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Alex Beets Vs. M.A. Urmese and anr. - Court Judgment

LegalCrystal Citation
SubjectService;Constitution
CourtKerala High Court
Decided On
Case NumberOriginal Petn. No. 4564 of 1968
Judge
Reported inAIR1970Ker312
ActsConstitution of India - Articles 16 and 226
AppellantAlex Beets
RespondentM.A. Urmese and anr.
Appellant Advocate Manuel T. Paikaday and; A.C. Jose, Advs.
Respondent Advocate S.A. Nagendran and;N.N.D. Pillai
DispositionPetition dismissed
Cases ReferredIn Abdul Rahiman Khan v. Sadasiva Tripathi
Excerpt:
.....by respondent be vacated - respondent produced government order by which he was appointed - government under article 162 competent to create post and to fill it by competent person - respondent's appointment cannot be said to be ultra vires - motion for writ of quo warranto failed. - - any such appointment if made will therefore be illegal and ultra vires of its powers under law, as well as it would be mala fide, and a manifest abuse of, or fraud on power. p-i shows clearly that the government had on october 16, 1968, sanctioned the appointment of the respondent as an honorary medical officer in the general hospital, ernakulam. as the government by virtue of its powers under article 162 read with list ii, entry 41 in the vii schedule, is competent to create a post and to fill..........indicates the scope of the executive power of the state; it does not confer any power on the state government to issue rules thereunder. as a matter of fact wherever the constitution envisages issue of rules it has so provided in specific terms. we may, for example, refer to article 309, the proviso to which lays down in specific terms that the president or the governor of a state may make rules regulating the recruitment and the conditions of service of persons appointed to services and posts under the union or the state. we are therefore of opinion that article 162 does not confer any power on the state government to frame rules and it only indicates the scope of the executive power of the state. ..... we are therefore of opinion that instructions contained in the code are mere.....
Judgment:

Madhavan Nair, J.

1. This petition has been moved by a medical graduate against an Honorary Medical Officer, and is for the reliefs:

'..... to issue a writ of quo warranto against the 1st respondent, and

(i) Declare that the post that the first respondent now claims to occupy in the General Hospital at Ernakulam is vacant;

(ii) Order the ouster of the first respondent from such office and restrain him from exercising any functions or duties relating to such office;

(iii) .....

(iv) all such other consequential or ancillary reliefs as may be deemed just and necessary in the circumstances of the case; and allow this writ petition with costs'. Belief No. (iii) has been withdrawn and the State of Kerala, who was originally impleaded as the 2nd respondent to this motion, has been removed from the party array by the petitioner as per C. M. P. No. 46 of 1969, which was allowed by the Court on January 8, 1969. However, we have heard the learned Advocate-General as amicus curiae in the matter.

2. The allegations in the motion, relevant to the reliefs now urged, are thus:

'..... the Government had .... declared ..... on September 24th, 1968, that the Tart-time Honorary service is stopped altogether all over the State with effect from 1st October 1968 ..... this ending of the part-time honorary service had long since become expedient in the light of the fact that it had been started for the sole reason that at the time there were no sufficient number of qualified medical personnel available for appointment in regular Government service .....This state of 'paucity of qualified medical personnel for appointment in Government service' however rapidly disappeared, and ..... there are already more than 140 qualified medical graduates of the State waiting for appointment and a further about 60 more such hands would be finishing their 'House Surgeoncy' this month and joining this army of unemployed medical personnel. In the face of this situation the Government can have absolutely no just cause or lawful right or legal authority to appoint any more such honorary and part-time officers in any of its hospitals or medical institutions in the State. Any such appointment if made will therefore be illegal and ultra vires of its powers under law, as well as it would be mala fide, and a manifest abuse of, or fraud on power. Nevertheless it is seen claimed by the first respondent ..... that he has again been re-appointed ..... to continue for another term as a part-time honorary medical officer in the General Hospital Ernakulam. ..... Indeed, apart fro... the position that the Government has now no authority under law to make such appointment as has already been indicated above, any such appointment could ever be validly and honestly made only in strict accordance with the existing rules and notifications expressly laying down the procedure governing such appointments, namely the rules published as appendix to G. O. MS. 665 dated 4th September, 1963, of the Health and Labour (A) Department, Government of Kerala. This has not been done in the case of the 1st respondent's alleged appointment, although he appears to be still in actual possession of the office in question. He is therefore in such possession of the office illegally and as a mere usurper; .....'

The respondent has produced the Government Order dated 16-10-1968 by which he has been appointed as Honorary Medical Officer at the General Hospital, Ernakulam. It is signed by the Deputy Secretary 'By order of the Governor'. That order shows that only two posts of Honorary Medical Officers have been created by Government in 1968, and the respondent and another, whose appointment is not in challenge here, were appointed thereto.

3. The scope of enquiry in a motion for quo warranto has been indicated by the Supreme Court in The University of Mysore v. C. D. Govinda Rao, AIR 1965 SC 491 thus;

'..... the procedure of quo warranto confers jurisdiction and authority on the judiciary to control executive action in the matter of making appointments to public offices against the relevant statutory provisions, it also protects a citizen from being deprived of public office to which he may have a right. It would thus be seen that if these proceedings are adopted subject to the conditions recognised in that behalf, they tend to protect the public from usurpers of public office; in some cases, persons not entitled to public office may be allowed to occupy them and to continue to hold them as a result of the connivance of the executive or with its active help, and in such cases, if the jurisdiction of the Courts to issue writ of quo warranto is properly invoked, the usurper can be ousted and the person entitled to the post allowed to occupy it. It is thus clear that before a citizen can claim a writ of quo warranto, he must satisfy the Court, inter alia, that the office in question is a public office and is held by 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. ..... In fact, in issuing the writ, the High Court has made certain observations which show that the High Court applied tests which would legitimately be applied in the case of writs of certiorari. In the judgment, it has been observed that the error in this case is undoubtedly a manifest error. That is a consideration which is more germane and relevant in a procedure for a writ of certiorari. What the High Court should have considered is whether the appointment made by the Chancellor had contravened any statutory or binding rule or ordinance. .....'

4. Quo warranto is only information as to the authority of the respondent to hold a substantive public office. When the respondent has produced in Court the Government Order appointing him to the office, the Court has only to enquire if the appointment is in violation of any statutory provision on the matter. It has been alleged by the petitioner that the respondent's appointment was not 'in strict accordance with .....the rules published as Appendix to G. O. MS. 665 dated 4th September, 1953.' Those rules do not refer to applications being invited or entertained for appointment; but provide for recommendation by a committee for appointment as Honorary Medical Officers. The rules are published in the Kerala Gazette dated 10th September, 1963, along with G. O. MS. 665, to which it is appended, and a form of application. That G. O. invited applications in the form given for appointment as Honorary Medical Officers to be submitted before 15-9-1963 and it is stated at the bar that 99 inclusive of the present respondent were then appointed.

The question material is whether the rules appended to that G. O. detailing the terms ana conditions of service of the Honorary Medical Officers are statutory Rules. Obviously, and admittedly, they are not. The contention is that the rules having been framed by the Government by virtue of its powers under Article 162 of the Constitution, must be taken to have the force of law, and therefore an appointment made without conformity therewith will entitle a writ of quo warranto.

We find little force in this argument. In G. J. Fernandez v. State of Mysore, AIR 1967 SC 1753 the Supreme Court has observed:

'Learned counsel for the appellant is un-able to point out any statute under which these instructions in the Code were framed. ..... But his contention is that they are rules issued under Article 162 of the Constitution. Now Article 162 provides that 'executive power of a State shall extend to the matters with respect to which the legislature of the State has power to make laws'. This Article in our opinion merely indicates the scope of the executive power of the State; it does not confer any power on the State Government to issue rules thereunder. As a matter of fact wherever the Constitution envisages issue of rules it has so provided in specific terms. We may, for example, refer to Article 309, the proviso to which lays down in specific terms that the President or the Governor of a State may make rules regulating the recruitment and the conditions of service of persons appointed to services and posts under the Union or the State. We are therefore of opinion that Article 162 does not confer any power on the State Government to frame rules and it only indicates the scope of the executive power of the State. ..... We are therefore of opinion that instructions contained in the Code are mere administrative instructions and are not statutory rules. Therefore even if there has been any breach of such executive instructions that does not confer any right on the appellant to apply to the Court for quashing orders in breach of such instructions.'

5. Counsel for petitioner contends that the Government can act and therefore appoint respondent to a public office only under a law and that therefore the Rules under which the respondent is appointed must have been intended and must be reckoned to have the force of law. In B. N. Nagarajan v. State of Mysore, AIR 1966 SC 1942 the Supreme Court has observed:

'First it is not obligatory under proviso to Article 309 to make rules of recruitment etc., before a service can be constituted or a post created or filled. ..... Secondly, the State Government has executive power, in relation to all matters with respect to which the legislature of the State has power, to make laws. It follows from this that the State Government will have executive power in respect of List II, Entry 41, State Public Services. It was settled by this Court in Ram Jawaya Kapur v. State of Punjab, AIR 1955 SC 549, that it is not necessary that there must be a law already in existence before the executive is enabled to function and that the powers of the executive are limited merely to the carrying out of these laws. We see nothing in terms of Article 309 of the Constitution which abridges the power of the Executive to act under Article 162 of the Constitution without a law'.

It is obvious that the Rules in question, which are not traced to any statute but only to the executive power under Article 162 of the Constitution, cannot be regarded as laws or to have the force of law. The allegation that the respondent's appointment is in contravention of rules having force of law has therefore to be overruled.

If the Rules have no force of law and are only administrative instructions, their violation will not sustain a writ motion under Article 226 of the Constitution. Ext. P-I shows clearly that the Government had on October 16, 1968, sanctioned the appointment of the respondent as an Honorary Medical Officer in the General Hospital, Ernakulam. This petition is filed on 24th October, 1968, for information as to his appointment. The challenge delivered to the appointment as not warranted by law fails. As the Government by virtue of its powers under Article 162 read with List II, Entry 41 in the VII Schedule, is competent to create a post and to fill it by a competent person, it cannot be said that the respondent's, appointment is ultra vires, and this motion for a writ of quo warranto has also to fail.

6. Counsel contended that whenever a post in public service is created and filled, the Government is bound to observe the provisions of Article 16 of the Constitution and advertise an invitation for applications thereto, which has not been done in this case and therefore the respondent's appointment is illegal. Such a case has not been put forth in this petition, and therefore cannot be urged at the final hearing thereon. Vide: The Tropical Insurance Co. Ltd. v. Union of India, AIR 1955 SC 789.

Secondly, 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 of the Constitution, in All India Station Masters' and Assistant Station Masters' Association v. General Manager, Central Railway, AIR 1960 SC 384 the Supreme Court has held:

'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'.

In Calcutta Gas Co., Ltd. v. State of West Bengal, AIR 1962 SC 1044 the Supreme Court has pointed out:

'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 case of some of the writs like habeas corpus or quo warranto this rule may have to be relaxed or modified'. The petitioner wanted an appointment and has been appointed only as a regular Medical Officer in the Health Service, and not as an Honorary Medical Officer. He cannot claim to be personally aggrieved by the respondent's appointment to a post to which he was no aspirant.

Counsel for petitioner contends that the requirement of a personal interest to sustain a writ motion docs not extend to motion for quo warranto, which is the case here. We are afraid that challenge of an order under Article 16 of the Constitution cannot be heard in a motion for quo warranto: it can be heard in a motion for certiorari or prohibition. The scope of a quo warranto is very limited, namely, whether the appointment of the respondent is by a proper authority and in accordance with law if there is an express statute governing such appointment. The argument that what cannot be urged for other writs can well be urged for a writ of quo warranto, and therefore the denial of equality under Article 16 which the petitioner could not have urged in a motion for certiorari or prohibition can be urged in the present motion for a quo warranto, is not warranted by the nature of the procedure pointed out by the Supreme Court (AIR 1965 SC 491) and has to be rejected.

Counsel for petitioner cited Narayan Keshav Dandekar v. R.C. Rathi, AIR 1963 Madh Pra 17 where reference has been made to a violation of Article 16 of the Constitution as a ground for issuance of a writ of quo warranto. In that case their Lordships of the Madhya Pradesh High Court have found the impugned appointment to have been made in contravention of 'Section 58 of the Madhya Bharat Municipal Corporation Act,' and that itself necessitated the issuance of a quo warranto. Their Lordships went further to point out other defects in the impugned appointment and observed that it violated Article 16 of the Constitution and ultimately concluded the judgment by issue of a quo warranto. In our opinion, that decision cannot be a precedent for issuance of a writ of quo warranto for mere contravention of Article 16 of the Constitution.

In Abdul Rahiman Khan v. Sadasiva Tripathi, AIR 1969 SC 302 the Supreme Court has held a contract with the State not complying with Article 299 of the Constitution and therefore unenforceable against the State to be a contract disqualifying the contractor from standing for election to the legislature. That is clear precedent that what is not in conformity with provisions of the Constitution cannot be ignored for all purposes. A Government Order not conforming with Article 16 of the Constitution may be quashed by a certiorari but may be a sufficient answer to a quo warranto. Possession of a public office under a Government order is not usurpation of office, for which alone quo warranto lies, and even if the Government Order is violative of fundamental rights it will not be void, though quashable by a writ of certiorari.

7. In view of our conclusions above, it is unnecessary to refer to the other citations made by the learned advocate for the petitioner for the proposition 'that an executive action like an appointment to a new office made in violation of the guarantees of equal opportunity conferred by Article 16 of the Constitution is not in accordance with law and therefore illegal and void incapable of supporting the occupation of a public office lawfully.'

8. The petition is found to be without force and is hereby dismissed. We make no order as to costs on this motion.


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