Research › Search › Judgment

Calcutta High Court · body

2018 DIGILAW 139 (CAL)

C. G Saji Kumar v. A&N Administration

2018-01-18

SAMBUDDHA CHAKRABARTI

body2018
JUDGMENT : SAMBUDDHA CHAKRABARTI, J. The petitioner has inter-alia prayed for a writ in the nature of quo warranto for removal of the respondent no. 5 from the post of member, A&N UT Commission for Protection of Child Rights. 2. The case made out by the petitioner inter-alia is that the Andaman and Nicobar Administration through the Directorate of Social Welfare and through a press note dated December 11, 2014 invited applications from eligible and qualified candidates for the purpose of appointment to the post of Chairman and Member in the A&N UT Commission for Protection of Child Rights (the Commission, for short). 3. Out of the applications submitted, the Directorate of Social Welfare had shortlisted about 16 applications and suggested them to be placed before the Chief Secretary, being the Chairman of the selection committee. 4. Although selection for all the posts had been concluded earlier for the reasons best known to them, the authorities decided to conduct personal interview and permitted candidates to appear in the interview, who had not applied earlier. To that effect, a press note was issued on April 10, 2015 that personal interview would be held on April 15, 2015. The petitioner alleged that this exercise was taken to accommodate the respondent no. 5 as otherwise there was no justification for permitting candidates for appearing in the interview who had not applied. In response of the earlier advertisement candidates had applied from Diglipur to Campbell Bay and, in the instant case, the press note was issued on April 10, 2015 fixing the date of interview on April 15, 2015. Since the time gap between the two dates was four days with Saturday and Sunday intervening, the intention could not have been to obtain larger participation. In any case, since in terms of the earlier advertisement, the respondent no. 5 did not apply within the last date, the respondent authorities, in allowing the respondent no. 5 to appear in the interview and thereafter to select her as a Member of the Commission, had acted in an improper manner. 5. The petitioner has referred to various provisions of the Commission for Protection of Child Rights Act 2005 (the Act for short) in support of his contention that the selection of respondent no. 5 to appear in the interview and thereafter to select her as a Member of the Commission, had acted in an improper manner. 5. The petitioner has referred to various provisions of the Commission for Protection of Child Rights Act 2005 (the Act for short) in support of his contention that the selection of respondent no. 5 was improper and that the selection committee issued a press release on June 13, 2015 wherefrom it appeared that the names of the Chairperson and the Members have been recommended and the Administration was in the process of notifying the same in the gazette in terms of Section 18 of the Act. 6. The petitioner mentions three reasons rendering selection of the respondent no. 5 bad, namely; viz. (a) respondent no. 5 did not apply in response to the advertisement, dated December 11, 2014, (b) there was no justification for having permitted here as a walk-in candidate as sufficient number of candidates had applied; and (c) the action of the respondents in selecting the respondent no. 5 was bad as she was holding a paid employment as Manager in Ummat Public School, Port Blair. 7. The further contention of the petitioner is that the respondent no. 5 had been running a shelter home in the name and style ‘ASRA’ without registration as required under the relevant Acts. The petitioner had come to learn on an application made under RTI Act that the authorities registered the shelter home on April 13, 2015 i.e. two days before the interview. From this, the petitioner concluded that the respondents had been trying to favour the respondent no. 5. The actions of the authorities are in contravention of the provisions of the Act and the Rules framed thereunder. 8. On behalf of the Administration, the Director of Social Welfare i.e. the respondent no. 4, has affirmed an affidavit denying the allegations made in the writ petition. It has inter-alia been contended by the answering respondents that as per the A&N UT Commission (Protection of Child Rights) Rules, 2013 (the Rules, for short), the Commission was to be constituted comprising a Chairperson and other members. Appointment was to be made by the Lieutenant Governor on the recommendation of the selection committee headed by the Chief Secretary and the Secretary, Social Welfare and the Director, Social Welfare of the Administration, being the other two members of the selection committee. 9. Appointment was to be made by the Lieutenant Governor on the recommendation of the selection committee headed by the Chief Secretary and the Secretary, Social Welfare and the Director, Social Welfare of the Administration, being the other two members of the selection committee. 9. In response to the press release of January 2014, eight applications were received. A meeting was held on February 2014 in the chamber of the Chief Secretary of the Administration when the Chief Secretary directed the concerned department to obtain names from the Deputy Commissioners of other two districts. Pursuant to the same, the Deputy Commissioners sent names of three candidates each in the last week of June/July 2014. On July 7, 2014, all these names were put up to the Chief Secretary and it was directed to obtain names from the Deputy Commissioner (South Andaman) also. When the selection committee once again met on November 03, 2014, it was decided to call for more applications so as to get a broader base for the of the candidates. Thereafter applications were invited in the month of December, 2014. 10. A meeting of the selection committee was held on February 06, 2015 and candidates were recommended as Chairman and Members of the concerned Commission. On March 4, 2015, before the submission of the recommendation to the Competent Authority for approval, it was again decided to have a still broader base for selection of members and it was decided to obtain the names of suitable candidates from the Education department also. The Deputy Director of Education (Planning) forwarded the names of the two candidates. In March 2015, it was decided to issue a press release for personal interview of the candidates. It was also decided to invite interested candidates even if they had not applied earlier. A press release was issued on April 10, 2015 giving liberty to persons who had not applied earlier to appear before the selection committee on April 15, 2015 in the office of the Chief Secretary, so that all persons interested might get a chance for selection and the right person could be selected for the constitution of the Commission. 11. On April 15, 2015, a total number of eighteen candidates appeared before the selection committee. Of them, eight candidates had not applied earlier. 11. On April 15, 2015, a total number of eighteen candidates appeared before the selection committee. Of them, eight candidates had not applied earlier. The selection committee again met on June 5, 2015 after receiving the police verification report and recommended the names for appointment as Chairperson and Members for approval of the competent authority. The Andaman and Nicobar Administration issued a notification on June 12, 2015 constituting the Commission. 12. It has been the contention of the respondent nos. 1 to 4 that since only eight applications were received pursuant to the first advertisement, they were kept pending as the Administration was searching better persons having proper experience in the relevant field. Therefore, no action was taken upon the applications. Though in the meeting on February 6, 2015, names of four persons were recommended, the Competent Authority was of the view that there should be a wider circulation for better candidates. Therefore, the recommendation was not accepted by the Lieutenant Governor. The respondents have taken a very strong exception to the petitioner's objection to the selection of the respondent no. 5 on the ground that if for non-submission of the application earlier, the respondent no. 5 was an ineligible candidate so also was the position of the other two appointees viz. the Chairperson and the first member of the Commission who also did not apply and were selected on the basis of the walk-in interview. 13. Moreover, the respondent no. 5 was not the only candidate who had not applied but appeared in the walk-in interview. There were ten such candidates including the candidate selected as the Chairperson. 14. The shelter home referred to in para 9 of the writ petition is run by ‘ISMAT’, a registered society. The respondent no. 5 was the elected President for one year and her term was to expire in January 2016. The registration process was done after completing all formalities. They have prayed for dismissal of the writ petition. 15. The respondent no. 5 has also contested the case by filing an affidavit-in-opposition. It has been her case that she possesses BHSc degree and is a specialist in development counselling dealing with children through the work done at various medical centres, internship in hospitals, workshops, and had the experience of handling cases of counselling of disturbed children. 15. The respondent no. 5 has also contested the case by filing an affidavit-in-opposition. It has been her case that she possesses BHSc degree and is a specialist in development counselling dealing with children through the work done at various medical centres, internship in hospitals, workshops, and had the experience of handling cases of counselling of disturbed children. She is associated with Islanders Social Movement for Awareness & Training (ISMAT), a non-government organization created sometimes in the year 2005. In the year 2012, ISMAT-ASRA was started which is a shelter home for girls and the same was registered in April 2015. 16. On the basis of the paper publication dated April 10, 2015, respondent no. 5 appeared before the interview along with several other candidates and she was selected as a member. Out of the four persons, including the Chairperson, selected, three were selected from walk-in interview. The respondent no. 5 have denied the allegations made in the writ petition about her ineligibility to be appointed as a member of the Commission. 17. It is a settled principle of law that a person who did not apply for a post may still maintain an application for a writ of quo warranto. More than half a century ago, the Supreme Court in the case of University of Mysore v. Govinda Rao, reported in AIR 1965 SC 491 had observed that a quo warranto proceeding affords a judicial remedy in which any person holding independent substantive public office or franchise or liberty, is called upon to show by what authority or right he holds the same and if the enquiry leads to the finding that the holder of the office has no authority or title to do a writ of quo warranto may be issued for ousting him from that position. One of the purpose for which such writ may be issued is to protect from illegal deprivation of public office to which he may have a right. In some cases persons not entitled to public office may be allowed to occupy them and continue to hold them as a result of connivance of executive or with its active help. This is a situation where the jurisdiction of court to issue a writ of quo warranto is properly invoked. 18. In some cases persons not entitled to public office may be allowed to occupy them and continue to hold them as a result of connivance of executive or with its active help. This is a situation where the jurisdiction of court to issue a writ of quo warranto is properly invoked. 18. The court, while disposing of an application seeking invocation of writ of quo warranto, has to examine whether the appointment of the person concerned has been made fairly and in accordance with the procedure established by law. 19. Mr. Singh, the learned Advocate for the petitioner, has made reference to various provisions of the Act and the Rules. He has drawn my attention to the provision that a person shall be liable to be removed if he or she is engaged during the term of office in any paid employment outside the duties of his office. The rules provide that the terms and conditions of the Chairperson and the members shall be to the extent as applicable to the government servant. The petitioner says that the offices of the Chairman and a member of the Commission are full time employment and, therefore, candidates so selected could not be engaged in any paid employment outside his duties of his/her office. 20. The first ground of challenge to the appointment of the respondent no. 5 that she did not apply in response to the advertisement dated April 11, 2014 should not be, in view of what have been stated categorically in affidavit-in-opposition, treated as her disqualification. It is not a case that the Administration had appointed her as a member of the Commission without her signifying any willingness. The petitioner has taken exception to the successive advertisements seeking applications for the post as if the same was made to favour the respondent no. 5 alone. The series of decisions taken in this respect by the selection committee and the Administration clearly establish that the Administration was not very satisfied with either the number of applications received by them or the eligibility of the candidates who had applied pursuant to the advertisement. And that is precisely why names from different authorities were sought in order to obtain a broader base of the applicants from amongst whom selection could be made. And that is precisely why names from different authorities were sought in order to obtain a broader base of the applicants from amongst whom selection could be made. Had such opportunity been given in a solitary case, the petitioner still might have had something to say or to raise a certain degree of suspicion but the decision by the Administration at different meetings belie the possibility of any such foul play, far or less they could be said to have been established. There is legally nothing impermissible for the respondents to insist on a larger participation of candidates in the selection process if those who had applied were not found to be satisfactory. Moreover, it is to be remembered that when the respondents decided to allow the non-applicants to appear in walk-in interview, eight such candidates appeared and three of them were selected including the candidate for the post of Chairperson of the Commission. No foul play is to be necessarily inferred, far or less concluded from the fact that the respondent no. 5 did not apply initially. Moreover, if the administration wanted to favour the respondent no. 5 there would have been no reason for her not to apply at the first chance. 21. The second ground of challenge to the selection of respondent no. 5 that there was no justification for permitting her as a walk-in candidate cannot be considered, in view of what have been stated earlier, to be a valid objection. The allegation that sufficient number of candidates applied in response to the press note is based on the subjective perception of the sufficiency of number of applications. Since only eight applications were received by the Administration pursuant to the press note of December 2014, they are not faulted if they, considering the importance of the post, wanted to select candidates from a larger number of applicants. 22. The last ground of challenge is that the respondent no. 5 was holding a paid post at the time of her selection. Mr. Singh has drawn my attention to Section 7(2) of the Act which deals with the ground for removal of a member of the Commission. One of them is engagement of the member during her term of office in any paid employment outside the duties of office. From this, Mr. Mr. Singh has drawn my attention to Section 7(2) of the Act which deals with the ground for removal of a member of the Commission. One of them is engagement of the member during her term of office in any paid employment outside the duties of office. From this, Mr. Singh wanted to argue that if simultaneously holding the position of a paid employee is a disqualification for holding the post of a member, it must also be reckoned to be a disqualification for the respondent no. 5 to be so selected. 23. Such an argument on the face of it is unacceptable. What is considered to be a ground for removal i.e. simultaneously holding a paid employment, cannot be a ground for not considering her candidature. In case of almost all employments, it is a condition that the incumbent on appointment shall not hold any paid position simultaneously. The fact that somebody is appointed in a paid employment does not debar him to apply for the post nor it can be said to have disentitled him for consideration. 24. It is a part of our shared experience that more often than not, the authorities receive application from candidates who are already in some employment. Merely because an applicant is already employed does not disqualify him/her to be considered for appointment nor does it constitute a complete bar to such an appointment. 25. The allegation of the petitioner that ‘ISMAT ASRA’ was registered only two days before the date of interview is not by itself sufficient to hold that the entire purpose was to select the respondent no. 5. After all, the organization under a different name was running for some time in the past. The respondent no. 3 applied for registration on April 2, 2015 which was before the government published the press note. There is nothing in the writ petition to establish that the application for registration was the result of a pre-arranged decision for selecting the respondent no. 5. If a party alleges any collision between the respondents inter se, the onus is entirely on him to prove the same. The coincidence of two dates does not necessarily establish the case of the petitioner that the society was registered merely to gain a mileage in the matter of the selection of the respondent no. 5. 26. 5. If a party alleges any collision between the respondents inter se, the onus is entirely on him to prove the same. The coincidence of two dates does not necessarily establish the case of the petitioner that the society was registered merely to gain a mileage in the matter of the selection of the respondent no. 5. 26. That apart, association with or running a shelter home is not an essential pre-condition or even eligibility for being selected as a member of the Commission. Even if it was mentioned in Rule 3(2)(b) that having experience in juvenile justice or care of neglected or marginalised or children with disabilities was a qualification, the respondent no. 5 had also experience in the field of education which by itself was sufficient for her case to be considered by the Administration. 27. The petitioner has laid a great stress on the fact that the selection committee had initially decided three names as members of the Commission. But for some obscure reason, the Administration allowed the walk-in candidates to participate in the selection process. 28. This allegation has been answered by the respondent nos. 1 to 4 that even before the submission for the recommendation to the Competent Authority for his approval, it was decided to have a broader base of members and to have names from the Education Department. Moreover, it cannot be lost sight of that recommendation made by a selection committee is merely recommendatory in nature and is never binding upon the Administrator. In case the administration wanted to have broader base through which the names were to be selected, the petitioner cannot have any grievance merely because the selection committee at one point of time had selected some names which was not ultimately accepted by the Administration. 29. In this connection, Mr. Kumar, the learned advocate for respondent no. 5 has submitted that section 4 of the Act provides that the Central Government shall by a notification appoint the Chairperson and other members. Proviso to Section 4 stipulates the mode of appointing a Chairperson which must be on the recommendation of the selection committee constituted by the Central Government Minister In-charge or the Department of Women and Child Development. Rule 4 of the Rules says that the Chairperson shall be appointed on the recommendation of three members as a selection committee constituted by the Union Territory Administration. Rule 4 of the Rules says that the Chairperson shall be appointed on the recommendation of three members as a selection committee constituted by the Union Territory Administration. Thus, for the appointment of a member of the Commission, it was not necessary that such appointment must be on the recommendation of a selection committee. Therefore, non-acceptance of any recommendation made by it at any point of time cannot be projected as a serious lapse on the part of the Administration or a disqualification of the respondent no. 5 to hold the office. 30. Obviously, the job of selection was left to the recommendation of the selection committee as the Administration had to complete the same through some agency. But that does not take away the ultimate right of the Administration of not accepting a recommendation made by the selection committee which has no statutory role in the appointment of the member of the Commission. 31. Mr. Singh submitted that the Rule 5 of the Rules which deals with the constitution of the selection committee does not recognize the existence of a co-opted member. It cannot be lost sight of that the selection committee referred to in Rule 5 of the Rules or section 18 of the Act is restricted to the appointment of Chairperson of the Commission as mentioned above. For the appointment of a member of the Commission such Committee is not necessary at all. 32. Mr. Singh submitted that the respondent no. 5 lacked qualification to be selected as a member of the Commission. The writ petition is silent how the respondent no. 5 lacked the qualification. Nor did Mr. Singh elaborate on it. 33. Mr. Kumar relied on the case of State of Uttranchal v. Sunil Kumar Vaish reported in (2011) 8 SCC 670 for a proposition that a noting recorded in the file is merely a noting simpliciter and nothing more. It merely represents expression of opinion by the particular individual and by no stretch of imagination, such noting can be treated as a decision of the Government. Even if the competent authority records its opinion in the file on the merits of the matter under consideration, the same cannot be termed as a decision of the Government unless it is sanctified and acted upon by issuing an order in accordance with Articles 77(1) and (2) or Articles 166(1) and (2) of the Constitution of India. Even if the competent authority records its opinion in the file on the merits of the matter under consideration, the same cannot be termed as a decision of the Government unless it is sanctified and acted upon by issuing an order in accordance with Articles 77(1) and (2) or Articles 166(1) and (2) of the Constitution of India. The ratio decided in the judgement has no application to the facts of the case inasmuch as what Mr. Singh was insisting on is not just a noting in the file but a recommendation made by the selection committee for members of the Commission. But such decision is never sacrosanct or final. It is always subject to the final acceptance by the Administration. 34. I thus find no merit in the writ petition. 35. The writ petition is dismissed. 36. There shall be however no order as to costs.