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2012 DIGILAW 4584 (MAD)

Capt R. P. Singh v. Chairman Chennai Port Trust

2012-11-05

ARUNA JAGADEESAN, ELIPE DHARMA RAO

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Judgment :- Elipe Dharma Rao, J. Undaunted by the order of dismissal dated 25.01.2012 passed by the learned single Judge in W.P. No. 23122 of 2011, the writ petitioner has preferred the present Writ Appeal. 2. The challenge in the Writ Petition is to the appointment of the third respondent, who is presently functioning as the Dredging Superintendent at Chennai Port Trust. The petitioner also sought for a declaration to declare that the post of Dredging Superintendent, Chennai Port Trust, as vacant. 3. Before the learned single Judge, the grievance of the petitioner, who is working as Dredger Master on contract basis with the Chennai Port Trust, was that according to the rules, the post of Dredging Superintendent is a promotional post for which promotion has to be made by way of selection. It is his case that the feeder cadre for the post of Dredging Superintendent is Senior Dredging Master having the Certificate of Competency as Master Foreign Going with at least seven years experience. 4. The learned single Judge, after hearing the learned counsel for the parties and on consideration of the materials available on record and also relying on Section 80 of the Merchant Shipping Act, 1958 dismissed the Writ Petition as of no merits holding that the Certificate issued in favour of the third respondent is to be treated as equivalent to the Certificate of Competence, being Certificate issued under Section 80. Aggrieved by the same, the writ appeal has been preferred by the writ petitioner. 5. According to the learned counsel for the appellant, the third respondent was not qualified to be appointed as a Dredging Superintendent of Chennai Port Trust as he is not having the required qualification holding the Certificate of Competency as Master Foreign Going whereas he was holding only Certificate of Service. He further contended that the Certificate of Service cannot be equated with Certificate of Competency, which requires several tests to be written and practical examinations to be undergone. As such, according to the learned counsel, the continuance in office by the third respondent is without authority and the learned Judge, without considering these aspect, has passed an order dismissing the writ petition, which, according to him, requires interference of this Court. 6. As such, according to the learned counsel, the continuance in office by the third respondent is without authority and the learned Judge, without considering these aspect, has passed an order dismissing the writ petition, which, according to him, requires interference of this Court. 6. Learned Senior Counsel appearing for the third respondent submitted that the third respondent is competent to be a Dredging Superintendent and that the Certificate of Service is equivalent to that of a Certificate of Competency. He further submitted that Certificate of Competency is required only if and when the person is on a Foreign Going ship and right from the date of joining in the service of the Chennai Port Trust, the third respondent never left the port area and never ventured beyond the territorial waters of India. According to him, the order of the learned Judge requires no interference. 7. Heard the learned counsel appearing for the appellant and the learned Standing Counsel representing the second respondent as well as the learned Senior Counsel appearing for the third respondent and perused the materials on record. 8. From the materials available on record, it is seen that pursuant to an advertisement calling for filling up the post of Dredging Superintendent in the Chennai Port Trust, the third respondent, who retired from Indian Navy, was appointed as Dredging Superintendent, through selection process, in May 1998 and he has been working in the said post for the past 13 years. Challenging the said selection made in the year 1998, the appellant has filed Writ Petition in the year 2011. 9. From a mere reading of the advertisement, it is clear that the advertisement did not specify that the post of Dredging Superintendent is to be filled up by a person with Dredging experience and only preference was given to candidates with dredging experience. Even in the counter affidavit of the official respondents in the Writ Petition, the Deputy Conservator of Chennai Port Trust has clearly stated that the Certificate of Service held by the third respondent is valid within India, in Indian waters and only if he goes into international waters, the Certificate of Competency is required. 10. Further, a writ of quo warranto can only be issued when the holder of a public office has been appointed in violation of constitutional or statutory provisions. Issuance of a writ of quo warranto is a discretionary remedy. 10. Further, a writ of quo warranto can only be issued when the holder of a public office has been appointed in violation of constitutional or statutory provisions. Issuance of a writ of quo warranto is a discretionary remedy. There concededly exists a distinction in regard to issuance of a writ of quo warranto and issuance of a writ of certiorari. The scope and ambit of these two writs are different and distinct. Whereas a writ of quo warranto can be issued on a limited ground, the considerations for issuance of a writ of certiorari are wholly different. 11. In this backdrop, when this Bench has put a specific question to the learned counsel for the appellant regarding the principles enunciated by the Honourable Apex Court in the matters of quo-warranto, he was not able to answer. It is not the case of the petitioner that the appointment of the third respondent is against any constitutional or statutory rule, so as to issue Writ of Quo Warranto. 12. When the Bench posed a question to the learned counsel for the appellant with regard to the delay in questioning the appointment of the third respondent after period of 13 years, he submitted that the appellant obtained information under the Right to Information Act only on 09.9.2010. Even if it is so, it is pertinent to note that the appellant had chosen to file the Writ Petition only in September 2011 and except saying that he gathered information in the year 2010, no other satisfactory explanation has come forward from the appellant for not approaching this Court immediately at the time of appointment of the third respondent or even after obtaining the information in September 2010. 13. From this, we are able to understand that the Writ Petition came to be filed by the petitioner, as if a public interest is involved, without even understanding the nature and concept of writ of quo warranto. 13. From this, we are able to understand that the Writ Petition came to be filed by the petitioner, as if a public interest is involved, without even understanding the nature and concept of writ of quo warranto. It is clear that the jurisdiction of the High Court to issue a writ of quo warranto is a limited one and writ of quo warranto can only be issued when the appointment is contrary to the statutory rules and the issuance of a writ of quo warranto is a discretionary remedy and 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 it is held by a person without legal authority and that leads to the inquiry as to whether the appointment of the said person has been in accordance with law or not. Since the third respondent was selected by following due process of law, his appointment cannot be said to be illegal. 14. From the materials placed on record and from the arguments of the learned counsel for the second respondent as well as the learned Senior Counsel for the third respondent, it is clear that the third respondent having been appointed by due process of law, is continuing in the post for the past 13 years. When that is the case that the appointment of the officer is fully in accordance with the statutory rules and not contrary to any constitutional or statutory rules or provisions, the question of issuance of writ of quo warranto does not arise and the learned Judge, considering all these aspects, has rightly dismissed the Writ Petition and we see no reason to take a different view from that of the learned Judge warranting interference of this Court. In the result, the Writ Appeal fails and the same is dismissed. No costs. Consequently, connected Miscellaneous Petitions are closed.