Reddy Vs. Karnataka Urban Water Supply & Drainage Board Employees' A  Insc
543 (28 August 2006)
Ar. Lakshmanan & Tarun Chatterjee
out of SLP (C) No. 9393/2006) WITH
CIVIL APPEAL NO. 3722 OF 2006 Arising out of SLP (C) No. 10388/2006) Dr. AR. Lakshmanan,
granted in both the special leave petitions.
appeals have raised substantial questions of law involving interpretation of
certain provisions of the Karnataka Urban Water Supply and Drainage Board Act,
1973 (for short "the Act") and the Rules made thereunder and also the
principles of law governing the Writ of Quo Warranto and the power of the
Government to make a contractual appointment under Section 4(2) of the Act.
Appeal No._____________ of 2006 (Arising out of SLP (C) No. 9393 of 2006) This
appeal was filed by Mr. B. Srinivasa Reddy (hereinafter called Mr. Reddy)
seeking leave to appeal against the final judgment and order dated 04.04.2006
passed by the High Court of Karnataka at Bangalore in Writ Appeal No. 86 of
2006. By the impugned order, the High Court dismissed the writ appeal filed by
the appellant-herein against the order dated 10.01.2006 passed by a learned
Judge of the said Court in Writ Petition No. 9852 of 2004 and has declared that
the appellant is not entitled to hold the post of Managing Director of the
Karnataka Urban Water Supply & Drainage Board (hereinafter called 'the
Board') (respondent No.4).
Appeal No.___________ of 2006 (Arising out of SLP (C) No. 10388 of 2006) The
above appeal was filed by the Government of Karnataka against the very same
judgment passed by the Division Bench of the High Court in Writ Appeal No. 254
of 2006 whereby the Division Bench dismissed the writ appeal filed by the
Karnataka Urban Water Supply & Drainage Board Act, 1973 was enacted to
provide for the establishment of water supply and drainage Board and the
regulation and development of drinking water and drainage facilities in the
urban areas in the State of Karnataka. The
Board, with the previous sanction of the Government of Karnataka, framed the
Karnataka Urban Water Supply & Drainage Board Services (Cadre and
Recruitment) Regulations, 1985. An amendment to serial No. 1 of the Schedule to
the Regulations was introduced by the Board whereby even the Chief Engineers of
the Board were made eligible for appointment to the post of Managing Director.
Respondent No.1 is the Karnataka Urban Water Supply & Drainage Board
Employees' Association represented by its President Halakatte. He is also
respondent No.2 in his capacity as President of the Employees' Association. The
State of Karnataka and the Board are also the
contesting respondents 3 and 4 in this appeal.
No.1 (hereinafter called the Employees' Association) filed writ petition No.
44001 of 1995 in the High Court of Karnataka challenging the appointment of one
S. Ramamurthy as the Managing Director of the Board on the ground that by
virtue of Section 7(1)(d) of the Act, the said Ramamurthy, being an
officer/servant (Chief Engineer earlier) of the Board, could not have been
appointed as the Managing Director of the Board.
Government of Karnataka, vide notification No. UDD/14/UB/91 dated 28.04.1997,
nominated the appellant who was a Chief Engineer of the Board as one of the
Directors of the Board "with immediate effect and until further
Board, after due approval of the State, vide G.O. No. HUD 15 UWE 93 dated
11.12.1997, amended the method of recruitment for the post of Managing Director
of the Board in serial No. 1 of the Schedule to the Regulations to the effect
that a Managing Director can be selected only from amongst the Chief Engineers
of the Board. Other criterias were removed.
28.01.1998, the Government of Karnataka, through the Urban Development
Department, vide Notification No. UDD 4 UWE 98 dated 28.01.1998, pursuant to
Section 53 of the Act read with Rule 27 of and serial No. 1 of the Schedule to
the Regulations, promoted the appellant on officiating basis and appointed him
as the Managing Director of the Board w.e.f. 31.01.1998 afternoon and
"until further orders" since S. Ramamurthy, the then Managing
Director of the Board took voluntary retirement.
Employees' Union filed an amended version of the writ petition before the High
Court also challenging the above- mentioned amendment to the Regulation which
relates to making of a provision of appointing the Chief Engineer of the Board
as its Managing Director. The writ petition was further amended to include the
challenge to the promotion/appointment of the appellant as the Managing
Director of the Board pursuant to the said amendment.
learned Single Judge of the High Court allowed the writ petition on 12.04.2002
impugned amendment of the Regulations was illegal since the same was contrary
to Section 7(1)(d) of the Act;
appointment of the appellant is illegal since, being a Chief Engineer of the
Board, he was disqualified under Section 7(1)(d) of the Act and hence his
appointment was contrary to the provisions of Sections 7(1)(d), 68 and 69 of
the Act, Rules and Regulations;
appointment was further held to be illegal since it was also contrary to
Regulation 27 of the Regulations as the appointment was not restricted to one
year but until further orders.
High Court quashed the appointment orders and directed the State to take
immediate steps to appoint the Managing Director of the Board.
appeals were filed by the Board, the Government and the appellant Mr. Reddy.
Division Bench of the High Court in Writ Appeal No. 2877-78 of 2002, issued
notice and stayed the order of the learned Single Judge for a period of two
months which was later continued. By virtue of this order, the appellant
continued to enjoy the post of Managing Director.
appellant retired as Managing Director of the Board on 31.01.2004. The
Relieving Order reads thus:
B. Srinivasa Reddy, Managing Director, KUWS&DB who retired from service on
attaining superannuation as 31-01-2004 is
relieved from his duties on the afternoon of 31-01-2004." He was re-appointed as Managing Director of the
Board until further orders on 01.02.2004. Writ Petition No. 9852 of 2004 was
filed for a Writ of Certiorari, Writ of Quo Warranto and any other writ, order
or direction under Article 226.
Single Judge allowed the Writ Petition No. 9852 of 2004. Writ Appeal No. 86 of
2006 was admitted and the operation of the learned Single Judge's order was
stayed on 16.01.2006 and Writ Appeal No. 86 of 2006 was finally dismissed on
Court also imposed costs of Rs.10,000/- against the appellant and also imposed
cost against the State Government and respondent No.4 at Rs.5,000/- each
pertinent to notice that in 2002, a complaint was made to the Lokayukta against
the Chairman and the appellant - Mr. Reddy by Mr. Halakatte, President of the
Employees' Association (R2 herein). By order dated 13.08.2003 Lokayukta held
that the allegation against the appellant is baseless. Lokayukta after
absolving the appellant of false allegations directed action against the then
FA & CAO of the Board. The Lokayukta closed the complaint on 01.02.2005
after Government has taken action against FA & CAO.
heard Mr. P.P. Rao, learned senior counsel assisted by Mr. P.S. Rajagopal, learned
counsel for the appellant and Mr. Sanjay R. Hegde for the State of Karnataka
and Mr. Raju Ramachandran, learned senior counsel assisted by Mr. Devashish Baruka
and Mrs. Hansa Baruka, learned counsel for the contesting respondent the
P.P. Rao, learned senior counsel made elaborate submissions on facts and on law
with reference to the pleadings, annexures, judgments and the relevant
provisions of the Act. He made submissions on the following issues:-
Writ petition as
framed not maintainable at the instance of an unregistered Trade Union;
Locus of the
writ petitioners Employees' Union;
No Writ of Quo Warranto
unless there is violations of statutory provisions in making appointment;
No violation of
Section 4(2) and or Rule 3 of Rules as held by the High Court;
always the power to make contractual appointment until further orders and
finding to the contrary is ex facie erroneous;
reliance on official Memorandum dated 23.12.1994 is erroneous;
Pleasure of the
Government under Section 6(1) of the Act and Rule 3 of the Rules which
envisages the qualifications;
orders pleasure of the Government and discretion;
Legal malice finding
Writ petition by R1, R2 was motivated
as R1 had lodged a false complaint to the Lokayukta against the appellant Reddy
which was found to be baseless.
above submissions will be dealt with in extenso in paragraphs infra.
Sanjay R. Hegde adopted the arguments of Mr. P.P. Rao. He invited our attention
to Article 310(2) of the Constitution of India.
310 deals with tenure of office of persons serving the Union or a State. Under the pleasure doctrine, a servant
of the Government holds office during the pleasure of the sovereign. But in
order to protect civil servant against the political interference Article 311
introduces certain safeguards.
a specific contract can override the doctrine of pleasure as reported in Parshotam
Lal Dhingra vs. Union of India, AIR 1958 SC 36.
Ramachandran in his usual fairness fairly conceded that he is not questioning
the State Government's power in appointing persons on contract basis. According
to him, the entire case is not based on end of lack of power but an abuse and mis-use
of that power by the State Government.
to him, non-specification of a period of appointment amounts to abuse of power,
mis-use of power and illegal malafides and that power is not used for the
purpose for which it is vested in the Government. According to him, form of the
writ should not be a matter which should inhibit the Court.
argument was advanced in regard to the prayer made in the writ petition on the
maintainability of the writ petition.
Ramachandran submitted though the employees association was not a registered
body on the date of filing of the writ petition, the association was registered
again as a trade union under the Trade Unions Act on 20.01.2005 and that though
the employees union was not a registered trade union but was a recognized union
by all and, therefore, the association is entitled to maintain the writ
petition as framed.
also made elaborate submissions with reference to the records, annexures and
the judgments and of the Government orders.
Ramachandran also submitted that the civil appeal has now become infructuous in
view of the developments which have taken place subsequent to the orders of
this Court dated 08.05.2006 by which notice was issued to the respondents in
view of the fact that the Government of Karnataka has now appointed one Mr. P.B.Ramamurthy
as the Managing Director of the Board with immediate effect by an order
contained in the notification dated 17.05.2006 and pursuant to the above order
the appellant Mr.Reddy has already made over the charge of the office of
Managing Director of the Board to the said P.B. Ramamurthy who had received
charge of the said office on 19.05.2006. It was submitted that the appellant
has no substantive right left qua the post of Managing Director of the Board
since even as per his appointment order dated 31.01.2004 he is to have charge
only "until further orders". In view of the above subsequent
developments, learned counsel for the Union
submitted that the present appeal has become infructuous.
to Mr. Raju Ramachandran, though the power to appoint is vested with the State
Government under Section 4(2) of the Act the same is not unfettered or
uncontrolled. It cannot be based on mere ipsi dixit of the Government the
discretion of the Government cannot be said to be without any bounds. If the
High Court on the facts of a particular case finds that such discretion has
been mis-used, the High Court would be within its power to check such actions
of the Government.
to him, a Writ of Quo Warranto would lie to challenge an appointment made until
further orders on the ground that it is not a regular appointment. Merely
because the appointment is for until further orders would oust the jurisdiction
of the High Court to issue a Writ of Quo Warranto when it is found that the
very appointment was illegal and not warranted within the provision of law.
submitted that the words pleasure of the Government found in Section 6(1) of
the Act cannot be given a meaning so as to grant arbitrary and un-fettered
powers to the Government with respect to appointment of a Managing Director to
the Board. It is submitted that the words cannot mean as absolute and
unconditional will of the Government, for that would go counter to the
constitutional scheme and to the rule of law itself.
instant case, under the guise of temporary appointment made until further
orders, the Government in fact by misusing its discretionary powers ensured
that the appellant's appointment continues without any limit as to tenure or
term. It is submitted the High Court rightly passed the impugned order since
the appointment was in violation of the provisions of law. It is submitted that
no appointment to a public post can be made without a specific tenure.
According to Mr. Raju Ramachandran, the official memorandum dated 23.12.1994
squarely applies to the Board in question and that the said memorandum in
express terms provide that procedure contained therein shall apply, inter alia,
to Boards which are subordinate to or under the control of the Government. It
is thus submitted that the Board is covered with the said memorandum.
further contended that Section 7(1) (d) of the Act read with the above official
memorandum would make it clear that retired employees cannot be appointed the
post of Managing Director of the Board. The purpose of Section 7(1)(d) and the
office memorandum dated 23.12.1994 has to be looked into while deciding the
legality of the appointment of the appellant to the post of Managing Director
of the Board.
to Mr. Raju Ramachandran it has nowhere come on record that the appellant
possessed such exceptional and high qualifications as to warrant the Government
to deviate from its own policy and appointed the appellant. In fact any
experience gained by the appellant during his tenure as the Managing Director
prior to his retirement is of no consequence since such appointment was held to
be illegal and invalid by the High Court. No exceptional circumstances has been
shown that the appointment of the appellant to the post of Managing Director in
deviation to regular mode of appointment of IAS officers on deputation.
regard to the maintainability of the writ petition Mr. Raju Ramachandran
submitted that the High Court did not rely upon the status of the writ
petitioners as registered trade union but rather accepted their locus standi as
employees of the Board and their right to form trade unions associations though
unregistered and on such basis permitted them to challenge the appointment in
writ proceedings. According to him, the unregistered unions, in the eyes of law
can contend that it has to come and knock the doors of this Court seeking
justice by pointing out the illegalities of the State Government in appointing
the appellant as Managing Director of a Statutory Board wherein public interest
is involved. The purpose, according to him, is to espouse the cause of the
workers. Therefore, the writ petitioners were employees of the Board and cannot
be considered as wayfarers and that the employees approached the High Court in
public interest and have been attempting to dissuade the Government from
granting favour to the appellant herein by appointing him at the post of
Managing Director of the Board for long.
have carefully considered the rival submissions with reference to the entire
the unregistered Trade union = Maintainability:
No. 1 association was a recognized association. It is registered again as a
trade union on 20.01.2005 i.e. before the pronouncement of judgment of the
learned single judge. Respondent No.2 Halakatte, who is the President of
Respondent No.1 in his individual capacity has also challenged the appointment.
In Quo Warranto proceedings any concerned person can file a writ petition.
dealing with the locus, the High Court has relied upon the right of persons to
form association and consequently to file a Writ in Quo Warranto proceedings.
fact, Mr. Rao distinguished the cases referred to by the respondents on the
issue of non-registered associations having no locus to file writ petitions as
distinguishable and inapplicable in the present facts and circumstances.
Kumar Gupta and Others vs. Union of India, Ministry of Petroleum and Natural
Gas, (1995) 1 SCC 85, this Court held that the writ petition filed by an
Association is not maintainable as Association has no fundamental right under
Article 32 of the Constitution of India.
and Another vs. General Manager, Telecom District and Others, (2004) 13 SCC
772, the appellant before this Court was an Association which claims working in
public interest preferred an appeal against the judgment of the High Court with
an application for permission to file special leave petition. The said
permission was granted.
the matter was heard, this Court found that the appellant was neither party in
the case before the Forum nor before the High Court. It was also not shown
before this Court in what manner the appellant was aggrieved by the judgment of
the High Court. This Court held that the appellant has no locus standi and
cannot be permitted to challenge the judgment of the High Court.
attention was also drawn to the proceedings of the Deputy Registrar of the
Trade Union Dharwad (Division) Hubli dated 02.11.1992 Government of Karnataka
(Department of Labour). The said proceedings reads thus:- "Subject:
Cancellation of registration of Trade Unions, under Trade Union Act, 1926.
This office notice No. TUA/AR.1991 dated 30.7.1992 ***** WHEREAS a notice was
issued from this office to the General Secretary/Secretary, Karnataka Urban
Water Supply & Drainage Board Employees Association, Hubli, cause as to why
the registration of trade union should not be cancelled owing to the violation
of the provisions of section 28 of the Trade Union Act, 1925, by not submitting
the Annual Return of the union for the year ending 31st December, 1991.
whereas the union was not complied with the above requirements, even after
notice, contravened the above provisions of law. Therefore in exercise of my
powers conferred under Section 10(b) of the Act, I hereby order that the
Registration of the Water Supply & Drainage Board Employees Association, Hubli
Bearing Registration No. 544/85 be cancelled with effect from the date of this
General Secretary is hereby directed to surrender the certificate of
registration." In the instant case, the appellant was appointed w.e.f.
01.02.2004. The Employees Union filed the
writ petition on 08.03.2004. On the said date, the respondent-Union was not a
registered trade union and the Certificate of Registration of the Trade Union
in Form 'C' was issued by the Government of Karnataka, Department of Labour
only on 20.01.2005 which reads thus:- "It is hereby certified that the
Karnataka Nagar Niru Sarbaraju Mattu Olacharandi Noukarar Sangha, Dharwa. has
been registered under the Indian Trade Unions Act, 1926.
20th January 2005 Sd/ Deputy Registrar of Trade
Unions Assistant Labour Commissioner, Dharwad Division, Hubli." In Parents
Teachers Association and Others vs. Chairman, Kendriya Vidyalaya Sangathan and
Others, AIR 2001 Rajasthan 35, speaking for the Bench, Chief Justice Dr. AR.Lakshmanan,
in paras 12 and 13 observed as under:-
"The appellant-petitioners have
not placed before this Court any document to show that the Parents- Teachers
Association is a registered and recognised association. The writ petition has
been allegedly filed in public interest and the alleged large interest of the
students. It is evident that the so-called Parents- Teachers Association is an
unregistered and unrecognised association and, therefore, in our view, has no
fundamental right to approach this Court under Article 226 of the Constitution.
This point has been concluded by the decision of the Apex Court in the case of Mahendra Kumar Gupta
(supra) and by the decision of Full Bench of this Court in the case of RSEB
Accountant's Association (supra). A reply to the preliminary objection raised
by the respondents was also made by the appellants. It is stated that the Parents-Teachers
Association has been recognised by the KVS and that the Principal is the Vice
Chairman of the said Association and hence, the Association is competent to
file the writ petition on behalf of the students. In our view, the above reason
cannot be considered as a valid reason for maintaining the writ petition. It is
not in dispute that the Association is not a registered body and recognised
Association. Thus, after examining this point of law in detail and placing
reliance on various judgments delivered by the Apex Court from time to time,
the Full Bench of this Court in the case of RSEB Accountant's Association
(supra) held as under:- "It may also be observed that an unregistered
association has no fundamental right to approach this Court under Art. 226 of
the Constitution and this point is concluded by the decision in the case of Shri
Maninder Kumar Gupta vs. Union of India, Ministry of Petroleum and Natural Gas;
JT 1995 (1) SC 11. A decision in the case of Akhil Bharatiya Soshit Karamchari Sangh
vs. Union of India and others AIR 1981 SC 298 was relied where the
non-registered Association was held to apply under Art. 32 of the Constitution.
We may observe that there had been number of the instances of public interest
litigation where large body of persons is having the grievance against inaction
of the State. Even letters have been considered to be a writ petition but all
these are the matters where large section of public is affected and the
personal interest of any person or a smaller section as in the present case, is
not involved. Even in the case of People's Union for Democratic Rights vs.
Union of India; AIR 1982 SC 1473 when the question of locus standi was
considered, the Hon'ble Supreme Court had taken into consideration the poverty,
illiteracy and the ignorance obstructing and impeding accessibility of the
judicial process and on that ground it was considered that the writ petition
can be filed. In D.S. Nakara & Others vs. Union of India AIR 1983 SC 130
the old pensioners individually were unable to undertake journey through
labyrinths of costly and protracted legal judicial process for allowing to
espouse their cause. In case of S.P. Gupta and Others. vs. President of India;
(AIR 1982 SC 149 poverty, helplessness and disability or social or economic
disadvantaged, position was considered a sufficient ground for maintaining the
writ petition. There had been other decisions of the Apex Court as well and principles which emerge
from all of them are as under:-
That the members
of the said association should have sufficient strength so as to come in the
category of a large sect of public.
That the members
should be identifiable.
That the members
must be of the category of poor/illiterate/helpless or disabled.
individual member must not be capable of filing a writ petition.
That the entire
body of the members must authorise the association to protect their legal
That such an
association must have its own Constitution, and
That there must
be authority to file a writ petition on behalf of all the members."
In the instant case, none of the
grounds mentioned above in (a) to (g) have been satisfied by the present
appellants to maintain the writ petition. Since the above conditions are not
fulfilled such an unregistered association cannot file writ petition in respect
of the legal rights of the said association for the alleged breach of
fundamental right as the association itself has no fundamental right of its
own." We shall now advert to the provisions of the Industrial Disputes Act
with reference to the registration of Trade Unions. Section 2(q)(q) defines
trade union which means a trade union registered under the Trade Unions Act,
1926 (16 of 1926). Section 36 of the Industrial Disputes Act, 1947 says that
the workman who is a party to dispute shall be entitled to be represented in
any proceedings under this Act by any member of the executive or other office
bearer of a registered trade union of which he is a member or by any member of
the executive or other office bearer of a federation of trade unions to which
the trade unions referred to in clause A is affiliated.
writ petitioner union made a false averment that it is a registered trade union
that itself, in our opinion, is a ground to dismiss the writ petition. The writ
petitioner has made an averment to the following effect in its writ petition
which is also reflected in the order passed by the High Court in the writ
petition which runs thus:
petitioner is a registered Trade Union of employees of 2nd respondent Karnataka
Urban Water Supply & Drainage Board (hereinafter referred to as 'the
Board') constituted under the Karnataka Urban Water Supply and Drainage Board
Act, 1973 (hereinafter referred to as 'the Act')." In the writ petition
filed by respondent Nos. 1 and 2 their locus standi to challenge the
appointment of the appellant was asserted in the following words:- "The
petitioner Association is Trade Union registered under the Trade Unions Act,
1926. The petitioner is the only registered trade union existing in the 2nd
respondent-Board. The Board has held several negotiations with the petitioner Union in regard to the service conditions of the employees
of the 2nd respondent-Board since its formation in the year 1986.
Board has entered into several settlements with the petitioner Union with regard to their service conditions.
petitioner which is a recognized trade union is entitled to agitate the matter
with regard to the appointment of the 3rd respondent to the Board. The
petitioner is concerned about the functioning of the 2nd respondent-Board, and
as such is entitled to question the appointment of the 3rd respondent as
Managing Director on contract basis. Hence, the petitioner has locus standi to
file this Writ Petition." (Emphasis supplied) These averments were
established to be false. The registration of the first respondent under the
Trade Unions Act had been cancelled as early as on 02.11.1992. It is not a
registered and recognized union. In fact, it was pointed out that recognized
association is one Karnataka Urban Water Supply and Drainage Board Officers and
Employees Association and the first respondent does not have even a handful of
members. The fact of cancellation of registration of the first respondent came
to the knowledge of the appellant long after the disposal of the earlier writ
petition No. 44001 of 1995 wherein the Court had given a finding that the first
respondent has locus standi to challenge the appointment of the appellant to
the post of Managing Director of the Board solely on the ground that it is a
registered Trade Union. In our opinion, the High Court gravely erred in
refusing to examine the question of locus standi on the ground that it is
decided in the earlier writ petition which operates as res judicata and that
the petitioners even otherwise have locus standi. Chapter-III of the Trade
Unions Act, 1926 sets out rights and liabilities of the registered Trade
Unions. Under the said enactment, an unregistered trade union or a trade union
whose registration has been cancelled has no manner of right whatsoever even
the rights available under the I.D. Act have been limited only to those trade
unions which are registered under the Trade Unions Act 1926 by insertion of
clause 2 (q)(q) in the I.D. Act w.e.f. 21.08.1984 defining a trade union to
mean a trade union registered under the Trade Unions Act. 1926.
High Court, in our opinion, miserably failed and gravely erred in holding that
the respondent Nos. 1 and 2 have locus standi to question the appointment of
the appellant in the light of the change of law that has been brought about by
insertion of Section 2(q)(q) of the I.D. Act and having regard to the
provisions of Chapter-III of the Trade Unions Act, 1926.
Court, in many judgments, held that the Union
has locus standi in the facts and circumstances of that case, however,
cautioning that if a citizen is no more than a wayfarer or officious intervener
without any interest or concern that what belongs to anyone of the 660 million
people of this country.
Corporation Kamgar Union (Regd.) Sindri and Others vs. Union of India and
Others, (1981) 1 SCC 568.
doors of the Court will not ajar for him.
instant case, the employees association approached the High Court with unclean
hands. The employees who approaches the Court for such relief must come with
frank and full dis-closure of facts. If they failed to do so and suppress
material facts their application is liable to be dismissed.
Constitution Bench of this Court in Naraindas vs. Government of Madhya Pradesh
and Others, AIR 1974 SC 1252 held that if a wrong or mis-leading statement is
deliberately and wilfully made by a party to a litigation with a view to obtain
a favourable order, it would prejudice or interfere with the due course of
judicial proceeding and thus amount to contempt of court.
thus crystal clear that the Employees' Union
have approached this Court by suppressing the material facts and has snatched
an order on the basis of wrong averments when the employees union has no locus standi
to maintain the writ petition on the date relevant in question. Courts cannot
grant any relief to a person who comes to the Court with unclean hands and with
mala fide intention/motive. The writ petition filed by the employees
association is liable to be thrown out on this single factor. Though it is
eminently a fit case for awarding exemplary costs, considering the employees
financial aspect and taking a lenient view of the matter, we are not ordering
a Writ of Quo Warranto lies to challenge an appointment made "until
further orders" on the ground that it is not a regular appointment. Whether
the High Court failed to follow the settled law that a Writ of Quo Warranto
cannot be issued unless there is a clear violation of law. The order appointing
the appellant clearly stated that the appointment is until further orders. The
terms and conditions of appointment made it clear that the appointment is
temporary and is until further orders. In such a situation, the High Court, in
our view, erred in law in issuing a Writ of Quo Warranto the rights under
Article 226 can be enforced only by an aggrieved person except in the case
where the writ prayed for is for Habeas Corpus or Quo Warranto.
instant case, the power to appoint the Managing Director of the Board is vested
in the Board under 4(2) of the Act. Neither the Act nor the Rule prescribed any
mode of appointment or tenure of appointment. When the mode of appointment,
tenure of appointment have been left to the discretion of the Government by the
Act and the Rules and the Act makes it clear that the Managing Director shall
hold office at the pleasure of the Government the High Court could not have
fettered the discretion of the Government by holding that Section 4(2) of the
Act does not expressly give the power to the State Government to make ad hoc or
contract appointment when the Act and the statutory rules have not prescribed
any definite term and any particular mode, the High Court could not have read
into the statute a restriction or prohibition that is not expressly prohibited
by the Act and the Rules. It is well settled that when the statute does not lay
down the method of appointment or term of appointment and when the Act
specifies that the appointment is one of sure tenure, the Appointing Authority
who has power to appoint has absolute discretion in the matter and it cannot be
said that discretion to appoint does not include power to appoint on contract
basis. An appointment which is temporary remains temporary and does not become
a permanent with passage of time. The finding records by the learned Single
Judge that the appointment is bad for the reason that the appointment which was
made on temporary basis has continued for nearly 2 years is wholly contrary to
law particularly when the Act and the Rule do not stipulate maximum period of
appointment. The High Court, in our view, gravely erred in issuing a Writ of
Quo Warranto when there is no clear violation of law in the appointment of the
official memorandum dated 23.12.1994 on a plain reading of it applies only to
Government servants. It has no manner of the application to the employees or
servants of the statutory boards. The appellant is not a retired government
servant. His appointment as Managing Director of the Board is not a post in
Government service. The High Court has erred in law in applying the said
official memorandum to the appointment of the appellant which is governed only
by the Act and the Rules, even otherwise the High Court has failed to
appreciate that the official memorandum running counter to the statutory
provisions are ineffective and at any event cannot be enforced in a quo warranto
appellant joined the services of the State in the public health engineering
segment of its Power Works Department in the year 1967. From the time, the
Karnataka Urban Water Supply & Drainage Board was established in the year
1975, he has been working in the Board having initially been appointed to its
services as Assistant Engineer, thereafter, absorbed in its services and by his
consistently good performance and unblemished record reached the post of Chief
Engineer of the Board. He has apart from about 34 years of experience in
development, establishment, maintenance and management of drinking water and
drainage facilities in the urban areas has undergone several training programmes
abroad in planning, appraisal implementation of water and sanitation projects
and management development programme for senior public health engineers.
4(2) of the Act, 1973 mandates that the Managing Director shall possess the
prescribed qualification and he shall be appointed by the Government. Rule 3 of
the Rules, 1974 prescribes the qualification for appointment of Managing
Director in these words:
Managing Director shall be a person having experience in administration and
capacity commercial matters." There was not even a pleading that the
appellant does not have experience in administration and capacity in commercial
matters. The appointment of the appellant has been made by the Government in
exercise of powers conferred on it by Section 4(2) of the Act. The High Court
does not dispute the power of the Government to make the appointment. Mr. Raju Ramachandran,
learned senior counsel for the Union does not
dispute that the power of the Government to make contractual appointment. A
perusal of the judgment of the High Court would only go to show that the High
Court did not record any finding that the appellant does not possess the qualification
prescribed by the acts and rules. The disqualification for appointment as a
Director of the Board are set out in Section 7 of the Act. The only
disqualification that the appellant suffered was under Section 7(1)(d) of the
Act. He being an employee of the Board and this disqualification disappeared on
31.01.2004 when the appellant retired from service of the Board on
superannuation. The High Court having regard to the technical nature of quo warranto
proceedings could not have ousted the appellant from the office on the ground
of an inapplicable qualification prescribed by administrative instruction dated
23.12.1994 which had no manner of application for appointment to the post of
Managing Director of the Board.
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.
official memorandum dated 23.12.1994 deals with re-appointment of retired
government servants and granting extension of service to retired government servants.
As already stated, the appellant is not a government servant nor a retired
government servant. The official memorandum is an administrative instruction
which is contrary to the provisions of the Act and statutory Rules neither the
Act nor the Rules prescribe any age of retirement for the Managing Director of
the Board. On the other hand, having regard to the dis- qualification
prescribed by Section 7(1)(d) of the Act to the effect that an officer or
servant of the Board cannot be appointed as Managing Director. The High Court
could not have read an additional dis-qualification that a retired officer or a
servant of the Board also cannot be appointed as Managing Director of the
Board. The memorandum dated 23.12.1994 is no manner of application to the appointment
in question and it is even otherwise ineffective inasmuch as it is an
administrative instruction which is contrary to the provisions of the Act and
the Rules. The High Court, in our opinion, erred in ousting the appellant from
his service by issue of a Quo Warranto on the ground that the appellant having
retired from this service of the Board on 31.01.2004 suffered dis-qualification
under the said memorandum by a reading of the Act and the Rules the appellant
acquired qualification for appointment on 31.01.2004 on his retirement and the
view of the High Court that the appellant is dis- qualified on 31.01.2004 on
his retirement from service of the Board is not only contrary to the Act and
the Rules is also plainly opposed to the language of the memorandum itself.
otherwise, no Writ of Quo Warranto could have been issued on the ground that
even though the appointment is contrary to any statutory rule it is contrary to
the administrative instruction which the High Court holds as disclosed the policy
of the Government. There is no warrant to have taken such a view at all.
settled law by a catena of decisions that Court cannot sit in judgment over the
wisdom of the Government in the choice of the person to be appointed so long as
the person chosen possesses prescribed qualification and is otherwise eligible
for appointment. This Court in R.K. Jain vs. Union of India, (1993) 4 SCC 119
was pleased to hold that the evaluation of the comparative merits of the
candidates would not be gone into a public interest litigation and only in a
proceeding initiated by an aggrieved person, it may be open to be considered.
It was also held that in service jurisprudence it is settled law that it is for
the aggrieved person that is the non- appointee to assail the legality or
correctness of the action and that third party has no locus standi to canvass
the legality or correctness of the action. Further, it was declared that only
public law declaration would be made at the behest of public spirited person
coming before the Court as a petitioner having regard to the fact that the
neither of respondent Nos. 1 and 2 were or could have been candidates for the
post of Managing Director of the Board and the High Court could not have gone
beyond the limits of Quo Warranto so very well delineated by a catena of
decisions of this Court and applied the test which could not have been applied
even in a certiorari proceedings brought before the Court by an aggrieved party
who was a candidate for the post.
judgment impugned in this appeal not only exceeds the limit of Quo Warranto but
has not properly appreciated the fact that writ petition filed by the
Employees' Union and the President of the Union Halakatte
was absolutely lacking in bonafides. In the instant case, the motive of the
second respondent Halakatte is very clear and the Court might in its discretion
declined to grant a Quo Warranto.
Court in A.N. Sashtri vs. State of Punjab and Others, (1988) Supp SCC 127 held that the Writ of Quo Warranto
should be refused where it is an outcome of malice or ill-will. The High Court
failed to appreciate that on 18.01.2003 the appellant filed a criminal
complaint against the second respondent Halakatte that cognizance was taken by
the criminal court in CC No. 4152 of 2003 by the jurisdictional magistrate on
24.02.2003, process was issued to the second respondent who was enlarged on
bail on 12.06.2003 and the trial is in progress. That apart, the second
respondent has made successive complaints to the Lokayukta against the appellant
which were all held to be baseless and false. This factual background which was
not disputed coupled with the fact that the second respondent Halakatte
initiated the writ petition as President of the 1st respondent Union which had
ceased to be a registered trade union as early as on 02.11.1992 suppressing the
material fact of its registration having been cancelled, making allegations
against the appellant which were no more than the contents of the complaints
filed by him before the Authorities which had been found to be false after
thorough investigation by the Karnataka Lokayukta would unmistakably establish
that the writ petition initiated by the respondent Nos. 1 and 2 lacked in bona
fides and it was the outcome of the malice and ill-will the 2nd respondent
nurses against the appellant. Having regard to this aspect of the matter, the
High Court ought to have dismissed the writ petition on that ground alone and
at any event should have refused to issue a Quo Warranto which is purely discretionary.
It is no doubt true that the strict rules of locus standi is relaxed to an
extent in a Quo Warranto proceedings. Nonetheless an imposture coming before
the Court invoking public law remedy at the hands of a Constitutional Court suppressing material facts has to
be dealt with firmly.
Court in Dr. B. Singh vs. Union of India and Others, (2004) 3 SCC 363 held that
only a person who comes to the Court with bonafides and public interest can
have locus. Coming down heavily on busybodies, meddlesome interlopers,
wayfarers or officious interveners having absolutely no public interest except
for personal gain or private profit either of themselves or as a proxy of
others or for any other extraneous motivation or for glare of publicity, this
Court at para 14 of the report held as under:- "The court has to be
of the applicant;
the prima facie
correctness or nature of information given by him; and
being vague and indefinite. The information should show gravity and seriousness
involved. Court has to strike a balance between two conflicting interests:
nobody should be
allowed to indulge in wild and reckless allegations besmirching the character
of others; and
public mischief and to avoid mischievous petitions seeking to assail, for
oblique motives, justifiable executive actions. In such case, however, the
court cannot afford to be liberal. It has to be extremely careful to see that
under the guise of redressing a public grievance, it does not encroach upon the
sphere reserved by the Constitution to the executive and the legislature. The
court has to act ruthlessly while dealing with imposters and busybodies or
meddlesome interlopers impersonating as public spirited holy men.
masquerade as crusaders of justice. They pretend to act in the name of pro bono
publico, though they have no interest to the public or even of their own to
protect." It is useful to refer to the case of The University of Mysore
and Another vs. C.D.Govinda Rao and Another,  4 SCR 575 at pages 580 and
581 "As Halsbury has observed:
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 inquire 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 remedy by which
any person, who holds 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, so that his title to it may be duly determined, and in
case the finding is that the holder of the office has not title, he would be
ousted from that office by judicial order. In other words, the procedure of quo
warranto gives the Judiciary a weapon to control the Executive from making
appointment to public office against law and to protect a citizen from being
deprived of public office to which he has a right.
proceedings also tend to protect the public from usurpers of public office, who
might be allowed to continue either with the connivance of the Executive or by
reason of its apathy. It will, thus, be seen that before a person can effectively
claim a writ of quo warranto, he has to satisfy the Court that the office in
question is a public office and is held by a usurper without legal authority,
and that inevitably would lead to the enquiry as to whether the appointment of
the alleged usurper has been made in accordance with law or not." It is
also beneficial to refer to the decision of this Court in Ghulam Qadir vs.
Special Tribunal and Others, (2002) 1 SCC 33 para 38 which reads thus:-
is no dispute regarding the legal proposition that the rights under Article 226
of the Constitution of India can be enforced only by an aggrieved person except
in the case where the writ prayed is for habeas corpus or quo warranto. Another
exception in the general rule is the filing of a writ petition in public
interest. The existence of the legal right of the petitioner which is alleged
to have been violated is the foundation for invoking the jurisdiction of the
High Court under the aforesaid Article. The orthodox rule of interpretation
regarding the locus standi of a person to reach the court has undergone a
sea-change with the development of constitutional law in our country and the
constitutional courts have been adopting a liberal approach in dealing with the
cases or dis-lodging the claim of a litigant merely on hyper-technical grounds.
If a person approaching the court can satisfy that the impugned action is
likely to adversely affect his right which is shown to be having source in some
statutory provision, the petition filed by such a person cannot be rejected on
the ground of his having not the locus standi.
other words, if the person is found to be not merely a stranger having no right
whatsoever to any post or property, he cannot be non-suited on the ground of
his not having the locus standi.
settled law that Writ of quo warranto does not lie if the alleged violation is
not of a statutory nature. Three judgments relied on by Mr. P.P. Rao can be
usefully referred to in the present context.
In A. Ramachandran
vs. A. Alagiriswami, Govt. Pleader High Court, Madras & Anr. , AIR 1961 Madras 450, the Court observed in
paragraphs 74 and 104 as under:
an authority has power to make rules relating to a subject matter and also the
power to decide disputes arising in the field occupied by that subject matter,
the two powers and functions must be kept distinct and separate. This dispute
must be decided with reference to the rules in force at the time the
adjudication had to be made and, the rule making power cannot be invoked in
relation to that adjudication." "..It was also contended that it was
incumbent on the State Government to follow the principle of appointment as
laid down in 1932 G.O. so as to avoid arbitrariness of nepotism. Reliance was
placed upon the decision in 1955-2 Mad LJ 49: (AIR 1955 Mad 305) (FB) for the
position that even non-statutory regulations and rules contained in the Board's
Standing Orders are binding on the State Government, and that it cannot depart
from such rules arbitrarily and capriciously to suit the exigencies of a
particular situation. In that case the Government purported to exercise a revisional
power over the Orders of the Board of Revenue which it did not have as per
Board's Standing Orders count at any time be modified or amended and that if the
Government had power to bring about such modifications it followed that the
Government had power of revision though in terms such power was not conferred
upon it." Mazdoor Panchayat & Ors., (2003) 4 SCC 712, it was held by
this Court that a Writ of Quo Warranto can only be issued when the appointment
is contrary to the statutory rules. The Financial Commissioner & Secretary
to Government of Haryana, (2002) 6 SCC 269 was also relied on.
it is seen that Writ of Quo Warranto lies if the alleged violation is not of a
Official Memorandum of 1994 dated 23.12.1994 of the Government of Karnataka
OF KARNATAKA" No.DPAR/15/SDE 94 Karnataka Government Secretariat Vidhana Soudha
Bangalore dated 23.12.1994 OFFICIAL MEMORANDUM
Sub: Regarding re-appointment of retired
Government Employee and extension of their services after Retirement.
O.M. No. DPAR 42
SSR 77 dated 15.12.1977
O.M. No. DPAR No. 2 SDE 90 dated
In the O.M.
referred at (1) above in respect of the teaching staff viz., Teachers,
Lecturers, Professors who are working in educational institutions of the
Education Department retiring in the middle of the academic year, it was
permitted to continue their services till the end of the educational year with
the permission of the concerned officer.
In the O.M.
referred at (2) above, it was instructed not to re- appoint the retired
Government servants and not to give them extension of service.
It has come to
the notice of Government that retired Government officers/officials have been
re-appointed on contact basis. Hence it is ordered that the officers/officials
who have been re-appointed on contract basis and continuing in service shall be
removed from service forthwith.
If the teaching
staff working in educational institutions of the Education Department are
retiring in the middle of the academic year, the instructions given in O.M. No.
DPAR 42 SSR 77 dated 15.12.1977 are applicable.
contained in the above paragraphs are also applicable to the
Autonomous/Grant-in-Aid institutions, Boards and the Companies which are
subordinate to or under the control of the Government." Sd/- (A.V.
Ramamurthy) Joint Secretary to Government D.P.A.R.(SR)" Paragraph 5 of the
Memorandum makes it amply clear that Boards are included within the said
memorandum and hence the procedure adopted for Government employees will
equally apply to the Board. The initial appointment of the appellant as
Managing Director was on 28.1.1998. He was relieved vide relieving Order dated
31.1.2004 as M.D. His pension order stated that he has retired as M.D.
Thereafter he was re- appointed as M.D. on 31.1.2004. The said Notification
reads as follows:
exercise of the powers conferred under Section 4(2) of the KUWS&D B Rules,
1973 (Karnataka Act 25/1974) Sri B. Srinivasa Reddy, No. 427 12th Main, RMV
Extension, Bangalore 560 080 is appointed as Managing Director, KUWS&D B
on contract basis w.e.f. 01.02.2004 until further orders.
terms and conditions will be issued separately." Therefore, the official
memorandum squarely applies to the appellant.
Union of India vs. K.P. Joseph & Ors., (1973) 1 SCC 194, it was held by
this Court that administration instructions made to fill gaps or to supplement
the statutory rules and affecting conditions of service would be binding and
enforceable by Writ under Art. 226 of the Constitution of India.
close scrutiny of the official memorandum would show that it is restrictive to
appointment to any post but as a general application to all the posts and that
the intention of the memorandum is that retired person should not be appointed
violation of Section 4(2) of the Act and Rule 3 of the Rules:
is no violation of Section 4(2) and Rule 3 as held by the High Court because
the appellant having been the Chief Engineer of the Board had experience in
administration and capacity in commercial matters before he was appointed as
M.D. on contract basis by the Government. Section 4(2) of the Act reads as
and the Managing Director shall possess the prescribed qualification. They and
the other directors shall be appointed by the Government." Rule 3 of the
Rules deals with Qualification for appointment of the Chairman and the Managing
3 reads thus:
Chairman shall be a person having experience in matters concerning public
welfare. The Managing Director shall be a person having experience in
Administration and capacity in commercial matters." In this context, it is
useful to peruse the original file produced by Mr. Sanjay R. Hegde, learned
counsel appearing for the State, before us. A note was prepared by the
Secretary to Government, Urban Development Department, in regard to the
appointment of M.D. of the Board:
: Appointment of Managing Director of KUWSDB
Shri B. Srinivasa
Reddy, Managing Director of KUWSD will retire from service on 31.1.2004.
As per Section
4(2) of the Karnataka Urban Water Supply and Drainage Board Act, 1973, the
Managing Director shall be appointed by the government as per Section 6(1). He
shall hold office during the pleasure of the government. As per Rule 3 of the
KUWSDB Rules 1974, the Managing Director shall be a person having experience in
administration and capacity in commercial matters. As per KUWSDB Rule 4(2), the
Managing Director shall be a whole time officer of the Board and shall be paid
remuneration as prescribed.
Therefore, it is
necessary for the Government to appoint the Managing Director. The Managing
Director can be a serving Officer of the Government who can be sent on
deputation to the KUWSDB. It is even open to the Government to appoint a
retired official to the post of Managing Director. But generally Government has
not appointed any retired official either to KUWSDB or other Boards and
Corporations of the Government.
A decision has
to be quickly taken as the Managing Director of KUWSDB has to hold negotiations
with the World Bank on 9.2.2004 regarding the new Water Supply and Sanitation
In my view, an
Engineer in water supply/public health engineering would be most ideal for the
post of Managing Director, KUWSDB." The file was placed before Shri S.M.
Krishna, Chief Minister. The order passed by the Chief Minister is at page 2 of
the File which reads thus:
is a critical juncture for Karnataka Urban Water Supply and Sewerage Board.
the projects on hand and the need to complete them within a definite time
frame, there should be continuity in leadership and management. The services of
Shri B. Srinivasa Reddy, are need for the present. Shri Srinivasa Reddy's
continuation will help in the important negotiations with the World Bank
scheduled to be held in February, regarding the new Water Supply and Sanitation
the adverse seasonal conditions prevailing and prolonged drought, there is
likelihood of severe water scarcity in urban areas in the coming months. For
this, a sum of Rs.15 crores by way of relief has been earmarked in the period
February to June 2004. The Urban Water Supply Board will be required to augment
water availability, especially in chronic places like Bagalkot, Pavagada and Hubli-Dharwad.
For planning and executing these contingency measures, Shri Srinivasa Reddy's
presence is essential.
Reddy who has retired today may be appointed on Contract basis from 1.2.2004
until further orders." It is thus seen that the Chief Minister after
considering the relevant material, experience in administration and capacity in
commercial matters of the appellant accepted the office note put up by the
Secretary to Government and appointed a retired official to the post of M.D.
Ample reasons are given for considering the name of the appellant and the
consequential appointment made by the Government.
instant case, there is no violation of statutory provision and, therefore, in
our view, a writ of Quo Warranto does not lie. If there be any doubt, it has to
be resolved in favour of upholding the appointment. 614, Hidyatullah,
C.J., speaking for the Constitution Bench indicated:
High Court in a quo warranto proceeding should be slow to pronounce upon the
matter unless there is a clear infringement of the law." In the
circumstances which we have narrated above in paragraphs supra, it is indeed
difficult to hold that the appellant did not have the requisite qualification.
above ruling was followed in A.N. Shashtri vs. State of Punjab & Ors., 1988
(Supp) SCC 127. We are of the view that in the facts of this case, the
reasonable conclusion to reach should have been that the writ petitioners had
failed to establish that the appellant did not possess requisite qualification
and the appeals are, therefore, be allowed and the judgment of the High Court
has to be set aside and the writ petition has to be dismissed.
finding of disqualification given in the earlier round of litigation while the
appellant was holding a lien on the post of Chief Engineer i.e. while he was an
officer of the Board, ceased to hold good after the appellant retired from the
service of the Board on 31.1.2004 (AN) and the appointment impugned in the
second round of litigation was effective from 1.2.2004 after the appellant had
ceased to be an officer of the Board.
appointment/powers of the Government Mr. Raju Ramachandran, learned senior
counsel appearing for the Trade Union, fairly conceded that the Government has
unrestricted power to make contractual appointment. Even otherwise, the
Government, in our opinion, has the undoubted power to make a contractual
appointment until further orders. The finding to the contrary is ex facie
Notification dated 31.1.2004 clearly states that the appointment is on contract
basis and until further orders.
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 1st February, 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 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:
Office: Essential characteristics of "public office" are
conferred by law,
fixed tenure of
power to exercise
some portion of sovereign functions of government, key element of such test is
that "officer" is carrying out sovereign function.
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 delegated to position, duties and powers 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 ex rel. E.li
Lilly & Co. v. Gaertner, Mo.App 619 S.W. 2d 6761, 764." Carrying out
sovereign function by the Board and delegation of a portion of sovereign power
of Government to the Managing director of the Board and some permanency and
continuity in the appointment are quintessential features of public office.
Every one of these ingredients are absent in the appointment of the appellant
as Managing Director of the Board. This aspect of the matter was completely
lost sight of by the High Court.
High Court, in the instant case, was not exercising certiorari jurisdiction.
Certiorari jurisdiction can be exercised only at the instance of a person who
is qualified to the post and who is a candidate for the post. This Court in Dr.
Umakant Saran vs. State of Bihar, (1973)
1 SCC 485 held that the appointment cannot be challenged by one who is himself
not qualified to be appointed. In Kumari Chitra Ghose vs. Union of India,
(1969) 2 SCC 228, a Constitution Bench of this Court held as under:
other question which was canvassed before the High Court and which has been
pressed before us relates to the merits of the nominations made to the reserved
seats. It seems to us that the appellants do not have any right to challenge
the nominations made by the Central Government. They do not compete for the
reserved seats and have no locus standi in the matter of nomination to such
seats. The assumption that if nominations to reserved seats are not in
accordance with the rules all such seats as have not been properly filled up
would be thrown open to the general pool is wholly unfounded." But the
High Court of Delhi in P.L. Lakhanpal vs. Ajit Nath Ray, AIR 1975 Delhi 66 held as under:
facet of the preliminary objection relates to the allegations of mala fides
made in the petition. It will bear repetition to state that the preliminary
objection is on the assumption and not admission that the appointment of
Justice A.N. Ray was mala fide. It is indisputable that mala fide action is no
action in the eye of law. But, to my mind, the mala fides of the appointing
authority or, in other words, the motives of the appointment authority in
making the appointment of a particular person are irrelevant in considering the
question of issuing a writ of quo warranto.." The discretion available to
the competent authority under the Rules has been exercised by the appointing
authority in making the appointment of the appellant. That could not have been
annulled by the High Court. In Writ Petition No. 44001 of 2005 decided on
12.4.2002, the very High Court had directed the Government by a direction akin
to mandamus to immediately take steps to appoint the Managing Director of the
Board in accordance with the Act and the Rules. The present appointment of the
appellant was made under the provisions of the Act and the Rules. This
appointment could not have been interdicted by a writ of Quo Warranto as it
amounted to issuance of writ of Quo Warranto to disobey the mandamus already
issued and is in operation. Such a course adopted by the High Court is contrary
to law declared by this Court Rajendra Prasad Yadav vs. State of Madhya
Pradesh, (1997) 6 SCC 678.
Chandra Anand vs. Union of India, (1953) SCR 655, a Constitution Bench of this
Court while dealing with a case of a contract appointment which was being terminated
by notice under one of its clauses, this Court held that Articles 14 & 16
had no application as the petitioner therein was not denied equal opportunity
in a matter relating to appointment or employment who had been treated just
like any other person to whom an offer of temporary employment under these
conditions was made. This Court further held as under:
State can enter into contracts of temporary employment and impose special terms
in each case, provided they are not inconsistent with the Constitution, and
those who choose to accept those terms and enter into the contract are bound by
them, even as the State is bound." In P.K. Sandhu (Mrs.) vs. Shiv Raj V. Patil,
(1997) 4 SCC 348, it was held by this Court as under:
power to make an appointment includes the power to make an appointment on
substantive basis, temporary or officiating basis, ad hoc basis, on daily wages
or contractual basis." Legal Malice:
argued by Mr. Raju Ramachandran, learned senior counsel appearing for the respondents,
that there was no reason for the State to re-appoint the appellant on the post
of M.D., specially in view of the following facts:
appointment to Managing Director on 28.01.1998 was admittedly in contravention
of Section 7(1)(d) of the Act. Yet, he continued till 31.1.2004. He,
thereafter, withdrew his appeal thereby confirming that his entire tenure as
M.D. from 1998 to 2004 was illegal and in contravention of the Act.
He was relieved
from his duty as "Managing Director" and is receiving pension
pertaining to malpractices committed by the petitioner of which he has not
exonerated so far reveal that he is not a person with an undoubtful character.
List of persons
appointed at the post of Managing Director of the Board since its inception
show that only IAS Officers or PWD officials have been appointed at this post.
For the first time, a retired Board servant was brought as the Managing
Director for "until further orders".
The note sheet
of the Chief Minister, though proposes certain exigencies, do not indicate that
he is the only person who can cater to such demands.
There was no
need for an appointment for "until further orders" where admittedly,
the purpose of appointment would have been accomplished at the most by June,2004.
to him something was done by the State without excuse and that it is an act
done wrongfully and wilfully without reasonable or probable cause. He also
referred to the findings of the High Court on legal malice.
opinion, the finding of legal mala fides is unsustainable being based on a
misunderstanding of the law and facts. When a competent and experienced officer
of an outstanding merit is appointed to a higher post on contract basis after
his super-annuation from service in larger public interest does not suffer from
legal malice at all. The decision of the then Chief Minister, Shri S.M.
Krishna, recorded in the file which is also extracted by the High Court at page
69 of S.L.P. Paper book, Vol.II. In the context of the note put up by the
Secretary of the Department, it is again extracted at pages 67 & 68 which
clearly bring out the fact that the appointment was made in the interest of the
Board and the State at a time when nobody else other than the appellant could
have served the interests of the State better. The High Court failed to
appreciate the element of urgency involved in making the appointment because of
impending negotiations with the World Bank scheduled for 9.2.2004. The writ
petition, in our opinion, was motivated as respondent No.1 had lodged a false
complaint to the Lokayukta against the appellant which was found to be baseless
by the Lokayukta (Annexure P-9). A petition praying for a Writ of Quo Warranto
being in the nature of public interest litigation, it is not maintainable at
the instance of a person who is not unbiased. The second respondent is the
President of the first respondent- Union.
He has chosen this forum to settle personal scores against his erstwhile
superior officer after his retirement. The proceedings, in our view, is not
meant to settle personal scores by an employee of the department. The High
Court, in our view, ought to have dismissed the writ petition filed by
respondent No.1 at the threshold.
event, respondent No.1 failed to discharge the heavy burden to substantiate the
plea of mala fides (E.P. Royappa vs. State of Tamil Nadu, (1974) 2 SCR 348.
finding of the High Court that the appointments from legal mala fides is wrong.
The Court relied on the judgment in India & Anr. (2005) 8 SCC 202. It was a
case of appointment of an officer against whom criminal proceedings were
pending even the Commission will look into the charges against the officer,
therefore, the above ruling has no application at all in the present case.
Division Bench noted that certain allegations were made against the appellant
and observed in paragraph 3 that the complaint was stated to be pending before
the Lokyukta in the matter relating to financial irregularities of the Board
and that the Comptroller and Auditor General submitted a report for the year
ending 31.3.2000 wherein the appellant has paid the amounts to contractor even
before they became due resulting in loss of interest of Rs.15.40 lakhs to the
the Division Bench did not take notice of that fact that Lokayukta had
completely exonerated the appellant.
further orders Mr. Raju Ramachandran, learned senior counsel appearing for the
respondents, submitted that the pleasure of the Government and discretion
cannot be completely discretionary and at the ipse dixit of the executive. Even
a contractual appointment has to be made with a certain ascertainable period
and cannot be open-ended. According to him, use of words "until further
orders" is not a safety notch but is rather prone to misuse. Even in the
constitutional scheme, under Chapter XIV of the Constitution, a contractual
appointment presumes a specific period. Art. 310(2) of the Constitution provides
that a person holding a civil post under the Union or a State holds office
during the pleasure of the President or, as the case may be, of the Governor of
the State, any contract under which a person, not being a member of a defence
service or of an all-india service or of a civil service of the Union or a
State, is appointed under this Constitution to hold such a post may, if the
President or the Governor, as the case may be, deems it necessary in order to
secure the services of a person having special qualifications, provide for the
payment to him of compensation, if before the expiration of an agreed period
that post is abolished or he is, for reasons not connected with any misconduct
on his part, required to vacate that post." In E.P. Royappa vs. State of Tamil Nadu & anr. (supra), further
question before us is whether the appointment made by the Government includes
any component of mala fides. The burden of establishing mala fides is very
heavy on the person who alleges it. The allegations of mala fides are often
more easily made than proved, and the very seriousness of such allegations
demands proof of a higher order of credibility. Here respondents 1 & 2 have
flung a series of charges of oblique conduct against the then Chief Minister
through their advocate. The anxiety of the Court should be all the greater to
insist on a high decree of proof. The Court would, therefore, be slow to draw
dubious inferences from incomplete facts placed before it by a party,
particularly when the imputations are grave and they are made against the
holder of an office which has a high responsibility in the administration.
Court, in the above judgment, held that such is the judicial perspective in
evaluating charges of unworthy conduct against ministers and other high
authorities, not because of any special status which they are supposed to
enjoy, nor because they are highly placed in social life or administrative set
up, these considerations are wholly irrelevant in judicial approach but
because otherwise, functioning effectively would become difficult in a democracy.
important considerations must weigh with us in determining our approach to
these questions. First, the post of Managing Director is a highly respectable
post. It is a post of great confidence a lynchpin in the administration and
smooth functioning of the administration requires that there should be complete
rapport and understanding between the Managing Director and the Chief Minister.
The Chief Minister as a Head of the Government is in ultimate charge of the
administration and it is he who is politically answerable to the people for the
achievements and failures of the Government.
Chief Minister forfeits the confidence on the appellant, he may legitimately in
the larger interests of administration appoint him until further orders as M.D.
of the Board. It does not involve violation of any legal or constitutional
that the vast multitudinous activities in which a modern State is engaged,
there are bound to be some posts which require for adequate discharge of their
functions, high degree of intellect and specialized experience. It is always a
difficult problem for the Government to find suitable officers for such
specialized posts. There are not ordinarily many officers who answer the
requirements of such specialized posts and the choice with the Government is
very limited and this choice becomes all the more difficult, because some of
these posts, though important and having onerous responsibilities, do not carry
wide executive powers and officers may not, therefore, generally be willing to
be transferred to those posts.
Government has in the circumstances to make the best possible choice it can,
keeping in view the larger interests of the administration. When in exercise of
this choice, the Government transfers an officer from one post to another, the
officer may feel unhappy because the new posts does not give him the same
amplitude of powers which he had while holding the old post. But that does not
make the appointment arbitrary. So long as the appointment is made on account
of the exigencies of administration, it would be valid and not open to attack
under Arts. 14 & 16. Here the post of M.D. was admittedly a selection post
and after careful examination of the merits, the Chief Minister selected the
appellant for the post of M.D. It was not the case of the respondents that the
appellant was not found qualified to the task or that his work was not
argued by Mr. P.P. Rao, learned senior counsel, appearing for the appellant
that the Division Bench while answering Point No.2 in paragraph 25 that the
order of appointment passed by the State Government is not a regular
appointment. It has further been observed that Section 4(2) of the Act and Rule
3 of the Rules framed do not permit the Government to appoint the Managing
Director on contractual basis. It was submitted that the finding of the
Division Bench as well as the single Judge are legally unsustainable. The Act
makes clear distinction between appointments to the Board and appointment of
Officers and servants of the Board. All appointments of Directors are
"appointments at the pleasure of the Government". He drew our
attention to Section 6(1) of the Act which reads thus:
including the Chairman and the Managing Director shall hold office during the
pleasure of the Government. The expression 'contract basis' is only to indicate
that the appointment was to subsist till the withdrawal of the pleasure of the
Government. It could not be said that the contractual appointment is made
contrary to the Rules that contemplate regular appointment." It is pertinent to
point out that there are no separate conditions of service or tenure prescribed
for 'Directors', which expression under the Act includes the Managing Director.
at the pleasure of the Government are not the same as ordinary appointments. It
was further submitted that ordinary principles of recruitment applicable to
posts governed by Chapter I of Part XIV of the Constitution of India would not
apply to the instant appointment being an appointment at the pleasure of the
Government. This is also for the simple reason that ordinary appointments in
public service entail security of tenure which has an essential feature of such
characteristics are noticeably absent in the instant case.
attention was also drawn to the conclusion reached by the High Court that the
appellant was not qualified for the post and under Rule 3 of the Rules, the
qualification for appointment is explicitly provided. No age of retirement is
prescribed for Director including Managing Director. Neither any age limit for
appointment is prescribed. These qualifications do not prescribe any age limit.
Section 8 of the Act itself suggests that even a legal practitioner could be
appointed as a Director. The only limitation or disqualification is with regard
to a serving officer or servant of the Board from being appointed as Director.
Section 7(1)(d) does not apply to an officer or servant who ceased to be such
on the date of his appointment as Managing Director. Section 7 stipulates all
disqualifications for appointment as Director. It is not the case of the
contesting respondent that the appellant was disqualified from holding the post
on any other grounds.
attention was also drawn to the judgment of the Division Bench holding that the
State Government and the Board could not have filed an appeal against the order
of the learned single Judge. Reference has been made to the judgment of this
Court in B.R. Kapur vs. State of Tamil Nadu & Anr., 2001(7)SCC 231. The
said judgment is wholly in applicable to this case inasmuch the issue therein
did not pertain to the appointment under service Rules. In the said case, no
question relating to the issuance of Writ of Quo Warranto pertaining to service
jurisprudence was involved.
case related to appointment by the Governor of a person convicted of a criminal
offence by which she stood disqualified under the provisions of the
Representation of Peoples Act, 1951. Moreover, the Writ of Quo Warranto in that
case was issued in the light of several provisions of the Prevention of
Corruption Act, the Representation of Peoples Act, 1951 and various other
enactments which clearly prohibited the appointment of a convicted person to a
public office. There is no legal postulation in the said judgment which seeks
to restrain any interested party from challenging a judgment. In the instant
case, the appellant did not solicit or engineer his appointment. His
appointment was at the instance of the State Government in accordance with
provisions of the Act and the Rules. The State Government has power to take its
own decision for deciding on a suitable candidate for appointment as long as
the eligibility criteria was satisfied. The appointment in the instant case is not
one of recruitment, but of a different species of appointment for rendering
services. It is more in the nature of a contract for service. This is specially
required considering fact that the functions of the Board are essentially
technical in nature as would be evident from a perusal of Sections 16 & 17
of the Act.
event implicit in the finding of the Division Bench that the appointing
authority has no right to appeal in Quo warranto proceedings is that the Court
cannot probe the mind of the appointing authority in a motion for Quo Warranto.
The High Court erred in probing the mind of the government and acted contrary
to its own finding on the role of appointing authority in Quo Warranto
proceedings. The reasons felt out by the learned Judges of the Division Bench
are not sustainable in law and the impugned judgment is liable to be interfered
with in these appeals. The learned Judges are not right in quashing the
appointment of the appellant as Managing Director on the misconception that he
has been re- appointed to the said office, whereas it was a fresh appointment
under the provisions of the Act and in accordance with the prescribed
qualification and eligibility under the Act.
the appointee holds the office during the pleasure of the Government as
provided under Section 6(1) of the Act.
learned Judges are not correct in holding that the Government is not affected
by allowing the writ of Quo Warranto against the appointee and observed that
the Government ought not have filed the appeal. It is unfortunate that the
learned Judges have observed that the Government has filed the appeal at the
instance of the appointee. The learned Judges, in our opinion, failed to
appreciate that it is the duty of the Government to justify the appointment as
such there is no wrong in filing the writ appeal.
result, we hold :
appellant was not disqualified for appointment as Managing Director w.e.f.
There is no bar
for appointment to the post in question on contract basis. The Government has
absolute right to appoint persons on contract basis.
Writ of Quo warranto
does not lie if the alleged violation is not of a statutory provision.
There is no
violation of Section 4(2) of the Act and Rule 3 of the Rules because the
appellant had experience in administration and capacity in commercial matters
before he was appointed as Managing Director on contract basis by the
has no doubt power to make contractual appointment until further orders.
The power included
the power to make appointment on substantive basis temporary, officiating
basis, ad hoc basis, daily wages or contractual basis.
Writ filed by
respondents 1 & 2 is motivated.
in the writ petition, respondent No.1 herein which is an unregistered
Association under the Trade Unions Act cannot maintain the writ petition.
The findings of
legal mala fides is unsustainable and has no basis.
finding of legal mala fides suffers from other infirmities as far as placing
reliance on the complaints against the appellant without adverting to the
orders of the Lokyukta detail examination, the appellant is unequivocal terms
in both the cases.
the foregoing reasons, the appeals are allowed and the order impugned in this
appeal passed by the Division Bench of the High Court in W.A. No. 86/2006
affirming the judgment of the learned single Judge is set aside.
Division Bench of the High Court ordered cost in the writ appeal. There is no
justification in ordering cost in the facts and circumstances of the case.
Therefore, the appellant, State Government and respondent No.4 are entitled to
refund the cost, if it has already been paid. However, we are not ordering cost
against respondent Nos. 1 & 2 taking into consideration of the financial
constraint of the employees and by taking a lenient view of the matter.
view of this judgment, we allow the appeals filed by Mr. B. Srinivasa Reddy and
by the State of Karanataka. As noted herein earlier, the
appellant has already been released and in his place a person has already been
appointed as a Managing Director of the Board on contract basis. Keeping this
admitted fact in mind, we, therefore, keep it on record that the Government or
the Board would be at liberty to consider and appoint a candidate, if occasion
arises, on contract basis.
such a situation does arise in that case it would be open to the State or the
Board to consider the candidature of the appellant (B.Srinivasa Reddy) with