The main legal point established in the judgment is that the appointment to a public office must be in accordance with the relevant statutory provisions and executive powers, and challenges based on constitutional provisions such as Art.16 cannot be raised in a motion for quo warranto.

Headnote:
quo warranto - Medical Graduate vs. Honorary Medical Officer - University of Mysore v. C. D. Govinda Rao AIR. 1965 SC 491, G. J. Fernandez v. The State of Mysore AIR. 1967 S.C.1753, B.N. Nagarajan v. State of Mysore AIR. 1966 SC. 1942, All India Station Masters' and Assistant Station Masters' Association v. General Manager, Central Railway AIR. 1960 SC. 384, Calcutta Gas Company Ltd v. State of West Bengal AIR. 1962 SC. 1044, Narayan Keshav Dandekar v. R. R. Rathi AIR. 1963 MP. 17, Abdul Rahiman Khan v. Sadasiva Tripathi AIR. 1969 SC. 302
Fact of the Case:

The petitioner, a medical graduate, filed a petition against an Honorary Medical Officer seeking a writ of quo warranto to declare the respondent's claimed office as vacant and to oust the respondent from the office.
Finding of the Court:

The court found that the appointment of the respondent as an Honorary Medical Officer was not in violation of any statutory provision and was made in accordance with the executive power under Art.162 of the Constitution.
Issues: The issues included the legality of the respondent's appointment as an Honorary Medical Officer, compliance with statutory provisions, and the applicability of Art.16 of the Constitution.
Ratio Decidendi: The court held that the appointment of the respondent was within the executive power under Art.162 of the Constitution and did not violate any statutory provision. The court also ruled that a challenge to an appointment under Art.16 of the Constitution cannot be heard in a motion for quo warranto.
Final Decision: The petition was dismissed, and no costs were awarded to either party.

Judgment :-

1. This petition has been moved by a medical graduate against an Honorary Medical Officer, and is for the reliefs: ... to issue a writ of quo warranto against the 1st respondent,

and

(i) Declare that the post that the first respondent now claims to occupy in the General Hospital at Ernakulam is vacant;

(ii) Order the ouster of the first respondent from such office and restrain him from exercising any functions or duties relating to such office;

(iii)

(iv) all such other consequential or ancillary reliefs as may be deemed just and necessary in the circumstances of the case; and allow this writ petition with costs."

Relief No. (iii) has been withdrawn and the State of Kerala, who was originally impleaded as the 2nd respondent to this motion, has been removed from the party array by the petitioner as per C. M. P. No. 46 of 1969, which was allowed by the court on January 8,1969. However, we have heard the learned Advocate General as Amicus curiae in the matter.

2. The allegations in the motion, relevant to the reliefs now urged, are thus:

"...the Government had... declared... on September 24th 1968 that the 'Part-time Honorary service is stopped altogether all over the State with effect from 1st October 1968 ...this ending of the part-time honorary service had long since become expedient in the light of the fact that it had been started for the sole reason that at the time there were no sufficient number of qualified medical personnel available for appointment in regular Government service ...This state of 'paucity of qualified medical personnel for appointment in Government service' however rapidly disappeared, and...there are already more then 140 qualified medical graduates of the State waiting for appointment and a further about 60 more such hands would be finishing their 'House surgency' this month and joining this army of unemployed medical personnel. In the face of this situation the Government can have absolutely no just cause or lawful right or legal authority to appoint any more such honorary and part-time officers in any of its hospitals or medical institutions in the State. Any such appointment if mads will therefore be illegal and ultra vires of its powers under law, as well as it would be mala fide, and a manifest abuse of. or fraud on, power. Nevertheless it is seen claimed by the first respondent... that he has again been reappointed... to continue for another term as a part-time honorary medical officer in the General Hospital. Ernakulam... Indeed, apart from the position that the Government has now no authority under law to make such appointment as has already been indicated above, any such appointment could ever be validly and honestly mads only in strict accordance with the existing rules and notifications expressly laying down the procedure governing such appointments namely the rules published as appendix to G. O. MS. 665 dated 4th September 1963, of the Health and Labour (A) department. Government of Kerala. This has not been done in the case of the 1st respondent's alleged appointment, although he appears to be still in actual possession of the office in question. He is therefore in such possession of the office illegally and as a mere usurper;..."

The respondent has produced the Government Order dated 16101968 by which he has been appointed as Honorary Medical Officer at the General Hospital, Ernakulam. It is signed by the Deputy Secretary "By order of the Governor." That order shows that only two posts of Honorary Medical Officers have been created by Government in 1968, and the respondent and another, whose appointment is not in challenge here, were appointed thereto.

3. The scope of enquiry in a motion for quo warranto has been indicated by the Supreme Court in the University of Mysore v. C. D. Govinda Rao AIR. 1965 SC 491 thus:

"...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 agains

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1969 Supreme(Ker) 119

The main legal point established in the judgment is that the appointment to a public office must be in accordance with the relevant statutory provisions and executive powers, and challenges based on constitutional provisions such as Art.16 cannot be raised in a motion for quo warranto.

Cases Referred (3)