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IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Tarlok Singh Chauhan, J.
Satish Chandra Mishra - Appellant
Versus
Union Of India & Ors. - Respondents
Civil Writ Petition No. 388 of 2017
Decided On : 16-12-2019
Quo Warranto - Appointment of Director (Personnel) - University of Mysore and another v. C.D. Govinda Rao and another, (1965) AIR SC 491 : (1964) 4 SCR 575; B.R. Kapur v. State of T.N. and another, (2001) 7 SCC 231 : AIR 2001 SC 3435; Centre for PIL and another v. Union of India and another, (2011) 4 SCC 1; Central Electricity Supply Utility of Odisha v. Dhobei Sahoo and others, (2014) 1 SCC 161; Renu and others v. District and Sessions Judge, Tis Hazari Courts, Delhi and another, (2014) 14 SCC 50; Bharati Reddy v. State of Karnataka and others, (2018) 6 SCC 162
Fact of the Case:
The petitioner sought a writ of quo warranto to quash the appointment of respondent No.6 as Director (Personnel) and to direct respondent No.6 to vacate the post. The court had to determine if such a writ can be issued when the appointment has not been made under statutory rules or provisions.
Finding of the Court:
The court analyzed the nature of writ of quo warranto and its requisites as established in various judgments. It emphasized that the appointment must be contrary to statutory rules or provisions for the writ to be issued. The court dismissed the petition as the appointment was made in pursuance to administrative instructions and not in violation of statutory provisions.
Issues: The main issue was whether a writ of quo warranto can be issued for an appointment made based on administrative instructions and not statutory rules.
Ratio Decidendi: The court clarified that a writ of quo warranto can only be issued when the appointment is contrary to statutory rules or provisions. It emphasized that the appointment must be in violation of provisions having the force of law, and not merely administrative instructions.
Final Decision: The petition seeking a writ of quo warranto was dismissed as the appointment was made in pursuance to administrative instructions and not in violation of statutory provisions.
Based on the provided legal document, the key points regarding the issuance of a writ of quo warranto are as follows:
A writ of quo warranto can only be issued when an appointment is made contrary to statutory rules or provisions, which have the force of law. It cannot be issued based solely on administrative instructions or non-statutory guidelines (!) (!) .
The office in question must be a public office, created by statute or the Constitution, and of substantive and independent character. The person holding such office must have claimed or asserted their right to it, and must be legally qualified to hold it (!) (!) .
The scope of quo warranto is limited to determining whether the appointment was made in accordance with law. If the appointment was based on administrative instructions without statutory backing, a writ of quo warranto is not maintainable (!) .
The office must have duties of a public nature and be created by law. If the post is not of a public nature or not created by statute, the remedy of quo warranto is not applicable (!) .
The issuance of a writ of quo warranto is a discretionary remedy. It is primarily intended to prevent usurpation or illegal continuation in office, and not to interfere with lawful exercises of power or technical delays (!) (!) .
The court's inquiry focuses on whether the appointment contravenes any statutory or legal provisions. If it is made solely on administrative instructions, which lack the force of law, the court will generally refuse to issue a quo warranto (!) .
Delay or lack of personal interest (locus standi) does not bar a citizen from challenging an appointment through quo warranto, provided the appointment is unlawful and the office is of a public nature (!) (!) .
In the absence of statutory rules or legal provisions requiring a particular procedure for appointment, and if the post is filled based on administrative instructions, a writ of quo warranto is not appropriate (!) (!) .
The court emphasized that the appointment must be made in violation of binding legal rules or provisions for a quo warranto to be issued. Administrative instructions, which are not legally binding, do not meet this criterion (!) .
Overall, the legal principles underscore that quo warranto is a remedy to address unlawful usurpation of a public office created by law, and not a tool to challenge appointments made solely through administrative or executive instructions without statutory backing (!) (!) .
These points collectively clarify that in cases where appointments are made based solely on administrative instructions and there are no statutory rules governing the appointment process, a writ of quo warranto is not a legally sustainable remedy.
JUDGMENT
Tarlok Singh Chauhan, J. - The instant writ petition has been filed for the following relief:
"It is, therefore, humbly prayed that this writ petition may kindly be allowed and appointment of respondent No.6 to the post of Director (Personnel) vide order dated 23.3.2011, Annexure P-3, and extension granted to him vide order dated 22.8.2016, Annexure P-6, as Director (Personnel) in the respondent No.4 Company may kindly be quashed and set aside by issuing a writ in the nature of quo warranto and the respondent No.6 may be directed to vacate the post of Director (Personnel) forthwith. Any other direction deemed fit and proper in the facts and circumstances of the case may also be issued, in the interest of justice. Cost of the petition may also be awarded."
2. Since, the petitioner has prayed for a writ of quo warranto, therefore, the only question required to be determined is whether such a writ can be issued when indubitably the appointment in question has not been made under any statutory rules or provisions governing or the Constitution of India and the same has to be made solely on the basis of the administrative instructions governing such appointment.
3. According to the Stroud''s Judicial Dictionary, 4th Edition, "Quo Warranto is a writ that lies against a person who usurps any franchise, liberty or office."
4. Corpus Juris Secundem defines quo warranto as follows: -
"Quo Warranto is a proceeding to determine the right to the exercise of franchise or office and to oust the holder if his claim is not well-founded or if he has forfeited his right."
5. In Halsbury''s Laws of England Fourth Edition Reissue Volume-I, para 265, this writ has been defined as follows: -
"An information in the nature of quo warranto took the place of obsolete writ of quo warranto which is against a person who claimed or usurped an office, franchise, or liberty to enquire by what authority he supported his claim in order that the right to the office or franchise might be determined."
6. In the words of Spelling, Injunction and other Remedies, Vol.2, page 1516, "Quo warranto" is the remedy or proceeding where the state inquires into the legality of the claim which a party asserts to an office or franchise, and to oust him from its enjoyment if the claim be not well founded, or to have the same declared forfeited and recover it, if, having once been rightfully possessed and enjoyed, it has become forfeited for misuser or nonuser."
7. In Words and Phrases, Permanent Edition, Vol. 35A (page 647) "The writ of "quo warranto" is not a substitute for mandamus or injunction nor for an appeal or writ of error, and is not to be used to prevent an improper exercise of power lawfully possessed, and its purpose is solely to prevent an officer or corporation or persons purporting to act as such from usurping a power which they do not have.
8. A Constitution Bench of the Hon''ble Supreme Court in the matter of The University of Mysore and another v. C.D. Govinda Rao and another, (1965) AIR SC 491 : (1964) 4 SCR 575 while dealing with the nature of writ of quo warranto has held in no uncertain terms that before a citizen can claim a writ of quo warranto, he must satisfy the Court that the office in question is a public office and is held by usurper without legal authority. The object of the writ qua-public office has been explained by Their Lordships as under: -
"7. .....Broadly stated, the quo warranto proceeding affords a judicial enquiry in which any person holding an independent substantive public office, or franchise, or liberty, is called upon to show by what right he holds the said office, franchise or liberty; if the enquiry leads to the finding that the holder of the office has no valid title to it, the issue of the writ of quo warranto ousts him from that office. In other words, 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 again
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