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S.K. Dubey Vs. Union of India (Uoi), Etc. - Court Judgment

LegalCrystal Citation
SubjectService
CourtDelhi High Court
Decided On
Case NumberCivil Writ 671/1975
Judge
Reported inILR1983Delhi60; 1983LabIC1118; 1983(2)SLJ547(Delhi)
ActsConstitution of India - Articles 16(1), 226 and 309
AppellantS.K. Dubey
RespondentUnion of India (Uoi), Etc.
Appellant Advocate P.N. Lekhi and; R.N. Sharma, Sr. Advs. and; N.N. Sharma
Respondent Advocate Y.K. Sabharwal, Adv. for respondents 1 and 3 and ; M.M. Sudan, Adv. for respdt 2
DispositionPetition dismissed
Cases ReferredR.S. Deodhar v. State of Maharashtra
Excerpt:
constitution of india - article 226 -- writ in the nature of quo warranto -- circumstances in which it can be issued; public office -- meaning of; laches -- whether to be taken into account in granting or refusing the writ of quo warranto -- method of direct recruitment --meaning of. ;an advertisement was issued for the post of a chief engineer (extension). for this post the president framed rules regulating the method of recruitment in exercise of the powers conferred on him by the proviso to article 309 of the constitution of india. in the rules educational and other qualifications were laid down. the 'direct recruitment' method of appointment was prescribed. petitioner was not a candidate because he had not gained minimum practical experience required for the post. respondent was one.....avadh behari rohatgi, j.1. this is a petition under article 226 of the constitution of india for a writ in the nature of quo warranto by shri. s.k. dubey, petitioner, against shri ram kumar, respondent no. 2. there is a national sugar institute at kanpur which is a department of the ministry of food and agriculture, government of india, the petitioner is working there as a senior technical officer and assistant professor. he was appointed in 1963 as a lecturer. in june 1964 he was appointed as a senior technical officer in the grade of rs. 350--900. in 1966 he was given a higher scale of rs. 700--1250.2. so far so good. the trouble started in december 1966 when an advertisement was issued for the post of a chief engineer (extension) [for short c.e. (ext.)]. the institute requested the.....
Judgment:

Avadh Behari Rohatgi, J.

1. This is a petition under Article 226 of the Constitution of India for a writ in the nature of quo warranto by Shri. S.K. Dubey, petitioner, against Shri Ram Kumar, respondent No. 2. There is a National Sugar Institute at Kanpur which is a department of the Ministry of Food and Agriculture, Government of India, The petitioner is working there as a senior technical officer and assistant professor. He was appointed in 1963 as a Lecturer. In June 1964 he was appointed as a senior technical officer in the grade of Rs. 350--900. In 1966 he was given a higher scale of Rs. 700--1250.

2. So far so good. The trouble started in December 1966 when an advertisement was issued for the post of a Chief Engineer (Extension) [for short C.E. (Ext.)]. The Institute requested the Union Public Service Commission, respondent No. 3, (the Commission) to find a suitable candidate for the post of C.E. (Ext.) which carries a salary of Rs. 1100--1400. Now for this post of C.E. (Ext.) the President has framed rules regulating the method of recruitment in exercise of the powers conferred on him by the proviso to Article 309 of the Constitution of India. These rules were notified in the Gazette of India on 13th July, 1964. In the rules educational and other qualifications for this post are laid down. Firstly, the candidate should have a degree in mechanical or technical engineering of a recognised university. Secondly, he must have practical experience of about 7 years. The second qualification was relaxable at Commission's discretion in case of candidates otherwise well qualified. The method of appointment to this post is also prescribed. It is 'direct recruitment'.

3. In response to the advertisement there were as many as 10 applications. Respondent No. 2 was one of them. The petitioner was not a candidate because he had not gained practical experience of 7 years. He had been appointed only in 1963 and his experience in 1966 was not more than 3 years or so in duration. But respondent No. 2 took his degree of B.E. in 1961 and had acquired 51 years practical experience by 1967 in sugar mills and Textile Machinery Corporation. Out of the 10 applications, four were called for interview. The Commission sat to interview them. They found none suitable for the post of C.E. (Ext.). So they recommended that respondent 2 be appointed to a post next junior to the post of C.E. (Ext.) as no suitable candidate was available for appointment as C.E.(Ext.). Accordingly, a post of Senior Technical Officer (Engg.) [for short S.T.C. (Engg.)] was created for the appointment of respondent No. 2 in lieu of the existing post of C.E. (Ext.). It was recommended that respondent No;. 2 be given adequate training so that be becomes suitable for being considered for the post of C.E. (Ext.).

4. The following extract from the letter dated 14-12-67 from the Under Secretary to the Department of Food, New Delhi, sets out the recommendation of the commission :

'The Commission recommended Shri Ram Kumar for appointment to a post, next junior to the post of Chief Engineer (Extension) as no suitable candidate was available for appointment to the latter. A post of S.T.O. (Engg.) was accordingly created for his appointment, in lieu of the existing post of C.E. (Ext.). Shri Ram Kumar should be given adequate training to be suitable for being considered for the post of C.E. (Ext.). After he has worked for a minimum period of 3 years as S.T.O. (Engg.) and received the necessary training, a self contained reference may be made to the ministry for his being considered for appointment to the higher post in light of his performance during this period. His case, thereafter will be taken up with the Commission, which will determine his suitability for the higher post.

Shri Ram Kumar may be allowed to join the post only after he accepts in writing the terms and conditions in the offer made to him and after completion of the requirement of paragraphs 3 and 4 of the offer. As soon as Sri Ram Kumar joins duty this Department may please be informed immediately so that the UPSC can be advised of the same.

It is further requested that an assessment report on the work of Sri Ram Kumar may be forwarded to this Ministry every year for a period of 3 years subsequent to his appointment. These reports should indicate briefly the nature of duties performed by him during the period covered by the report and a general assessment of his overall performance.'

A copy of this letter was sent to the Director, National Sugar Institute at Kanpur.

5. After the completion of 3 years training, the case of respondent No. 2 was taken up with the Commission to determine his suitability for the higher post. This was in 1971. The Commission found him suitable for the higher post. So respondent No. 2 was appointed C.E. (Ext.).

6. On the appointment of respondent No. 2 to the post of C.E. (Ext.), the petitioner wrote to the Government that he had been passed over and that respondent No. 2's appointment was not valid. His case was that, his seniority has been affected by the appointment of respondent No. 2. The Government did not make any reply to his representation till 1975. In 1975, the petitioner's representation was rejected and the decision was communicated to him. On the rejection of the representation, the petitioner filed the present writ petition on 27th May, 1975.

7. The first question is whether a writ of quo warranto can be issued. In Halsbury's Laws of England (4th ed.) Vol. I. p. 165, it is said :

'An information in the nature of quo warranto lay only if the office was substantive in character, that is, an office independent in title, and if the holder of the office was an independent official, not one discharging the functions of a deputy or servant at the will and pleasure of others. An information in the nature of a quo warranto lay in respect of an office held at pleasure, provided that the office was one of a public and substantive character.'

8. The duties of office must be of a public nature. In the leading case of Rex v. Speyer (1916) 1 K. B. 597(1) the information in the nature of quo warranto lay against two members of the Privy Council, because membership of the Privy Council was held to be an office of a public nature. In the University of Mysore v. Govinda Rao : [1964]4SCR575 , the Supreme Court quoted Halsbury's Laws of England with approval and said :--

'Broadly stated, the quo warranto proceedings afford a judicial enquiry in which any person holding an independent substantive public officer, or franchise, or liberty, is called upon to show by what right he holds the said office, franchise or liberty; if the inquiry leads to the finding that the holder of the office has no valid title to it, the issue of the writ of quo warranto ousts him from that office. In other words, the procedure of quo warranto confers jurisdiction and authority on the judiciary to control executive action in the matter of making appointments to public offices against the relevant statutory provisions; it also protects a citizen from being deprived of public office to which he may have a right. It would thus be seen that if these proceedings are adopted subject to the conditions recognised in that behalf, they tend to protect' the public from usurpers of public office; in some cases persons not entitled to public office may be allowed to occupy them and to continue to hold them as a result of the connivance of the executive or with its active help, and in such cases, if the jurisdiction of the courts to issue writ of quo warranto is properly invoiced, the usurper can be ousted and the person entitled to the post allowed to occupy it. It is thus clear that before a citizen can claim a writ of qua warranto, be must satisfy the court, inter alia, that the office in question is a public office and is held by 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.'

9. An information in the nature of a quo warranto took the place of the obsolete writ of quo warranto which lay against a person who claimed or usurped an office,, franchise, or liberty, to inquire by what authority he supported his claim, in order that the right to the office or franchise might be determined.

10. The writ of quo warranto is the process by which persons who claim to exercise public functions of an important and substantive character, by whomsoever appointed, can be called to account if they are not legally authorised to exercise them. By this means the count can and does exercise control on all persons who hold public offices. The process is enforced for the benefit of the community and is the only available remedy if the office is either abused or usurped. Every subject has an interest in securing that public duties shall be exercised only by those competent to exercise them. (R v. Speyer p. 627-628 per Lush J.).

11. The writ of quo warrants concerns public government. A citizen can bring the matter before the court on purely public grounds without any private interest to serve and it is to the public advantage that the law should be declared by judicial authority. The court ought to incline to the assistance, and not to the hindrance of the applicant in such a case. Lord Reading CJ said :

'It would seem strange that the Court by refusing the remedy should perpetuate illegality. I cannot conceive why the Court should refuse to interfere if the appointing body persisted in retaining in office a person disqualified in law and no remedy other than the information is available. In the present case the information sought is the only means of testing the legality of the appointment, and if, as contended, it is contrary to law, quo warranto would seem in principle a convenient and proper way to obtain a judicial decision to that effect. If the irregularity in the appointment of an office held at pleasure could be cured by immediate reappointment, the Court in the exercise of its discretion would doubtless refuse the information------------------'

12. In a writ of quo warranto, the holder of an office is asked the question : 'By what authority do you support your claim to the office you hold ?' This question can be raised by a grievance man who claims that another has usurped that office and is holding it without any authority. The object is to enquire into the right to the office and to determine a man's claim to it.

Now two questions arise :

(1) Was the appointment of respondent No. 2 validly made? and

(2) Does he hold a public office against which a writ of quo warranto can issue?

13. On the first question I have no doubt that the appointment of respondent No. 2 was not made strictly in accordance with the rules framed by the President under Article 309. The method of appointment is direct recruitment under the rules. But here an indirect method of appointment was adopted by the Commission. In the letter dated 14-12-1967, which I have quoted above, it is admitted that the Commission did not find any suitable candidate for appointment to C.E. (Ext.). thereforee, Commission adopted a method of their own devising. They suggested that a post of S.T.O. (Engg.) be created against which respondent No. 2 may be appointed to enable him to get adequate training for a period of three years. A post of S.T,O.(Engg.) was created. Respondent No.2 was given training for three years. His case for appointment to the higher post of C. E. (Ext.) was taken up with the Commission. The Commission in the light of his performance found that he was suitable for the higher post So he was appointed.

14. I cannot assent to this procedure. For this procedure there is no warrant in the rules. This procedure, to my mind, is a procedure of promotion and not a procedure of direct appointment. This is in essence a method of training for promotion. What else if not this? A method of promotion was substituted for the method of direct recruitment. Or I should say that the method of direct recruitment was inverted. The President in the rules has not empowered the Commission to recommend for the creation of a lower post to fill up a higher post after giving adequate training to the man in the lower post.

15. The method of direct recruitment means that out of the available candidates from the market possessing the requisite qualifications you appoint the most suitable. If none is found suitable out of the applicants, as was the recommendation of the Commission the post could not be filled. There is a great danger in this method which the Commission recommended for adoption. Because the suitability of responded No. 2 at the end of three years was determined in 1971 when there was no other candidate in the field. His appointment was made to a lower post of S.T.O. (Engg.) which was created for him. There was no indication in the advertisement of this novel method. The post of S.T.O. (Engg.) was created to groom a future C.E. (Ext.) if I may be allowed to use that word. The advertisement merely said that the post of C.E. (Ext.) is to be filled. It did not say that in lieu of this post another post of a lower grade can be created to enable the Ministry to give adequate training to a person in the event of none being found suitable. Not only is this method indirect but it is also in contravention of the terms of the advertisement. Not only it is contrary to the rules but it is also against the principles of equality of opportunity in the matter of public employment under Article 16(1) of the Constitution.

16. Counsel for the Union of India argues that there is nothing wrong with this method. He calls it a mere manner or form of the prescribed method of direct recruitment. I do not agree. The letter dated 14-12-67 suggests that after having rejected all the candidates who applied for the post of C.E. (Ext.) a suggestion was made to the Ministry to deal with the situation which arose when none was found suitable. So it means this that respondent No. 2 was alone considered for the post of S.T.O. (Engg.) to the exclusion of all others. He alone was asked if he was willing to accept the lower job of S.T.O. (Engg.) on the condition that if, after adequate training, he is found suitable he will be appointed to the higher post of C.E. (Ext.). So others were excluded from consideration who may have been good for the appointment of S.T.O. (Engg.) which was created especially for the purpose of training the man for C.E. (Ext).

17. The method of direct recruitment is intended to give equal opportunity of employment to all those who possess the necessary qualification. But if a lower post is created as a stepping stone to a higher post for one particular individual it may amount to denial of equal opportunity to others in public employment. The method in question was adapted, it is true, to the flux of circumstance, but it did not preserve the essential character of 'direct recruitment'. The method is full of dangers both to collective and to individual existence. It is full of dangers both to the public services and to individual candidates. It can lead to favoratism and nepotism. Special favor can be shown to a particular individual in conferring office on him. It can lead to unfair preferment of certain persons to the exclusion of all other qualified persons. It can be a happy hunting ground for the unsuitable and undeserved. The framers of our Constitution knew that 'power is of an encroaching nature, not necessarily because it is unscrulously pursued and exercised, but because this is a quality inherent in it'. (C. K. Allen--Law and Orders 3rd Ed. p. 21). It is to safeguard against this 'encroaching nature' of power that the U.P.S.C. was established by the Constitution. A public service commission is intended to further the objectives of a public government.

18. In this case the terms of advertisement are important. Selection has to be made in terms of advertisement [Nafe Singh v. Director of Technical Education 1972 S.L.R. 675 (3)]. The advertisement was for C.E. (Ext). But a post was created for respondent No. 2 where he was to be given training for the ultimate appointment of C.E. (Ext.). This method is, in my opinion, an inversion of the method of direct appointment. Or I should say it is a perversion of the method. In our present set up under the Constitution no post can be created just to accommodate some persons, howsoever, prominent or outstanding he may be. The post in Government departments or offices are created for administrative exigencies and in the interest of the official work. They are not created to accommodate particular persons. Public offices are created for purpose of effecting the end for which government has been instituted, which is the common good and not for the profit, honour or private interest of any one man.

19. If there is a necessity of creating a post and manning it, it should be thrown open to all eligible candidates after prescribing the qualifications which the candidates aspiring to hold that post should possess. To create a post and to appoint a particular person without informing other candidates that in the event of suitable candidate not being available a lower post can be created for training purposes is in direct contravention of the fundamental rights of other eligible candidates guaranteed by Article 16(1) of the Constitution. Tuli J. condemned this method. He said : 'Such an appointment is based on favoritism and smacks of arbitrariness and dictatorship and is vocative of the fundamental right of other eligible candidates. To concede such a power to the executive is to violate the inviolable fundamental rights guaranteed by Article 16 of the constitution.' [Mrs. Davinder Brar v. State of Punjab 1969 SLR 613 (4) at page 619 per Balraj Tuli J, See also Salim Chauhan v. Punjab State Electricity Board 1971 PLR 615 (5) per Balraj Tuli J.].

20. In my opinion the appointment of respondent No. 2 by creating a post for him and appointing him in that post for the purposes of training him for a future C.E. (Ext.) is the negation of the method of direct recruitment. This is vocative of Article 16(1) of the Constitution.

21. It was said that the qualifications were relaxable at the discretion of the Commission in cases of candidates who were otherwise well qualified. But the method adopted was not a relaxation. It was a complete invasion of direct recruitment.

22. Is the office of C.E. (Ext.) a public office? This is the second question. A public office must be an office created by the statute or the Constitution. It must be a substantive office. It must be an office independent in title. The holder of the office must not be a servant discharging the functions at the will and pleasure of others. It is not in dispute that the office in question, namely, C.B. (Ext.) has not been created by the Constitution or by any statute.

23. Mr. Sharma, learned counsel for the petitioner, says that it was created by the Rules framed under Article 309 and, thereforee, it is a statutory office. I do not agree. Article 309 does not empower the President to create posts as can be done by a statute or by the Constitution. It only gives him power to make rules regulating the recruitment and the conditions of service of persons appointed to services and posts in the Union. A post can also be created by an executive order. The National Sugar Institute is not a statutory body. No statute creates it. Nor is the post of Chief Engineer (Ext.) created by any statute or the Constitution. Under Article 309 the President has framed the rules regulating the recruitment and conditions of service of C.E. (Ext.). This is all. Nothing more. So it is not a post created by the statute or the Constitution. It is not a public office. It is not an office independent in title. Respondent No. 2 holds office during the pleasure of the President under Article 310 of the Constitution. He is the holder of a post in the Union. He is a member of the public services.

24. I was referred to several decisions in this connection. In Narayan Keshav Dandekar v. R.C. Rathi, : AIR1963MP17 , the post of Assessment and State Officer was in question. In Gajanan v. Nagpur Municipality 1980 Lab. IC 167 (7) the office in question was the Dean of the Corporation Medical College under the Nagpur Corporation Act. In M.S. Mahadeokar v. The Chief Commissioner Union Territory, Chandigarh 1973 PLR 503 (8) the post of an Assistant Controller of Printing and Stationery in the Department of Chandigarh Administration was at issue. The decisions on the question of public office are in a state of confusion. It is not always clear whether the office in a particular case was created by the statute or the Constitution. The authorities do not always discuss the question whether the office is a public office. Sometimes it is assumed that the office is a public office of an independent character. It is difficult to agree that a writ of quo warranto can lie against the Assistant Controller of Printing and Stationery, as was held in M. S. Mahadeokar (supra) unless it is held that it is a public office of a substantive character and the holder of the office has an independent title. I should have thought that the Assistant Controller is merely discharging the functions of an employee of the State and is not the holder of an office independent in title.

25. English decisions show that the public offices which are contemplated by the writ of quo warranto are such offices of Recorder of Borough, Mayor, Alderman, Town. Councillor, Judge of a County Court, a Superintendent, Registrar of Births, Marriages and Deaths, Justice of Peace, Sheriff, Members of the General Medical Council. On the other hand, an information in the nature of a quo warranto did not lie in respect of the post of treasurer to a District Council which acted as a Rural Sanitary Authority pursuant to the Local Government Act 1894 because the duties of such an office were not of that public and substantive nature required to support a quo warranto [R v. Wells (1895) 43 W.L.R. 576] (9).

26. As Lord Reading CJ said : 'The test to be applied is whether there has been, usurpation of an office of a public nature and an office substantive in character, that is, an office independent in title.' [R. v. Speyer (supra) at page 609]. The office must be a substantive office, that is, an office of independent character as contrasted with the employment of a deputy or mere servant. Suppose the office is a public office for the reason that the public have an interest in the duties respondent No. 2 discharges and because he is paid out of a fund provided by the public. But he does not hold an independent office of a public nature. It was not created by a charter. It was not created by the statute or the Constitution. It is in this sense that it has been again and again said that the office must be of a substantive nature and independent in title.

27. In G.D. Karkare v. T.L. Shedev AIR 1952 Nag. 330 (10), the appointment of the Advocate General was challenged on the ground that under the Constitution only a person qualified to be appointed as a Judge of a High Court could be appointed and as the respondent was over 60 years of age, he was not qualified to be appointed, a judge and was not, thereforee, qualified to be appointed as the Advocate General. It was held that a writ of quo warranto was maintainable. The office was held to be a public office.

28. In P.L. Lakhanpal v. Ajit Nath Ray 1975 DLT 1 (11) the appointment of the Chief Justice of India was challenged. It was held by a full bench of this court that since he could be reappointed it was useless to issue the writ. R. v. Speyer (supra) was followed.

29. In S.B. Ray v. P.N. Banerjee (1967) 72 Cwn 50 (12), it was held that the principal of the Law College is not a public officer vested with any portion of the sovereign functions of the government to be exercised by him for the public benefit. A writ in the nature of quo warranto, it was held, did not lie at the instance of 3 private relator in regard to the office of the principal of the University College of Law.

30. In Dr. P.S. Venkataswamy v. University of Mysore AIR 1964 Mys 159 (13), a division bench held that professors and readers of the Mysore University are not statutory authorities under Section 13 of the Mysore University Act and clearly do not exercise any governmental functions. Nor are they invested with the power or charged with the duty of acting in execution or enforcement of the law. They, are merely employees under a statutory body. It was held that they were not holders of public offices in respect of which quo warranto will lie. On the authorities I have come to the conclusion that respondent No. 2's office is not an independent office of a public nature.

31. In my opinion, the post of C.E. (Ext.) being a post created by the executive action, it cannot be said that it is a post created by the statute or the Constitution. [See Mrs. Priti Prabha v. C. P. Singh 1969 Lab. I.C. 913 (14), S.K. Mishra v. Jabalpur Municipality 1978 Lab. I.C. 294] (15), & Hazi Mohamad v. State of W.B. (1979) 2 Cul. LCJ 494 (16). thereforee, the post of C.E. (Ext.) is not a public office of an independent character.

32. Mr. Sharma, on behalf of the petitioner, has drawn my attention to Stroud's Judicial Dictionary (4th ed.) Vol. 4 page 2189 and American Jurisprudence on the Title of Public Officers. In my opinion, these law books do not extend the scope of quo warranto and Authoritative pronouncement on the nature of this writ is to be found in Halsbury's Laws of England which was quoted with approval by the Supreme Court in University of Mysore v. Govinda Rao : [1964]4SCR575 and the full bench of this Court in P.L. Lakhanpal v. Ajit Nath Ray (supra) It cannot, thereforee, be accepted that the writ will lie in any other case except the case of a public office. I have come to the conclusion that the post, in question is not a public office of a substantive character or independent in title.

33. Suppose I am wrong in this and the post in question is a public office. Even then I should not issue a writ. As I have said, the office in question is not a public office of an independent character. Nor do I think that respondent No. 2 has usurped the office. At best it can be said that his appointment was wrongly made by the Government on the recommendations of the UPSC. This is a case of a defective appointment. It is not a case of usurpation of an office.

34. Then the writ of quo warranto cannot be claimed as of right. It is not to be granted as a matter of course. It is in the discretion of the court to refuse or to grant it according to the circumstances of the case. The court might in its discretion decline to grant a quo warranto information where it would be vexatious to do so or where an information would be futile in its results or where there was an alternative remedy which was equally appropriate and effective. (Halsbury's Laws of England 4th ed. Vol. I para 177 page 167). In my discretion I ought to decline the writ looking at all the circumstances of the case. (See Lakhanpal's case).

35. This takes me to another important consideration. It is the question of delay. Respondent No. 2 was appointed in 1971. This writ petition was filed in 1975. There is a delay of 4 years or so. The respondent has throughout been working as C.E. (Ext.) till today. To make an order of ouster against him will be unjust in the facts and circumstances of this case. (See Baij Nath v. State of U.P., ). In case a writ is issued then respondent No. 2's entire career will be blasted for no fault of his. In this view I do not find it a fit case for the grant of writ of quo warranto [Bhajan Das Swami v. State of Punjab 1977 SWR 289 (18)].

36. The factor of delay has to be taken into account. It has always been taken into account in granting or refusing the writ of quo warranto. Professor Wade says :

'The modern tendency has been to extend the remedy, subject to the discretion of the court to refuse it to a private prosecutor, for example, if he has delayed unduly.'

(Administrative Law 4th ed. page 498). Professor S. A. de Smith says :

'The remedy is barred to a private relator (or plaintiff) if he has been guilty of acquiescence in the usurpation of office or undue delay)'

(Judicial Review of Administrative Action 4th ed. page 464).

37. In cases of quo warranto the court follows the principles of grant of injunctions. In Halsbury's Laws of England 4th Ed. Para 177 Page 167 it is said :

'It is conceived that the court will follow the similar principles in determining whether to grant an injunction in lieu.'

38. Suppose the petitioner were to bring a suit for a declaration and injunction in 1975 in respect of a cause of action which arose to him in 1971 on the appointment of respondent No. 2 as C.E. (Ext.). Injunction will he refused to him on the ground of delay. The same should be the principle for the grant of writ of quo warranto.

39. In 1938 the information in the nature of quo warranto was abolished in England. It was provided that in a case where a person acted in an office to which he was not entitled and a quo warranto information would formally have lain against him, the High Court could grant an injunction restraining him from so acting and, if necessary, declare the office to be vacant. Proceedings for an injunction are now commenced in England by an application to the Divisional Court for judicial review. But the old rule still applies. The office must be one of a public nature. No such proceeding can be taken except by a person who would have been entitled to apply for a quo warranto information, (de Smith p. 463).

40. Whether it is a writ of quo warranto or a suit for a declaration and injunction delay would be fatal to the plaintiff or a petitioner who comes to the court after 4 years. As I see it is not a case of usurpation. The petitioner's complaint was that respondent No. 2's appointment had affected his seniority. He is interested only in seniority. He is not interested in the office of C.E. (Ext.) because on the date the advertisement for this post was made the petitioner did not have the requisite experience in terms of the rules.

41. There is another point. Respondent No. 2, if ousted, can be reappointed. It is, thereforee, useless to grant the writ. It the irregularity in the appointment of an office held at pleasure could be cured by immediate reappointmerit, the court in the exercise of its discretion would refuse to grant the writ (R. v. Spayer (supra) at p. 612).

42. The petitioner's case is of seniority. He has a private interest. He was not vindicating the rights of the public. This is why he complained to the Government in 1971 about the appointment of respondent No. 2 as it effected his seniority. If no reply was forthcoming, as none came before 1975, he should have come to court at the end of six months or at best one year. (See P. S. Sadasivaswamy v. State of T. N., : [1975]2SCR356 ). The supreme court has laid down this rule of practice. It is not a rule of law. There is no law of limitation. It is a sound and wise exercise of discretion for the courts to refuse to exercise their extraordinary powers under Article 226 of the Constitution in the case of persons who do not approach it expeditiously for relief and who stand by and allow things to happen and then approach the court to put forward a stale claim and try to unsettle-settled matters. A person aggrieved by an order promoting a junior over his head should approach the court at least within six months or at the most a year of such promotion.

43. Mr. Sharma says that the petitioner was waiting for a reply from the government. He had written to the government in 1971. In 1975 he received a reply rejecting his representation. Immediately on receipt of reply he rushed to the court, counsel says. In support of his contention that this is not a case of fatal delay counsel relies on R.S. Deodhar v. State of Maharashtra : (1974)ILLJ221SC .

44. The Explanationn offered by the petitioner is not satisfactory. There is no provision for any representation to the Government. If the Government does not choose to reply, as it is not bound to reply, the petitioner cannot say that he was waiting for the reply. There is no provision for any statutory representation. In R.S. Deodhar it was held that the delay did not matter as no one in that case was to be reverted. But in the present case it will be unjust, in my opinion, to make an order of ouster against respondent No. 2 now.

45. For these reasons the petition is dismissed. The parties are, however, left to bear their own costs.


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