Nikhil Suryakant Badde S/O Suryakant ... vs N B Vaishnav & on 13 September, 2013

[Cites 22, Cited by 0]

Gujarat High Court

Nikhil Suryakant Badde S/O Suryakant ... vs N B Vaishnav & on 13 September, 2013

Bench: Bhaskar Bhattacharya

  
	 
	 NIKHIL SURYAKANT BADDE S/O SURYAKANT NILAPPA BADDE....Appellant(s)V/SN B VAISHNAV
	 
	 
	 
	 
	 
	 
	 
	 
	

 
 


	 


	C/LPA/1070/2012
	                                                                    
	                           CAV JUDGEMNT

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD LETTERS PATENT APPEAL NO. 1070 of 2012 In SPECIAL CIVIL APPLICATION NO. 9051 of 2012 FOR APPROVAL AND SIGNATURE:

HONOURABLE THE CHIEF JUSTICE MR. BHASKAR BHATTACHARYA and HONOURABLE MR.JUSTICE J.B.PARDIWALA ================================================================ 1 Whether Reporters of Local Papers may be allowed to see the judgment ?

To be referred to the Reporter or not ?

Whether their Lordships wish to see the fair copy of the judgment ?

Whether this case involves a substantial question of law as to the interpretation of the Constitution of India, 1950 or any order made thereunder ?

Whether it is to be circulated to the civil judge ?

================================================================ NIKHIL SURYAKANT BADDE S/O SURYAKANT NILAPPA BADDE....Appellant(s) Versus N B VAISHNAV &

2....Respondent(s) ================================================================ Appearance:

MR.VISHWAJEET MOHITE, ADVOCATE for the Appellant(s) No. 1 MR PS CHAMPANERI, ADVOCATE for the Respondent(s) No. 2 MR.VARUN K.PATEL, ADVOCATE for the Respondent(s) No. 1 NOTICE SERVED BY DS for the Respondent(s) No. 3 ================================================================ CORAM:

HONOURABLE THE CHIEF JUSTICE MR. BHASKAR BHATTACHARYA and HONOURABLE MR.JUSTICE J.B.PARDIWALA Date : 13/09/2013 CAV JUDGEMENT (PER : HONOURABLE MR.JUSTICE J.B.PARDIWALA) This appeal under Clause 15 of the Letters Patent is at the instance of an unsuccessful writ-applicant of SCA No. 9051 of 2012, and is directed against the judgment and order dated 9th July, 2012, passed by a learned Single Judge of this Court, by which His Lordship rejected the writ-application.

2. The facts leading to the filing of the present appeal may be summarized as under:-

2.1 The appellant was in service as an Assistant Professor in the National Institute of Fashion Technology, Gandhinagar from 7th November, 2007.

He was transferred from Gandhinagar and ultimately, the services were terminated on 20th August, 2010. The appellant challenged the order of transfer and termination before the Central Administrative Tribunal at Ahmedabad and the proceedings on today are pending with the CAT.

2.2 According to the appellant, the respondent No.1 was transferred from NIFT, Kannur to NIFT, Gandhinagar as a Joint Director. The respondent No.2, at the relevant point of time, an ex-Director General, NIFT is currently posted to the Ministry of Broad Casting Department. The respondent No.3 is the appointing authority of the respondent Nos. 1 and 2. The respondent No.3 is an autonomous body affiliated with the Ministry of Textiles, Government of India. The NIFT is a premier institute in design for fashion technology and management in India. According to the appellant, the respondent No.3 is amenable to the orders, notifications and the rules made by the Government of India and hence, is an instrumentality of the State as envisaged under Article 12 of the Constitution.

2.3 According to the appellant, the respondent No.1 came to be appointed as a Deputy Registrar of the NIFT, Gandhinagar, on 16th May, 2008, without issuance of any advertisement at the end of the NIFT for filling up of the post, but altogether in a different manner and method of inviting offers from the public sector undertakings. In almost 36 public sector undertakings, the letters were sent in the various Departments to call for the applications for the post of Deputy Registrar on deputation.

2.4 According to the appellant, the appointment of the respondent No.1 for the post of Deputy Registrar on deputation was clearly in contravention of the Government Service Rules. The respondent No.1 received a pay-scale of a Registrar (instead of a Deputy Registrar's pay-band). It is also the case of the appellant that the respondent No.1 should not have been appointed as a Deputy Registrar owing to the miserable lack of academic experience. The respondent No.1 does not possess the minimum qualifications required to hold the post of Deputy Registrar (F&A) in NIFT. According to the appellant, the minimum requirement to hold the post of the Deputy Registrar is a Post Graduation degree in management with at least ten years work experience in Relations and Personnel Management or Academic Administration. The respondent No.1 does not even fulfil the age requirement and was almost over aged by five years at the time of his appointment.

In such circumstances, the appellant thought fit to file a writ-application being SCA No. 9051 of 2012 and prayed for the following relief:-

a] issue a writ of 'quo warranto' and or issue an appropriate writ, order or direction, within the plenary and inherent powers envisaged under Article 226 of the Constitution of India, as against the respondent no. 1 and thereby, upon coming to the conclusion that the appointment of the Respondent is irregular/backdoor entry, may kindly forthwith direct the Respondent no. 1 to vacate the post/ service in NIFT.

[b] pending the hearing and final disposal of this writ petition, the further promotions /absorption of the Respondent no. 1 be stayed.

[c] Issue appropriate writ, and or directions against the respondent no. 1 upon, coming to the conclusion that the post held by the Respondent no. 1 is irregular / backdoor entry, further direct the Respondent no. 1 to repay back to NIFT all the remunerations and or salary taken from NIFT till date, post and irregular appointment;

[d] adinterim relief in terms of prayer clause (b) above;

[e] & [f] ...........

3. The learned Single Judge, vide order dated 9th July, 2012, thought fit to reject the writ-application summarily. His Lordship while rejecting the writ-application, observed as under:-

"2.

Heard learned counsel for the petitioner and perused the documents on record. Without entering into the controversy as to whether a writ is maintainable against respondent no. 3 Institute, it is required to be noted that the petitioner herein has made serious allegation against respondent no. 1 herein who is at present serving on the post of Registrar in respondent no. 3 Institute. The question whether the initial appointment of respondent no. 1 was as per the relevant rules of the Institute could be gathered from the Establishment Manual of respondent no. 3 Institute, more particularly, from the details at Serial No. 8 of the Recruitment Rules for Administrative Staff. In Column 13 of Serial No. 8, it has been provided that the appointment to the post of Deputy Registrar could be made on deputation of the officers working in the Central Government/State Government/UT/Autonomous organization/ PSUs holding analogous posts on regular basis in their cadre/department or with atleast 5 years of service in the scale of Rs.8000-275-13500 with relevant experience in dealing with Establishment and Administrative matters. It appears that respondent no. 1 was serving in a State Corporation and since he was fulfilling requisite criteria he was appointed on the post of Deputy Registrar initially and was later promoted to the post of Registrar. I do not find the appointment of respondent no. 1 on the said post to be contrary to the prevailing Rules of respondent no. 3 Institute. In my opinion, the present petition has been preferred out of vendetta since it was during the service tenure of respondent no. 1 Institute, though serious charges were made against the petitioner herein."

4. Feeling dissatisfied, the appellant has come up with this appeal.

5. Stance of the respondent No.1:

According to the respondent No.1, the petition was preferred with an oblique motive to settle a personal score and to malign the Institute. The respondent No.1 was appointed as a Deputy Registrar (F&A) on deputation at NIFT, Gandhinagar on 16th May, 2008, and thereafter, was taken on deputation as a Registrar on 15th July, 2009. Subsequently, vide order dated 1st September, 2010, he was absorbed on the post of Registrar. The petition was filed challenging the appointment of the respondent No.1 in July, 2012 and therefore, according to the respondent No.1, there was a gross and inordinate delay of more than four years in challenging the initial appointment of the respondent No.1 as a Deputy Registrar and almost two years in challenging the appointment as the Registrar.

5.2 According to the respondent No.1, the statute regulating the appointment of the staff is governed by the provisions of the National Institute of Fashion Technology Act, 2006. The first statute of the National Institute of Fashion Technology, 2012 came into force with effect from 11th April, 2012, vide Notification of the Government of India, published in the Gazette No.85 dated 11th November, 2012. Prior thereto, all the appointments were made in accordance with the Rules framed earlier by NIFT when it was a Society. The said Rules were non-statutory in character. The appointment of the respondent No.1 was initially as a Deputy Registrar (F&A) on deputation and the subsequent appointment as Registrar on deputation was made much before the statutory rules came into force.

5.3 According to the respondent No.1, in such circumstances a writ of quo warranto would not be maintainable. It is also the case of the respondent No.1 that he was selected and appointed to the post of Public Relations Officer by way of direct recruitment in the Gujarat State Civil Supplies Corporation Limited on 30th June, 1984. He was thereafter promoted as a Manager (Commercial), Class-I cadre on 9th December, 1989. The said post carried the basic scale of Rs. 8,000-14,050 in Class I cadre. The respondent No.1 worked as a Manager at the Head Office of the Corporation at Gandhinagar and also as a City Manager, Ahmedabad City. It is also his case that while in service of the Corporation, he had worked in many branches and departments such as Company Secretary, Administration including Public Relations, Labour and Transport Contracts, Purchase, Storage and distribution of grains, pulses and edible oils. In or around 2007, many posts in NIFT were vacant. The NIFT vide letter dated 8th January, 2008 had requested around 36 public sector undertakings in the State of Gujarat to send a panel of eligible officers who were willing to seek appointment at Gandhinagar on deputation basis. The posts for which the names were called included the post of Deputy Registrar. The parent organization of the respondent No.1, namely GSCSC forwarded the resume of the respondent No.1 to the NIFT with the vigilance clearance certificate.

5.4 The respondent No.1, thereafter, was interviewed for the post of Deputy Registrar. He was selected for appointment on deputation basis for the post of Deputy Registrar (F&A). The parent organization was accordingly informed about the selection of the respondent No.1 to the post of Deputy Registrar vide letter dated 21st April, 2008 on deputation basis for a period of 3 years with a request to the parent organization to relieve the respondent No.1 from service so as to enable him to join the service of NIFT on deputation.

5.5 When the respondent No.1 was working as a Deputy Registrar (F&A) on deputation basis with the NIFT, the post of Registrar was already vacant since 2008. The Director, NIFT, Gandhinagar forwarded a proposal to the Director General, NIFT, New Delhi in December, 2008 for considering the appointment of the respondent No.1 as a Registrar on deputation basis considering his twenty years of experience in Class-I cadre in GSCSC Limited and also the pay-scale. In the meantime, the NIFT issued advertisement of 1/09 for the post of Registrar. The respondent No.1 applied for the said post through a proper channel on 9th March, 2009 and was called for interview along with other candidates at the Head Office of the NIFT, New Delhi. The respondent No.1 was thereafter, selected and appointed as the Registrar on deputation basis vide office order dated 15th July, 2009. The respondent No.1, while working as a Registrar on deputation basis, was informed by the parent organization GSCSC to seek repatriation and join the services.

In the wake of such development, the respondent No.1 preferred a representation to the Director General, NIFT, New Delhi, requesting him either to permanently absorb him in NIFT on the post held by the respondent No.1 on deputation or alternatively repatriate him to his parent organization. The proposal of the respondent No.1 for being absorbed on permanent basis was considered and NIFT called for a no objection certificate from the parent organization. The issue regarding the permanent absorption of the respondent No.1 on the post of Registrar was placed before the selection committee of the NIFT, New Delhi on 14th July, 2010 and in its meeting held on 14th July, 2010, decided to absorb the respondent No.1 on the post of Registrar on a permanent basis. It is the case of the respondent No.1 that the allegations levelled by the appellant that the respondent No.1 is not possessing the requisite qualifications to hold the post are wholly baseless and irrelevant. According to the respondent No.1, one of the modes of appointment is by way of deputation. The allegations of favouratism have also been denied. The respondent No.1 has clarified that all the posts of Registrar in 15 different centers of NIFT across the country have been redesignated as the Joint Director without any additional monetary benefits. In the same manner, the Asstt. Registrars are redesignated as Asstt. Directors and the Dy. Registrars are redesignated as the Deputy Directors in all the campuses.

6. Stance of the respondent No.3:

6.1 According to the respondent No.3, the petition was rightly rejected by the learned Single Judge and no error, not to speak of any error of law could be said to have been committed by the learned Single Judge, warranting any interference in this appeal. The National Institute of Fashion Technology was originally an institution registered under the provisions of the Societies Registration Act, 1860 in the year 1986, and started functioning in a campus at Delhi. By passage of time, it expanded its operation by opening centers at different places under its constitution. A legislation namely, "National Institute of Fashion Technology Act, 2006" was enacted by the Parliament. As on today, there are fifteen different centers located through out the country. After the enactment of the Act, 2006, since the relevant statutes were not framed under Section 25 of the Act, the Institute was governed by the Rules and Regulations provided under the Establishment Manual, which was approved by the Board of Governors (constituted under Section 3(3) of the NIFT Act, 2006), in its 1st BOG meeting held on 16th April, 2007. The recruitment Rules came to be approved by the Board as empowered under Section 7 (2)(f) of NIFT Act, 2006. In exercise of the powers conferred by sub-section (1) of Section 25 of the NIFT Act, 2006, the Board with the previous approval of the Visitor i.e. President of India, framed the first statute of the NIFT. According to the respondent No.3, the appointment of the respondent No.1 was in no manner contrary to the statutory provisions. The statute regulating the appointment of the staff in accordance with the provisions of Sections 23, 24 and 25 of the Act, 2006 were framed, called "the First Statute of National Institute of Fashion Technology, 2012", which came into force with effect from 11th April, 2012, by Notification of the Government of India, published in Gazette No.85 dated 11th April, 2012. The NIFT had issued letters in January, 2008 to various Boards and Corporations of the Government of Gujarat, with a request to forward a panel of eligible and willing officers for appointment on various posts on deputation basis in the NIFT. One of the posts mentioned by the NIFT in its letter was of Deputy Registrar (now designated as 'Deputy Director') with eligible criteria as under:-

"Officers of the Central Government/State Government/ Autonomous organizations/PSUs/analogous posts on regular basis in their cadre/department or with at least 5 years service in the scale of Rs. 8000-275-13500 with relevant experience in dealing with Accounts, Establishment and Administrative matters".

6.2 According to the respondent No.3, when the case of the respondent No.1 for appointment on deputation basis to the post of Registrar was considered, the respondent No.1 was fulfilling the requirement of working in the State Government undertaking as an Officer with more than 20 years of experience. So far as the aspect of the pay-scale is concerned, i.e. Rs. 10,000-325-15,200, the basic pay of the respondent No.1 while working in the parent organization i.e. GSCSC Limited was Rs. 12,000-375-16,500. According to the respondent No.3, the case of the petitioner that the respondent No.1 does not possess the requisite qualification to hold the post is also without any basis and an incorrect statement. One of the methods of appointment is by way of deputation from the Central Government, State Government, U.T, Autonomous organization, Public Sector undertakings with five years of experience in the pay-scale of Rs. 10,000-325-15,200 with relevant experience in dealing with establishments and administrative matter.

7. Submissions on behalf of the appellant:-

7.1 Mr. Vishwajeet Mohite, the learned Advocate appearing for the appellant submitted that the learned Single Judge committed an error in presuming that the respondent No.1 was serving as a Registrar, whereas the learned Single Judge ought to have taken into consideration the case of the appellant that the respondent No.1 was serving as a Joint Director. Mr. Mohite submitted that while passing the impugned order, the learned Single Judge patently erred in construing the provisions of the statutory rules pertaining to deputation, vis-a-vis the qualification of the respondent No.1 for the post of Deputy Registrar on deputation and also for the promotion to the post of Registrar on deputation. Mr. Mohite led much emphasis on the word 'deputation' mentioned in column No.13 of the NIFT Establishment Rules, while submitting that the provisions as contained in the Recruitment Rules i.e. so far as the post of Deputy Registrar (F&A) is concerned, could not be read in isolation as suggested by the respondents. According to Mr. Mohite, the respondent No.1 does not possess a Post Graduation degree in management with at least ten years work experience in Public Relations and Personnel Management or Academic administration.

In such circumstances referred to above, Mr. Mohite prays that since the respondent No.1 has no authority to hold the public office, the petition deserves to be allowed and the order of appointment consequently be quashed and set aside.

8. Mr. K.M. Patel, the learned Senior Advocate appearing with Mr. Varun K. Patel for NIFT submitted that no error, not to speak of any error of law, could be said to have been committed by the learned Single Judge in rejecting the writ-application in limine, warranting any interference at the hands of this Court in this appeal. According to Mr. Patel, the respondent No.1 is fully qualified to hold the post and the contention of the learned counsel appearing for the appellant that to hold the post of Deputy Registrar (F&A), now redesignated as Joint Director, the requirement of being a Cost Accountant from the Institute of Cost and Works Accountants or Chartered Accountant from the Institute of Chartered Accountants with five years experience after passing the examination in the cadre of Accounts Officer/Audit Officer is not necessary as the same would be applicable only if the appointment is by way of direct recruitment. For appointment on deputation, a candidate should be an Officer of the Central Government, State Government, U.T, Autonomous Organization or a Public Sector Undertaking possessing the essential qualifications and holding analogous post on regular basis in their service/department with at least five years of service in the scale of Rs. 8,000-13,500. Thus, according to Mr. Patel, the petition itself was misconceived as the same was filed without verifying the exact qualifications required to hold the post.

9. Mr. Patel also submitted that the appeal deserves to be dismissed solely on the ground that there was a gross and inordinate delay on the part of the appellant in challenging the appointment. Mr. Patel submitted that the respondent No.1 was appointed as Deputy Registrar on 16th May, 2008. The respondent No.1 was thereafter, promoted to the post of Registrar (now redesignated as Joint Director) on 15th July, 2009. Thereafter, vide office order dated 1st September, 2010, the respondent No.1, who was working on deputation as Registrar NIFT, Gandhinagar was permanently absorbed as Registrar in NIFT, Gandhinagar. The petition was filed on 24th August, 2012. Thus, according to Mr. Patel, the petition was filed after almost a period of four years from the date of the initial appointment of the respondent No.1 as Deputy Registrar of NIFT at Gandhinagar.

Mr. Patel, in such circumstances, prays that there being no merit in this appeal, the same may be dismissed.

10. Having heard the learned counsel appearing for the parties, and having gone through the materials on record, the questions that fall for our determination in this appeal are as under:-

(a) Whether the appeal deserves to be dismissed solely on the ground of delay in filing the writ-application challenging the appointment of the respondent No.1 on the post of Deputy Registrar, NIFT, Gandhinagar?

(b) Whether the respondent No.1 holding the post of Joint Director, NIFT, Gandhinagar, which is a public office, is qualified to hold the post?

(c) Whether the learned Single Judge committed any error in rejecting the writ-application?

11. Before we proceed to answer the three questions framed by us, we may profitably look into the few relevant provisions of the National Institute of Fashion Technology Act, 2006 and the Recruitment Rules for the administrative staff, including the eligibility requirements for the post on contract/deputation basis.

The National Institute of Fashion Technology Act, 2006 was enacted to establish and incorporate the National Institute of Fashion Technology for the promotion and development of education and research in fashion technology, and for matters connected therewith and incidental thereto. Section 2(k) reads as under:-

2.

In this Act, unless the context otherwise requires, --

(a) .... to (j) ......

(k) 'Statutes' and 'Ordinances" mean respectively the Statutes and the Ordinances of the Institute made under this Act."

The functions of the Institute shall be --

(i) .... to (iv) ......

(v) to co-operate with educational or other institutions in any part of the world having objects wholly or partly similar to those of the Institute by exchange of faculty members and scholars and generally in such manner as may be conducive to their common objective;

The powers of the Board are as under:-

7. (1) Subject to the provisions of this Act, the Board, under overall control of the Central Government, shall be responsible for the general superintendence, direction and control of the affairs of the Institute and shall exercise all the powers not otherwise provided for by this Act, the Statutes and the Ordinances, and shall have the power to review the acts of the Senate.

(2)

Without prejudice to the provisions of sub-section(1), the Board shall -

(a) .... to (e) ......

(f) institute academic and other posts and to make appointments thereto (except in the case of the Director-General);

Section 16 reads as follows:-

"16. (1) The Registrar of the Institute shall be appointed on such terms and conditions as may be laid down by the Statutes and shall be the custodian of records, the common seal, the funds of the Institute and such other property of the Institute as the Board shall commit to his charge.

(2)

The Registrar shall act as the Secretary of the Board, the Senate and such committees as may be prescribed by the Statutes.

(3)

The Registrar shall be responsible to the Director-General for the proper discharge of his functions.

(4)

The Registrar shall exercise such other powers and perform such other duties as may be assigned to him by this Act or the Statutes or by the Director-General. "

Section 23 reads as follows:-

23.

All appointments of the staff of the Institute, except that of the Director-General, shall be made in accordance with the procedure laid down in the Statutes by -

(a) the Board, if the appointment is made on the academic staff in the post of Assistant Professor or above or if the appointment is made on the non-academic staff in any cadre, the maximum of the pay-scale for which is the same or higher than that of Assistant Professor, and

(b) the Director-General, in any other case.

Sections 24 and 25 read as under:-

"24.

Subject to the provisions of this Act, the statutes may provide for all or any of the following matters, namely:-

(a) the formation of departments of teaching;

(b) the institution of fellowships, scholarships, exhibitions, medals and prizes;

(c) the classification, the method of appointment and the determination of the terms and conditions of service of officers, teachers and other staff of the Institute;

(d) the reservation of posts for the Scheduled Castes, the Scheduled Tribes and other backward categories of persons as may be determined by the Central Government;

(e) the constitution of pension, insurance and provident funds for the benefit of the officers, teachers and other staff of the Institute;

(f) the constitution, powers and duties of the authorities of the Institute;

(g) the establishment and maintenance of halls and hostels;

(h) the manner of filling up of vacancies among members of the Board;

(i) the authentication of the orders and decisions of the Board;

(j) the meeting of the Senate, the quorum at such meetings and the procedure to be followed in the conduct of their business; and

(k) any other matter which by this Act is to be or may be prescribed by the Statutes.

25. (1) The first Statutes of the Institute shall be framed by the Board with the previous approval of the Visitor and a copy of the same shall be laid as soon as may be before each House of Parliament.

(2) The Board may, from time to time, make new or additional Statutes or may amend or repeal the Statutes in the manner hereafter in this section provided.

(3) Every new Statute or addition to the Statute or any amendment or repeal of a Statute shall require the previous approval of the Visitor who may assent thereto or withhold assent or remit it to the Board for consideration;

(4) A new Statute or a Statute amending or repealing an existing Statute shall have no validity unless it has been assented to by the Visitor.

Section 33 reads as under:-

33.

Notwithstanding anything contained in this Act -

(a) ......

(b) until the first Statutes and the Ordinances are made under this Act, the rules and regulations, instructions and guidelines of the Society as in force, immediately before the commencement of this Act, shall continue to apply to the Institute in so far as they are not inconsistent with the provisions of this Act.

12. The recruitment rules for the post of Deputy Registrar(F&A) relied upon by the appellant is as under:-

"Recruitment Rules for Administrative Staff S. NO.

Name of the post No. of post Classification Pay-scale Whether selection post or non-selection post Whether benefits of added years of services admissible under rule 30 of the CCS Age limit for direct recruitment Educational qualifications and experience for direct recruitment Whether age and educational qualifications prescribed for direct recruits will apply in the case of promotion period of probation if any Method of recruitment whether by direct recruitment or by promotion or by deputation/transfer and percentage of the post to be filled by various methods In case of recruitment by promotion/deputation or transfer grades from which promotion / deputation or transfer to be made the composition for DPC and for selection Committee for direct recruitment/deputation Circumstances in which UPSC is to be consulted in making recruitment 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 1 Director General 1 Group A 18400-500-22400

-

Appointment by Government of India

-

2 3 4 5 6 7 8 9

Deputy Registrar

-

Group A 10000-325-15200 Selection selection process will include personal interview by selection committee NA 30-45 Years (Maximum age limit may be relaxed upto 5 years in case of NIFT employees and deserving candidate s possessing higher educational qualifications/experience Cost Accountant from the Institute of Cost & Works Accountants or Chartered Account from the Institute of Chartered Accountants. With 5 years experience after passing the examination in the cadre of Accounts Officer/Audit/Officer out of which 3 years of experience in a senior position from a government, autonomous body/Institutions, or a reputed industry. Desirable:ii)Be an Associate Member of Company Secretary.

NA 2 Years Promotion failing which by deputation as per requirement in Col(12) failing which by direct Recruitment with qualifications prescribed in col.(8) Promotion:Accounts Officer recruitted/promoted as per prevailing GSR with at least 5 years experience in the grad. Deputation:Officers of the Central Govt/State Govt./UT/Autonomous Organisation/Psus holding analogous posts on regular basis in their cadre/department or with atleast 5 years of service in the scale of Rs. 8000-275-13500 with relevant experience in dealing with Finance &Accounts (A)Director General-NIFT(B)2Members of Board of Governors of NIFT(C)2 Expert s.

13. Therefore the first question that arises for our consideration is, whether we should dismiss this appeal solely on the ground that there was a delay of around four years in filing the writ-application challenging the appointment of the respondent No. 1 on the post of the Deputy Registrar, NIFT?

14. The writ of quo warranto proceedings affords a judicial remedy by which any person who holds 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.

15. Issuance of writ of quo warranto is a discretionary remedy. The Authority of a person to hold a high public office can be questioned inter alia at any point of time in the event an appointment is violative of any statutory provisions. If a genuine petition for a writ of quo warranto is rejected solely on the ground of delay, then it necessarily means that such a person would continue to hold such a public office regardless of the right of such a person to hold such an office. We are, therefore, of the view that on technical grounds of delay or laches, a petition for writ of quo warranto may not be straight way rejected. The position of law in this regard also appears to be very well-settled. We may profitably quote the decision of the Supreme Court in the case of N. Kannadasan v. Ajoy Khose and others, reported in (2009) 7 SCC-1. In paragraph 134 a two Judge Bench of the Supreme Court held as under:-

134.

Indisputably a writ of Quo Warranto canbe 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 , [ (1993) 4 SCC 119 ]. See also Mor Modern Coop. Transport Society Ltd. v. Financial Commr. & Secy. [(2002) 6 SCC 269]. In Dr. Duryodhan Sahu and Others v. Jitendra Kumar Mishra and Others [(1998) 7 SCC 273], 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 Others (2006) 9 SCC 375] 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 Another v. The Speaker and Others (1993) 2 SCC 703].

16. In the case of N. Kannadasana (supra), the Bench has referred to the judgment of Dr. Kashinath G. Jalmi v. The Speaker and others, reported in (1993) 2 SCC 703. We shall also look into this judgment in the case of Kashinath Jamli. A Three Judge Bench of the Supreme Court in Kashinath Jalmi (supra) held in paragraphs 33, 34 and 35 as under :

33.

In our opinion, the position remains the same. Emphasis in these decisions is on public interest and good administration, and the jurisdiction of the Court to extend time in suitable cases for making such an application. In Caswell, the House of Lords took into account the larger public interest for the view that the interest of good administration required non-interference with the decision which was challenged after a lapse of a considerable time, since any interference at that stage, when third party interests had also arisen, would be detrimental to good administration.

34. In our opinion the exercise of discretion by the court even where the application is delayed, is to be governed by the objective of promoting public interest and good administration; and on that basis it cannot be said that discretion would not be exercised in favour of interference where it is necessary to prevent continuance of usurpation of office or perpetuation of an illegality.

35. We may also advert to a related aspect. Learned counsel for the respondents were unable to dispute, that any other member of the public, to whom the oblique motives and conduct alleged against the appellants in the present case could not be attributed, could file such a writ petition even now for the same relief, since the alleged usurpation of the office is continuing, and this disability on the ground of oblique motives and conduct would not attach to him. This being so, the relief claimed by the appellants in their writ petitions filed in the High Court being in the nature of a class action, without seeking any relief personal to them, should not have been dismissed merely on the ground of laches. The motive or conduct of the appellants, as alleged by the respondents, in such a situation can be relevant only for denying them the costs even if their claim succeeds, but it cannot be a justification to refuse to examine the merits of the question raised therein, since that is a matter of public concern and relates to the good governance of the State itself.

17. Thus, the cause of action for a writ of quo warranto is de dei in dium . In other words, the usurper's continuance in office affords a fresh cause of action every day and each hour till he is ousted. There is, therefore, no question of delay so far as this writ is concerned. The petition for issuance of writ of quo warranto cannot be dismissed only on the ground of delay.

18 In light of the settled position of law, we reject the first contention of Mr. Patel, the learned Senior Advocate appearing for the respondent No.3, that the appeal deserves to be dismissed solely on the ground of delay and laches.

19. We may only clarify one important aspect in this regard. A writ of quo warranto is not a 'writ of course'. It is largely at the discretion of the Court to grant or refuse the relief considering the facts and circumstances of the case. Delay or laches can be one of the grounds along with other grounds, if any, for refusing the prayer for issuance of writ of quo warranto.

20. The above takes us to consider the second and the principal question, whether the respondent No.1 is qualified to hold the post of Deputy Registrar, NIFT now redesignated as Joint Director.

It is a settled law that before a writ of quo-warranto can be issued, the following conditions must be satisfied:-

(a) the office must be of a public nature:

(b) the office must have been created by larger statute or constitution:

(c) the office must be of a substantive character, and

(d) the holder must have been in actual occupation of the office.

21. We shall now proceed to consider the scope and ambit of writ of quo warranto.

22. Quo warranto is a judicial remedy against an intruder or usurper of an independent substantive public office or franchise or liberty. The usurper is asked 'by what authority' (quo warranto) he is in such office, franchise or liberty. A writ of quo warranto thus poses a question to the holder or occupier of a public office, and that question is : Where is your warrant of appointment by which you are holding this office ? If the answer is not satisfactory, the usurper can be ousted by this writ.

23. The writ of quo warranto is an ancient Common Law remedy of a prerogative nature. It was a writ of right used by the Crown against a person claiming any office, franchise or liberty to inquire by what authority he was in the office, franchise of liberty. In case his claim was not well founded there was non-use, neglect, misuse or abuse of the office, he was to be ousted.

24. Quo warranto is a writ that lies against a person who usurps any franchise, liberty or office.

In Corpus Juris Secundum, quo warranto is defined thus;

Quo warranto is a proceeding to determine the right to the exercise of a franchise or office and o oust the holder if his claim is not well founded, or if he has forfeited his right.

Blackstone, states : The ancient writ of quo warranto was in the nature of a writ of right for the King against any office, franchise or liberty of the Crown to inquire by what authority he supported his claim, in order to determine the right.

Quo warranto is a remedy or procedure whereby the State inquires into the legality of the claim which a party asserts to an office or franchise, and to oust him from its enjoyment if the claim be not well founded, or to have the same declared forfeited and recover it, if, having once been rightfully possessed and enjoyed; it has become forfeited for mis-user or non-user.

25. In B.R. Kapur v. State of T.N. [(2001) 7 SCC 231 : AIR 2001 SC 3435], after referring to Halsbury's Laws of England, Words and Phrases and leading decisions on the point, it was observed that a writ of quo warranto is a writ which lies against the person who is not entitled to hold an office of public nature and is only a usurper of the office. Quo warranto is directed to such person who is required to show by what authority he is entitled to hold the office. The challenge can be made on various grounds, including the ground that the possessor of the office does not fulfill the required qualifications or suffers from any disqualification, which debars him to hold such office. It was further stated that on being called upon to establish valid authority to hold a public office, it such person fails to do so, a writ of quo warranto shall be directed against him. It shall be no defence by the holder of the office that the appointment was made by the competent authority, who under the law is not answerable to any court for anything done in performance of duties of his office. The question of fulfilling legal requirements and qualifications necessary to hold a public office would be considered in the proceedings independent of the fact as to who made the appointment and the manner in which the appointment was made.

26. Any person may challenge the validity of an appointment of a public office, whether any fundamental or other legal right of his has been infringed or not. 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 an usurpation of public office. If the application is not bona fide and the applicant is a mere pawn or a man of straw in the hands of others, he cannot claim the remedy. Though the applicant may not be an aspirant for the office nor has any interest in appointment, he can apply as a private relator, or an ordinary citizen.

27. In Dr. B. Singh vs. Union of India and Others, (2004) 3 SCC 363, Supreme Court held that only a person who comes to the Court with bonafides and public interest can have locus. Coming down heavily on busybodies, meddlesome interlopers, wayfarers or officious interveners having absolutely no public interest except for personal gain or private profit either of themselves or as a proxy of others or for any other extraneous motivation or for glare of publicity, the Supreme Court at para 14 of the report held as under :

"The court has to be satisfied about: (a) the credentials of the applicant; (b) the prima facie correctness or nature of information given by him; and (c) the information being vague and indefinite. The information should show gravity and seriousness involved. Court has to strike a balance between two conflicting interests: (i) nobody should be allowed to indulge in wild and reckless allegations besmirching the character of others; and (ii) avoidance of public mischief and to avoid mischievous petitions seeking to assail, for oblique motives, justifiable executive actions. In such case, however, the court cannot afford to be liberal. It has to be extremely careful to see that under the guise of redressing a public grievance, it does not encroach upon the sphere reserved by the Constitution to the executive and the legislature. The court has to act ruthlessly while dealing with imposters and busybodies or meddlesome interlopers impersonating as public spirited holy men. They masquerade as crusaders of justice. They pretend to act in the name of pro bono publico, though they have no interest to the public or even of their own to protect.

28. In our opinion, one of the most important conditions which the person seeking a writ of quo warranto must satisfy is that the office in question is a public office and the same is of a public nature. If this condition is satisfied, only in such a case the Court may proceed further to inquire as to whether the appointment to the public office is really in violation of statutory rules and regulations or any provision of law. In the present case, according to the appellant, the office of the Joint Director, NIFT is a public office and the Joint Director, NIFT discharges the public functions. To examine this question, we need to understand the true meaning of the word public office . Public Office has not been defined under the Act of 1949. Public Office as explained by the Major Law Lexicon 4th Edition 2010 is as under:

Public Office defined. 55-6 V. c.40 S.4 A position whose occupant has legal authority to exercise a government's sovereign powers for a fixed period.

Position involving exercise of governantal functions [S.6(f), T.P. Act (4 of 1882)]; an office where public business is transacted. [O.XIII, R.5(2), CPC (5 of 1908)].

A public office is the right, authority and duty created and conferred by law, by which an individual is vested with some portion of the sovereign functions of the government to be exercised by him for the benefit of the public, for the term and by the tenure prescribed by law. It implies a delegation of a portion of the sovereign power. It is a trust conferred by public authority for a public purpose, embracing the ideas of tenure, duration, emoluments and duties.. .. The determining factor, the test, is whether the office involves a delegation of some of the solemn functions of government, either executive, legislative or judicial, to be exercised by the holder for the public benefit. (72 CWN 64, Vol.72). [Extraordinary Legal Remedies, by Ferris as referred in V.C. Shukla v. State (Delhi Adm.), (1980) Supp SCC 249, 266 para 26] In Re Miram's (1891) IQB 594 Cave. J,. Said to make the Office a Public Office the pay must come out of national and not out of local funds, - the Office must be public in the strict sense of that term. It is not enough that the due discharge of the duties should be for the public benefit in a secondary and and remote sense.

29. According to the Black's Law Dictionary 6th Edition, the term Public Office is explained as under :

Public Office. Essential characteristics of public office are (1) authority conferred by law, (2) fixed tenure of office, and (3) power to exercise some portion of sovereign functions of government; key element of such test is that officer is carrying out sovereign function. Spring v. Constantino, 168 Conn. 563, 362 A.2d 871, 875. Essential elements to establish public position as public office are position must be created by constitution, legislature, or through authority conferred by legislature, portion of sovereign power of government must be delegated to position, duties and powers must be defined, directly or impliedly, by legislature or through legislative authority, duties must be performed independently without control of superior power other than law, and position must have some permanency and continuity. State ex rel. Eli Lilly and Co. v. Gaertner, Mo.App., 619 S.W. 2D 761. 764.

30. Winfield on pages 463 to 478 of Volume LXI of the Law Quarterly Review. On page 464 the learned author poses the question, what is a Public Office and proceeds, Setting aside statutory definitions of interpretations thereof, two judicial explanations are as follows :

In 1828, Best, C.J. described a Public Officer as every one who is appointed to discharge a public duty, and receives a compensation in whatever shape, whether from the Crown or otherwise. In 1914, Lawrence, J. said : A public officer is an officer who discharges any duty in the discharge of which the public are interested, more clearly so if he is paid out of a fund provided by the public. Best, C.J. lays too much emphasis on remuneration of some sort, for some public officers discharge their duties gratuitously; e.g. the Lord-Lieutenant of a country or a Justice of the Peace; and both definitions use the very word which they purport to explain. However, the chief characteristics of a public office seem to be that it is a post the occupation of which involves the discharge of duties towards the community or some section of it and that usually those duties are connected with Government, whether central or local.

31. The author repeats these views in his text book of the Law of Tort, on page 614 of the third edition;

The chief characteristics of a 'Public Office' (apart from any statutory definition) are that it is a post the occupation of which involves the discharge of duties towards the community or some section of it, whether the occupier of the post is or is not remunerated.

32. The following passage from page 427 of Volume IV Burrows is also of interest :

To make the office a public office, the pay must come out of national and not out of local funds, and the office must be public in the strict sense of that term. It is not enough that the due discharge of the duties of the office should be for the public benefit in a secondary and remote sense . A public office includes the holding of a commission in the territorial Army, or in any other of the armed forces of the Crown.

33. Reference may also be made to the passage on pages 146 and 147 of Volume 11 of Halsbury's Laws of England, Simonds edition.

The duties of the office must be of a public nature. Thus, an information lay against a privy councilor, because, membership of the Privy Council constitutes the holding of an office of a public nature.

34. What can be deduced from the term Public Office as explained by various authors and the authoritative pronouncements is that a public office is the right, authority and duty created and conferred by law, by which an individual is vested with some portion of the sovereign functions of the Government to be exercised by him for the benefit of the public, for the term and by the tenure prescribed by law. It implies a delegation of a portion of the sovereign power. It is a trust conferred by public authority for a public purpose, embracing the ideas of tenure, duration, emoluments and duties. A public officer is, thus, to be distinguished from a mere employment or agency resting on contract, to which such powers and functions are not attached. The Common Law Rule is that in order for the writ to lie, the office must be of a public nature. The determining factor, the test, is whether the office involves a delegation of some of the solemn functions of Government, either executive, legislative or judicial, to be exercised by the holder for the public benefit. Unless his powers are of this nature, he is not a public officer.

35. We have no doubt in our mind that the post of Joint Director NIFT is a public office and the respondent No.1 is a Public Officer.

36. It appear from the materials on record that the respondent No.1 was selected by way of direct recruitment for the post of Public Relations Officer on 30th June, 1984, in the Gujarat State Civil Supplies Corporation Limited. He was, thereafter, promoted as Manager (Commercial), Class-I cadre, on 9th December, 1989. The respondent No.1 was drawing a pay-scale of Rs. 8,000-275-14,050, in Class-I cadre. It also appears from the materials on record that while in service of the Corporation, the respondent No.1 had an occasion to work as a Company Secretary of Departments like Administration including public relations, labour and transport contracts, purchase, storage and distribution of grain, pulses and edible oils, operation of departmental stores, petrol pumps and LPG Gas agencies. In 2008, the respondent No.1 was working as a Manager Administration with special charge of Company Secretary (edible oils, labour and transport contracts etc.). The respondent No.3 NIFT, Gandhinagar having realized that there were many posts vacant in or around 2007, requested around 36 public sector undertakings in the State of Gujarat vide letter dated 8th January, 2008 to send a panel of eligible officers who were willing to work with NIFT on deputation basis. The posts, for which the names were called for, included the post of the Deputy Registrar. It appears that GSCSC Limited, the parent organization of the respondent No.1, forwarded the name of the respondent No.1, to the NIFT, with a vigilance clearance certificate. The respondent No.1 was interviewed for the post of Deputy Registrar (F&A). Consequently, the respondent No.1 was selected for appointment on deputation basis for the post of Deputy Registrar(F&A).

37. At this stage it may not be out of place to state that for appointment to the post of Deputy Registrar (F&A) by way of deputation, the requirement under the rules was that the candidate should be an officer of the Central Government/State Government/UT/Autonomous Organization / PSU's holding analogous posts on regular basis in their cadre/department, or with at least 5 years of service in the scale of Rs. 8,000-275-13,500 with relevant experience in dealing with Finance and Accounts.

39. We are not impressed with the submission of Mr. Mohite that the respondent No. 1 was not possessing the requisite qualification of being a Cost Accountant from the Institute of Cost and Works Accountants or a Chartered Accountant from the Institute of Chartered Accountants.

Such requirement of educational qualification was necessary only in the cases of direct recruitment as manifest from the rules itself.

40. It also appears that the NIFT, accordingly, informed the parent organization i.e. the GSCSC, about the respondent No. 1's appointment to the post of Deputy Registrar on deputation basis for a period of 3 years, with a request to GSCSC Limited to relieve the respondent No. 1 from service so as to enable the respondent No. 1 to join the services of NIFT on deputation. On being relieved by GSCSC Limited, the respondent No. 1 joined the services on deputation with NIFT, on 16th May, 2008.

41. It also appears from the materials on record that while the respondent No. 1 was working as a Deputy Registrar (F&A) on deputation basis with NIFT, the post of the Registrar was lying vacant since June, 2008.

42. The Director, NIFT, Gandhinagar forwarded a proposal to the Director General, NIFT, New Delhi in December 2008 to consider the appointment of the respondent No. 1 as the Registrar on deputation basis, considering the long 20 years of experience in Class-I cadre in GSCSC Limited, including the pay scale.

43. In the meantime, the NIFT issued an advertisement No. 1 of 2009 for the post of Registrar. The respondent No. 1 applied for the said post through a proper channel on 9th March, 2009, and accordingly, the respondent No. 1 with other candidates was called for interview at the Head Office, NIFT, New Delhi on 14th July, 2009, and the respondent No. 1 was selected and appointed as Registrar on deputation basis vide office order dated 15th July, 2009.

44. It also appears that while serving as Registrar, NIFT on deputation basis, the respondent No. 1 was informed by his parent organization, namely, GSCSC Limited, to seek repatriation and rejoin the services.

45. In the wake of such a development, the respondent No. 1 represented before the Director General, NIFT, New Delhi either to absorb him permanently in NIFT on the post held by him on deputation, or in the alternative to repatriate him to his parent organization. The proposal for permanent absorption in NIFT was placed before the Selection Committee, NIFT, New Delhi on 14th July, 2010.

46. The subject was taken up as agenda item No. 0616 in the 6th meeting of the Standing Committee of the Board, held on 27th August, 2010. Mr. Patel the learned senior advocate appearing for the respondent No. 3 placed before us the extract of the minutes of the 6th meeting of the Standing Committee of the Board on establishment matters of NIFT for our perusal. It reads thus:-

"AGENDA ITEM NO. 0616 PERMANENT ABSORPTION OF SHRI N.B. VAISHNAV AS REGISTRAR IN NIFT SCOPE OF THE PROPOSAL The Standing Committee of the Board on Establishment Matters may consider the proposal for permanent absorption of Shri N.B. Vaishnav as Registrar in NIFT.

GENESIS Shri N.B. Vaishnav, Manager (Admn.), GSCSC Ltd., was appointed as Deputy Registrar NIFT, Gandhinagar Centre on deputation basis w.e.f. 16th May, 2008 for a period of three years upto 15.05.2011. Subsequently, he was appointed as Registrar, NIFT, Gandhinagar Centre on deputation basis w.e.f. 15.07.2009. The parent department of Sh. Vaishnav has requested for his premature repatriation.

NEED FOR THE PROPOSAL There is dearth of Group A and B Officers in NIFT. The existing Directors/Registrars are handling additional responsibilities of new Centres which have come up during last 2 years. Also the posts of posts Registrars are vacant at various Centres despite our continuous efforts to find suitable Officers on deputation basis. The Director, NIFT, Gandhinagar has recently joined and premature repatriation of Sh. N.B. Vaishnav may hamper the working of the Centre. Sh. Vaishnav is handling various important responsibilities at the Centre and has expressed willingness for permanent absorption as Registrar in NIFT. His performance as reflected in his APAR has been outstanding. The parent department of Sh. Vaishnav has also conveyed no objection for his absorption in NIFT.

The Recruitment Rules of the post of Registrar are placed below at Annexure-8. The method of recruitment is Promotion failing which by Deputation failing which by Direct Recruitment. The matter for amendment of recruitment rules of the post of Registrar, by incorporating transfer/absorption as one of the method of recruitment, is also being placed before the Standing Committee of the Board on Establishment Matters. This already exists for other posts so can be added for Registrar as well.

Accordingly, the matter of permanent absorption of Sh. N.B. Vaishnav was placed before the Selection Committee in its meeting held on 14th July, 2010. The Committee considered the case and in view of facts of the case, recommended his permanent absorption as Registrar in NIFT Centre, Gandhinagar.

FINANCIAL IMPLICATION OF THE PROPOSAL The financial implication of the proposal would be NIL. "

47. It is thus, clear that at the time of considering the case of the respondent No. 1 for being permanently absorbed as Registrar in NIFT, the recruitment rules for appointment to the post of Registrar were taken into consideration and accordingly, the order was passed approving the proposal for permanent absorption of the respondent No. 1 as Registrar, NIFT, Gandhinagar.

48. It has also been brought to our notice by Mr. Patel that NIFT published an advertisement No. 18 of 2013 for various non-teaching posts, to be filled up by direct recruitment on contract basis, and by deputation basis. The Joint Director was also one of the posts, which was advertised, and the mode of appointment was contract/deputation. The eligibility requirement for post of Joint Director on contract/deputation basis, according to the recruitment rules, is as under:-

Joint Director PB-3 Rs.15600-39100/-+7600/-(GP) 35-50 For Direct Recruitment :

Graduate Degree in any discipline from a University/Institute of repute with least 10 years experience in Academics, Personnel and General Administration.

Preference will be given to candidates holding diploma/degree in management.

For Deputation :

Officers of the Central Govt./State Govt./UT/Autonomous Organization /PSUs possessing the essential qualifications and holding analogous post on regular basis in their service/department or with atleast 05 years of regular service in PB-3 Rs. 15600-39100+Grade Pay Rs.

6600/-with relevant experience in dealing with Establishment & Administrative matters.

49. Mr. Patel also placed before us the recruitment rules for the post of Joint Director, as approved by the Board of governors in its meeting dated 4th September, 2012. The recruitment rules are as under:-

RECRUITMENT RULES FOR THE POST OF JOINT DIRECTOR S.No. CATEGORIES DETAILS 1 Name of the Post Joint Director 2 No. of Post * 3 Pay Scale PB-3, 15600-39100+Grade Pay 7600 4 Method of Selection Promotion failing which on contract including deputation 5 Age limit for contractual appointment 35-50 years. Selection committee may relax the age limit in case of deserving candidates possessing higher educational qualifications/experience 6 Educational Qualifications and experience Essential Qualifications :

Graduate degree in any discipline from a University/Institute of repute with at least 10 years experience in Academics, Personnel and General Administration .

Preference will be given to candidates holding diploma/degree in management.

Whether age and educational qualifications prescribed for direct recruits will apply in the case of Promotion Age limit will not apply. However essential qualifications are applicable.

Period of Probation if any 1 year 9 In case of recruitment By promotion/deputation or transfer grades from which promotion/deputation or transfer to be made Promotion : Deputy Directors with at least 5 years experience in the Institute and possessing the essential qualifications will be eligible.

Deputation : Officers of the Central Govt./State Govt./UT/Autonomous Organization/PSUs possessing the essential qualifications and holding analogous post on regular basis in their service/department or with at least 5 years of regular service in PB-3, 15600-39100+Grade Pay 6600/- with relevant experience in dealing with Establishment & Administrative matters.

50. Thus we are of the opinion, having regard to all the relevant facts that there is no substance in the allegation levelled by the petitioner that the respondent No. 1 is not qualified to hold the post of Joint Director, NIFT, Gandhinagar.

51. Although an attempt was made by Mr. Mohite, the learned advocate appearing for the appellant to convince us that even otherwise the respondent No. 1 is not competent to hold the post of Joint Director, NIFT but we are afraid we should not accept such a submission because the suitability or otherwise of a candidate for appointment on a post is the function of the appointing authority and not of the Court, unless the appointment is contrary to the statutory provisions/rules, which we do not find in the present case, and also the fact that the writ of quo-warranto is not generally issued as a matter of course, and it is the discretion of the Court to do so or withhold the same.

52. For all the forging reasons, we hold that there is no merit in this appeal and the learned Single Judge committed no error, not to speak of any error of law, in rejecting the writ-application.

53. In the result, the appeal fails, and is, accordingly, dismissed. However, in the facts and circumstances of the case, there shall be no order as to costs.

54. In view of the order passed in the main appeal, the connected Civil Application would not survive, and is, accordingly, disposed of.

(BHASKAR BHATTACHARYA, C.J.) (J.B.PARDIWALA, J.) Mohandas Page 38 of 38

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