Devi Prasad Shukla v. State Of Uttar Pradesh — 1988 DIGILAW 1116 (ALL)

JUDGMENT : K. C. Agarwal, J. 1. This petition under Article 226 of the Constitution was filed by Devi Prasad Shukla and Dinesh Kumar Pandey on 7-9-1987 for a writ of quo warranto asking Dr. S. R. Singh, Principal, Moti Lai Nehru Medical College, Allahabad, to show as to under what authority he was continuing as Principal of the said Medical College after attaining the age of superannuation on 31-7-1987. The petitioners alleged that Dr. S. R. Singh, Respondent no. 2, was an usurper, having not been re-appointed as Principal by the State of U. P, on the post aforesaid. 2. A counter-affidavit was filed by Girdhari Lal Saxena, Section Officer in Medical Section-1, U. P. Civil Secretariat, Lucknow, stating that under Fundamental Rule 56 (a) of the Financial Hand Book, Volume II, Parts II to IV, as amended by "The Uttar Pradesh Fundamental (First Amendment) Rules, 1987", as notified by Notification No. G-2-496/X-534 (19)-57, dated July 28, 1987 Dr. S. R. Singh, respondent no. 2, was retained as Principal by an order of the State Government dated 31-7-1987. The Government Order is annexed as Annexure CA-I to the counter-affidavit. The relevant portion of this order reads : * * * * (Hindi portion omitted-Editor) Fundamental Rule 56 (a) of Financial Hand Book Volume II, Parts II to IV, is being reproduced as below : "56 (a)-Except as otherwise provided in other clauses of this rule, every Government servant shall retire from service on the afternoon of the last day of the month in which he attains the age of fifty-eight years. He may be retained in service after the date of retirement on superannuation, with the sanction of the Government, on public grounds, which must be recorded in writing, but he must not be retained after the age of 60 years except in very special circumstances." 3. Under the provision noted above, on public grounds the State Government is empowered to retain a government servant even after attaining the age of 58 years, which is the retirement age of government servants of the State of U. P. Fundamental Rule 56 (a) requires that the grounds "must be recorded in writing :" 4. Under the provision noted above, on public grounds the State Government is empowered to retain a government servant even after attaining the age of 58 years, which is the retirement age of government servants of the State of U. P. Fundamental Rule 56 (a) requires that the grounds "must be recorded in writing :" 4. In paragraph-8 (ii) of the counter-affidavit it is stated that : "The State Government had taken a policy decision that a member of teaching staff of the Medical College could be considered for grant of extension in service upto the age of 60 years if his work and conduct in service career has been such to justify grant of extension in public interest." Upon the aforesaid counter-affidavit being filed, the petitioners applied for amendment of the writ petition and challenged the validity of the notification empowering the State to retain a government servant after the age of superannuation. In the amendment application, the petitioners also referred to the Government Order dated 22-7-1987 laying down the guidelines which have to be taken into consideration before passing the retention order. The allegations were that by giving a go-bye to the guidelines and by taking an arbitrary decision on irrelevant grounds, the State Government granted extension to Dr. S. R. Singh. 5. On 13-5-1988, another counter-affidavit of Girdhari Lal Saxena, Section Officer in Medical Section-1, was filed reiterating that the State Government had taken a policy decision to grant extension in service to a member of teaching staff of the State Medical College upto the age of 60 years. To these counter- affidavits, rejoinder was filed. 6. What happened thereafter is interesting. A joint application was filed on behalf of the petitioners for withdrawal of the writ petition. Immediately thereafter, Dinesh Kumar Pandey, petitioner no. 2, filed another application along with an affidavit that he had been coerced by Dr. S. R. Singh to sign the application, affidavit and a vakalatnama for withdrawal of the above writ petition. Consequently, he prayed for dismissal of the withdrawal application on 12-10-1988. Before this application, on 31-8-1988 an application had been filed by Dr. B. Dutt and Masuria Deen Dubey for being impleaded as petitioners nos. 3 and 4 to the writ petition. Lengthy arguments were addressed to us about the locus standi of these persons to file a writ against respondent no. Before this application, on 31-8-1988 an application had been filed by Dr. B. Dutt and Masuria Deen Dubey for being impleaded as petitioners nos. 3 and 4 to the writ petition. Lengthy arguments were addressed to us about the locus standi of these persons to file a writ against respondent no. 2 challenging his entitlement to continue on the post of principal after the age of 58 years. Sri A. Kumar, counsel for the petitioners, urged that the present writ was a public interest litigation, and that the allegations of personal bias made by respondent no. 2 against the petitioners were false. He suomitted that a public interest litigation is different from adversorial and, as such, consideration in this writ petition are different. He urged, in the alternative, that the petitioners are not fighting for their gain, but for the vendication of justice. 7. It was contended by the counsel for the other side on the basis of allegations made in the counter-affidavits of this case as well as writ petition No. 16856 of 1988, Rahul Sripat v. State of U. P., that the writ petition is the cause of personal bias of the persons who have filed the same against Dr. S. R. Singh. 8. Writ of quo warranto is not a writ of right in the sense that the court is bound to grant the relief prayed for. Still if the validity of the appointment of a claim to an office by a person is challenged by a writ application and the court is satisfied that the petition has been filed bona fide, i. e., without improper motives and without delay, it has a right to investigate the matter and decide on the validity of appointment, notwithstanding that the applicant is not a rival applicant to the office and in that sense has no personal interest in the issue of a writ.-See Sivramakrishan v. Arumuga Mudaliar, AIR 1967 Madras 17. Quo warranto is not a matter of right. The court has discretion to grant or refuse it according to the facts and circumstances of the case. If it is vexatious and has been filed for vendication of personal prejudice, writ can be refused. In the instant case, what has been suggested in the counter-affidavit of Dr. Quo warranto is not a matter of right. The court has discretion to grant or refuse it according to the facts and circumstances of the case. If it is vexatious and has been filed for vendication of personal prejudice, writ can be refused. In the instant case, what has been suggested in the counter-affidavit of Dr. S. R. Singh and in the arguments advanced by Sri A. P. Singh was that persons filing the writs had alternative motives as their sole interest "was to oust Dr. S. R. Singh from the office. They have formed a click in the Medical College and in order to feed that click that the petitions challenging the retention of Dr. S. R. Singh were filed. In the counter-affidavit, names of those who are behind the petitions have also been given. 9. In our opinion, two things are required to be seen for issuing a writ of quo warranto. First that the person applying need personally be interested in the result and second that it was not mala fide. Counsel for the respondents could not satisfy us that the petition was mala fide. Personal interest for vendication of the individual right was not a necessary ingredient or a necessary requirement for obtaining a writ of quo warranto. The writ petition is not liable to be dismissed on the grounds suggested by the respondents' counsel. 10. The pre conditions for issue of quo warranto are that : (i) The office was created by statute or any provision having the force of law, (ii) the duties of the office must be of a public nature, and (iii) the office must be permanent in the sense of being not terminable at pleasure and the person proceeded against has been in actual possession and user of the office in question. Sri A. P. Singh urged that since the office of the Principal, Medical College, had not been created by any statute, or any provision having the force of law, no writ could be issued. The submission has no merits. The Medical College, Allahabad, is affiliated with the Allahabad University, which has been created by the U. P. State Universities Act. The duties and functions, which are discharged by the Principal of the Medical College, are of a public nature. He is not performing any private duty. The submission has no merits. The Medical College, Allahabad, is affiliated with the Allahabad University, which has been created by the U. P. State Universities Act. The duties and functions, which are discharged by the Principal of the Medical College, are of a public nature. He is not performing any private duty. The requirement of the office being permanent is to be understood in the sense that it is not terminable at pleasure by any authority. The Principal can be removed from office only in accordance with the provisions of the Statute. Consequently, the submission of the respondents' counsel that it was temporary in character, is not acceptable, and the writ could lie. 11. Coming to the merits, the contention of the petitioners' counsel was that as the retention order does not record grounds in writing, as required by Fundamental Rules 56 (a), the order was invalid. We have quoted the provision in the beginning of this judgment. Under Fundamental Rule 56 (a), the State Government has to record the grounds for retention in writing. The requirement of recording reasons is a must. The use of the expression 'must' indicates that the giving of reasons is mandatory. This word, like the word 'shall', is primarily of mandatory effect. The legislature has advisedly done this. The rule has not given discretion to the State not to do so. If it would had so intended, instead of 'must', it would have used 'may', which is antithesis to 'must'. Using of the word 'may' is merely directory. The word 'may' is used in the permissive sense. In that event, even if the State Government would not have recorded reasons, the things would have been different. 12. Fundamental Rule 56 (a) is statutory being framed under Article 309 (proviso). It is legislative in character. The Court ascertains the intent of the rule making authority. The endeavour is to gather the true reason and spirit behind the provision. The Supreme Court in Atma Ram v. Ishwar Singh, AIR 1988 SC 2031 has quoted Blackstone who tells us that the fairest and most rational method to interpret the will of the legislature is by exploring his intentions at the time when the law was made, by signs most natural and probable. The Supreme Court in Atma Ram v. Ishwar Singh, AIR 1988 SC 2031 has quoted Blackstone who tells us that the fairest and most rational method to interpret the will of the legislature is by exploring his intentions at the time when the law was made, by signs most natural and probable. After referring to a number of decisions, including that given in Popatlal Shah v. State of Madras, AIR 1953 SC 274 , the Supreme Court held : "We are clearly of opinion that having regard to the language we must find the reason and the spirit of the law." Context of a statute is material, as said by the Supreme Court in Nyadar Singh v. Union of India, AIR 1988 SC 1979 (1980), and Osmania University Teachers Association v. State of Andhra Pradesh, AIR 1987 SC 2034 . 13. If we take into account the prime object of construction of laws to ascertain the purpose of amendment brought about in Fundamental Rules 56 (a), we find that the provision in general is that the age of superannuation shall be 58 years. Departure envisaged in specified circumstances are only those cases where on public grounds the State Government for reasons to be recorded in writing makes an order of retention of the government servant after attaining the age of 58 years. The requirement of giving reasons is too obvious to find a mention in our judgment, the same being to avert abuse or arbitrariness, discrimination, non-application of mind, or based on extraneous considerations or capricious. 14. It is no doubt true that if the reasons have been given, the Court will have no authority to sit in appeal and it will attach importance to the assessment/decision of the State Government, but total absence of a statement of public grounds is no compliance to the rule. IT seems that public grounds have to be spelled out in the order. If the order merely says on public grounds, that is simply reproduction of the rule and does not help. The order dated 31-7-1987 does not spell out the public grounds. The order, therefore, suffers from the said defect. IT seems that public grounds have to be spelled out in the order. If the order merely says on public grounds, that is simply reproduction of the rule and does not help. The order dated 31-7-1987 does not spell out the public grounds. The order, therefore, suffers from the said defect. Even otherwise, in the counter-affidavit filed on behalf of the State, the version is that the State Government had taken a policy decision to grant extension in service to a member of teaching staff of State Medical College upto the age of 60 years if his work and conduct in service career has been such as to justify grant of this facility. The affidavit further says : "After duly considering the service records and the recommendations of the Director, Medical Education and Training, U. P., the State Government granted extension in service to the Respondent no. 2 for a period of two years with effect from 1-8-1987. The office of the Principal is an academice institution and, thus, cannot be said to be purely administrative. He has to look after the academic matters of the institution as well." From the above, and the affidavit of Sri K. K. Bakshi, Secretary to the Government of U. P., Medical Health and Family Welfare Department, it appears that in the matter of teachers of the State Medical Colleges, the Government has taken a policy decision of granting extension upto two years. The rule envisages scrutiny into individual cases and not that 60' be substituted in place of 58'. What is curious to note is that the order dated 31-7-1987 does not even state that the work and conduct of Dr. S. R. Singh was such as to justify his retention in service after 58 years in public interest. 15. Quo warranto is only information as to the authority of the respondent to hold a substantive public office. What is the scope of enquiry in a motion for quo warranto has been indicated by the Supreme Court in The University of Mysore v. C. D. Govinda Rao, AIR 1965 SC 491 . It says : .....the procedure of quo warranto confers jurisdiction and authority on the judiciary to control executive action in the matter of making appointments to public offices against the relevant statutory provisions, it also protects a citizen from being deprived of public office to which he may have a right. It says : .....the procedure of quo warranto confers jurisdiction and authority on the judiciary to control executive action in the matter of making appointments to public offices against the relevant statutory provisions, it also protects a citizen from being deprived of public office to which he may have a right. It would thus be seen that if these proceedings are adopted subject to the conditions recognised in that behalf, they tend to protect the public from usurpers of public office ; in some cases, persons not entitled to public office may be allowed to occupy them and to continue to hold them as a result of the connivance of the executive or with its active help, and in such cases, if the jurisdiction of the Courts to issue writ of quo warranto is properly invoked, the usurper can be ousted and the person entitled to the post allowed to occupy it. It is thus clear that before a citizen can claim a writ of quo warranto he must satisfy the Court, inter-alia, that the office in question is a public office and is held by a usurper without legal authority, and that necessarily leads to the enquiry as to whether the appointment of the said alleged usurper has been made in accordance with law or not.........In fact, in issuing the writ, the High Court has made certain observations which show that the High Court applied tests which would legitimately be applied in the case of writs of certiorari. In the judgment, it has been observed that the error in this case is undoubtedly a manifest error. That is a consideration which is more germane and relevant in a procedure for a writ of certiorari. What the High Court should have considered is whether the appointment made by the Chancellor had contravened any statutory or binding rule or ordinance........." 16. In P. L. Lakhanpal v. A. N. Ray, AIR 1975 Delhi 66 a Full Bench dealt with the challenge to the appointment of Justice Ray as Chief Justice, and dismissed the writ petition finding that discretion did not require the High Court to interfere Halsbury's Laws of England, Third Edition, Volume II, Para 281, contains a summary of decisions of English Courts with regard to the discretion of the Court in issuing a writ of quo warranto. It is said- "An information in the nature of a quo warranto was not issued, and an injunction in lieu thereof will not be granted, as a matter of course It is in the discretion of the Court to refuse or grant it ac:ording to the facts and circumstances of the case.......the Court might in its discretion decline to grant a quo warranto information where it would be vexatious to do so, or where an information would be futile in its results, or where there was an alternative remedy which was equally appropriate and effective." The leading case on the subject of quo warranto from which many of the statements were derived is R. v. Speyer, (1916) 1 KB 595. 17. After approving the statement at page 145 of Halsbury's Laws of England, Third Edition, Volume II, the Supreme Court said in The University of Mysore v. C. D. Govinda Rao (supra), that the court has to be satisfied whether the appointment of the alleged usurper has been made in accordance with law or not. 18. In the instant case, the defect which we have found in the retention order issued by the State is that it does not record reasons and does not give the grounds in writing. For the purpose of knowing whether grounds were recorded on the file, we gave an order to the State Government to produce the following records : (i) The notes regarding the extension of two years in service granted to Dr. S R. Singh as Principal, M.L.N. Medical College, Alld. after superannuation age of 58 years. (ii) The notes pertaining to the policy decision regarding granting extension in service to the teachers as well as Principals of State Medical Colleges after attaining the age of 58 years i. e. the superannuation age. (iii) Rules of business framed under Article 166 of the Constitution of India. It is unfortunate that the State Government has claimed privilege by filing an affidavit of the Secretary, Medical Department. Under the law, it was necessary for the State Government to have filed the documents along with an application and affidavit claiming privilege, but that has not been done The course adopted by the State Government is highly regrettable. After a perusal of the papers, the Court could decide whether the plea of privilege was to be upheld. Under the law, it was necessary for the State Government to have filed the documents along with an application and affidavit claiming privilege, but that has not been done The course adopted by the State Government is highly regrettable. After a perusal of the papers, the Court could decide whether the plea of privilege was to be upheld. May be that on the ground of Article 163 (3) of the Constitution, privilege can be claimed for the decision of the Cabinet, but not for the nothings. It has been so held in State of Madhya Pradesh v. Nand Lai, AIR 1987 SC 215 More than often, such a stand, as taken in this case, by the State claiming privilege is misconceived and ill-advised. No State secret if divulged would have been affected. However, we do not wish to pursue that controversy and decide the fate of the writ petition on that basis. 19. AT this place we wish to note that a part of the record was produced in Court without objection being taken. This apart, in the counter-affidavits, the State Government have themselves disclosed the decision regarding public policy. 20. A number of authorities have been cited by the petitioners' counsel in support of his submission that the consequence of non intimation of grounds in the order results in invalidating the same. We need not mention those cases as in our opinion all of them are besides the controversy. In those cases the person aggrieved by non-disclosure challenged the validity and the same was upheld for the simple reason that in the absence of reasons his rights had been seriously prejudiced. But, that is not the position in the present case. Dr. S. R. Singh did not suffer on account of non-intimation of reasons or the grounds. He was concerned only with the retention order passed by the State Government under Fundamental Rule 56 (a). That was done. In a writ of quo warranto the court is entitled to find as to under what authority is the person holding the office. The procedure of quo warranto confers jurisdiction and authority on the judiciary to control executive action in the matter of making appointments to public offices against the relevant statutory provisions, it also protects a citizen from being deprived of public office to which he may have a right. It protects the public from usurpers of public office. The procedure of quo warranto confers jurisdiction and authority on the judiciary to control executive action in the matter of making appointments to public offices against the relevant statutory provisions, it also protects a citizen from being deprived of public office to which he may have a right. It protects the public from usurpers of public office. The person holding the same is called upon to show the authority under which he is occupying the same. 21. As already said, when the application challenges the validity of an appointment to a public office, it is maintainable at the instance of any person, whether any fundamental or other legal right of such person has been infringed or not, provided he is not a man of straw, set up by some one else. Quo warranto is a discretionary relief and is not granted as a matter of course. If in a case the Court is satisfied that the appointment or re- appointment of a person was not made in accordance with the provisions of the Statute, it can interfere inasmuch as in that event statutory provision would be defeated by the executive by having appointed a disqualified person. 22. In the instant case, the lacuna pointed out in the order passed under Fundamental Rule 56 (a) was that it did not record reasons which was necessary under the said rule. The question would be as to what is the effect of having not recorded the reasons on the retention of Dr. S. R. Singh as Principal after the age of superannuation.. Counsel for the State Sri V. S. Upadhyay urged that it was not incumbent on the part of the State to have given the reasons in the order impugned by means of this petition as there is presumption that the State acts in accordance with law and, therefore, it should be deemed that the reasons must have been recorded for retaining respondent no. 2 Dr. S. R. Singh. Sri A. P. Singh also made submission to that effect. He also contended that omission to communicate reasons to respondent 2 or to mention them in the impugned order was a mere irregularity and could not invalidate the order and, as such, no writ could issue. 23. Strenuous arguments were made before us that there was no duty to state reasons for administrative decisions. He also contended that omission to communicate reasons to respondent 2 or to mention them in the impugned order was a mere irregularity and could not invalidate the order and, as such, no writ could issue. 23. Strenuous arguments were made before us that there was no duty to state reasons for administrative decisions. Fundamental Rule 56 (a) lays down the requirement of giving the reasons. ft cannot, therefore, be said that giving of reasons in the order was not necessary. To us it appears that omission to do so did not invalidate the retention order. Apart from Fundamental Rule 56 (a), the giving of reasons is one of the fundamentals of good administration. However, the defect in the order has to be considered in the light of the facts of the present case in which quo warranto has been claimed by the petitioners against Dr. S. R. Singh who has been retained by the same. The cases of writ of mandamus and certiorari brought at the instance of a person who is aggrieved by an order that is passed in defiance of the requirement of giving reasons do not stand on the same footing as a writ of quo warranto. In such a case the Court has to be satisfied whether the person holding the office is a usurper. Mere omission to give the reasons would not make him a usurper where the order making reappointment has been made by a competent authority. The present is not a case of lack of competence on the part of the State Government to make the retention order. In the background of the present case, the defect is only procedural which does not go to the root of the jurisdiction of the State Government. Consequently, the retention of Dr. S. R. Singh would not be invalid on that ground. 24. To illustrate the point, we may mention that in a writ petition even the person called upon to show whether he possesses the necessary qualifications prescribed for that office can also be asked whether the authority which he produces is by the person who is authorised to make appointment to the office which he holds. 24. To illustrate the point, we may mention that in a writ petition even the person called upon to show whether he possesses the necessary qualifications prescribed for that office can also be asked whether the authority which he produces is by the person who is authorised to make appointment to the office which he holds. By showing that he possesses the, necessary qualifications by demonstrating that there is no legal impediment in the way of his appointment to the office and by showing that the person who issued the appointment or warrant of his appointment is authorised by law to do so, no writ of quo warranto will be issued against him. If all these things are demonstrated by him in his favour, he cannot be said to be a usurper. In P. L. Lakhanpal v. A. N. Ray (supra) the Delhi High Court had an occasion to consider whether it was the obligation of the alleged usurper to demonstrate and prove the bonafides of the appointing authority. The High Court held that the malafides of the appointing authority was wholly irrelevant in a matter relating to a quo warranto. For the view taken, the High Court relied upon a decision in Ramchandran v. Alagiriswami, AIR 1961 Mad. 450 . Jagadisan, J., stated the law in this case by saying :- " I am of opinion that questions of alleged motive and purpose supposed to constitute the background for the order of appointment of the first respondent are wholly foreign to the scope of the present proceedings before us. As observed by Lord Denning in his Hamlyn Lectures on Freedom under the Law : 'No one can suppose that the executive will never be guilty of the sins that are common to all of us. You may be sure that they will sometimes do things which they ought not to do ; and will not do things that they ought to do'. Acts of favouritism by way of backdoor appointment and deviations from fair play and justice are not uncommon features in the administration of any Government, in any country. But the jurisdiction, of the courts is not the role of a sentinel on the qui vive to guard against the vagaries of the State executive. Acts of favouritism by way of backdoor appointment and deviations from fair play and justice are not uncommon features in the administration of any Government, in any country. But the jurisdiction, of the courts is not the role of a sentinel on the qui vive to guard against the vagaries of the State executive. Prerogative writs which this court can issue under the terms of Article 226 of the Constitution have got their strict limits which have to be adhered to " 25. IN Volume 74, Corpus Juris Secundum at page 265, the law stated was :- " So, also where respondent's title rests on an appointment, the court will not go back of the power of appointment to inquire into.........his reasons and motives for making the appointment........." 26. TO us it appears that the defect of not giving the reasons in the facts and circumstances of the present case amounted only to an irregularity, and, as such, Dr. S. R. Singh could not be said to be a usurper, as against whom a writ of quo warranto could issue. Reliance had been placed by the petitioners counsel on a decision of a Division Bench of this Court in B. P. Mishra v. State of U. P., W.P. No. 3702 of 1987 decided on 21-5-1988, where the extension was quashed. That interpreted the Government Orders and found the extension to be impermissible, being beyond the same. In the instant case, although arguments were made by the petitioner's counsel about the retention order being against the Government Orders issued in 1980 and 1987, since the fate of the writ turns not on the Government Order but on Fundamental Rule 56 (a), we need not address ourselves either with the applicability or correctness of the decision, stated above. ' 27. Consequently, the writ petition is dismissed. No order as to costs. Petition dismissed.