2012 Supreme(Guj) 220

2012 (3) GCD 1805 (Guj) (DB)
Hon’ble Mr. Acting Chief Justice Bhaskar Bhattacharya &
Hon’ble Mr. Justice J.B. Pardiwala
Pradeep P. Prajapati
Versus
Principal Secretary & Ors.
Letters Patent Appeal No. 2485 of 20101—Decided on 11/04/2012

Point in Issue :
Whether in the facts of the case rejection of petition for issuance of writ of quo warranto justified.

Headnote:Head Note :

       (a) Service and Employment — Writ of quo warranto — Issuance of — Scope and ambit of — Indicated — It is a judicial remedy of prerogative nature against an intruder or usurper of an independent substantive office, franchise or liberty — Only a person who comes to the Court with bona fides and public interest can has locus — One of the most important conditions seeking a writ of the nature must satisfy that the office in question is a public office — The petition in the present case fails on both Courts — He has not be able to establish that the post of Chief Account Officer in university is a public office and that he is bona fide in seeking remedy in the case — The Chief Accounts Officer is merely an employee under a statutory body and not a public office in respect of writ can be issued — Beside appointment on the post is function of the appointing authority and not of the Court unless appointment is contrary to statutory provisions or rules — In the case petitioner has not been able to make out a case for the Court to interfere by issuance of discretionary writ — However additional charge of Registrar of University, Deputy Registrar as well Director of school even on officiating basis can not saved for which necessary consequential directions are issued.

       Held :

       Only a person who comes to the Court with bonafides and public interest can have locus. [Para 39]

       One of the most important conditions which the person seeking a writ of quo warranto must satisfy is that the office in question is a public office and the same is of a public nature. If this condition is satisfied, only in such a case the Court may proceed further to inquire as to whether the appointment to the public office is really in violation of statutory rules and regulations or any provision of law. [Para 40]

       It is manifestly clear that the Chief Accounts Officer of the University clearly neither exercises any governmental functions nor is he invested with the power or charge with the duty of acting in execution or informalities of the law. The Chief Accounts Officer is merely an employee under a statutory body. He cannot, therefore in any sense, be described as the holder of a public office in respect of which writ of quo warranto will lie [Para 44]

       There is one more reason as to why Court is not inclined to entertain the present petition and the reason is that the suitability or otherwise of a candidate for appointment on a post is the function of the appointing authority and not of the Court unless the appointment is contrary to statutory provisions/rules and also the fact that a writ of quo warranto is not generally issued as a matter of course and it is discretion with the Court to do so or withhold the same. Having taken the view that there is no violation of any statutory provisions or rules governing the appointment of the Chief Accounts Officer under the Act, and also having held that a Chief Accounts Officer is not holding a public office or office of a public nature, no relief as prayed for by the petitioner can be granted. At this stage, having regard to the facts and circumstances of the case and also our findings, Court is inclined to take into consideration the fact that the Respondent No. 4 is functioning as a Chief Accounts Officer with the University for the last almost nine years. Taking into consideration the conglomeration of the facts, Court has no hesitation in coming to a conclusion that no case has been made out by the petitioner for our interference in the matter. [Para 48]

       Plain reading of Section 13 of the Act would suggest that the Registrar will also act as the Secretary of the Court of the Executive Council and of the Academic Council. The Executive Council has the powers to appoint a person to the post of Registrar in accordance with the recommendations made by the Selection Committee, which will be constituted by the Executive Council in the manner prescribed by statutes and his qualifications, emoluments and other conditions of service shall also be determined by such statutes. The powers and the duties to be performed shall be as prescribed by the statutes, ordinances and the regulations. [Para 52]

       The Respondent No. 4 cannot be permitted to hold the post of In-charge Registrar, Deputy Registrar as well as Director of the School even on officiating basis. The fact that the Registrar of the University holds a public office of a public nature is not even disputed by the learned Senior Counsel appearing for the respondent-University. On the contrary, all throughout Mr. Shelat’s submission has been that a Chief Accounts Officer is not one of the officers under Section 8 of the Act and this being the position a Chief Accounts Officer cannot be said to be holding a public office. However, there is no escape from the fact that the Registrar of the University is one of the officers of the University as provided under Section 8 of the Act. The University authorities could have easily appointed any suitable person fulfilling the required qualifications for the post of Registrar as an officiating Registrar. [Para 53]

       Head Note :

       (b) Letters Patent — Clause 15 — Appeal — Order rejecting writ of quo warranto — Ground of delay and laches — Sustainability — Court held that issuance of writ of quo warranto is a discretionary remedy — If a genuine petition for a writ of quo warranto is rejected Soly on the ground of delay then it would necessary mean that such person would continue to hold such a public office regardless of the right of such person to hold such office — Besides cause of action for a writ of quo warranto is ‘de dei in dium’ i.e. the usurpers continuance in office afford a fresh cause of action every day and each hour till he is onsted — Therefore dismissal of petition in the case merely on ground of delay and laches is not sustainable.

       Held :

       The writ of quo warranto proceedings affords a judicial remedy by which any person who holds independent substantive public office is called upon to show by what right he holds the same so that his title to it may be duly determined and in the event it is found that the holder has no title, he would be directed to be removed from the said office by a judicial order. The proceedings not only give a weapon to control the executive from making appointments to public office against law but also tend to protect the public from being deprived of public office to which it has a right.

        [Para 14]

       Issuance of writ of quo warranto is a remedy. The authority of a person to hold a high public office can be questioned inter alia at any point of time in the event an appointment is violative of any statutory provisions. If a genuine petition for a writ of quo warranto is rejected solely on the ground of delay, then it necessarily means that such a person would continue to hold such a public office regardless of the right of such a person to hold such an office. Court is, therefore, of the view that on technical grounds of delay or laches, a petition for writ of quo warranto may not be straight way rejected. The position of law in this regard also appears to be very well-settled. [Para 15]

       Head Note :

       (c) Words and phrases — Public office–Meaning, Connotation and scope of — Described.

       Held :

       The term “Public Office” as explained by various authors and the authoritative pronouncements is that a public office is the right, authority and duty created and conferred by law, by which an individual is vested with some portion of the sovereign functions of the Government to be exercised by him for the benefit of the public, for the term and by the tenure prescribed by law. It implies a delegation of a portion of the sovereign power. It is a trust conferred by public authority for a public purpose, embracing the ideas of tenure, duration, emoluments and duties. A public officer is, thus, to be distinguished from a mere employment or agency resting on contract, to which such powers and functions are not attached. [Para 43]

       Law Laid Down :

       The cause of action for a writ of quo warranto is ‘de dei in dium’ which can not be dismissed only on ground of delay.