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Madhya Pradesh High Court · body

2010 DIGILAW 191 (MP)

ANAND SELOT v. CHIEF SECRETARY, GOVT. OF M. P.

2010-02-16

RAJENDRA MENON

body2010
Judgment Rajendra Menon, J. ( 1. ) Seeking a writ of Quo Warranto and challenging posting and the alleged appointment of respondent No.3 on the post of Engineer- in-Chief, in the Department of Public Works, Government of Madhya Pradesh, Bhopal, made vide order-dated 31.3.2009 - Annexure P/9, petitioner has filed this writ petition. ( 2. ) According to the petitioner, he is a Bachelor of Engineer (Civil) having acquired the Degree in the year 1971 and thereafter has passed the M.Tech (Foundation Engineering) and is at present a regularly appointed Engineer-in-Chief in the Department. It is stated that respondent No.3 had passed his Higher Secondary School Certificate Examination; there-after had obtained a Diploma in Mechanical Engineering and a Degree i.e.. BE in Mechanical Engineering, he does not possess a Degree in Civil Engineering. Petitioner claims to be the only Chief Engineer in the Department possessing a Degree in Civil Engineering. According to the petitioner appointment on the post of Engineer-in-Chief and Chief Engineers in the Madhya Pradesh Public Works Department are governed by the M.P. Public Works Department Engineer-in-Chief and Chief Engineers Recruitment and Conditions of Service Rules, 1983 (hereinafter referred to as Rules of 1983). The method of appointment is contained in Rule 4 and the eligibility conditions are prescribed in Rule 6. It is the case of the petitioner that the aforesaid Rules are enacted in exercise of powers conferred on the State Government under Article 309 of the Constitution of India. It is stated that prior to 1999, for appointment to the post of Engineer-in-Chief or Chief Engineer and Chief Engineer (RandD), Degree in Civil Engineering was not an essential requirement. However, vide Gazette Notification dated 20.1.1999 - Annexure P/3, the Rules of 1983 have been amended by inserting sub-rule 1-a to Rule 6(1), whereby possessing a Degree in Civil Engineering is made an essential qualification for promotion/appointment on the post of Engineer-in-Chief, Chief Engineer and Chief Engineer (RandD). ( 3. ) It is the case of the petitioner that when this Rule was amended, respondent No.3 and various other employees of the Department filed petition before this Court being W.P.No. 15576/2003 (Devendra Singh Bhadoria and others Vs. State of Madhya Pradesh) and the said writ petition was dismissed, the amendment to the Rules incorporated vide Annexure P/3 was upheld. ) It is the case of the petitioner that when this Rule was amended, respondent No.3 and various other employees of the Department filed petition before this Court being W.P.No. 15576/2003 (Devendra Singh Bhadoria and others Vs. State of Madhya Pradesh) and the said writ petition was dismissed, the amendment to the Rules incorporated vide Annexure P/3 was upheld. It is the case of the petitioner that in the return and documents filed by the State Government in the said writ petition - W.P.No. 15576/2003, averments were that respondent No.3 does not possess the minimum qualification of being a Graduate in Civil Engineering and, therefore, in the earlier litigation the stand taken was that respondent No.3 is not eligible for appointment on the post of Engineer-in- Chief. Interalia contending that even though it was the stand of the State Government that respondent No.3 does not possess the requisite qualification for appointment on the post of Engineer-in-Chief in accordance to the Rules of 1983, now by the impugned action he is given charge on the post of Engineer-in-Chief by order-dated 31.3.2009,.which is unsustainable. Accordingly, contending that respondent No.3 is not eligible to be appointed on the post of Engineer-in-Chief, he does not possess the requisite qualification to be appointed to the said post, a writ of Quo Warranto is sought for. ( 4. ) Taking me through the documents filed, particularly the return and pleadings made by the State Government in the earlier writ petition with regard to ineligibility of respondent No.3 for seeking appointment on the post of Engineer-in-Chief and further placing reliance on the judgment of the Supreme Court, in the case of The University of Mysore Vs. CD. Govinda Rao and another, AIR 1965 SC 491 , and the principle laid down by the Supreme Court in the case of B. Srinivasa Reddy Vs. Karnataka Urban Water Supply and Drainage Board Employees Association and others, (2006) 11 SCC 731 (II), Smt. Shobha Menon, learned Senior Advocate, emphasized that the grounds on which a writ of Quo Warranto can be issued are available in the present case and, therefore, the appointment of respondent No.3 on the post of Engineer-in-Chief should be quashed. It is stated by her that respondent No.3 is appointed to a public office even though he does not fulfil the requisite statutory criteria laid down for appointment to the said post. It is stated by her that respondent No.3 is appointed to a public office even though he does not fulfil the requisite statutory criteria laid down for appointment to the said post. Accordingly, contending that appointment of respondent No.3 on the post of Engineer-in-Chief is unsustainable, Smt. Shobha Menon, learned Senior Advocate, seeks for interference into the matter. ( 5. ) Referring to the Fundamental Rule 49, instructions issued by the State Government in pursuance thereof on 5.7.1961 and the meaning of the word appointment as defined in Blacks Law Dictionary, Smt. Shobha Menon, learned Senior Advocate, emphasized that even though respondent No.3 is shown to be granted current charge of the post in question, but infact it is an appointment to the post of Engineer-in-Chief, contrary to the statutory provisions and, therefore, liable to be interfered with. Placing reliance on a judgment of the Supreme Court, in the case of Dr. Kashinath G. Jalmi and another Vs. The Speaker and others, AIR 1993 SC 1873 , learned Senior Advocate argued that there is no delay in filing this writ petition and contends that appointment of respondent No.3 be quashed and the reliefs claimed for be granted to the petitioner. Reliefs claimed for in paragraph 7, of the writ petition, read as under: "I. To issue a Writ of Quo Warranto against respondent No. 3; II. To quash the order-dated 31.3.2009/Annexure A-1, issued by State Government to the extent whereby, respondent No.3 has been given the additional charge of Engineer- in-Chief (under the garb of the said order, respondent No.3 is virtually discharging regular functions of Engineer- in-Chief) and declare all the actions/decisions taken by him in the capacity of Engineer-in-Chief null and void; III. To issue appropriate writ, directing respondents No. 1 and 2 for posting the petitioner as Engineer-in-Chief of the Public Works Department, who is the only regular Engineer-in-Chief of the departing possessing the prescribed qualifications according to the Service Rules in vogue; IV. To grant all such consequential and ancillary reliefs as may be deemed just and necessary, in the facts and circumstances of the case and allow the writ petition with cost throughout." ( 6. To grant all such consequential and ancillary reliefs as may be deemed just and necessary, in the facts and circumstances of the case and allow the writ petition with cost throughout." ( 6. ) Referring to the documents and other material available on record and emphasizing that having found and having contended earlier before this Court that respondent No.3 is not eligible to be appointed as Engineer-in-Chief, the State Government now has devised a peculiar method of giving benefit to respondent No.3 even though he is not eligible for appointment to the post in question. Making assertion to the effect that granting current charge or temporary assignment until further orders by the impugned action amounts to appointment to the post in question and, therefore, a writ for Quo Warranto can be issued, learned Senior Advocate seeks for interference into the matter. ( 7. ) Shri Samdarshi Tiwari, learned counsel appearing for the State Government, submits that even though respondent No.3 does not possess the requisite qualification for appointment to the post in accordance to the recruitment rules, it is stated by him that infact this is not an appointment to the post in question It is pointed out by the State Government that there are four posts of Engineer-in- Chief in the Department concerned. Petitioner is already promoted to one of the said post since 17.7.06, he is a regularly appointed Engineer-in-Chief in the Department, where he worked upto 30.1.2008, when he was sent on deputation to the General Administration Department as Chief Technical Examiner (Vig). According to the respondent, one Shri S.K. Dixit was the Engineer-in-Chief, he retired on attaining the age of superannuation in September 2008, he was granted six months extension upto March 2009 and after his retirement on 31.3.2009, as there as no regular person to hold the charge of Engineer-in-Chief on substantive basis, petitioner who was the senior most available Chief Engineer has been appointed in accordance to the policy and circular of the State Government - Annexure R/1 dated 22.7.2000, wherein current charge of the post is granted to respondent No.3. Contending that respondent No.3 is not appointed to the post of Engineer-in-Chief, but is only granted the current charge on administrative consideration being the senior most Chief Engineer in the department, respondents resist the claim of the petitioner. Contending that respondent No.3 is not appointed to the post of Engineer-in-Chief, but is only granted the current charge on administrative consideration being the senior most Chief Engineer in the department, respondents resist the claim of the petitioner. It is pointed out by the respondents that in the department concerned there are four posts of Engineer-in-Chief. After retirement of Shri S.K. Dixit one post is held by the petitioner and there are three vacant posts. There are 14 posts of Chief Engineer and only one post of Chief Engineer is filled up, 13 other posts are lying vacant. It is stated that respondent No.3 is the only Chief Engineer in the Department who can be granted current charge as per the circular - Annexure R/1 dated 22.7.07. It is further pointed out that there are 56 posts of Superintendent Engineer, only 16 posts are filled up and due to various litigations pending before the High Court and the Supreme Court and there being stay with regard to promotion on the post of Superintendent Engineer and Chief Engineer, respondents are unable to fill up the post on regular basis and therefore, as a stop gap arrangement, respondent No.3 is only granted current charge of the post to look after the day-to-day work. Accordingly contending that a writ of Quo Warranto cannot be issued in these circumstances when there is no substantive appointment to the post, respondents resist the claim of the petitioner. ( 8. ) It is further pointed out by the respondents that petitioner has filed this petition even though respondent No.3 was granted charge of the post on 31.3.2009, vide Annexure P/1. He did not challenge the appointment for more than 10 months. It is only in January 2010 i.e... on 6.1.2010, that this writ petition is filed and now when petitioner is to retire on 28.2.2010 i.e... after few days from now, even his posting as Engineer-in-Chief is not possible. Accordingly, contending that petitioner has filed this writ petition directly without representing to the State Government and without claiming his posting as Engineer-in-Chief after 31.3.2009 till filing of this writ petition on 6.1.2010, respondents submit that the discretion of interference by issuing a writ of Quo Warranto be not exercised. ( 9. Accordingly, contending that petitioner has filed this writ petition directly without representing to the State Government and without claiming his posting as Engineer-in-Chief after 31.3.2009 till filing of this writ petition on 6.1.2010, respondents submit that the discretion of interference by issuing a writ of Quo Warranto be not exercised. ( 9. ) Shri R.N. Singh, learned Senior Advocate, appearing for respondent No.3 with Shri Sujoy Paul adopted the arguments put forth by the State Government and emphasized the fact that under law there is no appointment of respondent No.3 on the post of Engineer-in-Chief, it was stated by Shri R.N. Singh, learned Senior Advocate, that respondent No.3 is only granted additional charge on the post of Engineer-in-Chief in the light of the policy and circular - Annexure R/1 dated 22.7.2004. Referring to the conditions stipulated in the order of appointment dated 31.3.2009 - Annexure P/1, impugned in this petition, and putting emphasis on the words additional charge on temporary basis upto further orders alongwith his charge of Chief Engineer indicated in the order, learned Senior Advocate submitted that grant of additional charge, on temporary basis cannot be assailed in a petition seeking a writ of Quo Warranto. Referring to certain observations made by the Supreme Court in paragraph 43 of the judgment rendered in the case of B. Srinivasa Reddy (supra) and further placing reliance on judgments of this Court, in the cases of Sudhir Kumar Mishra and others Vs. Municipal Corporation, Jabalpur and another, 1978 MPLJ 14 ; and, Ashok Jayant Vs. State of MP, 2003(2) MPLJ 147; judgments of the Supreme Court in the cases of State of Haryana Vs. S.M. Sharma and others, 1993 Supp (3) SCC 252; and, N. Kdnnadasan Vs. Ajoy Khose and others, (2009) 7 SCC 1 , Shri R.N. Singh, learned Senior Advocate, emphasized that no case is made out for granting the discretionary relief of Quo Warranto in the facts and circumstances of the case when there is serious administrative difficulties being faced by the State Government, their inability to fill up the posts of Superintending Engineer and Chief Engineer on regular basis, due to pendency of litigation and the right of the petitioner to claim appointment to the said post on the ground that he is to retire within 15 days from now. Accordingly, learned Senior Advocate submits that it is not a fit case where the discretion of issuing a writ of Quo Warranto should be exercised. ( 10. ) Having heard learned counsel for the parties at length and on consideration of the facts that have come on record, it is clear that petitioner is substantively holding the post of Engineer-in-Chief, in the Department concerned. He has been appointed to the said post on 17.2.2006 and worked as Engineer-in-Chief upto 30.1.2008. Thereafter he has been sent on deputation as Chief Technical Examiner (Vig). on which post he is working since 30.1.2008. When the order was passed on 31.3.2009 granting additional charge on the post of Engineer-in-Chief to respondent No.3, there is nothing on record to indicate that petitioner ever objected to or represented to the State Government and staked his claim or sought his posting on the said post of Engineer-in-Chief, which was vacated after retirement of Shri S.K. Dixit in March 2009. Not a single representation or communication is available on record, made by the petitioner between 1.4.2009 till filing of this writ petition on 6.1.2010. It is only by filing this petition on 6.1.2010 that petitioner has made his claim for appointment to the post. When this petition was filed on 6.1.2010, petitioner had hardly two months to go for his retirement, which is 28.2.2010 i.e... less than 15 days from now. That apart, respondents have brought on record various factual aspects of the matter, which have been to be taken note of by this Court. There are four posts of Engineer-in-Chief in the department, one post is held by the petitioner and there are three posts vacant. The feeder post for promotion to the post of Engineer-in-Chief is the post of Chief Engineer. In all there are 14 posts of Chief Engineer and only one post is filled up, which is held by respondent No.3, the remaining 13 posts are lying vacant. The State Government is unable to fill up the 13 posts due to litigations pending in the matter of seniority and promotion from the post of Superintending Engineer to the post of Chief Engineer. There are 56 posts of Superintending Engineer and only 16 posts are filled up. The respondents are unable to fill up the post of Superintending Engineer due to litigation for promotion from Executive Engineer to the post of Superintending Engineer. There are 56 posts of Superintending Engineer and only 16 posts are filled up. The respondents are unable to fill up the post of Superintending Engineer due to litigation for promotion from Executive Engineer to the post of Superintending Engineer. It is, faced with this peculiar situation that when the post of Engineer- in-Chief fell vacant, respondents resorted to the procedure of granting current charge of the post in accordance to the policy and circular - Annexure R/1. The policy and Circular - Annexure R/1 contains a system of granting current charge of a post, higher in grade, when the State Government is unable to fill up that post by regular appointment or promotion as per the Rules. According to this policy, the incumbent to be granted current charge of the higher post should be the senior most person in the department, no criminal case or departmental enquiry should be pending against him, no vigilance case or enquiry by the Lokayukta should be pending and he should have an unblemished service record. The policy further contemplates that in case of granting current charge on the post of Engineer-in- Chief, the senior most Chief Engineer will be considered and granted the charge and the order is to be passed by the State Government. When current charge on the post of Chief Engineer is to be given, then any other Chief Engineer working in the Department should be given charge of the said post and the order is to be passed by the State Government. If this is not possible, then the senior most Superintending Engineer as per the seniority in the State should be given the charge of Chief Engineer, on adhoc and current charge basis. Similarly, a provision is made for granting current charge for the posts of Superintending Engineer, Executive Engineer and Assistant Engineers. It is, therefore, clear that in the present case after retirement of Shri S.K. Dixit when the post of Engineer-in- Chief fell vacant, the only incumbent who could be granted charge on day-to-day basis for manning the said post was respondent No.3 and, therefore, the order- Annexure P/1 was passed and in the order various are stipulated: The order indicates that after retirement of Shri S.K. Dixit, petitioner being the senior most erson is granted "additional charge as a temporary measure until further orders on the post of Engineer-in-Chief. in addition to his substantive post of Chief Engineer". It is, therefore, clear from this order that petitioner is not appointed to the post of Engineer-in-Chief substantively, but only the current charge of the post is granted to him. ( 11. ) The question, therefore, would be as to whether in making such a grant or arrangement of giving charge, the same can be termed as appointment on substantive basis to a post in question and, therefore, interference to be made in a petition seeking issuance of Quo Warranto. ( 12. ) The order - Annexure P/1 clearly indicates that respondent No.3 is not substantively appointed on the post of Engineer-in-Chief. He is only granted current charge i.e... he is officiating as a temporary measure. Normally, the word officiating means and is used to indicate a position when an employee having held one permanent post or substantively holding one post is appointed to a post in higher grade, not permanently or substantively, but as a temporary measure retaining his lien in the substantive post. This is the meaning of the word officiating as has been laid down by the Supreme Court, in the case of Arun Kumar Chatterjee Vs. South Eastern Railway and others, AIR 1985 SC 482 . ( 13. ) In the case of B. Srinivasa Reddy (supra), the dispute before the Supreme Court was with regard to appointment of a person as a Managing Director of the Karnataka Urban Water Supply and Drainage Board contrary to the recruitment rules. In that case the incumbent was appointed on temporary basis until further orders. One of the question, apart from various other questions, that came up for consideration before the Supreme Court in the said case was as to whether appointment of an incumbent until further orders ousts the jurisdiction of the High Court in the matter of issuing a writ of Quo Warranto, even if it is found that the appointment was not in accordance with the provisions of law. The matter has been considered by the Supreme Court and in paragraph 43, it is so observed by the Supreme Court as under: "Writ of Quo Warranto 43. Whether a writ of Quo Warranto lies to challenge an appointment made "until further orders" on the ground that it is not a regular appointment? The matter has been considered by the Supreme Court and in paragraph 43, it is so observed by the Supreme Court as under: "Writ of Quo Warranto 43. Whether a writ of Quo Warranto lies to challenge an appointment made "until further orders" on the ground that it is not a regular appointment? Whether the High Court failed to follow the settled law that a writ of Quo Warranto cannot be issued unless there is a clear violation of law? The order appointing the appallant clearly stated that the appointment is until further orders. The terms and conditions of appointment made it clear that the appointment is temporary and is until further orders. In such a situation, the High Court, in our view, erred in law in issuing a writ of Quo Warranto the rights under Article 226 can be enforced only by an aggrieved person except in the case where the writ prayed for is for Habeas Corpus. (Emphasis supplied) The aforesaid would clearly indicate that the Supreme Court has held that when the appointment is temporary and until further orders, in such a situation the High Court has committed error in issuing a writ of Quo Warranto. If that be the position, then in the present case also the writ of Quo Warranto cannot be issued for the simple reason that the appointment in question is also temporary until further orders. In this regard, if the circular dated 5.7.1961, relied upon by learned Senior Advocate is taken note even though the circular speaks about appointing an officer to hold the current charge, but the second paragraph would indicate that an incumbent appointed to the said post and performing the duty on current charge basis is only to exercise some administrative and financial powers, not the statutory powers which are derived from an Act of the Legislature or Rules and Regulations. The circular in question dated 5.7.1961 reads as under: " In this departments memo referred to above, it was decided that an order appointing an officer to hold the current charge of the duties of another post should, in the absence of any specific directions to the contrary, be deemed to cloth the officer with all the powers vested in the full-fledged incumbent of the post, even though he may not get the full pay of the post. The State Government has since been advised that the statutory functions attached to any designated post can be performed only by a person holding a post and not by one appointed to hold current charge of the duties of the post. An officer appointed to perform the current duties of a post can exercise administrative or financial powers vested in. the full-fledged incumbent such as are granted by administrative orders, office memorandum and like. He cannot however exercise statutory powers, whether those powers are derived direct from an Act of the Legislature or Rules, Regulations or Bye-laws made under any Article of the Constitution (eg. Fundamental Rules, Civil Services Classification, Control and Appeal Rules, Civil Services Regulations, Rules regarding delegation of Financial Powers\ etc)." ( 14. ) Again, in the case of N. Kannadasan (supra), the Supreme Court while considering the principles governing issuance of a writ of Quo Warranto after taking note of all the previous judgments on the subject, has laid down the principles and the scope of judicial review so also the purpose and the nature for which the writ can be issued. The matter has been crystallized in paragraph 131, in the following manner: "131. Concededly. judicial review for the purpose of issuance of writ of quo warranto in a case of this nature would lie: (A) in the event the holder of a public office was not eligible for appointment; (B) processual machinery relating to consultation was not fully complied. The writ of quo warranto proceedings affords a judicial remedy by which any person who holds an independent substantive public office is called upon to show by what right he holds the same so that his title to it may be duly determined and in the event it is found that the holder has no title he would be directed to be removed from the said office by a judicial order. The proceedings not only give a weapon to control the executive from making appointments to public office against law but also tend to protect the public from being deprived of public office to which it has a right. It is indisputably a high prerogative writ which was reserved for the use of the Crown. The proceedings not only give a weapon to control the executive from making appointments to public office against law but also tend to protect the public from being deprived of public office to which it has a right. It is indisputably a high prerogative writ which was reserved for the use of the Crown. The width and ambit of the writ, however, in the course of practice, have widened and it is permissible to pray for issuance of a writ in the nature of quo warranto " ( 15. ) Thereafter, the meaning and definition of Quo Warranto as contained in Corpus Juris Secundum and the Law Lexicon by J.J .S. Wharton, has been explained and from paragraphs 134 onwards various judgments dealing with the question of issuance of Quo Warranto have been considered and finally the question of assessing public policy, interpretation, aim and purpose to be fulfilled in the matter of issuing the aforesaid writ is considered and in paragraph 147, the matter is so dealt with: "147. Reliance in this behalf has been placed on Manohar Nathurao Samarth v. Marotrao, (1979) 4 SCC 83 .wherein it has been held that Regulation 25 of the Life Insurance Corporation of India (Staff) Regulations, 1960 framed under the Life Insurance Corporation Act, 1956 and read with Section 15(g) of the City of Nagpur Corporation Act, 1948 provided for disciplinary action and not disqualificatory,observing: (SCCpp. 98-99,paras 11 and 13-14) "11. ... No ground rooted in public policy compels us to magnify the disciplinary prescription into a disenfranchising taboo. To revere the word to reverse the sense is to do injustice to the art of interpretation. Reed Dickerson quotes a passage from an American case to highlight the guideline: The meaning of some words in a statute may be enlarged or stricted in order to harmonize them with the legislative intent of the entire statute.... It is the spirit... of the statute which should govern over the literal meaning. 13. It is quite conceivable, if the legislature so expresses itself unequivocally, that even in a law dealing with disciplinary control, to enforce electoral disqualifications provided the legislature has competence. The present provision does not go so far. 14. Even assuming that literality in construction has tenability in given circumstances, the doctrinal development in the nature of judicial interpretation takes us to other methods like the teleological. The present provision does not go so far. 14. Even assuming that literality in construction has tenability in given circumstances, the doctrinal development in the nature of judicial interpretation takes us to other methods like the teleological. the textual, the contextual and the functional. The strictly literal may not often be logical if the context indicates a contrary legislative intent. Courts are not victims of verbalism but are agents of the functional success of legislation, given flexibility of meaning, if the law will thereby hit the target intended by the lawmaker. Here the emphasis lies on the function, utility, aim and purpose which the provision has to fulfil. A policy-oriented understanding of a legal provision which does not do violence to the text or the context gains preference as against a narrow reading of the words used. Indeed, this approach is a version of the plain meaning rule, and has judicial sanction. In Mutton v. Phillips, the Supreme Court of Delaware said: (Interpretation) involves far more than picking out dictionary definitions of words or expressions used. Consideration of the context and the setting is indispensable property to ascertain a meaning. In saying that a verbal expression is plain or unambiguous, we mean little more than that we are convinced that virtually anyone competent to understand it, and desiring fairly and impartially to ascertain its signification, would attribute to the expression in its context a meaning such as the one we derive, rather than any other; and would consider any different meaning, by comparison, strained, or far fetched, or unusual, or unlikely. " The abovesaid decision, thus, is an authority that in a given case, the disciplinary prescription may be magnified to a disenfranchising taboo, if any ground rooted in public policy is found therefore. Emphasis has been laid on policy-oriented understanding of a legal profession and not the strict literal meaning which may not often be logical if the context indicates a contrary legislative intent. (Emphasis supplied) ( 16. ) An analysis of the aforesaid principle would clearly indicate that in a given case if the action of the executive is found to be grounded on certain public policy and the decision is taken keeping in view the aforesaid, it is indicative of the fact that a public oriented understanding should be evolved and the strict literal meaning, which may not often be logical, should be avoided. If that be so, then the literal meaning of the word appointed as canvassed by the learned Senior Advocate for the petitioner cannot be given due effect to, instead it has to be considered and understood for the present case in the light of the fact that appointment of respondent No,3 is on current charge basis, he is not independently and substantively appointed to the post in question and the administrative difficulties indicated by the State Government, which compelled them to make the ad-hoc arrangement. ( 17. ) Even though learned Senior Advocate may be right in contending that respondent No.3 does not fulfil the requisite qualification as contemplated under the Recruitment Rules, but when it is an officiating or incharge arrangement, it is not recognition of his right to the post, respondent. No.3 continues to hold his substantive posting in the lower post and is discharging the duty of a higher post essentially as a stop gap arrangement then it may not be in the interest of justice to issue a Writ of Quo Warranto. In this regard the principle laid down by the Supreme Court in the case of Ramakant Shripad Sinai Advalpalkar Vs. Union of India and others, 1991 Supp (2) SCC 733, may also be taken note of, where the arrangement, temporary in nature on officiating basis is explained in the following manner: "5. The arrangements contemplated by this order plainly do not amount to a promotion of the appellant to the post of Treasurer. The distinction between a situation where a Government servant is promoted to a higher post and one where he is merely asked to discharge the duties of the higher post is too clear to require any reiteration. Asking an officer who substantively holds a lower post merely to discharge the duties of a higher post cannot be treated as a promotion. In such a case he does not get the salary of the higher post; but gets only that in service parlance is called a "charge allowance". Such situations are contemplated where exigencies of public service necessitate such arrangements and even consideration of seniority do not enter into it The person continues to hold his Substantive lower post and only discharges the duties of the higher post essentially as a stop-gap arrangement. 6..... In Girja Shankar v. S.D.O.. Such situations are contemplated where exigencies of public service necessitate such arrangements and even consideration of seniority do not enter into it The person continues to hold his Substantive lower post and only discharges the duties of the higher post essentially as a stop-gap arrangement. 6..... In Girja Shankar v. S.D.O.. Harda, AIR 1973 MP 104 (FB) it was held that a "person appointed to be in charge of the current duties of the office" did not hold the rank and, therefore, could not discharge the statutory functions assigned to the post. In the present case appellant cannot, on the strength of the office order dated 30th August 1963, claim to have been promoted to the post of the "Treasurer". The first contention is, therefore, unsubstantial. ( 18. ) Taking into consideration all these principles governing officiating appointments, it has to be held that appointment of respondent No.3 is only a stop gap arrangement on officiating basis, he does not get any right to hold the post of Engineer-in-Chief and is not entitled to discharge any statutory functions of the said post also. As respondent No.3 is not substantively holding the post of Engineer- in-Chief, petitioner cannot question the said appointment, when it is not a substantive appointment to the post and seek a Writ of Quo Warranto. ( 19. ) The Allahabad High Court in the case of Ram Shiromani Vs. State of UP and others, decided by a Division Bench on 15.2.2008, after considering the principles of law in this regard, laid down in the case of B. Srinivasa Reddy (supra), has dealt with the matter in the following manner: "8. ... We are of the view that a writ in the nature of quo warranto cannot be granted to the petitioner as respondent No.3 is holding the post of Managing Director on officiating capacity in stop-gap arrangement on the basis of an order dated 31.3.2007 issued by the State Government, which is the competent authority." A copy of the said judgment rendered by the Division Bench of the Allahabad High Court has been produced by Shri R.N. Singh, learned Senior Advocate, for perusal of this Court. ( 20. ( 20. ) If the judgment of the Supreme Court in the case of B. Srinivasa Reddy (supra) and N. Kannadasan (supra) and the Allahabad High Court alongwith the powers to be exercised by an incumbent holding post on current charge basis are evaluated in the light of the facts that have come on record, it is clear that a writ of Quo Warranto would not be maintainable in the case of such an appointment. ( 21. ) Apart from the aforesaid, the case in hand can be evaluated from a different aspect. The principles for issuing a writ of Quo Warranto is laid down in various cases. In the case of University of Mysore (supra), relied upon by learned counsel for the parties, the matter is so dealt with in paragraph 7: " ..... Broadly stated, the quo warranto proceeding affords a judicial enquiry in which any person holding an independent substantive public office, or franchise, or liberty, is called upon to show by what right he holds the said office, franchise or liberty; if the inquiry leads to the finding that the holder of the office has no valid title to it, the issue of the writ of quo warranto ousts him from that office. In other words, the procedure of quo warranto confers jurisdiction and authority on the judiciary to control executive action in the matter of making appointments to public offices against the relevant statutory provisions; rt also protects a citizen from being deprived of public office to which he may have a right.........." (Emphasis supplied) The question of granting a writ of Quo Warranto is considered in the case of B. Srinivasa Reddy (supra) and again in the case of TV. Kannadasan (supra). If the principles governing the issuance of a writ of Quo Warranto in the light of the aforesaid judgments are evaluated, it would be seen that a writ of Quo Warranto is an extra ordinary remedy, which the law does not permit to be used with liberal hands. It is to be used sparingly, with utmost care, caution and circumspection. It is not a writ of course, it is largely at the discretion of the Court either to grant it or refuse it considering the facts and circumstances of a particular case. It is to be used sparingly, with utmost care, caution and circumspection. It is not a writ of course, it is largely at the discretion of the Court either to grant it or refuse it considering the facts and circumstances of a particular case. The Court is required to consider the motive, conduct of the applicant; delay and latches if any, and the public interest likely to be served or damaged in granting or refusing the writ. If such grant results in confusion, disorder or anarchy in the matter of administration, the relief should not be granted. These are some of the broad principles that emerge if the principles laid down in the matter of granting Quo Warranto is taken note of. That apart, the grant is to be made when appointment is made to a post, public in nature, statutory in character so also substantive in nature. In the present case, there is no substantive appointment on the post of Engineer-in-Chief. As the grant of this writ is a discretionary relief, the facts of the case have to be evaluated and balance maintained with, in relation to public interest and other factors that are available on record. ( 22. ) The vacancy position and the peculiar situation exiting in the Department and the administrative difficulties being faced by the State Government is highlighted in the return. It is an admitted position that apart from the petitioner, there is no other incumbent available in the department, who can be substantively and permanently appointed to the post. Petitioner is to retire within a period of less than 15 days from now and, therefore, the situation is that there is nobody in the department who can be substantively and regularly posted and appointed to the post in accordance to the Recruitment Rules. It is to overcome such situations that the Circular - Annexure R/1 is issued on 22.7.2004 and a provision is made for granting charge to a senior most person. As per this Circular, it is only respondent No.3, who can be granted the charge. If charge is not granted to respondent No.3, the day-to-day working with regard to various administrative and financial matters in the Department may result in being disrupted and dislocated. As per this Circular, it is only respondent No.3, who can be granted the charge. If charge is not granted to respondent No.3, the day-to-day working with regard to various administrative and financial matters in the Department may result in being disrupted and dislocated. It is, therefore, the administrative exigency, which is to be co-related to public interest, which has to be taken note of in evaluating the question of exercising discretion and interfering with the power exercised by the State Government, in granting current charge on officiating basis to respondent No.3. If the principles governing grant of Quo Warranto and the discretion to be exercised in this matter are evaluated in the peculiar facts and circumstances, I am of the considered view that it is not a fit case where discretion should be exercised in the matter. ( 23. ) In case petitioner was really interested in holding the post, he should have immediately challenged the action when the order was passed more than 10 months back, on 31.3.2009. Silence on the part of the petitioner for more than 10 months in agitating the matter disentitles him from claiming the relief now, at the fag end of his career, when he has hardly 15 days left for his retirement on superannuation. ( 24. ) In that view of the matter, considering the totality of the facts and circumstances of the case and the material available on record, this Court does not find any ground for interference in the matter. ( 25. ) Accordingly, the petition is dismissed without any order so as to costs. Petition dismissed.