Gujarat High Court
Nathalal Maganbhai Patel Head Of ... vs State Of Gujarat & 2 on 8 October, 2015
Author: J.B.Pardiwala
Bench: J.B.Pardiwala
C/SCA/8414/2014 CAV JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 8414 of 2014
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE J.B.PARDIWALA
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1 Whether Reporters of Local Papers may be allowed to
see the judgment ? NO
2 To be referred to the Reporter or not ?
NO
3 Whether their Lordships wish to see the fair copy of the
judgment ? NO
4 Whether this case involves a substantial question of
law as to the interpretation of the Constitution of India
NO
or any order made thereunder ?
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NATHALAL MAGANBHAI PATEL HEAD OF DEPARTMENT OF,MECHANICAL
ENGINEERING....Petitioner(s)
Versus
STATE OF GUJARAT & 2....Respondent(s)
==========================================================
Appearance:
MR CHINMAY M GANDHI, ADVOCATE for the Petitioner(s) No. 1
MR MB GANDHI, ADVOCATE for the Petitioner(s) No. 1
MR ROHAN YAGNIK, AGP for the Respondent(s) No. 1
MR DG SHUKLA, ADVOCATE for the Respondent(s) No. 2
MR KB PUJARA, ADVOCATE for the Respondent(s) No. 3
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CORAM: HONOURABLE MR.JUSTICE J.B.PARDIWALA
Date : 08/10/2015
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C/SCA/8414/2014 CAV JUDGMENT
CAV JUDGMENT
1 By this writ petition under Article 226 of the Constitution of India, the petitioner, a retired Head of Department of the Mechanical Engineering Division of the State of Gujarat, has prayed for the following reliefs:
"11 a) This Hon'ble Court may be pleased to issue a writ of quo warranto and/or any other appropriate writ, order or direction in the nature of quo warranto against the respondents Nos.1 and 2 and be further pleased to hold and declare that the appointment of respondent No.3 is illegal and therefore, such appointment be quashed and setaside and the appointment given on 05.10.2009 as per AnneuxreE of respondent No.3 be declared as illegal and void and the same be quashed and setaside.
b) Pending admission, hearing and/or final disposal of this petition, this Hon'ble Court may be pleased to retrain the respondent No.3 from working on the post of Joint Director, Technical Education and be further pleased to restrain him from holding any post in the Technical Education Department.
c) Such other and further orders as this Hon'ble Court may deemed just, fit and expedient be passed in favour of the petitioner.
d) Costs of this petition be provided for to the petitioner."
2 The case of the petitioner may be summarized as under:
2.1 The petitioner has prayed for a writ of quo warranto, as according to him, the respondent No.3 could be said to be a usurper of a public post. It is the case of the petitioner that the respondent No.3 was illegally appointed as he had no experience as required under the statutory rules.
2.2 According to the petitioner, the State Government has framed Page 2 of 27 HC-NIC Page 2 of 27 Created On Fri Oct 09 02:11:28 IST 2015 C/SCA/8414/2014 CAV JUDGMENT rules for an appointment in the post of the Principal in the Government Polytechnics. The said rules are called the 'Principal in Government Polytechnics in the Gujarat Educational Services, Class I (Collegiate Branch) Recruitment Rules, 1988. According to the said rules, the appointment to the post of Principal in the Government Polytechnic is made either by promotion or by direct selection.
2.3 The case in hand is one of the direct selection. Rule 2(b) of the said Rules provides for direct selection and Rule 4 provides for the eligibility criteria for the appointment by direct selection.
"2. Appointment to the post of Principal in Government Polytechnics in the Gujarat Educational Service, Class (Collegiate Branch) shall be made either
a) By promotion of a person of proved merit and efficiency from amongst the persons who have worked for not less than five years in the cadre of Head of the Department, Gujarat Educational Service, ClassI, in appropriate branch of Engineering or Technology and who have passed the Departmental Examinations, if any.
Provided that where an appointing authority is satisfied that a person having experience specified above is not available for promotion and that is is necessary in the public interest to fill up the post by promotion of a person having experience of a lesser period it may for reason to be recorded in writing promote a person who possessing Lesser experience.
Provided further that the lesser experience 30 possessed by the candidate is not less than two thirds of the total period referred to above or;
2.4 Rule 4 reads thus:
"To be eligible for appointment by direct selection to the post mentioned in rule 2, a candidate shall Page 3 of 27 HC-NIC Page 3 of 27 Created On Fri Oct 09 02:11:28 IST 2015 C/SCA/8414/2014 CAV JUDGMENT
a) not be more than 45 years of age.
Provided that the upper age limit may be relaxed in favour of a candidate who is already in the service of the Government of Gujarat and also in favour of a candidate belonging to schedule caste or schedule tribe or socially and educationally backward class in accordance with the provisions of the Gujarat Civil Services, Classification and Recruitment (General) Rules, 1967.
Provided further that the upper age limit may also be relaxed in favour of a candidate possessing exceptionally good qualifications or experience or both.
(b) Possess
i) Maser's Degree in first class in any branch of Engineering or Technology or its equivalent qualifications obtained from University established by law in India or deemed to be University under Section 3 of the University Grant Commission Act, 1956;
ii) ten year's experience in teaching or in industry in research at the appropriate level out of which about five years experience should be administrative experience in a responsible position gained after acquiring the qualifications mentioned in sub clause (i) above.
iii) Adequate knowledge of Gujarati or Hindi or both.
Provided that preference shall be given to a candidate having Ph.D. Degree in Engineering or in Technology or in Technical Education.
Explanation - Master's degree or Ph.D. Degree in Engineering or in Technology wherever mentioned will imply the Degree from an Institute recognized by All India Council for Technical Education and of statutory University or deemed University as recognized by the Government of Gujarat and Engineering also implies Technology." 2.5 Similarly, for the post of the Joint Director of Technical Division, Class I, the Recruitment Rules, 2003, more particularly, Rule 2 reads thus:
"Appointment to the post of Joint Director of Technical Education, ClassI in the Directorate of Technical Education in Gujarat Educational Services (Administrative Branch) shall be made by transfer of a person deputation from amongst the persons working in the cadre of Professors in Page 4 of 27 HC-NIC Page 4 of 27 Created On Fri Oct 09 02:11:28 IST 2015 C/SCA/8414/2014 CAV JUDGMENT Engineering Colleges or Principals in the Government Polytechnics."
2.6 It is the case of the petitioner that for the post of the Principals of the Government Polytechnics, an advertisement was published by the G.P.S.C. to fill up thirteen posts, subdivided into different categories as indicated in the advertisement. The advertisement also prescribed the requisite qualifications.
2.7 Pursuant to the advertisement, sixty six candidates had applied for the post divided into two groups. Out of sixty six candidates, who had applied, the respondent No.3 herein was at Serial No.48 in the list. In his application form, he stated that he had the teaching experience of 5 years 3 months and 23 days, after acquiring the Masters Degree. The respondent No.3 further stated in the application that he possessed industrial / administrative experience of 8 years 5 months and 20 days and by consolidating or adding the teaching experience with industrial experience, he claimed that he had a total experience of 15 years 5 months and 29 days.
2.8 It is the case of the petitioner that having regard to such declaration made by the respondent No.3 in the application form, he was not fulfilling the requisite eligibility criteria as he had only 5 years of teaching experience and not 10 years of teaching experience, as required.
Page 5 of 27 HC-NIC Page 5 of 27 Created On Fri Oct 09 02:11:28 IST 2015 C/SCA/8414/2014 CAV JUDGMENT 2.9 It is the case of the petitioner that his industrial experience of 8 years would also not save the situation, as the requirement is of 10 years.
2.10 It is the case of the petitioner that there is no provision for clubbing the experience either on the teaching side or on the technical side or on the research side and each category is indicated in the rules independently. According to the petitioner, the candidates must possess 10 years of experience, out of which 5 years of experience should be on the administrative side.
2.11 It is the case of the petitioner that the respondent No.3 although was not fulfilling the requirement as advertised and prescribed by the G.P.S.C., yet was appointed to the post in question i.e. the Joint Director on 05.10.2009.
2.12 In such circumstances, referred to above, the petitioner prays that the respondent No.3 should be removed from the post by issue of a writ of quo warranto.
3 Mr. M.B. Gandhi, the learned counsel appearing for the petitioner submitted that the decision of the Consultative Committee to club the experience in different faculties is absolutely illegal because the rules do not provide for the same.
Page 6 of 27 HC-NIC Page 6 of 27 Created On Fri Oct 09 02:11:28 IST 2015 C/SCA/8414/2014 CAV JUDGMENT 4 Mr. Gandhi submitted that according to the rules, the appointment can be made by the Supervisor of the Engineering College or the Principal of the Government Polytechnics, but in the case in hand, the respondent No.3 was neither holding the post of a Supervisor of any Engineering College nor the post of a Principal of any Government Polytechnic. In such circumstances, the question of his appointment to the post in question did not arise because the post is meant to be filled up on deputation basis and not by direct recruitment. Therefore, according to Mr. Gandhi, if a person is not holding the post either as a Supervisor of the Engineering College or as a Principal of the Government Polytechnic, then the direct appointment is not permissible. Mr. Gandhi submitted that the G.P.S.C. could not have changed the prefix "or" and substitute the same with "and". The rules, in this regard, according to Mr. Gandhi, are very clear. The G.P.S.C. has no authority to conveniently change the rules or read the same to suit a particular situation.
5 Mr. Gandhi has placed reliance on two decisions of the Supreme Court (1) Dr. Rajinder Singh v. State of Punjab [AIR 2001 SC 1769], and (2) Central Electricity Supply Utility of Odisha v. Dhobei Sahoo [AIR 2014 SC 246].
6 In such circumstances, referred to above, Mr. Gandhi prays that Page 7 of 27 HC-NIC Page 7 of 27 Created On Fri Oct 09 02:11:28 IST 2015 C/SCA/8414/2014 CAV JUDGMENT there being merit in this petition, the same be allowed and the writ of quo warranto be issued.
7 On the other hand, this writ petition has been vehemently opposed by the respondents. A detailed affidavitinreply has been filed on behalf of the respondent - the State of Gujarat making the following averments:
"7. It is respectfully submitted that the case of the petitioner appears to be that the private respondent no.3 is appointed de hors the rules framed under proviso Article 309 of the Constitution of India known as Principal in Government Polytechnics in the Gujarat Educational Service, Class I (Collegiate Branch) Recruitment Rules, 1988. The petitioner has contended that the private respondent no.3 does not hold the experience provided in subrule b (ii) of Rule 4 which is quoted as under:
"4 (b)(ii) Ten year's experience in teaching or in industry in research at the appropriate level out of which about five years experience should be administrative experience in a responsible position gained after acquiring the qualifications mentioned in sub clause (i) above;"
It is respectfully submitted that the contention of the petitioner that the contention of the petitioner appears to be that a candidate is required to have a total experience of 10 years in teaching or industry or research which shall be actual 10 years of experience in either of the 3 branches being the appropriate experience of the direct recruitment to the post of Principal. The contention of the petitioner also appears to be that the deponent has committed an error by considering a consolidated / combined experience in either of the 3 branches being teaching or industry or research.
8. It is respectfully submitted that the present petition is filed under misreading of the recruitment Rule which clearly provides that a consolidated experience of 10 years in either of the 3 branches is required. If the said rule is perused and if the intent of the legislation which framing the said rules was to have a requirement of experience of 10 years in a particular branch the rule would have in fact provided such requirements. In fact even out of the consolidated experience of 10 years the rule provides that out of the consolidated experience of 10 years the candidate must have 5 years experience as an administrative experience in a responsible position, gained after acquiring the qualifications in the said Rule. Page 8 of 27 HC-NIC Page 8 of 27 Created On Fri Oct 09 02:11:28 IST 2015 C/SCA/8414/2014 CAV JUDGMENT
9. It is respectfully submitted that apart from the assertion of the petitioner that a candidate is required to have an experience of 10 years in an individual branch the petitioner has failed to produce anything on record to substantiate the contention of the petitioner by any decision of the State Government, public commission or this Hon'ble Court interpreting the rule in the manner in which is sought to be canvassed by the petitioner in the present petition.
10. It is respectfully submitted that the issue on interpreting the rule also was considered by the State Government as well as public commission in the recruitments which took place in the earlier recruitments.
11. It is respectfully submitted that the Directorate of Technical Education by a letter dated 17.01.2005 intimated to the Education Department that in response to the opinion which was sought for, the department the Directorate of Technical Education had concurred with the findings of experts who were addressed six issues raised by the Department. The first issue which the experts opined was pertaining to the post of Principal by the AICTE which is the governing body as well as the authority prescribed the requirement of appointment. It would be appropriate to submit that the Directorate of Technical Education concurred with the findings of the experts that the recruitment rules which provide for a qualification of 10 years can be considered as a consolidated experience in any of the 3 fields prescribed by the recruitment rules. A copy of the letter dated 17012005 of Directorate of Technical Education is annexed herewith and marked as Annexure RI and copy of the letter dated 24012005 of Education Department is annexed herewith and marked as Annexure RII.
12. It is respectfully submitted that the said issue again cropped up for consideration in the recruitments which took place in the year 200607. The commission again issued a letter dated 26.06.2007 seeking clarification on two issues which were addressed by the experts as well as the Directorate of Technical Education during the earlier recruitment. The Education Department by a letter dated 13.07.2007 forwarded those issues to the Directorate of Technical Education. The Directorate of Technical Education by a letter dated 22.078.2007 addressed a letter to the Education Department clarifying the said aspect. The Education Department by a letter dated 31.08.2007 clarified to the commission the two queries which were raised by the commission by a letter dated 26.06.2007. However, at this juncture, it wold be pertinent to note herein that even while clarifying the said issue the Education Department had very clearly submitted that as far as the requirement of experience is concerned the same is consolidated experience of 10 years out of which 5 years experience of administration would be required. Copies of the letter dated 26.06.2007, 13.07.2007, 22.08.2007 and 31.08.2007 are annexed herewith and marked as Annexure RIII (Collectively). Page 9 of 27 HC-NIC Page 9 of 27 Created On Fri Oct 09 02:11:28 IST 2015 C/SCA/8414/2014 CAV JUDGMENT
13. It is respectfully submitted that the commission by a letter dated 31.03.2008 again raised a query as to whether there was a mandatory requirement of experience in education apart from the experience in industries or research and the administrative experience. A further query was raised that whether the rules required mandatory experience in all the three branches or whether a candidate not having a experience anyone branch can be considered. The commission also raised an issue of requirement of teaching experience of Lecturer, Class II or administrative experience of a candidate on a post of Deputy Executive Engineer or above it can be considered or note? A copy of the letter dated 31.03.20078 is annexed herewith and marked as Annexure RIV.
14. It is respectfully submitted that the Education Department after having taken a decision at the appropriate lever replied to the letter dated 31.03.2008 or the commission whereby the department had submitted to the commission that the department concurred with the opinion of the commission that experience in education was not a mandatory requirement as far as the recruitment rules are concerned and it further clarified that a candidate not having any experience in the field of education can be considered for appointment. The said letter also clearly provides that as far as the requirement of experience in either of three faculties is concerned a consolidated experience or an experience in a particular faculty can be taken in to consideration for appointment. However, out of the experience of 10 years the administrative experience of 5 years was required. The department therefore, concurred with the opinion of the commission on the said issue. It is further submitted that the Education Department also answer the issue of requirement of teaching experience of Lecturer, and the experience of the cadre of Deputy Executive Engineer or a cadre above it for administrative experience the department had very clearly submitted that experience of teaching as Lecturer and experience as a Deputy Executive Engineer for administrative experience of 5 years in a consolidated manner of 10 years or more can be considered as the requisite requirement to be taken into consideration for appointment. However, out of the consolidated experience of10 years, 5 years shall mandatorily be for administration. The opinion of the department is in the table which is forming a part of the communication dated 05.06.2008. A copy of the said communication dated 05.06.2008 is annexed herewith and marked as Annexure RV.
15. It is respectfully submitted that while recommending the selection list of 5 candidates including again requested the State Government to properly verify and confirm the requirements of educational qualifications and or experience, age, citizenship etc as per the General Administrative Department's circular dated 23.07.1990. It would be pertinent to refer to the circular dated 23.07.1990 which provides that the process of verification is essentially the duty of appointing authority therefore, the Page 10 of 27 HC-NIC Page 10 of 27 Created On Fri Oct 09 02:11:28 IST 2015 C/SCA/8414/2014 CAV JUDGMENT appointing authority shall issue the orders of appointment to a particular post after the candidate satisfies the recruitment rules and shall also issue a unambiguous certificate to that effect. A coy of the circular dated 23.07.1990 is annexed herewith and marked as Annexure RVI.
16. It is respectfully submitted that on perusal of the records it appears that the verified the original certificates, educational qualification and experiences, educational qualification and experience, age proof. The department therefore, verified that these aspects more particularly the requirement or educational qualification, experience, and verification of certificates be done by the Education Department before actual orders or appointment as suggested by the commission and also certified that the appointments as required by the circular dated 23.07.1990 issued by the General Administrative Department.
17. It is respectfully submitted that it is the contention of the petitioner that a huge correspondence took place long after the appointment orders that too by giving a go bye to the mandatory rules the appointment orders were issued on 05.10.2009. The said contention is also required to be considered that while considering the eligibility of the 5 candidates who were to be appointed by the Education Department the case of the respondent No.3 as well as one other candidate viz. B.G. Bhankar was set upto the appropriate level as per the channel of submission of cases. From the notings of the original files it appears that the candidates were placed at Sr. No.1 and Sr. No.5 in the panel of selected candidates.
18. It is respectfully submitted that after an indetail scrutiny and applying the recruitment rues vigorously the department concluded that as far as the appointment of candidate at Sr. No.1 i.e. private respondent no .3 is concerned the approval was accorded as the department was satisfied about the fact that the said candidate was holding requisite experience as required by the recruitment rules. The contention of the petitioner that the department was biased is required to be rejected on the ground that while considering the name of two candidates the department referred the name of other candidate who stood at Sr. no.5 viz. B.G. Bhankar back to the GPSC. It would also be pertinent to note herein that as per petitioner pursuant to the advertisement issued in all66 applications were received by the department however only 8 candidates were called for personal interviews. The caution which was required to be taken by the department and commission in initial stage was vigorously being done by the competent authority at the relevant point of time. If the authorities were not satisfied with the requirements of the recruitment rules being fulfilled by the respondent no.3 the candidature of the private respondent could not have been rejected at the threshold. In view of the said fact the deponent humbly submit that there was no malafides on the part of the state either at the relevant point of time or thereafter. The petitioner has failed to substantiate the same by placing anything on Page 11 of 27 HC-NIC Page 11 of 27 Created On Fri Oct 09 02:11:28 IST 2015 C/SCA/8414/2014 CAV JUDGMENT record.
19. It is respectfully submitted that the Education Department purely considering the recruitment rules and the qualifications and experience along with the commission after uniformly applying to all the 5 candidates came to the conclusion and rightly so that the private respondent no.3 did fulfill all the requirements of the recruitment rules more particularly the experience i.e. a consolidated experience of 10 years in either teaching or research or industry along with 5 years of experience in administration.
20. It is respectfully submitted that one of the contention of the petitioner is that the commission never advertised or disclosed that a consolidated or combined experience of 10 years wold be required for the post of Principal in a Polytechnic college and there could have been better competition if the same was advertised.
21. It is submitted that in answer to the said contention that if the commission has not properly advertised the requirements of the post in question in no manner helps the petitioner as the said cannot be the ground for issuance of writ of quawarranto against the private respondent as the same is not a parameter for issuance of said writ. In view of the fact that it in no manner provides that the petitioner is not holding the requisite experience of educational qualifications to hold a public post."
8 Mr. Rohan Yagnik, the learned Assistant Government Pleader, placing reliance on the above referred averments made in the affidavit inreply, submitted that no case is made out by the petitioner for issue of a writ of quo warranto. He submitted that the respondent No.3 could not be said to be the usurper of the office. He submitted that the respondent No.3 is in the office since 2009 and has continued till this date without any complaint from anyone.
9 Mr. K.B. Pujara, the learned counsel appearing on behalf of the respondent No.3 submitted that the petition is devoid of any merit as the same lacks in bona fide. He placed reliance on the averments made in Page 12 of 27 HC-NIC Page 12 of 27 Created On Fri Oct 09 02:11:28 IST 2015 C/SCA/8414/2014 CAV JUDGMENT the affidavitinreply filed on behalf of the respondent No.3. 10 Mr. Pujara has placed reliance on the following decisions of the Supreme Court:
(1) B. Srinivasa Reddy v. Karnataka Urban Water Supply and Drainage Board Employees Association [2006 (11) SCC 731];
(2) Ajeet Singh Singhvi v. State of Rajasthan [1991 Supplementary (1) SCC 343];
(3) M.S. Mudhol v. S.D. Halegkar [1993 (3) SCC 591].
10 Mr. D.G. Shukla, the learned counsel appeared on behalf of the respondent No.2 the Gujarat Public Services Commission and submitted that the appointment of the respondent No.3 is well in accordance with the rules and regulations and no case is made out by the petitioner for issue of the writ of quo warranto. 11 Having heard the learned counsel appearing for the parties and having gone through the materials on record, the only question that falls for my consideration is whether any case is made out for issue of a writ of quo warranto.
• WRIT OF QUO WARRANTO:
12 Quo warranto is a judicial remedy against an intruder or usurper of an independent substantive public office or franchise or liberty. The Page 13 of 27 HC-NIC Page 13 of 27 Created On Fri Oct 09 02:11:28 IST 2015 C/SCA/8414/2014 CAV JUDGMENT 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. 13 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 or there was nonuse, neglect, misuse or abuse of the office, he was to be ousted.
14 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."
Page 14 of 27 HC-NIC Page 14 of 27 Created On Fri Oct 09 02:11:28 IST 2015 C/SCA/8414/2014 CAV JUDGMENT 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 misuser or nonuser. 15 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 Page 15 of 27 HC-NIC Page 15 of 27 Created On Fri Oct 09 02:11:28 IST 2015 C/SCA/8414/2014 CAV JUDGMENT the proceedings independent of the fact as to who made the appointment and the manner in which the appointment was made. 16 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. 17 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 Page 16 of 27 HC-NIC Page 16 of 27 Created On Fri Oct 09 02:11:28 IST 2015 C/SCA/8414/2014 CAV JUDGMENT 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."
18 In my 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. To examine this question, I 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. 556 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)].Page 17 of 27
HC-NIC Page 17 of 27 Created On Fri Oct 09 02:11:28 IST 2015 C/SCA/8414/2014 CAV JUDGMENT 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."
19 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.
20 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, Page 18 of 27 HC-NIC Page 18 of 27 Created On Fri Oct 09 02:11:28 IST 2015 C/SCA/8414/2014 CAV JUDGMENT "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 LordLieutenant 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."
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."
20. 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."
21. 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."
21 It appears that the respondent No.3 was selected for the post of Principal in the Government Polytechnics (Collegiate Branch), Gujarat Page 19 of 27 HC-NIC Page 19 of 27 Created On Fri Oct 09 02:11:28 IST 2015 C/SCA/8414/2014 CAV JUDGMENT Educational Service, Class I by the G.P.S.C. The G.P.S.C., thereafter, recommended his name for an appointment to the State Government and the appointment order dated 05.10.2009 was issued by the State Government accordingly.
22 It also appears that the respondent No.3 at the time of his appointment was already holding the post of Deputy Executive Engineer (Civil) and Personal Assistant to the Secretary (Water Resources). He was relieved from the said post on 25.10.2009 and joined the duty as the Joint Director of Technical Education, Gandhinagar. 23 It also appears from the appointment order itself that the respondent No.3 was selected in the cadre of the Principal in the Government Polytechnic and his appointment was also in the said category. His conditions of service were that of a post of the Principal in the Government Polytechnic. It appears that the appointment to the post of the Joint Director was by way of a transfer of a person on deputation basis from amongst the persons working in the cadre of the Principal in the Government Polytechnic, as provided in the Rules, 2003 framed by the State Government in exercise of its power under proviso to Article 309 of the Constitution of India, referred to above. 24 In such circumstances referred to above, it could not be said that the respondent No.3 was not eligible to the post of Principal in the Page 20 of 27 HC-NIC Page 20 of 27 Created On Fri Oct 09 02:11:28 IST 2015 C/SCA/8414/2014 CAV JUDGMENT Government Polytechnic, and therefore, could not have been appointed directly on the post of the Joint Director in Technical Education. 25 Let me now look into the rules governing the appointment. The Rule, with which I am concerned, reads as under:
"Ten year's experience in Teaching or in industry in research at the appropriate level out of which about five year's experience should be administrative experience in a responsible position, gained after acquiring the qualifications mentioned in subclause (i) above;"
26 I am not impressed by the submissions of Mr. Gandhi that the candidate must possess 10 years experience in teaching or 10 years experience in industry or 10 years experience in research and that the candidate for the post in question must possess experience of 10 years in each of the categories. If that would have been so, then it would have been provided in the Recruitment Rules itself. The plain reading of the Rules, referred to above, would necessarily suggest that the experience could be clubbed or separated either in teaching or in industry or in research, but the sum total must be of 10 years.
27 It is pertinent to note that the Rules making authority of the State Government, quite itself, is the appointing authority of the respondent No.3, and therefore, interpretation of the rules as made by the State Government is very much relevant. It also appears from the materials on Page 21 of 27 HC-NIC Page 21 of 27 Created On Fri Oct 09 02:11:28 IST 2015 C/SCA/8414/2014 CAV JUDGMENT record that the correspondence exchanged between the G.P.S.C. and the State Government with regard to the interpretation so far as the requirement of experience provided in the Recruitment Rules is concerned makes it clear that the requirement of experience was not of 10 years in teaching or 10 years in industry or 10 years in research, but the requirement was of "10 years experience in teaching or in industry or in research", and hence, it is permissible to club the experience or separate the experience in teaching or in industry or in research. 28 The respondent No.3, on his own showing in the application form that he was possessing teaching experience of 5 years 3 months and 23 days after acquiring the required educational qualifications, according to the provisions of Recruitment Rules, and Administrative experience of 8 years 5 months and 20 days.
29 In the aforesaid context, I may usefully refer to and rely upon the decision of the Supreme Court in the case of Ajeet Singh Singhvi (supra). In the said case before the Supreme Court, the issue was with regard to the interpretation of a rule providing for promotion in the Rajasthan Administrative Service. The issue was whether selection for promotion and appointment in the service had to be made on the basis of merit alone and not on the basis of merit and senioritycummerit in proportion of 50 : 50. The Supreme Court ruled that in case of doubt, Page 22 of 27 HC-NIC Page 22 of 27 Created On Fri Oct 09 02:11:28 IST 2015 C/SCA/8414/2014 CAV JUDGMENT the Government being the author of the rule, had kept itself, as a matter of prudence, the right to remove any ambiguity, the view of the Government in respect of the rule, should ultimately clinch the matter. It further ruled that where the Government put forth as a defence in the Court, its view nevertheless was entitled to great weight before the Court and burden would lie on the appellant to establish to the contrary. The following observations fortify the submissions of Mr. Pujara:
"10. Argument was sought to be built that in Rule 32, Super Time scale was introduced with effect from 1771987 whereunder the Government was required to make an appointment on the basis of merit and senioritycummerit on 50:50 basis in accordance with subrule 6 of rule 28B in the absence of identification of posts. The argument looses its thrust in entirety when viewed on the basis of subrule (2) whereunder the procedure and principles for selection by merit shall, in so far it may apply, is the same as provided in rule 28B. which embodies subrule (7) as well. We have in the context to apply the Rule of harmonious construction. In The J. K. Cotton Spinning & Weaving Mills Co. Ltd. v.
The State of Uttar Pradesh & Others; [1961] 3 SCR 185 this Court applied the rule of harmonious construction even to subordinate legislation and laid down as follows:
"In applying the rule however we have to remember that to harmonise is not to destroy. In the interpretation of statutes the courts always presume that the legislature inserted every part thereof for a purpose and the legislative intention is that every part of the statute should have effect. These presumption will have to be made in the case of rule making authority also."
Then again in Lt. Col. Prithi Pal Singh Bedi etc. v. Union of India & Others, [1983] 1 SCR 393 at pages 40405 it was observed as follows:
"The dominant purpose in construing a statute is to ascertain the intention of the Parliament. One of the well recognised canons of construction is that the legislature speaks its mind by use of correct expression and unless there is any ambiguity in the language of the provision the Court should adopt literal construction if it does not lead to an absurdity. The first question to the posed is whether there is any ambiguity in the language used in rule 40. If there is none, it would Page 23 of 27 HC-NIC Page 23 of 27 Created On Fri Oct 09 02:11:28 IST 2015 C/SCA/8414/2014 CAV JUDGMENT mean the language used, speaks the mind of Parliament and there is no need to look somewhere else discover the intention or meaning. If the literal construction leads to an absurdity, external aids to construction can be resorted to. To ascertain the literal meaning it is equally necessary first to ascertain the juxtaposition in which the rule is placed, the purpose for which it is enacted and the object which it is required to subserve and the authority by which the rule is framed. This necessitates examination of the broad features of the Act."
11. On the application of above principles, it is noticeable that the terms `higher post' and `highest post' occurring in Rules 28B and 32 by all means are relative ones expected to be created in singular or plural terms under Rule 6 whereunder the strength of posts in each grade was determinable by the government from time to time. Subrule (7) even before the amendment of 1771987 postulated a highest post/posts capable of being filled on the basis of merit alone. The fact that they remained unidentified gives no basis to the plea that the State was incapacitated to identify at a later stage the highest posts in the State Service required to be filled on the basis of merit alone. It seems to us, on a close analysis,and on the language employed in Rules 28B and 32 that the highest post/posts conceptually were part of the Rules but their effectuation and identification has surfaced only by means of the amendments of July 17, 1987 and the notification of January 12, 1988.
12. Another significant factor which leans towards such an interpretation is the stance of the State which militates against the views canvassed on behalf of the appellants. There is an inbuilt safety kept in the explanation added to subrule (8) of Rule 28B which prescribes that if any doubt arises, amongst others, about the categorisation of the posts as the highest posts in the Service, the matter shall be referred to the government in the Department of Personnel and Administrative Reforms, whose decision there on shall be final. The appellants could easily have raked up and got referred the matter to the government to have a decision thereon. The view of the government in maintaining that the Super Time scale posts are highest posts is not only a bare and literal interpretation given by it to the Rules but also is reflective of its policy in this regard and no decision needs to be given by the Court in normal circumstances to amend or alter such policy. In such a realm even contemporaneous exposition of a similar rule in an other set of rules cannot play their part to influence either the Court or the Government to give the same interpretation or exposition to the rules requiring interpretation herein. Besides the government being the author of the rule, has kept to itself, as a matter of prudence; the right to remove any ambiguity about the identification of any post including the highest post/posts. The stance of the government in this regard should have clinched the matter but since the same had been put forth as a defence in the High Court, its view nonetheless are entitled to great weight and the Page 24 of 27 HC-NIC Page 24 of 27 Created On Fri Oct 09 02:11:28 IST 2015 C/SCA/8414/2014 CAV JUDGMENT burden of the appellants to lift that weight, an uphill task by all means, has remained unfulfilled."
30 I also find merit in the submissions of Mr. Pujara that this client cannot be said to be a usurper of the office. His client could not be said to be responsible in any manner even if all the arguments of the petitioner are accepted as true. The respondent No.3 was appointed by the State Government after being duly recommended by the G.P.S.C. In the aforesaid context, I may quote the observations of the Supreme Court in the case of B. Srinivasa Reddy (supra) as under:
"95.... In the instant case, the appellant did not solicit or engineer his appointment. His appointment was at the instance of the State Government in accordance with provisions of the Act and the Rules. The State Government has power to take its own decision for deciding on a suitable candidate for appointment as long as the eligibility criteria was satisfied. The appointment in the instant case is not one of recruitment, but of a different species of appointment for rendering services. It is more in the nature of a contract for service. This is specially required considering fact that the functions of the Board are essentially technical in nature as would be evident from a perusal of Sections 16 & 17 of the Act."
31 Mr. Pujara also placed reliance on the decision of the Supreme Court in the case of M.S. Mudhol (supra), more particularly, the observations made by the Supreme Court in para 7 as under:
"7. Whatever may be the reasons which were responsible for the non discovery of the want of qualifications of the 1st respondent for a long time, the fact remains that the court was moved in the matter after a long a lapse of about 9 years. The post of the Principal in a private school though aided, is not of such sensitive public importance that the court should find itself impelled to interfere with the appointment by a writ of quo warranto even assuming that such a writ is maintainable. This is particularly so when the incumbent has been discharging his functions continuously for Page 25 of 27 HC-NIC Page 25 of 27 Created On Fri Oct 09 02:11:28 IST 2015 C/SCA/8414/2014 CAV JUDGMENT over a long period of 9 years when the court was moved and today about 13 years have elapsed. The infraction of the statutory rule regarding the qualifications of the incumbent pointed out in the present case is also not that grave taking into consideration all other relevant facts. In the circumstances, we deed it unnecessary to go into the question as to whether a writ of quo warranto would lie in the present case or not, and further whether mere laches would disentitle the petitioners to such a writ."
32 It is well to remember that the writ of quo warranto is not a writ which can be issued as a matter of course and as a matter of right. Indeed, it has in the discretion of the Court to refuse or grant it according to the fact and circumstances of the case. This Court would inquire into the conduct and motive of the petitioner and the Court might in its discretion where the petitioner has moved by extraneous consideration and not in public interest. In the present case, the circumstances exist which warrants the refusal of issue of writ of quo warranto at the instance of the petitioner.
33 So far as the decision of the Supreme Court in the case of Central Electricity (supra) relied upon by Mr. Gandhi, the learned counsel appearing for the petitioner is concerned, there cannot be any dispute with regard to the proposition of law explained therein. However, I am not convinced with the overall case put up by the petitioner. 34 The consequence of quashing the order of appointment would be very harsh. It would take away the post which the respondent No.1 has held for about eleven years.
Page 26 of 27 HC-NIC Page 26 of 27 Created On Fri Oct 09 02:11:28 IST 2015 C/SCA/8414/2014 CAV JUDGMENT 35 In Jacob M. Puthuparambil v. Kerala Water Authority, (1991) 1 SCC 28 : (1990 Lab IC 1918, at P. 1929), the Apex Court observed:
"...........It is unfair and unreasonable to remove people who have been rendering service since sometime as such removal has serious consequences. The family of the employee which has settled down and accommodated its needs to the emoluments received by the bread winner will face economic ruination if the job is suddenly taken away. Besides, the precious period of early life devoted in the service of the establishment will be wholly wasted and the incumbent may be rendered `age barred' for securing a job elsewhere. It is indeed unfair to use him, generate hope and a feeling of security in him, attune his family to live within his earnings and then suddenly to throw him out of job. Such behaviour would be an affront to the concept of job security and would run counter to the constitutional philosophy, particularly the concept of right to work in Art.41 of the Constitution...."
36 Nothing was brought to my notice to find fault with the respondent No.1 all these years. Having worked for about six years, without any complaint, and that too, even from the petitioner, on a post for which he did not lack any qualification, I do not think that it would be appropriate to exercise of discretion at this stage to cancel his appointment.
37 In view of the above, this petition fails and is hereby rejected.
(J.B.PARDIWALA, J.) chandresh Page 27 of 27 HC-NIC Page 27 of 27 Created On Fri Oct 09 02:11:28 IST 2015