IN THE HIGH COURT OF KARNATAKA AT BENGALURU ON THE 20TH DAY OF NOVEMBER 2019 BEFORE THE HON'BLE MR. JUSTICE RAVI MALIMATH AND THE HON'BLE MR. JUSTICE ASHOK S. KINAGI WRIT APPEAL Nos.5124-5125 OF 2012 (S-PRO) BETWEEN:
1. DR LOKESHWARI H WIFE OF DR. B. NAGAPPA AGED ABOUT 50 YEARS SENIOR SCIENTIFIC OFFICER CENTRAL ENVIRONMENTAL LABORATORY KARNATAKA STATE POLLUTION CONTROL BOARD "NISARGA BHAVANA", 7TH "D" MAIN THIMMAIAH ROAD, SHIVANAGAR BENGALURU-560 079.
2. SRI JAYAPRAKASH SUBRAO NAYAK SON OF SRI SUBRAO NAYAKA AGED ABOUT 52 YEARS SENIOR SCIENTIFIC OFFICER KARNATAKA STATE POLLUTION CONTROL BOARD REGIONAL OFFICE, PLOT NO. 10B, BAIKAMPADI INDUSTRIAL AREA MANGALURU-575 011. ..APPELLANTS (BY SRI. VIKAS ROJIPURA, ADVOCATE FOR RAVIVARMA KUMAR ASSOCIATES) AND:
1. THE STATE OF KARNATAKA REPRESENTED BY ITS SECRETARY DEPARTMENT OF FOREST ECOLOGY AND ENVIRONMENT M S BUILDING DR AMBEDKAR ROAD BENGALURU-560 001.
2. KARNATAKA STATE POLLUTION CONTROL BOARD BY ITS MEMBER SECRETARY "PARISARA BHAVANA" NO.49, CHURCH STREET BENGALURU-560 001.
3. DR B R BALAGANGADHARAN SON OF LATE B P RAJASHEKARAIAH AGED ABOUT 51 YEARS CHIEF SCIENTIFIC OFFICER CENTRAL ENVIRONMENTAL LABORATORY KARNATAKA STATE POLLUTION CONTROL BOARD "NISARGA BHAVANA", 7TH "D" MAIN THIMMAIAH ROAD, SHIVANAGAR BENGALURU-560 079.
…..RESPONDENTS (BY SRI. KIRAN KUMAR, HCGP FOR R-1 SRI. C.K. VENKATESH, ADVOCATE FOR R-2 SRI. M S BHAGWAT, ADVOCATE FOR CAVEATOR RESPONDENT 3) THESE WRIT APPEALS ARE FILED UNDER SECTION 4 OF THE KARNATAKA HIGH COURT ACT PRAYING TO SET ASIDE THE ORDER PASSED IN THE WRIT PETITION 4951-52 OF 2012 DATED 20.07.2012.
THESE WRIT APPEALS HAVING BEEN HEARD AND RESERVED FOR JUDGMENT ON 30.10.2019, COMING ON FOR PRONOUNCEMENT THIS DAY, ASHOK S. KINAGI J, DELIVERED THE FOLLOWING:
JUDGMENT Aggrieved by the order dated 20.7.2012 passed by the learned Single Judge in W.P.Nos.4951 to 4952 of 2012 dismissing the writ petitions, the petitioners have come up in appeal.
2. Parties are referred to as they are arrayed in the writ petitions.
3. Petitioners were appointed as Assistant Scientific Officers by respondent No.2-Karnataka State Pollution Control Board (hereinafter referred to as a Board) on different dates. In the year 1991, respondent No.3 was sent to respondent No.2- Board on deputation as Junior Scientific Officer. Respondent No.2-Board framed the Karnataka State Pollution Control Board Cadre, Recruitment and Conditions of Service Regulations on 2.9.1992. On 20.5.1995 both the petitioners have been promoted as Deputy Scientific Officers by respondent No.2-Board and thereafter in the year 2002, promoted as Scientific Officers with effect from 20.5.1995. Government accorded sanction for creation of new posts in the scientific wing of respondent No.2-Board. The petitioners were promoted as Senior Scientific Officers vide official memorandum dated 30.7.2010.
4. Respondent No.3 was appointed as Assistant Director in Fisheries Department on 5.9.1986. On 20.11.1991, respondent No.3 was sent to respondent No.2-Board on deputation as a Junior Scientific Officer. Board has also resolved to inform the Government regarding the absorption of respondent No.3 in the Board as Deputy Scientific Officer.
5. Respondent No.3 did not possess required qualification to work in the scientific wing of the Board. He was taken on deputation to the Board and with his influence a separate section called ‘Acqua Eco-Toxicology’ section was created to accommodate respondent No.3. During the year 2004, the then Chairman of respondent No.2 has issued an order dated 16.1.2004 promoting respondent No.3 as Scientific Officer with effect from 20.5.1995 and Chief Scientific Officer with effect from 14.6.2002. Therefore, for the first time the Chief Scientific Officer post was created as per the Cadre and Recruitment notification vide Annexure-B. The Chief Scientific officer post was to be filled up from the post of Senior Scientific Officer having five years experience. However, respondent No.3 was promoted in the year 2004 to the post of Chief Scientific Officer even without there being existence of a Cadre to the post of Chief Scientific Officer. Respondent No.3 has no right to continue in the said post on the ground that he lacks requisite qualification. Petitioners being Senior Scientific Officers in Scientific Wing are entitled for promotion.
6. Post of Chief Scientific Officer has to be filled up by deputation or otherwise by any other means. Seniority list was prepared on 17.4.2002 wherein respondent No.3 was shown senior amongst the scientific Officers and petitioners were shown at Sl.Nos.2 and 3 i.e. below respondent No.3.
7. Learned counsel for the Board submitted that Annexure-B though it states that the post of Chief Scientific Officer is created in May 2010 but in fact, the post has been in existence. The mistake was noticed as per Annexure R3 to the statement of objections filed by the Board. The Board has informed the State interalia stating that the said post is in existence and not created. Respondent No.3 was promoted as Chief Scientific Officer in the year 2004 and writ petition is filed in the year 2012 after a lapse of nearly eight years. The petitioner filed W.P.Nos.4951-52 of 2012 seeking for issue of quo-warranto against respondent No.3 from the post of Chief Scientific Officer in the Board as he did not possess the requisite qualification as required under the Cadre and Recruitment Rules 1992 and the Government Order dated 5.5.2010.
8. The learned Single Judge after hearing the learned counsel for the parties and after perusing the material on record dismissed the writ petitions. Petitioners aggrieved by the said order, have filed these appeals.
9. Heard arguments.
10. In order to seek quo-warranto, we refer to certain authorities that throw light on the duty of the High Court while dealing with a writ of quo- warranto. In CENTRAL ELECTRICITY SUPPLY UTILITY OF ODISHA – VS – BHOBEI SAHOO AND ORS. reported in AIR 2014 SUPREME COURT 246, the Hon’ble Supreme Court has referred to the judgment of the Apex Court in THE UNIVERSITY OF MYSORE – VS – C.D.GOVINDA RAO reported in AIR 1965 SC 491 wherein the issue regarding writ of quo warranto has been dealt with. Further, a reference has also been made to the judgment of the Hon’ble Supreme Court in HIGH COURT OF GUJARAT AND ANOTHER v. GUJARAT KISHAN MAZDOOR reported in 2003(4) SCC 712 wherein at paragraph 22, it is observed as under :-
“22. xxxx The jurisdiction of the High Court to issue a writ of quo- warranto is a limited one. While issuing such a writ, the court merely makes a public declaration but will not consider the respective impact of the candidates or other facts which may be relevant for issuance of writ of quo-warranto”
11. We would also place reliance on the judgment of the Apex Court in STATE OF WEST BENGAL AND OTHERS – VS – RATAN BEHARI DEY AND OTHERS reported in 1993 Supreme Court Cases (L&S) 1123, wherein at paragraph 73 it is stated as follows:
“73. Judicial review is concerned with whether the incumbent possessed of qualification for appointment and the manner in which the appointment came to made or the procedure adopted whether fair, just and reasonable. Exercise of Judicial Review is to protect the citizen from the abuse of the power etc. by an appropriate Government or department etc. In our considered view granting the compliance of the above power of appointment was conferred on the executive and confided to be exercised wisely. When a candidate was found qualified and eligible and was accordingly appointed by the executive to hold an office as a Member or Vice-President or President of Tribunal, we cannot sit over the choice of the selection, but it be left to the executive to select the personnel as per law or procedure in this behalf. In Shrikumar Prasad case K.N. Srivastava, M.J.S., Legal Remembrancer, Secretary of Law and Justice, Government of Mizoram did not possess the requisite qualifications for appointment as a Judge of the High Court prescribed under Article 217 of the Constitution, namely, that he was not a District Judge for 10 years in State Higher Judicial Service, which is a mandatory requirement for a valid appointment. Therefore, this Court declared that he was not qualified to be appointed as a Judge of the High Court and quashed his appointment accordingly. The facts therein are clearly glaring and so the ratio is distinguishable”.
12. From the aforesaid exposition of law, it is clear that jurisdiction of the High court while issuing a writ of quo-warranto is a limited one and can only be issued when the person holding a public office lacks the eligibility criteria or when the appointment is contrary to the statutory rules. Keeping in view the law laid by the Hon’ble Apex court in the aforesaid decision, we have examined the case in hand and perused the records.
13. The admitted facts are that respondent No.3 was appointed as Assistant Director of Fisheries on 20.1.1991 and he was sent on deputation to the Board. His services were absorbed by the Board with effect from 10.9.1996. Service of respondent No.3 is treated as Deputy Scientific Officer. The post of scientific officer was the highest post in the scientific wing and the said post was a promotional post from the post pf Deputy Scientific Officer. Accordingly, respondent No.3 has been confirmed as Deputy Scientific Officer as per the Board resolution dated 13.9.1996. Respondent No.3 has been working as Deputy Scientific Officer and the feeder post for promotion to the post of Scientific Officer is the Deputy Scientific Officer i.e. with qualifying service of five years as Deputy Scientific Officer.
14. Admittedly, respondent No.3 has been working as Deputy Scientific Officer in the Board. The petitioners did not challenge the absorption of respondent No.3 as Deputy Scientific Officer made in the year 1997 by the Gazette notification which was accepted by the Government. Respondent No.3 holds a Ph.D qualification in Environment and has vast experience of 19 years in the Board to be eligible to the post of Chief Scientific Officer. The Board has prepared seniority list in the year 2002, wherein name of respondent No.3 was shown above petitioners 1 and 2.
15. When the petitioners did not challenge the seniority list and the promotion given to respondent No.3, at this stage the petitioners cannot contend that respondent No.3 does not have qualification for promotion as a Chief Scientific Officer. In our considered view, the learned Single Judge considering the scope of a writ Quo-warranto and on merits has rightly dismissed the writ petitions. We do not find any grounds to interfere with the order passed by the learned Single Judge.
Accordingly, we pass the following :
ORDER Writ appeals are dismissed.
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JUDGE Sd/-
JUDGE rs