Public Interest Litigation No.119 of 2015

4th February, 2016.

Petitioner Counsel: Mr. A.P. GERA
Respondent Counsel: Mr. M.D. SAMEL, Mr. D.N. MATHUR, Mr. ROHIT DEO

Cases Cited:
The University of Mysore Vs. C.D.Govinda Rao & anr., AIR 1965 SC 491 [Para 4,5]
B. Srinivasa Reddy Vs. Karnataka Urban Water Supply and Drainage Board Employees’ Association and Others, (2006) 11 SCC 731 (II) [Para 4,8]

JUDGMENT

B. R. Gavai, J. :- Heard Mr.A.P.Gera, learned Counsel for the petitioner, Mr. M.D. Samel, learned Counsel for respondent nos.1 and 2 and Mr.Rohit Deo, learned Assistant Solicitor General of India for respondent nos. 3 to 5.

2. Present petition has been filed by the petitioner, who claims to be a public spirited citizen, seeking a Writ of Certiorari for quashing the proceedings of respondent no.3 whereby respondent no.1 has been re-employed and also seeking a Writ of Quo Warranto against respondent no.1.

3. It is the contention of the petitioner that re-employment of respondent no.1, after he attained the age of 60 years, for a further period of two years is totally impermissible in view of the Handbook for Personnel Officers (published by DOP & T of the Government of India containing instructions on the grant of extension of service/re-employment to Central Government employees beyond the age of superannuation). Learned Counsel submits that respondent no.2/Mineral Exploration Corporation Ltd. has got separate status under the provisions of Mines and Minerals (Development and Regulation) Act, 1957 inasmuch as u/s.4 thereof, though for the purpose of prospecting or mining, licenses are required to be obtained by all others except the few exceptions including respondent no.2. It is, therefore, submitted that since no prospecting license is required to be obtained by respondent no.2, it exercises sovereign functions by carrying out activities of mining. It is, therefore, submitted that since respondent no.1 is appointed Head of respondent no.2 which exercises sovereign functions, the said Office will have to be considered as an Office which exercises sovereign functions and as such, the same would fit within the ambit of term 'public Office'. Mr.A.P.Gera, learned Counsel for the petitioner submits that, by wide interpretation given by the Hon'ble Supreme Court as well as this Court, the meaning of term 'public Office' has been expanded substantially and therefore, on account of development of law, this Court will have to include the Office which is occupied by respondent no.1 within the meaning of term 'public Office'.

4. Mr.Rohit Deo, learned Assistant Solicitor General of India submits that, for enabling a High Court to issue the Writ of Quo Warranto, it is necessary for a person approaching the Court to satisfy that the Office from which removal is sought is a public Office. The learned Counsel submits that, for the Office to be termed as a 'public Office', it is necessary that appointment to the said Office must be made under the Constitution or under the Legislation. He further submits that it is also necessary that the Office must be such which exercises some sovereign functions. Learned Counsel submits that neither ingredients are present in the present case. The learned Counsel, therefore, submits that, in that view of the matter, the Public Interest Litigation seeking Writ of Quo Warranto would not be tenable. He submits that, as such, if appointment to an ordinary post is under challenge, the same would come in the realm of service jurisprudence, in which a Public Interest Litigation would not be tenable. The learned Assistant Solicitor General of India relies on the Judgment of the Constitution Bench of Hon'ble Apex Court in the case of The University of Mysore .vs. C.D.Govinda Rao and another reported in AIR 1965 SC 491 and the Judgment of the Apex Court in the case of B. Srinivasa Reddy .vs. Karnataka Urban Water Supply and Drainage Board Employees' Association and Others reported in (2006) 11 SCC 731 (II).

5. In the case of University of Mysore (supra), an appointment to the post of Research Reader in English in the Central College, Bangalore was under challenge. The High Court allowed the petition and held the person appointed to be not having been appointed properly.

6. The question as to whether the said Office was a 'public Office' or not fell for consideration before Their Lordships and Their Lordships observed in paragraphs 6 and 7 as under :

6. The judgment of the High Court does not indicate that the attention of the High Court was drawn to the technical nature of the writ of quo warranto which was claimed by the respondent in the present proceedings, and the conditions which had to be satisfied before a writ could issue in such proceedings.

7. As Halsbury has observed :

"An information in the nature of a quo warranto took the place of the obsolete writ of quo warranto which lay against a person who claimed or usurped an office, 'franchise, or liberty, to enquire by what authority he supported his claim, in order that the right to the office or franchise might be determined." Broadly stated, the quo warranto proceeding affords a judicial enquiry 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, franchise or liberty; if the inquiry leads to the finding that the holder of the office has no valid title to it, the issue of writ of quo warranto outs him from that office. In other words, the procedure of quo warranto confers jurisdiction and authority on the judiciary to control executive action in the matter of making appointments to public offices against the relevant statutory provisions; it also protects a citizen from being deprived of public office to which he may have a right. It would thus be seen that if these proceedings are adopted subject to the conditions recognised in that behalf, they tend to protect the public from usurpers of public office; in some cases, persons not entitled to public office may be allowed to occupy them and to continue to hold them as a result of the connivance of the executive or with its active help, and in such cases, if the jurisdiction of the courts to issue writ of quo warranto is properly invoked, the usurper can be ousted and the person entitled to the post allowed to occupy it. It is thus clear that 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 is held by usurper without legal authjority, and that necessarily leads to the enquiry as to whether the appointment of the aid alleged usurper has been made in accordance with law or not."

7. It could thus be seen that Their Lordships have held that the quo warranto proceeding affords a judicial enquiry 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, franchise or liberty. Though Their Lordships observed that the Judgment of the High Court did not show that any statutory provisions or rules were placed before the Court and in making appointment of the person who was appointed, those statutory provisions have been contravened; however, Their Lordships considered the question as to whether the said person possessed the requisite qualification or not.

8. The Apex Court in the case of B. Srinivasa Reddy (supra) again considered the question with regard to appointment to the Office of Managing Director of the Karnataka Urban Water Supply and Drainage Board Employees' Association. It will be relevant to refer to paragraph 49 of the said Judgment, which reads thus :

"49. The law is well settled. The High Court in exercise of its writ jurisdiction in a matter of this nature is required to determine, at the outset, as to whether a case has been made out for issuance of a writ of quo warranto. 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 is contrary to the statutory rules."

9. It could thus be seen that Their Lordships held that the High Court in such matters is required to determine first as to whether a case has been made out for issuance of a Writ of Quo Warranto. It has further been held that jurisdiction of High Court to issue the Writ of Quo Warranto is limited, which can only be issued when the appointment is contrary to the statutory rules. It will further be relevant to refer to paragraphs 76 and 77 of the said Judgment, which read thus :

The Notification dated 31.1.2004 clearly states that the appointment is on contract basis and until further orders. While laying down the terms of appointment in its order dated 21.4.2004, the Government of Karnataka clearly stated that "term of contractual appointment of Sri B. Srinivasa Reddy shall commence on 1.2.2004 and will be in force until further orders of the Government and this is a temporary appointment." Section 6(1) of the Act categorically states that the Managing Director shall hold office during the pleasure of the Government. Power and functions of the Board are laid in Chapter V of the Act. A reading of the Act clearly shows that neither the Board nor its Managing Director is entrusted with any sovereign function. Black's Law Dictionary defines public office as under:

"Public Office: Essential characteristics of "public office" are (1) authority conferred by law, (2) fixed tenure of office, and (3) power to exercise some portion of sovereign functions of Government; key element of such test is that "officer" is carrying out sovereign function. Spring v. Constantino 168 Conn.563, 362 A.2d 871, 875. Essential elements to establish public position as "public office" are position must be created by Constitution, legislature or through authority conferred by legislature, portion of sovereign power of Government must be delegated to position, duties and power must be defined, directly or impliedly, by legislature or through legislative authority, duties must be performed independently without control or superior power other than law, and position must have some permanency and continuity, State vs. Taylor."

10. Perusal of the aforesaid paragraphs would reveal that the Writ of Quo Warranto can be issued only when appointment to a public Office is challenged. For an Office to be a public office, it is necessary that such Office is conferred by law; it has a fixed tenure of Office and it has power to exercise some portion of sovereign powers of the Government. It has been held that position must be created by Constitution, Legislature or through authority conferred by Legislature. It has further been held that the duties and powers must be defined directly or impliedly by legislature or through legislative authority. In the present case, except a reference to Section 4 of the Mines and Minerals (Development and Regulation) Act, 1957, the learned Counsel for the petitioner has not been in a position to point out any other provision to show that either respondent no.2 is a creature of any legislative enactment or appointment of respondent no.1 is made under any of the provisions of Statute. When respondent no.2 itself is not a creature of Statute, but is a Government Company incorporated under the provisions of the Company Act, there could be no question of Office of the Managing Director of respondent no.2 being considered as a public Office. We do not find that respondent no.2 discharges any sovereign functions. The only factor that respondent no.2 is exempted from obtaining prospecting licenses along with other Organisations cannot be considered to be a factor leading to the conclusion that respondent no.2 exercises some of the sovereign functions.

11. If the Office, which is being occupied by respondent no.1, is held to be not a public Office, then this Court would not be entitled to invoke a Quo Warranto jurisdiction. At the most, the Court can exercise a Certiorari jurisdiction. However, in service matters, Certiorari jurisdiction cannot be invoked by way of a Public Interest Litigation and it is only the person who is aggrieved, who can knock the doors of the Court seeking redressal of his grievance.

12. We have no hesitation in holding that neither respondent no.2 is a creature of Stature nor the Office of Chairman-cum-Managing Director of respondent no.2 can be held to be a public Office. In that view of the matter, the Writ of Quo Warranto would not be tenable. If the Writ of Quo Warranto is not tenable, the Public Interest Litigation at the behest of the person who is not an aggrieved person would not be tenable.

13. The present Public Interest Litigation is, therefore, rejected on the point of preliminary objection raised by the respondents.

No order as to costs.

PIL dismissed.