Delhi High Court
Hira Lal Sharma vs Municipal Corporation Of Delhi on 13 September, 1996
Equivalent citations: 64(1996)DLT527, 1996(39)DRJ132
Author: Dalveer Bhandari
Bench: Dalveer Bhandari
JUDGMENT Dalveer Bhandari, J.
(1) The petitioner who is an employee of the Delhi Electric Supply Undertaking, (hereinafter to be referred as D.E.S.U.) and also the General Secretary of the Delhi Electricity Workers Union has filed this petition for issuance of a writ of quo warranto, challenging the appointment of respondent no.2 R.K. Narayanan, to the post of General Manager, D.E.S.U. The appointment of respondent no.2 was approved vide Order dated 7.9.1995 and a subsequent order dated 22.9.1995, containing the terms and conditions of the appointment.
(2) The petitioner has challenged the appointment of respondent no.2 primarily on two grounds. The main ground on which the appointment has been assailed is that according to Section 96 of the Delhi Municipal Corporation Act, 1957, no appointment to any category A post within the meaning of clause (i) of sub-section (8) of Section 90 shall be made except after consultation with the Union Public Service Commission (hereinafter referred to as the Commission). The post of the General Manager, D.E.S.U. falls in that category and according to the petitioner, it was imperative for the respondent to have obtained the approval of the Commission before making the appointment. In other words, any appointment without approval is invalid and bad in law. Admittedly, no approval has been taken from the Commission before appointing respondent no.2 to the post of General Manager, D.E.S.U. (3) The other ground on which the appointment of respondent no.2 has been challenged is that the appointment is in clear contravention of recruitment rules and regulations. As per the recruitment rules, the appointment to the post of General Manager, D.E.S.U. can be made either by 'transfer or on deputation' from the Government Departments. He must either be a member of the Indian Administrative Service (I.A.S.) and/or a member of the Central or State Engineering Services Class-1, or suitable officer holding the post of analogous status in the State. Respondent no.2 is neither on transfer nor on deputation from any government department. The appointment has primarily been assailed on the aforesaid two grounds.
(4) The petitioner has also mentioned that otherwise also there was no propriety in appointing respondent no.2 to this post because respondent no.2 had earlier worked as Tribunal, Central Electricity, Government of India, w.e.f. 1987 to 1990. During the period as Tribunal of the Central Electricity Authority, it has come to the notice of the petitioner that respondent no.2 has not only mismanaged the office of the said authority, but has committed various financial irregularities and has taken illegal gratification to the tune of Rs.5 lakhs. It is also alleged that respondent no.2 has been named in various other controversies and does not enjoy a good public image. Respondent no.2 is also involved in the 'Jain Hawala case'. The criminal case for receiving illegal gratification and bribe by respondent no.2, is pending in the court of Shri V.B. Gupta, Special Judge, Delhi.
(5) This writ petition was filed on 2nd November, 1995. This court issued show cause notice on 6th November, 1995 and in pursuance of the court notice, a counter-affidavit has also been filed separately both on behalf of re- spondent no.1, M.C.D. and by respondent no.2. On 9th February, 1996, the court directed that the matter be listed for final disposal on 12th March, 1996. Because of this earlier court order, this matter has been heard at the admission stage. At the threshold, we would like to examine whether the appointment of respondent no.2 is in contravention of Section 96 of the Delhi Municipal Corporation Act, 1957. Section 96 of the Act reads as under:-. "96.Consultation with the Union Public Service Commission.- No appointment to any category A post within the meaning of clause (1) of sub-section (8) of section 90 shall be made except after consultation with the Commission: Provided that no such consultation with the commission shall be necessary in regard to the selection for appointment- (a) to any acting or temporary post for a period not exceeding one year; or (b) to such ministerial posts as may from time to time be specified by the Corporation in consultation with the Commission when such posts are to be filled by promotion; or (c) to a post when at the time of such appointment the person to be appointed thereto is in service of the Central Government or a State Government in a class I post; or (d) to a permanent or temporary post, if the officer or other employees to be appointed is not likely to hold that post for more than one year; or if such officer or other employee is likely to hold the post for more than one year but' not more than three years and the Commission advises that the appointment may be made without consulting the Commission; or (e) to such other posts, as may, from time to time, be specified by the Central Government in consultation with the Commission."
(6) Mr. Sharma, learned counsel for the petitioner submitted that the language of this Section is quite clear, categoric and explicit that no appointment to any category A post within the. meaning of clause (i) of sub-section (8) of Section 90, in which the post of respondent no.2 falls, shall be made except after consultation with the Commission. According to Mr. Sharma, it is the legislative mandate that no appointment in this class can be made without prior approval of the Commission. It is also submitted that the clear legislative intention is that no appointment shall be made except after consultation with the Commission. It was submitted that the language of the section does not leave any room for interpretation because the way the entire section is worded, the only possible meaning can be that it was imperative for the M.C.D. to have taken prior approval before an appointment to this post could be made. The Section itself carves out other categories of cases where no consultation with the Commission shall be necessary in regard to certain appointments. In the instant case, respondent no.2 has been appointed for a period of 5 years and if his terms and conditions of appointment are closely scrutinised, it can be clearly said that the appointment of respondent no.2 does not fall in any of the categories where prior approval by the Commission was not required.
(7) Learned counsel for the petitioner has placed reliance on Mir Ghulam Hussan and others vs. Union of India and others, . In this case, their Lordships of the Supreme Court held that if there is any complaint about the appointment or promotion of an officer, who is not eligible under the Rules to be promoted or appointed, the proper remedy is to make an application for the issue of a writ of quo warranto. Even earlier, on number of occasions, the Supreme Court has taken the same view. In the case of Statesman (Private) Ltd. v. H.R. Deb and others, , their Lordships of the Supreme Court mentioned that it may be open in a quo warranto proceedings to question the appointment of Labour Court officers. In State of Haryana vs. Haryana Co-operative Transport Ltd., , their Lordships of the Supreme Court reiterated the position that if the Officer appointed as a judge of the Labour Court was not qualified to hold the office, then the same can be challenged in a quo warranto proceedings.
(8) The Division Bench of the Madhya Pradesh High Court at Indore Bench, in the case of Narayan Keshav Dandekar v. R.C. Rathi and another, , had an occasion to decide similar controversy. In the said case, the appointment of the 'Assessment and Estate Officer' in the Indore City Municipal Corporation was challenged on the ground that the appointment was not made in consultation with the State Public Service Commission as required by Sections 58 and 442(2) of the said Act. In the quo warranto proceedings, the appointment was declared illegal. The court in paragraph 8 of the judgment observed as under:- "(8)It is clear from the Proviso (1) to Sec.58 that the power of appointing any person on a municipal post which carries a maximum monthly salary exceeding Rs.l50.00 vests in the Standing Committee. But in making such appointment the Standing Committee has, under the Second Proviso, to consult the State Public Service Commission in the manner prescribed. On consulting in this manner, if a difference of opinion arises between the Standing Committee and the State Public Service Commission the matter has to be placed before the Corporation. Where the Corporation agrees with the State Public Service Commission, the appointment is to be made accordingly. However, if there is difference of opinion between the Corporation and the State Public Service Commission then in that case a reference has to be made by the Corporation to the Government and the decision of the Government becomes final in the matter of such appointment. Thus it is plain that consultation with the State Public Service Commission is not a matter of mere form but has other con- sequences. Where the State Public Service Commission is not agreeable with the Standing Committee and the Corporation the appointment can only be made on reference to the Government. It is not disputed and is clear from the order of appointment itself that the appointment of opponent No.1, if it be a new appointment, would fall under Cl.(1) of the First Proviso and would be bad due to the absence of consultation with the State Public Service Commission."
(9) Similar question again came up for consideration before the Division Bench of Madhya Pradesh High Court in the case of Sudhir Kumar Mishra and others v. Municipal Corporation, Jabalpur and another, 1978 Lab I.C.294, when the appointment of City Engineer in the Municipal Corporation of Jabalpur was challenged in quo warranto proceedings, on the ground that the appointment has been made without approval of the State Public Service Commission. J.S. Verma, J. delivered the judgment on behalf of the Division Bench. The bench arrived at a categoric conclusion that the requirement of consultation with the State Public Service Commission cannot be dispensed with.
(10) This very matter was referred to the Full Bench of the Madhya Pradesh High Court. The Full Bench of Madhya Pradesh High Court fin 1978 LAB. & I.C.290 (FB)], reiterated the view that consultation with the Public Service Commission is mandatory. The Full Bench placed reliance on the Supreme Court -decision Prakash Chand Maheshwari and another vs. The Zila Parishad, Muzaffarnagar and others, . Their Lordships of the Supreme Court in the said judgment had an occasion to examine similar controversy. Section 43 of the U.P. Kshettra SamIT is and Zila Parishads Adhiniyam (33 of 1961), which was pari materia with Section 58 of the M.P. Municipal Corporation Act came up for consideration before the Supreme Court. Under that provision, the appointment of a Kar Adhikari had to be made in consultation with the State Public Service Commission and in case of a difference of opinion between the Commission and the Parishad the matter was to be referred to the State Government, whose decision was to be final. Their Lordships of the Supreme Court summarised the position of law in the as following manner:- "The last point raised by the petitioners relates to the appointment of the Kar Adhikari on the ground that it was not done in consultation with either Public Service Commission of the State or any other Commission or body appointed in that behalf by the State Government under Section 43 of the U.P. Kshettra Samithis and Zila Parishads Adhiniyam, 1961 i.e. U.P.Act Xxxiii of 1961. The appointment of respondent no.2 in this case took place on 8th August, 1965, the impugned assessment was made on 8th March, 1968 i.e. more than two years after the date of appointment. Under S.43, the appointment of this officer to the post which carried an initial salary of more than Rs.200 p.m. could be made by the Parishad in consultation with the Public Service Commission or other Commission or selection body as might be constituted by the State Government and if there was a difference of opinion between the Commission and the Parishad the matter was to be referred to the State vernment whose decision was to be final. Counsel for the respondents on the materials before this Court was only in a position to inform us that the State Public Service Commission had been notified of the appointment and they had not expressed any disapproval of the same. We do not think that this was sufficient compliance with S.43. ......" "Appointing respondent no.2 as Kar Adhikari and merely sending the papers relating to such appointment to the Public Service Commission would not therefore be in compliance with Sec.43 of the Act. Even if it be regarded as a temporary appointment, it could only be effective for two years and as the assessment in this case was made beyond that date it must be held that the assessment was by a person not competent to make it."
(11) The Full Bench of the M.P. High Court in the aforesaid judgment of S.K. Mishra (supra) laid down that there is no room for contending any longer that the provision requiring consultation with the State Public Service Commission as required by the second proviso to sub-section (1) of S.58 of the M.P. Municipal Corporation Act, 1956, is not mandatory. The court further observed that it necessarily follows that an appointment made without any such consultation would be invalid and bad in law.
(12) The Delhi High Court also had an occasion to examine similar controversy in Ramesh Chander vs. D.E.S.U. etc., Ilr (1970) I Delhi, 310 where section 96 came up for consideration of the learned single Judge. The learned single Judge held that Section 96 of the D.M.C. Act requires the appointing authority to consult the Union Public Service Commission before making an appointment and no appointment can be made without prior consultation. The court further held that the proviso enabled short term appointment pending consultation with the Commission. The abuse of the proviso by extending the short term appointment of respondent for 3 to 5 years is not only opposed to the said statute but also to Article 16(1) of the Constitution.
(13) The Court had gone to the extent of mentioning that even continuing ad-hoc appointment beyond the period of one year without consultation with the Union Public Service Commission cannot arise under clause (a) and the first part of clause (4) of the proviso to Section 96. If these provisions are construed to mean that the appointing authority can make ad hoc appointments each time for one year and go on extending the same appointments each time for one year, then the principal part of section 96 would be circumvented. The proviso was not intended to defeat the object of consultation with the Union Public Service Commission intended by the principal part of section 96. The action of the Delhi Electric Supply Committee in extending the ad hoc appointments of Respondents 6 to 8, therefore, amounted to a fraud on the power conferred on them by the proviso to section 96, meaning thereby that if the statutory requirement of consultation with the Union Public Service Com- mission is there, then no valid appointment can be made without consultation with the Commission.
(14) Somewhat similar question came up for consideration before the Full Bench of this Court in Udham Badwani v. U.P.S. Commission, New Delhi, , where the Court held as under: "THE crucial reason for the reference was that the substantive part of S.96 of the Act required the consultation of the Upsc before the petitioners could be appointed regularly to permanent posts of Assistant Engineers and because the proviso to S.96 enabled the appointments of the petitioners temporarily only for a period of one year. The continuance of the ad hoc appointments of the petitioners after the expiry of the initial period of one year by annual renewals by re-appointments created an anomalous position."
If the ratio of this Judgment is properly analyzed the only conclusion would be that the appointment of respondent no.2 could not have been made without prior approval of the Commission.
(15) Reverting to the pleadings of the instant case, the respondent Municipal Corporation of Delhi, in the affidavit filed by Shri Diwan Chand, Director (Personnel), Mcd, has mentioned that the petition is not only mala fide but has been actuated with ulterior motives.
(16) It is also mentioned in the counter- affidavit that the petitioner has not shown how and in what manner the petitioner is prejudiced because of the appointment of respondent no.2. Respondent no.2 has also filed a separate counter- affidavit. He has also taken the preliminary objection that the petition is misconceived and based on concocted facts and this petition is against the public interest. This petition is filed primarily to malign the reputation of respondent no.2.
(17) Respondent no.2 in his counter-affidavit has mentioned that he is an honest and innocent person but has been falsely implicated in the criminal case which is pending before the court of Shri V.B. Gupta, Special Judge. He has also mentioned that pendency of the criminal case on the basis of Jain Hawala Diary' is no bar on the appointment of respondent no.2 to the post of General Manager, D.E S.U. (18) Mr. Arun Jaitley, learned Senior Advocate appeared on behalf of the Corporation and Mr. O.P. Saxena, learned counsel appeared on behalf of respondent no.2. Learned counsel for the respondents submitted that the appointment of respondent no.2 is in consonance with the scheme of the Act and there is no irregularity in the appointment. Mr. Jaitley submitted that because of section 511A, the appointment of respondent no.2 as General Manager (E), D.E.S.U. is connected with or incidental to electricity supply. Therefore, because or section 511A, Section 60 of the Act is revived and the petitioner's appointment has been made under section 60 of the D.M.C. Act. Section 51 Ia of the Act reads as under:- "51IA. Temporary provision with respect to electricity, water, sewage, etc. Notwithstanding the commencement of the Delhi Municipal Corporation (Amendment) Act, 1993, all the provisions existing in the principal Act before such commencement relating to- (a) water supply, drainage- and sewage disposal (b) electric supply; and (c) prevention and extinction of fire and matters connected therewith or incidental thereto shall be deemed to continue in operation till such date as the Central Government may, by notification in the Official Gazette, specify and different dates may be specified by the Central Government for any of the afore-mentioned different matters."
(19) According to the learned counsel for the respondents, the Mcd was justified in making the appointment of respondent no.2 under Section 60 of the Act. Therefore, there is no defect or invalidity in the appointment of respondent no.2 to the post of General Manager (E).
(20) Mr. Jaitley, learned counsel also submitted that although prior approval has not been taken from the Commission, but according to section 96, an ex post facto approval can be obtained. Therefore, appointment cannot be declared bad on that count.
(21) Before dealing with earlier preliminary submissions taken on behalf of the respondent, we deem it appropriate to deal with the main submission of Mr. Jaitley that prior approval for appointment was not imperative. When Section 96 is closely examined, the intention of the legislature becomes crystal clear. The legislators in their wisdom have incorporated the words "That no appointment in the category A post shall be made except after consultation with the Commission. There is a clear legislative mandate that no appointment shall be made in this category unless there is prior approval by the Commission. The relaxation has been made with regard to other categories. The category to which the post of respondent no.2 belongs is a category where the Legislature in clear, explicit and categoric terms directed that the appointment to the said post cannot be made without prior approval of the Commission.
(22) Similar controversy came up for the consideration before the Supreme Court and various other High Courts of the country. There seems to be unanimity of approach that when such specific words have been incorporated in the section, then clear intention of the legislature is that prior approval is imperative before making the appointment.
(23) Mr. Jaitley placed reliance on Life Insurance Corporation of India vs. Escorts Ltd., , to support his argument that prior approval of the Commission is not imperative. This case is not of much help to the respondents in view of the words which have been in coporated in Section 96 of the Dmc Act. There is clear mandate of Section 96 that no appointment can be made except after consultation with the Commission. The submission that ex post facto sanction is envisaged in the said section, is devoid of any merit. The only possible interpretation of section 96 is that no valid appointment to the said post can be made without prior approval, otherwise the same would be invalid and bad in law.
(24) Now we propose to deal with other preliminary objections taken in the counter- affidavit of the respondents. The legal position seems to be quite clear that in the proceedings of quo warranto, the petitioner may not have any direct interest in the public office in question. In the Division Bench Judgment of Madhya Pradesh High Court in the case of Sudhir Kumar Mishra and others v. Municipal Corporation, Jabalpur and another, 1978 Lab I.C.294, Shiv Dayal, C.J. in his concurring judgment observed as under:- "A proceeding for issuance of a writ of quo warranto wherein the validity of an appointment to a public office is challenged is maintainable at the instance of any private person, although he is not personally aggrieved or interested in the matter. In proceedings for a writ of quo warranto the applicant does not seek to enforce any right of his as such, nor does he complain of non-performance of duty towards him. What is in question is the right of the non- applicant to hold the office; and an order that is passed is an order ousting him from that office." Under Art.226 of the Constitution this Court has jurisdiction and authority to control executive action in the matter, of making appointments to public offices against relevant statutory provisions. These proceedings protect the public from usurpers of public office. The Division Bench further observed that: "THE only requisite which must be satisfied before a writ of quo warranto can be issued are (i) the office must be public, (ii) the office must be substantive in character and independent in title, (iii) the office must have been created by a' statute or by Constitution; and (iv) the office is held by usurper without legal authority. An office is usurped if the respondent is not entitled to that office or if the appointment of the respondent has not been made in accordance with law. The' division bench of M.P. High Court culled out these categories on the basis, of Supreme Court judgment in the case of University of Mysore v. Govindrao : where their Lordships have laid down as under: "Broadly stated, the quo warranto proceeding 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."
(25) The Division Bench of the M.P. High Court in the said judgment mentioned that as far as argument regarding the latches is concerned, it is sufficient to say that in a case of quo warranto the usurper in office continues to be usurper each day that he remains in office and, it would be inappropriate for this reason alone to dismiss the petition, assuming that there was any such delay. In the instant case, the petition has been filed on 2nd November, 1995, and it cannot be said that the petition has been belatedly filed and in any event on the reasoning of the said judgment, we find no merit in this submission.
(26) The petitioner is an employee of D.E.S.U. and also General Secretary of the Union and he has sufficient interest in the appointment of the General Manager (Electrical) and such a petition at his instance cannot be rejected on the ground that the same is motivated. Apart from that legal position also seems to be quite clear. Virtually anyone can move the court in the proceedings of quo warranto.
(27) In case, the appointment of respondent no.2 is held bad in law, then the question arises what would happen to the decisions and actions taken by him during the period he held the office of General Manager, D.E.S.U.? Their Lordships of the Supreme Court had an occasion to examine this issue in great detail, in Gokaraju Rangaraju v. State of Andhra Pradesh, .
(28) The Court observed that the de facto doctrine is now well established. The acts of the officers de facto performed by them within the scope of their assumed official authority in the interest of the public or third person and not for their own benefit are generally valid and binding as if they were the acts of officers de-jure.
(29) In Pulin Behari v. King Emperor, (1912) 15 Cal.L.J. 517 at p.574) their Lordships have held as under:- "THE doctrine is founded on good sense, sound policy and practical experience. It is aimed at the prevention of public and private mischief and the protection of public and private interest. It avoids endless confusion and needless chaos. An illegal appointment may be set aside and a proper appointment may be made, but the acts of those who hold office de facto are not so easily undone and may have lasting repercussion and confusing sequels if attempted to be undone. In Re James (An Insolvent) (1977) 2 Wlr 1), Lord Denning, while determining a similar controversy regarding a judge whose appointment was successfully challenged in quo warranto proceedings observed that "he sits in the seat of a judge. He wears the robes of a judge. He holds the office of a judge. Maybe he was not validly appointed but still, he holds the office. It is the office that matters, not the incumbent..... So long as the man holds the office and exercises it duly and in accordance with law, his orders are not a nullity. If they are erroneous, they may be upset on appeal. But if not erroneous, they should be upheld."
In P.S. Menon v. State of Kerala a Full Bench of the Kerala High Court consisting of P. Govindan Nair, K.K. Mathew and T.S. Krishnamoorthy Iyer, JJ. said about the de facto doctrine: "THIS doctrine was engrafted as a matter of policy and necessity to protect the interest of the public and individuals involved in the official acts of persons exercising the duty of an officer without actually being one in strict point of law. But although these officers are not officers de jure they are by virtue of the particular circumstances, officers, in fact, whose acts, public policy requires should be considered valid."
(30) Therefore, the ratio of all these cases is clear that the decisions taken by respondent no.2, as long as he remained the General Manager, (E) D.E.S.U. are not void for the reason as far as they were taken in the interest of public and , in his own benefit, as if they were acts of officers who were validly appointed.
(31) Since the petitioner succeeds in his threshold submission that prior approval by the Upsc is imperative, therefore, we do not consider it necessary to decide the other ground that the appointment of the respondent no.2 is contrary to the recruitment rules applicable to the post of General Manager (Electrical), MCD. We also do not deem it necessary to examine the question of propriety to appoint respondent no.2 to the said post by the Mcd, when a criminal case with serious allegations is pending against him.
(32) On consideration of all the facts and circumstances of this case, this petition must be allowed. We, therefore, direct the issue of writ of quo warranto, directing respondent no.2 R.K. Narayanan to vacate the office of General Manager, (Electricity), D.E.S.U. and further direct respondent no.1, Mcd to remove respondent no.2 from the office of General Manager (E) forthwith. It would be open to the Corporation to make such consequential orders as may be necessary to implement this direction given by us. The petitioner shall be entitled to get the costs of these proceedings from respondent no.1, Mcd, quantified at Rs.3,000.00 .
(33) The petition is accordingly disposed of.