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2016 DIGILAW 475 (CAL)

Dharamraj v. Akshay Pant

2016-06-13

JYOTIRMAY BHATTACHARYA, SUBRATA TALUKDAR

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JUDGMENT : 1. This mandamus appeal is directed against an order passed by the learned Single Judge of this Court on 18th March, 2016 in a writ proceeding being WP No.047 of 2016 wherein a writ in the nature of quo warranto was prayed for by the writ petitioner being a social worker challenging the legality of the appointment of the appellant in the post of Protocol Officer in the department of General Administration, Secretariat Establishment, Andaman and Nicobar Administration. By the impugned order the writ petition was allowed by the learned Single Judge of this Court. His Lordship found that the ad hoc appointment which was given to the appellant in the post of Protocol Officer by the Administration and the extension of such ad hoc appointment given to him from time to time by the Administration, were illegal and as such, the ad hoc appointment and the extensions which were given to the appellant by the Administration were set aside. Consequently, regularization of the service of the appellant in the post of Protocol Officer which was impugned in the said writ petition, was set aside. The Administration was directed to fill up the vacant post by following rules framed in that regard within a period of three months from the date of communication of the order. 2. The legality and/or propriety of the said judgment and/or order passed by the learned Single Judge in the said writ petition is under challenge in this mandamus appeal. 3. At the outset Mr. Partha Sarathi Bhattacharya, the learned Senior Counsel appearing for the appellant submitted that though a preliminary objection regarding maintainability of the writ petition was raised before the learned Single Judge of this Court but the learned Single Judge of this Court, without deciding the said preliminary objection regarding maintainability of the writ petition, decided the writ petition on merit. He further submitted that the appellant remained unrepresented before the learned Single Judge of this Court as due to the sad demise of the uncle of the appellant’s learned advocate, he could not make himself present in Court to represent his client. He further submitted that the appellant remained unrepresented before the learned Single Judge of this Court as due to the sad demise of the uncle of the appellant’s learned advocate, he could not make himself present in Court to represent his client. We are also informed by him that though extension of time for filing affidavit in the writ proceeding and postponement of the hearing of the said writ petition were sought for but such prayers were not allowed and the writ petition was ultimately decided ex parte by rejecting the appellant’s prayer for adjournment and without allowing the appellant to file affidavit in the writ proceeding. This part of the contention of Mr. Bhattacharya has not been denied by the learned counsel appearing for the other parties. In this background Mr. Bhattacharya invited us to decide the maintainability point first. 4. Let us first of all consider as to whether the writ petition was maintainable before this Court or not. Relying upon a decision of the Hon’ble Supreme Court in the case of S. Chandramohan Nair Vs. George Joseph & ors, reported in 2010(12) SCC 687 , Mr. Bhattacharya submitted that the writ petitioner being a busybody and/or meddlesome interloper cannot seek issuance of a writ of quo warranto before the High Court. We have considered the said judgment of the Hon’ble Supreme Court. Paragraph 21 of the said judgment is set out hereunder:- “21. As mentioned above, Respondent 1 had nothing to do with the appointment of the members of the State Commission and who did not place any material record to show as to how the appointment of the appellant would adversely affect the members of the Samiti. His position was nothing more than that of a meddlesome interloper/busybody and the Division Bench of the High Court gravely erred in entertaining the writ petition filed by him and converting the same into a writ of quo warranto.” 5. Reading the said decision of the Hon’ble Supreme Court it appears to us that unless a person is directly affected by the action of the Government in giving appointment to a person in a public post, he or she cannot approach the Writ Court for issuance of a writ of quo warranto. Reading the said decision of the Hon’ble Supreme Court it appears to us that unless a person is directly affected by the action of the Government in giving appointment to a person in a public post, he or she cannot approach the Writ Court for issuance of a writ of quo warranto. Application of the principles laid down in the said decision to the present case is doubtful as unlike the present case in hand, the case before the Hon’ble Apex Court was not a case relating to service matter. That apart, we find that while coming to the aforesaid conclusion the Hon’ble Supreme Court did not consider the earlier decisions of the Hon’ble Supreme court in the case of Calcutta Gas Company (Proprietary) Limited Vs. State of West Bengal and others, reported in AIR 1962 SC 1044 . It was held therein that Article 226 of the Constitution of India in terms does not describe the classes of persons entitled to apply thereunder; but it is implicit in the exercise of the extraordinary jurisdiction that the relief asked for might be one to enforce a legal right. It was also held therein that the existence of a right is the foundation of the exercise of jurisdiction of the High Court under Article 226 of the Constitution and the legal right that can be enforced under Article 226, like Article 32 must ordinarily be the right of the person himself who complains of infraction of such right and approaches the Court for the relief. The Hon’ble Supreme Court further held that the right that can be enforced under Article 226 also shall ordinarily be the personal or individual right of the petitioner himself, though in the case of the some of the writs like habeas corpus or quo warranto this rule may have to be relaxed or modified. 6. The same view was reiterated by the Hon’ble Supreme Court in the subsequent case of Gadde Venkateswara Rao Vs. Government of Andhra Pradesh and others, reported in AIR 1966 SC 828 . That was a judgment delivered by a Bench consisting of three Hon’ble Judges of the Apex Court. 7. 6. The same view was reiterated by the Hon’ble Supreme Court in the subsequent case of Gadde Venkateswara Rao Vs. Government of Andhra Pradesh and others, reported in AIR 1966 SC 828 . That was a judgment delivered by a Bench consisting of three Hon’ble Judges of the Apex Court. 7. Identical view was expressed by the Division Bench of the Hon’ble Supreme Court in the case of B. Srinivasa Reddy vs. Karnataka Urban Water Supply & Drainage Board Employees Association & others, reported in 2006(11) SCC 731 (II) wherein it was held that it is no doubt true that the strict rules of locus standi are relaxed to some extent in a quo warranto proceedings with a caution that if an imposter comes before the Court invoking public law remedy at the hands of a constitutional Court suppressing material facts, he has to be dealt with firmly. It was further held therein that it is settled law that High Court in exercise of its jurisdiction in a matter of this nature is required to determine at the very outset as to whether a case has been made out for issuance of a writ of quo warranto by keeping in mind that the jurisdiction of the High Court to issue a writ of quo warranto is a limited one which can only be issued when the appointment given to a public post is contrary to the statutory rules. 8. Considering the aforesaid decisions of the Hon’ble Supreme Court, we cannot hold that the instant writ petition is not maintainable for want of the locus of the writ petitioner as we find that in this writ petition, issuance of a writ of quo warranto was prayed for by the writ petitioner contending that the appointment which was given to the appellant in the post of Protocol Officer which is a public post, is contrary to the statutory rules. 9. Thus we cannot hold that the writ petition is not maintainable for want of locus of the writ petitioner. 10. Another question has also cropped up with regard to the maintainability of the writ petition before this Court. It is also contended that in view of the provisions contained in sections 14 read with section 28 of the Administrative Tribunals Act, 1985, such writ petition cannot be filed directly before the High Court by bypassing the Tribunal constituted under the said Act. It is also contended that in view of the provisions contained in sections 14 read with section 28 of the Administrative Tribunals Act, 1985, such writ petition cannot be filed directly before the High Court by bypassing the Tribunal constituted under the said Act. In this regard we have considered the provisions contained in section 14 and 28 of the said Act, as pointed out by Mr. Bhattacharya but we feel that the question which is so raised by Mr. Bhattacharya cannot be answered appropriately without considering the provisions contained in section 19 of the said Act also. Section 19 of the said Act provides that it is only a person aggrieved by any order pertaining to any matter within the jurisdiction of a Tribunal, may make an application to the Tribunal for the redressal of his grievance. 11. Let us consider as to whether the writ petitioner can be regarded as a person aggrieved by the appointment given to the appellant in the post of Protocol Officer. The writ petitioner is not an aspirant for the said post. He cannot, in any way be affected directly by the appointment given to the appellant in the post of Protocol Officer. As such, he cannot be held to be a person aggrieved by the impugned action taken by the local administration in giving appointment to the appellant in the post of Protocol Officer. As such, we hold that the writ petitioner could not have approached the Tribunal for ventilating his grievances as he was not a person aggrieved in terms of the provisions contained in section 19 of the said Act. 12. In this regard, we get sufficient support from the judgment of the Hon’ble Supreme Court in the case of State of Punjab vs. Salil Sabhlok and others reported in 2013(5) SCC p.1 wherein it was held that as an aggrieved person he or she viz. the complainant does have a public law remedy and in service matters the only available remedy is to ask for a writ of quo warranto. To resolve this dispute we also take support from the decision of the Hon’ble Supreme Court relied upon by Mrs. Nag in the case of Hari Bansh Lal vs. Sahodar Prasad Mahto and others reported in 2010(9) SCC 655 wherein it was held as follows: “34. To resolve this dispute we also take support from the decision of the Hon’ble Supreme Court relied upon by Mrs. Nag in the case of Hari Bansh Lal vs. Sahodar Prasad Mahto and others reported in 2010(9) SCC 655 wherein it was held as follows: “34. From the discussion and analysis, the flowing principles emerge:- (a) Except for a writ of quo warranto, PIL is not maintainable in service matters (b) For issuance of a writ of quo warranto, the High Court has to satisfy that the appointment is contrary to the statutory rules (c) Suitability or otherwise of a candidate for appointment to a post in government service is the function of the appointing authority and not of the court unless the appointment is contrary to statutory provisions/rules 13. Relying upon the aforesaid decisions of the Hon’ble Supreme Court, we have no hesitation to hold that a writ of quo warranto is maintainable before this High Court and as such we are unable to accept the contention of Mr. Bhattacharya that the writ petition was not maintainable and the order of the learned Single Judge is liable to be set aside on that score. 14. Now coming to the merit of the writ petition we find that the parties are quarrelling with each other with regard to the legality of the appointment given to the appellant by the Administration. We are also surprised to note here that even the Administration which offered the appellant the appointment to the post of Protocol Officer does not support its own action; rather deprecates its own action by contending that the appointment was not given to the appellant by following the extant draft Recruitment Rules. Admittedly at the time when the appellant was selected for appointment to the post of Protocol Officer, the Draft Recruitment Rules was not notified. However, enforceability of the draft Rules pending consideration before Union Public Service Commission cannot be questioned in view of the judgment of the Hon’ble Supreme Court in the case of High Court of Gujarat & others Vs. Gujarat Kishan Mazdoor Pancayat & others, reported in (2003) 4 SCC 712 wherein it was held that the Rules even in their draft stage can be acted upon provided there is clear intention on the part of the Government to enforce these Rules in near future. Gujarat Kishan Mazdoor Pancayat & others, reported in (2003) 4 SCC 712 wherein it was held that the Rules even in their draft stage can be acted upon provided there is clear intention on the part of the Government to enforce these Rules in near future. We are informed that the draft Recruitment Rules was subsequently finalized and was also notified without any modification. 15. According to Mr. Bhattacharya, his client viz. the appellant satisfies the condition for being appointed as a Protocol Officer as per the draft Recruitment Rules. He pointed out that his client has satisfied the condition mentioned under the Cl. No.11 a(iii) and the condition as mentioned in column No.11(b). He has also produced some documents, not disclosed earlier, to support his said contention. According to him, his client’s appointment thus cannot be held to be illegal. 16. Mrs. Nag, the learned advocate appearing for the Administration, however, disputes such contention of the appellant and submits before us some office orders contradicting the documents submitted by Mr. Bhattacharya to establish that the appellant does not satisfy the condition of such draft Recruitment Rules for being appointed in the said post. 17. We feel that sitting in this appellate jurisdiction we should not consider those documents which were not placed before the learned Single Judge and come to a final conclusion inasmuch, if we do that, we will be deprived of getting the views of the Writ Court on these contradictory documents relied upon by the parties with regard to the rival claims of the parties relating to satisfaction of the condition as mentioned in Serial No.11(a) and (b) of the draft Rules by the appellant. Be that as it may, we find that the appellant was prevented by sufficient reasons from appearing before the Writ Court on the date when the writ petition was heard. That apart, we cannot be unmindful of the fact that the Administration has taken a stand which is different from the stand taken by the Administration while offering the appointment to the appellant to the post of Protocol Officer. 18. In these set of facts, we feel that a fair chance of contest should have been given to the appellant by extending the time for filing affidavit by him in the writ proceedings. 19. 18. In these set of facts, we feel that a fair chance of contest should have been given to the appellant by extending the time for filing affidavit by him in the writ proceedings. 19. That apart we find that the Writ Court, while deciding the said writ petition took much pain to consider the legality of ad hoc appointment given to the appellant in the post of Protocol Officer and the extensions thereof even though no specific ground was made out by the writ petitioner for challenging such ad hoc appointment given to the appellant. On reading the draft Recruitment Rules we are of the prima facie view that absorption followed by ad hoc appointment is not the criterion for regularization of service in the post of Protocol Officer as per the draft Rules. As such our prima facie view is that the ultimate absorption of the appellant in the said post of Protocol Officer may be maintained, notwithstanding his ad hoc appointment and/or extension thereof are found to be illegal and/or irregular, only if however his absorption in the said post is found to be in consonance with the extant draft Rules. 20. Thus we feel that the entire issues involved in this writ proceeding are required to be reconsidered afresh, after exchange of affidavits between the parties. 21. Accordingly, we set aside the judgment and/or the order impugned in this appeal and send the writ petition back to the Writ Court for reconsideration of the same after exchange of affidavits between the parties in the writ proceeding. We thus permit the appellant to file affidavit-in-opposition to the writ petition within four weeks from date. Reply, if any, be filed by the petitioner within two weeks thereafter. Time fixed by this Court for filing affidavits by the parties, should be regarded as peremptorily fixed by this Court and the parties are directed to adhere to such direction strictly. 22. Let the writ petition be listed for hearing in the next available Circuit. We request the learned Single Judge to dispose of the writ petition as expeditiously as possible and we direct that during the pendency of the writ petition the interim arrangement which was made by the other Division Bench of this Court on 08th April, 2016 will continue till the disposal of the writ petition. The appeal and application are, thus, disposed of.