Back
2016 Supreme(Cal) 269
IN THE HIGH COURT OF JUDICATURE AT CALCUTTA (CIRCUIT BENCH AT PORT BLAIR)
JYOTIRMAY BHATTACHARYA, SUBRATA TALUKDAR, JJ.
Dharamraj - Petitioner
Versus
Akshay Pant & Others - Respondents
MAT No. 019 of 2016 With CAN No. 62 of 2016
Decided On : 13-06-2016
Advocate Appeared:
For the Petitioner: Partha Sarathi Bhattacharya, S. Banerjee, P.C. Das, Arul Prasanth
For the Respondents: K.M.B. Jayapal, Anjili Nag
The High Court has the jurisdiction to issue a writ of quo warranto challenging the legality of a public appointment, and the enforceability of draft Recruitment Rules, though not formally notified, can be upheld if there is a clear intention for their future implementation.
Headnote:
ANDAMAN AND NICOBAR ADMINISTRATION - PROTOCOL OFFICER APPOINTMENT - QUO WARRANTO - MAINTAINABILITY - WRIT PETITIONER'S LOCUS STANDI - ADMINISTRATIVE TRIBUNALS ACT, 1985 - SECTIONS 14, 19, 28 - DRAFT RECRUITMENT RULES - ENFORCEABILITY - HIGH COURT OF GUJARAT & ORS. V. GUJARAT KISHAN MAZDOOR PANCHAYAT & ORS. (2003) 4 SCC 712 - APPOINTMENT'S LEGALITY - ISSUES - REMAND FOR FRESH CONSIDERATION.
Fact of the Case:
Appellant challenged the High Court's order quashing his appointment as Protocol Officer, citing illegality and irregularities in the ad hoc appointment and subsequent extensions.
Finding of the Court:
1. The writ petition was maintainable as the petitioner had the locus standi to challenge the appointment, and the Administrative Tribunals Act did not bar the High Court's jurisdiction. 2. The enforceability of the draft Recruitment Rules, though not formally notified, was upheld based on the Supreme Court's precedent. 3. The appellant's claim of satisfying the conditions for appointment under the draft Rules required further scrutiny with additional evidence. 4. The High Court erred in adjudicating the legality of the ad hoc appointment without a specific challenge from the petitioner. 5. Absorption followed by ad hoc appointment was not the sole criterion for regularization under the draft Rules, necessitating a review of the appellant's ultimate absorption.
Issues: 1. Whether the writ petition was maintainable considering the petitioner's locus standi and the provisions of the Administrative Tribunals Act. 2. Whether the draft Recruitment Rules, though not formally notified, were enforceable. 3. Whether the appellant satisfied the conditions for appointment as per the draft Rules. 4. Whether the High Court erred in examining the legality of the ad hoc appointment without a specific challenge. 5. Whether absorption followed by ad hoc appointment was the sole criterion for regularization under the draft Rules.
Ratio Decidendi: 1. The petitioner had a direct interest in ensuring that public appointments adhered to statutory rules, establishing his locus standi. 2. The Supreme Court's decision in High Court of Gujarat & Ors. v. Gujarat Kishan Mazdoor Panchayat & Ors. supported the enforceability of draft Rules with a clear intention for future implementation. 3. The appellant's claim of meeting the draft Rules' conditions required further examination with additional evidence. 4. The High Court's adjudication of the ad hoc appointment's legality without a specific challenge exceeded its scope of review. 5. Absorption followed by ad hoc appointment was not the sole criterion for regularization under the draft Rules, necessitating a review of the appellant's ultimate absorption.
Final Decision: 1. The High Court's order quashing the appellant's appointment was set aside. 2. The writ petition was remanded for reconsideration after exchange of affidavits between the parties. 3. The appellant was permitted to file an affidavit-in-opposition within four weeks, with the petitioner's reply due within two weeks thereafter. 4. The interim arrangement made by the High Court during the pendency of the writ petition was to continue until its disposal.
1. This mandamus appeal is directed against an order passed by the learned Single Judge of this Court on 18th March, 2016 in a writ proceeding being WP No.047 of 2016 wherein a writ in the nature of quo warranto was prayed for by the writ petitioner being a social worker challenging the legality of the appointment of the appellant in the post of Protocol Officer in the department of General Administration, Secretariat Establishment, Andaman and Nicobar Administration. By the impugned order the writ petition was allowed by the learned Single Judge of this Court. His Lordship found that the ad hoc appointment which was given to the appellant in the post of Protocol Officer by the Administration and the extension of such ad hoc appointment given to him from time to time by the Administration, were illegal and as such, the ad hoc appointment and the extensions which were given to the appellant by the Administration were set aside. Consequently, regularization of the service of the appellant in the post of Protocol Officer which was impugned in the said writ petition, was set aside. The Administration was directed to fill up the vacant post by following rules framed in that regard within a period of three months from the date of communication of the order.
2. The legality and/or propriety of the said judgment and/or order passed by the learned Single Judge in the said writ petition is under challenge in this mandamus appeal.
3. At the outset Mr. Partha Sarathi Bhattacharya, the learned Senior Counsel appearing for the appellant submitted that though a preliminary objection regarding maintainability of the writ petition was raised before the learned Single Judge of this Court but the learned Single Judge of this Court, without deciding the said preliminary objection regarding maintainability of the writ petition, decided the writ petition on merit. He further submitted that the appellant remained unrepresented before the learned Single Judge of this Court as due to the sad demise of the uncle of the appellant’s learned advocate, he could not make himself present in Court to represent his client. We are also informed by him that though extension of time for filing affidavit in the writ proceeding and postponement of the hearing of the said writ petition were sought for but such prayers were not allowed and the writ petition was ultimately decided ex parte by rejecting the appellant’s prayer for adjournment and without allowing the appellant to file affidavit in the writ proceeding. This part of the contention of Mr. Bhattacharya has not been denied by the learned counsel appearing for the other parties. In this background Mr. Bhattacharya invited us to decide the maintainability point first.
4. Let us first of all consider as to whether the writ petition was maintainable before this Court or not. Relying upon a decision of the Hon’ble Supreme Court in the case of S. Chandramohan Nair Vs. George Joseph & ors, reported in 2010(12) SCC 687, Mr. Bhattacharya submitted that the writ petitioner being a busybody and/or meddlesome interloper cannot seek issuance of a writ of quo warranto before the High Court. We have considered the said judgment of the Hon’ble Supreme Court. Paragraph 21 of the said judgment is set out hereunder:-
“21. As mentioned above, Respondent 1 had nothing to do with the appointment of the members of the State Commission and who did not place any material record to show as to how the appointment of the appellant would adversely affect the members of the Samiti. His position was nothing more than that of a meddlesome interloper/busybody and the Division Bench of the High Court gravely erred in entertaining the writ petition filed by him and converting the same into a writ of quo warranto.”
5. Reading the said decision of the Hon’ble Supreme Court it appears to us that unless a person is directly affected by the action of the Government in giving appointment to a person in a public post, he or she cannot approach
