Karnataka High Court
Karnataka Kaigarika ... vs State Of Karnataka on 8 May, 2020
Author: G.Narendar
Bench: G.Narendar
W.P. No.33055/2019
1
R
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 08TH DAY OF MAY, 2020
BEFORE
THE HON'BLE MR.JUSTICE G.NARENDAR
W.P.NO.33055/2019 (S-RES)
BETWEEN
KARNATAKA KAIGARIKA
PRADESHABHIVRUDDI MANDALI
PARISHISTA JAATHI
PARISHISTA PANGADA MATTHU
HINDULIDA VARGAGALA
NOUKARARA SANGHA (REGD.),
4TH FLOOR, EAST WING,
KHANIJA BHAVANA,
RACE COURSE ROAD,
BENGALURU-560001
REPRESENTED BY ITS PRESIDENT.
... PETITIONER
(BY SRI NAGENDRA NAIK K, ADV.)
AND
1. STATE OF KARNATAKA
BY ITS PRINCIPAL SECRETARY
TO GOVERNMENT
BACKWARD CLASSES
WELFARE DEPARTMENT
DR. DEVARAJ URS BHAVAN,
VASANTHANAGAR,
BENGALURU-560 052.
2. PRINCIPAL SECRETARY
TO GOVERN,ENT
DEPARTMENT OF
INDUSTRIES & COMMERCE
VIKAS SOUDHA,
W.P. No.33055/2019
2
DR. AMBEDKAR VEEDHI
BENGALURU-560 001.
3. ADDITIONAL DIRECTOR
GENERAL OF POLICE,
CIVIL RIGHTS ENFORCEMENT CELL,
BENGALURU-560001.
4. M RAMA
ADDITIONAL CHIEF
DEVELOPMENT OFFICER
& SUPERINTENDING ENGINEER
KARNATAKA INDUSTRIAL AREAS
DEVELOPMENT BOARD,
HEAD OFFICE, NO.49,
4TH & 5TH FLOOR,
EAST WING, KHANIJA BHAVAN,
RACE COURSE ROAD,
BENGALURU-560 001.
5. KARNATAKA INDUSTRIAL
AREAS DEVELOPMENT BOARD
A BODY ESTABLISHED
UNDER SECTION 5 OF THE
KARNATAKA INDUSTRIAL AREAS
DEVELOPMENT ACT, 1966
HAVING ITS HEAD OFFICE NO.49,
4TH & 5TH FLOOR, EAST WING,
KHANIJA BHAVAN, RACE COURSE ROAD,
BENGALURU-560 001
REPRESENTED BY ITS
CHIEF EXECUTIVE OFFICER AND
EXECUTIVE MEMBER.
6. TAHSILDAR
BANGALORE NORTH TALUK
BANGALORE-562157.
... RESPONDENTS
(BY SRI T.S.MAHANTESH, AGA FOR R1-R3,
SRI A.S.PONNANNA, SENIOR ADVOCATE FOR
SRI RAJESWARA.P.N, ADV. FOR R4,
SRI P.V.CHANDRASHEKAR, ADV. FOR R5,
R6 SERVED AND UNREPRESENTED.)
W.P. No.33055/2019
3
THIS WRIT PETITION IS FILED UNDER ARTICLE 226 OF
THE CONSTITUTION OF INDIA, PRAYING TO DIRECT THE R-1
TO 3 & R-5 BY ISSUE OF A WRIT IN THE NATURE OF QUO
WARRANTO TO OUST THE R-4 FROM THE OFFICE THAT HE IS
PRESENTLY HOLDING IN THE KARNATAKA INDUSTRIAL
AREAS DEVELOPMENT BOARD AND DIRECT HIM TO VACATE
THE OFFICE FORTHWITH ETC.
THIS WRIT PETITION HAVING BEEN HEARD AND
RESERVED FOR ORDERS ON 26.09.2019, COMING ON FOR
'PRONOUNCEMENT OF ORDERS', THIS DAY, THE COURT
MADE THE FOLLOWING:-
ORDER
Heard the learned counsel Sri. Nagendra Naik K. for the petitioner and the learned Addl. Govt. Advocate Sri. T.S. Mahantesh on behalf of respondent Nos.1 to 3 and the learned Senior Counsel Sri. A.S. Ponnanna along with the learned counsel Sri. Rajeswara P.N. for the respondent No.4 and the learned counsel Sri. P.V. Chandrashekar for the respondent No.5.
Brief facts:
The case of the petitioner is that it is a registered body and that the same is registered under the Karnataka Societies Registration Act and that being aggrieved by the appointment of 4th respondent despite him not possessing W.P. No.33055/2019 4 the statutorily stipulated qualification and being further aggrieved by the inaction and wrong actions of respondent Nos.2, 3 and 5 in appointing and allowing the 4th respondent to continue in the service against the post reserved for Scheduled Castes, has preferred the instant writ petition. That despite the notification not reserving any post in favour of candidates hailing from the backward class, the appointment of the 4th respondent, who belongs to a backward class, has been appointed against the quota for the reserved category despite the 4th respondent not possessing the eligibility.
2. It is contended by the learned counsel for the petitioner that the father of the petitioner was employed as a foreman in the University Visvesvaraya College of Engineering and that he superannuated on 30.09.1983 and the annual income was in excess of Rs.10,000/- which is the income limit stipulated for the purpose of claiming reservation under the backward caste. In this regard he would invite the attention of the court to Annexure-R an information furnished by the college authorities detailing W.P. No.33055/2019 5 the salary and allowances paid by the University to the father of the 4th respondent on his re-employment (post his retirement) from 09.12.1983 to 28.09.1984. He would contend that the monthly income of the father of the 4th respondent was Rs.1,188.75 paise and hence the annual income exceeded Rs.10,000/- and hence the 4th respondent was ineligible to be considered even for appointment as against the backward caste category. He would further invite the attention of the court to Annexure- H said to be the notification issued by the fifth respondent inviting applications for the post of Assistant Engineer and would contend that applications were invited for six posts and two posts were reserved in respect of the candidates hailing from the scheduled caste category, two from the general merit category, one from the backward class community and one from the BSG category. He would contend that no post had been reserved in respect of backward class or backward tribe and despite the same the 4th respondent has been appointed against the post reserved for backward class tribe. In this regard he would invite the attention of the court to Annexure-J being the W.P. No.33055/2019 6 proceedings of the Selection Committee. Hence he would contend that the selection of the 4th respondent under the BCT category in the absence of any reservation in favour of the said category, the appointment of the 4th respondent is rendered illegal and hence the petitioner has made out a case for issuance of a writ of quo-warranto. Learned counsel for the petitioner would also place reliance on Annexure-G2 to contend that the 4th respondent is not entitled to be appointed against the post reserved for backward class tribe.
3. The learned counsel for the petitioner would submit that in the light of the Annexure-R the family income of the petitioner being excess of Rs.10,000/- the 4th respondent is not entitled to be appointed against the post reserved for backward caste and hence on that count also the appointment of the 4th respondent requires to be negated and set-aside. He would further contend that the light of these facts the caste certificate dated 18.01.1985 (Annexure-W) certifying the 4th respondent as hailing from the backward caste is illegal and the subsequent W.P. No.33055/2019 7 proceedings of the Caste Verification Committee dated 20.02.2019 (Annexure-AE) upholding the same is contrary to the notification and is illegal and hence both the Caste Certificate and proceedings of the Caste Verification Committee are required to be set-aside and quashed.
4. The learned counsel for the petitioner would vehemently contend that the 4th respondent in collusion with the fifth respondent indulged in manipulation and as a result of such manipulation the selection committee recommended the selection of the 4th respondent against the post reserved for BCT category. That the appointment, in the absence of reservation of any post, is illegal as it has deprived a candidate, legitimately hailing from the BCT category, of the appointment.
5. He would further contend that in fact the appointment of the 4th respondent was the subject matter of a report by the Karnataka Legislative Welfare Committee for Scheduled Castes and Scheduled Tribes that the appointment was enquired into by the Commissioner for Backward Class and Welfare Department and that the W.P. No.33055/2019 8 Board has admitted that there was no corrigendum issued to the advertisement inviting applications. That the reservation matrix stipulated in the advertisement has not been altered. He would further invite the attention of the court to Annexures-P, Q and R for the purpose of demonstrating that the family income of the 4th respondent was in excess of the amount under a Govt. Notification produced as Annexures-G1 and G2. He would contend that as per annexure-S he was appointed in a pay scale of Rs.750-1560 and hence by no stretch of imagination it can be held that the family income of the 4th respondent was less than Rs.10,000/-. In that view of the matter, the declaration by the 4th respondent on 23.12.1983 that he belongs to the Kuruba caste at Item 5 of the declaration and the further declaration at Item 6 the income is Rs.9,000/- are false and hence the selection against the post reserved for backward caste is illegal.
6. The learned counsel for the petitioner would place reliance on the ruling of the Apex Court rendered in the case of Renu and Others Vs. District and Sessions Judge, W.P. No.33055/2019 9 Tis Hazari Courts, Delhi and Another, reported in (2014) 14 SCC 50 and would place reliance on the observations of the Apex Court. The Hon'ble Apex Court, has dealt with the factual matrix of the case in paragraph 2 and the law laid down in paragraph 34 and 35 which are culled out for the sake of brevity.
"2. This Court had appointed Shri P.S. Narasimha, learned Senior Counsel as amicus curiae to assist the Court. The matter was heard on 28-1-2014 and deliberations took place at length wherein all the learned counsel appearing for the States as well as for the High Courts suggested that the matter should be dealt with in a larger perspective i.e. also for appointments of employees in the High Court and courts subordinate to the High Court which must include Class IV posts also. A large number of instances have been pointed out on the basis of the information received under the Right to Information Act, 2005 of cases not only of irregularity but of favouritism also in making such appointments. It has been suggested by the learned counsel appearing in the matter that this Court has a duty not only to check illegality, irregularity, corruption, nepotism and favouritism in judicial institutions, but also to provide guidelines to prevent the menace of back-door entries of employees who subsequently are ordered to be regularised.
34. We would like to make it clear that the High Court is a constitutional and an autonomous authority subordinate to none. Therefore, nobody W.P. No.33055/2019 10 can undermine the constitutional authority of the High Court, and therefore the purpose to hear this case is only to advise the High Court that if its rules are not in consonance with the philosophy of our Constitution then the same may be modified and no appointment in contravention thereof should be made. It is necessary that there is strict compliance with appropriate rules and the employer is bound to adhere to the norms of Articles 14 and 16 of the Constitution before making any recruitment.
35. In view of the above, the appeal stands disposed of with the following directions:
35.1. (i) All the High Courts are requested to re-
examine the statutory rules dealing with the appointment of staff in the High Court as well as in the subordinate courts and in case any of the rule is not in conformity and consonance with the provisions of Articles 14 and 16 of the Constitution, the same may be modified.
35.2. (ii) To fill up any vacancy for any post either in the High Court or in courts subordinate to the High Court, in strict compliance with the statutory rules so made. In case any appointment is made in contravention of the statutory rules, the appointment would be void ab initio irrespective of any class of the post or the person occupying it. 35.3. (iii) The post shall be filled up by issuing the advertisement in at least two newspapers and one of which must be in vernacular language having wide circulation in the respective State. In addition thereto, the names may be requisitioned from the local employment exchange and the vacancies may be advertised by other modes also e.g. Employment News, etc. Any vacancy filled up W.P. No.33055/2019 11 without advertising as prescribed hereinabove, shall be void ab initio and would remain unenforceable and unexecutable except such appointments which are permissible to be filled up without advertisement e.g. appointment on compassionate grounds as per the rules applicable. Before any appointment is made, the eligibility as well as suitability of all the candidates should be screened/tested while adhering to the reservation policy adopted by the State, etc. if any. 35.4. (iv) Each High Court may examine and decide within six months from today as to whether it is desirable to have centralised selection of candidates for the courts subordinate to the respective High Court and if it finds it desirable, may formulate the rules to carry out that purpose either for the State or on zonal or divisional basis. 35.5. (v) The High Court concerned or the subordinate court as the case may be, shall undertake the exercise of recruitment on a regular basis at least once a year for existing vacancies or vacancies that are likely to occur within the said period, so that the vacancies are filled up timely, and thereby avoiding any inconvenience or shortage of staff as it will also control the menace of ad hocism."
7. From a reading of paragraph 2 it is apparent that the Apex Court was concerned with the large scale irregularities in the matter of appointment of employees in the High Courts and sub-ordinate Courts and after taking note of the fact that appointments are vitiated by favouritism, the Apex Court desired to lay down W.P. No.33055/2019 12 parameters in respect of the appointments to be made. The outline of the procedure to be adopted is stated in paragraph 16 and the details of procedure to be adopted to ensure transparency in the matter of appointment is set- out in paragraph 35. The broad outline set-out in paragraph 16 to ensure transparency is that, there must be an advertisement and the advertisement must specify the number of posts available for selection and recruitment. The qualification and other eligibility criteria for such posts ought to be explicitly provided and that the schedule of recruitment for such should be published with certainty and clarity. The advertisement should also specify the procedure under which selection is likely to be undertaken.
8. The learned counsel for the petitioner would place reliance on the ruling of the Apex Court rendered in the case of State of Bihar and Others Vs. Chandreshwar Pathak, reported in (2014) 13 SCC 232 to contend that irrespective of the fact as to whether the appointment is irregular or illegal, termination is warranted. The factual W.P. No.33055/2019 13 matrix of the case is set out in paragraph 2 and it involved the appointment of the respondent in the post of Constable by the Inspector General of Police on a temporary basis. The High Court of Patna while considering the issue of backdoor appointments in the police department proceeded to issue direction to the Govt. of Bihar to review irregular appointments and to remove such appointees. The direction led to the issuance of show cause notice and removal of the respondent therein. The Apex Court after examining the merits found that the appointment has been given merely on the asking of Inspector General of Police and further observed that there is no material to demonstrate that advertisement was issued thereby giving an opportunity to all the eligible candidates to compete for selection. In that background, the Hon'ble Apex Court in paragraph 13 was pleased to hold as follows:-
"13. Accordingly, it has to be held that in the absence of any advertisement or selection process, the appointment of the respondent is not protected and could be validly terminated. The learned Single Judge was justified in dismissing the writ petition while the Division Bench erred in interfering with the same."W.P. No.33055/2019 14
9. The learned counsel for the petitioner would place reliance on the ruling of the Apex Court rendered in the case of Bedanga Talukdar Vs. Saifuddoula Khan, reported in (2011) 12 SCC 85, to contend that relaxation of any condition in the advertisement cannot be without due publication. The factual matrix of the case is noted by the Apex Court in paragraph Nos.4, 5, 6, 7, 8 & 9. It involved the lack of reservation as mandated under the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995. The crux of the lis is noted in paragraph 10, 12, 13 & 15. The findings of the High Court are set out in paragraph 16 and 17. The case of the first respondent therein who was the successful petitioner is discussed by the Apex Court in paragraph 26 and on the said basis the Apex Court proceeded to hold in paragraph 32 which reads as under:-
32. In the face of such conclusions, we have little hesitation in concluding that the conclusion recorded by the High Court is contrary to the facts and materials on the record. It is settled law that there can be no relaxation in the terms and conditions W.P. No.33055/2019 15 contained in the advertisement unless the power of relaxation is duly reserved in the relevant rules and/or in the advertisement.
Even if there is a power of relaxation in the rules, the same would still have to be specifically indicated in the advertisement. In the present case, no such rule has been brought to our notice. In such circumstances, the High Court could not have issued the impugned direction to consider the claim of Respondent 1 on the basis of identity card submitted after the selection process was over, with the publication of the select list.
and the reasoning in support of the conclusions are found in paragraph 29, 30 and 31 which reads as under:-
"29. We have considered the entire matter in detail. In our opinion, it is too well settled to need any further reiteration that all appointments to public office have to be made in conformity with Article 14 of the Constitution of India. In other words, there must be no arbitrariness resulting from any undue favour being shown to any candidate. Therefore, the selection process has to be conducted strictly in accordance with the stipulated selection procedure. Consequently, when a particular schedule is mentioned in an advertisement, the same has to be scrupulously maintained. There cannot be any relaxation in the terms and conditions of the advertisement unless such a power is specifically reserved. Such a power could be reserved in the relevant statutory rules. Even if power of relaxation is provided in the rules, it must still be mentioned in the advertisement. In the absence of such power in the rules, it could still be provided in the W.P. No.33055/2019 16 advertisement. However, the power of relaxation, if exercised, has to be given due publicity. This would be necessary to ensure that those candidates who become eligible due to the relaxation, are afforded an equal opportunity to apply and compete. Relaxation of any condition in advertisement without due publication would be contrary to the mandate of equality contained in Articles 14 and 16 of the Constitution of India.
30. A perusal of the advertisement in this case will clearly show that there was no power of relaxation. In our opinion, the High Court committed an error in directing that the condition with regard to the submission of the disability certificate either along with the application form or before appearing in the preliminary examination could be relaxed in the case of Respondent 1. Such a course would not be permissible as it would violate the mandate of Articles 14 and 16 of the Constitution of India.
31. In our opinion, the High Court was in error in concluding that Respondent 3 had not treated the condition with regard to the submission of the certificate along with the application or before appearing in the preliminary examination, as mandatory. The aforesaid finding, in our opinion, is contrary to the record. In its resolution dated 21-5-2010, the Commission has recorded the following conclusions:
"Though Shri S. Khan had mentioned in his letter dated 10-12-2009 that he was resubmitting the identity card with regard to locomotor disability he, in fact, had submitted the documentary proof of his W.P. No.33055/2019 17 locomotor disability for the first time to the office of the APSC through his above letter dated 10-12-2009. However, after receiving the identity card the matter was placed before the full Commission to decide whether the Commission can act on an essential document not submitted earlier as per terms of advertisement but submitted after completion of entire process of selection.
The Commission while examining the matter in details observed that Shri S. Khan was treated as general candidate all along in the examination process and was not treated as physically handicapped with locomotor disability. Prior to taking decision on Shri S. Khan it was also looked into by the Commission, whether any other candidate's any essential document relating to right/benefits, etc. not furnished with the application or at the time of interview but submitted after interview was accepted or not. From the record, it was found that prior to Shri S. Khan's case, one Smt Anima Baishya had submitted an application before the Chairperson on 26-2-2009 claiming herself to be an SC candidate for the first time. But her claim for treating herself as an SC candidate was not entertained on the grounds that she applied as a general candidate and the caste certificate in support of her claim as SC candidate was furnished long after completion of examination process."
10. The learned counsel for the petitioner proceeding further would place reliance on the ruling of the Apex W.P. No.33055/2019 18 Court in the case of M.S. Patil (DR.) Vs. Gulbarga University and Others, reported in (2010) 10 SCC 63 to contend that the lengthy service rendered cannot be a ground not to remove the occupant. The facts of the lis are discussed in a nutshell in paragraph 2, 3 and 4. The Apex Court after taking note of the fact that the Appellant had continued in the office on the strength of a court order proceeded to hold in paragraph 15, 16 and 17 which are extracted herein below:-
"15. Once the facts of the case are narrated, there remains hardly anything to adjudicate upon. The facts of the case lead to only one conclusion that the appellant was wrongly appointed to a post that was reserved for Group B category. The High Court has also found that the appellant's selection for appointment to the post was tainted by the participation of the Head of the Department of Kannada, who was related to him, in the selection process. In those facts and circumstances, all that is needed is to dismiss the appeal without further ado.
16. But at this stage once again a strong appeal is made to let the appellant continue on the post where he has already worked for over 17 years. Mr Patil, learned Senior Counsel, appearing for the appellant, submitted that throwing him out after more than 17 years would be very hard and unfair to him since now he cannot even go back to the college where he W.P. No.33055/2019 19 worked as Lecturer and from where he had resigned to join to this post.
17. We are unimpressed. In service law there is no place for the concepts of adverse possession or holding over. Helped by some University authorities and the gratuitous circumstances of the interim orders passed by the Court and the delay in final disposal of the matter, the appellant has been occupying the post, for all these years that lawfully belonged to someone else. The equitable considerations are, thus, actually against him rather than in his favour."
11. The learned counsel for the petitioner has placed reliance on the ruling of the Apex Court in the case of Central Electricity Supply Utility of Odisha Vs. Dhobei Sahoo and Others, reported in (2014) 1 SCC 161 and the ruling in the case of Dr Kashinath G. Jalmi and Another Vs. The Speaker and Others, reported in (1993) 2 SCC 703. The counsel for the petitioner has placed reliance on the rulings in support of his contention that the principles of delay and laches in approaching the court for remedy and matters of locus-standi are inapplicable to proceedings for issuance of a writ of quo-warranto.
W.P. No.33055/201920
12. In the case of Dr Kashinath G. Jalmi and Another Vs. The Speaker and Others stated supra, the factual matrix leading to the appeal is discussed by the Apex Court in paragraph 3, 4 and 5. The Apex Court was examining the issue as to whether the power of review is vested in the Speaker enabling him to review his own order under the tenth schedule of the Constitution and while so, considering the same, the Apex Court considered the issue of laches in the matter of preferring the petition impugning the legality of the order passed in review by the Speaker. The order in review was passed by the Speaker on 08.03.1991 and the writ petition was filed on 08.01.1992 that is after the passage of about eight months. The Apex Court has discussed the issue of laches in paragraph 13 and observed in paragraph 16 and 22, 25 and opined in paragraph 34 as under:-
"16. Having given our anxious consideration to the forceful submissions of learned counsel for both sides, we find ourselves unable to sustain the judgment of the High Court that the writ petitions were liable to be dismissed, merely on the ground of laches.W.P. No.33055/2019 21
22. The basic decision for submission on the doctrine of laches, relied on, is Lindsay Petroleum Co. v. Prosper Armstrong Hurd, Abram Farewell and John Kemp which has been followed in the decisions of this Court in Moon Mills Ltd. v. M.R. Meher, President, Industrial Court, Bombay and Maharashtra State Road Transport Corpn. v. Shri Balwant Regular Motor Service, Amravati . In Moon Mills Ltd., a writ of certiorari was sought to challenge a decision affecting the rights of the petitioner, wherein the question arose whether the petitioner could be denied the relief on the ground of acquiescence or laches. In that context it was observed that the issue of a writ of certiorari is a matter of sound discretion, and that 'the writ will not be granted if there is such negligence or omission on the part of the applicant to assert his right as taken in conjunction with the lapse of time and other circumstances, causes prejudice to the adverse party'. It was observed that 'the exercise of discretion under Article 226 to issue a writ of certiorari is based on the principle to a great extent, though not identical with, similar to the exercise of discretion in the Court of Chancery'. For this principle, involving the doctrine of laches in courts of equity, reference was made to the observation of Sir Barnes Peacock in Lindsay Petroleum Co. The decision was followed in, and the principle reiterated in Maharashtra State Road Transport Corpn. again in the context of the discretion under Article 226 of the Constitution to issue a writ of certiorari. Like all equitable principles, the doctrine of laches applies where it would be unjust to give a remedy to the petitioner, who is disentitled to grant of the same by his conduct or any other relevant circumstances, including the creation of third party rights during the W.P. No.33055/2019 22 intervening period, which are attributable to the laches of the petitioner.
25. It is significant that all these decisions relate to enforcement of personal rights, wherein a writ of certiorari was claimed for quashing some decision adverse to the petitioner and neither of them related to assertion of a public right in the nature of a class action. In the present case the claim is for the issue of a writ of quo warranto on the ground that Ravi S. Naik, Chopdekar and Bandekar are holding public offices, having suffered disqualification as Members of the Assembly subsequent to their election, and of them, Ravi S. Naik continues to hold the high public office of Chief Minister of Goa. The relief claimed in the present case is not the conferment of a personal benefit to the petitioners, but for cessation of the usurpation of public offices held by these persons, if the contention of the petitioners be right that orders of review setting aside the earlier orders of disqualification made by the Speaker under the Tenth Schedule are nullity.
34. In our opinion the exercise of discretion by the court even where the application is delayed, is to be governed by the objective of promoting public interest and good administration; and on that basis it cannot be said that discretion would not be exercised in favour of interference where it is necessary to prevent continuance of usurpation of office or perpetuation of an illegality."
The Hon'ble Apex Court proceeded to elucidate further on its conclusion in paragraph 35 and 36 which is as under:- W.P. No.33055/2019 23
"35. We may also advert to a related aspect. Learned counsel for the respondents were unable to dispute, that any other member of the public, to whom the oblique motives and conduct alleged against the appellants in the present case could not be attributed, could file such a writ petition even now for the same relief, since the alleged usurpation of the office is continuing, and this disability on the ground of oblique motives and conduct would not attach to him. This being so, the relief claimed by the appellants in their writ petitions filed in the High Court being in the nature of a class action, without seeking any relief personal to them, should not have been dismissed merely on the ground of laches. The motive or conduct of the appellants, as alleged by the respondents, in such a situation can be relevant only for denying them the costs even if their claim succeeds, but it cannot be a justification to refuse to examine the merits of the question raised therein, since that is a matter of public concern and relates to the good governance of the State itself.
36. Shri R.K. Garg submitted that laches of the appellants cannot legitimise usurpation of office by Ravi S. Naik, Chopdekar and Bandekar; and Shri Jethmalani submitted that manifest illegality will not be sustained solely on the ground of laches when it results in continuance in a public office of a person without lawful authority. The fact that the situation continues unaltered, since these persons continue to hold the public offices, to which they are alleged to be disentitled, is in our opinion sufficient to hold that the writ petitions ought not to have been dismissed merely on the ground of laches at the admission stage, without examining the contention on merits that these offices including that of the Chief Minister of the State, are being held by persons without any W.P. No.33055/2019 24 lawful authority. The dismissal of the writ petitions by the High Court merely on this ground cannot, therefore, be sustained."
13. The learned counsel for the petitioner would also place reliance on the ruling of the Apex Court in the case of Central Electricity Supply Utility of Odisha Vs. Dhobei Sahoo and Others, reported in (2014) 1 SCC 161, reliance is placed yet again to demonstrate the contention that in respect of matters praying for issuance of writ of quo- warranto the principles of delay and laches are inapplicable while adjudicating the issuance of quo- warranto. The factual matrix of the case is stated by the Hon'ble Apex Court in paragraph 5 and 6 which reads as under:-
"5. On 31-10-2007 one S.K. Dasgupta was appointed as CEO of CESU with a financial package of Rs 22 lakhs per annum. On 31-3-2010 Respondent 5, who had earlier served as Chairman and Managing Director of GRIDCO as well as member of the Commission from 2001 to 2006 and had forty-five years of experience in the electricity sector was nominated as member as well as Chairman of the Management Board and of CESU without any remuneration. The Chairman was only entitled to sitting fee of Rs 2000 per meeting.W.P. No.33055/2019 25
6. As the chronology of events would depict, Mr S.K. Dasgupta resigned from the post of CEO on 8- 8-2010 and on 10-8-2010 he was relieved. Keeping in view the smooth functioning of CESU, the Commission decided to entrust the functions, duties and responsibilities of CEO to the fifth respondent with immediate effect until further orders or until alternative arrangements were made by the Commission. It was mentioned in the order dated 10-8-2010 that the fifth respondent would enjoy all the perquisites/facilities as were being given to the CEO except the monthly emoluments. It was also observed that the Commission would take a view later on regarding the desirability of giving an honorarium to the Chairman. On 12-11-2010 the Scheme was again amended and a new clause was inserted as Clause 4(ix) and it was the Sixth Amendment to the Scheme. On that day itself the Commission fixed a consolidated honorarium of Rs 70,000 per month for the fifth respondent."
14. The Hon'ble Apex Court after placing reliance on its own decisions rendered in the case of High Court of Gujrat Vs. Gujrat Kisan Mazdoon in paragraph 19 and R.K Jains case in paragraph 20, proceeded to hold in paragraph 21, 22 and 23 which reads as under:-
"21. From the aforesaid exposition of law it is clear as noonday that the jurisdiction of the High Court while issuing a writ of quo warranto is a limited one and can only be issued when the person holding the public office lacks the eligibility criteria or when the appointment is contrary to the statutory rules. That apart, the W.P. No.33055/2019 26 concept of locus standi which is strictly applicable to service jurisprudence for the purpose of canvassing the legality or correctness of the action should not be allowed to have any entry, for such allowance is likely to exceed the limits of quo warranto which is impermissible. The basic purpose of a writ of quo warranto is to confer jurisdiction on the constitutional courts to see that a public office is not held by usurper without any legal authority.
22. While dealing with the writ of quo warranto another aspect has to be kept in view. Sometimes a contention is raised pertaining to doctrine of delay and laches in filing a writ of quo warranto. There is a difference pertaining to personal interest or individual interest on the one hand and an interest by a citizen as a relator to the Court on the other. The principle of doctrine of delay and laches should not be allowed any play because the person holds the public office as a usurper and such continuance is to be prevented by the Court. The Court is required to see that the larger public interest and the basic concept pertaining to good governance are not thrown to the winds.
23. Mr P.P. Rao, learned Senior Counsel, has commended us to the decision in Hari Bansh Lal v. Sahodar Prasad Mahto, where the learned Judges referred to the principles laid down in Duryodhan Sahu v. Jitendra Kumar Mishra, Ashok Kumar Pandey v. State of W.B., B. Singh v. Union of India, Dattaraj Nathuji Thaware v. State of Maharashtra and Gurpal Singh v. State of Punjab and expressed the view thus: (Hari Bansh Lal case, SCC p. 661, para
15) W.P. No.33055/2019 27 "15. The above principles make it clear that except for a writ of quo warranto, public interest litigation is not maintainable in service matters."
15. In support of the above principle the learned counsel for the petitioner also places reliance on the ruling rendered by a Division Bench of this court in paragraph 25, 28 and 42 which reads as under:-
'25. The scope of the writ of quo warranto and the jurisdiction of the High Court to interfere in the appointment under Article 226 of the Constitution of India arose for consideration before the Constitution Bench of the Apex Court in the case of THE UNIVERSITY OF MYSORE AND ANOTHER vs. C.D. GOVINDA RAO AND ANOTHER. The Constitution Bench has approved the following observations of Halsbury:
"An information in the nature of quo- warranto took the place of the obsolete writ of quo-warranto which lay against a person who claimed or usurped an Office, franchise, or liberty, to inquire by what authority he supported his claim, in order that the right to the office or franchise might be determined."
28. Therefore, from the aforesaid judgment, it is clear in a writ of quo warranto what the Court is expected to look into is whether the office in question is a public office, whether the appointment has been made in accordance with law or not and before making such appointment all relevant factors have been carefully considered W.P. No.33055/2019 28 before coming to the conclusion that the incumbent should be appointed to the said post. They have pointed out that the tests to be applied by the High Court in case of writ of certiorari is different from the tests to be applied in the case of writ of quo warranto. What the High Court should consider in the case of quo warranto is whether the appointment made by the Chancellor had contravened any statutory or binding rule or ordinance, and in doing so, the High Court should show due regard to the opinion expressed by the Board and its recommendation on which the Chancellor acted. In the said case the Board had considered the relevant factors carefully and ultimately came to the conclusion that the appellant No.2 should be recommended for the post of Reader. Therefore, it follows, in a writ of quo warranto, the Court has to examine first whether the person appointed to a public post possessed the requisite qualification prescribed by the statute, and before making appointment of such person, all relevant factors should be carefully examined. If these two conditions are satisfied then there is no scope for interference with the decision appointing such person.
42. Therefore, in the absence of any express provision providing the procedure for such appointment, the action of the State would not only be fair, legitimate, it should be above board and should be exercised with great circumspection. Having regard to the importance of the Office, the duties attached to the Office and the institution in which the Office is held, sufficient care is to be taken by the Government before making such appointment. One such guarantee of exercise of fairness is that the antecedents, the character and the past records of the candidate should be taken into consideration. Verification of character and antecedents is one of W.P. No.33055/2019 29 the important criterion before a person is appointed to a post under the statute and is a relevant factor. There should be proper application of mind to the material before it, before such an appointment is made. It has nothing to do with the candidate satisfying the requisite qualification prescribed for the said post. If the candidate do not possess the requisite qualification, he would not be in the zone of consideration at all. Merely because he possesses the requisite qualification, his appointment is not automatic. It is here that the Government should apply its mind. In cases of the candidate satisfying the qualification, is there any material by way of record which speaks about his character, conduct in the past, any adverse remarks or any outstanding performance of the officer, are to be considered. It is here the role of judiciary comes into operation. A writ of quo warranto gives the judiciary a weapon to control the Executive from making such appointments to the public office against law and to protect the public from the consequences flowing from undesirable elements being appointed to such posts. That is the judicial remedy available to a citizen of this country. This would be the scope and ambit of a writ of quo warranto. More so, in the present day where arbitrary appointments are made on extraneous consideration, contrary to law, without application of mind, without taking into consideration relevant factors and mechanically, the Constitution casts an obligation on the Higher Courts to review these decisions, when the post involved is a public post, in a proceedings by way of public interest litigation. That is the essence of separation of power contemplated under the Constitution to preserve the democracy and to protect public interest. Therefore, the judiciary cannot be a silent spectator. The time has come where the appointment to an office holding sensitive and W.P. No.33055/2019 30 important post should be done in a transparent manner giving no scope for any grievance."
16. The 4th Respondent has filed his objections. In paragraph 2 of the objections it is stated that the petition is preferred to avert and prevent the promotion of the 4th Respondent as Chief Engineer. That the petition is a clear case of abuse of the process of this Hon'ble Court. It is submitted that litigating is not one of the objects of the society. That in terms of section 3 of the Karnataka Societies Registration Act, 1960 (for short 'the Act of 1960'), no association can be formed for the purpose of espousing the cause of the employees belonging to a particular category of persons. Hence the instant petition is ultra- vires the aims and objects of the association or for that matter the object for which the association could be formed u/s 3 of the Act of 1960. It is further deposed that the person who has affixed his hand is not an employee of the Board.
17. It is further deposed that the petitioner association has come into existence only on 03.05.2019 and attempts W.P. No.33055/2019 31 to question a decision taken 35 years ago. It is further deposed that the educational qualification, required to hold the post is admitted. That the 4th respondent has completed his BE degree with distinction and had also secured 9th rank in the 8th semester. It is further deposed that none of the other applicants or other Engineers are aggrieved. That the issue with regard to the roster point has already been enquired into by the Commissioner, Social Welfare Department and has observed that the advertisement dated 29.05.1984 did not correctly reflect the reservation as per the roster point and that 8th roster point was to be reserved in favour of BCT and the advertisement cannot over-ride the roster point notification providing for reservation. Reliance in this regard is placed on Annexure-R3 and G4.
18. It is further deposed that the caste and income verification certificate has withstood the scrutiny by the competent authorities and the caste/income verification certificate dated 08.01.1985 has been affirmed that even as per the petitioner the 4th respondent belongs to the Kuruba W.P. No.33055/2019 32 caste and unless and until the said certificate is set aside in a manner known to law, the 4th respondent is entitled to hold office and cannot be termed usurper of a public office. That a writ of quo-warranto cannot lie to quash the caste and income verification certificate. That the relief in this regard requires to be rejected on the grounds of delay and laches. Reliance in this regard is placed on the order of the Division Bench dismissing a similar petition passed in W.P. No.30939/2010 wherein the Division Bench was pleased to reject the writ petition on the ground of delay and laches.
19. It is further deposed that the other colleagues of the instant respondent, who had approached this Court in W.P. No.3843/2013, W.P. No.47858/2018 and W.P. 27274/2013 have withdrawn the writ petition which are produced as Annexures-R5, R6 and R7. Reliance is further placed on Annexure-R8 to demonstrate that the 4th respondent is the senior most amongst the Chief Development Officer's of the Board and is fully eligible to be promoted. That the instant petition is in the teeth of the observation made by the Division Bench while disposing off W.P. No.33055/2019 33 W.A. No.1593/2013 and made after recording the submission of the counsel for the Board and counsel on behalf of the appellant (the 4th respondent herein) at para 5, 6 and 7 was pleased to order as follows:-
"5. Learned counsel for respondent No.4/KIADB has categorically stated that both the appellant as well as respondent No.1 are eligible to be considered to the post of Additional Chief Development Officer and that, in fact there are four vacant posts. The Board has also submitted a Report in this regard to the Government. It is also brought to our notice that there are certain other gradation lists in the other cadre of Development Officers which have to be finalized and that the learned Single Judge was right in staying the gradation list impugned in the writ petition.
6. However, learned senior counsel for the appellant submits that the stay of the impugned gradation list would not be in the interest of any of the parties. If the appellant and respondent No.1 in any case are eligible to be considered to the post of Additional Chief Development Officer, then the stay of the gradation list would be against their interest.
7. Having regard to the submissions made by learned counsel on both sides and keeping in mind the fact that both the appellant and respondent No.1 are in the zone of consideration to the post of Additional Chief Development Officer, we are of the view that the interim orders of stay of the final gradation list would not in any way further the interest of both the parties. Therefore, the impugned stay orders of the learned Single Judge are set aside. The W.P. No.33055/2019 34 respondents/authorities are at liberty to consider the case of both the appellant and respondent No.1 for the post of Additional Chief Development Officer. It is also observed that the promotions, if any, made by the respondents/authorities of the appellant and respondent No.1 would be subject to the result of the writ petition."
20. The learned Senior counsel for the 4th respondent would contend that the relief of quo-warranto is not sustainable as the 4th respondent is not holding any substantive, and independent public office and would place reliance on the ruling of the Apex Court reported in (2006) 11 SCC 731 and would invite the attention of the Court to observations made in paragraph 43 and paragraph 53. He would contend that the entire exercise by the petitioner is with an oblique motive and is nothing but a proxy litigation at the behest of unknown hands and initiated with a sole purpose of preventing the 4th Respondent from being promoted to the post of Chief Engineer. He would submit that the petitioner, which came into existence only on 03.05.2019 has placed on record the documents which have been secured under the Right to Information Act dated 10.04.2019 (Annexure-J) i.e., even prior to it coming W.P. No.33055/2019 35 into existence. The information is issued to one Mohan Raju and would contend that reliance ought not to be placed on the said documents, as firstly, the intended recipient is not before the Court nor is the document authenticated by the recipient. He would contend that, even otherwise the same is merely an information and not a certified copy of the document. The very fact, that the information issued to third parties have found their way into the hands of the petitioner is suffice to infer that the petition lacks bona fides and petitioner is merely a name lender and a blackmailer. In this regard he would also place reliance on Annexure-W which is information issued to one Sri. S.P. Narasimhaiah. The learned Senior counsel for the 4th respondent would contend that what was enquired into by the Social Welfare Department was a complaint that the 4th respondent was appointed against the post reserved in favour of scheduled caste. He would contend that the petitioner apart from making a vague allegation of manipulation has not set out any details of the alleged manipulation nor are the members of the selection committee arrayed as a party. He would further W.P. No.33055/2019 36 contend that much is sought to be made about the declaration of income in the application and would invite the attention of the Court to Annexure-R and would submit that even as per Annexure-R the period reflected therein is for about 10 months only and that an attempt is made to mislead the Court with Annexure-R. He would invite the attention of the Court to Annexure-S and the typed copy of Annexure-S and the interpolation made therein. The re- employment is only till 31.03.1984 which fact is not disputed, even assuming that the scale of pay mentioned in the typed copy is correct. It was only for a period of 4 months that is between November 1983 and March 1984 assuming that the scale of pay is correct and has been paid the said amount, the same would total to about Rs.6,000/- only. He would contend that the factual aspect of the enquiry conducted by the Tahsildar for accepting the declaration by the father of 4th respondent cannot be gone into at this distant point of time. He would further contend that admittedly the declarant is the father and information furnished by the father has been verified by the authorities and found to be correct and which enquiry had taken place W.P. No.33055/2019 37 more than 35 years ago and what was the method and mode of calculation adopted by the authorities and as to how they have accepted the declaration, cannot be gone into at this distant point of time. It is submitted that the petitioner who has sourced all other documents has not placed the enquiry report which led to the satisfaction of the competent authority before issuing the caste and income verification certificate. He would further submit that the instant petition is nothing but an attempt to blackmail the 4th respondent to come to terms, and pray for dismissal of the writ petition with exemplary costs.
21. The learned counsel for the Board would submit that the eligibility of the 4th respondent has been considered by the Division Bench and the instant writ petition is misconceived. That the appointment has been made in accordance with the Board regulations and that the verification of the 4th respondent's caste certificate has been made at the instance of the employer and it has been affirmed by the authorities that the 4th Respondent indeed W.P. No.33055/2019 38 belongs to the backward caste category. Hence, he would pray for dismissal of the writ petition.
22. This Court has given its anxious consideration to the various contentions canvassed on behalf of the parties and the material on record. The twin points that arise for consideration by this Court are;
1) Whether a writ of quo-warranto would lie in the facts and circumstances of the case?
2) Whether the writ petition prayers at (b) and
(c) and (e) are hit by the principles of delay and laches?
23. The undisputed facts are that the 5th Respondent issued an advertisement on 29.05.1984 inviting applications for various posts and one such post that was advertised was the post of Assistant Engineer.
24. The factum of the post for which selection was made, having been identified and advertised to the general public is admitted. The fact that the 4th respondent was an applicant is also admitted. The fact that the 4th W.P. No.33055/2019 39 respondent possessed the stipulated educational qualification is also admitted. Thus to put it in a nutshell, the petitioner has no grievance either with the legality of the notification inviting the applications or the qualifications stipulated there under, entitling an applicant to seek for appointment to the advertised post. If that be the admitted facts the question of construing the appointment as a backdoor entry would be farfetched. Hence, the reliance on Renu's case (2014) 14 SCC 50 is misplaced. It is the case of the petitioner that the 4th respondent has validly applied to the advertised post and has gone through the selection process as notified to the applicants. The petitioner's only grievance, as disclosed in the pleadings and as canvassed during the hearing is that,
a) he has been appointed against the post which was reserved in favour of candidates hailing from the Scheduled Castes Category; and b) he has been appointed against the vacancy reserved in favour of candidates hailing from the Backward Tribe/Back class Category. W.P. No.33055/2019 40
25. The allegations, that he has usurped the post reserved in favour of a Scheduled Castes Candidate, even as per the petitioner has been the subject matter of an enquiry by a committee constituted by the Legislative Assembly. It is also an admitted fact that the Board/employer has been intimated by the Commissioner, Department of Social Welfare and for Welfare of the Scheduled Castes and Scheduled Tribes, Government of Karnataka, under the proceedings dated 30.01.2016 that as per the roster points prevailing as of 25.09.1979 and applicable at the relevant time, the reserved posts advertised should have been in the following manner, i.e. BCT-1, SC-1, GM-2, BCM-1 and BSG-1, but the Board has erroneously notified as SC-2, GM-2, BCM-1 and BCG-1. The said proceedings dated 30.01.2016 clarifying the roster points, is not called in question. Thus, even as per the Social Welfare Department, the Board could not have notified two posts in favour of Scheduled Castes candidates and ought to have notified as above only. In other words, the Social Welfare Department, which, even as per the petitioner, is competent to pronounce on the W.P. No.33055/2019 41 correctness of the roster point and reservation of posts has categorically stated that the notification reserving two posts in favour of Scheduled Castes candidates is erroneous. In other words, the reservation of two posts in favour of Scheduled Castes candidates, is contrary to the statutory provisions providing for reservation in the matter of employment with the Board. But for the reasons best known to the petitioner, the petitioner has omitted to question the notification itself.
26. The litigation is focused on the second grievance that is the 4th respondent was not entitled to be appointed under the post reserved in favour of the Backward Class/Backward Class Tribe as the family income of the 4th respondent was in excess of Rs.10,000/- per annum and hence, he was not entitled to be appointed against the post reserved in favour of candidates hailing from Backward Classes, as detailed supra. In essence, the litigation, boils down to examining the correctness of the certificate issued by the competent authority accepting and certifying the W.P. No.33055/2019 42 claim of the father of the 4th respondent that the family income was less than Rs.10,000/-.
27. It is not in dispute that the certificate issued by the Competent Authority certifying that the 4th respondent is entitled to claim appointment to the posts reserved in favour of Backward Classes had been the subject matter of verification process, at the instance of the employer and also the subject matter of a scrutiny by the Castes Verification Committee.
28. In the light of the above facts and circumstances, this Court is required to examine as to whether, a writ of quo- warranto as prayed for can be issued at the instance of the petitioner and that too on the basis of the facts which are disputed? The answer to the above is not far to seek.
29. It would not be out of place to reproduce the reiteration of the law in this regard in the case of Central Electricity Supply Utility of Odisha Vs. Dhobei Sahoo and Others wherein at paragraph 21 the Apex Court held as follows:-
W.P. No.33055/201943
"21. From the aforesaid exposition of law it is clear as noon day that the jurisdiction of the High Court while issuing a writ of quo warranto is a limited one and can only be issued when the person holding the public office lacks the eligibility criteria or when the appointment is contrary to the statutory rules......
This court also places reliance on the ruling of the Apex Court rendered in the case of B. Srinivasa Reddy Vs. Karnataka Urban Water Supply & Drainage Board Employees' Assn. and Others, reported in (2006) 11 SCC 731 (II). The Hon'ble Apex Court while examining the maintainability of a petition praying for writ of quo warranto has been pleased to interpret the term 'public office' in the following terms:-
"76. The Notification dated 31.1.2004 clearly states that the appointment is on contract basis and until further orders. While laying down the terms of appointment in its order dated 21.4.2004, the Government of Karnataka clearly stated that the "term of contractual appointment of Sri B. Srinivasa Reddy shall commence on 1-2- 2004 and will be in force until further orders of the Government and this is a temporary appointment." Section 6(1) of the Act categorically states that the Managing Director shall hold office during the pleasure of the Government. The power and functions of the of the Board are laid down in Chapter V of the Act. A reading of the Act clearly shows that neither the Board nor its Managing Director is entrusted with any sovereign function.W.P. No.33055/2019 44
Black's Law Dictionary defines public office 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. 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 or superior power other than law, and position must have some permanency and continuity, State v. Taylor.
77. Carrying out sovereign function by the Board and delegation of a portion of sovereign power of Government to the Managing Director of the Board and some permanency and continuity in the appointment are quintessential features of public office. Every one of these ingredients are absent in the appointment of the appellant as Managing Director of the Board. This aspect of the matter was completely lost sight of by the High Court."
30. Further the Hon'ble Apex Court in the case of Bharati Reddy Vs State of Karnataka and Others, reported in (2018) 6 SCC 162, has held that no writ of quo warranto can be issued so long as the Caste and Income Certificate was W.P. No.33055/2019 45 valid. The Hon'ble Apex Court was pleased to observe in paragraph 39 and 41 as under:-
"39. We have adverted to some of those decisions in the earlier part of this judgment. Suffice, it to observe that unless the Court is satisfied that the incumbent was not eligible at all as per the statutory provisions for being appointed or elected to the public office or that he/she has incurred disqualification to continue in the said office, which satisfaction should be founded on the indisputable facts, the High Court ought not to entertain the prayer for issuance of a writ of quo warranto.
41. This, however, will make no difference to the conclusion which we must reach in this case that the High Court could not have issued a writ of quo warranto until the Income and Caste Certificate issued in favour of the appellant, on the basis of which she participated in the election for the post of Adhyaksha and got elected, was to be declared void or invalidated by the Caste Scrutiny Committee. We do not wish to dilate on other incidental aspects/arguments as the same will not have any bearing on the conclusion noted above."
In the light of the law laid down it was incumbent on the petitioner to demonstrate that the criterion as explained above. From the foregoing discussions, it is apparent that the petitioner has miserably failed to demonstrate that the 4th respondent is an usurper of an independent, substantial public office calling for an issuance of a writ of W.P. No.33055/2019 46 quo-warranto. Hence, the said prayer (a) for issuance of a writ of quo-warranto stands rejected.
31. On a close examination of the law laid down by the Hon'ble Apex Court and as set out by the Division Bench, it is apparent that the petition is required to comply with certain pre-requisites before the High Court endeavours to issue a writ of quo-warranto. As held by the Division Bench the pre-requisite for issuance of a writ of quo- warranto is that the person against whom it is sought must hold an independent, substantive public office. Admittedly, the post to which the 4th respondent had applied for and appointed was, as per the Board Regulations, (Annexure-C) is a Grade-B/Assistant Executive Engineer Post. Whether a Grade-B post can by any stretch of imagination be construed to be an independent, substantive public office? In the opinion of this Court the same has to be in the negative. The mere fact that now the 4th respondent is sought to be promoted to the post of Chief Engineer after 35 years of service cannot be a ground to invoke and seek for issuance of a W.P. No.33055/2019 47 writ of quo-warranto. As held by the Apex Court and a Division Bench of this Court, the post of an AEE, can by no stretch of imagination be equated with an independent and substantive public office as the post of AEE is several rungs lower in the hierarchy. The petitioner has not questioned the selection process. Neither has the petitioner questioned the competency of the selection committee and the grievance is that, though the respondent belongs to the caste which he claims, but he is not entitled to seek appointment against the reserved post in view of the annual income exceeding the specified limit. It is not in dispute that the said fact, as to whether the income of the 4th respondent's father exceeded the specified limit or not can be the subject matter before an alternative forum, i.e., a statutory appeal remedy provided under the Act of 1990 which statute came to be enacted pursuant to the law laid down by the Hon'ble Apex Court in the case of Madhuri Patil.
32. The other limb of argument that the appointment against the post was not notified also requires to be W.P. No.33055/2019 48 rejected in the light of the law laid down by the Hon'ble Apex Court and as succinctly stated by the Division Bench. There is no dispute that as prescribed by the statute providing for reservation the roster point-8 and 10 (Annexure-R3), on the date of appointment provide for reservation of three posts in favour of BSG, BCT and BCM. The petitioner has also placed on record the deliberations of the selection committee (Annexure-J) and the circular dated 22.11.1992 ordering strict compliance in matters pertaining to reservation of posts (Annexure-F). If the contention of the petitioner is accepted and if it is held that as per the notification two candidates of the Scheduled Castes category ought to have been appointed as per the notification then the same would have resulted in violation of the Government Order pertaining to roster points dated 25.09.1979. Apparently, the selection committee realizing the error in the notification has proceeded to make the selections in accordance with the law relating to roster points. It cannot be gainfully argued that the notification would prevail over the statute governing the roster point. The petitioner having not impugned the correctness of the W.P. No.33055/2019 49 notification, further discussion in this regard is aborted as unnecessary. Hence, the only moot question that remains is whether the 4th respondent who was appointed against the roster point 5, 8 and 10 as clarified in Annexure-R3 is valid and correct. The answers are not for to seek.
33. A useful reference can be made to the observations by the Division Bench of this Court in the case of P.M. Parameshwara Murthy and Others (ILR 2013 KAR 209) an examining the scope of writ of quo-warranto and the jurisdiction of the High Court to interfere with the appointment in exercise of its jurisdiction under Article 226 of the Constitution was pleased to look into the various authoritative pronouncement of the Hon'ble Apex Court and after examining the same in paragraphs 25 to 37 held in paragraph 38 and 42 as under:
"38. Therefore the quo warranto proceedings is the judicial remedy by which any person who holds an independent, substantive public office is called upon to show by what right he holds the said office. This gives the judiciary, a weapon to control the executive from making appointment to public office, against law. It tends to protect the public from usurpers of public office. It is indisputably a high prerogative writ. Judicial review in our W.P. No.33055/2019 50 Constitutional scheme itself is a part of its basic structure. Decisions which are arrived at by the Executive or Judiciary are subject to judicial review. While exercising the power of judicial review, the Court would not be concerned with the merit of the decision, but with the decision making process. Judicial Review is concerned with the question whether the incumbent possessed qualification for appointment to a public office, and the manner in which the appointment came to be made or procedure adopted is whether fair, just and reasonable, and whether the selection is as per law and procedure in this behalf. Therefore the Court has to examine first whether the person appointed to a public post possess the requisite qualification prescribed by the statute and before making appointment of such person, all relevant factors should be carefully examined. The jurisdiction of High Court to issue a writ of quo warranto is a limited one. However, the power of judicial review, although is very restricted, cannot be denied to be exercised when relevant fact is not considered. The width and ambit of the writ, however, in the course of practice, have widened as held by the Apex Court in KANNADASAN's case. Administrative law moreover has much developed over the years. Where an opinion was not formed on relevant facts or within the restraints of statute as an alternative safeguard to the rules of natural justice, where the function is administrative, evidently judicial review shall lie. It is now a well settled principle of administrative law that the doctrine of error of law apparent on the face of the record inter alia, would take within its umbrage a case where statutory authority in exercising its discretionary jurisdiction did not take into consideration a relevant fact or based its decision on only irrelevant factors not germane W.P. No.33055/2019 51 for passing the order. Approving this view, a larger Bench of the Apex Court in the case of CENTRE FOR PIL has held that appointment to the public post must satisfy not only the eligibility criteria of the candidate but also the decision making process. The decision taken by a statutory authority, without looking into the relevant material having nexus to the object and purpose of the Act, under which the appointment is made or takes into account irrelevant circumstances, would stand vitiated on the ground of official arbitrariness. While making such appointment, the authority performs a statutory duty. The criterion of the candidate being a public servant and he possesses the requisite qualification prescribed for the said post is not the sole consideration. The authority has to look at the record and take into consideration whether the candidate would or would not be able to function in the public post. When institutional integrity is in question, the touch stone should be 'public interest'. The institution is more important than the individual. Appointment to the post must satisfy not only the eligibility criteria of the candidate but also the decision making process. The decision should be an informed decision. It is on consideration of the complete information and material, the appointment has to be made. That would constitute a fair and transparent process of consideration of an eligible candidate before he is appointed. If this exercise is not done, it amounts to non-
application of mind, arbitrary exercise of power and it offends Article 14 of the Constitution.
42. Therefore, in the absence of any express provision providing the procedure for such appointment, the action of the State would not only be fair, legitimate, it should be above board and should be exercised with great W.P. No.33055/2019 52 circumspection. Having regard to the importance of the Office, the duties attached to the Office and the institution in which the Office is held, sufficient care is to be taken by the Government before making such appointment. One such guarantee of exercise of fairness is that the antecedents, the character and the past records of the candidate should be taken into consideration. Verification of character and antecedents is one of the important criterion before a person is appointed to post under the statute and is a relevant factor. There should be proper application of mind to the material before it, before such an appointment is made. It has nothing to do with the candidate satisfying the requisite qualification prescribed for the said post. If the candidate do not possess the requisite qualification, he would not be in the zone of consideration at all. Merely because he possesses the requisite qualification, his appointment is not automatic. It is here that the Government should apply its mind. In cases of the candidate satisfying the qualification, is there any material by way of record which speaks about his character, conduct in the past, any adverse remarks or any outstanding performance of the officer, are to be considered. It is here the role of judiciary comes into operation. A writ of quo warranto gives the judiciary a weapon to control the Executive from making such appointments to the public office against law and to protect the public from the consequences flowing from undesirable elements being appointed to such posts. That is the judicial remedy available to a citizen of this country. This would be the scope and ambit of a writ of quo warranto. More so, in the present day where arbitrary appointments are made on extraneous consideration, contrary to law, without W.P. No.33055/2019 53 application of mind, without taking into consideration relevant factors and mechanically, the Constitution casts an obligation on the Higher Courts to review these decisions, when the post involved is a public post, in a proceedings by way of public interest litigation. That is the essence of separation of power contemplated under the Constitution to preserve the democracy and to protect public interest. Therefore, the judiciary cannot be a silent spectator. The time has come where the appointment to an office holding sensitive and important post should be done in a transparent manner giving no scope for any grievance."
34. Now coming to the second point for consideration as framed by this Court for determination of the petition prayers, that is, prayer (b) and prayer (c) and prayer (e).
35. Under prayer (b) the petitioner has sought for quashing of the proceedings of the selection committee (Annexure-J). Under prayer (c) the petitioner has sought for quashing of Annexure-W, the Caste Certificate issued by the Competent Authority dated 18.01.1995 and the endorsement issued by the Directorate of Civil Rights Enforcement Cell dated 20.02.2019 and on the recommendation of the Board dated 29.08.2019 W.P. No.33055/2019 54 (Annexure-AK) recommending the name of the 4th respondent for promotion to the post of Chief Engineer.
36. The writ petition in so far as relates to the correctness and legality of the Caste Certificate issued by the Competent Authority need not detain this Court for long. The Caste Certificate admittedly has been issued by the Competent Authority, the said Caste Certificate has been verified at the instance of the employer and the selection committee acting on the basis of the Caste Certificate has deemed it appropriate to appoint the 4th respondent against the post reserved for backward classes as per the roster point. The selection process culminated on 04.08.1984 and whether the proceedings which had culminated about 35 years ago can be gone into at this distant point of time and thereby unsettle a settled position.
37. The petitioner is an organization which has come into existence on 03.05.2019 and desires to question the legality of proceedings completed in 1984. Hence, the said relief prayer (b) requires to be rejected on the short ground W.P. No.33055/2019 55 of delay and laches alone. Further the determination of the issue involves adjudication of facts, which is the domain of the competent authority, whose certification has stood the test of time and scrutiny even by a legislative committee and which fact is also within the knowledge of the petitioner. In fact the inquiry by the committee was on the allegation that the respondent was appointed against a post reserved for the schedule castes. The petitioner has not demonstrated as to how it is aggrieved by the caste certificate. If the reliefs sought for, as noted supra, are adjudicated it would virtually amount to converting the present proceedings into a public interest litigation, contrary to the well settled position in law in this regard. In the guise of a writ of quo warranto, the petitioner cannot seek a roving enquiry with regard to facts pertaining to issuance of a caste certificate and that too in the face of an insurmountable obstacle, that is delay and laches.
38. That apart the petitioner has neither pleaded nor demonstrated any malafide action resulting in illegality in the appointment of the 4th respondent.
W.P. No.33055/201956
39. That apart, the case of malafides attributed to the petitioner is not without substance. As noted supra, the petitioner has not detailed the reasons as to why he has not availed the alternate remedy of appeal provided under the Karnataka Scheduled Castes and Scheduled Tribes and Other Backward Classes (Reservation of Appointments, Etc.) Act, 1990.
40. Further, the timing of the petition after withdrawal of several petitions by co-workers of the 4th respondent, lends credence to the allegation that the instant writ petition is on the instigation of unseen hands. The fact that the petitioner has relied upon information furnished to 3rd parties also adds weight to the allegation that the present petition is a proxy war at the instance of third parties. In this background this court is of the opinion that the present petitioner and the instant litigation is a proxy litigation at the behest of unseen hands and lacks in bonafides.
W.P. No.33055/201957
41. The timing of the petition questioning recommendation of the competent committee cannot be at the instance of the petitioner as it cannot be classified as an aggrieved person. The various information said to have been issued to 3rd parties is neither authenticated nor have the recipients of the information come before this court. In that view of the fact also this court is constrained to hold that the petitioner has not approached the court with clean hands and hence writ petition is liable to be dismissed with exemplary cost.
42. Accordingly, petition stands dismissed with costs quantified at Rs.50,000/- (Rupees Fifty Thousand only) such costs shall be deposited in the Chief Minister's Relief Fund - COVID 19 within six weeks, failing which, the Registrar General to initiate steps for recovery of the same.
The petition stands dismissed.
Sd/-
JUDGE Chs CT-HR