Adherence to appointment rules and limitations on the issuance of writs of quo warranto

JUDGMENT :

Ashutosh Kumar, J.

1. Heard Mr. Purshottam Kumar Jha, learned Advocate for the appellant and Mr. Vinay Kumar Mishra for the State.

2. The appellant was appointed as Director of Rural Institute of Higher Studies, Birauli, Samastipur, which appointment letter was issued by the Education Department, which was found to be in breach of the rules of appointment which directed for appointment to the post of Director by the governing body constituted for the purpose from amongst the recommended candidates by the Selection Committee, so constituted for the purpose. All the processes by which the appellant was appointed, was within the rules except for the issuance of appointment letter by the Education Department in place of the governing body of the Institute.

3. The learned Single Judge found the breach of such appointment process to be fatal and set aside the appointment of the appellant, reserving the liberty to the respondent to start the process of filling up the post of Director of Rural Institute of Higher Studies, Birauli, Samastipur at the earliest in accordance with law.

4. The reasons which has weighed with the learned Single Judge for setting aside the appointment of the appellant is the consistent line of reasoning of the Supreme Court in a number of cases (refer to Dhananjay Reddy vs. State of Karnataka (2001) 4 SCC 9; T. Ramamoorthy vs. The Secretary, Shri Ramakrishna Vidyalaya High School, Tirupparaithurai, Tiruchirapalli District and Others, 1998 (4) L.L.N. 876; Captain Sube Singh and Others vs. L.T. Governor of Delhi and Others, 2004 6 SCC 440; State of Jharkhand and Others vs. Ambay Cements and Another, 2005 (1) CTC 223 and Central Electricity Supply Utility of Odisha vs. Dhobei Sahoo and Others (2014) 1 SCC 161) that where a power is given to do a certain thing in a certain manner, that thing must be done in that way or not at all.

5. Finding that the appointment of the appellant was by Education Department and not by the governing body or the Institute, the appointment was set aside.

6. Mr. Jha, learned Advocate for the appellant has attempted to assail the aforesaid order on the ground that he could not have been faulted with as he had appeared before the Selection Committee, whereafter his name was recommended in alphabetical order before the governing body of the Institute. For an inadvertent breach of the rule of appointment where the Education Department pitched in and issued the appointment letter, the appellant ought not to be held responsible for the same. He further submits that there would be no gainsaying that rules have to be followed to the last letter, but in the present set of circumstances, it was not the case of the writ petitioner that there was any illegality in the appointment of the appellant on such post or that the appellant did not have basic qualification to be recommended for being selected for such post. It has further been submitted by the appellant that the complaint which has led to the quashment of the order of appointment of the appellant is by a person who had been arm-twisting the appellant all this while for monetary gains.

7. After having read the order impugned, we are of the view that the learned Single Judge decided the correctness of the appointment process of the appellant, a collateral issue in a writ petition which was essentially filed for issuance of a notice of quo warranto to the appellant. No petition for issuance of a writ of quo warranto against the appellant could have been entertained notwithstanding the breach in the rules of appointment for the reason that the rules in that regard clearly stipulated that the holder of the post of Director of the Institute shall not be a government servant as the Institute is an autonomous body.

8. It is apodictic that no writ of quo warranto can be issued against non-substantive or non-government posts.

9. True it is that there had been a breach in the appointment process which has resulted in the removal of the appellant from