Service matter - Extention of service for four months - Chief Secretary to Govt. - not violative of any statutory rules - Writ of Quo Warranto / Writ of Mandamus - dismissed - their lordships of High court dismissed the writ and held that We respectfully following above settled principle of law hold that no Writ of Quo Wattanto can be issued as we have found in preceding paragraphs no illegality nor unconstitutionality in issuing order of extension of service of fourth respondent.=
issue a writ of Mandamus or quo warranto for quashing the order of extension of services of the 4th respondent in PIL.No.84 of 2014.=
The 4th respondent in PIL.No.84 of 2014 was appointed as Chief Secretary to the Government of Andhra Pradesh on 30.04.2013 and was to attain superannuation on 28.03.2014 on completion of 60 years.
During his tenure as the Chief Secretary to the State Government, there have been adverse remarks against his functioning which were more glaring when the Honble Supreme Court pointed out the same in its judgment in Criminal Appeal of Umesh Kumar v. State of Andhra Pradesh.
Apart from the said case there have been several remarks in the way the administrative work was carried out by him. Instead of allowing the 4th respondent to be retired on attaining 60 years, the Government of Andhra Pradesh hastily issued the impugned order granting four months extension to him without assigning any reasons for not promoting the eligible persons working as Special Chief Secretaries.
As per Rule 16(1) and its 3rd proviso governing the order of extension mentioned in the All India Services (Death-cum-Retirement Benefits) Rules, 1958 (for short, the Rules) in addition
to the overriding consideration of the Public Interest,
the following conditions need to be satisfied for granting extension.
(i) That the other officers are not ripe enough to take over the job and,
(ii) The retiring officer is of outstanding merit. =
In case of B. Srinivasa Reddy v. Karnataka Urban Water Supply &
Drainage Board Employees Association & Others (supra), in paragraphs 55 and
94, the Supreme Court has laid down that a writ of Quo Warranto does not lie if
the alleged violation is not of a statutory provision.
52. In Hari Bansh Lal v. Sahodar Prasad Mahto and others (supra), the
Apex Court, in paragraph 34 of the report, has reiterated after considering all
the earlier decisions on the same issue, as follows:
From the discussion and analysis, the following principles emerge:
a) Except for a writ of quo warranto, PIL is not maintainable in
service matters.
b) For issuance of a writ of quo warranto, the High Court has to
satisfy that the appointment is contrary to the statutory rules.
c) Suitability or otherwise of a candidate for appointment to a post in
government service is the function of the appointing authority and not of the
court unless the appointment is contrary to statutory provisions/rules.
53. In case of Central Electricity Supply Utility of Odisha v. Dhobei Sahoo
and others (supra) the Supreme Court, in paragraph 18 of the report, while
following the earlier decisions including the decision in R.K. Jains case, has
observed as follows:
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 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.
54. We respectfully following above settled principle of law hold that no Writ
of Quo Wattanto can be issued as we have found in preceding paragraphs no
illegality nor unconstitutionality in issuing order of extension of service of
fourth respondent.
For the foregoing discussion, we dismiss these writ petitions, however,
without any order as to costs.
2014 (May. Part) http://judis.nic.in/judis_andhra/filename=11253
THE HONOURABLE THE CHIEF JUSTICE SRI KALYAN JYOTI SENGUPTA AND THE HONOURABLE SRI JUSTICE SANJAY KUMAR
Public Interest Litigation Nos.72 of 2014 and batch
09-4-2014
Consumers Guidance Society (Regd. No.338 of 1995) Vijayawada Rep. by its
Secretary Dr. Ch. Divakar Babu R/o.D.No.58-1-26, Flat No.1 Veerapaneni Plaza, Patamata Vijayawada Petitione
The Government of Andhra Pradesh Rep. by its Secretary to Government (Poll)
General Administration Department Secretariat Buildings, Saifabad, Hyderabad and others Respondents
COUNSEL FOR PETITIONER:Sri S.R. Ashok, Senior Counsel for Sri K. Raji Reddy
COUNSEL FOR RESPONDENT NO.1:Government Pleader for General Administration Department
COUNSEL FOR RESPONDENT NOs.2 & 3 : Sri P. Vishnuvardhan Reddy, Assistant Solicitor General
<GIST:
>HEAD NOTE:
?CITATIONS:1. AIR 1974 SC 2192
2. (2004) 8 SCC 788
3. (2005) 2 SCC 92
4. (2013) 3 SCC 1
5. (2003) 4 SCC 712
6. AIR 2006 SC 3106
7. (2010) 9 SCC 655
8. (2014) 1 SCC 161
9. (2005) 5 SCC 136
10. (2014) 2 SCC 609
11. 1945 FCR 195
12. (1994) 6 SCC 651
13. (1993) 4 SCC 119
THE HONBLE THE CHIEF JUSTICE SRI KALYAN JYOTI SENGUPTA
AND
THE HONBLE SRI JUSTICE SANJAY KUMAR
PUBLIC INTEREST LITIGATION Nos.72, 73 and 84 of 2014
COMMON ORDER:
The aforesaid three public interest litigations have been filed claiming
for identical relief, which is essentially as follows: to issue a writ of Mandamus or quo warranto for quashing the order of extension of services of the 4th respondent in PIL.No.84 of 2014.
2. All these matters have been clubbed for analogous hearing. The brief
facts, bereft of all unnecessary details, are as follows:
3. The 4th respondent in PIL.No.84 of 2014 was appointed as Chief Secretary
to the Government of Andhra Pradesh on 30.04.2013 and was to attain superannuation on 28.03.2014 on completion of 60 years. During his tenure as the Chief Secretary to the State Government, there have been adverse remarks against his functioning which were more glaring when the Honble Supreme Court pointed out the same in its judgment in Criminal Appeal of Umesh Kumar v. State of Andhra Pradesh. Apart from the said case there have been several remarks in the way the administrative work was carried out by him. Instead of allowing the 4th respondent to be retired on attaining 60 years, the Government of Andhra Pradesh hastily issued the impugned order granting four months extension to him without assigning any reasons for not promoting the eligible persons working as Special Chief Secretaries. As per Rule 16(1) and its 3rd proviso governing the order of extension mentioned in the All India Services (Death-cum-Retirement Benefits) Rules, 1958 (for short, the Rules) in addition
to the overriding consideration of the Public Interest, the following conditions need to be satisfied for granting extension.
(i) That the other officers are not ripe enough to take over the job and,
(ii) The retiring officer is of outstanding merit.
4. In this case, according to the petitioners the 1st condition is not
fulfilled in
the present case, since there are already promoted Special Chief Secretaries
working in the State. In addition thereto, a number of eligible officers are
working
in the Government of India. Hence, it cannot be said that none of these
officers
are ripe enough to take over the job. The 2nd condition has not been fulfilled,
as
the 4th respondent cannot be said to be an officer of outstanding merit
particularly
when the Honble Supreme Court has made adverse remarks against him in the
case of Umesh Kumar (supra) regarding his functioning. The extension orders
issued are not based on a recommendation from the State Government and to that
extent does not fulfill the condition of the 3rd proviso to Rule 16(1) of the
Rules.
5. There is no mention of public interest anywhere in the memo from
Government of India nor there is any elaboration of what public interest is
supposed to be in the impugned Government order, which alone ought to have
been overriding concern. When there is no public interest made out in the
letter of
the Special Chief Secretary to the Governor or in the Memo of the Government of
India, it is clear that the order was not issued in public interest. Without
any
discernible public interest, a mere statement of public interest does not
justify the
extension in the name of public interest. Moreover, the impugned Government
order was issued late in the night on 28.02.2014 by the Government of Andhra
Pradesh without number. The Presidents Rule was imposed in the State on
01.03.2014 until which the outgoing cabinet acted as the caretaker Government.
The impugned Government order was passed by the assent of the Governor
without the recommendation or consultation of the caretaker Government on
28.02.2014 itself while the President Rule was imposed from 01.03.2014. This is
against the letter and spirit of the 3rd proviso to Rule 16(1). The haste in
which the
whole process was carried out from the afternoon of 27.02.2014 starting with the
recommendation from the Governors Office to the issuance of the Government
order late night at 10.30 p.m. on 28.02.2014 in the manner indicated above
demonstrates the colourable exercise of power exercised in the most arbitrary
manner in post-haste to favour an individual, rather than keeping in view the
public interest.
6. The 1st respondent in its counter affidavit in order to resist the
challenge has
stated on fact that the 4th respondent is an outstanding officer and having
excellent
service record. The observations of the Honble Supreme Court were in the
context of non-initiation of enquiry against Sri Dinesh Reddy by the State
Government on a complaint that was filed on 22.04.2011. The 4th respondent
assumed charge as Chief Secretary to Government on 01.05.2013 and that was
informed in the affidavit filed by the State Government represented by the
present
Chief Secretary along with the sequence of events that took place prior to his
assumption of charge as Chief Secretary and the circumstances in which the
enquiry was not initiated. The 4th respondent, obviously, could not be held
responsible for non-initiation of enquiry by the State Government during the
periods of earlier Chief Secretaries.
7. The Honble Supreme Court has not passed any strictures against the Chief
Secretary in-person, but commented adversely on the ground that no enquiry was
conducted by the State Government into the petition against Sri Dinesh Reddy,
former DGP. The remarks are in essence against the State Government
represented by Chief Secretary. The Honble Supreme Court commented on a
technical flaw of lack of date in the affidavit filed, which was an inadvertent
omission, which ought to have been avoided. The Supreme Court has not made
any observation on the merit or competency of the Chief Secretary. The 4th
respondent could not have conducted an enquiry into the petition against Sri
Dinesh Reddy, as he joined one year after the stay was granted by the Honble
High Court and the said stay was in force for the period of his tenure as Chief
Secretary. Accordingly, the remarks of the Supreme Court about not conducting
of an enquiry apply to the State Government covering the period of past Chief
Secretaries and it is unfair on the part of the petitioner to link the remarks
of
Supreme Court to the present Chief Secretary in-person. Hence, the allegation
of
the petitioner that strictures were passed on the present Chief Secretary is not
correct.
8. No action was even initiated against the 4th respondent and the Government
had dropped all action against the officer on 06.07.2004. As the 4th respondent
was cleared from Vigilance angle by the Government of India and State
Government, as per the guidelines on the subject, he was promoted to the Fixed
Grade by both the State Government and Government of India and also to the
posts of Secretary to Government of India and Chief Secretary based on his
administrative abilities, merit, integrity, leadership potential and experience.
Further, the 4th respondents integrity has been beyond doubt all through his
career. The State Government has to send recommendations to the Central
Government with full justification and obtain prior approval before issuing
extension orders. The post of Chief Secretary was to fall vacant on 28.02.2014
and successor was to be chosen by the competent authority. However, the
competent authority i.e., the Chief Minister of the State tendered his
resignation on
19.02.2014 and the same was accepted by the Honble Governor on 21.02.2014.
However, he was asked to continue in office along with his colleagues till
alternative arrangements are made. The then Honble Chief Minister requested
the
Governor on 24.02.2014 to relieve him from caretaker responsibilities also at
the
earliest. Since 19.02.2014, the Chief Minister has refused to accept files and
subsequently he contacted regarding circulation of file on choosing the next
Chief
Secretary, he again expressed his inability to accept the file for decision.
Therefore, there was no option for General Administration Department but to
inform Governors office and also move file to Governor. The then Chief
Ministers office had categorically informed that he would not accept any file.
The same was informed to the Governors office. The then Chief Minister also
addressed a communication in writing to the Governor on 28.02.2014 mentioning
that it was not appropriate on his part to take an important administrative
decision
like appointment or extension of Chief Secretary after tendering resignation.
He
requested the Governor in writing to take appropriate decision in the matter
whether to extend the term of Chief Secretary or choose successor to avoid any
vacuum in the State administrative set up.
9. In the above said backdrop, the office of Governor on 27.02.2014 with
approval of Governor, addressed a letter to Home Secretary, Government of India
to make such necessary and appropriate arrangements till new Governments are
formed by naming a Chief Secretary by duly considering the continuation of
present incumbent, namely; the 4th respondent due to balance of convenience
which was compelling in view of formation of new State and General Elections.
The letter sent to the Government of India with the approval of Governor also
contains his eligibility and merit and in that letter particulars of the public
interest
also mentioned, which are as follows:
(i) The State is at critical juncture having to cope up with many a complex
issue relating to formation of new State.
(ii) Very tight time lines under which these processes have to be completed
in an objective and impartial manner; and,
(iii) The administration of the State which already is working under severe
constraints will loose a sense of momentum as well as direction with the
superannuation of the present Chief Secretary.
10. Under Article 163 of the Constitution of India the Governor is required to
act on the aid and advice of the Council of Ministers through the Chief Minister
as
its Head. But, a peculiar situation arose in the State where the Honble Chief
Minister tendered his resignation on 19.02.2014 and the same was accepted by the
Honble Governor on 21.02.2014. However, he was asked to continue in office
along with his colleagues till alternative arrangements are made. The then
Honble Chief Minister requested the Governor on 24.02.2014 to relieve him from
caretaker responsibilities also at the earliest and no official matters as a
result were
looked into by him and the outgoing cabinet. The Council of Ministers disabled
themselves from their duties, as a result, in the interregnum period there was a
decision vacuum. The 4th respondent was scheduled to demit office on 28.02.2014
having attained the age of superannuation. The State being at a critical
juncture, to
cope up with complex issues relating to formation of new State and as the
administration of the State, which is already working under severe constraint,
it
was considered by the Governor that the administration may loose the sense of
momentum as well as direction with the superannuation of the present Chief
Secretary. Further, the impending General Election was also a cause of concern
as
the Election Commission has already issued a series of instructions in regard to
conduct of the General Elections. The Special Chief Secretary to Governor, with
the approval of Governor, addressed to the Home Secretary, Ministry of Home
Affairs, Government of India that after going through the consultation process,
the
new Governments are expected to take charge by not later than 09.06.2014 and
therefore the Government of India make such necessary and appropriate
arrangements from now till new Governments are formed by naming a Chief
Secretary by duly considering the continuation of present incumbent, namely; the
4th respondent. Further, the doctrine of necessity was also prevailing on the
facts
as mentioned above.
11. In response to the letter from Governors office, the Government of India,
Ministry of Personnel, Public Grievances and Pensions conveyed the approval of
the Central Secretary to grant extension of service of the 4th respondent as
Chief
Secretary for a period of four months beyond 28.02.2014. Therefore, the State
Government followed the procedure and rules and regulations on the subject and
the contention of the petitioner is devoid of any merits. In fact, the
administration
has undertaken an exercise and initiated a file on 24.02.2014 for appointment of
new Chief Secretary duly taking into consideration all the other officers in the
Fixed Grade in the zone of consideration along with the ACR grading for the last
10 years of all the officers, postings held by the officers for the last 10
years and
disciplinary cases pending, if any, against the members of service etc. While
undertaking this exercise, the administration has considered the profile of the
officers in Fixed Grade, who are on deputation with Government of India and
other agencies.
12. Although the 4th respondent has filed a counter affidavit, we feel that
the
factual position with regard to the question of extension is not required to be
stated
from his affidavit.
13. In the context of the aforesaid factual contention, Sri S.R. Ashok,
learned
Senior counsel appearing for the petitioners, submits that in the State of
Andhra
Pradesh, the Chief Minister and his Cabinet tendered resignation on 19.02.2014.
The Governor of Andhra Pradesh vide G.O.Ms.No.52, dated 21.02.2014
authorized the Chief Minister and his colleagues to continue in office till
alternative arrangements are made. The Chief Secretary was due for retirement
on
28.02.2014 on attaining the age of superannuation notified vide G.O.Rt.No.4938,
dated 13.11.2013. While the Chief Minister and his Cabinet are continuing in
office, the Governor, without their aid and advise, addressed a letter dated
27.02.2014 to the Central Government. The said letter does not refer to
recommendation by the State Cabinet. Thus, the letter is in contravention of
the
3rd proviso to Rule 16(1) of the Rules. The Government of India instructions
specify two conditions, namely; there are no other officers ripe enough to take
over the job or that the retiring officer is of outstanding merit. Further, in
the case
of the 4th respondent, the Honble Supreme Court adversely commented on his
role as Chief Secretary. Thus, he does not possess the eligibility conditions
that
are prescribed for continuing beyond the age of superannuation. Further, as the
order dated 24.07.2013 of the Honble Supreme Court was not implemented, the
Supreme Court commented on the audacity of the Chief Secretary in not
implementing the said order relating to his period only. He joined as Chief
Secretary on 01.05.2013. If he felt that the adverse remarks were without basis
he
should have approached the Court for expunging them. Having not done that he
cannot at this point of time take different pleas.
14. The Governor acts within the parameters of the Constitution. The powers
and limitations are implied in the provisions of the Constitution. The Governor
should carry out not only in accordance with the provisions of the Constitution,
but also not in violation of the basic features of the Constitution. Thus, the
power
of the Governor cannot be so exercised so as to ignore the provisions of Article
163(1) of the Constitution. The exceptions carved out in the Constitution
should
be within the parameters of the Constitution, namely; in situations whereby
there
is peril to democracy or democratic principles, the action may be compelled
which
from its nature is not amenable to ministerial advices. No such condition is
present at the time of addressing letter dated 27.02.2014 to the Government of
India.
15. The Governor while making recommendation for continuance of the
services of the 4th respondent beyond the age of superannuation is not
performing
any statutory functions. The Rules do not empower the Governor to exercise the
discretion specified in the 3rd proviso to Rule 16(1). This can only be
exercised by
State administration comprising of Chief Minister or his Council of Ministers.
The letter dated 27.02.2014 does not refer to a situation which has arisen,
where
all Council of Ministers are disabled or disentitled themselves in advising the
Governor. It is not the case that the Council of Ministers may not take a fair
and
impartial decision in the appointment of a Chief Secretary. Thus, there is no
doctrine of apparent bias. Only in a case of apparent bias, the exception to
the
general rule would apply in exercise of the discretion by the Governor. Mere
impasse by the Council of Ministers is not permissible to hold that the action
on
part of the Council of Ministers is actuated by malice or disabled them to
empower
the Governor to use his discretionary powers. It is not very clear that the
Government order by the State was issued on 28.02.2014 night or 01.03.2014
morning. Concerned Government order dated 28.02.2014 could only be
downloaded on 01.03.2014 that too without number. Number to Government
order is given subsequently on 01.03.2014. This does show arbitrary exercise of
power. The Governor acts as the Head of the State, upon the open aid and advise
of the Council of Ministers except in relation to areas where the discretionary
powers are given to the Governor under the Constitution in discharging of his
functions. If any contingency not provided in Chapter-2 of Part-VI of the
Constitution arises, then he shall seek the recourse under Article 160 or
Article
356.
16. The writ of quo-warranto will lie where the appointment is made contrary
to the statutory provisions. The appointment of the 4th respondent is in clear
violation of the 3rd proviso to Rule 16(1) of the Rules. It makes the decision
making process vulnerable calling interference by the High Court to declare that
the appointment is non est in the eye of law. The constitutional provisions
clearly
provide that the Governor does not exercise any power by virtue of his office in
his individual discretion. The Governor is aided and advised by the Council of
Ministers in exercise of such powers that have been assigned to him under
Article
163 of the Constitution. The satisfaction of the Governor for the purpose of
exercise of his powers does not mean his personal satisfaction but reference to
satisfaction in the constitutional sense under a Cabinet system of Government.
17. The State Executives have to reach the decision by taking into account
relevant considerations. It should not refuse to consider the matter nor should
take
into account wholly irrelevant or extraneous considerations. The State should
not
misdirect itself on the point of law only. Such a decision will be unlawful.
The
Court has power to see that the Executive acts lawfully. If the Executive
considers
it inexpedient to exercise their powers, they should state their reasons and
there
must be material to show that they have considered all the relevant facts.
In support of his submissions, Sri S.R. Ashok has placed reliance on the
following decisions of the Supreme Court, (1) Samsher Singh v. State of
Punjab , (2) Madhya Pradesh Special Police Establishment v. State of
Madhya Pradesh and others , (3) Pu Mallai Hlychho v. State of Mizoram
and (4) State of Gujarat and another v. Justice R.A. Mehta (Retired) and
others .
18. Learned Advocate General appearing for the first respondent submits on
fact that after the resignation of the Chief Minister on 19.2.2014 which was
accepted by the Governor on 21.2.2014, fourth respondent was asked to continue
till alternative arrangements are made. On 24.2.2014 the file was processed for
appointment of new Chief Secretary. The then Honble Chief Minister as Head of
the Council of Ministers, declined to take a decision on the appointment of new
Chief Secretary or continuation of the present Chief Secretary and hence the
file
was processed and was placed before His Excellency the Governor. In view of the
urgency and also the peculiar situation existing in the State of Andhra Pradesh,
the
Governor on 27.2.2014 recommended for extension of term of the Chief Secretary
indicating the necessity and the compelling reasons for continuing the present
Chief Secretary by extending his period of superannuation.
19. On the point of law he submits that in a case of this nature only Writ of
Quo Warranto is maintainable and not Mandamus. There cannot be a Mandamus
which can be filed in public interest in respect of a service matter. The
suitability
or otherwise cannot be gone into in public interest except in a Writ of Quo
Warranto. The Honble Chief Minister disabled and disentitled himself from
taking a decision in the matter and the Governor as the Sovereign Head of the
State, keeping in view the public interest, competency of the Chief Secretary,
uprightness, recommended for extension of the term of the Chief Secretary. He
submits that His Excellency the Governor is well within his competence to
exercise discretionary power under Articles 154 and 163 of the Constitution of
India. In support of this legal submission he has placed reliance on the
following
decisions of the Supreme Court in State of Gurajat and another v. Justice R.A.
Mehta (Retired) and others (supra) and another decision in M.P. Special Police
Establishment v. State of M.P. and others (supra).
20. He contended that in the facts and circumstances stated in the writ
petition
Writ of Quo Warranto would not lie and he relied on the following decisions on
this issue:
(i) High Court of Gujarat and another v. Gujarat Kishan
Mazdoor Panchayat & others
(ii) B. Srinivasa Reddy v. Karnataka Urban Water Supply &
Drainage Board Employees Association & Others
(iii) Hari Bansh Lal v. Sahodar Prasad Mahto & Others
(iv) Central Electricity Supply Utility of Odisha v. Dhobei Sahoo
& others
(v) Gurpal Singh v. State of Punjab & others
21. Mr. D. Prakash Reddy, learned Senior Counsel, appearing for the fourth
respondent, contended that at the first instance in a Writ of Quo Warranto,
suitability of the officer concerned cannot be raised but only legality of the
appointment and the holding of the office can be raised. In service matters
public
interest litigation seeking Writ of Mandamus is not maintainable. He has
brought
to our attention the relevant paragraphs from his clients affidavit explaining
under
what circumstances the Supreme Court made observations on his client.
Thereafter, he reiterated the facts what have been stated in the counter
affidavit of
the first respondent under what situation and circumstances the order was passed
by His Excellency the Governor by granting extension. He further submits with
the support of the decision of the Supreme Court reported in Arun Kumar
Agarwal v. Union of India that the petitioners in public interest litigation
regarding appointment must establish ubberima fides/ extreme bona fides which
are lacking in the present public interest litigations. In addition to his
submission
he supports the argument of the learned Advocate General.
22. After hearing the learned counsel for the parties, and also considering
their
submissions advanced before us, we notice on the issue of maintainability.
Whether the writ petitions with the prayer mentioned therein can be
maintained in accordance with law?
23. It appears from the prayer portion of the writ petitions the petitioners
have
prayed for Writ in the nature of Writ of Mandamus or Quo Warranto or any other
appropriate Writ. It is settled position of law about which it would be
discussed
with details little later that public interest litigation can be maintained for
issuance
of Quo Warranto, and not Mandamus that can be issued at the instance of an
individually affected person, subject to, however, the concept of bona fide pro
bono publico. It is also settled position of law that under Article 226 of the
Constitution of India the Court ignoring inappropriate relief asked for can
consider
appropriate one taking into consideration of the justiciability in the matter
and
even in extreme cases the Writ Court can mould the reliefs in the facts and
circumstances of the case.
24. In view of the aforesaid discussion, ignoring prayer for Mandamus we now
proceed to decide whether Quo Warranto Writ can be issued in a matter of this
nature.
25. A great deal of submissions have been made by the learned Advocate
General appearing for the first respondent, and Sri D. Prakash Reddy, learned
Senior Advocate appearing for the fourth respondent contending that these writ
petitions are filed to ventilate the grievance of some other persons who are
personally interested and not for public cause. This issue will also be
discussed
and decided a little later.
26. While taking note of the merit of the matter, it appears to us the
following
issues are involved:
(i) Whether the decision of extension of service of the fourth
respondent has been taken by the Governor in accordance with
the provisions of the Constitution?
(ii) If so, whether impugned order has been passed in accordance
with law and relevant service Rules, namely, proviso to Rule
16(1) of the All India Services (Death-cum-Retirement Benefits)
Rules, 1958?
27. In this case factually it is an admitted position that the fourth
respondent is
eligible for having extension of his service period on attaining the age of 58
years
as per the Service Rules. It is not disputed that the impugned order has been
issued without the aid and advice of the State Cabinet though on the date of
issuance of the impugned order factually Council of Ministers was in office.
28. On the given admitted position, we are called upon to examine whether in
the absence of aid and advice of the Cabinet, His Excellency the Governor can
exercise executive power under the Constitution of India. We, therefore, set
out
provisions of the Executive power of the Governor in the Constitution of India.
154. Executive power of State.- (1) The executive power of the State
shall be vested in the Governor and shall be exercised by him either directly or
through officers subordinate to him in accordance with this Constitution.
(2) Nothing in this article shall
(a) be deemed to transfer to the Governor any functions conferred by
any existing law on any other authority; or
(b) prevent Parliament or the Legislature of the State from conferring
by law functions on any authority subordinate to the Governor.
29. Upon careful reading of the aforesaid Article, it would appear that the
Governor is the repository of executive power of the State. Such power can be
exercised by him directly or through officers subordinate to him in accordance
with this Constitution. To clarify the position the Governor can sometimes act
directly without having the assistance or aid by any officer including the
Cabinet.
However, when the Governor decides to act through the officers subordinate to
him in accordance with the Constitution, generally it is to be done upon advice
tendered except in compelling situation to save breaking down of Constitutional
machinery. Method of exercise of executive power is to be found in Article 163
which is reproduced hereunder.
163. Council of Ministers to aid and advise Governor. (1) There shall
be a Council
of Ministers with the Chief Minister as the head to aid and advise the Governor
in the exercise of
his functions, except in so far as he is by or under this Constitution required
to exercise his
functions or any of them in his discretion.
(2) If any question arises whether any matter is or is not a matter as
respects which the
Governor is by or under this Constitution required to act in his discretion, the
decision of the
Governor in his discretion shall be final, and the validity of anything done by
the Governor shall
not be called in question on the ground that he ought or ought not to have acted
in his discretion.
(3) The question whether any, and if so what, advice was tendered by
Ministers to the
Governor shall not be inquired into in any court.
30. According to us, the above provision of Article 163 is one of the method
and/or procedure to exercise power under Article 154. We feel that the
provisions
of this Article will be applicable when His excellency the Governor decides to
act
through officers subordinate to him, in accordance with the Constitution being
the
second limb of clause 1 of Article 154 of the Constitution of India for Council
of
Ministers headed by the Chief Minister undoubtedly holds office as such they are
to be construed as subordinate officers as the Governor appoints them. The
concept of subordination is understood with two tests primarily, power of
appointment and dismissal. These two tests are satisfied in this case as it
would
appear from Article 164 of the Constitution of India which is set out hereunder.
164. Other provisions as to Ministers.- (1) The Chief Minister shall be
appointed by
the Governor and the other Ministers shall be appointed by the Governor on the
advice of the
Chief Minister, and the Ministers shall hold office during the pleasure of the
Governor:
(emphasis
supplied)
30.1. Support of our above views would be found in the decision of Judicial
Committee in the case of King Emperor v. Sibnath Banerji and others . At
page 222 of the report Their Lordships of Judicial Committee in the context of
Section 49 of Government of India Act, 1935 which contains same phraseology
through officers subordinate to him as it is in Article 154, took the views as
follows:
The respondents next contended that, assuming that s. 49 did apply,
this question was
one which involved a special responsibility of the Governor within the meaning
of s. 52, sub-s.
1(a), of the Act of 1935, and therefore required the individual judgment of the
Governor. In Their
Lordships opinion, they are excluded from considering the somewhat debatable
question whether
the present matter does fall within head (a) of s. 52, sub-s. 1, by the
provisions of s.50, sub-s.3, as
the contention of the respondents is that the Governor should have exercised his
individual
judgment. Nor is it necessary for their Lordships to consider whether
individual judgment
excludes the operation of s.49, sub-s. 1. So far as it is relevant in the
present case, their Lordships
are unable to accept a suggestion by counsel for the respondents that the Home
Minister is not an
officer subordinate to the Governor within the meaning of s. 49, sub-s.1, and so
far as the
decision in Emperor v. Hemendra Prasad Ghosh [I.L.R. (1939) 2C. 411] decides
that a minister
is not such an officer their Lordships are unable to agree with it. While a
minister may have
duties to the Legislature, the provisions of s. 51 as to the appointment,
payment and dismissal of
ministers, and s. 59, sub-ss. 3 and 4, of the Act of 1935, and the Business
Rules made by virtue of
s. 59, place beyond doubt that the Home Minister is an officer subordinate to
the Governor.
31. It is clear from Article 164 the Members of the Cabinet including Chief
Minister, after having been appointed they remain in the office during pleasure
of
the Governor, in other words the tenure of office of the Member of the Council
of
Ministers, including the Chief Minister is subjected to pleasure doctrine.
32. If a comparative study is made with corresponding provisions to Article 74
of the Constitution of India it will appear that His Excellency President of
India is
always required in exercise of executive power to act according to the aid and
advice of the Council of Ministers except in cases where His Excellency
President
is conferred with expressed power to act in his own discretion. The provisions
of
Article 74 is set out hereunder:
74. Council of Ministers to aid and advise the President.- (1) There
shall be a
Council of Ministers with the Prime Minister at the head to aid and advise the
President who
shall, in the exercise of his functions, act in accordance with such advice:
Provided that the President may require the Council of Ministers to
reconsider such
advice, either generally or otherwise, and the President shall act in accordance
with the advice
tendered after such reconsideration.
(2) The question whether any, and if so what, advice was tendered by
Ministers to the
President shall not be inquired into in any court.
33. Clause (1) of Article 74 was slightly amended by the Constitution (Forty-
second Amendment) Act, 1976 and thereafter the proviso was inserted by the
Constitution (Forty-fourth Amendment) Act, 1978. Remarkably, the aforesaid
corresponding proviso is not to be found in Article 154 of Constitution of India
in
exercise of power by the Governor in the State.
34. The executive power of His Excellency the President and the Governor was
being debated in past time and again before the Honble Supreme Court. Apex
Court has examined and explained executive power of the two Constitutional
Heads. Some of the decisions of this Court cited by the learned Counsels for
parties are discussed in succeeding paragraphs.
35. In Shamsher Singh v. State of Punjab (supra), Seven Judges Bench of the
Supreme Court, in paragraph 138 of the report, culled out how His Excellency,
the
President and the Governor would exercise their executive power.
Of course, there is some qualitative difference between the position of
the President and
the Governor. The former, under Article 74 has no discretionary powers the
latter too has none,
save in the tiny strips covered by Articles 163(2), 371-A(1)(b) and (d), 371-
A(2)(b) and (f), VI
Schedule para 9(2) (and VI Schedule para 18(3), until omitted recently with
effect from 21-01-
1972). These discretionary powers exist only where expressly spelt out and even
these are not
left to the sweet will of the Governor but are remote-controlled by the Union
Ministry which is
answerable to Parliament for those actions. Again, a minimal area centering
round reports to be
dispatched under Article 356 may not, in the nature of things, be amenable to
ministerial advice.
The practice of sending periodical reports to the Union Government is a
preconstitutional one and
it is doubtful if a Governor could or should report behind the back of his
Ministers. For a
centrally appointed constitutional functionary to keep a dossier on his
Ministers or to report
against them or to take up public stances critical of Government policy settled
by the Cabinet or
to interfere in the administration directly these are unconstitutional faux
pas and run counter to
parliamentary system. In all his constitutional Functions it is the Ministers
who act; only in the
narrow area specifically marked out for discretionary exercise by the
Constitution, he is
untrammeled by the State Ministers acts and advice. Of course, a limited free-
wheeling is
available regarding choice of Chief Minister and dismissal of the Ministry, as
in the English
practice adapted to Indian conditions.
36. This was the law with regard to executive functioning of the Governor
until
the Honble Apex Court had to deal with this issue once again with regard to
method of exercise of executive power in the case of M.P. Special Police
Establishment v. State of M.P. (supra) wherein Shamsher Singh v. State of
Punjab (supra) was noted by the Supreme Court. In this case the Honble
Supreme Court has explained the ratio in Shamsher Singh v. State of Punjab
(supra) taking note of the relevant provisions of the Constitution and
provisions of
Section 197 of Code of Criminal Procedure. It was a case whether Governor
could grant sanction for prosecution of any Member of the Council of Ministers
without the aid and advice of the Cabinet. While dealing with that aspect the
Honble Supreme Court in paragraph 12 ruled, amongst others, as follows:
12. Thus, as rightly pointed out by Mr. Sorabjee, a seven Judges' Bench
of this Court
has already held that the normal rule is that the Governor acts on the aid and
advice of the
Council of Ministers and not independently or contrary to it. But there are
exceptions under
which the Governor can act in his own discretion. Some of the exceptions are as
set out
hereinabove. It is, however, clarified that the exceptions mentioned in the
Judgment are not
exhaustive. It is also recognized that the concept of the Governor acting in his
discretion or
exercising independent judgment is not alien to the Constitution. It is
recognized that there may
be situations where by reason of peril to democracy or democratic principles, an
action may be
compelled which from its nature is not amendable to Ministerial advice. Such a
situation may be
where bias is inherent and/or manifest in the advice of the Council of
Ministers.
In paragraph 19 of the said report, the Apex Court has concluded as
follows:
19. Article 163 has been extracted above. Undoubtedly, in a matter of
grant of sanction
to prosecute the Governor is normally required to act on aid and advice of the
Council of
Ministers and not in his discretion. However, an exception may arise whilst
considering grant of
sanction to prosecute a Chief Minister or a Minister where as a matter of
propriety the Governor
may have to act in his own discretion. Similar would be the situation if the
Council of
Ministers disable itself or disentitles itself.
(emphasis supplied by us)
Thus, it emerges the Supreme Court has explained that even if any advice
is
tendered and the same appears to be a biased one His Excellency Governor is not
bound to accept such advice and can proceed in his own discretion.
37. It can be concluded applying above legal principle, that in a situation
which
arises on account of disability and disentitlement of Council of Ministers, the
Governor may proceed to act in his own discretion. The disability and
disentitlement can be of various types, may be factual, or on account of gross
unconstitutionality, illegality or impropriety. In the case of M.P. Special
Police
Establishment v. State of M.P. (supra) the Honble Supreme Court has
recognized the disability and disentitlement on the ground of propriety and not
on
factual disentitlement. This decision was noted subsequently by the Honble
Supreme Court in the case of State of Gujarat and another v. Justice R.A.
Mehta (Retd.) and others (supra). This case related to appointment of Lokayukta
by the Governor ignoring the aid and advice of the Council of Ministers. The
Supreme Court has reiterated the statement of law made in the case of M.P.
Special Police Establishment v. State of M.P. (supra) and in paragraph 37 of the
said report it was observed:
37. In M.P. Special Police Establishment v. State of M.P, the question that
arose was
whether for the purpose of grant of sanction for the prosecution of Ministers
for offences under
the Prevention of Corruption Act and/or the Penal Code, the Governor, while
granting such
sanction, could exercise his own discretion or act contrary to the advice
rendered to him by the
Council of Ministers. The Court, in this regard, first considered the object and
purpose of the
statutory provisions which are aimed at achieving the prevention and eradication
of acts of
corruption by public functionaries. The Court then also considered the
provisions of Article 163
of the Constitution, and took into consideration with respect to the same a
large number of earlier
judgments of this Court including Samsher Singh and State of Maharashtra v.
Ramdas Shrinivas
Nayak [(1982) 2 SCC 463] and thereafter, came to the conclusion that in a matter
related to the
grant of sanction required to prosecute a public functionary, the Governor is
usually required to
act in accordance with the aid and advice rendered to him by the Council of
Ministers and not
upon his own discretion. However, an exception may arise while considering the
grant of sanction
required to prosecute the Chief Minister, or a Minister, where as a matter of
propriety, the
Governor may have to act upon his own discretion. Similar would be the situation
in a case
where the Council of Ministers disables or disentitles itself from providing
such aid and
advice. Such a conclusion by the Court was found to be necessary for the reason
that the facts
and circumstances of a case involving any of the aforementioned fact situations
may indicate the
possibility of bias on the part of the Chief Minister or the Council of
Ministers. This Court carved
out certain exceptions to the said provision. For instance, where bias is
inherent or apparent,
or, where the decision of the Council of Ministers is wholly irrational, or,
where the Council
of Ministers, because of some incapacity or other situation, is disentitled from
giving such
advice, or, where it refrains from doing so as matter of propriety, or in the
case of a
complete breakdown of democracy.
(emphasis supplied by us)
In paragraph 38 of the report, Dr. Justice Chauhan speaking for the Bench
has ruled as follows.
Article 163(2) of the Constitution provides that it would be permissible for
the Governor to
act without ministerial advice in certain other situations, depending upon the
circumstances
therein, even though they may not specifically be mentioned in the Constitution
as discretionary
functions e.g. the exercise of power under Article 356(1), as no such advice
will be available
from the Council of Ministers, who are responsible for the breakdown of
constitutional
machinery, or where one Ministry has resigned, and the other alternative
Ministry cannot be
formed. Moreover, clause (2) of Article 163 provides that the Governor himself
is the final
authority to decide upon the issue of whether he is required by or under the
Constitution, to act in
his discretion. The Council of Ministers, therefore, would be rendered
incompetent in the event of
there being a difference of opinion with respect to such a question, and such a
decision taken by
the Governor would not be justiciable in any court. There may also be
circumstances where there
are matters with respect to which the Constitution does not specifically require
the Governor to
act in his discretion but the Governor, despite this, may be fully justified to
act so e.g. the Council
of Ministers may advise the Governor to dissolve a House, which may be
detrimental to the
interests of the nation. In such circumstances, the Governor would be justified
in refusing to
accept the advice rendered to him and act in his discretion. There may even be
circumstances
where ministerial advice is not available at all i.e. the decision regarding the
choice of Chief
Minister under Article 164(1) which involves choosing a Chief Minister after a
fresh election, or
in the event of the death or resignation of the Chief Minister, or dismissal of
the Chief Minister
who loses majority in the House and yet refuses to resign or agree to
dissolution. The Governor is
further not required to act on the advice of the Council of Ministers where some
other body has
been referred for the purpose of consultation i.e. Article 192(2) as regards
decisions on questions
related to the disqualification of Members of the State Legislature.
In paragraph 90 of the said report, Their Lordships while quoting
paragraph
12 of the judgment in M.P. Special Police Establishment v. State of M.P.
(supra), came to the conclusion as follows:
90. In fact the five-Judge Bench of this Court in M.P. SPE case (supra) has
explained the
judgment of a seven-Judge Bench in Samsher Singh (supra) observing that in
exceptional
circumstances the Governor may be justified in acting in his discretion and that
the exceptions
enumerated in Samsher Singh are not exhaustive. Thus, the view taken by the
third learned Judge,
in which it has been stated that it had become absolutely essential for the
Governor to exercise
her discretionary powers under Article 163 of the Constitution, must be read in
light of the
abovementioned explanation.
38. Apart from the aforesaid pronouncements it would be very useful to quote
here the text from Constitutional Law of India by H.M. Seervai, Fourth Edition,
which is at page 2081 which reads as follows:
Where a Cabinet resigns and declines to stay in office till another
Cabinet is formed,
or the Presidents rule is imposed, the Governor would be within his rights
under Art. 163(2) in
deciding that in the situation thus created the Constitution required him to
exercise the executive
power vested in him in his discretion, because the Constitution could not have
intended a
paralysis of the executive government. And the Governors decision to act in
his discretion is not
open to question.
39. From the aforesaid authoritative pronouncements and views of jurist, we
find that His Excellency the Governor even sometimes as mentioned in those
judgments, may refuse to act upon the advice given by the Council of Ministers
and in that case it would be fit and proper to act in his own discretion for His
Excellency the Governor is duty bound to preserve, protect and defend the
Constitution and law in furtherance of service and wellbeing of the people
sticking
to his Oath form which is produced hereunder:
I will faithfully execute the office of Governor (or discharge the
functions of the
Governor) of . and will to the best of my ability preserve, protect and defend
the Constitution
and the law and that I will devote myself to the service and well-being of the
people of
(emphasis supplied)
40. The executive power given to His Excellency the Governor and the method
under which it would be exercised are only to honour the oath taken by the
Governor. In other words, the Governor will always be conscious and duty bound
that executive power is exercised to uphold, preserve, protect and defend the
Constitution and law in whatever method namely either acting upon aid and advice
or in certain circumstances in his own discretion without aid and advice or
ignoring aid and advice given by the Council of Ministers. To put it negatively
the
Governor shall not allow any attempt made by the Cabinet to subvert
Constitutional provision or law
41. In view of the aforesaid legal position with regard to the power vis--vis
duty of Governor we now examine this case on fact whether the Governor has
exercised power within the parameters of power as explained by the Apex Court.
42. In this case, it appears from the affidavit and the same is also admitted
position at the time of granting extension to fourth respondent Council of
Ministers was in office technically. Under what circumstances the aforesaid
impugned order was passed first respondent in paragraph 27 of counter affidavit
has explained as follows:
it is a fact that the State Government has to send recommendations to
the Central
Government with full justification and obtain prior approval before issuing
extension orders. The
post of Chief Secretary was to fall vacant on 28.02.2014 and successor was to be
chosen by the
competent authority. However, the competent authority i.e., the Chief Minister
of the State
tendered his resignation on 19.02.2014 and the same was accepted by the Honble
Governor on
21.02.2014. However, he was asked to continue in office along with his
colleagues till alternative
arrangements are made. The then Honble Chief Minister requested the Governor
on 24.02.2014
to relief him from care taker responsibilities also at the earliest. Since
19.2.2014 the Chief
Minister has refused to accept files. When the then Chief Minister was
subsequently contacted
regarding circulation of file on choosing the next Chief Secretary, he again
expressed his inability
to accept the file for decision. Therefore, there was no option for General
Administration
Department but to inform Governors Office and also move file to Governor. The
then Chief
Ministers office had categorically informed that he would not accept any file.
The same was
informed to the Governors Office. The then Chief Minister also addressed a
communication in
writing to the Governor on 28.02.2014 mentioning that it was not appropriate on
his part to take
an important administrative decision like appointment or extension of Chief
Secretary after
tendering resignation. He requested the Governor in writing to take appropriate
decision in the
matter whether to extend the term of CS or choose successor to avoid any
vacuum in the State
administrative set up.
43. Thus, it would appear that in the aforesaid factual scenario, the Cabinet
refused to give any advice. According to us, on reading aforesaid Articles 154
and
164, the Governor has to act when advice is given by Cabinet. But if factually
no
advice is given or Cabinet refused to give advice, it would be situation of
breaking
down Constitutional machinery. In that circumstance the Governor is to exercise
his power directly to bail out such crisis. In this case Office of Chief
Secretary of
the State Government which is most important one, was required to be filled up
either appointing a successor or granting extension to present incumbent, hence
a
decision of the Chief Minister was sought unsuccessfully. Therefore, the
situation
as explained in the affidavit is absolutely appropriate as recognized by the
Supreme Court that warranted exercise of power of Governor without aid and
advice. According to us, the Cabinet, headed by Chief Minister has factually
disabled itself to act for giving advice. As a matter of fact, we find that
advice
was given by the Chief Minister to His Excellency Governor to take decision on
his own. Therefore, if this is treated to be an advice, Governor has acted in
accordance with aid and advice of the Cabinet. Under these circumstances, we
hold that decision of the Governor to fill up the post of Chief Secretary by
granting extension to respondent No.4 cannot be faulted under any provision of
the Constitution or law or otherwise.
44. The next question remains is whether this appointment has been made in
accordance with Rule 16 of All India Services (Death-cum-Retirement Benefits)
Rules. In the counter affidavit in paragraphs 28 and 29 it is stated as under:
28. the Office of Governor on 27.02.2014 with approval of Governor,
addressed a
letter to Home Secretary, Government of India to make such necessary and
appropriate
arrangements from now till new Governments are formed by naming a Chief
Secretary by duly
considering the continuation of present incumbent, Dr. P.K. Mohanty, due to
balance of
convenience which was compelling, in view of formation of new State and General
Elections.
29. The letter sent to Government of India with the approval of Governor
also states:
The present Chief Secretary Shri P.K. Mohanty who had a long stint both
at the State
and Centre has the distinct advantage of not belonging to the State. He is
perceived as a
competent, professional and totally non-controversial officer and above board.
He is thoroughly
well versed with the ongoing bifurcation processes. ..This is a peculiar and
unforeseen situation
and at the same time we cannot afford an impasse.
Further, the letter from Governors office to Government of India
mentions about the
following aspects of public interest:
(i) the State is at critical juncture having to cope up with many a complex
issue
relating to formation of new State.
(ii) Very tight time lines under which these processes have to be completed in
an
objective and impartial manner; and
(iii) The administration of State which already is working under severe
constraints will loose a sense of momentum as well as direction with the
superannuation of the present Chief Secretary.
Thereafter, it is stated that that recommendation made by the Governor was
approved by the Central Government and it is also explained so in the counter
affidavit.
45. Therefore, it is required to be examined by this Court whether decision
making process is in accordance with Rule 16 of the aforesaid Rules or not. We
have no doubt in our mind whatsoever, taking note of fact disclosed in the
counter
that decision has been taken by the Government in accordance with the rules.
46. Now the question is competency. We think that for the purpose of deciding
the matter on issues of Quo Warranto, only legality of decision has to be
examined
by us not comparative merit. We do not find any unconstitutionality or
illegality
in decision making process.
47. One more question agitated is that the fourth respondent is not a fit
person
to be granted extension as adverse remarks were made by the Supreme Court
against him in one case. As has been rightly contended by the learned Advocate
General and supported by Sri D. Prakash Reddy, learned Senior Counsel
appearing for the fourth respondent, the eligibility and fitness is the
exclusive
domain of the Government and it is its subjective satisfaction. The court
cannot
go into this aspect. It is settled position of law Court in writ jurisdiction
can
examine the decision making process, not the decision itself. In the process,
if it is
found decision making process is unconstitutional, illegal, obviously ultimate
decision has to be set aside (See Tata Cellular v. Union of India )
48. Here we find that reasonable view has been taken by the Governor. This
reasonableness cannot be substituted by the Court at the instance of a third
party.
However, it could have been examined in great detail by this Court had the
affected person approached the Court.
49. What is to be considered in an action asking for a writ of quo warranto
has
been well settled by the apex Court time and again, almost from the date of
inception of the Supreme Court, and in all cases the same principle has been
reiterated. Some of the decisions of the Supreme Court cited at the Bar are
discussed hereunder.
50. In case of High Court of Gujarat v. Gujarat Kishan Mazdoor
Panchayat (supra) in paragraph 22 of the report, Justice Sinha, writing the
concurrent judgment, while taking note of the earlier decision of the Supreme
Court in case of R.K. Jain v. Union of India has reiterated the legal position
on
this issue as follows:
The High Court in exercise of its writ jurisdiction in a matter of this
nature is required to
determine at the outset as to whether a case has been made out for issuance of a
writ of certiorari
or a writ of quo warranto. The jurisdiction of the High Court to issue a writ of
quo warranto is a
limited one. While issuing such a writ, the Court merely makes a public
declaration but will not
consider the respective impact of the candidates or other factors which may be
relevant for
issuance of a writ of certiorari.
51. In case of B. Srinivasa Reddy v. Karnataka Urban Water Supply &
Drainage Board Employees Association & Others (supra), in paragraphs 55 and
94, the Supreme Court has laid down that a writ of Quo Warranto does not lie if
the alleged violation is not of a statutory provision.
52. In Hari Bansh Lal v. Sahodar Prasad Mahto and others (supra), the
Apex Court, in paragraph 34 of the report, has reiterated after considering all
the earlier decisions on the same issue, as follows:
From the discussion and analysis, the following principles emerge:
a) Except for a writ of quo warranto, PIL is not maintainable in
service matters.
b) For issuance of a writ of quo warranto, the High Court has to
satisfy that the appointment is contrary to the statutory rules.
c) Suitability or otherwise of a candidate for appointment to a post in
government service is the function of the appointing authority and not of the
court unless the appointment is contrary to statutory provisions/rules.
53. In case of Central Electricity Supply Utility of Odisha v. Dhobei Sahoo
and others (supra) the Supreme Court, in paragraph 18 of the report, while
following the earlier decisions including the decision in R.K. Jains case, has
observed as follows:
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 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.
54. We respectfully following above settled principle of law hold that no Writ
of Quo Wattanto can be issued as we have found in preceding paragraphs no
illegality nor unconstitutionality in issuing order of extension of service of
fourth respondent.
55. The next question is whether it is an action by a private individual in
the guise of public interest litigation. According to us, when very fundamental
question has been raised with regard to executive power of the Governor under
Constitution, we do not wish to lift cloak to find reality as alleged. This
petition cannot be thrown out even if it is found mala fide as there cannot be any
estoppel as against challenge based on constitutional provision even a dreaded criminal
can also challenge the constitutional lapses in decision taking process. The
decisions cited by the learned counsel for the respondents are factually distinguishable.
56. For the foregoing discussion, we dismiss these writ petitions, however,
without any order as to costs.
____________________
K.J. SENGUPTA, CJ.
___________________
SANJAY KUMAR, J.
Date:09.04.2014
issue a writ of Mandamus or quo warranto for quashing the order of extension of services of the 4th respondent in PIL.No.84 of 2014.=
The 4th respondent in PIL.No.84 of 2014 was appointed as Chief Secretary to the Government of Andhra Pradesh on 30.04.2013 and was to attain superannuation on 28.03.2014 on completion of 60 years.
During his tenure as the Chief Secretary to the State Government, there have been adverse remarks against his functioning which were more glaring when the Honble Supreme Court pointed out the same in its judgment in Criminal Appeal of Umesh Kumar v. State of Andhra Pradesh.
Apart from the said case there have been several remarks in the way the administrative work was carried out by him. Instead of allowing the 4th respondent to be retired on attaining 60 years, the Government of Andhra Pradesh hastily issued the impugned order granting four months extension to him without assigning any reasons for not promoting the eligible persons working as Special Chief Secretaries.
As per Rule 16(1) and its 3rd proviso governing the order of extension mentioned in the All India Services (Death-cum-Retirement Benefits) Rules, 1958 (for short, the Rules) in addition
to the overriding consideration of the Public Interest,
the following conditions need to be satisfied for granting extension.
(i) That the other officers are not ripe enough to take over the job and,
(ii) The retiring officer is of outstanding merit. =
In case of B. Srinivasa Reddy v. Karnataka Urban Water Supply &
Drainage Board Employees Association & Others (supra), in paragraphs 55 and
94, the Supreme Court has laid down that a writ of Quo Warranto does not lie if
the alleged violation is not of a statutory provision.
52. In Hari Bansh Lal v. Sahodar Prasad Mahto and others (supra), the
Apex Court, in paragraph 34 of the report, has reiterated after considering all
the earlier decisions on the same issue, as follows:
From the discussion and analysis, the following principles emerge:
a) Except for a writ of quo warranto, PIL is not maintainable in
service matters.
b) For issuance of a writ of quo warranto, the High Court has to
satisfy that the appointment is contrary to the statutory rules.
c) Suitability or otherwise of a candidate for appointment to a post in
government service is the function of the appointing authority and not of the
court unless the appointment is contrary to statutory provisions/rules.
53. In case of Central Electricity Supply Utility of Odisha v. Dhobei Sahoo
and others (supra) the Supreme Court, in paragraph 18 of the report, while
following the earlier decisions including the decision in R.K. Jains case, has
observed as follows:
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 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.
54. We respectfully following above settled principle of law hold that no Writ
of Quo Wattanto can be issued as we have found in preceding paragraphs no
illegality nor unconstitutionality in issuing order of extension of service of
fourth respondent.
For the foregoing discussion, we dismiss these writ petitions, however,
without any order as to costs.
2014 (May. Part) http://judis.nic.in/judis_andhra/filename=11253
THE HONOURABLE THE CHIEF JUSTICE SRI KALYAN JYOTI SENGUPTA AND THE HONOURABLE SRI JUSTICE SANJAY KUMAR
Public Interest Litigation Nos.72 of 2014 and batch
09-4-2014
Consumers Guidance Society (Regd. No.338 of 1995) Vijayawada Rep. by its
Secretary Dr. Ch. Divakar Babu R/o.D.No.58-1-26, Flat No.1 Veerapaneni Plaza, Patamata Vijayawada Petitione
The Government of Andhra Pradesh Rep. by its Secretary to Government (Poll)
General Administration Department Secretariat Buildings, Saifabad, Hyderabad and others Respondents
COUNSEL FOR PETITIONER:Sri S.R. Ashok, Senior Counsel for Sri K. Raji Reddy
COUNSEL FOR RESPONDENT NO.1:Government Pleader for General Administration Department
COUNSEL FOR RESPONDENT NOs.2 & 3 : Sri P. Vishnuvardhan Reddy, Assistant Solicitor General
<GIST:
>HEAD NOTE:
?CITATIONS:1. AIR 1974 SC 2192
2. (2004) 8 SCC 788
3. (2005) 2 SCC 92
4. (2013) 3 SCC 1
5. (2003) 4 SCC 712
6. AIR 2006 SC 3106
7. (2010) 9 SCC 655
8. (2014) 1 SCC 161
9. (2005) 5 SCC 136
10. (2014) 2 SCC 609
11. 1945 FCR 195
12. (1994) 6 SCC 651
13. (1993) 4 SCC 119
THE HONBLE THE CHIEF JUSTICE SRI KALYAN JYOTI SENGUPTA
AND
THE HONBLE SRI JUSTICE SANJAY KUMAR
PUBLIC INTEREST LITIGATION Nos.72, 73 and 84 of 2014
COMMON ORDER:
The aforesaid three public interest litigations have been filed claiming
for identical relief, which is essentially as follows: to issue a writ of Mandamus or quo warranto for quashing the order of extension of services of the 4th respondent in PIL.No.84 of 2014.
2. All these matters have been clubbed for analogous hearing. The brief
facts, bereft of all unnecessary details, are as follows:
3. The 4th respondent in PIL.No.84 of 2014 was appointed as Chief Secretary
to the Government of Andhra Pradesh on 30.04.2013 and was to attain superannuation on 28.03.2014 on completion of 60 years. During his tenure as the Chief Secretary to the State Government, there have been adverse remarks against his functioning which were more glaring when the Honble Supreme Court pointed out the same in its judgment in Criminal Appeal of Umesh Kumar v. State of Andhra Pradesh. Apart from the said case there have been several remarks in the way the administrative work was carried out by him. Instead of allowing the 4th respondent to be retired on attaining 60 years, the Government of Andhra Pradesh hastily issued the impugned order granting four months extension to him without assigning any reasons for not promoting the eligible persons working as Special Chief Secretaries. As per Rule 16(1) and its 3rd proviso governing the order of extension mentioned in the All India Services (Death-cum-Retirement Benefits) Rules, 1958 (for short, the Rules) in addition
to the overriding consideration of the Public Interest, the following conditions need to be satisfied for granting extension.
(i) That the other officers are not ripe enough to take over the job and,
(ii) The retiring officer is of outstanding merit.
4. In this case, according to the petitioners the 1st condition is not
fulfilled in
the present case, since there are already promoted Special Chief Secretaries
working in the State. In addition thereto, a number of eligible officers are
working
in the Government of India. Hence, it cannot be said that none of these
officers
are ripe enough to take over the job. The 2nd condition has not been fulfilled,
as
the 4th respondent cannot be said to be an officer of outstanding merit
particularly
when the Honble Supreme Court has made adverse remarks against him in the
case of Umesh Kumar (supra) regarding his functioning. The extension orders
issued are not based on a recommendation from the State Government and to that
extent does not fulfill the condition of the 3rd proviso to Rule 16(1) of the
Rules.
5. There is no mention of public interest anywhere in the memo from
Government of India nor there is any elaboration of what public interest is
supposed to be in the impugned Government order, which alone ought to have
been overriding concern. When there is no public interest made out in the
letter of
the Special Chief Secretary to the Governor or in the Memo of the Government of
India, it is clear that the order was not issued in public interest. Without
any
discernible public interest, a mere statement of public interest does not
justify the
extension in the name of public interest. Moreover, the impugned Government
order was issued late in the night on 28.02.2014 by the Government of Andhra
Pradesh without number. The Presidents Rule was imposed in the State on
01.03.2014 until which the outgoing cabinet acted as the caretaker Government.
The impugned Government order was passed by the assent of the Governor
without the recommendation or consultation of the caretaker Government on
28.02.2014 itself while the President Rule was imposed from 01.03.2014. This is
against the letter and spirit of the 3rd proviso to Rule 16(1). The haste in
which the
whole process was carried out from the afternoon of 27.02.2014 starting with the
recommendation from the Governors Office to the issuance of the Government
order late night at 10.30 p.m. on 28.02.2014 in the manner indicated above
demonstrates the colourable exercise of power exercised in the most arbitrary
manner in post-haste to favour an individual, rather than keeping in view the
public interest.
6. The 1st respondent in its counter affidavit in order to resist the
challenge has
stated on fact that the 4th respondent is an outstanding officer and having
excellent
service record. The observations of the Honble Supreme Court were in the
context of non-initiation of enquiry against Sri Dinesh Reddy by the State
Government on a complaint that was filed on 22.04.2011. The 4th respondent
assumed charge as Chief Secretary to Government on 01.05.2013 and that was
informed in the affidavit filed by the State Government represented by the
present
Chief Secretary along with the sequence of events that took place prior to his
assumption of charge as Chief Secretary and the circumstances in which the
enquiry was not initiated. The 4th respondent, obviously, could not be held
responsible for non-initiation of enquiry by the State Government during the
periods of earlier Chief Secretaries.
7. The Honble Supreme Court has not passed any strictures against the Chief
Secretary in-person, but commented adversely on the ground that no enquiry was
conducted by the State Government into the petition against Sri Dinesh Reddy,
former DGP. The remarks are in essence against the State Government
represented by Chief Secretary. The Honble Supreme Court commented on a
technical flaw of lack of date in the affidavit filed, which was an inadvertent
omission, which ought to have been avoided. The Supreme Court has not made
any observation on the merit or competency of the Chief Secretary. The 4th
respondent could not have conducted an enquiry into the petition against Sri
Dinesh Reddy, as he joined one year after the stay was granted by the Honble
High Court and the said stay was in force for the period of his tenure as Chief
Secretary. Accordingly, the remarks of the Supreme Court about not conducting
of an enquiry apply to the State Government covering the period of past Chief
Secretaries and it is unfair on the part of the petitioner to link the remarks
of
Supreme Court to the present Chief Secretary in-person. Hence, the allegation
of
the petitioner that strictures were passed on the present Chief Secretary is not
correct.
8. No action was even initiated against the 4th respondent and the Government
had dropped all action against the officer on 06.07.2004. As the 4th respondent
was cleared from Vigilance angle by the Government of India and State
Government, as per the guidelines on the subject, he was promoted to the Fixed
Grade by both the State Government and Government of India and also to the
posts of Secretary to Government of India and Chief Secretary based on his
administrative abilities, merit, integrity, leadership potential and experience.
Further, the 4th respondents integrity has been beyond doubt all through his
career. The State Government has to send recommendations to the Central
Government with full justification and obtain prior approval before issuing
extension orders. The post of Chief Secretary was to fall vacant on 28.02.2014
and successor was to be chosen by the competent authority. However, the
competent authority i.e., the Chief Minister of the State tendered his
resignation on
19.02.2014 and the same was accepted by the Honble Governor on 21.02.2014.
However, he was asked to continue in office along with his colleagues till
alternative arrangements are made. The then Honble Chief Minister requested
the
Governor on 24.02.2014 to relieve him from caretaker responsibilities also at
the
earliest. Since 19.02.2014, the Chief Minister has refused to accept files and
subsequently he contacted regarding circulation of file on choosing the next
Chief
Secretary, he again expressed his inability to accept the file for decision.
Therefore, there was no option for General Administration Department but to
inform Governors office and also move file to Governor. The then Chief
Ministers office had categorically informed that he would not accept any file.
The same was informed to the Governors office. The then Chief Minister also
addressed a communication in writing to the Governor on 28.02.2014 mentioning
that it was not appropriate on his part to take an important administrative
decision
like appointment or extension of Chief Secretary after tendering resignation.
He
requested the Governor in writing to take appropriate decision in the matter
whether to extend the term of Chief Secretary or choose successor to avoid any
vacuum in the State administrative set up.
9. In the above said backdrop, the office of Governor on 27.02.2014 with
approval of Governor, addressed a letter to Home Secretary, Government of India
to make such necessary and appropriate arrangements till new Governments are
formed by naming a Chief Secretary by duly considering the continuation of
present incumbent, namely; the 4th respondent due to balance of convenience
which was compelling in view of formation of new State and General Elections.
The letter sent to the Government of India with the approval of Governor also
contains his eligibility and merit and in that letter particulars of the public
interest
also mentioned, which are as follows:
(i) The State is at critical juncture having to cope up with many a complex
issue relating to formation of new State.
(ii) Very tight time lines under which these processes have to be completed
in an objective and impartial manner; and,
(iii) The administration of the State which already is working under severe
constraints will loose a sense of momentum as well as direction with the
superannuation of the present Chief Secretary.
10. Under Article 163 of the Constitution of India the Governor is required to
act on the aid and advice of the Council of Ministers through the Chief Minister
as
its Head. But, a peculiar situation arose in the State where the Honble Chief
Minister tendered his resignation on 19.02.2014 and the same was accepted by the
Honble Governor on 21.02.2014. However, he was asked to continue in office
along with his colleagues till alternative arrangements are made. The then
Honble Chief Minister requested the Governor on 24.02.2014 to relieve him from
caretaker responsibilities also at the earliest and no official matters as a
result were
looked into by him and the outgoing cabinet. The Council of Ministers disabled
themselves from their duties, as a result, in the interregnum period there was a
decision vacuum. The 4th respondent was scheduled to demit office on 28.02.2014
having attained the age of superannuation. The State being at a critical
juncture, to
cope up with complex issues relating to formation of new State and as the
administration of the State, which is already working under severe constraint,
it
was considered by the Governor that the administration may loose the sense of
momentum as well as direction with the superannuation of the present Chief
Secretary. Further, the impending General Election was also a cause of concern
as
the Election Commission has already issued a series of instructions in regard to
conduct of the General Elections. The Special Chief Secretary to Governor, with
the approval of Governor, addressed to the Home Secretary, Ministry of Home
Affairs, Government of India that after going through the consultation process,
the
new Governments are expected to take charge by not later than 09.06.2014 and
therefore the Government of India make such necessary and appropriate
arrangements from now till new Governments are formed by naming a Chief
Secretary by duly considering the continuation of present incumbent, namely; the
4th respondent. Further, the doctrine of necessity was also prevailing on the
facts
as mentioned above.
11. In response to the letter from Governors office, the Government of India,
Ministry of Personnel, Public Grievances and Pensions conveyed the approval of
the Central Secretary to grant extension of service of the 4th respondent as
Chief
Secretary for a period of four months beyond 28.02.2014. Therefore, the State
Government followed the procedure and rules and regulations on the subject and
the contention of the petitioner is devoid of any merits. In fact, the
administration
has undertaken an exercise and initiated a file on 24.02.2014 for appointment of
new Chief Secretary duly taking into consideration all the other officers in the
Fixed Grade in the zone of consideration along with the ACR grading for the last
10 years of all the officers, postings held by the officers for the last 10
years and
disciplinary cases pending, if any, against the members of service etc. While
undertaking this exercise, the administration has considered the profile of the
officers in Fixed Grade, who are on deputation with Government of India and
other agencies.
12. Although the 4th respondent has filed a counter affidavit, we feel that
the
factual position with regard to the question of extension is not required to be
stated
from his affidavit.
13. In the context of the aforesaid factual contention, Sri S.R. Ashok,
learned
Senior counsel appearing for the petitioners, submits that in the State of
Andhra
Pradesh, the Chief Minister and his Cabinet tendered resignation on 19.02.2014.
The Governor of Andhra Pradesh vide G.O.Ms.No.52, dated 21.02.2014
authorized the Chief Minister and his colleagues to continue in office till
alternative arrangements are made. The Chief Secretary was due for retirement
on
28.02.2014 on attaining the age of superannuation notified vide G.O.Rt.No.4938,
dated 13.11.2013. While the Chief Minister and his Cabinet are continuing in
office, the Governor, without their aid and advise, addressed a letter dated
27.02.2014 to the Central Government. The said letter does not refer to
recommendation by the State Cabinet. Thus, the letter is in contravention of
the
3rd proviso to Rule 16(1) of the Rules. The Government of India instructions
specify two conditions, namely; there are no other officers ripe enough to take
over the job or that the retiring officer is of outstanding merit. Further, in
the case
of the 4th respondent, the Honble Supreme Court adversely commented on his
role as Chief Secretary. Thus, he does not possess the eligibility conditions
that
are prescribed for continuing beyond the age of superannuation. Further, as the
order dated 24.07.2013 of the Honble Supreme Court was not implemented, the
Supreme Court commented on the audacity of the Chief Secretary in not
implementing the said order relating to his period only. He joined as Chief
Secretary on 01.05.2013. If he felt that the adverse remarks were without basis
he
should have approached the Court for expunging them. Having not done that he
cannot at this point of time take different pleas.
14. The Governor acts within the parameters of the Constitution. The powers
and limitations are implied in the provisions of the Constitution. The Governor
should carry out not only in accordance with the provisions of the Constitution,
but also not in violation of the basic features of the Constitution. Thus, the
power
of the Governor cannot be so exercised so as to ignore the provisions of Article
163(1) of the Constitution. The exceptions carved out in the Constitution
should
be within the parameters of the Constitution, namely; in situations whereby
there
is peril to democracy or democratic principles, the action may be compelled
which
from its nature is not amenable to ministerial advices. No such condition is
present at the time of addressing letter dated 27.02.2014 to the Government of
India.
15. The Governor while making recommendation for continuance of the
services of the 4th respondent beyond the age of superannuation is not
performing
any statutory functions. The Rules do not empower the Governor to exercise the
discretion specified in the 3rd proviso to Rule 16(1). This can only be
exercised by
State administration comprising of Chief Minister or his Council of Ministers.
The letter dated 27.02.2014 does not refer to a situation which has arisen,
where
all Council of Ministers are disabled or disentitled themselves in advising the
Governor. It is not the case that the Council of Ministers may not take a fair
and
impartial decision in the appointment of a Chief Secretary. Thus, there is no
doctrine of apparent bias. Only in a case of apparent bias, the exception to
the
general rule would apply in exercise of the discretion by the Governor. Mere
impasse by the Council of Ministers is not permissible to hold that the action
on
part of the Council of Ministers is actuated by malice or disabled them to
empower
the Governor to use his discretionary powers. It is not very clear that the
Government order by the State was issued on 28.02.2014 night or 01.03.2014
morning. Concerned Government order dated 28.02.2014 could only be
downloaded on 01.03.2014 that too without number. Number to Government
order is given subsequently on 01.03.2014. This does show arbitrary exercise of
power. The Governor acts as the Head of the State, upon the open aid and advise
of the Council of Ministers except in relation to areas where the discretionary
powers are given to the Governor under the Constitution in discharging of his
functions. If any contingency not provided in Chapter-2 of Part-VI of the
Constitution arises, then he shall seek the recourse under Article 160 or
Article
356.
16. The writ of quo-warranto will lie where the appointment is made contrary
to the statutory provisions. The appointment of the 4th respondent is in clear
violation of the 3rd proviso to Rule 16(1) of the Rules. It makes the decision
making process vulnerable calling interference by the High Court to declare that
the appointment is non est in the eye of law. The constitutional provisions
clearly
provide that the Governor does not exercise any power by virtue of his office in
his individual discretion. The Governor is aided and advised by the Council of
Ministers in exercise of such powers that have been assigned to him under
Article
163 of the Constitution. The satisfaction of the Governor for the purpose of
exercise of his powers does not mean his personal satisfaction but reference to
satisfaction in the constitutional sense under a Cabinet system of Government.
17. The State Executives have to reach the decision by taking into account
relevant considerations. It should not refuse to consider the matter nor should
take
into account wholly irrelevant or extraneous considerations. The State should
not
misdirect itself on the point of law only. Such a decision will be unlawful.
The
Court has power to see that the Executive acts lawfully. If the Executive
considers
it inexpedient to exercise their powers, they should state their reasons and
there
must be material to show that they have considered all the relevant facts.
In support of his submissions, Sri S.R. Ashok has placed reliance on the
following decisions of the Supreme Court, (1) Samsher Singh v. State of
Punjab , (2) Madhya Pradesh Special Police Establishment v. State of
Madhya Pradesh and others , (3) Pu Mallai Hlychho v. State of Mizoram
and (4) State of Gujarat and another v. Justice R.A. Mehta (Retired) and
others .
18. Learned Advocate General appearing for the first respondent submits on
fact that after the resignation of the Chief Minister on 19.2.2014 which was
accepted by the Governor on 21.2.2014, fourth respondent was asked to continue
till alternative arrangements are made. On 24.2.2014 the file was processed for
appointment of new Chief Secretary. The then Honble Chief Minister as Head of
the Council of Ministers, declined to take a decision on the appointment of new
Chief Secretary or continuation of the present Chief Secretary and hence the
file
was processed and was placed before His Excellency the Governor. In view of the
urgency and also the peculiar situation existing in the State of Andhra Pradesh,
the
Governor on 27.2.2014 recommended for extension of term of the Chief Secretary
indicating the necessity and the compelling reasons for continuing the present
Chief Secretary by extending his period of superannuation.
19. On the point of law he submits that in a case of this nature only Writ of
Quo Warranto is maintainable and not Mandamus. There cannot be a Mandamus
which can be filed in public interest in respect of a service matter. The
suitability
or otherwise cannot be gone into in public interest except in a Writ of Quo
Warranto. The Honble Chief Minister disabled and disentitled himself from
taking a decision in the matter and the Governor as the Sovereign Head of the
State, keeping in view the public interest, competency of the Chief Secretary,
uprightness, recommended for extension of the term of the Chief Secretary. He
submits that His Excellency the Governor is well within his competence to
exercise discretionary power under Articles 154 and 163 of the Constitution of
India. In support of this legal submission he has placed reliance on the
following
decisions of the Supreme Court in State of Gurajat and another v. Justice R.A.
Mehta (Retired) and others (supra) and another decision in M.P. Special Police
Establishment v. State of M.P. and others (supra).
20. He contended that in the facts and circumstances stated in the writ
petition
Writ of Quo Warranto would not lie and he relied on the following decisions on
this issue:
(i) High Court of Gujarat and another v. Gujarat Kishan
Mazdoor Panchayat & others
(ii) B. Srinivasa Reddy v. Karnataka Urban Water Supply &
Drainage Board Employees Association & Others
(iii) Hari Bansh Lal v. Sahodar Prasad Mahto & Others
(iv) Central Electricity Supply Utility of Odisha v. Dhobei Sahoo
& others
(v) Gurpal Singh v. State of Punjab & others
21. Mr. D. Prakash Reddy, learned Senior Counsel, appearing for the fourth
respondent, contended that at the first instance in a Writ of Quo Warranto,
suitability of the officer concerned cannot be raised but only legality of the
appointment and the holding of the office can be raised. In service matters
public
interest litigation seeking Writ of Mandamus is not maintainable. He has
brought
to our attention the relevant paragraphs from his clients affidavit explaining
under
what circumstances the Supreme Court made observations on his client.
Thereafter, he reiterated the facts what have been stated in the counter
affidavit of
the first respondent under what situation and circumstances the order was passed
by His Excellency the Governor by granting extension. He further submits with
the support of the decision of the Supreme Court reported in Arun Kumar
Agarwal v. Union of India that the petitioners in public interest litigation
regarding appointment must establish ubberima fides/ extreme bona fides which
are lacking in the present public interest litigations. In addition to his
submission
he supports the argument of the learned Advocate General.
22. After hearing the learned counsel for the parties, and also considering
their
submissions advanced before us, we notice on the issue of maintainability.
Whether the writ petitions with the prayer mentioned therein can be
maintained in accordance with law?
23. It appears from the prayer portion of the writ petitions the petitioners
have
prayed for Writ in the nature of Writ of Mandamus or Quo Warranto or any other
appropriate Writ. It is settled position of law about which it would be
discussed
with details little later that public interest litigation can be maintained for
issuance
of Quo Warranto, and not Mandamus that can be issued at the instance of an
individually affected person, subject to, however, the concept of bona fide pro
bono publico. It is also settled position of law that under Article 226 of the
Constitution of India the Court ignoring inappropriate relief asked for can
consider
appropriate one taking into consideration of the justiciability in the matter
and
even in extreme cases the Writ Court can mould the reliefs in the facts and
circumstances of the case.
24. In view of the aforesaid discussion, ignoring prayer for Mandamus we now
proceed to decide whether Quo Warranto Writ can be issued in a matter of this
nature.
25. A great deal of submissions have been made by the learned Advocate
General appearing for the first respondent, and Sri D. Prakash Reddy, learned
Senior Advocate appearing for the fourth respondent contending that these writ
petitions are filed to ventilate the grievance of some other persons who are
personally interested and not for public cause. This issue will also be
discussed
and decided a little later.
26. While taking note of the merit of the matter, it appears to us the
following
issues are involved:
(i) Whether the decision of extension of service of the fourth
respondent has been taken by the Governor in accordance with
the provisions of the Constitution?
(ii) If so, whether impugned order has been passed in accordance
with law and relevant service Rules, namely, proviso to Rule
16(1) of the All India Services (Death-cum-Retirement Benefits)
Rules, 1958?
27. In this case factually it is an admitted position that the fourth
respondent is
eligible for having extension of his service period on attaining the age of 58
years
as per the Service Rules. It is not disputed that the impugned order has been
issued without the aid and advice of the State Cabinet though on the date of
issuance of the impugned order factually Council of Ministers was in office.
28. On the given admitted position, we are called upon to examine whether in
the absence of aid and advice of the Cabinet, His Excellency the Governor can
exercise executive power under the Constitution of India. We, therefore, set
out
provisions of the Executive power of the Governor in the Constitution of India.
154. Executive power of State.- (1) The executive power of the State
shall be vested in the Governor and shall be exercised by him either directly or
through officers subordinate to him in accordance with this Constitution.
(2) Nothing in this article shall
(a) be deemed to transfer to the Governor any functions conferred by
any existing law on any other authority; or
(b) prevent Parliament or the Legislature of the State from conferring
by law functions on any authority subordinate to the Governor.
29. Upon careful reading of the aforesaid Article, it would appear that the
Governor is the repository of executive power of the State. Such power can be
exercised by him directly or through officers subordinate to him in accordance
with this Constitution. To clarify the position the Governor can sometimes act
directly without having the assistance or aid by any officer including the
Cabinet.
However, when the Governor decides to act through the officers subordinate to
him in accordance with the Constitution, generally it is to be done upon advice
tendered except in compelling situation to save breaking down of Constitutional
machinery. Method of exercise of executive power is to be found in Article 163
which is reproduced hereunder.
163. Council of Ministers to aid and advise Governor. (1) There shall
be a Council
of Ministers with the Chief Minister as the head to aid and advise the Governor
in the exercise of
his functions, except in so far as he is by or under this Constitution required
to exercise his
functions or any of them in his discretion.
(2) If any question arises whether any matter is or is not a matter as
respects which the
Governor is by or under this Constitution required to act in his discretion, the
decision of the
Governor in his discretion shall be final, and the validity of anything done by
the Governor shall
not be called in question on the ground that he ought or ought not to have acted
in his discretion.
(3) The question whether any, and if so what, advice was tendered by
Ministers to the
Governor shall not be inquired into in any court.
30. According to us, the above provision of Article 163 is one of the method
and/or procedure to exercise power under Article 154. We feel that the
provisions
of this Article will be applicable when His excellency the Governor decides to
act
through officers subordinate to him, in accordance with the Constitution being
the
second limb of clause 1 of Article 154 of the Constitution of India for Council
of
Ministers headed by the Chief Minister undoubtedly holds office as such they are
to be construed as subordinate officers as the Governor appoints them. The
concept of subordination is understood with two tests primarily, power of
appointment and dismissal. These two tests are satisfied in this case as it
would
appear from Article 164 of the Constitution of India which is set out hereunder.
164. Other provisions as to Ministers.- (1) The Chief Minister shall be
appointed by
the Governor and the other Ministers shall be appointed by the Governor on the
advice of the
Chief Minister, and the Ministers shall hold office during the pleasure of the
Governor:
(emphasis
supplied)
30.1. Support of our above views would be found in the decision of Judicial
Committee in the case of King Emperor v. Sibnath Banerji and others . At
page 222 of the report Their Lordships of Judicial Committee in the context of
Section 49 of Government of India Act, 1935 which contains same phraseology
through officers subordinate to him as it is in Article 154, took the views as
follows:
The respondents next contended that, assuming that s. 49 did apply,
this question was
one which involved a special responsibility of the Governor within the meaning
of s. 52, sub-s.
1(a), of the Act of 1935, and therefore required the individual judgment of the
Governor. In Their
Lordships opinion, they are excluded from considering the somewhat debatable
question whether
the present matter does fall within head (a) of s. 52, sub-s. 1, by the
provisions of s.50, sub-s.3, as
the contention of the respondents is that the Governor should have exercised his
individual
judgment. Nor is it necessary for their Lordships to consider whether
individual judgment
excludes the operation of s.49, sub-s. 1. So far as it is relevant in the
present case, their Lordships
are unable to accept a suggestion by counsel for the respondents that the Home
Minister is not an
officer subordinate to the Governor within the meaning of s. 49, sub-s.1, and so
far as the
decision in Emperor v. Hemendra Prasad Ghosh [I.L.R. (1939) 2C. 411] decides
that a minister
is not such an officer their Lordships are unable to agree with it. While a
minister may have
duties to the Legislature, the provisions of s. 51 as to the appointment,
payment and dismissal of
ministers, and s. 59, sub-ss. 3 and 4, of the Act of 1935, and the Business
Rules made by virtue of
s. 59, place beyond doubt that the Home Minister is an officer subordinate to
the Governor.
31. It is clear from Article 164 the Members of the Cabinet including Chief
Minister, after having been appointed they remain in the office during pleasure
of
the Governor, in other words the tenure of office of the Member of the Council
of
Ministers, including the Chief Minister is subjected to pleasure doctrine.
32. If a comparative study is made with corresponding provisions to Article 74
of the Constitution of India it will appear that His Excellency President of
India is
always required in exercise of executive power to act according to the aid and
advice of the Council of Ministers except in cases where His Excellency
President
is conferred with expressed power to act in his own discretion. The provisions
of
Article 74 is set out hereunder:
74. Council of Ministers to aid and advise the President.- (1) There
shall be a
Council of Ministers with the Prime Minister at the head to aid and advise the
President who
shall, in the exercise of his functions, act in accordance with such advice:
Provided that the President may require the Council of Ministers to
reconsider such
advice, either generally or otherwise, and the President shall act in accordance
with the advice
tendered after such reconsideration.
(2) The question whether any, and if so what, advice was tendered by
Ministers to the
President shall not be inquired into in any court.
33. Clause (1) of Article 74 was slightly amended by the Constitution (Forty-
second Amendment) Act, 1976 and thereafter the proviso was inserted by the
Constitution (Forty-fourth Amendment) Act, 1978. Remarkably, the aforesaid
corresponding proviso is not to be found in Article 154 of Constitution of India
in
exercise of power by the Governor in the State.
34. The executive power of His Excellency the President and the Governor was
being debated in past time and again before the Honble Supreme Court. Apex
Court has examined and explained executive power of the two Constitutional
Heads. Some of the decisions of this Court cited by the learned Counsels for
parties are discussed in succeeding paragraphs.
35. In Shamsher Singh v. State of Punjab (supra), Seven Judges Bench of the
Supreme Court, in paragraph 138 of the report, culled out how His Excellency,
the
President and the Governor would exercise their executive power.
Of course, there is some qualitative difference between the position of
the President and
the Governor. The former, under Article 74 has no discretionary powers the
latter too has none,
save in the tiny strips covered by Articles 163(2), 371-A(1)(b) and (d), 371-
A(2)(b) and (f), VI
Schedule para 9(2) (and VI Schedule para 18(3), until omitted recently with
effect from 21-01-
1972). These discretionary powers exist only where expressly spelt out and even
these are not
left to the sweet will of the Governor but are remote-controlled by the Union
Ministry which is
answerable to Parliament for those actions. Again, a minimal area centering
round reports to be
dispatched under Article 356 may not, in the nature of things, be amenable to
ministerial advice.
The practice of sending periodical reports to the Union Government is a
preconstitutional one and
it is doubtful if a Governor could or should report behind the back of his
Ministers. For a
centrally appointed constitutional functionary to keep a dossier on his
Ministers or to report
against them or to take up public stances critical of Government policy settled
by the Cabinet or
to interfere in the administration directly these are unconstitutional faux
pas and run counter to
parliamentary system. In all his constitutional Functions it is the Ministers
who act; only in the
narrow area specifically marked out for discretionary exercise by the
Constitution, he is
untrammeled by the State Ministers acts and advice. Of course, a limited free-
wheeling is
available regarding choice of Chief Minister and dismissal of the Ministry, as
in the English
practice adapted to Indian conditions.
36. This was the law with regard to executive functioning of the Governor
until
the Honble Apex Court had to deal with this issue once again with regard to
method of exercise of executive power in the case of M.P. Special Police
Establishment v. State of M.P. (supra) wherein Shamsher Singh v. State of
Punjab (supra) was noted by the Supreme Court. In this case the Honble
Supreme Court has explained the ratio in Shamsher Singh v. State of Punjab
(supra) taking note of the relevant provisions of the Constitution and
provisions of
Section 197 of Code of Criminal Procedure. It was a case whether Governor
could grant sanction for prosecution of any Member of the Council of Ministers
without the aid and advice of the Cabinet. While dealing with that aspect the
Honble Supreme Court in paragraph 12 ruled, amongst others, as follows:
12. Thus, as rightly pointed out by Mr. Sorabjee, a seven Judges' Bench
of this Court
has already held that the normal rule is that the Governor acts on the aid and
advice of the
Council of Ministers and not independently or contrary to it. But there are
exceptions under
which the Governor can act in his own discretion. Some of the exceptions are as
set out
hereinabove. It is, however, clarified that the exceptions mentioned in the
Judgment are not
exhaustive. It is also recognized that the concept of the Governor acting in his
discretion or
exercising independent judgment is not alien to the Constitution. It is
recognized that there may
be situations where by reason of peril to democracy or democratic principles, an
action may be
compelled which from its nature is not amendable to Ministerial advice. Such a
situation may be
where bias is inherent and/or manifest in the advice of the Council of
Ministers.
In paragraph 19 of the said report, the Apex Court has concluded as
follows:
19. Article 163 has been extracted above. Undoubtedly, in a matter of
grant of sanction
to prosecute the Governor is normally required to act on aid and advice of the
Council of
Ministers and not in his discretion. However, an exception may arise whilst
considering grant of
sanction to prosecute a Chief Minister or a Minister where as a matter of
propriety the Governor
may have to act in his own discretion. Similar would be the situation if the
Council of
Ministers disable itself or disentitles itself.
(emphasis supplied by us)
Thus, it emerges the Supreme Court has explained that even if any advice
is
tendered and the same appears to be a biased one His Excellency Governor is not
bound to accept such advice and can proceed in his own discretion.
37. It can be concluded applying above legal principle, that in a situation
which
arises on account of disability and disentitlement of Council of Ministers, the
Governor may proceed to act in his own discretion. The disability and
disentitlement can be of various types, may be factual, or on account of gross
unconstitutionality, illegality or impropriety. In the case of M.P. Special
Police
Establishment v. State of M.P. (supra) the Honble Supreme Court has
recognized the disability and disentitlement on the ground of propriety and not
on
factual disentitlement. This decision was noted subsequently by the Honble
Supreme Court in the case of State of Gujarat and another v. Justice R.A.
Mehta (Retd.) and others (supra). This case related to appointment of Lokayukta
by the Governor ignoring the aid and advice of the Council of Ministers. The
Supreme Court has reiterated the statement of law made in the case of M.P.
Special Police Establishment v. State of M.P. (supra) and in paragraph 37 of the
said report it was observed:
37. In M.P. Special Police Establishment v. State of M.P, the question that
arose was
whether for the purpose of grant of sanction for the prosecution of Ministers
for offences under
the Prevention of Corruption Act and/or the Penal Code, the Governor, while
granting such
sanction, could exercise his own discretion or act contrary to the advice
rendered to him by the
Council of Ministers. The Court, in this regard, first considered the object and
purpose of the
statutory provisions which are aimed at achieving the prevention and eradication
of acts of
corruption by public functionaries. The Court then also considered the
provisions of Article 163
of the Constitution, and took into consideration with respect to the same a
large number of earlier
judgments of this Court including Samsher Singh and State of Maharashtra v.
Ramdas Shrinivas
Nayak [(1982) 2 SCC 463] and thereafter, came to the conclusion that in a matter
related to the
grant of sanction required to prosecute a public functionary, the Governor is
usually required to
act in accordance with the aid and advice rendered to him by the Council of
Ministers and not
upon his own discretion. However, an exception may arise while considering the
grant of sanction
required to prosecute the Chief Minister, or a Minister, where as a matter of
propriety, the
Governor may have to act upon his own discretion. Similar would be the situation
in a case
where the Council of Ministers disables or disentitles itself from providing
such aid and
advice. Such a conclusion by the Court was found to be necessary for the reason
that the facts
and circumstances of a case involving any of the aforementioned fact situations
may indicate the
possibility of bias on the part of the Chief Minister or the Council of
Ministers. This Court carved
out certain exceptions to the said provision. For instance, where bias is
inherent or apparent,
or, where the decision of the Council of Ministers is wholly irrational, or,
where the Council
of Ministers, because of some incapacity or other situation, is disentitled from
giving such
advice, or, where it refrains from doing so as matter of propriety, or in the
case of a
complete breakdown of democracy.
(emphasis supplied by us)
In paragraph 38 of the report, Dr. Justice Chauhan speaking for the Bench
has ruled as follows.
Article 163(2) of the Constitution provides that it would be permissible for
the Governor to
act without ministerial advice in certain other situations, depending upon the
circumstances
therein, even though they may not specifically be mentioned in the Constitution
as discretionary
functions e.g. the exercise of power under Article 356(1), as no such advice
will be available
from the Council of Ministers, who are responsible for the breakdown of
constitutional
machinery, or where one Ministry has resigned, and the other alternative
Ministry cannot be
formed. Moreover, clause (2) of Article 163 provides that the Governor himself
is the final
authority to decide upon the issue of whether he is required by or under the
Constitution, to act in
his discretion. The Council of Ministers, therefore, would be rendered
incompetent in the event of
there being a difference of opinion with respect to such a question, and such a
decision taken by
the Governor would not be justiciable in any court. There may also be
circumstances where there
are matters with respect to which the Constitution does not specifically require
the Governor to
act in his discretion but the Governor, despite this, may be fully justified to
act so e.g. the Council
of Ministers may advise the Governor to dissolve a House, which may be
detrimental to the
interests of the nation. In such circumstances, the Governor would be justified
in refusing to
accept the advice rendered to him and act in his discretion. There may even be
circumstances
where ministerial advice is not available at all i.e. the decision regarding the
choice of Chief
Minister under Article 164(1) which involves choosing a Chief Minister after a
fresh election, or
in the event of the death or resignation of the Chief Minister, or dismissal of
the Chief Minister
who loses majority in the House and yet refuses to resign or agree to
dissolution. The Governor is
further not required to act on the advice of the Council of Ministers where some
other body has
been referred for the purpose of consultation i.e. Article 192(2) as regards
decisions on questions
related to the disqualification of Members of the State Legislature.
In paragraph 90 of the said report, Their Lordships while quoting
paragraph
12 of the judgment in M.P. Special Police Establishment v. State of M.P.
(supra), came to the conclusion as follows:
90. In fact the five-Judge Bench of this Court in M.P. SPE case (supra) has
explained the
judgment of a seven-Judge Bench in Samsher Singh (supra) observing that in
exceptional
circumstances the Governor may be justified in acting in his discretion and that
the exceptions
enumerated in Samsher Singh are not exhaustive. Thus, the view taken by the
third learned Judge,
in which it has been stated that it had become absolutely essential for the
Governor to exercise
her discretionary powers under Article 163 of the Constitution, must be read in
light of the
abovementioned explanation.
38. Apart from the aforesaid pronouncements it would be very useful to quote
here the text from Constitutional Law of India by H.M. Seervai, Fourth Edition,
which is at page 2081 which reads as follows:
Where a Cabinet resigns and declines to stay in office till another
Cabinet is formed,
or the Presidents rule is imposed, the Governor would be within his rights
under Art. 163(2) in
deciding that in the situation thus created the Constitution required him to
exercise the executive
power vested in him in his discretion, because the Constitution could not have
intended a
paralysis of the executive government. And the Governors decision to act in
his discretion is not
open to question.
39. From the aforesaid authoritative pronouncements and views of jurist, we
find that His Excellency the Governor even sometimes as mentioned in those
judgments, may refuse to act upon the advice given by the Council of Ministers
and in that case it would be fit and proper to act in his own discretion for His
Excellency the Governor is duty bound to preserve, protect and defend the
Constitution and law in furtherance of service and wellbeing of the people
sticking
to his Oath form which is produced hereunder:
I will faithfully execute the office of Governor (or discharge the
functions of the
Governor) of . and will to the best of my ability preserve, protect and defend
the Constitution
and the law and that I will devote myself to the service and well-being of the
people of
(emphasis supplied)
40. The executive power given to His Excellency the Governor and the method
under which it would be exercised are only to honour the oath taken by the
Governor. In other words, the Governor will always be conscious and duty bound
that executive power is exercised to uphold, preserve, protect and defend the
Constitution and law in whatever method namely either acting upon aid and advice
or in certain circumstances in his own discretion without aid and advice or
ignoring aid and advice given by the Council of Ministers. To put it negatively
the
Governor shall not allow any attempt made by the Cabinet to subvert
Constitutional provision or law
41. In view of the aforesaid legal position with regard to the power vis--vis
duty of Governor we now examine this case on fact whether the Governor has
exercised power within the parameters of power as explained by the Apex Court.
42. In this case, it appears from the affidavit and the same is also admitted
position at the time of granting extension to fourth respondent Council of
Ministers was in office technically. Under what circumstances the aforesaid
impugned order was passed first respondent in paragraph 27 of counter affidavit
has explained as follows:
it is a fact that the State Government has to send recommendations to
the Central
Government with full justification and obtain prior approval before issuing
extension orders. The
post of Chief Secretary was to fall vacant on 28.02.2014 and successor was to be
chosen by the
competent authority. However, the competent authority i.e., the Chief Minister
of the State
tendered his resignation on 19.02.2014 and the same was accepted by the Honble
Governor on
21.02.2014. However, he was asked to continue in office along with his
colleagues till alternative
arrangements are made. The then Honble Chief Minister requested the Governor
on 24.02.2014
to relief him from care taker responsibilities also at the earliest. Since
19.2.2014 the Chief
Minister has refused to accept files. When the then Chief Minister was
subsequently contacted
regarding circulation of file on choosing the next Chief Secretary, he again
expressed his inability
to accept the file for decision. Therefore, there was no option for General
Administration
Department but to inform Governors Office and also move file to Governor. The
then Chief
Ministers office had categorically informed that he would not accept any file.
The same was
informed to the Governors Office. The then Chief Minister also addressed a
communication in
writing to the Governor on 28.02.2014 mentioning that it was not appropriate on
his part to take
an important administrative decision like appointment or extension of Chief
Secretary after
tendering resignation. He requested the Governor in writing to take appropriate
decision in the
matter whether to extend the term of CS or choose successor to avoid any
vacuum in the State
administrative set up.
43. Thus, it would appear that in the aforesaid factual scenario, the Cabinet
refused to give any advice. According to us, on reading aforesaid Articles 154
and
164, the Governor has to act when advice is given by Cabinet. But if factually
no
advice is given or Cabinet refused to give advice, it would be situation of
breaking
down Constitutional machinery. In that circumstance the Governor is to exercise
his power directly to bail out such crisis. In this case Office of Chief
Secretary of
the State Government which is most important one, was required to be filled up
either appointing a successor or granting extension to present incumbent, hence
a
decision of the Chief Minister was sought unsuccessfully. Therefore, the
situation
as explained in the affidavit is absolutely appropriate as recognized by the
Supreme Court that warranted exercise of power of Governor without aid and
advice. According to us, the Cabinet, headed by Chief Minister has factually
disabled itself to act for giving advice. As a matter of fact, we find that
advice
was given by the Chief Minister to His Excellency Governor to take decision on
his own. Therefore, if this is treated to be an advice, Governor has acted in
accordance with aid and advice of the Cabinet. Under these circumstances, we
hold that decision of the Governor to fill up the post of Chief Secretary by
granting extension to respondent No.4 cannot be faulted under any provision of
the Constitution or law or otherwise.
44. The next question remains is whether this appointment has been made in
accordance with Rule 16 of All India Services (Death-cum-Retirement Benefits)
Rules. In the counter affidavit in paragraphs 28 and 29 it is stated as under:
28. the Office of Governor on 27.02.2014 with approval of Governor,
addressed a
letter to Home Secretary, Government of India to make such necessary and
appropriate
arrangements from now till new Governments are formed by naming a Chief
Secretary by duly
considering the continuation of present incumbent, Dr. P.K. Mohanty, due to
balance of
convenience which was compelling, in view of formation of new State and General
Elections.
29. The letter sent to Government of India with the approval of Governor
also states:
The present Chief Secretary Shri P.K. Mohanty who had a long stint both
at the State
and Centre has the distinct advantage of not belonging to the State. He is
perceived as a
competent, professional and totally non-controversial officer and above board.
He is thoroughly
well versed with the ongoing bifurcation processes. ..This is a peculiar and
unforeseen situation
and at the same time we cannot afford an impasse.
Further, the letter from Governors office to Government of India
mentions about the
following aspects of public interest:
(i) the State is at critical juncture having to cope up with many a complex
issue
relating to formation of new State.
(ii) Very tight time lines under which these processes have to be completed in
an
objective and impartial manner; and
(iii) The administration of State which already is working under severe
constraints will loose a sense of momentum as well as direction with the
superannuation of the present Chief Secretary.
Thereafter, it is stated that that recommendation made by the Governor was
approved by the Central Government and it is also explained so in the counter
affidavit.
45. Therefore, it is required to be examined by this Court whether decision
making process is in accordance with Rule 16 of the aforesaid Rules or not. We
have no doubt in our mind whatsoever, taking note of fact disclosed in the
counter
that decision has been taken by the Government in accordance with the rules.
46. Now the question is competency. We think that for the purpose of deciding
the matter on issues of Quo Warranto, only legality of decision has to be
examined
by us not comparative merit. We do not find any unconstitutionality or
illegality
in decision making process.
47. One more question agitated is that the fourth respondent is not a fit
person
to be granted extension as adverse remarks were made by the Supreme Court
against him in one case. As has been rightly contended by the learned Advocate
General and supported by Sri D. Prakash Reddy, learned Senior Counsel
appearing for the fourth respondent, the eligibility and fitness is the
exclusive
domain of the Government and it is its subjective satisfaction. The court
cannot
go into this aspect. It is settled position of law Court in writ jurisdiction
can
examine the decision making process, not the decision itself. In the process,
if it is
found decision making process is unconstitutional, illegal, obviously ultimate
decision has to be set aside (See Tata Cellular v. Union of India )
48. Here we find that reasonable view has been taken by the Governor. This
reasonableness cannot be substituted by the Court at the instance of a third
party.
However, it could have been examined in great detail by this Court had the
affected person approached the Court.
49. What is to be considered in an action asking for a writ of quo warranto
has
been well settled by the apex Court time and again, almost from the date of
inception of the Supreme Court, and in all cases the same principle has been
reiterated. Some of the decisions of the Supreme Court cited at the Bar are
discussed hereunder.
50. In case of High Court of Gujarat v. Gujarat Kishan Mazdoor
Panchayat (supra) in paragraph 22 of the report, Justice Sinha, writing the
concurrent judgment, while taking note of the earlier decision of the Supreme
Court in case of R.K. Jain v. Union of India has reiterated the legal position
on
this issue as follows:
The High Court in exercise of its writ jurisdiction in a matter of this
nature is required to
determine at the outset as to whether a case has been made out for issuance of a
writ of certiorari
or a writ of quo warranto. The jurisdiction of the High Court to issue a writ of
quo warranto is a
limited one. While issuing such a writ, the Court merely makes a public
declaration but will not
consider the respective impact of the candidates or other factors which may be
relevant for
issuance of a writ of certiorari.
51. In case of B. Srinivasa Reddy v. Karnataka Urban Water Supply &
Drainage Board Employees Association & Others (supra), in paragraphs 55 and
94, the Supreme Court has laid down that a writ of Quo Warranto does not lie if
the alleged violation is not of a statutory provision.
52. In Hari Bansh Lal v. Sahodar Prasad Mahto and others (supra), the
Apex Court, in paragraph 34 of the report, has reiterated after considering all
the earlier decisions on the same issue, as follows:
From the discussion and analysis, the following principles emerge:
a) Except for a writ of quo warranto, PIL is not maintainable in
service matters.
b) For issuance of a writ of quo warranto, the High Court has to
satisfy that the appointment is contrary to the statutory rules.
c) Suitability or otherwise of a candidate for appointment to a post in
government service is the function of the appointing authority and not of the
court unless the appointment is contrary to statutory provisions/rules.
53. In case of Central Electricity Supply Utility of Odisha v. Dhobei Sahoo
and others (supra) the Supreme Court, in paragraph 18 of the report, while
following the earlier decisions including the decision in R.K. Jains case, has
observed as follows:
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 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.
54. We respectfully following above settled principle of law hold that no Writ
of Quo Wattanto can be issued as we have found in preceding paragraphs no
illegality nor unconstitutionality in issuing order of extension of service of
fourth respondent.
55. The next question is whether it is an action by a private individual in
the guise of public interest litigation. According to us, when very fundamental
question has been raised with regard to executive power of the Governor under
Constitution, we do not wish to lift cloak to find reality as alleged. This
petition cannot be thrown out even if it is found mala fide as there cannot be any
estoppel as against challenge based on constitutional provision even a dreaded criminal
can also challenge the constitutional lapses in decision taking process. The
decisions cited by the learned counsel for the respondents are factually distinguishable.
56. For the foregoing discussion, we dismiss these writ petitions, however,
without any order as to costs.
____________________
K.J. SENGUPTA, CJ.
___________________
SANJAY KUMAR, J.
Date:09.04.2014
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