Himachal Pradesh High Court
Satish Chandra Mishra vs Union Of India And Others on 16 December, 2019
Author: Tarlok Singh Chauhan
Bench: Tarlok Singh Chauhan
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CWP No. 388 of 2017.
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Judgment reserved on: 10.12.2019.
Date of decision: 16.12.2019.
Satish Chandra Mishra .....Petitioner.
Versus Union of India and others .....Respondents.
Coram The Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge.
Whether approved for reporting?1 Yes For the Petitioner : Mr. Dilip Sharma, Senior Advocate with Mr. Manish Sharma, Advocate.
For the Respondents: Mr. Shashi Shirshoo, Central Government Standing Counsel, for respondents No.1 to 3.
Mr. K.D.Shreedhar, Senior Advocate with Ms. Shreya Chauhan, Advocate, for respondent No.4.
Mr. Vinod Thakur, Additional Advocate General with Mr. Narender Singh Thakur and Ms. Divya Sood, Deputy Advocate Generals, for respondent No.5.
Mr. Ramakant Sharma, Senior Advocate with Ms. Devyani Sharma, Advocate, for respondent No.6.
1Whether the reporters of the local papers may be allowed to see the Judgment?Yes ::: Downloaded on - 16/12/2019 20:27:50 :::HCHP 2 Tarlok Singh Chauhan, Judge .
The instant writ petition has been filed for the following relief:
"It is, therefore, humbly prayed that this writ petition may kindly be allowed and appointment of respondent No.6 to the post of Director (Personnel) vide order dated 23.3.2011, Annexure P-3, and extension granted to him vide order dated 22.8.2016, Annexure P-6, as Director (Personnel) in the respondent No.4 Company may kindly be quashed and set aside by issuing a writ in the nature of quo warranto and the respondent No.6 may be directed to vacate the post of Director (Personnel) forthwith. Any other direction deemed fit and proper in the facts and circumstances of the case may also be issued, in the interest of justice. Cost of the petition may also be awarded."
2. Since, the petitioner has prayed for a writ of quo warranto, therefore, the only question required to be determined is whether such a writ can be issued when indubitably the appointment in question has not been made under any statutory rules or provisions governing or the Constitution of India and the same has to be made solely on the basis of the administrative instructions governing such appointment.
::: Downloaded on - 16/12/2019 20:27:50 :::HCHP 33. According to the Stroud's Judicial Dictionary, 4th Edition, "Quo Warranto is a writ that lies against a person who usurps any .
franchise, liberty or office."
4. Corpus Juris Secundem defines quo warranto as follows: -
"Quo Warranto is a proceeding to determine the right to the exercise of franchise or office and to oust the holder if his claim is not well-founded or if he has forfeited his right."
5. In Halsbury's Laws of England Fourth Edition Reissue Volume-I, para 265, this writ has been defined as follows: -
"An information in the nature of quo warranto took the place of obsolete writ of quo warranto which is 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."
6. In the words of Spelling, Injunction and other Remedies, Vol.2, page 1516, "Quo warranto" is the remedy or proceeding where 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 ::: Downloaded on - 16/12/2019 20:27:50 :::HCHP 4 rightfully possessed and enjoyed, it has become forfeited for misuser or nonuser."
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7. In Words and Phrases, Permanent Edition, Vol. 35A (page 647) "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 power which they do not have.
r to corporation or persons purporting to act as such from usurping a
8. A Constitution Bench of the Hon'ble Supreme Court in the matter of The University of Mysore and another v. C.D. Govinda Rao and another, AIR 1965 SC 491 : (1964) 4 SCR 575 while dealing with the nature of writ of quo warranto has held in no uncertain terms that before a citizen can claim a writ of quo warranto, he must satisfy the Court that the office in question is a public office and is held by usurper without legal authority.
The object of the writ qua-public office has been explained by Their Lordships as under: -
"7. .....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 enquiry leads to the finding that the holder of the office has no valid title to it, ::: Downloaded on - 16/12/2019 20:27:50 :::HCHP 5 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."
9. In the matter of B.R. Kapur v. State of T.N. and another (2001) 7 SCC 231 : AIR 2001 SC 3435, the Hon'ble Supreme Court after referring to the Halsbury's Laws of England, Words and Phrases and leading decisions on the point have observed that a writ of quo warranto is a writ which lies against the person who is not entitled to an office of public nature and is ::: Downloaded on - 16/12/2019 20:27:50 :::HCHP 6 only a usurper in office, that it directed to such person to show by what authority he was entitled to hold the office. It is pointed out .
that challenges can be made on various grounds, including the ground that the possession of the office does not fulfill the required qualifications or suffers from a disqualification, which debars him from holding the office. It has been further stated that if such person fails to do so, a writ of quo warranto shall be directed against him.
10. to In the matter of Centre for PIL and another v.
Union of India and another, (2011) 4 SCC 1, the Hon'ble Supreme Court has laid down the requisites and object of issuance of writ of quo warranto. Paragraph 51 of the report states as under:-
"51. 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. 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."::: Downloaded on - 16/12/2019 20:27:50 :::HCHP 7
11. In the matter of Central Electricity Supply Utility of Odisha v. Dhobei Sahoo and others, (2014) 1 SCC 161, .
the Hon'ble Supreme Court held in no uncertain terms that 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."
12. In the matter of Renu and others v. District and Sessions Judge, Tis Hazari Courts, Delhi and another (2014) 14 SCC 50, the Hon'ble Supreme Court reiterated that 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, and observed as under: -
::: Downloaded on - 16/12/2019 20:27:50 :::HCHP 8"15. Where any such appointments are made, 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 University of Mysore v. C.D. Govinda Rao, 1965 AIR(SC) 491, Kumar Padma Prasad v. Union of India, 1992 2 SCC 428 : 1992 SCC (L&S) 561 :
(1992) 20 ATC 239 : AIR 1992 SC 1213, B.R. Kapur v. State of T.N., 2001 7 SCC 231, Mor Modern Coop. Transport Society Ltd. v. State of Haryana, 2002 6 SCC 269, Arun Singh v. State of Bihar, 2006 9 SCC 375 , Hari Bansh Lal v.::: Downloaded on - 16/12/2019 20:27:50 :::HCHP 9
Sahodar Prasad Mahto, 2010 9 SCC 655 : (2010) 2 SCC (L&S) 771, and Central Electricity Supply Utility of Odisha v. Dhobei Sahoo, 2014 1 SCC 161 : (2014) 1 SCC (L&S) 1.)"
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13. The Hon'ble Supreme Court in a recent judgment in Bharati Reddy v. State of Karnataka and others (2018) 6 SCC 162 has again examined the scope of writ of quo warranto by revisiting the law on the subject and held that writ of quo warranto has to be issued only when the Court is satisfied that the incumbent was not eligible at all as per the statutory provisions for being appointed or elected to the public office or that he/she has incurred disqualification to continue in the said office, which satisfaction should be founded on the indisputable facts and observed as under by cautioning the courts: -
"39. We have adverted to some of those decisions in the earlier part of this judgment. Suffice, it to observe that unless the Court is satisfied that the incumbent was not eligible at all as per the statutory provisions for being appointed or elected to the public office or that he/she has incurred disqualification to continue in the said office, which satisfaction should be founded on the indisputable facts, the High Court ought not to entertain the prayer for issuance of a writ of quo warranto."
14. It is evidently clear from the aforesaid exposition of law that the scope of inquiry in a proceeding for quo warranto is whether the appointment has been made in violation of some ::: Downloaded on - 16/12/2019 20:27:50 :::HCHP 10 statutory provisions or of rules having the force of law; if not, the Court would remove the appointee, who is a usurper in law, as .
has been held in University of Mysore's case (supra).
15. 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 provision. While examining this question, the Court is not concerned with technical rules of delay or motive behind the challenge, since it is necessary to prevent continuance r of usurpation of office or perpetuation of an illegality.
16. For the issuance of a writ of quo warranto, it is necessary that the office in respect of which the writ is sought must be a public office and the test of public office is whether the duties of the office are public in nature and the office in question has been created by statute or the Constitution. Judicial review for the purpose of issuance of quo warranto will lie if:
(i) the holder of a public office was not eligible for appointment;
(ii)the processual machinery relating to consultation was not fully complied with;
(iii) the appointment was contrary to the statutory rules or statutory provisions.::: Downloaded on - 16/12/2019 20:27:50 :::HCHP 11
17. Thus, what can be taken to be well settled is that a Writ of Quo Warranto will be issued in respect of an office, only if .
the following conditions are satisfied:
firstly that office must be public;
secondly it must have been created by a statute or by the Constitution itself;
thirdly the office must be of substantive character, an office independent in title;
to the office; and
r to
fourthly the respondent must have asserted his claim lastly that the respondent is not legally qualified.
18. In short, quo warranto will not issue unless there is infringement of provisions having the force of law (as distinguished from mere administrative instructions or rules not having the force of law) or some provisions of the Constitution itself. The question to be determined before issuing quo warranto is whether the impugned appointment has been contravened by binding rule of law and not whether it has involved a manifest error. In case where the appointment is made in contravention of the Government orders, the same cannot be questioned as Government orders are only administrative instructions which are issued under the Government's executive power and having no force of law.
::: Downloaded on - 16/12/2019 20:27:50 :::HCHP 1219. As already observed above, there are no statutory rules or provisions under which the post of Director (Personnel) is .
required to be filled up, rather, the same has to be filled up on the basis of the administrative instructions and, therefore, in such circumstances, a writ of quo warranto cannot be issued.
Additionally, it would be noticed that the post in question is not a office of public nature and, therefore, also a writ of quo warrant is not maintainable.
20. to In order to be fair to the respondents, it needs to be stated here that in addition to the objection with regard to very maintainability of the petition on merits, the respondents have questioned the same on the ground of delay and laches and also on the ground of locus standi. However, I find no merit in this submission.
21. As observed above, while examining the question, if a person holds a public office under the valid authority, the Court is not concerned with technical delay or motive behind the challenge, since it is necessary to prevent continuance of usurpation of office or perpetuation of an illegality. Reference in this regard can conveniently be made to the judgment of the three Hon'ble Judges' Bench of the Hon'ble Supreme Court in Dr. ::: Downloaded on - 16/12/2019 20:27:50 :::HCHP 13 Kashinath G. Jalmi and another vs. The Speaker and others (1993) 2 SCC 703.
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22. In addition thereto, similar reiteration of law can be found in the judgment rendered by the Hon'ble Supreme Court in Rajesh Awasthi vs. Nand Lal Jaiswal and others (2013) 1 SCC 501 wherein Hon'ble Mr. Justice Dipak Misra (as his Lordship then was) while supplementing the main judgment clearly held position of a relater.
r to that a citizen can claim a writ of quo warranto and stands in the He need not have any special interest or personal interest. The real test is to see whether the person holding the office is authorized to hold the same as per law.
Delay and laches do not constitute any impediment to deal with the lis on merits. It is apt to reproduce paras 27 to 31 of the aforesaid judgment which reads as under:
"27. As the facts have been stated in detail by my learned Brother, it is not necessary to repeat the same. Suffice it to state that the pleas of locus standi and delay and laches have not been accepted and a finding has been returned by the High Court that the selection of the appellant was in flagrant violation of the provisions of the Act and, therefore, his continuance in law is impermissible.
28. Before I proceed to deal with the justifiability of the order passed by the High Court, it is thought apposite to refer to certain authorities that fundamentally deal with the concept of writ of quo warranto.::: Downloaded on - 16/12/2019 20:27:50 :::HCHP 14
29. In B.R. Kapur v. State of Tamil Nadu and another (2001) 7 SCC 231, in the concurring opinion Brijesh Kumar,J., while dealing with the concept of writ of quo warranto, has .
referred to a passage from Words and Phrases Permanent Edition, Volume 35, at page 647, which is reproduced below: ( SCC p. 316, para 80) "80.....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. Mc. Kittrick v. Murphy, 148 SW 2d 527 (1941) 529, 530 347 Mo. 484.
Information in nature of "quo warranto" does not command performance of official functions by any 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. Thactcher, 102 SW 2d 937 (1937),938, 340 Mo.865.'"
(Emphasis in original)
30. In The University of Mysore v. C.D. Govinda Rao and another AIR 1965 SC 491, while dealing with the nature of the writ of quo warranto, Gajendragadkar,J. has stated thus: -(AIR p. 494, para 7) "7.....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 ::: Downloaded on - 16/12/2019 20:27:50 :::HCHP 15 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 rcitizen 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."
31. From the aforesaid pronouncements it is graphically clear that a citizen can claim a writ of quo warranto and he stands in the position of a relater. He need not have any special interest or personal interest. The real test is to see whether the person holding the office is authorised to hold the same as per law. Delay and laches do not constitute any impediment to deal with the lis on merits and it has been so stated in Dr. Kashinath G. Jalmi and another v. The Speaker and others (1993) 2 SCC 703."
23. From the aforesaid discussion, it is evidently clear that the appointment in question to the post of Director (Personnel) has not been made in violation of some statutory provisions or of ::: Downloaded on - 16/12/2019 20:27:50 :::HCHP 16 rules having the force of law, but has been made in pursuance to the administrative instructions which have been issued by the .
Government's executive powers and having no force of law.
24. Therefore, the present petition seeking a writ of quo warranto is totally misconceived and not legally maintainable and is accordingly dismissed, leaving the parties to bear their own costs. Pending application, if any, also stands disposed of.
16 December, 2019.
(krt)
th
r to (Tarlok Singh Chauhan)
Judge
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