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S. Mahadevan Vs. S. Balasundaram and ors. - Court Judgment

LegalCrystal Citation
SubjectConstitution
CourtChennai High Court
Decided On
Reported in(1986)1MLJ31
AppellantS. Mahadevan
RespondentS. Balasundaram and ors.
Cases ReferredS. Manickasamy v. V.A. Vasudeva Raju W.P.No.
Excerpt:
- - sundara-varadhan, learned counsel appearing for the first respondent, would state that if this court were to issue a writ of quo warranto, the following conditions have got to be primarily satisfied, namely, (1) the office must be public; professors and readers of the university 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. but we do not see how those duties can be said to be the duties of a public nature which ferris has hinted at in the passage quoted above if there is a failure or neglect on his part to perform his duties, his students or their guardians and in some cases even the staff of the college may be affected; mayor of lyme (1828) 5 bing 91, where best, c......orders. nainar sundaram, j.1. w.p. no. 5426 of 1984 has been preferred by the petitioner for the issue of a writ of quo warranto or other appropriate writ, order or direction calling upon the first respondent herein to show to the satisfaction of this court on what legal authority he was appointed as associate professor in the madras veterinary college on 30.4. 1984 and how he continues in the office. the office of associate professor in the faculty of veterinary and animal sciences, hereinafter referred to as the office, in the second respondent university, amongst other offices, was sought to be filled . up by the second respondent by calling for applications by making the requisite advertisement in the hindu on 8.2.1984. the interview by the selection committee was held on 21.4.1984.....
Judgment:
ORDER

S. Nainar Sundaram, J.

1. W.P. No. 5426 of 1984 has been preferred by the petitioner for the issue of a writ of quo warranto or other appropriate writ, order or direction calling upon the first respondent herein to show to the satisfaction of this Court on what legal authority he was appointed as Associate Professor in the Madras Veterinary College on 30.4. 1984 and how he continues in the office. The Office of Associate Professor in the Faculty of Veterinary and Animal Sciences, hereinafter referred to as the office, in the second respondent University, amongst other offices, was sought to be filled . up by the second respondent by calling for applications by making the requisite advertisement in The Hindu on 8.2.1984. The interview by the Selection Committee was held on 21.4.1984 and the second respondent appointed the first respondent to the Office on 28.4.1984 and the first respondent assumed Office on 30.4.1984 A.N. The ground on which the writ of quo warranto is asked for is that the first respondent was appointed and he is holding the Office in infringement of the provisions of law which laid down the qualifications for the Office. I shall presently advert to the prescription of the qualifications for the Office. This is the gravamen of the charges levelled by the petitioner against the first respondent with regard to his appointment and holding on to the Office. The petitioner would state that the advertisement in The Hindu specifically laid down the following qualifications:

Ph.D. Degree with five years' experience in teaching research in the subject concerned.

That was so, is not in issue before me. Further, it was notified that the Tamil Nadu Agricultural University employees will be governed by G.O.Ms.No. 62, Agriculture Department, dated 10.1.1979, hereinafter referred to as the Government Order. The Government Order with regard to the Office lays down the qualifications as Ph.D. Degree with five years of experience in teaching/research in the subject concerned. Practically, this has been reproduced in the advertisement calling for applications. Clause 6 of the Government Order reads as follows:

The Government also consider that teachers now in service aged 50 years and above on the date of issue of this Order will be exempted from acquiring Ph.D. Degree. Others should acquire Ph.D. qualification within five years from the date of issue of this Order. During the interim period of five years, if any higher posts are advertised for recruitment the existing regular candidates of the University may apply for such posts irrespective of their qualification but selections will be made after taking into account their experience and competence.

The first part of this clause relating to exemption did not apply to the case of the first respondent is the admitted position. On the date when the advertisement was made, the five years period had already lapsed. There is no dispute that both on the date of the advertisement and on the date of his induction into the Office, the first respondent had not acquired the Ph.D. Degree. On this basis, it is claimed that the appointment of the first respondent and his holding on to the Office is illegal and hence, this Court should issue the writ of quo warranto.

2. The contesting respondents in this writ petition are respondents 1 and 2. They have a common cause to counteract the case of the petitioner. Mr. R.Sundara-varadhan, learned Counsel appearing for the first respondent, would state that if this Court were to issue a writ of quo warranto, the following conditions have got to be primarily satisfied, namely, (1) the office must be public; and (2) it must have been created by a statute and the learned Counsel would contend that these two elements are glaringly lacking in the present case and hence, this Court should not issue the writ of quo warranto as prayed for by the petitioner. These aspects shall be adverted to after I set forth the contentions of the second respondent also. Learned Counsel for the first respondent would further state that the Government Order could not have the character of a binding rule of law and it has got a place only as an administrative or executive instruction and hence, any violation thereof and the consequent appointment of the first respondent to the office could only be an irregularity, which could be cured by immediate reappointment and in fact, the first respondent has subsequently acquired the Ph.(sic). Degree qualification within the extended time as per G.O. Ms. No. 1633, Agriculture, dated 23.8.1984 and in this contingency, this Court shall not issue a writ of quo warranto which would be a futile judicial exercise.

3. On behalf of the second respondent, Mr. R. Krishnamoorthi, learned Advocate-General, apart from subscribing support to the submissions made on behalf of the first respondent that the Government Order cannot be elevated to a binding rule of law and it has the character of only an administrative or executive instruction, would also contend as follows: The statutory prescription of qualifications which alone must govern with regard to the office is not so stringent as expressed in the advertisement which had merely repeated what is stated in the Government Order. Regulation 5 of the second respondent University, formulated pursuant to powers under Section 38(e) read with Sub-section(4) of Section 48 of the Tamil Nadu Agricultural University Act 8 of 1971, hereinafter referred to as the Act, has laid down that the qualifications in respect of various posts in the University shall be as specified in Appendix I with regard to the office; the qualifications are expressed in Serial Number 8 of Appendix I as follows:

(a) A first or high second class degree in the subject pertaining to the Faculty.

(b) A Ph.D. Degree in the concerned field of specialization.

(c) Teaching and/or research experience in any College for at least five years.

(d) Experience in research in the concerned field of specialisation as evidenced by published papers in scientific journals and books.

(e) A master's degree holder in the concerned field with not less than five years teaching and/or research experience may also apply.

As per Clause (e), a Master's Degree-holder in the concerned field with not less than five years' teaching and/or research experience may also apply and the first respondent did satisfy this statutory norm and hence his appointment to and his holding on to the office could not be impeached before this Court as violative of the statutory prescriptions, on the basis of which alone this Court will be competent to issue a writ of quo warranto. Learned Advocate-General would submit that the Government Order cannot abbreviate and abrogate the statutory prescriptions and, in fact, the appointment of the first respondent to the office could be sustained as per the qualifications prescribed in Clause (e) of Serial Number & of Appendix I to the Regulations and hence, it should be upheld and it cannot be treated to be an appointment in infringement of any provision having the force of law.

4. I did not hear Mr. V.P. Raman, learned Counsel for the petitioner, saying that the Government Order has the backing of any statutory provision or that it came to be passed pursuant to any powers conferred on the State, the third respondent herein, by any statute. Hence, I have to take it that the Government Order cannot elevate itself to a higher position that that of an administrative or executive instruction for whatever it is worth. It is true that the Government Order sets out the qualifications for the office. But if, in fact, there are statutory qualifications, in that the qualifications stand prescribed by Serial Number 8 of Appendix I to the Regulations which got formulated pursuant to powers under the Act, the Government Order cannot stand and operate in abbreviation of or aberration from the statutory prescriptions, which have got to be adhered to and breach thereof alone will amount to infringement of a provision having the force of law or a binding rule of law. Then the question is, how to ignore the advertisement specifying only a particular qualification, drawing inspiration and support thereof or from the Government Order, as the one required for appointment to the Office, even though there are other qualifications prescribed by the statute for the office. This I shall advert to while I deal with the contentions put forth on behalf of the contesting respondents.

5. Mr. R. Sundaravaradan, learned Counsel for the first respondent, as already stated, would put forth a stand that the office is not public and further it is not one created by statute so as to clothe the Court with power to issue a writ of quo warranto even if there are justifying factors therefor otherwise. The second respondent has not gone thus far and no such contention was advanced before me on behalf of the second respondent.

6. However, on behalf of the petitioner, it was stated that the office is one in the second respondent University which is a Government run University and funded by the Government and the emoluments of the staff are being paid only out of public funds and it is too late in the day to advance a contention that the office is not public. Mr. R.Sundaravaradan, learned Counsel for the first respondent, places reliance on the following two pronouncements to state that the office of an Associate Professor in the second respondent University could not be a public office. In Dr. P.S. Venkataswamy v. University of Mysore A.I.R. 1964 Mys. 159 it was held that Professors and Readers in the Mysore University are not holders of public office and the following observations are pertinent to be noted:.Professors and Readers of the University 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. They cannot therefore in any sense be described as holders of public office in respect of which quo warranto will lie.

Equally so, in S.B. Ray v. P.N.Banerjee 72 C.W.N. 50, it has been held that the Principal of the University Law College is not a public office vested with any portion of the sovereign functions of the Government and hence a writ in the nature of quo warranto does not lie at the instance of a private Relator in regard to office of the Principal of the University Law College and while holding so, it has been observed as follows:.It does not seem to us that the office of the Principal of the University Law College involves a delegation of any of the solemn functions of Government either executive or legislative or judicial to be exercised by the Principal for public benefit. The Principal of the Law College is the head of an institution maintained, as we shall see later, by the Calcutta University and engaged in imparting legal education to those who are the students of his College. He may have administrative and pedagogic duties to be discharged in the interest of the students of his college; but we do not see how those duties can be said to be the duties of a public nature which Ferris has hinted at in the passage quoted above If there is a failure or neglect on his part to perform his duties, his students or their guardians and in some cases even the staff of the college may be affected; but the public as such are not interested in the due observance of the obligations of his employment. In any event, the interest of the public, if any, is so remote that his office does not become a 'public office' as explained by Ferris. From this point of view we are unable to hold that the Principal of the Law College is a public officer vested with any portion of the sovereign functions of the Government to be exercised by him for public benefit. In the premises, we are of opinion that writ in the nature of quo warranto does not lie at the instance of a private relator in regard to the office of the Principal of the University College of Law.

7. I find that there are other pronouncements, which could be taken to have indicated and countenanced a contrary view. In G.A. Natesan, In re : (1916)31MLJ634 , it was held that the Syndicate of the Madras University was a statutory body of persons holding a 'public office' within the meaning of Section 45 of the Specific Relief Act though no emoluments were attached to that office. The relevant head note reads as follows:

Where a statute appoints a body of persons to carry out purposes of public benefit the persons constituting such a body ipso facto become holders of a 'public office'.

The following paragraph in the judgment is also germane:

It is argued by the Advocate General that the definition in the Civil Procedure Code affords a valuable guide in construing Section 45 of the Specific Relief Act and that one important test would be whether the person holding a public office receives any emoluments. Reference was also made to Henley v. Mayor of Lyme (1828) 5 Bing 91, where Best, C.3., was of opinion that every one who was appointed to discharge a public duty and received compensation in, whatever shape whether from the Crown or otherwise was a public office. This definition is not exhaustive. Courts in England have issued a mandamus against poor law guardians, town councilors, church wardens and other purely honorary public officers. There is, so far as I can see, nothing to prevent a person from undertaking public duties without receipt of emoluments. The test is not whether a man receives any emoluments, but the nature of acts to perform which he is appointed or which he is legally liable to perform.

8. In Rajendarkumar v. State : AIR1957MP60 officers of a University created under a statute were held to be holders of public office by observing as follows:

As regards the first question there is no doubt that the offices of Chancellor, Vice-Chancellor and other Officers of the University in respect of which the writ is prayed for are important offices of public nature and sought to be held under a Statute.

9. In S.B. Chaturvedi v. G.C. Chatterjee , the Office of the Vice-Chancellor of the University of Rajputana was treated and dealt with as an office in respect of which a writ of quo warranto could lie, but on some other ground the petition was dismissed, I am keeping separate and distinct the other contention that the Office is not one created by statute.

10. In Ramachandran v. Alagiriswami I.L.R. : AIR1961Mad450 holding that the Government Pleader in Madras holds a public office the following observations were made:

To make the office a public office, the pay must come out of national and not out of local funds.

'I am clearly of opinion that having regard to the fact that the Government Pleader of this Court is employed by the State on remuneration paid from the public exchequer and having regard to the various functions and duties to be performed by him in the due exercise of that office, most of which are of an independent and responsible character, the office must be held to be a public office within the scope of a quo warranto proceeding.

It is stated and claimed by the petitioner that in the present case, the emoluments for the Office are being disbursed out of public funds and since the test of payment of remuneration out of public funds is satisfied, the Office must be held to be a public office.

11. In University of Mysore v. Govinda Rao : [1964]4SCR575 the challenge related to the Office of Reader in a University. It is true, while delineating the conditions to be satisfied for the issue of a writ of quo warranto, the Supreme Court did not face a specific contention that the said office is not a public office. But, it has not thrown out the case on the simple ground that the said office is not a public office. ''

12. In Satish Chander v. Rajasthan University the Officers of the Syndicate of the Rajasthan University were countenanced to be holders of a public office and there was a reference to the observations of this Court in G.A. Natesan In re I.L.R. (1917) Mad. 125 : A.I.R. 1918 Mad. 763, and it was held as follows:

These observations, when read in the light of the duties assigned to the Syndicate by the Act itself; make it absolutely clear that the membership of a syndicate in the University is not only an office but it is also a public office.

13. On the question as to whether the office is one created by statute, learned Counsel for the first respondent would state that the Office as such is not enumerated as any office in the Act. In Amarendra v. Narendra : AIR1953Cal114 the Managing Committee of a private school was not the creature of any statute, but it was constituted in accordance with certain rules, which had no statutory force and on this ground also, the writ of quo warranto asked for was refused. Statute 17 of the statutes formulated pursuant to powers under Clause (Q) of Section 36 read with Sub-section (4) of Section 48 of the Act speaks about heads of departments and it merely contemplates that the head of department shall be a person of the rank of a Professor or an Associate Professor. As against this, on behalf of the petitioner, it is contended that the Regulations themselves speak about the Office and lay down the prescriptions therefore - vide Regulation 5 read with Serial Number 8 of Appendix I and hence, the Office must be held to be one created by statute.

14. I have recapitulated the contentions raised and some of the authorities on the subject, so that they may be on record to avoid a comment that no Such contention was raised at all, but in my view, there is no need to go into these contentions, because even if these questions are answered in favour of the petitioner, he has to falter at a major, legal hurdle that in making the appointment of the first respondent and in allowing him to hold on to the office, there had been no violation or infringement or contravention of any provision having the force of law or any binding rule of law. If in fact the first respondent was not legally qualified to be inducted into and to hold the office, or in other words, he has no valid title to it in law, he will be treated as an usurper and such a situation cannot be cured as an irregularity and he cannot remain in office. Or, in other words, if there is a clear infringement of the provision having the force of law or if the impugned appointment contravened any binding rule of law, the first respondent must vacate the office. In University of Mysore v. Govinda Rao : [1964]4SCR575 the conditions to be satisfied for the issue of a writ of quo warranto were summed up as follows:.Broadly stated, the quo warranto proceeding affords a judicial enquiry in which any person holding an independent substantive public office, or franchise, or liberty, is called upon to show by what right he holds the said office, franchise or liberty; if the inquiry leads to the finding that the holder of the office has no valid title to it, the issue of 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 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 an 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.

15. In Statesman (P) Ltd. v. N.R. Deb : [1968]3SCR614 , it has been countenanced as follows:.The High Court in a quo warranto proceeding should be slow to pronounce upon the matter unless there is a clear infringement of the law.

Here, the statutory prescriptions as per Regulation 5, read with Serial Number 8(a) of Appendix I, permit a Master's Degree-holder in the concerned field with not less than five years teaching and/or research experience to be appointed to the office and there is no dispute that the first respondent stood satisfying this statutory norm, on the date of his appointment to the office. Then the question is, what is the sanctity to be attached to the prescriptions notified in the advertisement which has adopted the norms set out in the , Government Order. So far as the prescriptions in the Government Order overlap the statutory prescriptions, nobody could take exception to them and in fact, they only reiterate the statutory prescriptions. To this extent it can have its face saved. But, there is an omission to set out the other prescription, namely, the one expressed in Clause (e) of Serial Number 8 of Appendix I to the Regulations. On the date of the appointment, the first respondent did satisfy the said prescription. The omission to notify all the statutory prescriptions in the process of making the appointment to the office, however culpable and reprehensible it may be, cannot be taken note of to nullify the appointment to the office in a petition under Article 226 of the Constitution of India, which seeks for the issue of a writ of quo warranto, when the appointment satisfies the statutory prescriptions and does not violate them. For the issuance of a writ of quo warranto, the Court asks the question-where is your warrant of appointment? It enjoins an enquiry into the legality of the claim which the party asserts to an office and if the appointment and holding on to the office are illegal and violative of any binding rule of law, then the Court shall oust him from his enjoying thereof. This Court, within the scope of the enquiry for the issuance of a writ of quo warranto, is not concerned with any other factor except the well laid down factors which require advertance to and adjudication. The existence of the following factors have come to be recognised as conditions precedent for the issuance of a writ of quo warranto: 1) The Office must be public; 2) The Office must be substantive in character, that is, an office independent in title; 3) the office must have been created by statute or by the Constitution itself; 4) the holder of the office must have asserted his claim to the office; and 5) the impugned appointment must be in clear infringement of a provision having the force of law or in contravention of any binding rule of law. This Court shall not frown upon an appointment to the office on the ground of irregularity, arbitrariness or caprice or mala fides and these features, even if they are present, could not clothe this Court with the power for the issuance of a writ of quo warranto. The scope of the enquiry is riveted to only the aforesaid factors. Prerogative writs, like the one for quo warranto, could be and should be issued only within the limits, which circumscribe their issuance. It is not possible to wider their limits. A writ of quo warranto is of a technical nature. It is a question to an alleged usurper of an office to show the legal authority for his appointment and holding on to it. If he shows his legal authority, he cannot be ousted from the office. The invalidity of the appointment may arise either for want of qualifications prescribed by law or want of authority on the part of the person who made the appointment, or want of satisfaction of the statutory provisions or conditions or procedure governing the appointment and which are mandatory. This Court, under Article 226 of the Constitution of India, can issue a writ of quo warranto only if the salient conditions delineated above stand satisfied and not otherwise. When this Court finds that the qualifications prescribed by the statute as per the Regulation in Serial Number 8(e) of Appendix I, stand satisfied in the case of the appointment of the first respondent, it is not possible to view the appointment as one in contravention of any binding rule of law or any provision having the force of law. It is true, the Government Order and consequently the advertisement, have not adverted to the qualifications prescribed in Serial Number 8 (e) of Appendix I to the Regulations. But the Government Order, as already pointed out, has not been demonstrated to have had any statutory basis and the Government Order, being devoid of statutory force, cannot abbreviate, aberrate and abrogate the statutory prescriptions. The statutory prescriptions stand adumbrated in the Regulations, if there was an irregularity, in that there was an omission to notify comprehensively all the statutory prescriptions, that shall not be put against the very appointment, which is otherwise valid in law. Though the steps taken in this behalf drawing inspiration only from the Government Order, which has no statutory force may not commend themselves to the public or to judicial sense, yet, the public or the judicial indignation in this regard cannot be given vent to, to set at naught the very appointment which is found to have the basis in law, in that it satisfies the statutory prescription and in those circumstances this Court cannot assume the power to issue a writ of quo warranto. The non-notifying of all the prescribed qualifications and the drawing of inspiration only from the Government Order while making the advertisement were reprehensible indeed, but they could amount only to irregularities and they have not been demonstrated to be illegalities, and hence they can always be cured. In this connection, I will be content to refer to a few pronouncements.

16. Rex V. Speyer. Rex v. Cassei (1916) 1 K.B. 595 has been countenanced that,.If the irregularity in the appointment to an office held at pleasure could be cured by immediate reappointment, the Court in the exercise of its discretion would doubtless refuse the information, but if, as in this case, any re-appointment would be illegal, I cannot see any sound reason why the Court should not permit the matter to be brought before it.

17. In G.D. Karkare v. T.L. Shevde A.I.R. 1952 Nag. 330 a Bench of the High Court of Nagpur held as follows:. As Lord Reading observed 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, ...

18. In Hari Shankar v. Sukhdeo Prasad : AIR1954All227 (F.B.) Sapru, J., of the Allahabad High Court observed as follows:. the powers which we enjoy under Article 226 are of a discretionary nature, though that discretion has to be exercised in accordance with judicial principles.. It is a well recognised principle that the Court will not grant a quo warranto' in a case where a mere irregularity can be cured. For this proposition I would rely on - Broadley v. Sylvester' (1872) 25 L.T. 459. This was a case in which the Court refused an application for a writ of 'quo warranto' against a clerk to a school board' on the ground that he was improperly elected according to the provisions of a certain statute, considering that the majority of the board might, without assistance, remedy the impropriety themselves, the office being held during the pleasure of the board. Cockburn, C.J., observed:

Here the ground upon which we are asked to interfere is an impropriety in the election and as the office is held at the pleasure of the board, it is competent for the board to do what might be accomplished by our interference.

19. In P.L. Lakhammal v. A.N. Ray : AIR1975Delhi66 a Full Bench of the Delhi High Court has also countenanced the principle that if an alleged irregularity or defect in appointment of holder of office is curable by his immediate re-appointment, the issuance of a writ of quo warranto will be a futile process. The following observations can be usefully taken note of:.If the holder of a public office is ineligible for appointment to that office and remains ineligible upto the date of the hearing of the writ petition, he is undoubtedly a usurper and the application of the principle of futility of writ of reappointment in the circumstances of the case or of the discretion of the Court would not arise.

20. I have found that the first respondent did not lack the prescribed statutory qualification as adumbranted in Clause (e) of Serial Number 8 of Appendix I to the Regulations. Hence, the appointment of the first respondent to the office cannot be characterised as one without the sanction of any binding rule of law. The first respondent was legally qualified to hold the office and whatever irregularities were brought forth by the advertisement, drawing inspiration only from the Government Order, which has no statutory force and which cannot override, abbreviate, aberrate and abrogate the statutory prescriptions cannot be viewed as tainting in law the very appointment of the first respondent to the Office. These irregularities could always be remedied and there is no legal impediment to a reappointment of the first respondent to the office - if that process should necessarily be gone through once again as per the statutory prescriptions of qualifications. A writ of quo warranto is not a motion of course and it is in the discretion of the Court to issue it, considering the circumstances of the case - vide Rex v. Stacey (1785) 99 E.R. 938. As observed by Chagla, C.J., in Bhairulal v. State of Bombay : AIR1954Bom116 :

The writ of quo warranto is not issued as a matter of right. It is a discretionary relief and the Court has always to ask itself whether under the circumstances of each case the petitioner should be given the relief in the nature of quo warranto which he seeks.- head note.

The question to be asked is -was the first respondent appointed/ and is holding on to the office in violation of the statutory prescriptions of qualifications in respect of the Office. The categoric answer, in my view, is 'No'. 21. Learned Counsel for the contesting respondents also expressed a contention that by virtue of G.O. Ms. No. 1633, Agriculture, dated 23.8.1984, there had been an extension of the period for acquiring the qualification of Ph.D. Degree for a further period of three years from 10.1.1984 and the first respondent did acquire the said qualification within the extended time and, as on date, he satisfies this prescription also; and the first respondent could be reappointed even on this basis and hence a writ of quo warranto shall not issue. As against this, Mr. V.P.Raman, learned Counsel for the petitioner, would submit that if in fact it is a case of appointment to the office in violation of the statutory requirement, it must fall to the ground as having no existence in the eye of law and the remedial process theory cannot be imported to sustain such an appointment. Learned Counsel, in this behalf, has drawn my attention to the following observation in P.L. Lakhanpal v. A.N. Ray : AIR1975Delhi66 :. The Attorney General does not dispute that if an order is passed in violation of or contrary to the mandatory provisions of a statute or of a Constitution, it would be illegal and void and as such, will not have any existence in the eye of law.

Mohan, J., also in S. Manickasamy v. V.A. Vasudeva Raju W.P.No. 9619 of 1984 -Order dated 29.11.1984 after adverting to the above observation of the Delhi High Court, pointed out that if an appointment was directly in violation of the provisions of the statute, it would be an illegal appointment and was void from the beginning, and only if it were to be a mere irregularity, the principle of 'could be reappointed' would arise for the purpose of considering whether the issuance of a writ would be a futile process. I do not feel obliged to go into this aspect for the simple reason I have found as a matter of fact that the appointment of the first respondent to the office did satisfy the statutory prescription, and was not in derogation of any statutory mandate.

22. The features discussed by me as above, oblige me to discountenance the prayer of the petitioner and accordingly, W.P.No. 5486 of 1984 fails and the same is dismissed.

23. Coming to W.P. No. 9495 of 1984, the prayer is for the issue of a writ of certiorarified mandamus, calling for the records of the third respondent in G.O.Ms.No. 1633, Agriculture Department, dated 23.8.1984, hereinafter referred to as the impugned Government Order, quash the said order and direct the respondents to consider the claims of the petitioner for appointment to the office. The main grievance of the petitioner is that after he filed the earlier writ petition, W.P. No. 5426 of 1984, and rule nisi was issued on 15.5.1984, the impugned Government Order has come to be passed and it has been passed with a mala fide intention purely to defeat the purpose of the petitioner in the earlier writ petition and to render it infructuous. The allegations of mala fides are not levelled against any personnel either of the first respondent or of the second respondent. The allegations of mala fides are vague and not specific and they do not bring conviction to the mind of this Court that the impugned Government Order was in fact motivated by mala fides as against the petitioner. By the impugned Government Order, the period prescribed in the Government Order for acquiring the requisite qualifications was extended for a further period of three years from 10.1.1984. I find that even on 27.12.1982, the Board of the second respondent University decided to recommend to the Government, extension of the period for acquiring the prescribed qualification. On 13.1.1983, the second respondent had requested the Government to extend the period for acquiring the prescribed qualification. On 15.2.1983, the Government called for particulars. On 30.6.1983, the University wrote, enclosing the representations and giving other details. On 23.7.1983, further clarification was sought for by the Government. On 1.8.1983, the University replied to the Government. On 10.8.83, the Government asked for further particulars and there was a reply by the University on 4.12.1983. On 23.1.1984, the Government called upon the second respondent University to indicate the financial implications in the proposal. On 24.1.1984, there was a representation from the Madras Veterinary College Teachers' Association to the second respondent with a copy marked to the Government. On 4.6.1984, there was another letter from the second respondent and ultimately the impugned Government Order was issued on 23.8.1984. The records pertaining to the above have been exposed before me by Mr. N.R.Chandran, learned Additional Government Pleader, and on going through them, I cannot spell out a proposition that the impugned Government Order came to be passed just to defeat the claims, if any, of the petitioner, or to make the earlier writ petition infructuous. I do not find any substantive attack, tenable in law, on the impugned Government Order. I have to eschew the attack of mala fides in the back-ground of the facts as well as on account of the lack of substantiation of this plea. I have dealt with this writ petition not from the angle that the Government Order has no statutory force and cannot override the statutory prescriptions, and I have chosen to look into the matter only from the angle of the contentions of mala fides, as projected on behalf of the petitioner. Accordingly W.P.No. 9495 of 1984 also fails and the same is dismissed. In the circumstance, there will be no order as to costs in both the writ petitions.


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