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2014 DIGILAW 360 (PAT)

Shailendra Kumar v. State of Bihar

2014-03-14

SAMARENDRA PRATAP SINGH

body2014
ORAL ORDER The petitioners are students of Diploma Course in Pharmacy in Bihar College of Pharmacy. They seek issuance of writ of quo warranto annulling the appointment of respondent no.9 Dr.(Captain) N.P. Yadav from the post of Examination Controller of Diploma in Pharmacy. 2. They state that respondent no.9 has been allocated Jharkhand Cadre in 2007 and as such he cannot hold any public post in State of Bihar. They also state that for same reason, he cannot hold post of Principal, Patna Medical College & Hospital, though the same has not been specifically challenged. 3. The case of the petitioners in short is that respondent no.9 is usurper of public office in State of Bihar and as such should be relieved of it. The petitioners in support of their submissions referred to a letter of the Home (Special) Department, Government of Bihar dated 22.8.2007, communicating the decision of the Central Government allocating 19 personnel of Medical Education to Jharkhand Cadre. The name of respondent no.9 figures at Sl.No.17 of the list attached to letter dated 22.8.2007. The Home (Special) Department as such requested the Principal Secretary, Health Department to relieve them by 30.9.2007, otherwise they would be deemed to be relieved by 6.10.2007. No order relieving any of them was issued by the Health Department, nor the department stopped taking any work from them. On the contrary, regular salaries were paid and even promotions were granted. According to the petitioners, respondent no.9 was promoted as Principal of Medical College and was also appointed as Controller of Examination of Diploma in Pharmacy. 4. The Respondent no.9 has controverted the claim of petitioner that he is working as Controller of Examination of Diploma in Pharmacy. According to respondent no.9, the ‘Diploma in Pharmacy Examination Committee’ and other Examination Committee functions within the administrative control of the Examination Controller, Health Services, Government of Bihar. However, being the administrative head of the Examination Committee, sometime he draws up examination programme, results etc. on the request of the concerned examination committees, which in no way amounts to interference in the functioning of those examination committees. 5. The petitioners in rebuttal to the denial of respondent no.9, relies upon memo no.119 dated 7.8.2010 (Annexure-8) of letter addressed to Bihar College of Pharmacy issuing certain directions with respect to examination matter in support of their claim that latter is working as Controller of Examiation of Pharmacy. 5. The petitioners in rebuttal to the denial of respondent no.9, relies upon memo no.119 dated 7.8.2010 (Annexure-8) of letter addressed to Bihar College of Pharmacy issuing certain directions with respect to examination matter in support of their claim that latter is working as Controller of Examiation of Pharmacy. 6. The issues which arises for consideration is as to whether a person after being allocated Jharkhand Cadre, can continue to hold in State of Bihar, one public post or the other and that too a post, as important as Principal of Patna Medical College and Controller of Examination of Pharmacy. If the answer is in affirmative whether a writ of quo warranto can be issued ousting him from the post. As per Bihar Reorganization Act, 2000, on and from the appointed day (15.11.2000), a new State, namely State of Jharkhand was carved out from the then existing State of Bihar. The Division of erstwhile State of Bihar consequent upon Reorganization, necessitated allocation of cadres of employees serving in connection with the affairs of the then existing State of Bihar. Section 72(2) of the Bihar Reorganization Act confers power on the Central Government to decide the matter relating to allocation of cadre. Section 76 of the Act vests power with the Central Government to issue directions to both the State of Bihar as well as State of Jharkhand for immediate compliance of its decision. Once the Central Government makes allocation of cadre, the Bihar Reorganization Act does not empower either the State of Bihar or the State of Jharkhand to pass any order contrary to the decision of the Central Government contained in section 72 read with section 76 of the Act. The order of the Central Government is to be obeyed with respect to allocation of cadre, unless and until it is annulled or altered. If an employee or even the State is aggrieved on account of cadre allocation, the remedy lies in making a representation to the Central Government, but in no circumstances even the State Government can flout the decision of the Central Government made under section 72(2) or Section 76 of the Bihar Reorganisation Act, 2000. 7. If an employee or even the State is aggrieved on account of cadre allocation, the remedy lies in making a representation to the Central Government, but in no circumstances even the State Government can flout the decision of the Central Government made under section 72(2) or Section 76 of the Bihar Reorganisation Act, 2000. 7. Counsel for the State of Jharkhand on being pointedly quarried, submits that States have to first implement the order of Central Government, and only thereafter on the basis of mutual transfer application and after having obtained ‘No Objection Certificate’, the Home (Special) Department, Government of Bihar, which has been made a Nodal department as per the guidelines of Advisory Committee and the Central Government, can pass appropriate order with respect to exchange of cadre which would be more in nature of a transfer. He further submits that for some time, the Nodal department was even empowered to take decision with respect to individual transfer application after obtaining ‘No Objection’ from both the States. 8. A counter affidavit has been filed on behalf of the State. Paragraph 7 of the Counter Affidavit states that in light of letter no.9371 dated 22.8.2007 of the Home (Special) Department, Government of Bihar (Annexure-3), the Joint Secretary-cum-Nodal officer, Department of Health, Government of Bihar vide memo no.1512(5) dated 30.10.2007 (Annexure-A) informed the Home (Special) Department that it would not be appropriate to relieve the teachers of Medical Education in view of the fact that the Secretary, Health, Jharkhand, Ranchi had informed that the allotted Medical Teachers of Jharkhand who have been allocated to Bihar State would not be relieved for their joining in the State of Bihar. In the said letter dated 30.10.2007, the communication of Secretary, Health Department, Jharkhand is specifically incorporated. 9. Learned counsel for respondent no.9 states that in view of the stand of the Secretary, Health Department, Jharkhand, no official of Medical Education who were allocated Bihar Cadre from Jharkhand, were ever relieved for joining the State of Bihar. He further submits that similarly none of the 19 Medical Teachers/Officers of Medical Education was relieved for the State of Jharkhand, and petitioners have singularly targeted him alone. He submits that some of those medical teachers have retired and some of them are on the verge of retiring. Incidentally, Respondent no.9 retirement date is 28th February 2014. 10. He further submits that similarly none of the 19 Medical Teachers/Officers of Medical Education was relieved for the State of Jharkhand, and petitioners have singularly targeted him alone. He submits that some of those medical teachers have retired and some of them are on the verge of retiring. Incidentally, Respondent no.9 retirement date is 28th February 2014. 10. Respondent no.9 submits that he was always willing to join in the allocated State, but in view of stubborn stand of the Jharkhand Government not to accept any Medical teachers from truncated State of Bihar, he was not relieved by the Health Department and as such he was helpless in the matter. 11. Learned counsel appearing on behalf of Respondent no.9 has raised the issue of maintainability of this writ application. He submits that the petitioner as a student would have no locus standi to challenge the appointment or continuance of respondent no.9 as Principal of the Medical College or as Controller of Examination of Diplomacy in Pharmacy. He submits that by now the petitioner must have passed out because more than three years have passed, since filing of the instant writ application. 12. The issues for considerations before this Court are as follows: (i) Whether the petitioners have made out a case for issuance of writ of quo warranto against respondent no.9? (ii) Whether the writ of quo warranto would be maintainable at the behest of the petitioners who were students of Bihar College of Pharmacy and on the day may not have any interest or concern with the post of Controller of Bihar College of Pharmacy. 13. Before I take up the points in issue, it would be necessary to notice the broad concept defininig writ of quo warranto. Article 226 of the Constitution empowers a High Court to issue directions orders or writs including writ of quo warranto for enforcement of any of the rights conferred by Part III and for any other purpose. Quo warranto is a proceeding drawn under Article 226 of the Constitution of India, in which validity of an appointment made by the executive authority to a public office alleged to be contrary to the statutory provisions or if improper assumption of office or usurpation of any franchise or privilege belonging to the office to which one is not entitled come up for judicial scrutiny. As per Halsbury’s Laws of England, a quo warranto proceeding affords a judicial inquiry 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. In case the holder of the office has no valid title to it, a writ of quo warranto can be issued ousting him from the said office. The provisions of quo warranto confers jurisdiction and authority on the judiciary to control executive action in the matter making appointment to public offices of a person who is not entitled to it or has been so appointed in violation of statutory provision. It also protects a citizen from being deprived of public office to which he may have a right. (Reference can be made Halsbury’s Laws of England, 3rd Edn. Vol.II, P.145). 14. The Apex Court in the case of B.R. Kapur v. State of T.N., while dealing with the concept of writ of quo warranto, has approvingly referred to a passage from Words and Pharases, Permanent Edn., Vol. 35, at p.647, which is reproduced below: (SCC p.316, para 80) “80…… The writ of “quo warranto” is not a substitute for mandamus or injunction nor for an appeal or writ of error, and is not to be used to prevent an improper exercise of power lawfully possessed, and its purpose is solely to prevent an officer or corporation or persons purporting to act as such from usurping a power which they do not have. 15. Though a Quo warranto is a proceeding in personam, but the order of the court is a proceeding in rem. It is an extraordinary remedy which law does not offer with liberal hand and one seeking such writ has to first establish that the occupant of the post is not entitled to it or that his appointment is in violation of statutory rules. The proceedings are addressed to prevent a continued exercise of authority unlawfully asserted. 16. It is evident that before a writ of quo warranto can be exercised it is necessary that the person sought to be ousted is holding a public office of a substantive character. The proceedings are addressed to prevent a continued exercise of authority unlawfully asserted. 16. It is evident that before a writ of quo warranto can be exercised it is necessary that the person sought to be ousted is holding a public office of a substantive character. The Apex Court in the case of University of Mysore v. C.D. Govinda Rao, reported in A.I.R. 1965 SC 491 observed that before a Court exercise power under writ of quo warranto, it is necessary that a person sought to be ousted from office is holding a substantive post. 17. Thus, from broad conceptions which bear out from different decisions of Apex Court, is as follows: (a) A person claiming writ of quo warranto must satisfy the Court that the office in question is a public office, (ii) that the office is held by an usurper either without any legal authority or in violation of statutory Rules. 18. Having thus deliberated on the broad concept of writ of quo warranto, I now proceed to examine the issue whether the writ of quo warranto can be maintained at the instance of the petitioners, even assuming that they ceased to be the students of college of Pharmacy now. 19. The case of Respondent no.9 is that no writ of quo warranto would be maintainable at the instance of the petitioners, who by now have passed out and no longer continue to be the students of Bihar College of Pharmacy. Furthermore, they could not have any lis in the matter, as they are neither contender for the post of Principal, Patna Medical College & Hospital nor for the post of Controller of Examination (Dip) in Pharmacy, which the latter has denied to be holding. As per Respondent no.9, he was merely an administrative head, of the Examination Committee, in which capacity, he had drawn up examination programme, results etc. 20. It would not be necessary for me to go into the controversy whether the respondent no.9 was working as Controller of Examination or not. Suffice it would be to observe, that there cannot be any denial that respondent no.9 was holding a prestigious public office of Principal, Patna Medical College & Hospital and whether a writ of quo warranto can be issued at their behest. 21. Suffice it would be to observe, that there cannot be any denial that respondent no.9 was holding a prestigious public office of Principal, Patna Medical College & Hospital and whether a writ of quo warranto can be issued at their behest. 21. Generally a person who seeks to file an application under Article 226 of the Constitution should ordinarily be one who has personal or individual right in the subject matter of the petition. But strict adherence to the said principle with regard to locus is not strictly required in filing of a writ of quo warranto. 22. As early as in the year 1916, the Kings Bench in the case of R. v. Speyer, reported in (1916) 1 KB 595(611) observed that it is not that the person seeking a writ of quo warranto must have personal interest in the matter as he may not necessarily seek to claim any right of his own. Hon’ble Apex Court in the case of Gadde Venkateswara Rao vs Government of Andhra Pradesh & Ors, A.I.R. 1966 SC 828 has observed that in exceptional cases a person who has been prejudicially affected by an act or omission can file a writ even though he has not proprietary or even fiduciary interest in the subject matter thereof. Enunciating broadly the same principle, the Hon’ble Apex Court in the case of Rajesh Awasthi vs Nand Lal Jaiswal, reported in (2013) 1 SCC 501 at paragraph 31 observed as follows: “31. From the aforesaid pronouncements it is graphically clear that a citizen can claim a writ of quo warranto and he stands in the position of a relater. He need not have any special interest or personal interest. The real test is to see whether the person holding the office is authorised to hold the same as per law. Delay and laches do not constitute any impediment to deal with the lis on merits and it has been so stated in Kashinath G. Jalmi v. Speaker.” 23. It is evident from various pronouncements of Apex Court as well as English Courts that a citizen though may not have any personal interest can file a writ of a quo-warranto as per stands in the position of a realtor. It is evident from various pronouncements of Apex Court as well as English Courts that a citizen though may not have any personal interest can file a writ of a quo-warranto as per stands in the position of a realtor. What is important is not as to whether A or B has filed a writ, the real test is to ascertain whether the person holding the office is authorised or entitled to hold the same. In view of such settled position of law, a writ of quo warranto would be very much maintainable at the instance of the petitioners, though they may have ceased to be students of Bihar College of Pharmacy. Their passing from the College, during the pendency of the writ petition, would not whittle their locus to invoke a writ of quo warranto any less. The writ application as such is maintainable and the objection to its maintainability at behest of petitioners is rejected. 24. Once I have held that writ application is maintainable, I proceed to the next issue whether the petitioners have made out a case for issuance of writ of quo warranto against respondent no.9. 25. I have already observed that a writ of quo warranto can be issued against a person if either one is occupying a post in violation of statutory provisions or is not entitled to hold the post. It is thus necessary that a person entitled to hold the public office must have been appointed in accordance with Statutory rules. 26. The inference which follows is that even if a person may be entitled to hold office, a writ of quo warranto can be issued ousting him office, if his appointment has been made in violation of statutory rules. The converse will be equally true i.e. a person appointed as per statutory rules, can be too ousted from office if he is not entitled to hold such office. 27. It is not the case of the petitioners that respondent no.9 was appointed in violation of any statutory provisions. Respondent no.9 too does not deny that the post he was holding was a public post. But still, if it is established that the petitioners was not entitled to hold a public office, a writ of quo warranto can be issued ousting him. 28. Respondent no.9 too does not deny that the post he was holding was a public post. But still, if it is established that the petitioners was not entitled to hold a public office, a writ of quo warranto can be issued ousting him. 28. Thus, the only thing that remains to be examined is as to whether the petitioner was entitled to hold the post of the Principal of College or post of Controller of Examination or for that matter any post in State of Bihar. 29. It is not in dispute that in view of Reorganization of the then existing State of Bihar, as per Bihar Reorganization Act, 2000, it had become necessary to allocate cadres of employees serving in connection with the affairs of the then existing State of Bihar vis-à-vis newly carved out State of Jharkhand. The Central Government is the final authority under section 72 of the Reorganisation Act to determine the allocation of cadre. Section 75 of the Bihar Reorganization Act empowers the Central Government to establish one or more disciplinary committee for the purposes of assisting it to ensure fair and equitable treatment to all persons who may be affected with respect to cadre allocation and for proper consideration of representation, if any, made by such person. 30. The Central Government in terms of power conferred under section 75 of the Reorganisation Act issued notification constituting State Advisory Committee and also issued guide lines to be followed by the State Advisory Committee for ensuring fair and equitable treatment to all employees. The Central Government in terms of power conferred under section 72 of the Reorganization Act allocated amongst others, 19 persons of Medical education to Jharkhand Cadre. The decision of the Central Government was communicated by Home Special Department, Government of Bihar, dated 22.8.2007 to Principal Secretary, Health Department to relieve these teachers by 30.9.2007, otherwise they would be deemed to be relieved. The name of respondent no.9 figured at Sl. No.17. The Health Department did not issue any order relieving the petitioner or any of the 19 employees who were allocated Jharkhand cadre by the Central Government vide communication dated 28.8.2007 of Home (Special) Department, Government of Bihar. In this context, the affidavit of the State of Bihar, particularly paragraph 7, is of utmost importance and relevant. No.17. The Health Department did not issue any order relieving the petitioner or any of the 19 employees who were allocated Jharkhand cadre by the Central Government vide communication dated 28.8.2007 of Home (Special) Department, Government of Bihar. In this context, the affidavit of the State of Bihar, particularly paragraph 7, is of utmost importance and relevant. In paragraph 7 of its counter affidavit, the State Government stated that in light of letter no.9371 dated 22.8.2007 of the Home (Special) Department, Government of Bihar (Annexure-3), the Joint Secretary-cum-Nodal officer, Department of Health, Government of Bihar vide memo no.1512(5) dated 30.10.2007 (Annexure-A) informed the Home (Special) Department that it would not be appropriate to relieve the teachers of Medical Education in view of the fact that the Secretary, Health, Jharkhand, Ranchi had informed that the allotted Medical Teachers of Jharkhand would not be relieved for their joining in the State of Bihar. In the said letter dated 30.10.2007, the communication of Secretary, Health Department, Jharkhand is specifically incorporated. 31. One fails to appreciate the stand of the Jharkhand Government and the State of Bihar on the issue which is in utter disregard of the mandate contained in section 72 of the Reorganization Act, 2000. Both the State of Jharkhand and the State of Bihar being a ‘State’ is expected to act as ‘role model’ setting an example for its citizens. If a State itself ignores mandate of binding law, contained in section 72 of the Reorganization Act; what better can it expect from its employees and ordinary citizens. The example set by the State of Bihar and State of Jharkhand, is not, which will earn them any respect, and the Courts will then necessarily step in to ensure ‘rule of law’ and to undo the wrong. 32. The authorities of the State at the first instance could not have settled the matter between themselves without taking recourse to law. In case, the two States were not keen on relieving the Medical teachers in spite of allocation of cadre, the remedy before them was to approach the Central Government for modification of its decision with respect to allocation of cadre. It was not left for them to settle the matter amongst themselves in the manner that they have done. In case, the two States were not keen on relieving the Medical teachers in spite of allocation of cadre, the remedy before them was to approach the Central Government for modification of its decision with respect to allocation of cadre. It was not left for them to settle the matter amongst themselves in the manner that they have done. In such circumstances, the State would have had no option but to relieve respondent no.9 and similarly situated Medical Teachers to join the State of Jharkhand as contained in letter dated 28.8.2007 of Home (Special) Department communicating the decision of Central Government under section 72 of the Bihar Reorganization Act. 33. Respondent no.9 pointed out that though 19 teachers were allocated to State of Jharkhand from state of Bihar, no grievance has been made against any of them who have continued to serve in the State of Bihar, though some of them have retired by now and some might be on the verge of retirement. Incidentally, Respondent no.9 too has retired on 28.2.2014. 34. Merely because there has been no challenge to the holding of public office by the other 18 medical teachers in State of Bihar, who have been allocated Jharkhand cadre, the writ application cannot be brushed aside so far as challenge to continuance of Respondent no.9 in State of Bihar is made. Respondent no.9 admittedly was allocated Jharkhand cadre. There is no revision of the allocation by the Central Government, as such I find that respondent no.9 was not legally entitled to hold public office in the State of Bihar. But as respondent no.9 has retired on 28.2.2014, the writ application has been rendered almost futile and no effective writ can be issued ousting him from public post held. In this regard, reference can be made to a decision of Apex Court in the case of Rameshwar vs State of Punjab, reported in 1961 SC 816. 35. The other issue would be whether acts done by Respondent no.9 would be non est and whether he would be liable to refund the emoluments and salary. I find that it is not the case of anyone that there was relieving order and respondent no.9 refused to join at Jharkhand. In fact, the respondents did not stop Respondent no.9 from functioning in the State of Bihar. The Health Department did not relieve any medical teachers allocated to Jharkhand cadre. I find that it is not the case of anyone that there was relieving order and respondent no.9 refused to join at Jharkhand. In fact, the respondents did not stop Respondent no.9 from functioning in the State of Bihar. The Health Department did not relieve any medical teachers allocated to Jharkhand cadre. The situation was no better in respect of Jharkhand government in the matter. Though respondent no.9 was not entitled to hold public office in the State of Bihar, still no order can be issued for refund of the salary and emoluments as neither the department relieved him nor stopped taking working from him. There is no allegation that Respondent no.9 had stubbornly clung on to the post despite government directives. Rather the State in its affidavit has tried to defend the appointment of Respondent no.9 on the ground that the authorities of Jharkhand State has refused to accept the allocation of 19 Medical teachers to Jharkhand State. The U.S. Court in the case of Johnson v. Manhattan, reported in (1932) 289 US 479 observed that no writ of quo warranto can be issued for refund of salary from a person who may not have been entitled to an office, but continued so for no fault of his own. 36. Similarly, generally no writ of quo warranto couldt be issued quash acts done by the person though he may not be entitled to hold office. The validity of acts done by the incumbent has to be tested on its own merit. One may observe that where an office exists under the law, it does not matter how the appointment of the incumbent was made, so far as the validity of the acts are not questioned. 37. Thus I hold that respondent no.9 was not entitled to hold public office in State of Bihar after allocation of Jharkhand cadre. But no effective direction ousting him from office can be issued as he has already retired from the post. The writ application is disposed of in terms of observations in the order. 38. Let a copy of this order be sent to the Chief Secretary and Health Secretary, Government of Bihar.