Kerala High Court
G.Vipinan vs Union Of India on 23 March, 2023
Author: S.Manikumar
Bench: S.Manikumar, Murali Purushothaman
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR
&
THE HONOURABLE MR.JUSTICE MURALI PURUSHOTHAMAN
Thursday, the 23rd day of March 2023 / 2nd Chaithra, 1945
IA.NO.4/2023 IN WP(C) NO. 37664 OF 2022(S)
PETITIONER/PETITIONER:
G.VIPINAN, S/O. GANGADHARAN VAIDYAN, AGED 69 YEARS,
SENIOR JOURNALIST, PADMA VILAS, MUNDAKKAL WEST,
KOLLAM - 691 016.
RESPONDENTS/RESPONDENTS:
1. UNION OF INDIA, REPRESENTED BY ITS SECRETARY TO GOVERNMENT,
MINISTRY OF HOME AFFAIRS, NEW DELHI- 110 012.
2. UNION PUBLIC SERVICE COMMISSION, REPRESENTED BY IT'S SECRETARY,
SHAJAHAN ROAD, NEW DELHI- 110 068.
3. THE SELECTION COMMITTEE FOR SELECTION TO INDIAN POLICE SERVICE
CONSTITUTED UNDER REGULATION 3 OF THE INDIAN POLICE SERVICE
(APPOINTMENT BY PROMOTION) REGULATIONS 1955, REPRESENTED BY ITS
CHAIRMAN, UNION PUBLIC SERVICE COMMISSION, NEW DELHI-110 069.
4. STATE OF KERALA, REPRESENTED BY ITS CHIEF SECRETARY, SECRETARIAT,
THIRUVANANTHAPURAM-695 001.
5. THE PRINCIPAL SECRETARY, HOME DEPARTMENT, GOVERNMENT OF KERALA.
6. STATE POLICE CHIEF, POLICE HEAD QUARTERS, THIRUVANANTHAPURAM-695
010.
7. ABDUL RASHEED. N, S/O. M. NOOHUKANNU, AGED 58 YEARS, UNDER ORDERS
OF APPOINTMENT TO IPS RESIDING AT SHALIMAR, RAJEEV NAGAR,
PALLITHOTTAM (P.O), KOLLAM-691 006.
8. THE SUPERINTENDENT OF POLICE, CBI, THIRUVANANTHAPURAM.
Application praying that in the circumstances stated in the
affidavit filed therewith the High Court be pleased to permit the
petitioner to peruse the documents produced by the UPSC and take down
notes or in the alternative direct the registry to issue certified copy of
the documents produced by the UPSC to the petitioner on payment of fees,
pending disposal of the WP.
P.T.O.
This Application coming on for orders upon perusing the application
and the affidavit filed in support thereof, and upon hearing the arguments
of SRI.M.R.RAJENDRAN NAIR, SENIOR ADVOCATE along with M/S. C.UNNIKRISHNAN
(KOLLAM), ANANDA PADMANABHAN, UTHARA A.S, VIJAYKRISHNAN S. MENON, VIVEK
NAIR P., NIDHI BALACHANDRAN & DINOOP P.D., Advocates for the petitioner in
IA/WP(C), SRI.MANU S., DEPUTY SOLICITOR GENERAL OF INDIA & SRI.KRISHNADAS
P.NAIR, CENTRAL GOVERNMENT COUNSEL for R1 & R8 in IA/WP(C), SRI.THOMAS
MATHEW NELLIMOOTTIL, STANDING COUNSEL for R2 & R3 in IA/WP(C), SRI.K.P.
HARISH, SENIOR GOVERNMENT PLEADER for R4 to R6 in IA/WP(C) and of
SRI.S.SREEKUMAR (SENIOR ADVOCATE) along with M/S. MARTIN JOSE P,
P.PRIJITH, THOMAS P.KURUVILLA, R.GITHESH, AJAY BEN JOSE, MANJUNATH MENON,
SACHIN JACOB AMBAT, ANNA LINDA EDEN, HARIKRISHNAN S., Advocates for R7 in
IA/WP(C), the court passed the following:
P.T.O.
S.MANIKUMAR, C.J.
&
MURALI PURUSHOTHAMAN, J.
========================
I.A.No.4 of 2023 in
W.P.(C)No.37664 of 2022
==========================
Dated this the 23rd day of March, 2023
ORDER
S. Manikumar, C.J.
Pending disposal of this writ petition, petitioner has filed I.A.No. 4 of 2023, to permit him to peruse the documents produced by the UPSC before this Court and take down notes or in the alternative, direct the Registry to issue certified copy of the documents produced by the UPSC to the petitioner, on payment of fees.
2. Learned Senior Counsel appearing for the petitioner placed reliance on the decision of the Hon'ble Supreme Court in Cdr Amit Kumar Sharma v. Union of India and Others [2022 Live Law (SC) 951], wherein, at paragraphs 27 and 28, it is observed thus:
W.P.(C)No.37664-2022 2"27. The elementary principle of law is that all material which is relied upon by either party in the course of a judicial proceeding must be disclosed. Even if the adjudicating authority does not rely on the material while arriving at a finding, information that is relevant to the dispute, which would with 'reasonable probability' influence the decision of the authority must be disclosed. A one- sided submission of material which forms the subject matter of adjudication to the exclusion of the other party causes a serious violation of natural justice. In the present case, this has resulted in grave prejudice to officers whose careers are directly affected as a consequence.
28. The non-disclosure of relevant material to the affected party and its disclosure in a sealed- cover to the adjudicating authority (in this case the AFT) sets a dangerous precedent. The disclosure of relevant material to the adjudicating authority in a sealed cover makes the process of adjudication vague and opaque. The disclosure in a sealed cover perpetuates two problems. Firstly, it denies the aggrieved party their legal right to effectively challenge an order since the adjudication of issues has proceeded on the basis of unshared material provided in a sealed cover. The adjudicating authority while relying on material furnished in the sealed cover arrives at a finding which is then effectively placed beyond the reach of challenge. Secondly, it perpetuates a culture of opaqueness and secrecy. It bestows absolute power in the hands of the adjudicating authority. It also tilts the balance of power in a litigation in favour of a dominant party which has W.P.(C)No.37664-2022 3 control over information. Most often than not this is the state. A judicial order accompanied by reasons is the hallmark of the justice system. It espouses the rule of law. However, the sealed cover practice places the process by which the decision is arrived beyond scrutiny. The sealed cover procedure affects the functioning of the justice delivery system both at an individual case- to case level and at an institutional level. However, this is not to say that all information must be disclosed in the public. Illustratively, sensitive information affecting the privacy of individuals such as the identity of a sexual harassment victim cannot be disclosed. The measure of nondisclosure of sensitive information in exceptional circumstances must be proportionate to the purpose that the non-disclosure seeks to serve. The exceptions should not, however, become the norm."
3.Citing the abovesaid decision, learned Senior Counsel appearing for the petitioner prayed for a direction, as sought for in I.A. No.4/2023, to be issued.
4. However, inviting the attention of this Court to the facts in Cdr Amit Kumar Sharma' case (cited supra), Mr. S. Sreekumar, learned Senior Counsel appearing for respondent No.7 submitted that, in a writ of quo warranto in Public Interest Litigation, it is the W.P.(C)No.37664-2022 4 case of the petitioner that he had no personal interest.
5. He further submitted that in the case of writ of quo warranto, the only limited questions of law involved are, as to whether the appointment is made, in accordance with the statutory provisions, whether the incumbent satisfied the requirements of law, and whether the person holds the office under a valid authority or as a usurper.
6. Learned Senior Counsel appearing for the 7 th respondent submitted that Cdr Amit Kumar Sharma's case (cited supra) is a matter, challenging the denial of Permanent Commission (PC) in the Indian Navy.
7. For computing the vacancies to be considered in regard to PC and the fairness of selection process, reliance was placed on materials drawn from the data emerging from the files furnished to the AFT in a sealed cover and when the Hon'ble Supreme Court found that the above said materials were not furnished to the W.P.(C)No.37664-2022 5 affected parties, the Hon'ble Court observed that the failure to disclose the information to the affected persons has caused substantial prejudice to the appellants therein.
8. In response to the prayers sought for by the petitioner in this application, Mr. Thomas Mathew Nellimoottil, learned standing counsel appearing for UPSC, submitted that the details of the assessment made by the Commission cannot be furnished even under the Right to Information Act, 2005, whereas, minutes can be furnished. Thus, for the reasons stated supra he has objected to the prayer, sought for in this application.
9. Firstly, it could be seen that the 7th respondent has filed his counter affidavit. That apart, based on facts, UPSC has filed a statement, besides, producing the files relating to assessment.
10. Facts leading to the directions issued by the W.P.(C)No.37664-2022 6 Hon'ble Supreme Court in Cdr Amit Kumar Sharma's case (cited supra) are extracted hereunder:
"21. The AFT, inter alia, had to determine if
(i) the Naval Authorities had correctly computed the vacancies against which the claims of the SSC Officers would be considered for the grant of PC;
and (ii) the Selection Board considered the applications for the grant of PC fairly. The judgment of the AFT indicates that in assessing the validity of the exercise undertaken to determine vacancies and the fairness of the selection process, it placed extensive reliance on material drawn from the data emerging from the files which were submitted by the Union Government and the Naval Authorities in a sealed cover. The judgment of AFT sets out in paragraph 92, a summary of the cadre- wise strength and vacancies to be considered for granting PC to the affected SSC officers. In paragraphs 93 and 94, the AFT has set out, in a similar manner, tabulated statements in regard to the utilisation of vacancies. This data did not form the subject matter of deliberations before the AFT. In fact, the counter affidavits in Commander Barsha Agrawal (supra) and Commander AK Sharma (supra) indicate that the data was submitted in the form of a sealed note.
22. Similarly, the Board proceedings were not disclosed to the appellants. The written submissions before this court and the submissions in Commander AK Sharma (supra) before the AFT indicate that the Board proceedings were not disclosed to the officers and were submitted to the AFT in a sealed cover. The AFT on a perusal of the W.P.(C)No.37664-2022 7 Board proceedings has observed that the second respondent had adopted proper procedure and suitable parameters that it had uniformly applied. It was also observed on a perusal of the documents that there was no gender bias and that the appellants' applications for PC were rejected only because they were lower in inter se merit.
23. This Court in Annie Nagaraj (supra) had directed that the applications of the serving officers for PC shall be considered on the basis of norms in Regulation 203 and paragraph 4 of the implementation guidelines. The parameters that were directed to be considered were: (i) availability of vacancies in stabilized cadre at the material time; (ii) determination of suitability; and
(iii) recommendation of the Chief of Naval Staff. In terms of paragraph 4 of the implementation guidelines, the empanelment has to be based on inter-se merit evaluated on the ACRs of the officers. The Tribunal in paragraph 105 of the judgment observed that on a perusal of record it was evident that the Indian Navy had considered the SSC officers for PC based on the parameters laid down in Annie Nagaraj (supra). However, the material that has been relied on to arrive at the finding that there was no infirmity in the process has not been disclosed to the appellants. The AFT observed that the weightage to the individual parameters in the selection process for PC is the same as it existed before the judgment of this Court in Annie Nagaraj (supra). Even if the parameters for selection and the weightage of the individual parameters have been in the public domain, there is no material on record to determine if the selection has been made in W.P.(C)No.37664-2022 8 accordance with the criteria. The AFT has recorded that there are 'no mala fides' and 'no gender bias' in the selection process. However, there is no material available to the appellants to challenge these findings since the material was disclosed to the AFT in a sealed envelope. The orders granting PC to other officers also did not contain any reasoning on the inter-se merit of the applicants. The AFT on a perusal of the files submitted in a sealed cover recorded the status of the applicants in a tabular format that has been extracted in the earlier part of the judgment. However, the appellants were not privy to such information".
11. As rightly contended by Mr.S.Sreekumar, learned Senior Counsel appearing for respondent No.7, instant writ petition is a Public Interest Litigation, filed for issuance of quo warranto. In a public interest writ petition, there should not be personal interest nor the petitioner can be said to be a person aggrieved. It is distinct from a writ of certiorari.
12. He further submitted that it is not a matter of inter se dispute, as considered in Cdr Amit Kumar Sharma's case (supra). He further added that this Court W.P.(C)No.37664-2022 9 is required to consider the materials in the file , to ensure as to whether, the parameters for issuance of writ of quo warranto are available for the scrutiny of this Court.
13. Contention of the learned standing counsel for the UPSC that petitioner cannot even obtain copies of the assessment files under RTI Act, 2005 is not disputed.
14. When the petitioner, who cannot obtain the abovesaid documents, under a special enactment, as a matter of right, it is our considered view that prayers sought for can be granted.
15. In a writ of quo warranto, what is required to examined by a Court, is dealt with in the following decisions:
(i) In Arun Kumar v. Union of India (UOI) and Ors. (AIR 1982 Raj 67), at paragraph Nos.4 to 6, the Hon'ble Rajasthan High Court held as under:
"4. Article 226 of the Constitution empowers the High Court to issue to any person or authority including the Government within its territorial jurisdiction, directions, orders or writs in the nature of mandamus, certiorari prohibition or quo warranto for the enforcement of fundamental rights or for the enforcement of the W.P.(C)No.37664-2022 10 legal rights and for any other purpose.
5. The founding fathers of the Constitution have couched the Article in comprehensive phraseology to enable the High Court to remedy injustice wherever it is found, but it is equally true that a person invoking the extraordinary jurisdiction of this Court should be an aggrieved person. If he does not fulfill the character of an aggrieved person and is a 'stranger' the Court will, in its discretion, deny him this extraordinary remedy save in very special and exceptional circumstances. The petitioner challenging the order must have some specialised interest of his own to vindicate, apart from a political concern, which belongs to all. Legal wrong requires a judicial and enforceable right and the touchstone to the justiciability is injury to legally protected right. A nominal, imaginary, a highly speculative adverse effect to a person cannot be said to be sufficient to bring him within the expression of "aggrieved person". The words "aggrieved person" cannot be confined within the bounds of a rigid formula. Its scope and meaning depends on diverse facts and circumstances of each case, nature and extent of the petitioner's interest and the nature and extent of the prejudice or injury suffered by him.
6. Any information in the nature of quo warranto would not be issued, and an injunction in lieu thereof would not be granted as a matter of course. It is in the discretion of the Court to refuse or grant it according to the facts and circumstances of each case. The Court would inquire into the conduct and motive of the applicant and where there are grounds for supposing that the relator was not the real prosecutor but was the instrument of other persons and was applying in collusion with stranger, the Court may refuse to grant a writ of quo warranto.
(ii) In S. Mahadevan v. S. Balasundaram and Ors. reported in (1986) 1 Mad LJ 31, at paragraph 21, High Court of Madras held as under:-W.P.(C)No.37664-2022 11
"For the issuance of a writ of quo warranto, the Court asks the question-where is your warrant of appointment? It enjoins an enquiry into the legality of the claim which the party asserts to an office and if the appointment and holding on to the office are illegal and violative of any binding rule of law, then the Court shall oust him from his enjoying thereof. This Court, within the scope of the enquiry for the issuance of a writ of quo warranto, is not concerned with any other factor except the well laid down factors which require advertance to and adjudication. The existence of the following factors have come to be recognised as conditions precedent for the issuance of a writ of quo warranto: 1) The Office must be public; 2) The Office must be substantive in character, that is, an office independent in title; 3) the office must have been created by statute or by the Constitution itself; 4) the holder of the office must have asserted his claim to the office; and 5) the impugned appointment must be in clear infringement of a provision having the force of law or in contravention of any binding rule of law. This Court shall not frown upon an appointment to the office on the ground of irregularity, arbitrariness or caprice or mala fides and these features, even if they are present, could not clothe this Court with the power for the issuance of a writ of quo warranto. The scope of the enquiry is riveted to only the aforesaid factors. Prerogative writs, like the one for quo warranto, could be and should be issued only within the limits, which circumscribe their issuance. It is not possible to wider their limits. A writ of quo warranto is of a technical nature. It is a question to an alleged usurper of an office to show the legal authority for his appointment and holding on to it. If he shows his legal authority, he cannot be ousted from the office. The invalidity of the appointment may arise either for want of qualifications prescribed by law or want of authority on the part of the person who made the appointment, or want of satisfaction of the statutory provisions or conditions or procedure governing the appointment and which are mandatory. This Court, under Article 226 of the Constitution of India, can issue a writ of quo W.P.(C)No.37664-2022 12 warranto only if the salient conditions delineated above stand satisfied and not otherwise."
(iii) In B.R. Kapur v. State of Tamil Nadu and Ors. reported in (2001) 7 SCC 231, at paragraph Nos.79 to 81, the Hon'ble Supreme Court held as under:-
"79..............A writ of quo warranto is a writ which lies against the person, who according to the relator is not entitled to hold an office of public nature and is not a usurper of the office. It is the person, against whom the writ of quo warranto is directed, who is required to show, by what authority that person is entitled to hold the office. The challenge can be made on various grounds, including on the grounds that the possessor of the office does not fulfill the required qualifications or suffers from any disqualification, which debars the person to hold such office. So as to have an idea about the nature of action in a proceedings for writ of quo warranto and its original form, as it used to be, it would be beneficial to quote from Words and Phrases, Permanent Edn., Vol. 35-A, p. 648. It reads as follows:
The original common-law writ of quo warranto was a civil writ at the suit of the Crown, and not a criminal prosecution. It was in the nature of a writ of right by the King against one who usurped or claimed franchises or liabilities, to inquire by what right he claimed them. This writ, however, fell into disuse in England centuries ago, and its place was supplied by an information in the nature of a quo warranto, which in its origin was a criminal method of prosecution, as well to punish the usurper by a fine for the usurpation of the franchise, as to oust him or seize it for the Crown. Long before our revolution, however, it lost its character as a criminal proceeding in everything except form, and was applied to the mere purposes of trying the civil right, seizing the franchise, or ousting the wrongful possessor, the fine being nominal only and such, without any special legislation to that effect, has always been its character in W.P.(C)No.37664-2022 13 many of the States of the Union, and it is therefore a civil remedy only. Ames v. State of Kansas 4 S.Ct. 437, 442 : 111 US 449 : 1 Ed 482 (1884), People v. Dashaway Assn. 24 P 277, 278 : 84 Cal 114.
80. In the same volume of Words and Phrases, Permanent Edn., at p. 647 we find as follows:
The writ of 'quo warranto' is not a substitute for mandamus or injunction nor for an appeal or writ of error, and is not to be used to prevent an improper exercise of power lawfully possessed, and its purpose is solely to prevent an officer or corporation or persons purporting to act as such from usurping a power which they do not have. State Ex inf. McKittrick v. Murphy 148 SW 2d 527, 529, 530: 347 Mo 484.
Information in nature of 'quo warranto' does not command performance of official functions by an officer to whom it may run, since it is not directed to officer as such, but to person holding office or exercising franchise, and not for purpose of dictating or prescribing official duties, but only to ascertain whether he is rightfully entitled to exercise functions claimed. State ex inf. Walsh v. Thatche 102 SW 2d 937, 938:
340 Mo 865.
(emphasis supplied)
81. In Halsbury's Laws of England, 4th Edn., Reissue Vol. I, p. 368, para 265 it is found as follows:
"266. In general - An information in the nature of a quo warranto took the place of the obsolete writ of quo warranto which lay against a person who claimed or usurped an office, franchise, or liberty, to inquire by what authority he supported his claim, in order what the right to the office or franchise might be determined."
(emphasis supplied) W.P.(C)No.37664-2022 14
(iv) In Raju Puzhankara v. Kodiyeri Balakrishnan and Ors. [2009 KHC 244], a Hon'ble Division Bench of this Court held as under:
"5. The next question is whether a Minister is holding a public office, so that a quo warranto writ can be issued, if he is functioning as a Minister without any legal authority. Another incidental question is, even if his initial assumption is valid in law, whether if he subsequently disqualify to hold office, can a writ of quo warranto be issued. There is no dispute that if a Minister is holding his office against law, a quo warranto writ can be issued. In S.R. Chowdhury v. State of Punjab and Ors. [AIR 2001 SC 2707], quo warranto writ was issued by the Supreme Court. In that case, a person who was not a member of the legislative assembly was appointed as Chief Minister. The Hon'ble Supreme Court held that even though under Article 164(4) of the Constitution of India, he can be appointed for an initial period of six months, he cannot be repeatedly continued to hold the office beyond the period of six months and, therefore, after the first six months, he cannot be appointed again and in that particular case quo warranto writ was issued. The Court also noticed that if he is repeatedly appointed to the above post, it will be flouting the constitutional scheme and mandate. In B.R. Kapur v. State of Tamil Nadu and Anr. (AIR 2001 SC 3435), the Hon'ble Supreme Court also held that even if a person is disqualified to become a member of the legislature, he cannot be appointed as a Minister or Chief Minister under the guise of Article 164(4) and a quo warranto writ can be issued to oust such person from office. In that case, Smt. Jayalalitha, who was convicted and sentenced by a Court of law for imprisonment for more than two years, without becoming a member of the Legislative Assembly occupied office of Chief Minister of Tamilnadu by virtue of Article 164(4) of the Constitution. The Apex Court held that if she is not qualified to become a member of the Legislative Assembly, she W.P.(C)No.37664-2022 15 cannot be appointed as a Minister or a Chief Minister. The Hon'ble Apex Court held as follows:
"50. ...The Constitution prevails over the will of the people as expressed through the majority party. The will of the people as expressed through the majority party prevails only if it is in accord with the Constitution. The Governor is functionary under the Constitution and is sworn to 'preserve, protect and define the Constitution and the laws' (Article 159). The Governor cannot, in the exercise of his discretion or otherwise, do anything that is contrary to the Constitution and the laws. It is another thing that by reason of the protection the Governor enjoys under Article 361, the exercise of the Governor's discretion cannot be questioned. We are in no doubt at all that if the Governor is asked by the majority party in the legislature to appoint as Chief Minister a person who is not qualified to be a member of the legislature or who is disqualified to be a member of the legislature or who is disqualified to be such, the Governor must having due regard to the Constitution and the laws, to which he is subject, decline and the exercise of discretion by him in this regard cannot be called in question.
51. If perchance, for whatever reason, the Governor does appoint as Chief Minister a person who is not qualified to be a member of the legislature or who is disqualified to be such, the appointment is contrary to the provisions of Article 164 of the Constitution, as we have interpreted it, and the authority of the appointee to hold the appointment can be challenged in quo warranto proceedings. That the Governor has made the appointment does not give the appointee any higher right to hold the appointment. If the appointment is contrary to the constitutional provisions it W.P.(C)No.37664-2022 16 will be struck down. The submission to be contrary-unsupported by any authority- must be rejected.
52. The judgment of this Court in Shri Kumar Padma Prasad v. Union of India [(1992) 2 SCC. 428] is a case on point. One K.N. Srivastava was appointed a Judge of the Gauhati High Court by a warrant of appointment signed by the President of India. Before the oath of his office could be administered to him, quo warranto proceedings were taken against him in that High Court. An interim order was passed directing that the warrant of appointment should not be given effect to until further orders. A transfer petition was then filed in this Court and was allowed. This Court, on examination of the record and the material that it allowed to be placed before it, held that Srivastava was not qualified to be appointed a High Court Judge and his appointment was quashed. This case goes to show that even when the President, or the Governor, has appointed a person to a constitutional office, the qualification of that person to hold that office can be examined in quo warranto proceedings and the appointment can be quashed.
6. As far as the present case is concerned, the first Respondent was elected as the Member of the Legislative Assembly and he became the Home Minister after complying with all legal formalities. There is no dispute with regard to his initial appointment and there is no contention that he was disqualified under any of the provisions of the enactments or the Constitution. The only contention is that he has violated the oath of secrecy which was taken at the time of assumption of office. The form of oath of office to be taken at the time of assumption of office is as follows:
"I.....swear in the name of God/solemn W.P.(C)No.37664-2022 17 affirm that I will bear true faith and allegiance to the Constitution of India as by law established, that I will uphold the sovereignty and integrity of India, that I will faithfully and conscientiously discharge my duties as a Minister for the (State of Kerala) and that I will do right to all manner of people in accordance with the Constitution and the law without fear or favour, affection or ill-will."
The oath of secrecy to be taken is as follows:
"I.....swear in the name of God/solemnly affirm that I will not directly or indirectly communicate or reveal to any person or persons any matter which shall be brought under my consideration or shall become known to me as a Minister for the (State of Kerala) except as may be required for the due discharge of my duties as such Minister."
In this case, CBI prepared a final report after investigation. Two Government officers and one ex-Minister are arrayed as accused. C.B.I., has sought sanction to prosecute them and the Minister. It is stated in Ext. P-2 paper report that the first Respondent has stated that cases are not new to Pinarayi and they will fight the case politically. According to the Petitioner, by the above statement, the Minister has divulged the information that Pinarayi, an ex- minister, is an accused and thereby violated the oath. The violation of oath of office is a very serious matter. But the questions are whether there is any violation, and even if there is violation of oath, who is the authority to take action and whether writ of quo warranto will lie. When final report was filed levelling charges against an ex-Minister, a spontaneous reaction was made by the first Respondent. Whether such expression by the Home Minister before consideration of the issue by the Cabinet is improper is not a question to be considered by W.P.(C)No.37664-2022 18 us. Impropriety of a statement by the Minister is nonjusticiable. Violation of oath is different from impropriety. In any event, a writ of quo warranto cannot be issued on the ground of impropriety and, in any view, for the impropriety in the conduct of a Minister writ of quo warranto will be issued by the Court sparingly in very special circumstances. It is a discretionary remedy. Even though the CBI has filed charges against the ex-Minister, unless he is found guilty by the Court, he is deemed to be innocent. Prima facie, we are of the opinion that the observations made by the Minister is not a violation of oath. This is only a prima facie opinion, as we are not called upon to give a verdict on that aspect in this proceedings.
7. Even assuming that there is violation of oath, a Full Bench of this Court in K.C. Chandy v. R. Balakrishna Pillai [1985 K.L.T. 762 F.B] held that quo warranto cannot be issued in such situation. The Court held that breach of oath is different from absence of oath and if there is breach of oath, action has to be exercised by the appointing authority under the Constitution. Whether breach of oath of office and of secrecy committed by a minister is outside the judicial review under Article 226 of the Constitution of India. The Full Bench held as follows:
"7. Breach of oath may thus be a betrayal of faith. The appointing authority, the Governor, in such cases, can consider whether there was, in fact, any breach of oath. It is not for this Court to embark on any such enquiry.
8. Breach of oath is different from absence of oath. Absence of oath prevents entry into office while breach affects the continuance after a valid entry. If no oath is taken before assumption of office as enjoined by the Constitution, there is no legal title to hold that office and a writ of quo warranto will naturally go from this Court. Similarly, a Minister, who, for any period of six consecutive months, is not W.P.(C)No.37664-2022 19 a member of the Legislature of the State shall, at the expiration of that period, cease to be a Minister. This is the mandate of Article 164 of the Constitution. A person without authority cannot function; and the jurisdiction under Article 226 could be invoked to prevent that usurper in office from functioning.
9. Breach of oath requires a termination of the tenure of office. This power can be exercised by the appointing authority under the Constitution and according to the procedure, if any, prescribed therein. The termination of that tenure is not the function of a Court; and it would not be appropriate to exercise jurisdiction under Article 226 in such cases. Proceedings under Article 226 in such cases do not lie. It was Jefferson who said:
"Our peculiar security is in the possession of a written Constitution; let us not make it a blank paper by construction.
(Government by Judiciary-Raoul Berger - p.304.)
10. The question as to whether there was breach of oaths of office and of secrecy committed by a Minister is outside judicial review under Article 226 of the Constitution. "
(v) In N. Kannadasan and Ors. v. Ajoy Khose and Ors. [(2009) 7 SCC 1], on the issuance of a writ of quo warranto, the Hon'ble Apex Court held as under:
"148. Concedingly, judicial review for the purpose of issuance of writ of Quo Warranto in a case of this nature would lie:
(A) in the event the holder of a public office was not eligible for appointment;
(B) Processual machinery relating to consultation was not fully complied.W.P.(C)No.37664-2022 20
149. The writ of quo warranto proceedings affords a judicial remedy by which any person who holds an independent substantive public office is called upon to show by what right he holds the same so that his title to it may be duly determined and in the event it is found that the holder has no title he would be directed to be removed from the said office by a judicial order. The proceedings not only give a weapon to control the executive from making appointments to public office against law but also tend to protect the public from being deprived of public office to which it has a right.
150. It is indisputably a high prerogative writ which was reserved for the use of Crown.
151. The width and ambit of the writ, however, in the course of practice, have widened and it is permissible to pray for issuance of a writ in the nature of quo warranto.
152. In Corpus Juris Secundum [74 C.J.S. Quo Warranto § 14], `Quo Warranto' is defined as under:
Quo warranto, or a proceeding in the nature thereof, is a proper and appropriate remedy to test the right or title to an office, and to remove or oust an incumbent.
It is prosecuted by the state against a person who unlawfully usurps, intrudes, or holds a public office. The relator must establish that the office is being unlawfully held and exercised by respondent, and that realtor is entitled to the office.
153. In the Law Lexicon by J.J.S. Wharton, Esq., 1987, 'Quo Warranto' has been defined as under:
QUO WARRANTO, a writ issuable out of the Queen's Bench, in the nature of a writ of right, for the Crown, against him who claims or usurps any office, franchise, or liberty, to enquire by what authority he supports his claim, in order to W.P.(C)No.37664-2022 21 determine the right. It lies also in case of non- user, or long neglect of a franchise, or mis-user or abuse of it; being a writ commanding the defendant to show by what warrant he exercises such a franchise having never had any grant of it, or having forfeited it be neglect or abuse.
154. Indisputably a writ of Quo Warranto can be issued inter alia when the appointment is contrary to the statutory rules as has been held by this Court in High Court of Gujarat v. Gujarat Kishan Mazdoor Panchayat, (supra) and R.K. Jain v. Union of India and Ors. (1993) 4 SCC
119. See also Mor Modern Coop. Transport Society Ltd. v. Financial Commr. & Secy. [2002] SUPP 1SCR 87.
155. In Dr. Duryodhan Sahu and Ors. v. Jitendra Kumar Mishra and Ors. (1998) IILLJ 1013 SC, this Court has stated that it is not for the court to embark upon an investigation of its own to ascertain the qualifications of the person concerned. [See also Arun Singh alias Arun Kr. Singh v. State of Bihar and Ors. AIR 2006 SC 1413 ]
156. We may furthermore notice that while examining if a person holds a public office under valid authority or not, the court is not concerned with technical grounds of delay or motive behind the challenge, since it is necessary to prevent continuance of usurpation of office or perpetuation of an illegality. [See Dr. Kashinath G. Jalmi and Anr. v. The Speaker and Ors. [1993] 2 SCR 820].
157. Issuance of a writ of quo warranto is a discretionary remedy. Authority of a person to hold a high public office can be questioned inter alia in the event an appointment is violative of any statutory provisions.
163. It was held that a Writ of Quo Warranto can be issued even when the President or the Governor had appointed a person to a constitutional office. It was furthermore held that the qualification of that person to hold that office can be examined in a quo warranto proceedings and the appointment can be quashed."
W.P.(C)No.37664-2022 22(vi) In Hari Bansh Lal v. Sahodar Prasad Mahto and Ors. reported in (2010) 9 SCC 655, the Hon'ble Supreme Court held as under:
"10. Writ of quo warranto lies only when appointment is contrary to a statutory provision. In High Court of Gujarat and Anr. v. Gujarat Kishan Mazdoor Panchayat and Ors. (2003) 4 SCC 712, (three-Judges Bench) Hon'ble S.B. Sinha, J. concurring with the majority view held:
"22. The High Court in exercise of its writ jurisdiction in a matter of this nature is required to determine at the outset as to whether a case has been made out for issuance of a writ of certiorari or a writ of quo warranto. The jurisdiction of the High Court to issue a writ of quo warranto is a limited one. While issuing such a writ, the Court merely makes a public declaration but will not consider the respective impact of the candidates or other factors which may be relevant for issuance of a writ of certiorari. (See R.K. Jain v. Union of India, SCC para 74.)
23. A writ of quo warranto can only be issued when the appointment is contrary to the statutory rules. (See Mor Modern Coop. Transport Society Ltd. v. Financial ComMr. & Secy. to Govt. of Haryana)
11. In Mor Modern Cooperative Transport Society Ltd. v. Financial Commissioner & Secretary to Govt. of Haryana and Anr. [(2002) 6 SCC 269], the following conclusion in para 11 is relevant.
"11. ... The High Court did not exercise its writ jurisdiction in the absence of any averment to the effect that the aforesaid officers had misused their authority and acted in a manner prejudicial to the interest of the appellants. In our view the W.P.(C)No.37664-2022 23 High Court should have considered the challenge to the appointment of the officials concerned as members of the Regional Transport Authority on the ground of breach of statutory provisions. The mere fact that they had not acted in a manner prejudicial to the interest of the appellant could not lend validity to their appointment, if otherwise, the appointment was in breach of statutory provisions of a mandatory nature. It has, therefore, become necessary for us to consider the validity of the impugned notification said to have been issued in breach of statutory provision."
12. In B. Srinivasa Reddy v. Karnataka Urban Water Supply and Drainage Board Employees Assn. and Ors. (2006) 11 SCC 731this Court held:
"49. The law is well settled. The High Court in exercise of its writ jurisdiction in a matter of this nature is required to determine, at the outset, as to whether a case has been made out for issuance of a writ of quo warranto. The jurisdiction of the High Court to issue a writ of quo warranto is a limited one which can only be issued when the appointment is contrary to the statutory rules.
It is clear from the above decisions that even for issuance of writ of quo warranto, the High Court has to satisfy that the appointment is contrary to the statutory rules. In the later part of our judgment, we would discuss how the appellant herein was considered and appointed as Chairman and whether he satisfied the relevant statutory provisions.
20. From the discussion and analysis, the following principles emerge:
(a) Except for a writ of quo warranto, PIL is not maintainable in service matters.W.P.(C)No.37664-2022 24
(b) For issuance of writ of quo warranto, the High Court has to satisfy that the appointment is contrary to the statutory rules.
(c) Suitability or otherwise of a candidate for appointment to a post in Government service is the function of the appointing authority and not of the Court unless the appointment is contrary to statutory provisions/rules."
(vii) In Mahesh Chandra Gupta v. Union of India, [(2014) 1 SCC 161] Hon'ble Supreme Court, at paragraph (26), held as under:
"26. ....... writ of quo warranto can be issued only when person holding public office lacks eligibility or when appointment is contrary to statutory rules and held as under in paragraph 21:-
"21. From the aforesaid exposition of law it is clear as noonday that the jurisdiction of the High Court while issuing a writ of quo warranto is a limited one and can only be issued when the person holding the public office lacks the eligibility criteria or when the appointment is contrary to the statutory rules. That apart, the concept of locus standi which is strictly applicable to service jurisprudence for the purpose of canvassing the legality or correctness of the action should not be allowed to have any entry, for such allowance is likely to exceed the limits of quo warranto which is impermissible. The basic purpose of a writ of quo warranto is to confer jurisdiction on the constitutional courts to see that a public office is not held by usurper without any legal authority."
(viii) In Renu and Ors. v. District and Sessions Judge, Tis Hazari and Ors. reported in (2014) 14 SCC 50, the Hon'ble Apex Court held thus:
"15. Where any such appointments are made, W.P.(C)No.37664-2022 25 they can be challenged in the court of law. The quo warranto proceeding affords a judicial remedy by which any person, who holds an independent substantive public office or franchise or liberty, is called upon to show by what right he holds the said office, franchise or liberty, so that his title to it may be duly determined, and in case the finding is that the holder of the office has no title, he would be ousted from that office by judicial order. In other words, the procedure of quo warranto gives the Judiciary a weapon to control the Executive from making appointment to public office against law and to protect a citizen from being deprived of public office to which he has a right. These proceedings also tend to protect the public from usurpers of public office who might be allowed to continue either with the connivance of the Executive or by reason of its apathy. It will, thus, be seen that before a person can effectively claim a writ of quo warranto, he has to satisfy the Court that the office in question is a public office and is held by a usurper without legal authority, and that inevitably would lead to an enquiry as to whether the appointment of the alleged usurper has been made in accordance with law or not. For issuance of writ of quo warranto, the Court has to satisfy that the appointment is contrary to the statutory rules and the person holding the post has no right to hold it. (Vide: The University of Mysore and Anr. v. C.D. Govinda Rao and Anr. (AIR 1965 SC 491); Shri Kumar Padma Prasad v. Union of India and Ors. (AIR 1992 SC 1213); B.R. Kapur v. State of Tamil Nadu and Anr. (AIR 2001 SC 3435); The Mor Modern Co-
operative Transport Society Ltd. v. Financial Commissioner and Secretary to Govt., Haryana and Anr. (AIR 2002 SC 2513); Arun Singh v. State of Bihar and Ors. (AIR 2006 SC 1413); Hari Bansh Lal v. Sahodar Prasad Mahto and Ors. (AIR 2010 SC 3515); and Central Electricity Supply Utility of Odisha v. Dhobei Sahoo and Ors. (2014) 1 SCC 161)."
(ix) In K.D. Prathapan v. State of Kerala and Ors.
W.P.(C)No.37664-2022 26reported in 2015 KHC 606, this Court observed as under:
"34. Before we proceed to examine the above judgments relied on by the learned counsel for the petitioner, it is relevant to note the scope of a writ of quo warranto. In the present Writ Petition petitioner has prayed for issue of writ of quo warranto calling upon respondent No. 4, to show cause before this Court under what authority he is holding the office of Vice Chancellor. Further to quash Ext. P8 by which the State Government has restored respondent No. 4 in the post of Vice Chancellor in obedience of the judgment of the Division Bench dated 30.07.2012 in W.A. No. 347 of 2012. The Constitution Bench of the Apex Court in University of Mysore v. Govinda Rao (MANU/SC/0268/1963 : AIR 1965 SC 491) had occasion to consider the scope of writ of quo warranto. In the above case respondent Govinda Rao had filed a Writ Petition in the High Court under Article 226 of the Constitution praying for issue of a writ of quo warranto calling one Niya Gowda (respondent in the Writ Petition) to show cause as to under what authority he was holding the post of Research Reader in English in the Central College, Bangalore. High Court held that appointment of Niya Gowda was invalid. Appeal was filed by the University. The Constitution Bench examined the content and scope of writ of quo warranto and following was laid down in paragraph 6 and 7:
"6. The judgment of the High Court does not indicate that the attention of the High Court was drawn to the technical nature of the writ of quo warranto which was claimed by the respondent in the present proceedings, and the conditions which had to be satisfied before a writ could issue in such proceedings.
7. As Halsbury has observed:
"An information in the nature of a quo warranto took the place of the obsolete writ of quo warranto which lay against a person who claimed or usurped an office, franchise, or liberty, to enquire by what authority he supported his claim, in order that the right to the office or franchise might be determined."W.P.(C)No.37664-2022 27
Broadly stated, the quo warranto proceeding affords a judicial enquiry in which any person holding an independent substantive public office, or franchise, or liberty, is called upon to show by what right he holds the said office, franchise or liberty; if the inquiry leads to the finding that the holder of the office has no valid title to it, the issue of the writ of quo warranto ousts him from that office. In other words, the procedure of quo warranto confers jurisdiction and authority on the judiciary to control executive action in the matter of making appointments to public offices against the relevant statutory provisions; it also protects a citizen from being deprived of public office to which he may have a right. It would thus be seen that if these proceedings are adopted subject to the conditions recognised in that behalf, they tend to protect the public from usurpers of public office; in some cases, persons not entitled to public office may be allowed to occupy them and to continue to hold them as a result of the connivance of the executive or with its active help, and in such cases, if the jurisdiction of the courts to issue writ of quo warranto is properly invoked, the usurper can be ousted and the person entitled to the post allowed to occupy it. It is thus clear 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 usurper without legal authority, and that necessarily leads to the enquiry as to whether the appointment of the said alleged usurper has been made in accordance with law or not."
35. In Centre For PIL and another (supra), with regard to writ of quo warranto the following was laid down in paragraph 51 which is to the following effect:
"51. The procedure of quo warranto confers jurisdiction and authority on the judiciary to control executive action in the matter of W.P.(C)No.37664-2022 28 making appointments to public offices against the relevant statutory provisions. 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 it is held by a person without legal authority and that leads to the inquiry as to whether the appointment of the said person has been in accordance with law or not. A writ of quo warranto is issued to prevent a continued exercise of unlawful authority."
Thus writ of quo warranto is for a judicial enquiry in which a person holding public office is called upon to show by what right he hold the said office. If the enquiry reaches to the finding that the holder of the office has no valid title the issue of writ of quo warranto will oust him from that office. Court in the proceedings can enquire as to whether appointment of defendant is made contrary to the statutory provisions.
36. The Hon'ble Apex Court in Rajesh Awasthi (supra) has laid down the following in paragraph 19:
"19. A writ of quo warranto will lie when the appointment is made contrary to the statutory provisions. This Court in Mor Modern Coop. Transport Coop.
Transport Society Ltd. v. Govt. of Haryana, [(2002) 6 SCC 269 held that a writ of quo warranto can be issued when appointment is contrary to the statutory provisions. In B. Srinivasa Reddy (supra), this Court has reiterated the legal position that the jurisdiction of the High Court to issue a writ of quo warranto is limited to one which can only be issued if the appointment is contrary to the statutory rules. The said position has been reiterated by this Court in Hari Bans Lal (supra) wherein this Court has held that for the issuance of writ of quo warranto, the High Court has to satisfy that the appointment is contrary to the statutory rules."W.P.(C)No.37664-2022 29
(x) In Premkumar T.R. v. Mahatma Gandhi University and Ors. reported in ILR 2018 (1) Kerala 993, this Court held as under:
"27. Well established is the legal proposition that a writ of quo warranto lies when the appointment is made contrary to the statutory provisions. True, the University and Dr. Sebastian, too, have questioned Premkumar's locus standi to file the writ petition. Dr. Sebastian has, in fact, alleged that Premkumar was fielded by persons unhappy with his appointment as the Vice Chancellor. But this objection to the suitor's standing in a writ of quo warranto cannot detain us for long. Legion are the judicial precedents.
28. If we examine this prerogative writ-- quo warranto--from the judicial perspective of England, the place of its origin, the writ's primary object is to shield the sovereignty of the Crown from invasion, and to prevent abuse of public office, by a usurper or intruder. So every subject is deemed to be interested and may institute quo warranto proceedings.[Halsbury's Laws of England (4th Edn.) Vol. 1, paras 179-80, as quoted in V.G. Ramachandran's Law of Writs, EBC (2006), p. 1355]
29. In India, too, any person may challenge the validity of an appointment to a public office, whether or not that person's fundamental or other legal right has been infringed. But the Court must be satisfied that the person so applying is bona fide, and there is a necessity in public interest to declare judicially that there is a usurpation of public office. [Id., 1355] Indisputably, a writ of quo warranto questioning a usurper's occupying public office, according to the Supreme Court, can be maintained even by a busybody (N. Kannadasan v. Ajoy Khose [(2009) 7 SCC 1 : 2009 (8) SCALE 351]).
30. A citizen can claim a writ of quo warranto, for he stands in the position of a relater. He need not have any special or personal interest. The real test is to see whether the W.P.(C)No.37664-2022 30 person holding the office is authorised to hold the same under law. Delay and laches, according to the Supreme Court in Rajesh Awasthi v.
Nand Lal Jaiswal [AIR 2013 SC 78 : (2013) 1 SCC 501], constitute no impediment for the Court to deal with the lis on merits.
31. In Central Electricity Supply Utility of Odisha v. Dhobei Sahoo [2013 (13) SCALE 477 : AIR 2014 SC 246], the Supreme Court has pointed out that the concept of locus standi, which strictly applies to service jurisprudence, should have no entry, for such allowance is likely to exceed the limits of Quo Warranto. The basic purpose of a Writ of Quo Warranto, it was pointed out, is to confer jurisdiction on the Constitutional Courts to see that the public office is not held by a usurper, a person with no legal authority."
16. Files pertaining to the assessment, by the UPSC, have been produced. In the light of the decisions considered above, the question to be considered is whether this Court can examine, scrutinize the same, and pass appropriate orders on the grounds raised or whether, the files be allowed to be perused, given copies, in order to make submissions on the above. We are of the view that, the former is permissible in law, and therefore, there is no need to grant the prayers sought for.
17. For the reasons stated supra, we are not W.P.(C)No.37664-2022 31 inclined to allow the prayers sought for in I.A.No.4 of 2023, and accordingly, I.A.No.4 of 2023 is dismissed.
Post on 31.03.2023.
Sd/-
S.MANIKUMAR CHIEF JUSTICE Sd/-
MURALI PURUSHOTHAMAN JUDGE SBxxxxxxxx 23-03-2023 /True Copy/ Assistant Registrar