Andhra Pradesh High Court - Amravati
P.Naveen Kumar Reddy vs The Union Of India on 15 September, 2022
Author: B. Krishna Mohan
Bench: B. Krishna Mohan
* HON'BLE SRI JUSTICE B. KRISHNA MOHAN
+ WRIT PETITION No.15471 of 2022
% 15.09.2022
# P.Naveen Kumar Reddy
... Petitioner
Vs.
$ The Union of India, Department of Personnel & Training,
Secretariat, North Block, New Delhi, rep. by its Secretary and others
... Respondents
! Counsel for the Petitioners: SRI P.RAJASEKHAR
Counsel for the Respondents:
1. Sri HARINATH, Assistant Solicitor General
2. ADVOCATE GENERAL
3. Sri A.SUMANTH, Standing Counsel for TTD
4. Ms.C.SINDHU KUMARI
5. GOVERNMENT PLEADER FOR ENDOWMENTS
<Gist :
>Head Note:
? Cases referred:
1. 2005(5) ALT 714 (SB)
2. 2022(1) ALT Online (AP) 2126 (SB)
3. 2020(2) ALT 255 (SB)
4. (2003) 2 SCC 632
5. (2011) 4 ALD 262
6. (2010) 15 SCC 596
` 2
wp_15471_2022
BKMJ
HIGH COUIRT OF ANDHRA PRADESH: AMARAVATHI.
WRIT PETITION No.15471 of 202
Between:
P.Naveen Kumar Reddy
... Petitioner
Vs.
$ The Union of India, Department of Personnel & Training,
Secretariat, North Block, New Delhi, rep. by its Secretary and others
.... Respondents
Date of Judgment Pronounced: 15.09.2022
Submitted for Approval:
HON'BLE SRI JUSTICE B. KRISHNA MOHAN
1. Whether Reporters of Local newspapers Yes/No
may be allowed to see the judgments ?
2. Whether the copies of judgment may be Yes/No
marked to Law Reporters/Journals
3. Whether Their Ladyship/Lordship wish to Yes/No
see the fair copy of the Judgment ?
_________________________________
JUSTICE B. KRISHNA MOHAN
` 3
wp_15471_2022
BKMJ
HON'BLE SRI JUSTICE B. KRISHNA MOHAN
WRIT PETITION No.15471 OF 2022
ORDER:
Heard the learned counsel for the petitioner, the learned senior counsel for the respondent No.8, the learned Advocate General for the respondent Nos.4 and 5, and the learned Assistant Solicitor General for the respondent Nos.1 to 3.
2. This writ petition is filed with an amended prayer for issuance of writ of quo warranto against the respondent No.8 questioning his authority to continue as "full additional charge" in the post of "executive officer" of the respondent No.7 on the ground that it is violative of Section 107 of the Andhra Pradesh Charitable and Hindu Religious Institutions and Endowments Act, 1987 (Act 30 of 1987).
3. The learned counsel for the petitioner submits that the petitioner is a resident of Tirupati Town and the devotee of Lord Venkateswara. He is a "person interested" in the well being of the affairs of the respondent No.7. Hence questioning the authority of the respondent No.8 in continuing as Full Additional Charge for the post of Executive Officer of the respondent No.7-Devasthanam. Section 107 of the Act 30 of 1987 deals with the qualifications for appointing Executive Officers and other officers in the ` 4 wp_15471_2022 BKMJ Tirumala Tirupati Devastanam and the Government is the competent authority under Section 106 of the Act. Section 107(1) of the Act 30 of 1987 is as follows:
"107. Qualifications for Appointment of Executive Officer, Joint Executive Officer, Special Grade Executive Officer, Financial Advisor, and Chief Accounts Officer, etc:
(1) A person to be appointed as Executive Officer shall be the one who is holding or has held a post of the District Collector or a post not lower in rank than that of a District Collector in any other service in the State."
4. The respondent No.8 was appointed in the year 1991 in the Indian Defence and Estate Service (IDES) which is Group A Civil Services Post under the Union Public Service Commission and it is governed by the Central Government service rules/conditions. The respondent No.2 issued the proceedings dated 08.07.2019 deputing the respondent No.8 to the Government of Andhra Pradesh upto 14.05.2022 or until further orders whichever is earlier. Then he was relieved from his duties in the Ministry of home affairs by the respondent No.3 vide proceedings dated 09.07.2019. The respondent No.4 issued G.O.Rt.No.1576, GAD (SC.A) Department dated 10.07.2019 appointing the respondent No.8 as Special Officer for Tirumala Tirupati Devastanams, Tirumala to discharge the functions of the Joint Executive Officer, Tirumala. Thus the deputation of the respondent No.8 is commenced from 10.07.2019 forenoon upto 14.05.2022 and the ` 5 wp_15471_2022 BKMJ terms and conditions of the deputation were mentioned in G.O.Rt.No.1659, GAD (SC.A) Department dated 22.07.2019 as per Section 106(3) of the Act 30 of 1987. Later the respondent No.4 issued another G.O.Rt.No.2469, GAD (SC.A) Department, dated 02.11.2019 re-designating the post of the respondent No.8 as Additional Executive Officer, Tirumala Tirupati Devastanams from that of the Special Officer, Tirumala. The office of the Executive Officer, Tirumala Tirupati Devastanam fell vacant consequent upon the transfer of Sri Dr.K.S.Jawahar Reddy, IAS and vide G.O.Rt.No.813, GAD (SC.A) Department, dated 08.05.2022 the respondent No.8 was placed in Full Additional Charge of the post of Executive Officer until further orders. The counsel for the petitioner submits that the appointment of the respondent No.8 to the post of Executive Officer, Tirumala Tirupati Devastanam as Full Additional Charge is contrary to the qualifications mentioned in Section 107(1) of the Act 30 of 1987 as the respondent No.8 is neither a District Collector nor holding an equivalent post of All India Civil Services Post since he was appointed to Group A Civil Services post under UPSC i.e., IDES. Hence the impugned order dated 08.05.2022 of the respondent No.4 placing the respondent No.8 as Full Additional Charge of the post of Executive Officer, Tirumala Tirupati Devastanam until further orders is contrary to Section 107(1) of the Act 30 of 1987. ` 6
wp_15471_2022 BKMJ Even to appoint as Full Additional Charge for the post of Executive Officer, the qualifications prescribed under the Act is mandatory as per law. The officer post of Indian Defence and Estate Service (Central Service) is neither equivalent nor superior to the rank of District Collector and it is only a post below the rank of District Collector as per the Central Service Rules.
5. On the other hand, basing upon the counter affidavit filed by the respondent No.8, the learned senior counsel submits that the assertion of the petitioner that he is person interested in the well being of the affairs of the Tirumala Tirupati Devastanam as a devotee is irrelevant for the purpose of this writ petition. The "person having interest" as defined under Section 2(18) of the Act 30 of 1987 will only be relevant and the petitioner has not claimed that he is a person having interest admittedly and it is filed with oblique motives and extraneous considerations. The petitioner is neither an interested person nor an aggrieved person. Hence, the writ petition is not maintainable at the outset.
"Unless the petitioner has a right and entitlement in accordance with any custom or usage, he does not come within the meaning of the definition "person having interest" under Section 2(18) of the Act. The said definition does not encompass all the devotees of Lord Venkateswara to come within the fold of "Person having interest". The Tirumala Tirupati ` 7 wp_15471_2022 BKMJ Devastanams has got a trust board for its management and discharge of its functions. The Executive Officer is the Chief Administrative Officer of the Board subject to the guidance and control of Tirumala Tirupati Devastanams Managing Committee. Under Section 107 of the Act 30 of 1987, a person to be appointed as Executive Officer shall be one who is holding or has held a post of the District Collector or a post not lower in rank than that of a District Collector in any other service in the State. The purport of this section is that the person to be appointed should be holding or has held a post of District Collector or a post not lower in rank of a District Collector It's purpose and objective is that the person to be appointed as Executive Officer should be at least of a rank of District Collector. He can be higher in rank than that of a District Collector. If a person has held or is holding a post higher than that of a District Collector in any service, be it all India Services, Central Services or State Services it is a sufficient qualification for appointment as Executive Officer of Tirumala Tirupati Devastanams. He further submits that the respondent No.8 is fully qualified to hold the post of Executive Officer of Tirumala Tirupati Devastanams. The post or posts held/holding or higher than that of the rank of a District Collector. The post of Special Officer, Tirumala is also existing in accordance with Rule 8(v) of Tirumala Tirupati Devastanam Service Rules issued in G.O.Ms.No.1060, Rev (Endts.III) ` 8 wp_15471_2022 BKMJ Department dated 24.10.1989 as amended vide G.O.Ms.No.764, Rev. (Endts.III) Department, dated 28.09.2004. By G.O.Rt.No.2469, dated 02.11.2019, the post of Special Officer has been redesignated as Additional Executive Officer, Tirumala by following the procedure prescribed.
Consequently, the respondent No.8 was redesignated as Additional Executive Officer, Tirumala. Hence, there is no illegality in the impugned proceedings of GO.Rt.No.813, dated 08.05.2022. He further submits that the tenure of the deputation of the respondent No.8 has been extended for two more years beyond 14.05.2022 by the Government of India.
The respondent No.8 worked as Secretary, Andhra Pradesh Information Commission from 06.09.2010 to 11.04.2011 in the State of Andhra Pradesh. The post of Secretary, Andhra Pradesh Information Commission is a super time scale post which is much higher in rank than that of a District Collector in the State. For keeping any person in full additional charge of a particular post on temporary basis, it is not mandatory or necessary that such person should have qualifications to hold that post on a regular basis. Even otherwise, the respondent No.8 is fully qualified to be kept in full additional charge of the Executive Officer of the Tirumala Tirupati Devastanams and he is eligible to be appointed even as regular executive officer of Tirumala Tirupati Devastanam as he is holding the ` 9 wp_15471_2022 BKMJ requisite qualifications as prescribed under Section 107 of the Act 30 of 1987.
Under Section 107 of the said Act, if a person held or holding a post nor lower in rank than that of a District Collector, in any other services in the State it is a sufficient qualification. If it is understood as a person to be qualified should have held or is holding a post not lower in rank than that of a District Collector in any other service of the State, it will be doing violence to the plain language of the Section. Section 107 did not contemplate "service of the State". Specially, the expression used is "service in the State." Therefore, the meaning of the plain language of this expression is that the person must have worked in a post which is not lower in rank than that of a District Collector. The Expression "in any other service" should be given its due meaning. Any other interpretation would be contrary to the plain language used in the section.
Therefore, it includes "services, viz., All India Services, Central Services or State Services. The only requirement is that the person should have held or is holding a post nor lower in rank than that of a District Collector in the State. This is the true interpretation of this section. Any statutory provision should be understood with reference to the language, the purpose and objective of the provision. The words used "in any other services in the State" cannot be understood as "any other services of the ` 10 wp_15471_2022 BKMJ State". The expression "in" cannot be interpreted as "of". Thus the impugned proceedings dated 08.05.2022 is not violative of Section 107(1) of the Act 30 of 1987 and sought for dismissal of this writ petition.
6. Basing upon the counter affidavit filed on behalf of the respondent Nos.4 and 5, the learned Advocate General submits that the present writ petition has been filed in the nature of public interest in respect of the case which essentially falls under the service law jurisprudence. The petitioner has got no legally sustainable ground to espouse the cause by relying upon the definition under Section 2(18) of the Act of 30 of 1987. The Scope of "person interested" cannot be expanded to the issues not relevant which are essentially dealing with secular aspects and administrative aspects in relation to the functioning of the duties. By virtue of the amended Rules there is a provision for appointment to the post of Special Officer. The writ petitioner seeks to question the additional charge arrangements made by the Government to the post of Executive Officer by placing the respondent No.8 to hold the post of Executive Officer on Full Additional Charge basis while holding his regular post of Additional Executive Officer which fell vacant on the transfer of Sri Dr.K.S.Jawahar Reddy, IAS who was holding the post of Executive Officer, TTD, to the office of the Hon'ble Chief Minister, essentially by raising the ground that the respondent No.8 is not having the prescribed qualification under Section 107 of the Act 30 of 1987. ` 11
wp_15471_2022 BKMJ Thus the grounds raised by the petitioner have no factual and legal basis. The Government of India extended the deputation tenure of the respondent No.8 for a further period of two years beyond 14.05.2022 vide proceedings in Rc.No.130/25/DEPU/ADM/DE/20(FMS ID-67004). A close scrutiny and understanding of the relevant provision of Section 107 of the Act 30 of 1987 would make it clear that a person to be appointed as Executive Officer must be holding or has held a post in the state which is equivalent to or above the rank of a Collector and belonging to any other service. The natural corollary flows from the said provision is that the officer belonging to any other services i.e., All India Services, Central Services and State Services who has held or holding any post in the State of Andhra Pradesh which is equivalent to or above the rank of a District Collector is eligible to be posted as Executive Officer of Tirumala Tirupati Devastanam. The respondent No.8 is tasked with Full Additional Charge of the post of Executive Officer and such incharge arrangement cannot be questioned as it being a stop gap arrangement for smooth running of the institution. The fact remains that the respondent No.8 is not appointed to the post of Executive Officer on regular basis so as to later umbrage under Section 107 of the Act 30 of 1987. Even otherwise the respondent No.8 is qualified to hold the post of Executive Officer on regular basis by virtue of his qualification and fulfillment of eligibility criteria in terms of Section 107 ` 12 wp_15471_2022 BKMJ of the Act 30 of 1987. The respondent No.8 prior to his deputation to State service from Central Service was holding the post of Joint Secretary in the Central service in the Indian Estate Defence service. The post held by the respondent No.8 either in the Central Service or State service after his deputation can by any stretch of imagination be said to be lower to the post of District Collector. No prejudice is caused to the petitioner in appointing the respondent No.8 in Full Additional Charge for the post of Executive Officer and no service condition is affected on account of the posting the respondent No.8 on full additional charge basis to the post of Executive Officer so as to question the same. The petitioner cannot umbrage under Section 2(18)(b) of the Act 30 of 1987 to portray himself as person having interest. Hence, the writ petition deserves to be dismissed.
7. Similarly, basing upon the counter affidavit of the respondent Nos.1 to 3, the learned Assistant Solicitor General submits that the respondent No.8 is a senior Administrative Grade level officer in the cadre of Indian Defence Estate Service (IDES) (1991) batch under the Ministry of Defence (MOD). The State Government made a request to the Ministry of Defence being the Cadre Controlling Authority of the officer for extension of his deputation tenure to the State Government of Andhra Pradesh beyond 14.05.2022 when he was to complete the 7th year of his deputation term outside the deputation cadre. The proposal was considered by the MOD ` 13 wp_15471_2022 BKMJ and with the recommendation of the Hon'ble Defence Minister, the proposal was referred to the Department of Personal Training (DoPT) seeking approval to the proposal as the same involves extension of deputation tenure of the Central Government Officer beyond the period of seventh year. The DoPT vide O.M.No.6/8/09-Estt.(Pay-II) dated 17.06.2010 issued consolidated instructions regarding regulation of Pay, deputation (duty) allowance, tenure of deputation/foreign service, and other terms and conditions in cases involving transfer on deputation/foreign service of Central Government employees to ex cadre posts under the Central Government/State Governments/ public sector undertakings/Autonomous Bodies, Universities/UT administration, local bodies etc., and vice versa. Para 2.1 of the aforesaid OM reads as follows:
"These orders will apply to all Central Government employees, who are regularly appointed on deputation/foreign service in accordance with Recruitment Rules of the ex-cadre posts, under the same or some other Departments of Central Government or under the State Governments/Union Territories Administration/Local Bodies or under Central/State PSUs/Autonomous Bodies etc. set up or controlled by Central/State Governments provided the foreign service under such PSUs/autonomous bodies has been permitted in relaxation of appointment on immediate absorption basis. These orders will also cover the cases of regular appointment on deputation/foreign service of employees of State Government/Local bodies etc. as well as PSUs/autonomous bodies of Central/State Governments as per recruitment rules in the Central Government."
8. Para 8 of the O.M.No.6/8/09-Estt.(Pay-II) dated 17.06.2010 providing instructions relating to tenure on deputation/foreign service was ` 14 wp_15471_2022 BKMJ modified vide O.M.No.2/6/2018-Estt.(Pay-II) dated 18.05.2018. The revised instructions provide as under:
"In case where the period of deputation/foreign service prescribed in the recruitment rules of the ex-cadre post is 5 years or less than 5 years, the Administrative Ministry/borrowing organization may grant extension upto the 6th year after obtaining orders of their Secretary (in the Central Government)/Chief Secretary (in the State Government)/equivalent officer (in respect of other cases and for the 7th year with the approval of the Minister of the borrowing Ministry/department and in respect of other organizations with the approval of the Minister of the borrowing Ministry/Department with which they are administratively concerned."
Para 10 of the O.M.No.6/8/2009-Estt.(Pay II) dated 17.06.2010 provides that any relaxation of the terms and conditions will require the prior concurrence of DoPT.
Thus as per the above said instructions, for extension of the deputation tenure to any other organization beyond the period of seven years needs prior concurrence of DOPT. Accordingly in pursuance of the request made by the State Government of Andhra Pradesh seeking extension of the deputation term of the respondent No.8 beyond 14.05.2022, the Ministry of Defence (MOD) parent cadre of the respondent No.8 with the concurrence of the Hon'ble Defence Minister sought the concurrence of DoPT for the proposed extension of the deputation tenure of the respondent No.8 beyond 14.05.2022. Prior to the respondent No.8's appointment to the post of Additional Executive Officer in Tirumala Tirupati Devastanam under the State Government of Andhra Pradesh, he was serving outside his cadre as Director in the Ministry of Home Affairs ` 15 wp_15471_2022 BKMJ (MHA) with effect from 15.05.2015 under Central Staffing scheme. Following empanelment of Joint Secretary, he was appointed as Joint Secretary in MHA upto 14.05.2020. In consideration of the request received from the State Government of Andhra Pradesh, the tenure of Central deputation of the respondent No.8 as Joint Secretary in the Ministry of Home Affairs was curtailed and he was relieved with effect from the afternoon of 09.07.2019 and his services were placed for disposal upto 14.05.2022 or until further orders whichever is earlier. Since he has already completed the assigned tenure of seven years on deputation starting from 15.05.2015, his further continuation in the deputation post beyond seventh year required concurrence of DoPT. The proposal for extension of deputation tenure of the respondent No.8 as Additional Executive Officer in Tirumala Tirupati Devastanam was considered in DoPT keeping in view the justification provided by the State Government of Andhra Pradesh and the same was agreed for a period of two years beyond 14.05.2022. The decision in this regard was conveyed to MoD vide DoPT's ID Note No.2/1/2022-Estt. (Pay-II) dated 06.06.2022. The continuation of the respondent No.8 as Full Additional Charge for the post of Executive Officer of Tirumala Tirupati Devastanam is entirely under the Administrative domain of the State Government of Andhra Pradesh and the respondent Nos.1 to 3 are not the appointing authority in respect of the ` 16 wp_15471_2022 BKMJ post in question (Full Additional Charge of Executive Officer). The role of respondent No.1 is limited to the extent of giving the concurrence for extension of deputation period of respondent No.8. Appointment of Executive Officer of Tirumala Tirupati Devastanam falls squarely within the administrative domain of the State Government.
9. That apart the counsel for the petitioner cited the following decisions:
1) Pappu Venkata Rao v. Commissioner of Endowments, Hyderabad and others1, wherein it was discussed and held as follows:
"9. Since the power of the Government to appoint the Commissioner, under Section 3(1) is subject to the provisions of Section 4, it is necessary to refer to Section 4(1) of the Act: "Section 4. Qualifications for appointment of Commissioner etc.:--(1) A person to be appointed as the Commissioner, shall be one--
(a) Who is holding or has held a post of the District Collector or a post not lower in rank than that of a District Collector in any other service in the State; or
(b) Who is holding or has held a post in the Andhra Pradesh State Higher Judicial Service; or
(c) Who has at least ten years practice as an Advocate of the High Court of Andhra Pradesh or of the Supreme Court; or
(d) Who has been holding the post of Additional Commissioner:1
2005(5) ALT 714 (SB) ` 17 wp_15471_2022 BKMJ Provided that no person shall be eligible for appointment as Commissioner unless he has completed the age of forty-five years."
10. It is clear from the proviso, to Section 4(1), that to be appointed as the Commissioner, the person concerned should necessarily have completed the age of 45 years. Since it is not in dispute that the 2nd respondent did not complete the age of 45 years, either at the time when he was directed to hold full additional charge, vide G.O.Rt. No. 3661 dated 31-5-2005, or even as on date, he is not entitled to be appointed as the Commissioner in view of the proviso to Section 4(1) of the Act. Writ of Quo Warranto -- Its Scope:
11. Jurisdiction of the High Court to issue a writ of Quo Warranto is limited. While issuing such a writ, the Court merely makes an order of declaration and would not consider its impact on the candidates or other factors which may be relevant for issuance of a writ of Certiorari. An information, in the nature of a quo-warranto, lies 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. Broadly stated quo warranto proceedings affords a judicial enquiry in which any person holding an independent substantive public office, or franchise, or liberty, is called upon to show by what right he holds the said office, franchise or liberty; if the inquiry leads to the finding that the holder of the office has no valid title to it, the issue of the writ of quo warranto ousts him from that office. In other words, the procedure of quo warranto confers jurisdiction and authority on the judiciary to control executive action in the matter of making appointments to public offices against the relevant statutory ` 18 wp_15471_2022 BKMJ provisions; it also protects a citizen from being deprived of public office to which he may have a right. It would thus be seen that if these proceedings are adopted, subject to the conditions recognized in that behalf, they tend to protect the public from usurpers of public office; in some cases, persons not entitled to public office may be allowed to occupy them and to continue to hold them as a result of the connivance of the executive or with its active help, and in such cases, if the jurisdiction of the Courts to issue a writ of quo warranto is properly invoked, the usurper can be ousted and the person entitled to the post allowed to occupy it. Before a citizen can claim a writ of quo warranto, he must satisfy the Court, inter alia, that the office in question is a public office and is held by the usurper without legal authority, and that necessarily leads to the enquiry as to whether the appointment of the said alleged usurper has been made in accordance with law or not. (Halsbury's Laws of England, 3rd Edition, Vol. II, Page 145). A writ of Quo Warranto can only be issued when the appointment is contrary to statutory provisions (The Mor Modern Co-operative Transport Society Ltd., v. Financial Commissioner and Secretary to Government, Haryana, (2002) 6 SCC 269 : AIR 2002 SC 2513; High Court of Gujarat v. Gujarat Kishan Mazdoor Panchayat, (2003) 4 SCC 712).
Locus Standi to Seek a Writ of Quo-Qarranto
12. Writ in the nature of a Quo Warranto would lie even at the instance of a relator, who has no personal interest in the matter. It is open for a private individual to bring to the notice of the Court that a person who is disqualified to hold an office is still holding it. A person who is not legally entitled to hold the office should not be permitted to hold it. A Division Bench of this Court in ` 19 wp_15471_2022 BKMJ Mocherla Venkataraya Sarma v. Y. Sivarama Prasad, AIR 1961 AP 250, held:
"............At the outset we must say that we cannot accede to the theory propounded on behalf of the Government that the relator having no personal interest in the matter could not exhibit this information against the Chairman and the Vice-Chairman. It is argued on behalf of the Government that the petitioner has no locus standi to seek the jurisdiction of the Court for this purpose. In our opinion, an information would lie even at the instance of a relator who has no personal interest in the matter. Information in the nature of Quo Warranto could be filed in the case of Municipal Corporations or Local Boards on the relation of private parties. It is open to a private individual to bring it to the notice of the Court that a person who is disqualified to hold an office is still holding it. A person who is not legally entitled to hold an office should not be permitted to hold it.
In the words of Tindal C.J., which were extracted with approval by Lord Reading in R.V. Speyer and R.V. Cassel (1916) 1 KB 595:
"..... this proceeding by information in the nature of quo warranto will lie for usurping any office, whether created by charter alone, or by the Crown, with the consent of Parliament, provided the office be of a public nature, and a substantive office, not merely the function or employment of a Deputy or servant held at the will and pleasure of others. The test to be applied is whether there has been usurpation of an office of a public nature and an office ` 20 wp_15471_2022 BKMJ substantive in character that is, an office independent in title."
Therefore it is competent for a voter or a member of any of the local bodies to invoke the jurisdiction of this Court for the issue of information in the nature of quo warranto. Consequently the proceedings could be entertained by this Court for the Purpose for which its jurisdiction is invoked.
This leads us to the question whether the jurisdiction of this Court should be exercised in a case like this. As pointed out by Tindal C.J. in deciding whether the information should be refused or whether the rule should be granted, the test is whether there has been usurpation of an office; in other words whether there is a legal disability to hold the office by or a legal prohibition against a person occupying a particular place."
Whether a Writ of Quo-Warranto should be issued in the Present Case.
13. While it is not in dispute that the 2nd respondent has not completed the age of 45 years even as on date and is therefore not entitled to be appointed as Commissioner of Endowments, in view of the statutory prescription under Section 3(1) read with the proviso to Section 4(1) of the Act, both the learned Advocate General and Sri D. Prakash Reddy, learned Senior Counsel, would submit that the 2nd respondent has not been appointed as the Commissioner, under Section 3(1) of the Act, and was merely directed to hold lull additional charge, of the said post, until further orders. It is their case that such a power inheres in the Government, under Article 162 of the Constitution of India, to make interim arrangements pending appointment, of a Commissioner, in accordance with the provisions of the Act.
14. This submission, I am afraid, cannot be accepted. It is only when a person is appointed as a Commissioner under ` 21 wp_15471_2022 BKMJ Section 3(1) of Act, is he empowered to discharge the functions and duties of the Commissioner of Endowments, as prescribed in the A.P. Charitable and Hindu Religious Institutions and Endowments Act, 1987 and the rules made thereunder. Statutory provisions cannot be circumvented or given a go bye, in directing a person, not qualified to be appointed as the Commissioner, to hold full additional charge of the said post. It is well settled that when power is given under the Statute to do a certain thing in a certain way, the thing must be done in that way or not at all. (Nazir Ahmed v. King Emperor, AIR 1936 PC 253, Gujarat Electricity Board v. Girdharlal Motilal, AIR 1969 SC 267, State of Gujarat v. Shantilal Mangaldas, (1969) 1 SCC 509 : AIR 1969 SC
634). It is also well settled that Executive/administrative instructions can only supplement and cannot supplant the provisions of either the statute or the statutory rules (B.N. Nagarajan v. State of Mysore, AIR 1966 SC 1942). In view of the prohibition, under the proviso to Section 4(1) of the Act, it is not permissible for the Government, to exercise it executive power under Article 162 of the Constitution of India, to supplant, override or circumvent statutory provisions.
15. Since it is not in dispute, that the second respondent does not possess the qualifications prescribed under Section 3(1) read with the proviso to Section 4(1) of the Act, a writ of Quo Warranto shall issue declaring that the 2nd respondent is not competent to hold the office of the Commissioner of Endowments. The orders passed in G.O.Rt. No. 3661 dated 31-5-2005, to the extent of directing the 2nd respondent to hold full additional charge of the post of the Commissioner of Endowments, is hereby set aside."
` 22
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2) Yellanti Renuka vs. The State of A.P. 2, wherein it was discussed and held as follows:
"12. The question of maintainability of W.P.No.18299 of 2021 requires to be considered at the outset. It is the contention of the writ petitioner in W.P.No.22303 of 2021 and the respondents in W.P.No.18299 of 2021 that the petitioner in W.P.No.18299 of 2021 is not entitled to maintain the writ petition on the ground that she is not a member of the founder family.
13. Section 2 (18) (b) states that any person who is entitled to attend or is in the habit of attending the performance of service, charity or worship connected with the institution, would be a person having interest. The contention of the petitioners, in W.P.No.18299 of 2021, that they have been attending and participating in various religious ceremonies and other activities of the temple has not been denied. In the absence of any such denial, it would have to be taken that the petitioners are devotees of the temple who attend various ceremonies and services and would have to be treated as persons having interest.
14. The term "persons having interest" has a certain significance. Section 92 of the Civil Procedure Code provides that, any two "persons having interest", can move the court where intervention of the court, in the management of any charitable or religious trust, is required. The term "persons having Interest" has not been defined in the Code. However, it has been interpreted to include actual worshippers at a temple. (see AIR 1921 PC 84, AIR 1920 Mad 665 and AIR 1971 Mad. 278). The same definition is now incorporated in the Andhra Pradesh Endowments Act, 1987. The Endowment Act has also given a 2 2022(1) ALT Online (AP) 2126 (SB) ` 23 wp_15471_2022 BKMJ significant place for persons falling under this category. For example, Section 43 (5) requires, the concerned Assistant Commissioner of Endowments to give an opportunity of hearing to such persons, before taking a decision on the registration of an institution under the Act. This is a recognition of the fact that devotees of a temple are entitled to have a say in the manner in which an Institution or temple is run and it cannot be said that such persons having interest cannot be permitted to approach this court when there are complaints of mismanagement or violation of the methods of worship or essential religious practices. The Hon‟ble Supreme Court in Bishwanath v. Thakur Radha Ballabhji, (1967) 2 SCR 618 : AIR 1967 SC 1044, held as follows:
9. Three legal concepts are well settled: (1) An idol of a Hindu temple is a juridical person; (2) when there is a Shebait, ordinarily no person other than the Shebait can represent the idol; and (3) worshippers of an idol are its beneficiaries, though only in a spiritual sense. It has also been held that persons who go in only for the purpose of devotion have, according to Hindu law and religion, a greater and deeper interest in temples than mere servants who serve there for some pecuniary advantage: see Kalyana Venkataramana Ayyangar v. Kasturi Ranga Ayyangar [(1916) ILR at Mad, 212, 225] . In the present case, the plaintiff is not only a mere worshipper but is found to have been assisting the 2nd defendant in the management of the temple.
10. The question is, can such a person represent the idol when the Shebait acts adversely to its interest and fails to take action to safeguard its interest. On principle we do not see any justification for denying such a right to the worshipper. An idol is in the position of a minor when the ` 24 wp_15471_2022 BKMJ person representing it leaves it in a lurch, a person interested in the worship of the idol can certainly be clothed with an ad hoc power of representation to protect its interest. It is a pragmatic, yet a legal solution to a difficult situation. As such the petition would be maintainable.
15. The Petitioners are citizens of India, who are entitled to the protection available under Articles 25 and 26 of the Constitution of India. The scope and ambit of these provisions have been interpreted by the Constitutional Courts. Without referring to the long and prolific line of judgments in this regard, it would suffice to state that, these Articles protect the rights of the Petitioners herein to ensure that the methods of worship and principles of Temple construction and maintenance, followed by the denomination of the Petitioners, which are an essential part of their religious denomination, are followed. They would be entitled to approach this court, in the event of any complaint of violation of these rights. The present Petition would, therefore, be maintainable on this score also.
3) Puthina Venkata Mahesh vs. State of Andhra Pradesh 3, wherein it was discussed and held as follows:
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 respondent No.3 3 2020(2) ALT 255 (SB) ` 25 wp_15471_2022 BKMJ 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 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.` 26
wp_15471_2022 BKMJ 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 Ali (2) AIR 1956 SC 60 and D. Nagaraj v. State of Karnataka (3) (1977) 2 SCC
148). 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, 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 ` 27 wp_15471_2022 BKMJ 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.
In Union of India v. W.N. Chadhas (4) AIR 1993 SC 1082, 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.` 28
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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 others (5) 1991 SCR (3) 102, 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. Chowdary (6) AIR 1993 SC 892. ` 29
wp_15471_2022 BKMJ The law declared by the Apex Court in the above judgments is that, only in public interest litigation the litigational competence is waived 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. 49. 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."
4. P.U.Joshi and others vs. Accountant General, Ahmedabad and others 4, wherein it was discussed and held as follows:
"10. We have carefully considered the submissions made on behalf of both parties. Questions relating to the constitution, pattern, 4 (2003) 2 SCC 632 ` 30 wp_15471_2022 BKMJ nomenclature of posts, cadres, categories, their creation/abolition, prescription of qualifications and other conditions of service including avenues of promotions and criteria to be fulfilled for such promotions pertain to the field of policy is within the exclusive discretion and jurisdiction of the State, subject, of course, to the limitations or restrictions envisaged in the constitution of India and it is not for the statutory tribunals, at any rate, to direct the Government to have a particular method of recruitment or eligibility criteria or avenues of promotion or impose itself by substituting its views for that of the State.
Similarly, it is well open and within the competency of the State to change the rules relating to a service and alter or amend and vary by addition/subtraction the qualifications, eligibility criteria and other conditions of service including avenues of promotion, from time to time, as the administrative exigencies may need or necessitate. Likewise, the State by appropriate rules is entitled to amalgamate departments or bifurcate departments into more and constitute different categories of posts or cadres by undertaking further classification, bifurcation or amalgamation as well as reconstitute and restructure the pattern and cadres/categories of service, as may be required from time to time by abolishing the existing cadres/posts and creating new cadres/posts. There is no right in any employee of the State to claim that rules governing conditions of his service should be forever the same as the one when he entered service for all purposes and except for ensuring safeguarding rights or benefits already earned, acquired or accrued at a particular point of time, a government servant has no right to challenge the authority of the State to amend, alter and bring into force new rules relating to even an existing service."
5. Joint Collector, R.R. District and others vs. Syed Ahmed Hasan and others 5, wherein it was discussed and held as follows: 5
(2011) 4 ALD 262 ` 31 wp_15471_2022 BKMJ "20. It is well settled when a point which is ostensibly a point of law is required to be substantiated by facts, the party raising the point, if he is the writ petitioner, must plead and prove such facts by evidence which must appear from the writ petition and if he is the respondent, from the counter-affidavit. If the facts are not pleaded or the evidence in support of such facts is not annexed to the writ petition or to the counter-affidavit, as the case may be, the court will not entertain the point. In this context, it will not be out of place to point out that in this regard there is distinction between a pleading under the code of Civil Procedure and a writ petition or a counter-affidavit. While in a pleading, that is, a plaint or a written statement, the facts and not evidence are required to be pleaded, in a writ petition or in the counter affidavit not only the facts but also the evidence in proof of such facts have to be pleaded and annexed to it."
10. The counsel for the petitioner also referred to Indian Defence Estate Service Group A post recruitment Rules, 2013 as hereunder:
MINISTRY OF DEFENCE S.R.O. 7. In exercise of the powers conferred by the proviso to Article 309 of the Constitution and in supersession of Indian Defence Estates Service (Group 'A') Rules, 1985 except as respects things done or omitted to be done before such supersession, the President hereby makes the following rules for regulating the method of recruitment to the posts included in the Indian Defence Estates Service, Ministry of Defence, namely:-
2. Short, title and commencement - (These rules may be called the Indian Defence Esates Service Group 'A' Posts, Recruitment Rules, 2013.
...
3. Constitution of the Indian Defence Estates Service Group 'A' - (1) There shall be constituted a Service known as "Indian Defence Estates Service Group 'A'" consisting of persons appointed to the Service under rules 6 and 7.` 32
wp_15471_2022 BKMJ ...
5. Members of the Service - (1) The following persons shall be members of the Service, namely,
(a) persons appointed to the Service at the commencement of these rules under rule 6, from the date of such commencement;
(b) persons appointed to the Service after the commencement of these rules, from the date they are so appointed.
SCHEDULE - I (See Clause (c) of rule 2 and sub-rule (1) of rule (4)) Name, number and scale of pay of Duty Posts included in the various Grades of the Indian Defence Estates Service (Group 'A') Sl.No. Grade Name of a post No. of Pay band and posts grade pay/pay scale
3. Senior Additional Director 19* Pay Band-4 Administrative General/Director Rs.37400-67000 Grade and Grade Pay Rs.8700
11. The counsel for the petitioner also referred to Indian Administrative Service (Recruitment) Rules, 1954 as hereunder:
" In exercise of the powers conferred by sub-section (1) of Section 3 of the All-India Services Act, 1951 (LXI of 1951), the Central Government after consultation with the Government of the States concerned, hereby makes the following rules, namely: -
1. Short title: - These rules may be called the Indian Administrative Service (Recruitment) Rules, 1954.
2. Definitions - in these rules, unless the context other requires-
(a) to (d) ......
(e) "Service" means the Indian Administrative Service." ` 33
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12. The counsel for the petitioner also referred to The Indian Administrative Service (Cadre) Rules, 1954 "In exercise of the powers conferred by sub-section 1 of Section 3 of the All India Services Act, 1951 (LXI of 1951), the Central Government, after consultation with the Governments of the States concerned, hereby makes the following rules namely:
Short title: These rules may be called the Indian Administrative Service (Cadre) Rules, 1954.
Definitions:
'Cadre officer' means a member of the Indian Administrative Service;"
13. The counsel for the petitioner also referred to The Indian Administrative Service (Fixation of Cadre Strength) Regulations, 1955 "In pursuance of Sub-rule (1) of rule 4 of the Indian Administrative Service (Cadre) Rules, 1954, the Central Government in consultation with the Governments of the State concerned hereby makes the following regulations, namely:
(1) These regulations may be called the Indian Administrative Service (Fixation of Cadre Strength) Regulations, 1955.
(2) The posts borne on, and the strength and composition of the cadre of the Indian Administrative Service of the various States shall be as specified in the Schedule to these regulations."` 34
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1. Senior Duty posts under 188 Minimum tenure the State Government for posting Commissioner of 1 2 Endowments Additional/Joint/Deputy 14 2 Secretaries Collectors and District 23 2 Magistrates
14. Per contra, the learned Advocate General appearing for the respondent Nos.4 and 5 relied upon The Indian Administrative Service (Pay) Rules, 2016.
"In exercise of the powers conferred by sub-section (1) of Section3 of the All India Services Act, 1951 (61 of 1951) and in supersession of the Indian Administrative Service (Pay) Rules, 2007, except as respects things done or omitted to be done before such supersession, the Central Government after consultation with the Governments and the States concerned, hereby makes the following rules, namely: -
Short title and commencement. - (1) These rules may be called the Indian Administrative Service (Pay) Rules, 2016.
They shall be deemed to have come to force on the 1st day of January, 2016.
(C) Super Time Scale: Level 14 in the Pay Matrix."
SCHEDULE II (PART-A) Posts carrying pay above the Senior Scale in the Indian Administrative Service under State Governments (in existence as on 01.01.2016) ANDHRA PRADESH
3. Principal Secretary/Principal Secretary- Level 15 of the Pay cum-Commissioner Matrix
4. Secretary to Government Level 14 of the Pay Matrix
5. Secretary-cum-Commissioners Level 14 of the Pay Matrix ` 35 wp_15471_2022 BKMJ PART-C Posts under the Central Government when held by member of the Service.
Name of Post Scale of Pay Central
(Deputation on
Tenure) Allowance
Joint Secretary to the Level 14 in the Pay ---
Government of India Matrix
15. Similarly, the learned senior counsel appearing for the respondent No.8 relied upon a decision reported in JYOTI K.K. AND OTHERS VS. KERALA PUBLIC SERVICE COMMISSION6, wherein at paragraph 9 it was held that:
"9. In the event the Government is of the view that only diploma-holders should have applied to post of Sub-Engineers but not all those who possess higher qualifications, either this Rule should have excluded in respect of candidates who possess higher qualifications or the position should have made clear that degree holder shall not be eligible to apply for such post. When that position is not clear but on the other hand the Rules do not disqualify per se the holders of higher qualifications in the same Faculty, it becomes clear that the Rule could be understood in an appropriate manner as stated above. In that view of the matter the order of the High Court cannot be sustained. In this case we are not concerned with the question whether all those who possess such qualifications could have applied or not. When statutory Rules have been published and those Rules are 6 (2010) 15 SCC 596 ` 36 wp_15471_2022 BKMJ applicable, it presupposes that everyone concerned with such appointments will be aware of such Rules or make himself aware of the rules before making appropriate applications. The High Court, therefore, is not justified in holding that recruitment of the appellants would amount to fraud on the public."
16. In the light of the above said rival contentions the following issues emerge for consideration:
1) Locus standi of the writ petitioner.
2) The authority of the respondent No.8 to continue as full additional charge in the post of executive officer Tirumala Tirupati Devastanams until further orders pursuant to the impugned proceedings of the respondent No.4 in G.O.Rt.No.813, dated 08.05.2022, whether it is in conformity with the section107(1) of the Andhra Pradesh Charitable and Hindu Religious Institutions and Endowments Act, 1987 (30 of 1987)?
ISSUE NO.1: -
17. The petitioner contended that he is a resident of Tirupati town and the devotee of Lord Venkateswara. He is a person interested in the well being of the affairs of the respondent No.7. But Section 2(18)(b) of the Act 30 of 1987 deals with definition of "person having interest" which includes:
"(a)...
(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 or who is entitled to ` 37 wp_15471_2022 BKMJ attend 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 benefit of any charity or the distribution of gifts thereat:
(c)..."
The respondents seriously contended that the petitioner would not come within the scope and meaning of the "person having interest" as defined in the above said section of the said Act and as such he cannot maintain this writ petition. In response the petitioner has also not demonstrated that he is entitled to attend or is in the habit of attending the performance of service, charity or worship connected with the Tirumala Temple or it's group of temples and he is entitled to partake or he is in the habit of partaking in the benefit of any charity or the distribution of any gifts therein. Though not established his right under the above said definition, he is not ousted from maintaining this case as it is a case of writ of quo warranto and it's parameters are different for the purpose of locus standi. It is a settled principle of law that it would lie even at the instance of a relator, who has no personal interest in the matter and it is open for a private individual to bring it to the notice of the court that a person who is disqualified to hold an ` 38 wp_15471_2022 BKMJ office is still holding it. The person who is not legally entitled to hold the office should not be permitted to hold.
In view of the same, the locus standi of the petitioner is upheld for the purpose of maintaining this writ petition. ISSUE No.2:
18. Jurisdiction of the High Court to issue a writ of Quo Warranto is limited. While issuing such a writ, the Court merely makes an order of declaration and would not consider its impact on the candidates or other factors which may be relevant for issuance of a writ of Certiorari.
An information, in the nature of a quo-warranto, lies 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. Broadly stated quo warranto proceedings affords a judicial enquiry in which any person holding an independent substantive public office, or franchise, or liberty, is called upon to show by what right he holds the said office, franchise or liberty; if the inquiry leads to the finding that the holder of the office has no valid title to it, the issue of the writ of quo warranto ousts him from that office. In other words, the procedure of quo warranto confers jurisdiction and authority on the judiciary to control executive action in the matter of making appointments to public offices against the relevant statutory provisions; it also protects a ` 39 wp_15471_2022 BKMJ citizen from being deprived of public office to which he may have a right. It would thus be seen that if these proceedings are adopted, subject to the conditions recognized in that behalf, they tend to protect the public from usurpers of public office; in some cases, persons not entitled to public office may be allowed to occupy them and to continue to hold them as a result of the connivance of the executive or with its active help, and in such cases, if the jurisdiction of the Courts to issue a writ of quo warranto is properly invoked, the usurper can be ousted and the person entitled to the post allowed to occupy it. Before a citizen can claim a writ of quo warranto, he must satisfy the Court, inter alia, that the office in question is a public office and is held by the usurper without legal authority, and that necessarily leads to the enquiry as to whether the appointment of the said alleged usurper has been made in accordance with law or not. A writ of Quo Warranto can only be issued when the appointment is contrary to statutory provisions.
19. In the backdrop of the above said settled legal position, let us see the action of the respondents for the purpose of judicial enquiry into the matter. It is to be seen that the respondent No.2 issued the proceedings No.27/26/2019 (EO) SM.1 dated 08.07.2019 informing that the appointments committee of the cabinet has approved the proposal of the Ministry of Home Affairs for curtailment of Central Deputation tenure of ` 40 wp_15471_2022 BKMJ respondent No.8 (IDES) (1991), Joint Secretary, Ministry of Home Affairs to enable him to undertake the deputation in the Government of Andhra Pradesh for a combined tenure of seven years upto 14.05.2022 or until further orders whichever is earlier. Then the respondent No.3 issued an office order in file No.30/4/3571-AD.1 dated 09.07.2019 relieving the respondent No.8 as Joint Secretary in the Ministry of Home Affairs with effect from the afternoon of 09.07.2019, by placing the services at the disposal of the Government of Andhra Pradesh for a combined tenure of seven years upto 14.05.2022 or until further orders whichever is earlier. Consequently, the respondent No.4 issued the proceedings in G.O.Rt.No.1576 dated 10.07.2019, admitted the respondent No.8 into the duty placing at the disposal of the Revenue (Endowments) department to post him as special officer, Tirumala Tirupati Devastanams, Tirumala for discharging the duties of Joint Executive Officer, Tirumala. His pay and allowances of the parent department is duly protected. Thus he started working as Special Officer of Tirumala Tirupati Devastanams at Tirumala. The respondent No.5 also issued the orders in G.O.Rt.No.1659 dated 22.07.2019 stating that the deputation of the respondent No.8 to the Government of Andhra Pradesh is subject to the terms and conditions appended to that order commencing the terms of deputation from 10.07.2019 Forenoon upto 14.05.2022. As per the annexure of the said ` 41 wp_15471_2022 BKMJ order the pay and allowances are protected during the deputation period for the said officer to draw the grade pay of his post in his parent department. Consequent upon redesignation of the post of special officer, Tirumala Tirupati Devastanams, Tirumala as Additional Executive Officer, Tirumala Tirupati Devastanams, Tirumala, the respondent No.8 was redesignated as Additional Executive Officer, Tirumala Tirupati Devastanams, Tirumala vide orders of the respondent No.4 in G.O.Rt.No.2469, dated 02.11.2019. It is relevant to note here that none of these above said proceedings/orders right from 08.07.2019 to 02.11.2019 were under challenge at any point of time.
20. While so, the respondent No.4 issued the order in G.O.Rt.No.813, dated 08.05.2022 placing the respondent No.8 (Addl. Executive Officer, Tirumala Tirupati Devastanams) as full additional charge in the post of Executive Officer, Tirumala Tirupati Devastanams, until further orders by duly relieving Dr.K.S.Jawahar Reddy, IAS (1990) the Special Chief Secretary to the Hon'ble Chief Minister from the Full Additional charge. Ever since, the respondent No.8 is discharging his duties as full additional charge for the post of Executive Officer, Tirumala Tirupati Devastanams in addition to his duties as Additional Executive Officer, Tirumala Tirupati Devastanams. Whereas this order of the respondent No.4 dated 08.05.2022 is assailed herein as violative of Section 107(1) of the Act 30 of 1987 and ` 42 wp_15471_2022 BKMJ sought to be made scrutiny of the same, in this petition for writ of quo warranto. The Rule 8(v) of TTD Employees Service Rules, 1989 as issued under G.O.Ms.No.1060 (Revenue) Endowments-I) dated 24.10.1989, deals with the appointment to the post of special officer. As per rule 8 (v)(c) of the said Rules the person can be made as Special Officer either by deputation from the rank of Deputy Secretary to the Government of India or Joint Secretary of the State Government. The Respondent No.8 earlier in the combined state of Andhra Pradesh also worked as Secretary, Andhra Pradesh Information Commission in the office of Chief Information Commissioner, Hyderabad under the orders of the Government of Andhra Pradesh in G.O.Rt.No.4330 dated 30.08.2010.
21. The respondent No.8 in his service career held various positions in different periods and holding for the present as detailed in the table below.
S.No. Positions Held Period
1. Joint Chief Executive Officer, 27.08.1992 to
Cantonment Board, Lucknow 05.02.1994
2. Chief Execuitve Officer, 07.02.1994 to
Cantonment Board, Chennai 21.04.1997
3. Chief Executive Officer, 26.04.1997 to
Cantonment Board, Chennai 27.06.2000
4. Defence Estate Officer, 03.07.2000 to
Ahmedabad 08.12.2000
5. Deputy Secretary, Ministry of 16.12.2000 to
Home Affairs, Government of 29.06.2004
India
6. Joint Executive Officer, Tirumala, 05.07.2004 to
` 43
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TTD 09.09.2006
7. Additional Commissioner, Greater 11.09.2006 to
Hyderabad Municipal Corporation 26.03.2008
8. Joint Executive Officer, Tirumala, 02.04.2008 to TTD 31.08.2010
9. Secretary, State Information 06.09.2010 to Commission, Government of 11.04.2011 Andhra Pradesh
10. Defence Estate Officer, 18.04.2011 to Secunderabad 28.07.2014
11. Chief Executive Officer, 01.08.2014 to Cantonment Board, Delhi 14.05.2015
12. Director, Ministry of Home 14.05.2015 to Affairs, Government of India 21.11.2017
13. Joint Secretary, Ministry of Home 22.11.2017 to Affairs, Government of India 09.07.2019
14. The Special Officer, TTDs at 10.07.2019 to Tirumala 10.11.2019
15. Additional Executive Officer, 02.11.2019 to till TTD, Tirumala date
16. Full Additional Charger of the 08.05.2022 to till post of Executive Officer, TTD date
22. As stated supra, the counsel for the petitioner referred to Indian Defence Estates Service Group 'A' Posts Recruitment Rules, 2013, the Indian Administrative Service Recruitment Rules, 1954, the Indian Administrative Service (Cadre) Rules, 1954, and the Indian Administrative Service (Fixation of Cadre Strength) Regulations, 1955 in respect of Andhra Pradesh which contains the senior Deputy posts under the State Government viz., the Commissioner of Endowments, Additional/ Joint/Deputy Secretaries and Collectors and District Magistrates along with other posts. The learned counsel for the petitioner pointed out that ` 44 wp_15471_2022 BKMJ the post of Joint Secretary, Ministry of Home Affairs, Government of India is not included in the list of senior deputy posts under the State Government of Andhra Pradesh in the above said regulations of 1955 and the posts referred above can only be manned by the IAS cadre officers only. Obviously the above said post in the Central Government will not be reflected in the above said list of senior deputy posts under the State Government.
23. There is no ambiguity with regard to the entry of the respondent No.8 into the service as IDES Officer of 1991 batch and he is not with the background of IAS Cadre and these above said rules and regulations do not come in conflict with the deputation of the respondent No.8 from the Government of India to the State Government and his subsequent posting under the impugned proceedings dated 08.05.2022.
24. But the Indian Administrative Service Pay Rules, 2016 relied upon by the learned Advocate General would clearly show that the super time scale is fixed at Level 14 in the pay matrix. Schedule II part A of the said Rules insofar as the State of Andhra Pradesh is concerned show that the Principal Secretary/Principal Secretary-cum-Commissioner is at the Level 15 of the pay matrix, the Secretary to Government is at Level 14 of the Pay Matrix and the Secretary cum Commissioner are at Level 14 of the Pay ` 45 wp_15471_2022 BKMJ Matrix. Similarly Schedule II, Part-C shows that the scale of pay for the Joint Secretary to the Government of India is at Level 14 of the pay matrix. Thus it is clear that the Joint Secretary in the Government of India, the Secretary to Government and Secretary-cum-Commissioners in the State Government are of equal rank drawing same pay scales.
25. As could be seen from the above said table relating to the service particulars of the respondent No.8, it shows that though he entered into service as IDES Officer of 1991 batch in the Central Government service steadily rose in the career and held various positions as mentioned above. He was also the Secretary of State Information Commission in the Government of Andhra Pradesh on deputation between 06.09.2010 to 11.04.2011, he was also the Joint Secretary, Ministry of Home Affairs, Government of India, New Delhi between 22.11.2017 to 09.07.2019, the Special Officer, TTDs at Tirumala from 10.07.2019 and the Additional Executive Officer, Tirumala Tirupati Devastanam at Tirumala from 02.11.2019 onwards. Presently he is holding full additional charge for the post of Executive Officer, Tirumala Tirupat Devastanam from 08.05.2022 until further orders. As observed above, the deputation period of the respondent No.8 is also extended for another period of two years beyond 14.05.2022 by the Central Government to continue in the State Government vide it's proceedings dated 06.06.2022. The post of Secretary, ` 46 wp_15471_2022 BKMJ Andhra Pradesh Information Commission is a super time scale post which is much higher in rank than that of a District Collector in the State. As discussed above, the respondent No.8 held various higher positions above the rank of District Collector in the State and drawing super time scale of pay on par with the Secretary to Government in the State. By the time, he came on deputation as Special Officer, Tirumala Tirupati Devastanam at Tirumala, he was in the position of Joint Secretary in the Government of India equivalent to the Secretary in the State Government which is much above the rank of a District Collector.
26. In the above said context, the position of the respondent No.8 shall be examined with the Section 107(1) of the Act 30 of 1987 which reads as follows:
"A person to be appointed as Executive Officer shall be one who is holding or has held a post of the Distract Collector or a post not lower in rank than that of a District Collector in any other service in the state."
27. The plain reading of the above section reveals that two types of qualifications are prescribed for appointment as Executive Officer. The first one is as under:
"A person to be appointed as Executive Officer shall be one who is holding or has held a post of the District Collector in the state. (in the state is common for both the qualifications). This ` 47 wp_15471_2022 BKMJ part of the section is very plain and not required any interpretation.
28. The second one is as follows:
"A person to be appointed as Executive Officer shall be one who is holding or has held a post not lower in rank than that of a District Collector in any other service in the state."
31. Analysis of the second part of the section reveals that an officer to be appointed as Executive Officer must be holding or has held a post in the State which is equivalent to or above the District Collector in rank and belonging to any other service.
32. In the first part, it clearly states that a person worked as a District Collector is eligible to be posted as Executive Officer. The post of District Collector is normally given to Indian Administrative Service which is an All India Service. Even the IAS Officer who has not worked as District Collector is not eligible to be posted as Executive Officer as per the fist part of the section. The second part of the section deals with a qualification for the post of executive officer from any services but the person chosen for appointment must be holding or has held a post in the State which is equivalent to the District Collector or above it's rank. When it comes to the last part of the Section, i.e., "any other service in the State", it should be understood clearly. The phrase "service in the state" is common to :
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(a) Persons holding or has held the post of District Collector in the State.
(b) Persons holding or has held a post which is equal to or above the rank of a District Collector in the State.
33. The phrase "in the state" is to be read conjointly with the word "District Collector" or "Post not lower in rank than that of a District Collector" and not to be read with "any other service".
34. Had it been the intention of the law makers to restrict to any state service only, then the phrase would have been "in any services of the state". The following words/phrases play a vital role in defining the objectives of this section.
- District Collector
- Post
- Any other service
- In the state
35. The primary objective of this section is that the Executive Officer shall be equivalent to or above the rank of a District Collector in the State. That means the seniority of the officer to be posted shall be equivalent to or above the rank of a District Collector.
36. The objective of this section is that seniority is the criteria for appointment as executive officer. He may be a District Collector or a person from any service, if he is holding or has held a post in the state ` 49 wp_15471_2022 BKMJ equivalent to or above the District Collector in any other service. The officer may be belonging to All India Services, Central Services or State Services but the member of the service must have worked in the State holding or has held a post which is equivalent to or above the District Collector.
37. Thus the interpretation of Section 107(1) of the Act 30 of 1987 matches with the qualifications and eligibility of the respondent No.8 to be appointed as an Executive Officer of Tirumala Tirupati Devastanam even on regular basis as found above. Hence, the impugned proceedings of the respondent No.4 dated 08.05.2022 is sustainable and valid in the eye of law.
38. For the foregoing reasons it is declared that the impugned order of the respondent No.4 in G.O.Rt.No.813 dated 08.05.2022 placing the respondent No.8 as "full additional charge" in the post of "Executive Officer" of Tirumala Tirupati Devasthanams, until further orders is not in violation of Section 107(1) of the Act 30 of 1987 and the respondent No.8 has got an authority to hold the said post.
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38. Accordingly, the writ petition is dismissed. No costs. As a sequel, the miscellaneous applications pending if any, shall stand closed.
_______________________________ JUSTICE B. KRISHNA MOHAN September 15, 2022 LMV ` 51 wp_15471_2022 BKMJ HON'BLE SRI JUSTICE B. KRISHNA MOHAN WRIT PETITION No.15471 OF 2022 September 15, 2022 LMV