrata Saha Roy, Advocate
Mr. Indranil Mitra, Advocate
For the Respondent No. 9 : Mr. Saptangsu Basu, Advocate
Mr. S. Sanyal, Advocate Mr. Anirban Das, Advocate For the Applicant in CAN 4063 of 2016 : Mr. Subrata Mukherjee, Advocate Mrs. Basabi Roy Choudhury, Advocate Ms. Daisy Basu, Advocate Hearing concluded on : April 29, 2016 Judgment on : May 6, 2016 DEBANGSU BASAK, J.:-
The petitioner has assailed the appointment of the respondent no. 9 to the post of the Assistant Registrar of the respondent no. 3.
Learned Advocate for the petitioner has submitted that, the respondent no. 3 had published an advertisement for the purpose of appointment of one Assistant Registrar by the advertisement bearing No. RF 0709. Such post was reserved for scheduled caste. The respondent no. 9 had participated in such selection process and was given the appointment to such post by a resolution dated September 17, 2009 passed by the Executive Council of the respondent no. 3. The petitioner had learnt from a letter dated the July 22, 2014 issued by the respondent no. 9 to the Director of the respondent no. 3 admitting that, the respondent no. 9 had secured 49.75% marks in the M.A. examination and that, he did not possess the requisite experience for such post. Subsequent to coming to know of such fact, the petitioner had made a representation dated July 10, 2015. The petitioner had thereafter filed the present writ petition seeking a writ of Quo Warranto as well as Mandamus and Certiorari.
Learned Advocate for the petitioner has referred to the qualifications required for the post as published in the advertisement. He has, referring to such qualifications, submitted that, the respondent no. 9 does not have a B+ Masters degree. The respondent no. 9 also does not have at least 5 years experience in a supervisory capacity in a university or in Research Institute. Consequently, the respondent no. 9 could not have been considered for such post. The appointment of the respondent no. 9 should be declared as invalid. Appropriate writ of Quo Warranto to should be issued for such purpose. If a Quo Warranto is found not to be available to the petitioner, then at least a writ of Mandamus and Certiorari as prayed for.
In support of the contention that, the post of Assistant Registrar of the respondent no. 3 is a public office learned Advocate for the petitioner has relied upon the provisions of the Bengal Engineering and University, Shibpur Act, 2004. He has referred to a decision reported at 2005 Volume 3 Calcutta Law Times page 271 (The Oriental Insurance Company Limited v. Arun Kr. Maitra). He has also relied upon an unreported decision of a division bench of the Gujarat High Court delivered on April 11, 2012 in Pradeep P. Prajapati v. Principal Secretary & Ors.
Relying upon 2014 Volume 1 Supreme Court Cases 161 (Central Electricity Supply Utility of Odisha v. Dhobei Sahoo & Ors.) learned Advocate for the petitioner has submitted that, in considering grant of a writ of Quo Warranto the concept of locus standi of the petitioner is irrelevant.
Learned Advocate for the respondent no. 3 has submitted that, the respondent no. 9 fulfils the relaxed criteria of the advertisement for the post. The respondent no. 9 is a scheduled caste candidate. 5% of the marks to be obtained in an examination is relaxable in case of such candidate. Since the respondent no. 3 was not finding appropriate candidates for the post, the Executive Council in their meeting had waived the requirement of the experience for such post.
Learned advocate for the respondent no. 3 has submitted that, the petitioner is guilty of unexplained delay in filing the writ petition. The appointment of the respondent number 9 was granted on September 22, 2009 and the present writ petition has been filed on August 24, 2015. The petitioner is working at the respondent no. 3 in the post of Junior Superintendent. The petitioner had initially joined the respondent no. 3 as a Junior Assistant on May 2, 1995. The petitioner had knowledge of the educational qualifications as also the experience of the respondent no. 9. The petitioner did not protest to the appointment of the respondent no. 9 given on September 22, 2009 till the making of the representation on July 10, 2015.
Learned advocate for the respondent no. 3 has relied upon an unreported judgment and order dated July 22, 2010 rendered in W.P. No. 29906(W) of 2008 (Bengal Engineering and Science University, Shibpur Teachers' Association & Anr. v. Bengal Engineering and Science University, Shibpur & Ors.). He has also relied upon All India Reporter 1965 Supreme Court page 491 (University of Mysore v. Govinda Rao). He has submitted that, the post of the Assistant Registrar of the respondent no. 3 is not a public office. The post of the Registrar was held not to be a public office in Bengal Engineering (supra). Consequently, the post of an Assistant Registrar cannot be held to be a public office. A writ of Quo Warranto is therefore not maintainable. Once it is held that, the petitioner is not entitled to a writ of Quo Warranto, the writ petition is liable to be dismissed as the petitioner is not entitled to any other relief.
Learned senior advocate for the respondent no. 9 has submitted that, in view of the decision rendered in Bengal Engineering (supra) a writ of Quo Warranto is not maintainable against the appointment to the post of an Assistant Registrar of the respondent number 3. He has submitted that, the decision rendered in Oriental Insurance Company (supra) is not applicable in the facts of this case. The Court was concerned with whether a manager of a nationalized branch can be regarded as a public officer as defined in the Code of Civil Procedure, 1908. In the present case the consideration of a public office is different. Pradeep P. Prajapati (supra) will assist the respondent no.
9. Learned Senior Advocate for the respondent no. 9 has submitted that, the petitioner is guilty of unexplained delay. The petitioner was an unsuccessful candidate participating in the selection process. He has referred to the pleadings made in the various paragraphs of the writ petition in support of his contention. He has relied upon All India Reporter 1995 Supreme Court page 1088 (Madan Lal & Ors. v. State of Jammu and Kashmir & Ors.).
Learned Senior Advocate for the respondent no. 9 has submitted that, the respondent number 9 would suffer irreparable prejudice in the event the writ petition is allowed. The respondent no. 9 has left his previous employment as an Assistant Teacher at the school to join this post. It would be causing grave prejudice to him if, on a belated writ petition his appointment is struck down. This fact of prejudice, coupled with the fact that, the petitioner is guilty of delay, should be fatal to the case of the petitioner. On the question of delay he has relied upon All India Reporter 1978 Supreme Court page 1536 (Ram Sarup v. State of Haryana & Ors.) and All India Reporter 2001 Supreme Court 1176 (Buddhi Nath Chaudhary & Ors. v. Abani Kumar & Ors.).
In reply the learned Advocate for the petitioner has submitted that, the respondent no. 3 is not entitled to relax the criteria set down in the advertisement for the post. If any relaxation has been made subsequent to the advertisement, such relaxation is bad in law. Such relaxation would fatally vitiate the selection process rendering the appointment of the respondent no. 9 as bad. On the question of delay he has submitted that, the petitioner is not guilty of the same. The petitioner has pleaded in paragraph 9 that, he had been derived knowledge of the lack of the essential qualifications of the respondent no. 9 appointed to such post from the letter of the respondent no. 9 dated July 22, 2014. This fact has not been denied by the respondents in their affidavits. None of the respondents have placed any material to suggest that the petitioner was aware of the lack of qualification of the respondent no. 9 prior to July 22, 2014. The petitioner had taken steps immediately upon coming to know of such fact. The petitioner had made a representation to the authorities demanding Justice. The petitioner had filed the present writ petition on August 24, 2015 when the demand for Justice remained unreplied to. The petitioner, therefore, it is not guilty of any delay.
Learned Advocate for the petitioner has submitted that, the Court rendering Bengal Engineering (supra) did not consider the provisions of Sections 2(17)(g) and (h) of the Code of Civil Procedure, 1908. The decision therefore has to the considered as per incurium. He has relied upon 2012 Volume 4 Supreme Court Cases page 516 (Rattiram & Ors. v. State of Madhya Pradesh) in support of such contention. He has relied upon 2014 Volume 14 Supreme Court Cases page 50 (Renu & Ors. v. District and Sessions Judge, Tis Hazari Courts, Delhi & Anr.) in support of the proposition of appointments to public offices.
The respondent no. 3 has made an application being CAN 4063 of 2016 seeking to raise the maintainability issue of the writ petition. Such issue is based on the premise that the office of the Assistant Registrar of the respondent no. 3 not being a public office a writ of Quo Warranto as prayed for by the petitioner is not maintainable.
Since the application has been made subsequent to the commencement of the hearing of the writ petition and the parties have been heard on such issue it would be proper to consider the issue of maintainability along with all other issues raised.
The respondent no. 9 has also made an application being CAN 4104 of 2016 seeking to amend its affidavit in terms of Schedule 'A' of the application.
The learned Advocate for the petitioner on instructions did not raise any objection to the amendment application. The hearing has continued on the basis that the affidavit of the respondent no. 9 stood amended as shown in Schedule 'A' to the amendment application.
The issues that have arisen in the present writ petition may be summarized as follows:-
a) Is the post of Assistant Registrar in the Bengal Engineering and Science University, Shibpur Act a public office for a writ of Quo Warranto to be issued ?
b) Should the present writ petition be dismissed on the ground of unexplained delay ?
c) Should the appointment of the respondent no. 9 be not interfered with on equitable consideration ?
Bengal Engineering College, Shibpur, Howrah was declared by the Central Government as a Deemed University under Section 3 of the University Grants Commission Act, 1956. It was reconstituted by the Bengal Engineering and Science University, Shibpur Act, 2004. Chapter II of the Act of 2004 deals with the University and its officers. Section 6 specifies the officers of the University. Section 6 is as follows:-
"6. The following shall be officers of the University:-
(i) the Vice-Chancellor;
(ii) the Registrar;
(iii) the Finance Officer; and
(iv) such other persons as may be declared by the
Statutes to be the officers of the University."
Chapter VII of the Bengal Engineering and Science University, Shibpur First Statutes, 2007 deals with officers of the University. Statute 68(1)(i) declares an Assistant Registrar to be an officer of the University in terms of Section 6 of the Act of 2004. The post of Assistant Registrar is two positions below the post of Registrar. There is a post of Deputy Registrar in between the Registrar and the Assistant Registrar.
Statute 78 specifies the duties of Assistant Registrar. They are as follows:-
"78. Subject to the direct control and supervision of the Deputy Registrar and to the extent as may be directed by him, the Assistant Registrar shall exercise the following powers and shall deal with the matters in respect of:- The following shall be officers of the University:-
(1) subordinate staff including granting of leave; (2) selection Committees for teachers and Standing Committees, if any, for selection of non-teaching staff and officers;
(3) halls, auditorium, committee rooms, arrangements for meeting and functions;
(4) recruitment-examinations, tests."
The Courts in India have relied heavily on the explanation of a public office given in Black's Law Dictionary. According to such Dictionary the essential characteristics of a public office are (1) authority conferred by law, (2) fixed tenure of office, and (3) power to exercise some portion of sovereign functions of the government.
Right to education finds place in Articles 41 and 45 of the Constitution. Right to education has been held by the Courts in India to be a fundamental right, through the same may not be absolute. Facilitating availability of education to the citizen is a sovereign function. The post of Assistant Registrar is recognised to be an officer in terms of Section 6 of the Act of 2004. It is of a fixed tenure. The duties of such post require a post holder to discharge functions in relation to an educational institution and to deal with the public while discharging such duties. Viewed from such perspective, the post of Assistant Registrar of the respondent no. 3 is a public office and a writ of Quo Warranto can be issued in respect of such post. This view finds support from Pradeeep P. Prajapati (supra) where although the post of Chief Accounts Officer of the concerned university was found not to be a public office, it has held that the post of a Registrar of such university is a public officer in view of similar provisions as that of Section 6 of the Act of 2004 in the Act establishing such university and the essential characteristics of a public office being satisfied by the office of the Registrar.
Govinda Rao (supra) has held that, before a citizen can claim a writ of Quo Warranto, he must satisfy the Court, inter alia, that the office in question is a public office and is held by a usurper without legal authority, for the Court to embark on the enquiry as to whether the appointment was in accordance with law or not. The Courts should be slow to interfere with the opinion expressed by the experts in the absence of malafides alleged against experts. When the appointment is based on recommendations of experts nominated by the university, the Court has got only to see whether the appointment had contravened any statutory or binding rule or ordinance.
The post of Registrar of the university has been held in Bengal Engineering (supra) not to be a public office. Noting the essential elements of a public office, it has held that, one of the key elements that, the officer was to carry out some portions of sovereign functions of the Government was absent in respect of the post of Registrar of the university. The appeal preferred against Bengal Engineering (supra) being FMA No. 489 of 2011 was dismissed for default on January 31, 2014. Bengal Engineering (supra) cannot be said to be per incurium as contended on behalf of the petitioner. Section 2 of the Code of Civil Procedure, 1908 defines the words for the purpose of such Code. The Oriental Insurance Company Limited (supra) has considered the issue as to whether a manager of a nationalized bank can be regarded as a public officer in terms of the definition of the public officer as in the Code of Civil Procedure, 1908. There the Motor Accident Claims Tribunal had passed an order of attachment of the bank account of an insurance company and had directed the manager of such bank to withdraw the attached amount and deposit the same in favour of the claimant. In such circumstances, the manager of a nationalized bank was found to be a public officer under Section 2(17) of the Code of Civil Procedure, 1908.
In deference to judicial discipline, since in Bengal Engineering (supra), the Registrar of the university has been held not to be a public office, the post of Assistant Registrar of the same university being respondent no. 3 cannot be held to be a public office. A writ of Quo Warranto is not available to the petitioner in the facts of this case.
In view of Bengal Engineering (supra) the first issue is answered in the negative.
Non-availability of the writ of Quo Warranto ipso facto, does not make the writ petition not maintainable, in the facts of this case. The petitioner has prayed for writs of mandamus and certiorari also. The writ petition is maintainable. Whether in the facts of the case, the petitioner is entitled to such relief has to be examined.
The respondent no. 3 had issued an advertisement bearing No. RF 0709 specifying the essential and desirable qualifications required for the post of Assistant Registrar. They are as follows:-
"(4) Assistant Registrar or Assistant Controller of Examinations:
(a) Essential -
(i) uniformly good academic record with a B+ Master's degree or its equivalent;
(ii) at least 5 years experience in a supervisory capacity in a University or a Research Institute;
(iii) age not less than 30 years on 01.01.2009;
(iv) knowledge of computer processing;
(b) Desirable - PGDM or MBA;"
UGC guidelines on adoption of choice based credit system recommends that the cut off marks for grade B shall not be less than 50% and for grade B+ it should not be less than 55% under the absolute grading system. The same guidelines require 50% marks for a reserved category candidate. Although the advertisement has prescribed B+ grade for a reserved category post, taking the B+ to mean 50% for such reserved category post and 49.75% being rounded off to the nearest unit being 50%, the respondent no. 9 satisfies the educational qualification. Prior to his appointment, the respondent no. 9 was an assistant teacher at a high school. He does not fulfil the essential eligibility criterion on experience specified for the post.
In Buddhi Nath Chaudhary (supra) the Supreme Court on equitable considerations did not set aside the appointments as the candidates had gathered experience during the pendency of the matter. In Ram Sarup (supra) a Government employee not having requisite 5 years experience was transferred to the post of Labour-cum- Conciliation Officer. It has been held that, the appointment may be irregular but not void.
The present case revolves around a fresh appointment. The appointment has been given in breach of an essential eligibility criterion. A person appointed erroneously or wrongly should not be allowed to reap the benefits of such erroneous or wrongful appointment. However, when the Courts have found that the appointee is not guilty of any suppression or fraud, the Courts have taken a sympathetic view of the appointment particularly when the appointment is challenged after the long lapse of time. On equitable considerations the Courts have upheld the appointments. Instances of erroneous and wrongful appointments not being interfered with may be found in 2002 Volume 4 Supreme Court Cases page 726 (Vinodan T. & Ors. v. University of Calicut), 2006 Volume 1 Supreme Court Cases page 667 (State of U.P. v. Neeraj Awasthi & Ors.), 2010 Volume 10 Supreme Court Cases page 707 (Girjesh Shrivastava & Ors. v. State of M.P.), 1994 Supp. (2) Supreme Court Cases page 591 (Gujarat State Deputy Executive Engineers' Association v. State of Gujarat & Ors.), 2009 Volume 1 Supreme Court Cases page 768 (Tridip Kumar Dingal & Ors. v. State of West Bengal), All India Reporter 2013 Supreme Court page 3414 (Vikas Pratap Singh v. State of Chhattisgarh), Ram Sarup (supra) and Buddhi Nath Chaudhary (supra).
In Vikas Pratap Singh (supra) as the appointees were victims of an erroneous evaluation, their appointments were not interfered with as that would cause prejudice and hardship to the appointees. In the present case, the evaluation of the respondent no. 9 for appointment has certainly been erroneous. However, the respondent no. 9 had no role to play in such evaluation process. If his appointment is interfered with it would cause him prejudice and hardship.
The respondent no.9 has worked at the post of Assistant Registrar for six years from his date of appointment till his appointment has been challenged. The Executive Council of the university had in its meeting dated September 17, 2009 resolved to grant the respondent no. 9 the appointment. The present writ petition has been filed on August 24, 2015. No material has been placed on record to suggest that the respondent no. 9 had suppressed any fact from the appointing authority or that the appointment is vitiated by fraud. The allegation in the petition is that, the Selection Committee and the appointing authority had failed to discharge their duties faithfully and that they had granted the appointment without perusal of the summary sheet of the candidates. There is not even an allegation of suppression or fraud against the respondent no. 9.
In such circumstances, following the ratio of Buddhi Nath Chaudhary (supra) the appointment of the respondent no. 9 although wrongful and erroneous is not set aside on equitable consideration.
Madan Lal & Ors. (supra) lays down that, the results of the interview should not be allowed to be challenged by an unsuccessful candidate who had taken a chance to get selected. Such ratio does not defeat the case of the petitioner as the factum of illegality has surfaced six years after the appointment. The respondents have not been able to establish that the petitioner was aware of the irregularity and had acquiesced therein by his participation. The petition is not defeated due to delay. There is no delay on the part of the petitioner.
In view of the discussions, the second issue is answered in the negative. The third issue is answered in favour of the respondent no. 9. His appointment is not interfered with on equitable considerations.
CAN 4063 of 2016, CAN 4104 of 2016 and W.P. No. 21481(W) of 2015 are disposed of. No order as to costs.
Urgent photostat certified copy of this order, if applied for, be given to the parties on priority basis.
[DEBANGSU BASAK, J.]