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2009 Supreme(Pat) 45
PATNA HIGH COURT
Chandramauli Kumar Prasad and Ravi Ranjan JJ.
Sunil Kumar Tiwary
Versus
State Of Bihar
Civil Writ Jurisdiction Case No. 12944 of 2008
Decided On : JANUARY 15, 2009
Headnote:Constitution of India-Article 226-Quo warranto-Removal of Respondent No.8 as State Election Commissioner-Challenging his appointment-Writ by, claimed to be a social worker maintainability-An application challenging the validity of an appointment to a public officer shall be maintainable at the instance of any person, notwithstanding the fact that none of his fundamented or other legal right has been infringed-In a writ of quo warranto the question is of the right of the person to hold the officer-It is difficult to hold that the petitioner has acted mala fide and he has been set up by other.
(Paras 4 and 5)
Constitution of India-Article 163-Appointment of Respondent No.8 as State Election Commissioner-Challenged on the ground that his appointment has been made by the order of Chief Minister and his appointment did not have the approval of either the Council of Ministers or the Governor of the State-Appointment of State Election Commissioner does not come within any of the exceptions under which the Governor is required to act in his own discretion-Appointment cannot be faulted only on the ground that he was not appointed by the Governor personally-Rules of Executive Business, 1979-Rule 32(a)(ix)Appointment of State Election Commissioner-The State Election Commission has not been shown and could not be shown as the department of the Government and hence, under the Rules of Executive Business, the Chief Minister does not possess the power for appointment of the State Election Commissioner-There is no escape from the conclusion that Respondent No.8 has been appointed as the State Election Commissioner not in accordance with law.
(Paras 14 to 17)
State Election Commissioner (Appointment and Conditions of Services) Rules, 2008-Rules 5 and 6 or proviso to Section 123(2) of the Act-Removal of State Election Commissioner-Rules 5 and 6 or proviso to Section 123(2) of the Act shall protect only such State Election Commissioner, who has been appointed in accordance with law-A person not appointed in accordance with law is the usurper of the office and he is required to vacate such office by issue of writ in the nature of quo warranto-Appointment of Respondent No. 8 is not in accordance with law-He is usurper of that office and for his removal, procedure as prescribed under Rule 6 or Section 123(2) of the Act is not required to be followed-Respondent No. 8 is restrained from discharging any of the functions rights or duty of the office of the State Election Commissioner-Direction issued that no refund of salary or other emoluments be made and further all the acts done by him, shall not be held illegal-Writ in the nature of quo warranto issued.
(Paras 21 and 22)
Chandramauli Kr.Pd., J.
1. Petitioner No. 1 claims to be a Social Worker and Secretary of petitioner no. 2, Servers of Society, an organization purportedly working in the interest of society at large and its members are social workers, lawyers, doctors, engineers etc and in this writ application, their prayer is for issuance of a writ in the nature of quo-warranto for removal of Respondent No. 8 J.K. Dutta as the State Election Commissioner.
2. Facts lie in a narrow compass.
3. Respondent No. 8 J.K. Dutta is an officer of 1970 Batch of Indian Administrative Service and his appointment as the State Election Commissioner has been made by the order of the Chief Minister. His appointment did not have the approval of either the Council of Ministers or the Governor of the State. It is further an admitted position that post facto approval of the appointment of Respondent No. 8 has not been obtained either from the Council of Ministers or the Governor. It is not the case of the petitioners that Respondent No. 8 suffers from any disqualification to occupy the office of the State Election Commissioner but their stand is that the appointment of the State Election Commissioner is required to be made by the Governor of the State and Respondent No. 8 undisputedly having not been appointed by him, his appointment is illegal.
4. Mr. R.S. Pradhan, Senior Advocate, appearing on behalf of Respondent No. 8 has questioned the locus of the petitioners to challenge his appointment. It has been pointed out that petitioner no. 1, according to his own showing, is a Social Worker and Secretary of an unregistered organization and hence has no locus to question the validity of his appointment. It has vaguely been suggested that the writ application filed by the petitioner is politically motivated at the instance of certain politicians, who could not get due favour from him. According to him, the writ application is politically motivated and can very well be termed as political interest litigation and deserves to be thrown out on this ground alone. However, no specific details has been given as to who are the politicians and at whose instance the application has been filed and how it can be said to be politically motivated.
5. in my opinion, an application challenging the validity of an appointment to a public office shall be maintainable at the instance of any person, notwithstanding the fact that none of his fundamental or other legal right has been infringed, if the Court comes to the conclusion that in the interest of public the legal position with respect to usurpation of a public office deserves to be judicially declared nothing shall prevent this Court to issue a writ in the nature of quo-warranto at the instance of any member of the public, unless it is shown that the petition lacks bona fide and the person questioning the appointment is a mere pawn in the game, having been set up by other. Petitioners in this proceeding are not seeking to enforce any of their right as such nor complaining nonperformance of any duty to them, but this will not decide the issue. In a writ of quo-warranto the question is of the right of the person to hold the office. Tested in the light of the aforesaid legal position, it is difficult to hold that the petitioner has acted mala fide and he has been set up by other. Accordingly, I overrule this objection.
6. Mr. Ashutosh Ranjan Pandey, learned Counsel appearing on behalf of the petitioners, submits that power to appoint the State Election Commissioner vests in the Governor and in this connection, he has drawn our attention to Article 243K of the Constitution of India and Section 123 of the Bihar Panchayat Raj Act, 2006 .
7. Mr. Advocate General, appearing on behalf of the State, however, contends that appointment to the office of the State Election Commissioner is not within the individual discretion of the Governor and according to him, this business has been allocated to the Chief Minister under the Rules of
