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Gunanidhi Mohapatra Vs. the Chairman, N.A.C. and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtOrissa High Court
Decided On
Case NumberO.J.C. No. 1678 of 1975
Judge
Reported inAIR1976Ori181; 42(1976)CLT507
ActsConstitution of India - Articles 16 and 226; Orissa Municipal Act, 1950 - Sections 94(2) and 382
AppellantGunanidhi Mohapatra
RespondentThe Chairman, N.A.C. and ors.
Appellant AdvocateAshok Das, ;S.N. Satpathy, ;M.S. Panda and ;D.S. Misra, Advs.
Respondent AdvocateStanding Counsel, ;S. Mohanty, ;G.A. Rao Dora,;B.B. Ratho, ;A.K. Misra and ;S.D. Das, Advs.
DispositionPetition dismissed
Cases ReferredAssociation v. General Manager
Excerpt:
.....was satisfied. 17. considering all the circumstances of the case, we are not satisfied that this is a fit case for interference with the appointment of opposite party no......(annexure t/3) from the chairman of the n. a. c. to the director of health services that the post of medical officer under the state government had been offered to opposite party no. 3. it is not disputed that subsequently opposite party no. 3 passed the m. b. b. s. examination and was duly registered in the state medical register. he was, therefore, qualified to hold the post of a medical officer by the time an-nexures 5 and 7 were issued. ex post facto sanction for creation of the post was accorded by government for. the period from 31-8-1965 to 28-2-1971 and the term of the post was extended from time to time. it was last extended upto 29-2-1976 by g. o. no. 29600/ud, dated 31-10-1975. thug it is clear that even if it be assumed that the requirements of section 73 of the orissa.....
Judgment:

Mohanti, J.

1. In this writ petition under Article 226 of the Constitution the validity of the appointment of Dr. Sri-krushna Sahu (opposite party No. 3) as the Second Medical Officer of the Bhu-baneswar Notified Area Council is under challenge.

2. The relevant facts are these :

The Notified Area Council by its Resolution No. 29 dated 31-10-1964 (An-nexure A/1) decided to create the post of a Second Medical Officer and advertised the same on 1-8-1965 (An-nexure A/3). Opposite Party No. 3 was temporarily appointed to the post and he joined on 31-8-1965. On 23-7-1971 he applied to the Notified Area Council for study leave to undergo the condensed M. B. B. S. course (vide Annexure E/3). On 24-7-1971 the N. A. C. moved the State Government for necessary instructions regarding the nature and period of leave to be admissible to opposite party No. 3 and for posting of a substitute in his place (vide Annexure H/3). On 31-7-1971 the N. A. C. by its Resolution No. 6 decided to relieve the opposite party No. 3 and to settle the nature of leave and the terms and conditions thereof later according to the directions of Government (vide Annexure G/3). On 12-8-1971 Government by their letter in Annexure F/3 directed the N. A. C. to relieve opposite party No. 3 to join the training course. On 13-8-1971 opposite party No. 3 was relieved of his duties. On 25-2-1972 the N. A. C. Issued an order cancelling allotment of a residential quarter in favour of opposite party No. 3. A copy of this order was forwarded to the State Government. Thereupon the State Government by their letter in Annexure 2 intimated that the N. A. C. had no obligation for opposite party No. 3 since he was appointed as a Medical Officer without having a post created with the approval of the Government. On 9-12-1972 the N. A. C. terminated the services of the opposite party No. 3 with retrospective effect from 13-8-1971, that is, the date on which he was relieved (vide Annexure K/3). Opposite party No. 3 preferred an appeal under Section 77 of the Orissa Municipal Act which was rejected by the State Government on the ground of limitation (vide Annexure 3). But on a subsequent representation to the Chief Minister, Government directed the N. A. C. to take back opposite party No. 3 and to regularise the period of his absence from duty (vide Annexure 5). On 11-6-1975 the N. A. C. passed a Resolution (Annexure 7) accepting the Government order in Annexure 5. The petitioner challenges the legality of the appointment of the opposite party No. 3 on the following grounds 5

(i) At the time of his appointment on 31-8-1965, he had not passed the M. B. B. S. examination prescribed for the post of an Assistant Surgeon. He was not registered as a Medical practitioner as required under Section 15 of the Indian Medical Councils Act

(ii) No prior sanction of the State Government had been obtained for creating the post of Second Medical Officer as required under Section 73 of the Orissa Municipal Act.

(iii) The order of appointment in Annexure 7 is in contravention of Article 16 of the Constitution.

3. Opposite party No. 3 filed counter contending that there was ex post facto sanction of the State Government for the post during the relevant period; that he passed the condensed course from the Gopabandihu Ayurbeda Institute and held the D. M. S. M. diploma as required by the advertisement in An-nexure A/3; that the Government of Orissa recognised D. M. S. M. as equivalent to M. B. B. S. for service; that he wag duly registered in the State Medical Register on 14-2-1966; that he was relieved of his duties on 13-8-1971 on study leave terms to join the training course and that in the meantime he has passed the M. B. B. S. examination. He also contended that after the State Government directed the N. A. C. to take him back, the petitioner brought a proposal to abolish the post of Second Medical Officer but the Council by majority decided to continue the post. The petitioner is bound by the majority decision of the N. A. C. and has no locus standi to maintain the writ petition.

4. The State Government (opposite party No. 4) while supporting the above contentions maintained that merely because opposite party No. 3 was relieved to undergo higher studies it does not mean that he ceased to be an employee of the N. A. C. The appeal filed by him under Section 77 of the Orissa Municipal Act was dismissed on the ground of limitation, but on a further representation Government reviewed the case and felt that their previous letter dated 14-8-1972 (An-nexure 2) had been issued without appreciation of the correct position. Accordingly, Government directed the N. A. C. to take back opposite party No. 3 in the post of Second Medical Officer and to regularise the period of his absence.

5. The Chairman and the Executive Officer of the N. A. C. (opposite parties 1 and 2) filed a joint counter supporting the case of opposite party No. 3.

6. Smt. Binapani Dash who has been serving as an Honorary Lady Doctor in the N. A. C. Hospital was implead-ed as opposite party No. 5 on her own application dated 1st December, 1975. She filed a counter supporting the allegations made in the writ petition. Her contention is that if there had been a selection for the post of Second Medical Officer after due advertisement, she ran the best chance of being selected for the post. She further contended that the Government order directing the N. A. C. to take back opposite party No. 3 in the post of Second Medical Officer amounts to a fresh appointment and it violates the provisions of Article 16 of the Constitution of India.

7. Acute controversy has centred round the question about the petitioner's locus standi to maintain the writ petition. It is contended on behalf of the opposite parties 1 to 4 that the writs sought are those in the nature of quo warranto, mandamus or certiorari and that in the circumstances of the case, none of these writs could lie or could issue at the instance of the petitioner. The argument is that the power of jurisdiction to issue any such writ could be invoked by a petitioner who is prejudicially affected by the order challenged in the writ petition and who seeks protection of a legal right vested in him.

8. The question whether the petitioner has any locus standi to invoke the extraordinary jurisdiction under Article 226 of the Constitution is necessarily related to the nature of the relief asked for. For the issue of a writ of mandamus the petitioner has to make out that he has a legal right by virtue of which he is entitled to a particular act being done by the opposite parties or to require that they shall not do a thing which may prejudicially affect his right. For the issue of a writ of certiorari, the petitioner should be a person who is adversely affected by the order sought to be quashed. But in the case of a writ of quo warranto the petitioner is in the nature of an informer. In England the petitioner in such circumstances is not called a petitioner at all but only a relator i. e. one who relates facts on the basis of which the Court itself takes action in the name of the King. The peculiar characteristics of the writ of quo warranto and the history of its development in England would appear from the leading case of The King v. Speyer, (1916) 1 KB 595. Lord Reading C. J. pointed out that originally a writ of quo warranto was available only for use by the King against encroadhment of Royal prerogative or of the rights, franchise or liberties of the Crown but that later it gave place to the practice of filing informations by the Attorney General on the strength of which the 'Court enquired into the authority whereby the respondent held any public office. Later still, the King's coroner commenced the practice of exhibiting the information of quo warranto at the instance of even private persons. To prevent malicious information at the instance of private persons, statutes were subsequently passed after which the practice of coroner filing information was stopped, Another statute was passed during the reign of Queen Anne making the issue of a writ of quo warranto subject to the discretion of the Court to grant or refuse the same upon the informations exhibited by private persons.

9. In the case of Calcutta Gas Company (Proprietary) Ltd v. State of West Bengal, AIR 1962 SC 1044 the Supreme Court while dealing with the question of locus standi to file a petition under Article 226 of the Constitution held as follows :

'.....The Article in terms does not describe the classes of persons entitled to apply thereunder; but it is implicit in the exercise of the extraordinary jurisdiction that the relief asked for must be one to enforce a legal right. In State of Orissa v. Madan Gopal, 1952 SCR 28 = (AIR 1952 SC 12) this Court has ruled that the existence of the right is the foundation of the exercise of jurisdiction of the Court under Article 226 of the Constitution. In Charanjit Lal Chow-dhuri v. Union of India, 1950 SCR 869 = (AIR 1951 SC 41). It has been held by this Court that the legal right that can be enforced under Article 32 must ordinarily be the right of the petitioner himself who complains of infraction of such right and approaches the Court for relief. We do not see any reason why a different principle should apply in the case of a petitioner under Article 226 of the Constitution. The right that can be enforced under Article 226 also shall ordinarily be the personal or individual right of the petitioner himself, though in the cage of some of the writs like habeas corpus or quo warranto this rule may have to be relaxed or modified.'

(The underlining is ours.) This view was reiterated in AIR 1966 SC 828, (Gadde Venkateswara Rao v. Government of Andhra Pradesh).

10. In view of the authorities cited, we can take it as well established proposition that if the writ asked for is a writ of quo warranto in respect of a public office the petitioner need have no personal interest. But if the writ asked for is a writ of mandamus or certiorari the petitioner has to establish that he has some personal interest in the matter which the law recognises as sufficient.

11. Now, in the case before us, the petitioner who is a Councillor of the N. A. C. questions the legality of the appointment of opposite party No. 3 on the ground that he did not possess the requisite qualifications and that no prior sanction of the Government had been obtained for creation of the post. He has no personal interest in the matter of appointment of opposite party No. 3. He is neither an aspirant for the post nor is he prejudicially affected in any manner by the impugned orders in Annexures 5 and 7. The learned counsel appearing on behalf of the petitioner invited our attention to Section 382 of the Orissa Municipal Act which deals with personal liability of Councillors for any expenditure made from the Municipal Fund contrary to law where such illegal payment has been authorised by him while acting as a Councillor. He also invited our attention to Sub-section (2) of Section 94 of the Act which requires any Councillor to call the attention of the Chairman to any waste of Council's property. This interest of the petitioner, in our opinion, is not sufficient to entitle him to invoke the jurisdiction under Article 226 of the Constitution for issue of a writ of mandamus or certiorari.

12. The scope and ambit of a writ of quo warranto came up for consideration in the case of University of Mysore v. Govinda Rao, AIR 1965 SC 491. The Court indicated 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 a usurper without legal authority, and that necessarily leads to the enquiry as to whether the appointment of the said alleged usurper has been made in accordance with law or not. That the office held by opposite party No. 3 is a public office is not disputed by the opposite parties. It is however contended that he has no legal authority to hold the office. By the time of his initial appointment, opposite party No. 3 was holder of D. M. S. M. diploma which had been recognised by Government as equivalent to M. B. B. S. degree. The qualification prescribed in the advertisement (Annexure A/3) was either a M. B. B. S. degree or a D. M. S. M. diploma. Thus the requirement of the advertisement was satisfied. It appears from the letter dated 13-11-1065 (Annexure T/3) from the Chairman of the N. A. C. to the Director of Health Services that the post of Medical Officer under the State Government had been offered to opposite party No. 3. It is not disputed that subsequently opposite party No. 3 passed the M. B. B. S. examination and was duly registered in the State Medical Register. He was, therefore, qualified to hold the post of a Medical Officer by the time An-nexures 5 and 7 were issued. Ex post facto sanction for creation of the post was accorded by Government for. the period from 31-8-1965 to 28-2-1971 and the term of the post was extended from time to time. It was last extended upto 29-2-1976 by G. O. No. 29600/UD, dated 31-10-1975. Thug it is clear that even if it be assumed that the requirements of Section 73 of the Orissa Municipal Act and Section 15 of the Indian Medical Councils Act were not fulfilled : at the time of initial appointment the irregularity if any, was completely cured by the time An-nexures 5 and 7 were issued.

13. In AIR 1954 All 227 (FB), (Hari Shankar Prasad Gupta v. Sukhdeo Prasad) the writ of quo warranto was refused as the holder of the office though not qualified on the date of his appointment thereto acquired the necessary qualification during the pendency of the writ petition. In AIR 1975 Delhi 66 (FB), (P.L. Lakhanpal v. Ajit Nath Ray, Chief Justice of India, New Delhi) the petitioner prayed for a writ of quo warranto against the present Chief Justice of India on the ground that his Lordship's appointment was in violation of the provisions of Article 124(2) of the Constitution as the mandatory consultation was not made and as the rule of seniority which inheres in that Article was not followed. After the appointment was made, Justices J. M. Shelat, K. S. Hegde and A. N. Grover who were senior to the present Chief Justice resigned their office as Judges of the Supreme Court and by the time the writ petition was filed, Justice A. N. Ray became the seniormost puisne Judge. In the circumstances, the Full Bench held that the issue of a writ of quo warranto would be futile because as a result of the resignations of the Judges who were senior to him, Justice A. N. Ray became the seniormost puisne Judge and he was not only eligible for reappointment as Chief Justice of India but was entitled to be so reappointed and hence a writ of quo warranto ousting his Lordship from the office of the Chief Justice of India Would be futile and such a writ could not be issued. We are in respectful agreement with the views expressed in these decisions,

14. The alleged invalidity of the appointment of opposite party No. 3 in the year 1965 is not the subject-matter of this writ petition. We are only concerned with the legality of his appointment under Municipal Resolution dated 11-6-1975 (Annexure 7). As mentioned earlier, the post of Second Medical Officer did exist on that date and the opposite party No. 3 had the requisite qualification for the same. It cannot, therefore, be said that there was any illegality in the appointment of opposite party No. 3 as per Annexure 7.

15. The next contention is that the order in Annexure 7 amounts to a fresh appointment and the Notified Area Council was bound to observe the principles of Article 16 of the Constitution and advertise an invitation for applications thereto, which has not been done in the present case and, therefore, the appointment of opposite party No. 3 is illegal. In our opinion, a challenge to a particular appointment as contravening Article 16 of the Constitution cannot be urged by one who was not and is not an aspirant to the post. Referring to Article 16, in AIR 1960 SC 384, (All India Station Masters' and Assistant Station Masters' Association v. General Manager, Central Railway), the Court said :

'Equality of opportunity in matters of employment can be predicated only as between persons, who are either seeking the same employment, or have obtained the same employment.'

16. Opposite party No. 5 has been appointed as an Honorary Lady Assistant Surgeon under the Notified Area Council. She was never an applicant for the post of the Second Medical Officer held by opposite party No. 3. She is over-aged and in her letter dated 21-7-1972 (Annexure Z/3) she offered to serve as a Lady Assistant Surgeon in the N. A. C. without any remuneration towards her service. She has therefore no locus standi to challenge the appointment of opposite party No. 3. Admittedly, applications from eligible persons were invited when opposite party No. 3 was appointed to the post on 31-8-1965 and he was selected on merit. No doubt, his services were terminated on 9-12-1972 as per Annexure K/3 but subsequently the order of termination was cancelled by the N. A. C. --vide Resolutions in Annexures L/3 and M/3. In Annexure 7 the N. A. C. accepted the Government decision in Annexure 5 for taking back opposite party No. 3 and for regularising the period of his absence. In these circumstances, the contention that there was fresh appointment of opposite party No. 3 in violation of the provisions of Article 16 of the Constitution is not acceptable.

17. Considering all the circumstances of the case, we are not satisfied that this is a fit case for interference with the appointment of opposite party No. 3. The writ petition is accordingly dismissed with costs and hearing fee of Rs. 100/- (one hundred) payable to opposite party No. 3.

Shankar, C.J.

18. I agree.


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