Karnataka High Court
Dr Lokeshwari H W/O Dr B Nagappa vs The State Of Karnataka on 20 July, 2012
Author: Subhash B.Adi
Bench: Subhash B Adi
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IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 20TH DAY OF JULY 2012
BEFORE
THE HON'BLE MR. JUSTICE SUBHASH B ADI
WRIT PETITION NOS.4951- 4952/2012 (S-PRO)
BETWEEN :
1 DR LOKESHWARI H W/O DR B NAGAPPA
AGED ABOUT 50 YEARS
SENIOR SCIENTIFIC OFFICER
CENTRAL ENVIRONMENTAL LABORATORY
KARNATAKA STATE POLLUTION
CONTROL BOARD
"NISARGA BHAVANA", 7TH "D" MAIN
THIMMAIAH ROAD,
SHIVANAGAR,
BANGALORE-560079
2 SRI JAYAPRAKASH SUBRAO NAYAK
S/O SRI SUBRAO NAYAKA
AGED ABOUT 52 YEARS
SENIOR SCIENTIFIC OFFICER
KARNATAKA STATE POLLUTION
CONTROL BOARD
REGIONAL OFFICE,
PLOT NO. 10B, BAIKAMPADI
INDUSTRIAL AREA,
MANGALORE-575 011 ...PETITIONERS
(BY SRI.SATISH M DODDAMANI, ADV. )
2
AND :
1 THE STATE OF KARNATAKA
REPRESENTED BY ITS SECRETARY
DEPARTMENT OF FOREST, ECOLOGY
AND ENVIRONMENT
M.S.BUILDING
DR AMBEDKAR ROAD
BANGALORE-560001
2 KARNATAKA STATE POLLUTION
CONTROL BOARD
BY ITS MEMBER SECRETARY
"PARISARA BHAVANA"
NO.49, CHURCH STREET
BANGALORE-560001
3 DR B R BALAGANGADHARAN
S/O LATE B P RAJASHEKARAIAH
AGED ABOUT 51 YEARS
CHIEF SCIENTIFIC OFFICER
CENTRAL ENVIRONMENT
LABORATORY
KARNATAKA STATE POLLUTION
CONTROL BOARD
"NISARGA BHAVANA", 7TH "D" MAIN,
THIMMAIAH ROAD, SHIVANAGAR
BANGALORE - 560 079. ...RESPONDENTS
( BY SMT.MANJULA KAMMADOLLI, HCGP FOR R-1;
SRI. C K VENKATESH, ADV. FOR R2;
SRI.M.S.BHAGWAT, ADV. FOR R3)
THESE WRIT PETITIONS ARE FILED UNDER ARTICLE 226
AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO DIRECT
IN THE NATURE OF WRIT OF QUO-WARRANTO OUSTING THE R3
from the POST OF CHIEF SCIENTIFIC OFFICER UNDER THE R2-
BOARD HAVING REGARD TOTHEFACT THAT HE DOES NOT
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POSSESS THE REQUISITE QUALIFICATION AS REQUIRED UNDER
C & R REGULATIONS 1992 AND GO DT.5.5.10 ACCORDING
PERMISSION FOR CREATION OF NEW CADRES ETC.,
THESE WRIT PETITIONS COMING ON FOR PRELIMINARY
HEARING THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
Petitioners have sought for issue of writ of Quo-warranto against the third respondent from the post of Chief Scientific Officer under the second respondent - Board, as he did not possess the requisite qualification as required under Cadre & Recruitment Regulations 1992 and the Government Order dated 5.5.2010.
2. Further, the petitioners have sought for a direction restraining the third respondent from discharging the functions as a Chief Scientific Officer in the second respondent - Board and for a writ of mandamus/certiorari, quashing Annexure-P dated 6.1.2004 where the third respondent was promoted as a Scientific Officer w.e.f. 20 th May 1995 and Chief Scientific Officer w.e.f. 14.6.2002 and also for consideration of the objections of the petitioners filed on 12.7.2010 on the notification dated 17.6.2010. Further, for quashing the official 4 memorandum dated 14.11.2002 produce at Annexure-Q.
3. The case of the petitioners is that, petitioner Nos.1 and 2 were appointed as Assistant Scientific Officers w.e.f. 29.7.1988 and 19.8.1988 respectively. As per Schedule-II to the Cadre and Recruitment Rules produced at Annexure-A, the Assistant Scientific Officer post is a promotional post from Lab Assistant of the Board having minimum qualifying service of five years. From Assistant Scientific Officers, the next promotion is Deputy Scientific Officer and the qualifying service was five years as an Assistant Scientific Officer and from Deputy Scientific Officer to Scientific Officer with a minimum qualifying service of five years' experience as Deputy Scientific Officer.
4. The Government by order dated 5th May 2010 created new posts, prescribing the qualifications for promotion/recruitment of Scientific staff and fixing the pay-scales viz., amongst others, Assistant Scientific Officer, Deputy Scientific Officer, Scientific Assistant, Scientific Officer, Assistant Scientific Officer, Senior Scientific Officer 5 and Chief Scientific Officer.
5. However, the third respondent, who was working as Assistant Director of Fisheries w.e.f. 5.9.1986 came on deputation to the respondent - Department on 20.11.1991 as a Junior Scientific Officer. He was absorbed as a Auatic Eco-Toxicology as per Annexure-M. The Board also resolved, to inform the Government regarding absorption of the 3rd respondent in the Pollution Control Board as a Deputy Scientific Officer. However, by order dated 06.01.2004, the Board promoted the 3rd respondent to the post of Scientific Officer with effect from 20.05.1995 and Chief Scientific Officer with effect from 14.06.2002.
6. Having regard to these facts, the learned counsel for the petitioners submitted that, for the first time, the Chief Scientific Officer post was created as per Annexure-B, on 05.05.2010 as per the cadre and recruitment notification, the Chief Scientific Officer post was to be filled up from the post of Senior Scientific Officer having five years' experience. However, the 3rd respondent was promoted in 2004 to the post of Chief Scientific Officer even without there being 6 existence of cadre to the post of Chief Scientific Officer.
7. Nextly, he contended that Chief Scientific Officer post being a promotional post from the post of Senior Scientific Officer having five years' experience and Senior Scientific Officer is also being promotional post from Deputy Scientific Officer, so also the Deputy Scientific Officer, ultimately the post being the promotional post, the lowest rank under the C and R rules is the Laboratory Assistant. The Laboratory Assistant qualification itself is a Degree in Science with C.B.Z. qualification and this minimum qualification is also not possessed by the 3rd respondent, as such, the learned counsel submitted that the post held by the 3rd respondent being a public office and third respondent lacks the requisite qualification. Hence, the 3rd respondent has no right to continue in the said post.
8. Secondly, he contended that, even though the Board has taken a contention that the post of Chief Scientific Officer was in existence in 1999 itself, by mistake that post is treated as created in 2010. In this regard, the Board has informed the Government that the post has been 7 in existence and it is not a newly created post and though the Board has sought amendment, however, there is no amendment to the C & R Rules. Even on this ground also, the 3 rd respondent is not entitled to continue in the office. Further, submitted that the petitioners being Senior Scientific Officer in Scientific Wing are entitled for promotion. Even otherwise, if the petitioners are not qualified because they do not possess five years' experience, however the post of Chief Scientific Officer has to be filled up either by deputation or otherwise by any other means as the 3rd respondent has no right to continue in the same post.
9. Learned Counsel appearing for the contesting 3rd respondent submitted that, the 3rd respondent was possessing M.F.Sc. and Ph.D. in Environment and Toxicology, his services were needed by the Environment Board particularly in connection with Water Pollution. It is in this regard, his services were taken on deputation from 10.11.1991. Though he was taken in the cadre of Junior Scientific Officer, but it was re-designated as Deputy Scientific Officer with effect from 15.10.1992 and it is also clear from Annexure-L, produced 8 by the petitioners themselves wherein the Board itself has recommended to the State Government to designate the respondent No.3 as Deputy Scientific Officer. His services were also came to be absorbed by the Board on 13.09.1996 and the Government approved the Board resolution and issue a Gazetted showing respondent No.3 as a Deputy Scientific Officer as per Gazette Notification dated 27.11.1997 produced at Annexure-R11 with retrospective effect.
10. He also submitted that, respondent No.3 was a senior most person in the Board and he was holding the post of Deputy Scientific Officer retrospectively from 1991. Recognising his services, the Board took a decision as per Annexure-P, interalia giving promotion to the post of Scientific Officer with effect from 20.05.1995 and Chief Scientific Officer with effect from 14.06.2002 by order dated 06.01.2004.
11. He submitted that, not only this order has become final, further the seniority list was prepared on 17.04.2002 as per Annexure- R8 wherein the 3rd respondent was shows as senior amongst the 9 Scientific Officers and the petitioners were shown at Sl.Nos. 2 and 3.
12. Neither against the order of promotion of the 3rd respondent the post of Scientific Officer and from Scientific Officer to Chief Scientific Officer made in 2004 retrospectively from 2002 was questioned nor the seniority list prepared on 14.11.2002 was ever questioned by the petitioners.
13. As far as Annexure-B (C and R rules) creating the post of Chief Scientific Officer is concerned, he relied on the Board resolution dated 06.07.2011 wherein the Board has informed the Government to correct the C and R rules as the post of Chief Scientific Officer was in existence and it is not a newly created post. The Government in response to the same has asked the Board to give detailed report for amendment of the C and R rules. He submitted that, even otherwise also the post of Chief Scientific Officer has to be filled up either by promotion from the post of Senior Scientific Officer with experience of five years or a person on deputation having qualification of M.F.Sc./Ph.D with three years' equivalent experience. He submitted 10 that respondent No.3, who was on deputation, has been absorbed, he has a qualification of M.F.Sc.and Ph.D in Environment, he is qualified and further as in 2010 in the Board itself he had experience of more than 19 years. In any respect the 3 rd respondent is not only better qualified but he has all qualifications to hold the post Chief Scientific Officer.
14. The learned counsel for the Board also submitted that, Annexure-B though it states that the post of Chief Scientific Officer is created in May 2010 but in fact, the post has been in existence, when mistake was noticed as per Annexure-3 to the statement of objections filed by the Board, the Board has informed the State interalia stating that the said post is in existence and it is not created.
15. He also submitted that, it is not in dispute that in 2004 as per Annexure-P, the 3rd respondent was promoted as Chief Scientific Officer and this petition is filed in 2012 after lapse of nearly eight years.
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16. In the light of the above submissions, the points that arise for consideration are:
(i) Whether the petitioners are entitled for writ of quo warranto and also the relief of certiorari and mandamus?
(ii) Whether the petitioners are entitled for a writ of prohibition?
17. In order to seek writ of quo warranto, two circumstances are necessary. Firstly, that the office in question must be a public office and is held by usurping without legal authority and secondly, on enquiry as to whether the appointment of the alleged usurpers has been made without the requisite qualification.
18. The facts which are not in dispute are that, the 3 rd respondent was appointed as an Assistant Director of Fisheries on 05.09.1986. He was sent on deputation to the Pollution Control Board on 20.11.1991. His services were absorbed by the Board with effect from 10.09.1996. The Board resolution dated 13.09.1996 produced at 12 Annexure-L, reads as under:
"117.7: Absorption of Sri.B.R. Balagangadharan, Asst. Director of Fisheries on deputation to Karnataka State Pollution Control Board as Deputy Scientific Officer - Reg."
19. This resolution is not in dispute, w.e.f 1996, the services of the 3rd respondent treated as Deputy Scientific Officer. Before the issue of Annexure-B,the post of Scientific Officer was the highest post in the Scientists Wing and the said post was promotional post from the post of Deputy Scientific Officer. Admittedly, the 3rd respondent has been confirmed as Deputy Scientific Officer as per the Board resolution dated 13.09.1996 and the Government Gazette notification dated 27.11.1997 produced at Anneuxre-R11, from 1997, the 3rd respondent has been working as a Deputy Scientific Officer and the feeder post for promotion to the post of Scientific Officer is the Deputy Scientific Officer, i.e., with qualifying service of five years as a Deputy Scientific Officer.
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20. It is also not in dispute that from 1991, the 3 rd respondent has been working as a Deputy Scientific Officer in the Board. It is not the case of the petitioners that, he does not have an experience as a Deputy Scientific Officer. Admittedly, the petitioners have not called in question, the absorption of the respondent No.3 as a Deputy Scientific Officer made in 1997 by Gazette notification, which is accepted by the Government.
21. Insofar as Annexure-B, the order passed by the State on 05.05.2010 for creating new posts are concerned, the post of Chief Scientific Officer was created w.e.f. 05.05.2010. However, Annexure-3 to the statement of objections filed by the Board, the Board has clarified the position on 06.07.2011 that the post of Chief Scientific Officer is not a new post created, but it was in existence and sought for amendment to C & R Rules and the Government in response to the same has directed the Board to send a detailed report. This also corroborates with the decision of the Board as per Anneuxure-P dated 06.06.2004 where it has promoted the 3rd respondent to the post of Chief Scientific Officer in 2004 itself. Had there been no post existing, 14 the Board would have taken such decision to promote 3 rd respondent as Chief Scientific Officer and the promotion of 3 rd respondent as Chief Scientific Officer is not just because he was to be promoted, but the preamble to Annexure-P also shows that the 3 rd respondent was serving in the Board since 1991. In recognition of his services and experience, he was given promotion as a Scientific Officer and further promoted to Chief Scientific Officer and the schedule-I at Annexure-R34 produced by the respondent No.3 also shows that the Chief Scientific Officer (Laboratory) was in existence. May be the Government order dated 05.05.2010 has included Chief Scientific Officer as a newly created post, it is only a mistake, and same does not give any cause of action for annuling an appointment only on the ground of bonafide mistake. Further, to the knowledge of the petitioners themselves, the 3 rd respondent was promoted as Chief Scientific Officer in 2004 whereas this writ petition is filed in 2012, that nearly after 8 years of the promotion of 3rd respondent.
22. Fact that he was promoted in 2004, fact that it is mentioned in the schedule, fact that the Board has also informed the Government 15 that the Chief Scientific Officer post was in existence, however, showing it as newly created post is only bonafide mistake.
23. As far as qualification is concerned, to be appointed as a Chief Scientific Officer even in terms of Annexure-B, Annexure-B shows that the post of Chief Scientific Officer to be filled up, one by promotion with five years minimum qualifying service as a Senior Scientific Officer or on deputation, with M.Sc./Ph.D. qualification with three years of equivalent experience. Now in this case, the 3rd respondent initially he had come on deputation and as far as his qualification is concerned, he holds not only M.F.Sc. (Master of Fishery Science), but he holds Ph.D. in Environment, he has three more years of experience. Respondent No.3 having a Ph.D. qualification in Environment, with vast experience of 19 years in the respondent - Board, is also well qualified to the post of Chief Scientific Officer.
24. Having regard to these circumstances and the material produced by the Board as well as the 3 rd respondent and also 16 considering the delay in approaching this Court by the petitioners, who themselves accepted the seniority list prepared in 2002 where they were shown below the 3rd respondent in the list of seniority of Scientific Officer and in 2004 when the 3rd respondent was promoted as a Chief Scientific Officer, the petitioners did not raise any objection. Earlier in 1996 when the Board passed a resolution of absorption also no objection was raised. Further, when the absorption was also notified by the Government, no objection was raised.
25. Assuming that the period of limitation or delay and laches will not apply in the case of issue a Writ of Quo-Warranto as a person holding public office without qualification he cannot be allowed to continue. Not only on the ground of delay, but even otherwise, having regard to the qualification and experience of the 3rd respondent, this is not a case, which the 3rd respondent is holding a public office without qualification. He has the qualification, he has the experience much much higher than the experience of the petitioners.
26. Broadly stated, the quo warranto proceeding affords a 17 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 findings 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 and qualification. It also protects the interest of the citizen from being deprived of public office to which he may have a right. As such, in this case, it is not that the petitioners are qualified to hold the post of Chief Scientific Officer but they have questioned that the continuation of the 3rd respondent in the said post without qualification is illegal. However, the petitioners have failed to show that the 3rd respondent does not possess the requisite qualification.
27. When I have come to the conclusion that, the 3rd respondent, not only he has an experience as a Scientific Officer much 18 better than the petitioners, but also he possesses the requisite qualification to the post of Chief Scientific Officer.
28. In view of the above, the question of issue of quo warranto does not arise. Further, the relief of consideration of the case of the petitioners also does not arise and issue of certiorari is manifestly misconceived not only on the ground of laches, but also on the ground of the 3rd respondent being qualified has been rightly appointed way back in 2004, as such, looking at from any angle, I find that there is no ground to interfere with the order of promotion of the 3rd respondent.
Hence, the writ petitions fail and are dismissed.
Sd/-
JUDGE KNM/-