Andhra Pradesh High Court - Amravati
Pothina Venkata Mahesh, vs The State Of Andhra Pradesh, on 24 January, 2020
Author: M.Satyanarayana Murthy
Bench: M.Satyanarayana Murthy
THE HON'BLE SRI JUSTICE M.SATYANARAYANA MURTHY
WRIT PETITION NO.16903 OF 2019
ORDER:
This writ petition is filed under Article 226 of the Constitution of India to issue writ of Quo Warranto against respondent No.4 calling upon him to quit from the office Executive Officer of respondent No.3 temple since he is ineligible and disqualified to hold the post of Executive Officer in the cadre of Regional Joint Commissioner of Endowments Department being illegal, contrary to Sections 9 and 10 of A P Charitable and Hindu Religious Institutions and Endowments Act 1987 (for short "the Act 30 of 1987) and Rule 3 of Rules issued in G O Ms No 245 Revenue (Endt.1) dated 08.05.2002 as amended by G.O.Ms.No.590, Revenue (Endowments-1) Department, dated.19.11.2018, vide Note 3 of Rule 3 as Inserted by the said G.O. besides contrary to orders issued by this Honble court in W.P.M.P.No.6378 of 2014 in W.P.No.5133 of 2014 discriminatory and violative of Articles 14 and 16 of the Constitution of India, consequentially set aside the said G.O.Rt.No.891 Revenue (Endowments-I) Department, dated 21.08.2019 to the extent of Para 3, whereunder respondent No.4 is posted as Executive Officer of respondent No.3 temple restraining him from the office of respondent No.3 temple.
The petitioner is a native of Vijayawada City, had college education at Vijayawada and completed P.hd, worked as lecturer in K.B.N.College, Vijayawada for some time. Presently, he has been carrying on real-estate business besides social work actively. The petitioner and his forefathers are staunch devotee of deity of Sri Durga Malleswara Swamivarla Devasthanam, as such the MSM,J WP_16903_2019 2 petitioner is a person interested as defined under Section 2 (18) of the Act 30 of 1987, competent to maintain the present writ petition in the better and effective administration of respondent No.3 temple.
The word Deputy Commissioner is defined under Section 2(9), whereas the status of Regional Joint Commissioner is defined under Section 2(20) of the Act 30 of 1987. Both the definitions referred to sub-section 1 of Section 2 of the Act 30 of 1987, while referring to separate functions as provided under statute. Section 9 of the Act 30 of 1987 deals with powers and functions to be exercised by the Regional Joint Commissioner which are specific and unambiguous. Similarly, Section 10 deals with powers and functions of Deputy Commissioner. It is worth noting that while dealing with functions of Deputy Commissioner it is only referable to within a division under his control in respect of such institutions or endowments as are included in the list published under Clause (b) of Section 6 of the Act 30 of 1987. Similarly, the rules and other provisions, also provides that the Deputy Commissioner can be posted as Executive Officer at the temples, corresponding to the said status, but not otherwise particularly at the higher cadre like the temples designated as Regional Joint Commissioner cadre.
Recently while making amendments to Rules issued in G.O.Ms.No.245, Revenue (Endowments-1) Department, dated 08.05.2002, by issuing G.O.Ms.No.590, dated 19-11-2018, it has provided that there shall be Deputy Executive Officer in the cadre of Deputy Commissioner for the 7 major temples which includes the subject temple i.e., Sri Durga Malleswara Swamivarla MSM,J WP_16903_2019 3 Devasthanam. In view of these amended rules and statutory provisions referred to above, the Deputy Commissioner can only be posted as Deputy Executive Officer in 7 major temples, but cannot be posted as Executive Officer in the cadre of Regional Joint Commissioner in the said 7 major temples in Andhra Pradesh.
The government has issued G.O.Rt.No.891 Revenue (Endowments-1) Department, dated 21.08.2019 making certain transfers and postings of Executive Officers of certain temples and other vacancies in the department. As per para-3 of the said G.O., the 4th respondent who is a Deputy Commissioner is posted as Joint Commissioner and Executive Officer of 3rd respondent temple, in gross violation of Sections 9 and 10 of the Endowments Act read with Section 2(9) and (20). The A.P. Charitable and Hindu Religious Institutions and Endowments Service Rules, 2002 issued in G.O.Ms.No.245, Revenue(Endowments-1)Department, dated 08.05.2002 are subjected to certain amendments vide.G.O.Ms.No.590 Revenue (Endowments-1) Department, dated 19.11.2018. The amended rules vide note 3 of Rule 3 is clear and categorical that the Deputy Commissioner can only hold the post of Deputy Executive Officer in 7 major temples which includes subject temple. For all these reasons, respondent No.4 who is a Deputy Commissioner cannot be posted as Executive Officer in the cadre of Regional Joint Commissioner, since it is an undisputed fact that subject temple is one of the 7 major temples in the cadre of Regional Joint Commissioner.
It is also contended that an interim order was granted by this court on 24.02.2014 in W.P.M.P.No.6378 of 2014 in W.P.No.5133 of 2014 observing that under category 3 the post of MSM,J WP_16903_2019 4 Regional Joint Commissioner can only be filled from the cadre of Special Grade Deputy Collector or an I.A.S. officers on deputation besides regular Regional Joint Commissioner. In view of the same also, the posting of Deputy Commissioner which is not provided under category 3 of the Endowment Service Rules is impermissible under law, as such respondent No.4 cannot be allowed to continue as Executive Officer of respondent No.3 temple and respondent No.4 has no authority to continue as his continuation is illegal as explained above. Besides the above statutory violations, it is nothing but too much interference in the maters of religious institutions by posting incompetent officers, in violation of statute and relevant rules which is in gross violation of Articles 25 and 26 of Constitution of India and also the G.O. under challenge is illegal and violative of Articles 14 and 16 of Constitution of India.
It is also contended that the Government has earlier taken a policy decision and issued G.O.Rt.No.815 Revenue (Endowments-
1) Department, dated 01.08.2016, posting I.A.S. cadre officers as Executive Officers for Sri Durga Malleswara Swamivarla Devasthanam and Sri Bhramaramba Mallikarjuna Swamy varla Devasthanam and conferred the powers on such Executive Officers that are to be exercised by the head of the department i.e., the Commissioner, Endowments. The said G.O. is clear that the subject temple is having such growing importance particularly after bifurcation of the State. The officer in the cadre of Deputy Commissioner, who is not promoted as Regional Joint Commissioner, cannot be posted as Executive Officer in the cadre of Regional Joint Commissioner. The present case the Deputy Commissioner who is eligible to be posted as Deputy Executive MSM,J WP_16903_2019 5 Officer is now posted as Executive Officer in the cadre of Regional Joint Commissioner as such respondent No.4 is ineligible, incompetent to continue as Executive Officer of respondent No.3 temple and requested to set aside the G.O. under challenge to the extent of Para-3, which relates to respondent No.4.
Respondent Nos.1 and 2 filed counter affidavit denying all material allegations interalia contending that the writ petition is not maintainable on the ground that the petitioner has no locus standi to file and maintain writ petition since the issue raised in the present writ petition comes under the purview of service law.
The writ petitioner is neither an affected party nor an aggrieved party to seek the Writ of Quo Warranto. The official respondents followed the due process of law and issued the GO.Rt.No.891.Rev.(Endowments-I), Department, dated 21.08.2019 by exercising powers under the AP Subordinate Rules read with the provisions under the AP. Charitable & Hindu Religious Institutions &Endowment Service Rules, 2002 and the Act 30 of 1987, as such the present petition is not maintainable on the ground that the petitioner is incompetent to prosecute the proceedings.
Respondent No.4 herein is a Deputy Commissioner, Endowments Department and there are no further qualifications or tests prescribed under the statutory provision, which disentitle the appointment of respondent No.4 as an executive officer in terms of Section 29 of the Act 30 of 1987. Respondent No.4 has completed minimum service in the cadre of Deputy Commissioner as such question of disqualification of respondent No.4 to be appointed as MSM,J WP_16903_2019 6 an Executive officer in his own scale of pay in the cadre of the Deputy Commissioner does not arise. There is no monetory loss to the Department/Government, no prejudice would be caused to devotees of the Devasthanam and the petitioner. Since the issue relates to the service law the present writ petition is liable to be dismissed.
It is further contended that the GO.Rt.No.891. Rev. (Endowments-I), Dept., 21-08-2019 which is in question was amended vide GO.Rt.No.1156.Rev.(Endts-I), Dept., dated 07.11.2019 by omitting the words "Joint Commissioner' in Sl.No.3, para-1. The writ petitioner has not referred to any provision of statute or statutory rules stating that the post of the Executive Officer of the subject Devasthanam is to be filled by the person in the cadre of Regional Joint Commissioner only.
It is further contended that the Government with an intention to protect the interest of the Institution and administrative convenience has appointed respondent No.4. In that process the authority will prefer posting of the persons with Administrative skills and the efficiency in service. The Government Order is issued in GO.Rt.No.891.Rev. (Endts-I), Dept. dated 21.08.2019 taking into consideration the interest of the Institution as well as administrative convenience. The Government's exercise of power by following the principles under the Service Law with an intention to protect the interest of the institution is not amenable to be questioned by the writ petitioners as he is not an interested and aggrieved party. Therefore, there is absolutely no irregularity in the order passed by the Government appointing respondent No.4 as Executive Officer of respondent No.3 temple. Respondent MSM,J WP_16903_2019 7 No.3 herein is a temple under Section 6 (a) of the Act 30 of 1987 on the basis of its annual income, therefore, appointment of respondent No.4 cannot be set aside and prayed to dismiss the petition.
Respondent No.4 also filed counter affidavit in his individual capacity and the prime objection raised in the counter is that the writ petition is not maintainable as the Writ of Quo Warranto itself is peculiar writ, asking to quit any person from the public office if that person is holding public office in violation of any statute or statutory provision. In the writ of Quo Warranto the petitioner is only a relator bring to the knowledge of the Constitutional Court about Firstly, that a particular post is Public Post and Secondly that, to occupy that post, if any qualifications and dis- qualifications by way of Statute or statutory Rules. If the court is satisfied that the person does not have the prescribed qualifications if any or attained any dis-qualifications and his posting was done in Violation of any statute or statutory provision a writ of Quo warranto can be issued, but no such violation is pointed out by the petitioner. Therefore, the Writ of Quo Warranto cannot be issued.
It is further contended that posting of a person to the higher post from the feeder category post on his own scale of pay in the absence of any required addl. qualification cannot attract Writ of Quo-warrento. In the present case, respondent No.4 worked as Dy. Commissioner and there are no further qualifications or tests prescribed under statutory provisions except minimum service for the promotion to the post of Joint Commissioner/Regional joint Commissioner. Since respondent No.4 completed minimum MSM,J WP_16903_2019 8 service, question of disqualification does not arise, therefore, the writ petition is liable to be dismissed on this ground also.
The petitioner has to first prove that, respondent No.4 occupied a particular cadre post and it is public post. The post occupied by respondent No.4 is un-doubtedly Executive Officer of Sri Durga Malleswara Swamy Varla Devasthanam which is public post as per Section 29 of the Act 30 of 1987. But petitioner seems to be confused by drafting error (the word Joint Commissioner) occurred in para 3 of the G.O. Rt. No 891 dated 21.08.2019. But the word 'Joint Commissioner' was taken away by way of Amendment vide G.O.Rt.No.1156 dated 07.11.2019. So the burden is on the petitioner to prove that respondent No.4 occupied post of Joint Commissioner since it is extinguished on account of G.O. referred above. Therefore, appointment of respondent No.4 falls within Section 29 (2) of the Act 30 of 1987, consequently, the petition is liable to be dismissed.
The petitioner wrongly relied on Note 3 to Rule 2 of the said G.O.Ms.No.590, but respondent No.3 do not found place in the statutory G.O. and the petitioner mistakenly without looking into the statutory provisions might have used G.O.Ms.No.590 dated 19.11.2018 and that the appointment of respondent No.4 is not violative of any of the provisions of Act 30 of 1987 and rules framed therein and prayed for dismissal of the writ petition.
Sri V.Venugopala Rao, learned counsel for the petitioner, reiterated the contentions while drawing the attention of this Court to G.O.Rt.No.891 dated 21.08.2019 and Rule 3 of the Service rules under the Act 30 of 1987 and note 3 of G.O.Ms.No.590 dated MSM,J WP_16903_2019 9 19.11.2018, which specified '7' major temples viz., Srisailam, Simhachalam, Annavaram, Srikalahasthi, Kanipakam, Dwaraka Tirumala, Kanakadurga Temple, Vijayawada. Based on the said Rule and note appended thereto, it is contended that only Regional Joint Commissioner alone be appointed as Executive Officer of respondent No.3 temple since there is no other temple at Vijayawada except Sri Durga Malleswara Swamivarla Devasthanam, for which respondent No.4 is appointed. Merely because, the word "Kanakadurga temple" is mentioned in the note, it cannot be lost sight as there is no other temple except Sri Durga Malleswara Swamivarla Devasthanam, which is locally known as Kanakadurga temple. Therefore, the contention that respondent No.3 temple is not included in 7 major temples is not correct. It is further contended that the petitioner is a person interested under clause (18) of Section 2 of the Act 30 of 1987 and he can maintain petition in view of Section 2 clause (18) of the Act 30 of 1987. Therefore, the question of incompetency of the petitioner does not arise. It is further contended that appointment of respondent No.4 in violation of rules framed by exercising power under Section 153 of the Act 30 of 1987, which acquired the status of statutory rules is sufficient to maintain Writ of Quo Warranto. Therefore, requested to set aside the G.O. to the extent of appointment of respondent No.4 as Executive Officer of respondent No.3 temple by disqualifying respondent No.4 to continue in the office of Executive Officer of respondent No.3.
Learned Government Pleader for Endowments supported the orders issued by the Government from time to time while reiterating that the petitioner has no locus standi and in the MSM,J WP_16903_2019 10 absence of any violation of statutory provision Writ of Quo Warranto is not maintainable. It is also contended that the writ petition is liable to be dismissed in limini in view of the subsequent G.O.Ms.No.1156 Revenue (Endowments-I) Department, dated 07.11.2019.
Sri N.Guru Gopal, learned counsel for respondent No.4, contended that in the absence of any statutory violation in appointment of respondent NO.4 or statutory provision under the Act 30 of 1987, the writ of Quo Warranto is not maintainable. Apart from that the petitioner lacks litigational competence to challenge the appointment of respondent No.4 and that the appointment is strictly in accordance with rules and the defect is rectified by G.O.Ms.No.1156 Revenue (Endowments-I) Department, dated 07.11.2019. In support of his contention, he placed reliance on the judgment of Apex Court in "B.Srinivasa Reddy v. Karnataka Urban Water Supply and Drainage Board Employees Association1" and requested to dismiss the writ petition.
Considering rival contentions, perusing the material available on record, the points that arise for consideration are:
(1) Whether the petitioner possessed litigational competence to file the present petition? If not, whether the petition is liable to be dismissed on the ground of lack of locus standi or litigational competency?
(2) Whether the appointment of respondent No.4, who is Deputy Commissioner, as Executive Officer of 1 (2006) 11 SCC 731 MSM,J WP_16903_2019 11 respondent No.3 temple, is in accordance with the provisions of the Act 30 of 1987 and service rules 2002? If not, whether the Serial No.3 of G.O.Rt.No.891 Revenue (Endowments-1) Department, dated 21.08.2019 to the extent of appointment of respondent No.4 as Executive Officer of respondent No.3 temple be set aside, disqualifying respondent No.4 to continue as Executive Officer of respondent No.3 temple?
P O I N T No.1:
The major contention raised by respondent Nos.1 and 2 is that the petitioner has no locus standi to file the writ of Quo Warranto.
The question of litigational competency would arise normally in private litigation but not in public interest litigation. Here, it is not a public interest litigation, but filed this petition on the grounds stated above. Even otherwise, there is a specific allegation in paragraph No.3 of the writ petition that the petitioner and his forefathers are staunch devotee of deity of Sri Durga Malleswara Swamivarla Devasthanam. According to clause (18) of Section 2 of the Act 30 of 1987, 'person having interest' includes - (a) in the case of a math, a disciple of the math or a person of the religious persuation to which the math belongs; (b) in the case of a charitable institution or endowment or a religious institution other than a math or a religious endowment, a person who is entitled to attend at or is in the habit of attending the performance of service, charity or worship connected with the institution or endowment or who is entitled to partake or is in the habit of partaking in the MSM,J WP_16903_2019 12 benefit of any charity or the distribution of gifts thereat; (c) in the case of a specific endowment, a person who is entitled to attend or is in the habit of attending the performance of the service or charity or who is entitled to partake or is in the habit of partaking in the benefit of the charity. Therefore, the petitioner would fall within sub-clause (b) of clause 18 of Section 2 of the Act 30 of 1987 as a person having interest.
A writ of Quo Warranto can be maintained by any person including person having interest as defined under sub-clause (b) of clause 18 of Section 2 of the Act 30 of 1987.
A person will have a standing if he or she is harmed by a legal wrong caused by administrative or State action or is adversely affected or aggrieved by such actions within the meaning of the relevant statute. (vide: Director of Endowments, Hyderabad v. Akram Ali2 and D. Nagaraj v. State of Karnataka3). Locus standi in the context of statutory remedy is not to be determined by analogy of locus standi to file petitions under Articles 32 or 226 of the Constitution of India. But, when a dispute or a controversy, productive of an injury in fact or that the party has been wronged or adversely affected by the action which impaired that concern and the said right or interest is arguably within "the zone of interest" protected by a statute or other instruments of law, can also give standing to the person. There is fine distinction between litigational competence in ordinary litigation i.e. adversarial and public interest litigation as non- adversarial, which varies from one to the other. If, the Act of the State or administrative authority of the State causes public injury or affects the right of public at large, 2 AIR 1956 SC 60 3 (1977) 2 SCC 148 MSM,J WP_16903_2019 13 such act need not be questioned by a person having locus standi or litigational competence and such act can be questioned by invoking pro bono publico.
The tests that may be applied for determining standing in private or individual interest pursuits may not be strictly applied in all cases of litigation in public interest. However, the commonality of some factors for determination of standing in both cases may be restated. Thus, a real grievance or injury must exist; the impact of State action must be demonstrated, access to justice in substantive or procedural terms must be shown to be involved, the demand to do justice and the failure to rectify the wrong is a relevant factor, the inappropriateness, futility, inadequacy, onerous or burdensome nature of alternative administrative processes, may have to be established to redress a claim by an individual by filing an application under Article 226 of the Constitution of India. But the action of the State infringes either fundamental right or statutory right of general public and apprehending injury to the public at large to any person having no interest in the said matter in question or challenge the State act.
Litigational competence is not waived in private litigation. But in public interest litigation only the litigational competence is waived to some extent but not absolutely. Therefore, one must have locus to redress the claim approaching the Court in a private litigation and they must have a right or interest in the property and infringement of it or invasion or infringement of such is sine qua non to obtain any relief from the competent court.
MSM,J WP_16903_2019 14 In Union of India v. W.N. Chadha4, the Apex Court held as follows:
"179. In Union Carbide Corporation, it has been said that any member of the society must have locus to initiate a prosecution as well as to resist withdrawal of such prosecution if initiated.
180. That proposition is also, in our opinion, cannot be availed of as the prosecution was initiated by the appellants herein and they are persecuting and pursing the matter upto this Court, The proposition that any one can initiate a criminal proceeding is not in dispute.
181. We have already considered the locus standi of a third party in a criminal case and rendered a considered finding in Janata Dal v. H.S. Chowdary [AIR 1993 SC 892] when this matter came before us in the first round of its litigation. Reference also may be made to Simranjit Singh Mann v. Union of India and Anr
182. Before the Supreme Court of United States, a similar question arose in Whitmore v. Arkansas ([1990] 495 US 149), , whether a next friend can invoke the jurisdiction of the Court when a real party was not able to litigate his or her own cause. The Supreme Court dismissed the writ of certiorari for want of jurisdiction on the ground that Whitmore, an independent person lacked standing to proceed in the case. In said case of Whitmore, reliance has been placed on a decision, namely, Gusman v. Marrero 180 US 81, 87, 45 L. Ed. 436, 21, S.Ct. 293 (1901), in which it has been held thus:
However friendly he may be to the doomed man and sympathetic for his situation; however concerned he may be lest unconstitutional laws be enforced, and however laudable such sentiments are, the grievance they suffer and feel is not special enough to furnish a cause of action in a case like this.
183. In fact when this case on hand came up before this Court arising out of the public interest litigation of Shri H.S. Chowdhary, some other political parties approached this Court as public interest litigants to challenge the impugned judgment in that case, but this Court rejected all those appeals on the ground of locus standi."
Similarly, in Bangalore Medical Trust v. B.S. Muddappa And others5, the Apex Court discussed the scope of litigational competence i.e. locus standi and its relaxation in public interest litigation based on Janata Dal v. H.S. Chowdary6. The law declared by the Apex Court in the above judgments is that, only in public interest litigation the litigational competence is waived 4 AIR 1993 SC 1082 5 1991 SCR (3) 102 6 AIR 1993 SC 892 MSM,J WP_16903_2019 15 though not absolutely, but in private litigation, such litigational competence cannot be waived.
In view of the law declared by various Courts referred above, the petitioner being a person having interest as defined under sub- clause (b) of Clause 18 of the Section 2 of the Act 30 of 1987 is entitled to question the appointment of respondent No.4 as Executive Officer of respondent No.3 temple by filing writ of Quo Warranto. Hence, this point is answered in favour of the petitioner and against the respondents holding that the writ petition is maintainable by the petitioner, who is having interest in the temple.
P O I N T No.2:
The major contention of the learned counsel for the petitioner is that appointment of respondent No.4 as Executive Officer of respondent No.3 temple is in violation of statutory provisions of Act 30 of 1987, so also the service rules framed thereunder vide G.O.Ms.No.245 Revenue (ENDT.1) Department dated 08.05.2002. He pointed out certain irregularities in appointment of respondent No.4 as executive officer of respondent No.3. More particularly, respondent No.4 only a Deputy Commissioner of Endowments having jurisdiction as defined under Section 10 of the Act 30 of 1987 and that the Deputy Commissioner cannot be appointed as Executive Officer of 7 major temples in the State as stated in G.O.Ms.No.590 Revenue (Endowments-1) Department dated 19.11.2018 Respondent No.4 contended that Sri Durga Malleswara Swamivarla Devasthanam is not a temple referred in Note 3 of G.O.Ms.590 Dated 19.11.2018, but this contention cannot be MSM,J WP_16903_2019 16 accepted for the simple reason that Sri Durga Malleswara Swamivarla Devasthanam is locally known as Kanakadurga temple in the entire Krishna District and no other temple other than Sri Durga Malleswara Swamivarla Devasthanam, where deity Kanakadurga is being worshipped. Therefore, the contention of respondent No.2 that Sri Durga Malleswara Swamivarla Devasthanam is not included in Note 3 of 7 major temples of Andhra Pradesh vide G.O.Ms.No.590 dated 19.11.2018 is misconceived and the temple referred as Kanakadurga temple in note is only Sri Durga Malleswara Swamivarla Devasthanam, but mere reference of the temple in the local name in note, is not a ground to accept the contention of learned counsel for respondent Nos.1 and 2. Hence, the contention that the name of respondent No.3 temple is not included in 7 major temples of the State vide Note 3 of G.O.Ms.No.590 dated 19.11.2018 is rejected.
Sri N.Guru Gopal, learned counsel for respondent No.4, contended that in the absence of any statutory violation or violation of any statutory provision while appointing respondent No.4 as an Executive Officer of respondent No.3, writ of Quo warranto is not maintainable. In support of his contention, he placed reliance on the judgment of Apex Court in "B.Srinivasa Reddy v. Karnataka Urban Water Supply and Drainage Board Employees Association" (referred supra). The Apex Court while dealing with the circumstances under which the Writ of Quo Warranto can be issued, held that Writ of Quo Warranto does not lie if the alleged violation is not of a statutory provision.
The law declared by the Apex Court is not in quarrel. The writ of Quo Warranto means "by what authority". By this writ, a MSM,J WP_16903_2019 17 person who occupies or usurps an independent substantive office is asked to show by what authority he claims it. According to Halsbury "an information in the nature of quo-warranto took the place of the obsolete writ of quo-warranto which lay against a person who claimed or usurped an office, franchise or liberty, to enquire by what authority he supported his claim, in order that the right to the office or franchise might be determined." The procedure of quo warranto confers jurisdiction on the Court to call upon the person holding an independent substantive public office or franchise or liberty to show by what right he holds the said office, franchise or liberty (Vide: University of Mysore v. Govind Rao7) Therefore, to issue a writ of Quo Warranto, the person who approached the Court must establish that the other person is holding an independent substantive public office or franchise though disqualified.
Here, in this case, respondent No.4 though initially contended that he is not discharging his duties in the public office, but for one reason or the other he admitted in the counter vide paragraph No.3 of the counter that respondent No.4 is holding public office in terms of Section 29 of A.P.Act 30 of 1987. Section 29 deals with appointment and duties of Executive Office.
Respondent No.3 is a public temple and the persons working therein in their official capacity are the public officers. Therefore, the office held by respondent No.4 is a public office and the respondent No.4 is discharging his public duties. Thus, it is not dispute that respondent No.4 is holding public office of respondent No.3 temple, but writ of Quo warranto can be issued if there is 7 AIR 1965 SC 491 MSM,J WP_16903_2019 18 clear violation of law. The High Court cannot issue the said writ if there is no clear violation of law in the appointment of person. Quo warranto proceeding affords 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 said office, franchise or liberty, so that his title to it may be duly determined, and in case finding is that holder of office has no title, he would be ousted from that office by judicial order. In other words, procedure of Quo warranto gives judiciary weapon to control Executive from making appointment to public office against law and to protect citizen from being deprived of public office to which he has right. These proceedings also tend to protect public from usurpers of public office, who might be allowed to continue either with connivance of Executive or by reason of its apathy. Before any person can effectively claim writ of Quo Warranto, he has to satisfy Court that office in question is public office and is held by usurper without legal authority, and that inevitably would lead to enquiry as to whether appointment of alleged usurper has been made in accordance with law or not. (vide: "Chandra Shekhar Kargeti v. State of Uttarakhand8") Turing to the facts of the present case, respondent No.4 is only Deputy Commissioner in the Endowments Department and functioning as Regional Joint Commissioner. Powers and functions of Regional Joint Commissioner and Deputy Commissioner are prescribed under Section 9 and 10 of the Act 30 of 1987, both are relevant for deciding the controversy between the parties. Section 9 of the Act 30 of 1987, reads as follows:
8
AIR 2018 Uttarakhand 38 MSM,J WP_16903_2019 19 "9. Powers and functions of Regional Joint Commissioner: -Subject to the administrative control of the Commissioner a Regional Joint Commissioner shall exercise such powers and perform such functions of the Commissioner as may, from time to time, be determined by the Government in respect of institutions and endowments in the region and any order passed or proceeding taken by a Regional Joint Commissioner in the exercise of such powers and the performance of such functions shall be deemed to be an order of the Commissioner for the purpose of this Act."
Section 10 of the Act 30 of 1987 reads as follows:
"Section 10 - Powers and functions of Deputy Commissioner:-Every Deputy Commissioner shall, within the division in his charge exercise the powers conferred on and perform the functions entausted to a Deputy Commissioner as such by or under this Act, in respect of such institutions or endowments as are included in the list published under Clause (b) of Section 6:
Provided that where a specific endowment is situated in two or more divisions, the Commissioner shall decide as to which of the Deputy Commissioners shall have the jurisdiction to exercise the powers, or perform the functions in respect of such endowment."
Thus, the powers of Deputy Commissioner are limited and Deputy Commissioner can exercise power only in respect of temples or institutions published under clause (b) of Section 6 of the Act. Section 6 of the Act 30 of 1987 deals with preparation and publication of list of charitable and religious institutions and endowments on the basis of income. Clause (a) deals with the charitable institutions and endowment; or the religious institutions and endowments other than maths; whose annual income as calculated for the purpose of levy of contribution under Section 65 exceeds rupees twenty five lakhs.
A conjoint reading of Section 6 and 10 of the Act 30 of 1987 reveals that the Deputy Commissioner is entitled to exercise power within the region entrusted to him only on the institutions and endowments published under clause (b) of Section 6 of the Act 30 of 1987. Therefore, respondent No.4 being the Deputy MSM,J WP_16903_2019 20 Commissioner is entitled to be appointed as Deputy Executive Officer of respondent No.3 - temple, but not as Executive Officer. Therefore, appointment of respondent No.4, who is an officer in the cadre of Deputy Commissioner, as an Executive Officer for respondent No.3 temple published under clause (a) of Section 6 of the Act 30 of 1987, is without any qualification. Therefore, his appointment is contrary to Section 10 read with Section 6 (1) (a) of the Act 30 of 1987.
In any view of the matter, Section 29 deals with appointment and duties of Executive Officer, which is as follows:
Section 29 - Appointment and duties of Executive Officer 1[There shall be an Executive Officer for every Charitable or Religious Institution or Endowment to be appointed by the Government in the case of institutions and Endowments having income of rupees one crore and above and by the Commissioner in the case of other Institutions and Endowments included in the lists published under clauses (a) and (b) of Section 6. In respect of charitable or religious institutions or endowment having income of less than rupees two lakhs per annum, and included in the list published under clause (c) of Section 6, it shall not be necessary to appoint an executive officer. The cadre of Executive Officers to be appointed under this section for the respective institutions on the basis of the income of the Institution "or Endowment shall be as may be prescribed.
Procedure for appointment of Executive Officers of various temples is governed by G.O.Ms.No.245 Revenue (ENDT.1) Department dated 08.05.2002 as amended by G.O.Ms.No.590 Revenue (Endowments-I) Department dated 19.11.2018.
MSM,J WP_16903_2019 21 The service rules of A.P. Charitable and Hindu Religious Institutions published in G.O.Ms.No.245 dated 08.05.2002 is a complete code. Various cadres are classified as Class-1 and Class- II. Class-1 consists of '5' categories. Class-II consists of '7' categories. Class-1 consists of Commissioner, Additional Commissioner, Regional Joint Commissioner including Joint Commissioner, Deputy Commissioner and Assistant Commissioner.
Respondent No.4 is under category (4) under Class-I as per Rule 2 of the Rules Vide G.O.Ms.No.245 dated 08.05.2002. The method of appointment is also prescribed under Rule 3, which is as follows:
Rule 3. Appointing Authority and the method of appointment:
In Class - I for the categories 1,2 and 3, the Government shall be the appointing authority and for categories 4 and 5, the Commissioner of Endowments is the appointing authority. In Class-II, for Category 1, the Government is the appointing authority and for categories 2 to 7 the Commissioner is the appointment authority. The method of appointment for the said posts shall be as follows:-
Sl.No. Class 1 - Category Method of Appointment 1 Commissioner (i) By appointment of a person who is holding or has held a post of District Collector or a post not below the rank of District Collector in any other Service in the State or
(ii) By appointment of a person who is holding or has held a post in the Andhra Pradesh Higher Judicial Service; or
(iii) By appointment of a person who has at least 10 years of practice as an advocate in the MSM,J WP_16903_2019 22 High Court of Andhra Pradesh Or the Supreme Court of India Or
(iv) By promotion from the category of Addl. Commissioner (Category-II of Class - I) 2 Additional Commissioner (i) By promotion from the category of Regional Joint Commissioner including Joint Commissioner (Category-3 of Class - I) 3 Regional Joint (i) By promotion from the Commissioner including category Including Joint Joint Commissioner Commissioner of Deputy Commissioner (Category-4 of Class - I) or by transfer of an IAS Officer/ Special Grade Deputy Collector on Deputation.
4 Deputy Commissioner (i) By direct recruitment of a Person, who has atleast 5 years of practice as an advocate in the High Court of Andhra Pradesh or in the Supreme Court of India.
(ii) By promotion from the category of Assistant Commissioner (Category-5 of Class - I)
(ii) By deputation of Deputy Collector.
5 Assistant Commissioner (i) By direct recruitment of a Person, who has not less than 9 (three) years of practice as an advocate in the High Court of Andhra Pradesh or
(ii) By promotion from the category of Superintendent in Endowments Department; or
(ii) By promotion of Executive Officer Grade-I; or
(iv) By transfer of a person, who has been holding an equivalent post of Asst. Commissioner in any of the Charitable or Hindu Religious Institutions and Endowments Published under clause (a) of Section 6 of the Andhra Pradesh Charitable and Hindu Religious Institutions land Endowments Act 1987 including a person in the service of the Tirumala Tirupathi Devasthanams.
MSM,J WP_16903_2019 23 The Regional Joint Commissioner including Joint Commissioner is under category-3 of Class - 1, the method of appointment of Regional Joint Commissioner including Joint Commissioner is by promotion from the category of Deputy Commissioner (category-4 of class - 1) or by transfer of an IAS officer/special Grade Deputy Collector on deputation.
Whereas, Deputy Commissioner can be appointed by direct recruitment of a Person, who has at least 5 years of practice as an advocate in the High Court of Andhra Pradesh or in the Supreme Court of India or by promotion from the category of Assistant Commissioner (Category-5 of Class - I) or by deputation of Deputy Collector. Therefore, it is abundantly clear that the Regional Joint Commissioner including Joint Commissioner is promotional post from the feeder category i.e. Deputy Commissioner.
G.O.Ms.No.245 dated 08.05.2002 is amended by G.O.Ms.No.590 dated 19.11.2018 amending rule 3 also incorporating certain clauses. In clause (1) another category-6 is created i.e. Gazetted Superintendent in the office of the Commissioner/Gazetted Special Category Stenographer in the office of the Commissioner.
In any view of the matter, in Note 3 of amended Rule 3, which is incorporated by G.O.Ms.No.590 dated 19.11.2018. There shall be a Deputy Executive Officer in the cadre of Deputy Commissioner for the 7 major temples viz., Srisailam, Simhachalam, Annavaram, Srikalahasti, Kanipakam, Dwaraka Tirumala, Kanakadurga Temple, Vijayawada. The said posts shall be filled by the Government on deputation basis from Endowments Department.
MSM,J WP_16903_2019 24 Therefore, additional post is created in the temples specified in Note 3 as major temples in the State of Andhra Pradesh. According to it, the Deputy Commissioner can be appointed as Deputy Executive Officer of the temple. But respondent No.4, who is in the cadre of Deputy Commissioner is appointed as Executive Officer, which is meant for Regional Joint Commissioner including Joint Commissioner, whose appointment is from the feeder category of Deputy Commissioner or by transfer of an IAS officer/special Grade Deputy Collector on Deputation. Respondent No.4 is only a Deputy Commissioner in the feeder category, but not an IAS or IRS officer. However, he was not promoted as Regional Joint Commissioner or Joint Commissioner. Therefore, his appointment to the office of Executive Officer is contrary to the G.O.RT.No.815 dated 01.08.2016, the Government is posted I.A.S. officers as Executive Officers to Sri Durga Malleswara Swamy Varla Devasthanam, Vijayawada and Sri Bramaramba Mallikarjuna Swamy Varla Devasthanam, Srisailam in view of their growing importance and in order to facilitate speedy decisions in those two temples special powers are conferred on the Executive Officers specified in the G.O. Therefore, appointment of I.A.S. officer, who is in the cadre of Regional Joint Commissioner for respondent No.3 is mandatory, but respondent No.4, who is in the cadre of Deputy Commissioner is eligible to be appointed as Deputy Executive Officer, but not as Executive Officer. Rules are subordinate legislation and they are framed by exercising power under Section 153 of the Act 30 of 1987 acquired statutory force. When rules are framed for appointment in the various categories of department vide G.O.Ms.No.245 dated 08.05.2002 by exercising power under MSM,J WP_16903_2019 25 Section 153 of the Act 30 of 1987, they are deemed to be statutory rules on their publication. Therefore, rules acquired status of statutory rules in view of the law declared by the Division Bench of this Court in "Sajana Granites v. Manduva Srinivasa Rao9"
When appointment of respondent No.4 is in contravention of rules framed by exercising statutory power under Section 153 of the Act 30 of 1987, respondent No.4, who is in the cadre of Deputy Commissioner as per rules eligible for being appointed as Deputy Executive Officer in terms of G.O.Ms.No.590 dated 19.11.2018, but not eligible to be appointed as Executive Officer, and the post of Executive Officer is to be filled by an IAS/Special Grade Deputy Collector on deputation, Regional Joint Commissioner including Joint Commissioner. Therefore, respondent No.4 is not entitled to continue as Executive Officer of respondent No.3 temple on account of his disqualification for being appointed as Executive Officer The appointment of respondent No.4 is by G.O.Rt.No.891 dated 21.08.2019. As per serial No.3 in paragraph No.1, M.V.Suresh Babu (respondent No.4), Deputy Commissioner is posted as Joint Commissioner and Executive Officer, Sri Durga Malleswara Swamy Vari Devasthanam, Vijayawada in his own scale of pay vice Smt.V.Koteswaramma, IRS is transferred.
Thus, respondent No.4 though Deputy Commissioner is posted as Executive Officer of respondent No.3 though not promoted as Joint Commissioner from category 4 to 3. But in the later G.O.Rt.No.1156 dated 07.11.2019 the G.O.Rt.No.891 dated 21.08.2019 is amended and reads as follows.
9 2002 (10) ALT 466 MSM,J WP_16903_2019 26 For Read On transfer, M.V.Suresh Babu M.V.Suresh Babu (respondent (respondent No.4), Deputy No.4), Deputy Commissioner is Commissioner is posted as Joint posted as Executive Officer, Sri Commissioner and Executive Durga Malleswara Swamy Vari Officer, Sri Durga Malleswara Devasthanam, Vijayawada in his Swamy Vari Devasthanam, own scale of pay vice Vijayawada in his own scale of Smt.V.Koteswaramma, IRS is pay vice Smt.V.Koteswaramma, transferred. IRS is transferred.
Conveniently, the word "joint Commissioner" is deleted after appointing respondent No.4 as Executive Officer of respondent No.3 temple, this mistake was realised only after filing this writ petition and issued G.O.Rt.No.1156 dated 07.11.2019 to overcome the legal flaws in the appointment of respondent No.4 as Joint Commissioner and Executive Officer of respondent No.3. Merely because G.O.Rt.No.1156 is passed, it would not cure the defect in appointing respondent No.4 as Executive Officer of respondent No.3 temple since officer in the cadre of I.A.S. is being appointed as Executive Officer of the temple in view of growing importance as referred in G.O.Rt.No.815 dated 01.08.2016 conferring certain powers. Hence, appointment of respondent No.4 as executive officer is contrary to service rules and it is nothing but arbitrary exercise of power by the Government for extraneous reasons. Consequently, appointment of respondent No.4 as Executive Officer of respondent No.3 is liable to be set aside holding that he is disqualified to hold the office of Joint Commissioner which is in the cadre of category - 3 of class - 1 under Rule 3 of the Rules 2002 and not entitled to continue as Executive Officer of respondent No.3 till he is promoted as Joint Commissioner or Regional Joint Commissioner under category - 3 of Class -1 of the Rules, 2002.
MSM,J WP_16903_2019 27 As discussed above, respondent No.4 is holding public office without qualification for being appointed as Executive Officer of respondent No.3 temple being Deputy Commissioner under category - 4 of class -1 of Rule 3 of Rules 2002.
In the result, the writ petition is allowed. The appointment of respondent No.4 vide G.O.Rt.No.891 Revenue (Endowments -I) Department dated 21.08.2019 is hereby set aside by issuing Writ of Quo Warranto. No costs.
The miscellaneous petitions pending, if any, shall also stand closed.
_________________________________________ JUSTICE M. SATYANARAYANA MURTHY 24.01.2020 Ksp