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2019 DIGILAW 1092 (GAU)

Manjit Mahanta v. State of Assam

2019-09-23

UJJAL BHUYAN

body2019
JUDGMENT : Ujjal Bhuyan, J. 1. Heard Mr. AC Borbora and Mr. UK Nair, learned Senior Counsel assisted by Mr. M Smith and Mr. MP Sarma, learned counsel for the petitioner. Also heard Mr. D Saikia, learned Senior Counsel assisted by Mr. S. Bora, learned Standing Counsel for Guwahati Development Department, Government of Assam and Guwahati Municipal Corporation. Mr. P. Pathak, learned Senior Counsel assisted by Mr. DP Borah, learned counsel has argued on behalf of respondent No. 9. 2. This petition has been filed under Article 226 of the Constitution of India seeking a writ of quo warranto for declaring appointment of respondent No. 9 to the post of Chief Engineer, Guwahati Municipal Corporation (GMC) as illegal and null and void. 3. Petitioner is a journalist and finding the impugned order to be unconscionable, he has filed the present writ petition. As a matter of fact, he had earlier filed a writ petition before this Court in WP(C) No. 5479/2018 challenging appointment of respondent No. 9 as Chief Engineer (In-charge) of Guwahati Metropolitan Development Authority (GMDA). 4. It is stated that respondent No. 9 is holding the post of Executive Engineer in ex-cadre in the Public Works Department (PWD), State of Assam. He was the beneficiary of several promotion orders from the stage of Assistant Executive Engineer and ultimately, he was given promotion to the post of Superintending Engineer (Civil), PWD. 5. At the direction of the Chief Minister, an inquiry was conducted by Addl. Chief Engineer (In-charge of Personnel Department). The inquiry was concluded on 16.12.2014 recommending reversion of respondent No. 9 from Superintending Engineer to Executive Engineer (ex-cadre). Thereafter consequential notification was issued on 05.01.2015. This was challenged by respondent No. 9 before this Court in WP(C) No. 5/2015 which was dismissed by a Single Bench of this Court on 30.04.2015. On writ appeal being filed by respondent No. 9, being WA No. 138/2015, a Division Bench of this Court allowed the appeal by interfering with the order of the Single Bench as well as notification dated 05.01.2015 vide order dated 07.08.2015. 6. This decision of the Division Bench was assailed before the Supreme Court in Civil Appeal Nos. 10662, 10663 and 10664/2018. Supreme Court vide judgment and order dated 23.10.2018 set aside the decision of the Division Bench and restored the judgment of the Single Bench. 7. 6. This decision of the Division Bench was assailed before the Supreme Court in Civil Appeal Nos. 10662, 10663 and 10664/2018. Supreme Court vide judgment and order dated 23.10.2018 set aside the decision of the Division Bench and restored the judgment of the Single Bench. 7. In the meanwhile, respondent No. 9 was appointed as Chief Engineer (In-charge) of GMDA vide order dated 27.07.2016. 8. Petitioner filed a writ petition before this Court, being WP(C) No. 5479/2018 seeking a writ of quo warranto by declaring appointment of respondent No. 9 as Chief Engineer (Incharge), GMDA as illegal and null and void. By order dated 07.03.2019, the writ petition was allowed by setting aside the order dated 27.07.2016. 9. Immediately, on that day i.e., on 7.3.2019 itself, a notification was issued by the PWD withdrawing the service of respondent No. 9 from the post of Chief Engineer (In-charge), GMDA under Guwahati Development Department and placing his service at the disposal of the Guwahati Development Department for posting as Chief Engineer, GMC on deputation pending finalization of the terms and conditions. 10. This was again put to challenge by the petitioner in WP(C) No. 1692/2019. While hearing the said writ petition, Mr. Saikia, learned Senior Counsel appearing for the official respondents made a submission before the Court that the notification dated 7.3.2019 was not an appointment order of respondent No. 9 with the further submission that since it was not an appointment order, Court should not entertain the writ petition at that stage but could examine validity of any order of appointment to the post of Chief Engineer, GMC as and when issued. In the light of such submission made, the said writ petition was disposed of on 13.03.2019 with liberty to the petitioner to approach the Court again, if any ineligible person was appointed to the office of the Chief Engineer, GMC. 11. Under Secretary to the Government of Assam, Guwahati Development Department thereafter issued notification dated 28.5.2019 placing the service of respondent No. 9 at the disposal of Guwahati Development Department as Chief Engineer of GMC. 12. This order is under assailment in the present proceeding. 13. This Court by order dated 03.06.2019 issued notice. In view of the submission made by Mr. 12. This order is under assailment in the present proceeding. 13. This Court by order dated 03.06.2019 issued notice. In view of the submission made by Mr. Saikia appearing for GMC that respondent No. 9 had already taken over charge in terms of notification dated 28.05.2019 and that there would be serious administrative dislocation in the event of stay, this Court did not grant any order of stay but observed that an expeditious hearing was called for. 14. An affidavit-in-opposition has been filed by respondent No. 2 i.e., on behalf of Guwahati Development Department. Maintainability of the writ petition has been questioned on the ground of locus standi of the petitioner. Clarifying issuance of notification dated 07.03.2019 on the same day when the High Court had passed the judgment in WP(C) No. 5479/2018 interfering with the appointment of respondent No. 9 as Chief Engineer (Incharge), GMDA, it is stated that it was a mere coincidence and nothing more should be read into it Appointment of respondent No. 9 as Chief Engineer of GMC on deputation basis has been justified. Infact, motives have been ascribed to the conduct of the petitioner. 15. Respondent Nos. 6 and 7 i.e., GMC and its Commissioner have filed common affidavit more or less on the same line questioning maintainability of the writ petition on the ground of locus standi of the petitioner. It is stated that in case of appointment of Chief Engineer, GMC, no advertisement was ever published. None of the earlier Chief Engineers were appointed following advertisement Appointment of respondent No. 9 as Chief Engineer is as per rules. 16. Respondent No. 9 has also filed counter-affidavit questioning maintainability of the writ petition on various grounds, including locus standi and malice. 17. Additional-affidavit has been filed by respondent No. 2 contending that procedure to be followed regarding appointment of officials on deputation as required under Section 67 of the Gauhati Municipal Corporation Act, 1971 cannot be termed as mandatory requirement. 18. Lengthy submissions were made by learned counsel for the parties. 17. Additional-affidavit has been filed by respondent No. 2 contending that procedure to be followed regarding appointment of officials on deputation as required under Section 67 of the Gauhati Municipal Corporation Act, 1971 cannot be termed as mandatory requirement. 18. Lengthy submissions were made by learned counsel for the parties. While learned counsel for the petitioner referred to Section 67 of the Gauhati Municipal Corporation Act, 1971 (GMC Act) as well as Rule 6 of the Guwahati Municipal Corporation Engineering Service Rules, 2004 (Engineering Service Rules) to contend that appointment of respondent No. 9 is non est in law, learned counsel for the respondents questions the standing of the petitioner to maintain a quo warranto petition. It is contended that petitioner is busy body and has an ulterior motive behind opposing each and every move of the respondents. It is also contended that suitability of a candidate for appointment cannot be subject matter of a quo warranto proceeding. 19. Responding to such contention, learned counsel for the petitioner has argued that the writ petition is maintainable. 20. In support of their rival submissions, more particularly on the question of locus standi vis-a-vis the quo warranto proceeding, a number of citations have been placed before the Court. 21. Submissions made by learned counsel for the parties have been considered. Also perused the materials on record. 22. At the outset, it would be appropriate to answer the contention raised on behalf of all the respondents to locus standi of the petitioner and consequentially maintainability of the writ petition. 23. Materials on record, as alluded to hereinabove, disclose that on 27.07.2016, respondent No. 9 was appointed as Chief Engineer (In-charge) of GMDA. This appointment was questioned by the petitioner before this Court in WP(C) No. 5479/2018. Challenge made by the petitioner was upheld by this Court vide order dated 07.03.2019. In that proceeding also a contention was raised that the quo warranto proceeding was not maintainable. Repelling such contention, this Court vide order dated 07.03.2019 held as under:- "13) This Court however, is not impressed by the submission advanced by the learned senior counsel for the respondent No. 3, for the reason that for issuance of Quo Warranto it would be immaterial whether the post involved is governed by a specific set of rules or is of purely temporary in nature. What matters, is that such a post must be a public office and must have certain set of criteria for such appointment, which have not been followed. (14) In the present case what has been noticed is that even if there is no set of service rules governing the appointment of the post of Chief Engineer of the Authority, Section 5(1)(1) itself indicates as to how the Chief Engineer of the Authorities to be appointed. To that extent, Section 5(1)(1) itself can be said to contain the rules regarding the appointment of the Chief Engineer. Though, Section 5(1)(1) speaks of the composition of the authority, it also contains the service rules as far as the office of the Chief Engineer of the Authority is concerned. (15) In that view of the matter, the present petition is allowed and the impugned order dated 27.07.2016 is set aside as illegal, ultra virus the Act as the respondent No. 1 is not eligible to hold the post of Chief Engineer even on in-charge basis." 24. Therefore, from the above, it is evident that the question of issuance of a quo warranto writ at the instance of the petitioner was gone into by this Court and the objection was not accepted. Thereafter when the notification dated 07.03.2019 was issued by the PWD withdrawing the service of respondent No. 9 from GMDA and placing it at the disposal of the Guwahati Development Department for posting as Chief Engineer, GMC, the same was again put to challenge before this Court at the instance of the petitioner in WP(C) No. 1692/2019. However, in that proceeding, a submission was made on behalf of the respondents that notification dated 7.3.2019 was not an order of appointment of respondent No. 9. In such circumstances, Court took the view that at that stage, it would not interfere in the matter as it appeared to be premature. However, while disposing the writ petition vide order dated 13.03.2019, liberty was granted to the petitioner to approach this Court again if any ineligible person was appointed to the office of Chief Engineer, GMC. 25. Following issuance of impugned notification dated 28.05.2019, present writ petition has been filed. 26. However, while disposing the writ petition vide order dated 13.03.2019, liberty was granted to the petitioner to approach this Court again if any ineligible person was appointed to the office of Chief Engineer, GMC. 25. Following issuance of impugned notification dated 28.05.2019, present writ petition has been filed. 26. From the above, it is evident that in the first round of litigation, objection as to locus standi of the petitioner vis-a-vis quo warranto proceeding was gone into by this Court and answered in favour of the petitioner. In the second round of litigation while observing that the litigation was premature, liberty was granted to the petitioner to approach this Court again in the event any ineligible person was appointed. 27. In the light of the above, objection of the respondents to the locus standi of the petitioner to seek a writ of quo warranto cannot be accepted and is liable to be rejected. That apart, Court is of the view that to hold at this stage that petitioner has got no locus standi to maintain a petition of quo warranto would be contrary to judicial discipline. Besides, it is well recognized that a writ of quo warranto will issue when an appointment is contrary to the statutory rules. Certainly suitability of a candidate for appointment is not within the realm of quo warranto jurisdiction. Only thing that is required to be scrutinized is whether appointment assailed is contrary to the statutory provision or not. 28. Therefore and in the light of the above, objection of the respondents to maintainability of the writ petition cannot be accepted and is accordingly rejected. 29. Section 67 of the GMC Act deals with appointment of officers of the Corporation. Sub-section (1) thereof, says that GMC may appointment proper persons, including officers on deputation from State Government to be the Chief Engineer etc. on such terms and conditions as may be determined. As per sub-section (4)(a), appointment of every officer under sub-section (1) shall be subject to the approval of the State Government. However, as per sub-clause (b), if the State Government does not communicate its approval to the appointment within 45 days, the appointment shall be deemed to have been approved. 30. Corporation has been defined in Section 3(14) of the GMC Act to mean Municipal Corporation, Gauhati. However, as per sub-clause (b), if the State Government does not communicate its approval to the appointment within 45 days, the appointment shall be deemed to have been approved. 30. Corporation has been defined in Section 3(14) of the GMC Act to mean Municipal Corporation, Gauhati. As per Section 4(1), there shall be a Corporation charged with the municipal administration of the city of Guwahati to be known as Municipal Corporation of Gauhati. Sub-section (2) provides for various municipal authorities under the Corporation which includes Commissioner. 31. In exercise of the powers under Section 67(3) and Section 415 of the GMC Act, GMC has made a set of rules called, Guwahati Municipal Corporation Engineering Service Rules, 2004 (Engineering Service Rules). Rule 3 thereof provides that engineering service shall comprise of various categories of engineers to be headed by the Chief Engineer. Rule 5 provides for method of recruitment. As per Rule 5, recruitment could be by way of deputation, direct recruitment and promotion. Rule 6 specifically deals with deputation. It says that cadre of Chief Engineer shall be filled up by suitable officers on deputation from Government of Assam. 32. From the above, it is evident that the post of Chief Engineer, GMC has to be filled up by way of deputation from Government of Assam. Requirement of the rule is that it should be by a suitable officer. Adverting to Section 67 of the GMC Act, it says that GMC may appoint proper persons, including officers on deputation from State Government to be Chief Engineer etc. As per sub-section (4)(a), such appointment is required to be approved by the State Government. Under Clause (b) thereof, if such approval is not forthcoming within 45 days, it shall be deemed to have been approved. 33. A conjoint reading of Section 67(1) and Rule 6 would go to show that while requirement under the said section is proper person, requirement under Rule 6 is suitable officer. In other words, the person coming on deputation has to be both proper as well as suitable. However, neither suitability nor appropriateness of a candidate can be gone into in a proceeding of this nature. In other words, the person coming on deputation has to be both proper as well as suitable. However, neither suitability nor appropriateness of a candidate can be gone into in a proceeding of this nature. In so far provision of sub-section 4(b) regarding deemed approval, in the opinion of the Court, the said provision would also not be applicable in the present case inasmuch as when the impugned notification was issued on 28.5.2019, the same was immediately put to challenge whereafter this Court issued notice on 3.6.2019. When the matter is under active consideration of the Court, question of granting approval by the State Government or deemed approval would not arise. 34. Having said that what is clear in this case is that the post of Chief Engineer in GMC has to be filled up by way of deputation. Concept of deputation as well as law relating to deputation is more or less crystallized and is well settled. Process of sending an employee or an officer on deputation is consensual. It requires consensus between lending and borrowing departments; besides, consent of the person so deputed. In addition to that, requirement of Rule 67 is that the appointment of Chief Engineer on deputation has to be made by the GMC through any of its officers, which in this case would be the Commissioner. 35. The sequence of events which unfolded as is discernible is that initially respondent No. 9 was appointed as Chief Engineer (In-charge), GMDA on deputation When this was interfered with by this Court, PWD withdrew the service of the petitioner from Chief Engineer (In-charge), GMDA to place his service at the disposal of Guwahati Development Department for posting as Chief Engineer, GMC on deputation. Thereafter, Guwahati Development Department issued notification dated 28.05.2019 placing the services of respondent No. 9 under disposal of Guwahati Development Department as Chief Engineer, GMC. Such appointment is contrary to the statutory requirement under Section 67 as per which it is the GMC which is the appointing authority, which is, however, subject to approval of the State Government. When the appointment was not made by the GMC, question of approval by the State Government would not arise. 36. In the light of the above, Court is of the view that the procedure prescribed under the law was not followed while appointing respondent No. 9 as Chief Engineer, GMC on deputation. When the appointment was not made by the GMC, question of approval by the State Government would not arise. 36. In the light of the above, Court is of the view that the procedure prescribed under the law was not followed while appointing respondent No. 9 as Chief Engineer, GMC on deputation. Consequently, impugned notification dated 28.05.2019 cannot be sustained and is accordingly set aside. 37. Writ petition is allowed. No costs.