(Per : HONOURABLE MR.JUSTICE J.B.PARDIWALA) This appeal under Clause 15 of the Letters Patent is at the instance of original petitioner and is directed against the judgment and order dated October 11, 2010 passed by the learned Single Judge of this Court and thereby, his Lordship rejected the petition solely on the ground of delay and laches without going into the question as to whether a writ of quo warranto can be filed for challenging an appointment to the post of Chief Accounts Officer of a University and other related issues.
Genesis of the Litigation :
The appellant-original petitioner is a Professor and is serving with Gujarat University. He also happens to be a Senate Member of the Gujarat University. Record reveals that in the year 2004, he was suspended from service by the then Vice Chancellor of the respondent-University in exercise of powers under Section 11(4) of The Gujarat University Act, 1949 (hereinafter referred to as 'the Act'). A departmental inquiry has also been initiated and is still pending. However, it appears that the Tribunal quashed the order of suspension against which Special Civil Application No.17244 of 2011 is pending before this Court. Record also reveals that the appellant herein has filed a private criminal complaint against the respondent No.4 herein and other office bearers of the respondent-University, including the Vice Chancellor. The appellant herein preferred a writ petition being Special Civil Application No.13411 of 2010 with the following prayers :
"22(A) This Honourable Court be pleased to admit and allow this petition;
(B) The appointment of present respondent No.4- Shri Minesh Shah at the post of Chief Account Officer be held illegal and without authority of law and be ordered to vacate the post by issuing appropriate writ, order or direction including the writ in the nature of quo-warranto in favour of the present petitioner.
(C) During the pendency, admission and/or final disposal of this petition the Gujarat University authorities be directed not to allow the present respondent No.4 to function at the post of Chief Account Officer, Incharge Registrar, Gujarat University, Incharge Deputy Registrar of Academic Section of the University and Incharge Director of the School of Law.
(D) The respondent No.4 be directed to deposit the salary which is unauthorisedly paid to the respondent No.4 from the date of appointment by the Gujarat University.
(E) All the acts done by the respondent No.4 be held illegal for the period for which the respondent No.4 has held the post of Incharge Registrar, Gujarat University, Incharge Deputy Registrar of Academic Section of the University and Incharge Director of the School of Law and Chief Account Officer.
(F) The respondent No.1 may be directed to produce the report along with explanatory note taking action on above all the representations of the present petitioner.
(G) This Honourable Court be pleased to grant any other and further relief/s as may be deemed fit in the facts and circumstances of the case."
It appears from record that the Gujarat University invited applications for appointment to the post of Chief Accounts Officer by advertisement dated June 24, 2003 in the pay-scale of Rs.10,000-15,200. The advertisement which was issued reads as under :
"Applications are invited in the prescribed form so as to reach the Registrar, Gujarat University, Navrangpura, Ahmedabad-380 009 on or before 5-7-2003 for the following posts in the University.
(1) Chief Accounts Officer (No. of Post-1, Open category) Pay Scale : (10000-325-15200) Qualification : M.Com. with 55% of the marks or its equivalent grade of B (Percentage equivalent from 55% to 64%) with Accountancy and ten years experience with Chartered Accountant preferred.
Note : The minimum requirement of 55% can be relaxed for the candidate, who is already in the University system.
Director of Youth Welfare (No. of Post-1, Open Category) Pay Scale : (6500-200-10500) Qualification : Master's Degree with seven years administrative experience. Out of which at least five years experience should be in Youth Welfare activities.
The above post carry Dearness Allowance and other Allowances as per the rules of the University. The benefits of General Provident Fund, Pension and Gratuity will be admissible as per the rules of the University in force from time to time.
The applicant form can be had on payment of Rs.20/- in cash from Room No.19, Gujarat University or by Demand Draft payable to the Registrar, Gujarat University, Ahmedabad-380 009. Money Order will not be accepted.
Date : 24.06.2003 M.P. Jadia Registrar"
Thus, what can be gathered from the advertisement is that for the post of Chief Accounts Officer the qualification prescribed in the advertisement is M.Com. with 55% of marks or its equivalent grade of "B" with Accountancy and 10 years' experience. The advertisement also clarifies that the Chartered Accountant would be preferred. We also find that there is a note in the advertisement that the minimum requirement of 55% could be relaxed for the candidate who is already in the University system. In response to the said advertisement, the respondent No.4 preferred an application for the same. The interviews were held on 7th, 8th, 9th August 2003 for the purpose of selection. The office sought orders of the Vice Chancellor as regards the number of candidates to be called for interview pursuant to the advertisement published on June 26, 2003 and submitted that only three candidates were eligible possessing degree of M.Com. Record reveals that the Vice Chancellor thereby passed an order that all those who were called for interview on 28th and 29th July 2003 be once again called for interview and the candidates who appeared for the interview pursuant to the advertisement dated June 26, 2003 also be called for interview. It appears that a decision was taken that the interview of all the candidates be taken irrespective of the fact whether they possess M.Com. Degree for the post of Chief Accounts Officer or not. The decision was taken that fresh advertisement need not be issued as it would further delay in filling in the post of Chief Accounts Officer, which was vacant since long. The Selection Committee consisting of eight persons unanimously selected the respondent No.4 as Chief Accounts Officer, more particularly, keeping in mind, his past experience as a Chief Accounts Officer for the period from September 01, 1984 to August 19, 1995 with the Gujarat University itself and as the University Auditor at M.S. University, Vadodara. With effect from August 11, 2003 the respondent No.4 was offered appointment. The appointment of respondent No.4 as the Chief Accounts Officer was approved by the Executive Council of the Gujarat University at its meeting held on August 30, 2003. After successfully completing the period of probation, the respondent No.4 was confirmed with effect from September 09, 2004 in the scale of Rs.10,000- 15,200/-.
At this stage, it would be expedient to record in brief the background of respondent No.4 so far as his career is concerned, more particularly, in light of the background that his appointment has been challenged.
The respondent No.4 is a qualified Chartered Accountant. It appears from the record available that he obtained a degree of being a qualified Chartered Accountant in May, 1980. On September 01, 1984 he was appointed as the Chief Accounts Officer at the Gujarat University. He continued in service upto 1995 and on August 19, 1995 resigned from the post of Chief Accounts Officer. On March 05, 1999, M.S. University at Vadodara appointed him as the University Auditor. On December 22, 2000, M.S. University, Vadodara, sent him on deputation at the Gujarat University. The Gujarat University issued two advertisements to fill in the post of the Chief Accounts Officer. First on April 21, 2001 and second on June 25, 2003. On August 11, 2003 pursuant to the second advertisement which was published, the respondent No.4 was unanimously selected by the Selection Committee, which was confirmed by the Executive Council of the Gujarat University on August 11, 2003. On September 09, 2004 he was confirmed as the Chief Accounts Officer. Record also reveals that the post of Registrar fell vacant and, therefore, the respondent No.4 was asked to function as In-charge Registrar for the period between February 17, 2003 to August 31, 2005. It appears that he is discharging his duty also as In-charge Registrar of the Gujarat University with effect from April 09, 2007 till date.
What is discernible from the facts which are recorded above is that the respondent No.4 was appointed as the Chief Accounts Officer way back in the year 2003. The Selection Committee found him meritorious for the post in question and accordingly, selected him for the post of Chief Accounts Officer. The decision of the Selection Committee was, ultimately, upheld by the Executive Council of the Gujarat University.
The appointment of the respondent No.4 as the Chief Accounts Officer way back in the year 2003 came to be challenged by the appellant herein in the year 2010 i.e. almost after a period of seven years from the date of appointment. However, the case of the appellant is to the effect that the appointment of the respondent No.4 to the post of Chief Accounts Officer is contrary to statutory rules and regulations as on the date of appointment, he was not holding the valid and requisite qualification as prescribed in the advertisement which was issued. According to the appellant, the respondent No.4 does not possess Master's Degree in Commerce i.e. Degree in M.Com. with 55% of marks. However, the appellant has conceded to the fact that the respondent No.4 is possessing degree of B.Com. and is a Chartered Accountant. In this background, he prayed for a writ of quo warranto before the learned Single Judge.
The learned Single Judge thought fit to reject the writ petition solely on the ground of delay and laches without going into the question as to whether the appellant-original petitioner has been able to make out a case for issuance of writ of quo warranto.
The learned Senior Counsel Mr.S.N. Shelat appearing with Mrs.V.D. Nanavati for the respondent- Gujarat University and learned advocate Mr.G.M. Joshi appearing for the respondent No.4 at the very outset laboriously tried to persuade us that the judgment and order passed by the learned Single Judge rejecting the writ petition of the appellant herein on the ground of delay and laches deserves to be confirmed. The learned counsel for the respective parties submitted that there is no explanation worth the name as to why the petition came to be preferred after a period of almost seven years from the date of appointment. In this background, it is submitted that this Court may not go into the larger issues like inquiring into the fact as to whether the appointment of respondent No.4 is legal and valid or not and whether any case has been made out for issuance of writ of quo warranto.
Thus, the first point for our consideration in this appeal is as to whether we should confirm the order of learned Single Judge rejecting the petition solely on the ground of delay in preferring a petition under Article 226 of the Constitution of India for a writ of quo warranto. We may state that the learned Senior Counsel Mr.Shelat appearing for the Gujarat University tried to fortify his contention by relying upon a Supreme Court decision in the case of Dr.M.S. Mudhol and another v. S.D. Halegkar and others, reported in (1993) 3 SCC 591. Mr.Shelat heavily relied upon paragraph 7 of the said judgment, which reads as under :
"7. Whatever may be the reasons which were responsible for the non-discovery of the want of qualifications of the 1st respondent for a long time, the fact remains that the court was moved in the matter after a long lapse of about 9 years. The post of the Principal in a private school though aided, is not of such sensitive public importance that the court should find itself impelled to interfere with the appointment by a writ of quo warranto even assuming that such a writ is maintainable. This is particularly so when the incumbent has been discharging his functions continuously for over a long period of 9 years when the court was moved and today about 13 years have elapsed. The infraction of the statutory rule regarding the qualifications of the incumbent pointed out in the present case is also not that grave taking into consideration all other relevant facts. In the circumstances, we deem it unnecessary to go into the question as to whether a writ of quo warranto would lie in the present case or not, and further whether mere laches would disentitle the petitioners to such a writ."
It appears that in the case of Dr.M.S. Mudhol (supra), the appointment to the post of Principal in a private school though aided was the subject matter of challenge. The Apex Court in the peculiar facts of the case noted that the post of the Principal in a private school, though aided is not of such sensitive public importance warranting any interference with the appointment by a writ of quo warranto. The Apex Court also noticed that the concerned Principal was discharging his functions continuously for over a long period of nine years and by the time the Apex Court took up the matter for hearing it was almost 13 years. Taking into consideration the fact that issuance of writ of quo warranto is discretionary, the Supreme Court did not deem fit to go into the question as to whether a writ of quo warranto would lie in such a case and whether mere laches would disentitle the appellant to such a writ. What we find from paragraph 7 of the said judgment is that as a matter of fact, the Supreme Court had not gone into two main issues. First with regard to the maintainability of a petition for a writ of quo warranto and also whether mere delay and laches would disentitle the appellant to such a writ.
We are of the view that solely relying upon the judgment of the Supreme Court in the case of Dr.M.S. Mudhol (supra), the judgment of the learned Single Judge cannot be confirmed and we are not inclined to dismiss present appeal solely on this ground of delay.
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.
Issuance of writ of quo warranto is a discretionary 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. We are, 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. We may profitably quote the decision of the Supreme Court in the case of N. Kannadasan v. Ajoy Khose and others, reported in (2009) 7 SCC 1. In paragraph 134 a Two Judge Bench of the Supreme Court held as under :
"134. Indisputably a writ of Quo Warranto can be issued inter alia when the appointment is contrary to the statutory rules as has been held by this Court in High Court of Gujarat v. Gujarat Kishan Mazdoor Panchayat, (supra) and R.K. Jain v. Union of India and , [ (1993) 4 SCC 119 ]. See also Mor Modern Coop. Transport Society Ltd. v. Financial Commr. & Secy. [(2002) 6 SCC 269]. In Dr. Duryodhan Sahu and Others v. Jitendra Kumar Mishra and Others [(1998) 7 SCC 273], this Court has stated that it is not for the court to embark upon an investigation of its own to ascertain the qualifications of the person concerned. [See also Arun Singh alias Arun Kr. Singh v. State of Bihar and Others (2006) 9 SCC 375] We may furthermore notice that while examining if a person holds a public office under valid authority or not, the court is not concerned with technical grounds of delay or motive behind the challenge, since it is necessary to prevent continuance of usurpation of office or perpetuation of an illegality. [See Dr. Kashinath G. Jalmi and Another v. The Speaker and Others (1993) 2 SCC 703]."
In the case of N.
Kannadasana (supra), the Bench has referred to the judgment of Dr.Kashinath G. Jalmi v. The Speaker and others, reported in (1993) 2 SCC 703. We shall also look into this judgment in the case of Kashinath Jamli. A Three Judge Bench of the Supreme Court in Kashinath Jalmi (supra) held in paragraphs 33, 34 and 35 as under :
"33. In our opinion, the position remains the same. Emphasis in these decisions is on public interest and good administration, and the jurisdiction of the Court to extend time in suitable cases for making such an application. In Caswell, the House of Lords took into account the larger public interest for the view that the interest of good administration required non-interference with the decision which was challenged after a lapse of a considerable time, since any interference at that stage, when third party interests had also arisen, would be detrimental to good administration.
34. In our opinion the exercise of discretion by the court even where the application is delayed, is to be governed by the objective of promoting public interest and good administration; and on that basis it cannot be said that discretion would not be exercised in favour of interference where it is necessary to prevent continuance of usurpation of office or perpetuation of an illegality.
35. We may also advert to a related aspect. Learned counsel for the respondents were unable to dispute, that any other member of the public, to whom the oblique motives and conduct alleged against the appellants in the present case could not be attributed, could file such a writ petition even now for the same relief, since the alleged usurpation of the office is continuing, and this disability on the ground of oblique motives and conduct would not attach to him. This being so, the relief claimed by the appellants in their writ petitions filed in the High Court being in the nature of a class action, without seeking any relief personal to them, should not have been dismissed merely on the ground of laches. The motive or conduct of the appellants, as alleged by the respondents, in such a situation can be relevant only for denying them the costs even if their claim succeeds, but it cannot be a justification to refuse to examine the merits of the question raised therein, since that is a matter of public concern and relates to the good governance of the State itself."
Thus, the cause of action for a writ of quo warranto is "de dei in dium". In other words, the usurper's continuance in office affords a fresh cause of action every day and each hour till he is ousted. There is, therefore, no question of delay so far as this writ is concerned. The petition for issuance of writ of quo warranto cannot be dismissed only on the ground of delay.
We, therefore, in light of the settled position of law reject the preliminary contention of the learned Senior Counsel Mr.S.N. Shelat appearing of the Gujarat University and the learned Counsel Mr.G.M. Joshi appearing for the respondent No.4 that the appeal deserves to be dismissed solely on the ground of delay and laches.
We may only clarify one important aspect in this regard. A writ of quo warranto is not a 'writ of course'. It is largely at the discretion of the Court to grant or refuse the relief considering the facts and circumstances of the case. Delay or laches can be one of the grounds along with other grounds, if any, for refusing the prayer for issuance of writ of quo warranto.
We shall now proceed to examine the contentions of the appellant appearing as party-in-person.
CONTENTIONS OF THE APPELLANT :
The appellant party-in-person vehemently submitted that indisputably the respondent No.4 does not possess a valid Master's Degree in the stream of Commerce. He submitted that the public advertisement which was issued to fill in post of Chief Accounts Officer provided that the candidate must possess a degree of M.Com. with 55% of marks or its equivalent grade of "B" (percentage equivalent from 55% to 64%) with Accoutancy and 10 years' experience. He submitted that in the advertisement it was only clarified that a Chartered Accountant would be preferred, but that does not necessarily mean that a Chartered Accountant not possessing Degree of M.Com. with 55% will also be considered for the post in question. He submitted that the Selection Committee acted contrary to the advertisement prescribing requisite qualification and, therefore, it could be said that the appointment is contrary to the statutory rules and regulations. He submitted that even the Executive Council of the Gujarat University overlooked this aspect and blindfoldedly confirmed the decision of the Selection Committee to appoint the respondent No.4 on the post of the Chief Accounts Officer. He further submitted that the term "Chartered Accountant" means a person who is a member of the Institute of Chartered Accountants of India. The same is defined in Section 2(1)(b) of the Chartered Accountants Act, 1949 and it relates to the person who has obtained certificate of practice under Section 6(1) of the said Act. The same refers to the Companies Act, 1956 [Section 10 G.D. explanation (a)]. The same degree is not a Post Graduate Degree of Commerce and not equivalent to M.Com. He submitted that the same is also resolved by the Gujarat University on 17.04.1999. He submitted that as the State Government is not taking into consideration the said curriculum of Chartered Accountant for the appointment of lecturer, the same curriculum is not considered equivalent to M.Com. by the Gujarat University. The appellant also submitted that as per the rules prescribed by the Gujarat Education Department vide Circular No.MIS/1197/ 2283/KH dated January 22, 2007, the post of the Chief Accounts Officer is at par with the post of Finance Officer. He further submitted that as per the University Grants Commission notification on revision of pay-scales, minimum qualification for appointment of teachers in University and colleges and other measures for Maintenance of Standards, 1998 is prescribed. As per the minimum qualification for appointment of teachers in Universities and colleges and measures for maintenance of standards, the University Grants Commission has issued notification dated December 24, 1998 and in the said notification at paragraph 3, it has been mentioned as under :
"Qualifications and other service conditions :-
3.1 No person shall be appointed to a teaching post in the university or in any institution including constituent or affiliated college recognised under Clause (f) of Section-2 of the University Grants Commission Act, 1956, or in an institution Deemed to be a university under Section-3 of the said Act, in a subject if he/she does not fulfill the minimum qualifications and other conditions of service as indicated in the notification.
3.2 Provided that any relaxation in the prescribed qualifications can only be made by a University in regard to the posts under it, or any of the institutions including constituent or affiliated college recognised under Clause (f) of Section-2 of the University Grants Commission Act, 1956, or by an institution Deemed to be university under Section-3 of the said Act with the prior approval of the University Grants Commission."
He further contended that the University Grants Commission regulations/ guidelines are mandatory in nature as held by the Supreme Court. The regulations and recommendations/ guidelines being statutory in character, it is obligatory for any deemed University or University to follow them in its letter and spirit. The breach of the guidelines may result in rendering an action illegal and, therefore, as per the qualifications prescribed for the appointment of Chief Accounts Officer, the respondent No.4 is not entitled to hold the post of Chief Accounts Officer.
The appellant vehemently contended that the respondent No.4 is not only appointed as the Chief Accounts Officer in breach of statutory rules, but has also been appointed as In-charge Registrar of the University and presently functioning as In-charge Registrar of the University past almost more than 5 years. He brought to the notice of the Court that the post of Registrar of Gujarat University is presently vacant. The post of Deputy Registrar of Academic Section of the University is also vacant and the post of Director of School of Law, Gujarat University is also vacant and on all these three posts, the respondent No.4 is appointed as In-charge authority. The appellant submitted that the post of Chief Accounts Officer can be termed as a Public Office and if a person is holding a public office contrary to the statutory rules and regulations, then in that event the Court would be justified in issuing writ of quo warranto. He lastly submitted that this is a fit case in which the Court may declare that the respondent No.4 is holding the post of the Chief Accounts Officer without any authority of law and the appointment be quashed and set aside by issuance of writ of quo warranto.
The appellant has relied upon the following decisions in support of his contentions :
State of U.P.
v. Singhara Singh and others, AIR 1964 SC 358.
Hukam Chand Shyam Lal v. Union of India and others, AIR 1976 SC 789.
Prabha Shankar Dubey v. State of M.P., (2004) 2 SCC 56.
Rampal Kundu v. Kamal Sharma, (2004) 2 SCC 759.
Union of India and another v. Shardindu, (2007) 6 SCC 276.
Bhavnagar University v. Palitana Sugar Mill (P) Ltd. and others, (2003) 2 SCC
111. Bharatbhai R.
Bhavsar v. Director of Municipalities and others, 2008(2) GLH 752.
South Gujarat University v. Dilip C. Shah, 2004(2) GLH 482.
CONTENTIONS OF RESPONDENT NO.2 - GUJARAT UNIVERSITY:
The learned Senior Counsel Mr.S.N. Shelat appearing with Mrs.V.D. Nanavati for the respondent No.2-University vehemently submitted that there is no merit in this appeal and the same deserves to be dismissed with costs. The learned counsel submitted that before a writ of quo warranto can be issued, the following conditions must be satisfied :
The office must be of public nature.
The office must have been created by larger statute or constitution.
The office must be of a substantive character and The holder must have been in actual occupation of the office.
The main plank of Mr.Shelat's contention is that the office must be of a public nature and the office of Chief Accounts Officer cannot be said to be a public office or a office of a public nature. Therefore, a writ of quo warranto cannot lie in respect of the offices which are not public offices. He submitted that one of the most essential ingredients for exercise of powers for issuance of writ of quo warranto is lacking in present case and the appeal deserves to be dismissed solely on this count. Mr.Shelat submitted that the appointment of the respondent No.4 to the post of Chief Accounts Officer cannot be termed as the one contrary to law or in violation of any statutory rules and regulations. He submitted that the qualifications which were prescribed in the public advertisement are not qualifications which have been prescribed by way of any statutory rules. He submitted that the qualifications were prescribed by the University keeping in mind the nature of the post and the duties, which the incumbent would have to discharge. Since the post of Chief Accounts Officer was to be filled in, the Executive Council thought fit to provide that the person should possess an M.Com. Degree and a Chartered Accountant would definitely be preferred. Mr.Shelat explained to us the entire decision making process. He submitted that there were only three persons found to be worthy of consideration for the post in question. The Selection Committee consisted of the following members :
Prof. A.U.
Patel, Vice-Chancellor Prof.
Chaitanya Khambholja, Pro-Vice Chancellor Shri Narhari H. Amin Amit Thackar Shri Jayeshbhai Thakkar Shri Sudhirbhai Nanavati Shri Ajit C.
Shah, Expert Bihari B.
Shah, Expert Taking into consideration the fact that the respondent No.4 in the past had been the Chief Accounts Officer of the University for the period between September 01, 1984 and August 19, 1995, the Selection Committee thought fit to appoint him on the post in question. The Selection Committee also took into consideration the wealth of experience possessed by the respondent No.4 in the field of Accountancy. The Selection Committee also took into consideration the fact that the respondent No.4 was also appointed by the M.S. University at Vadodara as its University Auditor. It is M.S. University, who sent the respondent No.4 on deputation to Gujarat University. Mr.Shelat submitted that the Selection Committee also took notice of the fact that the respondent No.4 is a qualified Chartered Accountant. It is in this background that the Committee decided that possessing of the M.Com. Degree be waived and since qualifications have not been prescribed by any statutory rules, it was within the powers of the Selection Committee to relax the same in the facts and circumstances of the case. He further submitted that the recommendation of the Selection Committee referred to above was placed before the Executive Council of the University. One of the powers and duties performed by the Executive Council is to appoint academic, administrative and other staff of the University, fix their emoluments and define their duties and conditions of service and to take disciplinary action against them. He submitted that the Executive Council in exercise of powers under Section 20(1)(xxix) accepted the recommendation of the Selection Committee and appointed the respondent No.4 to the post of Chief Accounts Officer. Mr.Shelat also invited our attention to Section 8 of the Act, which provides as to who shall be the officers of the University. Mr.Shelat submitted that the Chief Accounts Officer does not fall within the ambit of Section 8 of the Act and he is not one of the officers of the University as prescribed under Section 8 of the Act. Mr.Shelat also invited our attention to Section 15 of the Act, which provides as to who shall be the authorities of the University. Mr.Shelat submitted that the Chief Accounts Officer does not fall even within the ambit of Section 15 of the Act and he is not one of the authorities of the University. Mr.Shelat submitted that the Chief Accounts Officer is an employee of the University, concerned only with the work of accounts and he is in no manner answerable to any public. Mr.Shelat reiterated his submission that the respondent No.4 is not holding the post of a public office, which can be termed as an office of public nature.
Mr.Shelat has relied upon the affidavit-in-reply filed by Shri Parimal Trivedi, Vice Chancellor of the Gujarat University. He has relied upon paragraphs 10.1, 10.2, 10.3 and 11 of the affidavit-in-reply, which are quoted as under :
"10.1 The Executive Council of the Gujarat University is competent to make appointment on the qualifications that he possessed and was justified in not insisting on the reqsuirement of M.Com. As a Chartered Accountant it was considered that he has sufficient knowledge and his services can be availed of as Chief Accounts Officer of the University. The Gujarat University had requested the State Government to depute him for finalization of the budget when he was serving as University Auditor at M.S. University, Vadodara. All through-out the post that he held as University Auditor, Chief Accounts Officer of the Gujarat University and at present he is in scale of Rs.10,000-15,200 as Incharge Registrar of the Gujarat University.
10.2 The post is not statutory post. As submitted earlier the writ of quo-warranto cannot lie at the instance of the present petitioner. The contesting candidates who had appeared at the interview have never challenged his appointment till date when he served as Chief Accounts Officer previously with the Gujarat University for the period between 1.9.1984 till 19.8.1995. When he was appointed as University Auditor at M.S. University, Vadodara holding the same cadre equivalent posts, his appointment has not been challenged. He has been successfully working at the Gujarat University with effect from 11.8.2003 till date.
10.3 The learned Single Judge therefore right in exercising his jurisdiction under Article-226 of the Constitution of India against the petitioner and was justified in rejecting the petition on the ground of delay. This Hon'ble Court in exercise of its jurisdiction under letters patent charter may not interfere in the discretion exercised by the learned Single Judge having regard to the facts as presented hereinabove.
11. I may be permitted to state that the present petitioner is in the habit of initiating litigation for the causes best known to him. In fact, he had also initiated litigation before the Gujarat Universities Services Tribunal and the Tribunal had passed an order that his petitions were frivolous and in fact imposed the cost which was subsequently set aside by consent of the parties by this Hon'ble Court. No writ can lie at the instance of a person who is not bonafide prosecuting any petition."
The learned Senior Counsel has also relied on the following decisions of the Supreme Court and other High Courts in support of his contentions :
Km.Neelima Misra v. Dr.Harinder Kaur Paintal and others, AIR 1990 SC 1402 (Re :paragraphs 31 and 32).
State of U.P.
v. Rafiquddin and others, AIR 1988 SC 162.
Centre for PIL and another v. Union of India and another, AIR 2011 SC 1267 (Re :paragraph 34) Alex Beets v.
M.A. Urmese and another, AIR 1970 KERALA 312.
Jagram v.
Gwalior Town and Country Development Authority Gwalior and others, AIR 1987 MADHYA PRADESH 11.
Hari Bansh Lal v. Sahodar Prasad Mahtro and others, AIR 2010 SC 3515.
The University of Mysore and another v. C.D. Govinda Rao and another, AIR 1965 SC 491 Statesman (Private) Ltd. v. H.R. Deb and others, AIR 1968 SC 1495 (Re :paragraph 9).
B.Srinivasa Reddy v. Karnataka Urban Water Supply and Drainage Board Employees' Association and others, AIR 2006 SC 3106 (Re :paragraph 68).
State of U.P.
and others v. Rakesh Kumar Keshari and another, AIR 2011 SC 1705.
CONTENTIONS OF RESPONDENT NO.4 :
The learned counsel Mr.G.M. Joshi appearing for the respondent No.4 submitted that he would adopt all the contentions as canvassed by the learned Senior Counsel Mr.S.N. Shelat for the respondent-University. He, however, submitted in addition to what learned Senior Counsel Mr.Shelat submitted, that the petition of the writ-petitioner i.e. appellant herein, is absolutely lacking in bona fides and is nothing but an outcome of personal rivalry with the respondent-University on account of proceedings which have been initiated against the appellant. He, therefore, submitted that this Court may inquire into the motives and conduct of the appellant.
Mr.Joshi has relied upon the affidavit-in-reply filed by the respondent No.4 to substantiate his allegations of personal ill-will and oblique motives in challenging the appointment of the respondent No.4. Mr.Joshi has relied upon paragraphs 3, 4, 5, 6, 7, 8 and 9 of the affidavit-in-reply dated January 27, 2012, which is quoted as under :
"3. I submit that the appellant was suspended on 5.11.2004 by the then Vice Chancellor under Section 11(4) of the Act, inter-alia on several grounds indicated in the inquiry report. The appellant had instituted Application No.43 of 2004 challenging the order of suspension and the said order of suspension was set aside on the ground that the Vice Chancellor could not have passed an order under Section 11(4) of the Act and that the Members of the Committee constituted were not qualified in view of Section 8(A) of the Act.
4. I submit that the Academic Council of the Gujarat University thereafter had withdrawn the recognization as a teacher at a meeting held on 16.11.2008. The appellant thereafter preferred an Application No.3 of 2009 and the Tribunal held that the Academic Council was not competent to withdraw the recognization as teacher.
5. The University is holding departmental inquiry under the former retired District Judge against alleged misconduct, inter-alia, plagiarism, laxity in discharging the duty and misconduct with the students and colleagues and that the inquiry is in progress. During the inquiry he has been suspended from the service and with effect from 28.5.2011 the appellant again approached the Tribunal and the Tribunal quashed the order of suspension against which Special Civil Application No.17244 of 2011 is pending before this Hon'ble Court. The decision of the Tribunal quashing the suspension is solely based upon the fact that there could not have been a joint meeting of the Academic Council and the Executive Council. The joint meeting was convened because the Members of the Academic Council were required to be consulted as regards the teachers of the University who had misconducted himself.
6. I submit that the appellant has produced report from the office of Higher Education Commissioner. I submit that I am employee of the Gujarat University and it appears that at the instance of appellant an inquiry is conducted and report is submitted. It has been produced before this Hon'ble Court. I submit that no notice of the inquiry has been served upon me. Apart from, the Director of Education is not competent to hold departmental inquiry. It is the Executive Council which is competent to take action against any employee. I submit that the said report cannot be, therefore, relied upon before this Hon'ble Court by the appellant. I submit that no such copy of the report is submitted to the Gujarat University.
7. The appellant has preferred complaint being Criminal Case No.84 of 2008 against me. The Court after holding an inquiry held that the appellant had filed complaint only malafide and the evidence is not produced. Annexed hereto and marked as Annexure-I (Colly.) are copy of the complaint and order dated 23.4.2009.
8. I submit that at the instance of the Vice Chancellor I had paid an amount of Rs.36,429/- by way of notice-pay to the M.S. University, Vadodara, where I was holding the post of University Auditor so as to resume duty immediately. Annexed hereto and marked as Annexure-II is a copy of the said receipt.
9. In view of above, I submit that this Hon'ble Court may not entertain this petition challenging the appointment of the Chief Accounts Officer. Recently from newspaper report it is learnt that the appellant has filed complaint against me as regard alleged corruption. In view of the above, it is clear that the appellant is pursuing the present litigation as a tool to settle personal scores with the University official. I crave leave to refer to those proceedings before this Hon'ble Court, if they are disputed by the appellant."
ANALYSIS :
Having heard the learned counsel for the respective parties, having gone through the entire materials on record and also having gone through the statutory provisions governing the appointment to the post of Chief Accounts Officer and other relevant provisions, we shall now proceed to analyse the contentions so as to decide as to whether the appellant-original petitioner is entitled to any relief or not, more particularly, the writ of quo warranto as prayed for in the petition. However, before undertaking this exercise, we would like to refer few relevant provisions of law governing the field.
Relevant provisions of the Gujarat University Act, 1949 :
Chapter III of the Act is with respect to the Officers of the University.
Section 8 reads as under :
"8. The following shall be the officers of the University, namely :-
The Chancellor, The Vice-Chancellor, The Pro-Vice-Chancellor, The Deans of Faculties, The Registrar, (v-a) The University Librarian, and Such other officers in the service of the University as may be declared by the Statutes to be officers of the University."
Chapter IV provides for authorities of the University:
Section 15 of the Act reads as under :
"15. The following shall be the authorities of the University, namely :-
The Court, The Executive Council, The Academic Council, The Faculties, The Boards of University Teaching and Research, The Boards of Studies, The Board of Extra-Mural Studies, The Board of Students Welfare, The Board for Hostel's Management, The Academic Planning Board, Such other bodies of the University as may be declared by the Statutes to be the authorities of the University."
Section 19 provides for Executive Council.
Section 20 prescribes the powers exercisable by the Executive Council and the duties to be performed. So far as the present case is concerned, Clause (xxix) is relevant.
Section 20 (1)(xxix) reads as under :
"20(1)(xxix) : to appoint academic, administrative and other staff of the University, fix their emoluments, and define their duties and conditions of service and to take disciplinary action against them;"
WRIT OF QUO WARRANTO :
We shall now proceed to consider the scope and ambit of writ of quo warranto.
Quo warranto is a judicial remedy against an intruder or usurper of an independent substantive public office or franchise or liberty. The usurper is asked 'by what authority' (quo warranto) he is in such office, franchise or liberty. A writ of quo warranto thus poses a question to the holder or occupier of a public office, and that question is : "Where is your warrant of appointment by which you are holding this office ?" If the answer is not satisfactory, the usurper can be ousted by this writ.
The writ of quo warranto is an ancient Common Law remedy of a prerogative nature. It was a writ of right used by the Crown against a person claiming any office, franchise or liberty to inquire by what authority he was in the office, franchise of liberty. In case his claim was not well founded or there was non-use, neglect, misuse or abuse of the office, he was to be ousted.
Quo warranto is a writ that lies against a person who usurps any franchise, liberty or office.
In Corpus Juris Secundum, quo warranto is defined thus;
"Quo warranto is a proceeding to determine the right to the exercise of a franchise or office and o oust the holder if his claim is not well founded, or if he has forfeited his right."
Blackstone, states : "The ancient writ of quo warranto was in the nature of a writ of right for the King against any office, franchise or liberty of the Crown to inquire by what authority he supported his claim, in order to determine the right."
Quo warranto is a remedy or procedure whereby 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 mis-user or non-user.
In B.R.
Kapur v. State of T.N. [(2001) 7 SCC 231 : AIR 2001 SC 3435], after referring to Halsbury's Laws of England , Words and Phrases and leading decisions on the point, it was observed that a writ of quo warranto is a writ which lies against the person who is not entitled to hold an office of public nature and is only a usurper of the office. Quo warranto is directed to such person who is required to show by what authority he is entitled to hold the office. The challenge can be made on various grounds, including the ground that the possessor of the office does not fulfill the required qualifications or suffers from any disqualification, which debars him to hold such office. It was further stated that on being called upon to establish valid authority to hold a public office, it such person fails to do so, a writ of quo warranto shall be directed against him. It shall be no defence by the holder of the office that the appointment was made by the competent authority, who under the law is not answerable to any court for anything done in performance of duties of his office. The question of fulfilling legal requirements and qualifications necessary to hold a public office would be considered in the proceedings independent of the fact as to who made the appointment and the manner in which the appointment was made.
Any person may challenge the validity of an appointment of a public office, whether any fundamental or other legal right of his has been infringed or not. But the court must be satisfied that the person so applying is bona fide and there is a necessity in public interest to declare judicially that there is an usurpation of public office. If the application is not bona fide and the applicant is a mere pawn or a man of straw in the hands of others, he cannot claim the remedy. Though the applicant may not be an aspirant for the office nor has any interest in appointment, he can apply as a private relator, or an ordinary citizen.
In Dr. B.
Singh vs. Union of India and Others, (2004) 3 SCC 363, Supreme Court held that only a person who comes to the Court with bonafides and public interest can have locus. Coming down heavily on busybodies, meddlesome interlopers, wayfarers or officious interveners having absolutely no public interest except for personal gain or private profit either of themselves or as a proxy of others or for any other extraneous motivation or for glare of publicity, the Supreme Court at para 14 of the report held as under :
"The court has to be satisfied about: (a) the credentials of the applicant; (b) the prima facie correctness or nature of information given by him; and (c) the information being vague and indefinite. The information should show gravity and seriousness involved. Court has to strike a balance between two conflicting interests: (i) nobody should be allowed to indulge in wild and reckless allegations besmirching the character of others; and (ii) avoidance of public mischief and to avoid mischievous petitions seeking to assail, for oblique motives, justifiable executive actions. In such case, however, the court cannot afford to be liberal. It has to be extremely careful to see that under the guise of redressing a public grievance, it does not encroach upon the sphere reserved by the Constitution to the executive and the legislature. The court has to act ruthlessly while dealing with imposters and busybodies or meddlesome interlopers impersonating as public spirited holy men. They masquerade as crusaders of justice. They pretend to act in the name of pro bono publico, though they have no interest to the public or even of their own to protect."
In our opinion, 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. In the present case, it is a case of the appellant that the office of the Chief Accounts Officer is a public office and the Chief Accounts Officer discharges the public functions. To examine this question, we need to understand the true meaning of the word "public office". "Public Office" has not been defined under the Act of 1949. "Public Office" as explained by the Major Law Lexicon 4th Edition 2010 is as under :
"Public Office" defined. 55-6 V. c.40 S.4 A position whose occupant has legal authority to exercise a government's sovereign powers for a fixed period.
Position involving exercise of governantal functions [S.6(f), T.P. Act (4 of 1882)]; an office where public business is transacted. [O.XIII, R.5(2), CPC (5 of 1908)].
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.. .. The determining factor, the test, is whether the office involves a delegation of some of the solemn functions of government, either executive, legislative or judicial, to be exercised by the holder for the public benefit. (72 CWN 64, Vol.72). [Extraordinary Legal Remedies, by Ferris as referred in V.C. Shukla v. State (Delhi Adm.), (1980) Supp SCC 249, 266 para 26] In Re Miram's (1891) IQB 594 Cave. J,. Said "to make the Office a Public Office the pay must come out of national and not out of local funds,
- the Office must be public in the strict sense of that term. It is not enough that the due discharge of the duties should be for the public benefit in a secondary and and remote sense."
According to the Black's Law Dictionary 6th Edition, the term "Public Office" is explained as under :
"Public Office. Essential characteristics of "public office" are (1) authority conferred by law, (2) fixed tenure of office, and (3) power to exercise some portion of sovereign functions of government; key element of such test is that "officer" is carrying out sovereign function. Spring v. Constantino, 168 Conn. 563, 362 A.2d 871, 875. Essential elements to establish public position as "public office" are position must be created by constitution, legislature, or through authority conferred by legislature, portion of sovereign power of government must be delegated to position, duties and powers must be defined, directly or impliedly, by legislature or through legislative authority, duties must be performed independently without control of superior power other than law, and position must have some permanency and continuity. State ex rel. Eli Lilly and Co. v. Gaertner, Mo.App., 619 S.W. 2D 761. 764.
Winfield on pages 463 to 478 of Volume LXI of the Law Quarterly Review. On page 464 the learned author poses the question, what is a "Public Office" and proceeds, "Setting aside statutory definitions of interpretations thereof, two judicial explanations are as follows :
In 1828, Best, C.J. described a Public Officer as "every one who is appointed to discharge a public duty, and receives a compensation in whatever shape, whether from the Crown or otherwise." In 1914, Lawrence, J. said : "A public officer is an officer who discharges any duty in the discharge of which the public are interested, more clearly so if he is paid out of a fund provided by the public." Best, C.J. lays too much emphasis on remuneration of some sort, for some public officers discharge their duties gratuitously; e.g. the Lord-Lieutenant of a country or a Justice of the Peace; and both definitions use the very word which they purport to explain. However, the chief characteristics of a public office seem to be that it is a post the occupation of which involves the discharge of duties towards the community or some section of it and that usually those duties are connected with Government, whether central or local."
The author repeats these views in his text book of the Law of Tort, on page 614 of the third edition;
"The chief characteristics of a 'Public Office' (apart from any statutory definition) are that it is a post the occupation of which involves the discharge of duties towards the community or some section of it, whether the occupier of the post is or is not remunerated."
20. The following passage from page 427 of Volume IV Burrows is also of interest :
To make the office a public office, the pay must come out of national and not out of local funds, and the office must be public in the strict sense of that term. It is not enough that the due discharge of the duties of the office should be for the public benefit in a secondary and remote sense". "A public office includes the holding of a commission in the territorial Army, or in any other of the armed forces of the Crown."
21. Reference may also be made to the passage on pages 146 and 147 of Volume 11 of Halsbury's Laws of England, Simonds edition.
"The duties of the office must be of a public nature. Thus, an information lay against a privy councilor, because, membership of the Privy Council constitutes the holding of an office of a public nature."
What can be deduced from 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. The Common Law Rule is that in order for the writ to lie, the office must be of a public nature. The determining factor, the test, is whether the office involves a delegation of some of the solemn functions of Government, either executive, legislative or judicial, to be exercised by the holder for the public benefit. Unless his powers are of this nature, he is not a public officer. What we have to determine in this appeal is whether the office of the Chief Accounts Officer of the Gujarat University is a public office. The appellant submits that the Gujarat University is imparting education and is a statutory body enacted under the Act and any officer under the University is a public officer. This argument appears to be far fetched. It does not seem to us that the office of the Chief Accounts Officer of the University involves a delegation of any of the solemn functions of the Government either executive or legislative or judicial to be exercised by the Chief Accounts Officer for public benefit. The Chief Accounts Officer of the University is the Head of the Accounts Department maintained by the University. He may have administrative duties to be discharged in the interest of the University, but we do not see how those duties can be said to be the duties of public nature. If there is failure or neglect on his part to perform his duties, at the most the students or their guardians and in some cases, even the staff of the University may be affected, but the public as such are not interested in due observance of the obligations of his employment. In any event, the interest of the public is so remote that his office does not become a "public office". From this point of view, we are unable to hold that the Chief Accounts Officer is a public officer vested with any portion of sovereign functions of the Government to be exercised by him for public benefit. In the premises, we are of the opinion that the writ in the nature of quo warranto does not lie at the instance of a Senate Member of the University and also a Professor in regard to the office of the Chief Accounts Officer of the University.
In paragraph 32 of our judgment, we have considered Section 8 of the Act, which prescribes as to who can be said to be the Officers of the University. Section 8 would go to show that the Chief Accounts Officer is not one of the officers as prescribed under Section 8 of the Act. Though in Clause (vi) it has been stated that "such other officers in service of the University as may be declared by the statute to be officers of the University", no declaration under Clause (vi) assimilating the position of the Chief Accounts Officer to statutory authority of the University has been brought to our notice. Though clause (xi) of Section 15 provides "such other bodies of the University as may be declared by the statute to be the authority of the University", no declaration under Clause (xi) assimilating the position of the office of the Chief Accounts Officer to a statutory authority of the University has been brought to our notice; nor is there any provision of the Act, which enumerates or discriminates the Chief Accounts Officer as the statutory functionary in the same way as functionaries like the Chancellor, Vice Chancellor, Registrar, to have been. 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.
We shall now look into and deal with the judgments which have been relied upon by the petitioner-Party-in-Person in support of his contentions :
In Singhara Singh (supra), the Supreme Court referred to and relied upon the well-known case of Nazir Ahmed (AIR 1936 PC 253), wherein the principle has been laid down that where a power is given to do a certain thing in a certain way, the thing must be done in that way or not at all and that other methods of performance are necessarily forbidden. We may quote paragraph 8 of the said judgment as under :
"8. The rule adopted in Taylor v. Taylor (1876) 1 Ch D 426 is well recognised and is founded on sound principle. Its result is that if a statute has conferred a power to do an act and has laid down the method in which that power has to be exercised, it necessarily prohibits the doing of the act in any other manner than that which has been prescribed. The principle behind the rule is that if this were not so, the statutory provision might as well not have been enacted. A magistrate, therefore, cannot in the course of investigation record a confession except in the manner laid down in S. 164. The power to record the confession had obviously been given so that the confession might be proved by the record of it made in the manner laid down. If proof of the confession by other means was permissible, the whole provision of S. 164 including the safeguards contained in it for the protection of accused persons would be rendered nugatory. The section, therefore, by conferring on magistrate the power to record statements or confessions, by necessary implication, prohibited a magistrate from giving oral evidence of the statements or confessions made to him."
In the facts of the case, the Supreme Court held that when there is a procedure laid down under the Code of Criminal Procedure, 1973 to record a confessional statement of an accused under Section 164 of the Code, then in such a case the statements have to be recorded in the manner as prescribed by law. The petitioner by relying on this principle has tried to submit that when an advertisement was issued calling for applications for the post of Chief Accounts Officer prescribing necessary qualifications then the Selection Committee as well as the Executive Council of the University could not have ignored the qualifications prescribed in the advertisement for the purpose of appointing a Chief Accounts Officer. So far as the applicability of the rule adopted in Taylor v. Taylor to the allegations of the procedural impropriety or irregularity in making the appointment of the respondent No.4 to the post of Chief Accounts Officer is concerned, we shall deal with this issue at a little later stage in our judgment.
In Hukam Chand Shyam Lal (supra), the same principle has been reiterated i.e. where a power is required to be exercised by a certain authority in a certain way, it should be exercised in that manner or not at all.
In Prabha Shankar Dubey (supra), the Supreme Court while hearing the appeal against the judgment and order of conviction confirmed by the High Court for commission of offence punishable under Section 18 of the Narcotics, Drugs and Psychotropic Substances Act, 1985, has referred to the judgment of the Apex Court in the case of Singhara Singh (supra) as well as Nazir Ahmed (supra).
In Ram Phal Kundu (supra), the very principle of Taylor v. Taylor [(1876) 1 Ch 426] has been relied upon.
In Shardindu (supra), the Supreme Court considered the doctrine of pleasure. While considering this doctrine the Supreme Court in the facts of the case held that every appointment made by the Central Government is in the name of the President, but by that it does not mean that all the appointments are pleasure appointments de hors the Constitution or statutory rules bearing on the subject. The Apex Court observed that once the regulations have been framed and detailed procedure laid down therein, then in that case if the services of an incumbent are required to be terminated, then that can only be done in the manner provided and none-else.
In Bhavnagar University (supra), the very principle of Taylor v. Taylor (supra) has been followed. In a matter arising under Gujarat Town Planning and Urban Development Act, 1976, relating to acquisition of land, the Supreme Court in the facts of the case held in paragraph 40 that the State and other authorities while acting under the statute are only creature of statute. They act within the four corners thereof.
In Bharatbhai R. Bhavsar (supra), the very principle of Taylor v. Talyor (supra) has been relied upon by the learned Single Judge of this Court, referring to the judgment of Singhara Singh (supra).
In South Gujarat University (supra), the Division Bench of this Court referred to and relied upon the principle as explained in the case of Singhara Singh (supra).
Thus, what we find from the judgments which have been relied upon by the petitioner-Party-in-Person is that they are on the principle of law that if a statute has conferred a power to do an act and has laid down a method in which such power has to be exercised, it necessarily prohibits doing of an act in another manner than that has been prescribed. There cannot be any dispute with this principle of law. However, we find that none of these decisions helps the petitioner in making good his case that the appointment of the respondent No.4 as a Chief Accounts Officer is contrary to and in violation of the statutory rules or any law in force. The entire focus of the petitioner by relying on the aforesaid judgments is on the fact that as particular qualifications were prescribed in the advertisement, then in that case the qualifications could not have been relaxed in any manner by the Selection Committee or the Executive Council and in doing so, the respondents have violated the rule adopted in Taylor v. Taylor (supra). To this limited extent we do agree with the petitioner. We do not approve the procedure, which was adopted by the Selection Committee in relaxing requisite qualifications which were prescribed in the public advertisement without making it public that the Selection Committee may relax in a give situation at the time of making selection of a meritorious candidate. The reason is that if the others would have known that the Selection Committee has the powers to relax the educational qualifications prescribed in the public advertisement or may relax the same, then in that case many other aspirants for the post may have applied. However, we refrain from going into this issue about the procedural irregularity as we have taken the view that the post of the Chief Accounts Officer is not a public office and no writ of quo warranto can be issued at the instance of the petitioner, who otherwise was not one of the aspirants for the post in question. If the writ asked for is strictly a writ of quo wararnto in respect of a public office, the petitioner need not have any personal interest. If, however, the position or the office held by the respondent No.4 cannot be described as a public office, the case will not be one for quo warranto in the strict sense but will be one only for some other type of appropriate writ, order or direction under Article 226 of the Constitution of India, before getting which the petitioner will have to establish that he has some personal interest in the matter, which the law recognises as sufficient. For the petitioner to succeed on the ground of procedural impropriety or lapse on the part of the Selection Committee in relaxing the qualifications, the petitioner has to establish that by doing so, his personal interest as one of the aspirants for the post has been vitally affected, which is not the position in the present case.
Issuance of writ of quo warranto is a discretionary remedy. The authority of a person to hold a high public office can be questioned inter alia in the event the appointment is violative of any statutory provisions. There accededly exists a distinction with regard to issuance of a writ of quo warranto and issuance of a writ of certiorari. The scope and ambit of these two writs are different and distinct, whereas the writ of quo warranto can be issued on a limited ground, the considerations for issuance of writ of certiorari are wholly different.
We shall now look into the decisions relied upon by the learned Senior Counsel Mr.Shelat in support of his contentions and on the subject in question :
In Km. Neelima Misra (supra), the Supreme Court in the facts and circumstances of the case considered the scope of interference with the opinion expressed in absence of mala fides, more particularly, in light of the fact when appointment based on recommendations of experts nominated by the Universities is concerned. In the case before the Supreme Court, the Chancellor of Lucknow University while exercising powers under Section 31(8)(a) of the U.P. State Universities Act, 1973, appointed one Km.Neelima Misra, appellant before the Supreme Court, as a Reader in Psychology Department of the University. The order was quashed by the High Court of Allahabad in a writ petition at the instance of the respondent. In the advertisement which was issued inviting applications for appointment of a Reader in Psychology , Degree of Ph.D. was one of the prescribed qualifications. It appears that all the candidates who appeared for the interview possessed Ph.D. Degree, but the appellant Km. Neelima did not possess a Ph.D. Degree. The Selection Committee noted that her thesis is near in completion and her work along with her application was scrutinized and was found to be very satisfactory. The Selection Committee took this into consideration as an alternative to Ph.D. Degree. The other candidates were found to be possessing good academic record and more than 54% marks in M.A. Examinations. Taking into consideration the basis of the research work, publications, experience and performance at the interview, the Committee graded Km.Neelima Misra on top of the list. The Selection Committee placed their recommendation for appointment of Km.Neelima to the post of a Reader in Psychology before the Executive Council. It appears that when the recommendation came before the Executive Council by a split majority disagreeing with the recommendation and appointment of Dr.(Km.) M.R. Rastogi, the Executive Council expressed the view that the appellant did not possess essential qualification prescribed for the post of a Reader and, therefore, was not suitable for appointment. Since there was disagreement with the recommendation of the selection, the matter was referred to the Chancellor for his decision, being a mandatory requirement of Section 31(8)(a) of the Act. The Chancellor did not approve of the Executive Council's opinion to appoint Dr.(Km.) M.R. Rastogi. The Chancellor rejected the opinion of the Executive Council and accepted the recommendation of the Selection Committee and directed that the appellant i.e. Km.Neelima Misra be appointed as a Reader. Thus, the decision was challenged by one Dr.Harinder Kaur Paintal i.e. respondent before the High Court and High Court quashed the appointment of Km.Neelima Misra. Km.Neelima Misra preferred Special Leave to Appeal before the Apex Court and the Supreme Court allowing the appeal of Km.Neelima Misra confirmed her original appointment as a Reader pursuant to the decision of the Chancellor. While doing so, the Supreme Court held in paragraphs 31 and 32 as under :
"31.
The minimum qualification prescribed for the post is a Doctorate in the subject of study concerned or a published work of high standard in the subject. The appellant then was found to have an alternate qualification though not a Doctorate in the subject. The Selection Committee has accepted the alternate qualification as sufficient and did 'not relax the essential qualification prescribed for the post. The Executive Council appears to have committed an error in stating that the appellant has lacked the essential qualification and the Selection Committee has relaxed the essential qualification. The Chancellor was, therefore, justified in rejecting the opinion of the Executive Council.
32. It is not unimportant to point out that in matters of appointment in the academic field the Court generally does not interfere. In the University of Mysore v. C. D. Govinda Rao, (1964) 4 SCR 575: (AIR 1965 SC 491), this Court observed that the Courts should be slow to interfere with the opinion expressed by the experts in the absence of mala fide alleged against the experts. When appointments based on recommendations of experts nominated by the Universities, the High Court has got only to see whether the appointment had contravened any statutory or binding rule or ordinance. The High Court should show due regard to the opinion expressed by the experts constituting the Selection Committee and its recommendation on which Chancellor has acted. See also the decisions in Dr. J. P. Kulshreshtha v. Chancellor; Allahabad University, Raj Bhavan, (1980) 3 SCR 902 at 912: (AIR 1980 SC p. 2141 at P. 2146) and Dalpat Abasaheb Solunke v. B. S. Mahajan, (1990) 1 SCR 305 at Pp. 309-310: (AIR 1990 SC 434 at P. 438)."
In Centre for PIL (supra), the Supreme Court answered a substantial question of law and of public importance as to the legality of the appointment of one Shri P.J. Thomas as Central Vigilance Commissioner under Section 4(1) of the Central Vigilance Commission Act, 2003. The Supreme Court considered the argument of the counsel that a writ of quo warranto applies in the case when a person has no title to such office or a legal authority to hold it and the Supreme Court answered the same in paragraph 35, which reads as under :
"35. 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 against the relevant statutory provisions. Before a citizen can claim a writ of quo warranto he must satisfy the court inter-alia that the office in question is a public office and it is held by a person without legal authority and that leads to the inquiry as to whether the appointment of the said person has been in accordance with law or not. A writ of quo warranto is issued to prevent a continued exercise of unlawful authority."
In Alex Beets (supra), the Division Bench of Kerala High Court considered a motion for writ of quo warranto to question the appointment of a Honourary Medical Officer on the ground that in making the appointment the Government had acted in violation of the rules relating to such appointments. Rejecting the motion for a writ of quo warranto, the Division Bench held as under :
"4. ..
.. .. Quo warranto is only information as to the authority of the respondent to hold a substantive public office. When the respondent has produced in Court the Government Order appointing him to the office, the Court has only to enquire if the appointment is in violation of any statutory provision on the matter. .. ..
Counsel for petitioner contends that the requirement of a personal interest to sustain a writ motion does not extend to motion for quo warranto, which is the case here. We are afraid that challenge of an order under Article 16 of the Constitution cannot be heard in a motion for quo warranto: it can be heard in a motion for certiorari or prohibition. The scope of a quo warranto is very limited, namely, whether the appointment of the respondent is by a proper authority and in accordance with law if there is an express statute governing such appointment. The argument that what cannot be urged for other writs can well be urged for a writ of quo warranto, and therefore the denial of equality under Article 16 which the petitioner could not have urged in a motion for certiorari or prohibition can be urged in the present motion for a quo warranto, is not warranted by the nature of the procedure pointed out by the Supreme Court (AIR 1965 SC 491) and has to be rejected... ..
.. .. A Government Order not conforming with Article 16 of the Constitution may be quashed by a certiorari but may be a sufficient answer to a quo warranto. Possession of a public office under a Government order is not usurpation of office, for which alone quo warranto lies, and even if the Government Order is violative of fundamental rights it will not be void, though quashable by a writ of certiorari."
In the case before the Division Bench of Madhya Pradesh High Court in Jagram (supra), the petitioner of that case challenged the appointment of 4th respondent under M.P. Nagar Tatha Gram Nivesh Adhiniyam, 1973. Section 47 of the Act, 1973 under which the appointment was given empowered the Town and Country Development Authority to appoint such other officers and servants as may be necessary and proper for efficient discharge of its duties. However, the challenge was on the ground of violation of the proviso which provides that no posts shall be created save with prior sanction of the State Government. In this background, the Division Bench held as under :
"5. .. .. ..
Law is well-settled that writ of quo warranto shall not issue against a person who does not hold a public office, created under a statute or the Constitution. Section 47 does not create the post of "Financial Advisor". It merely authorises the Authority to "appoint such other officers and servants as may be necessary and proper for efficient discharge of its duties" though the Proviso circumscribes this power envisaging that "no post shall be created save with prior sanction of the State Government" and that "the power of appointment shall be subject to restriction as State Government may, from time to time, impose". .. ..
6. However, it has to be made clear that "officers and servants" who could be appointed in terms of S.47 by any Town and Country Development Authority cannot be said to hold any "Public Office". Only when a person holds an "independent substantive public office, or franchise, or liberty" he may be called upon to show, by the writ of quo warranto, his title to the office, franchise or liberty. This is what is stated about the Writ in Halsbury. .. .."
In Hari Bansh Lal (supra), the Supreme Court considered the judgment passed by the High Court of Jharkhand allowing a Public Interest Litigation and thereby, quashing the appointment of Hari Bansh Lal as a Chairman of the Jharkhand State Electricity Board. Hari Bansh Lal being aggrieved by the judgment of the Jharkhand High Court preferred an SLP before the Supreme Court and the Supreme Court while allowing the appeal filed by the appellant and permitting Hari Bansh Lal to join duty forthwith and continue as a Chairman of the State Electricity Board in terms of his appointment held as under :
"20.
From the discussion and analysis, the following principles emerge :-
a) Except for a writ of quo warranto, PIL is not maintainable in service matters.
b) For issuance of writ of quo warranto, the High Court has to satisfy that the appointment is contrary to the statutory rules.
c) Suitability or otherwise of a candidate for appointment to a post in Government service is the function of the appointing authority and not of the Court unless the appointment is contrary to statutory provisions/rules. .. .."
In H.H. Anniah Gowda (supra), a Five Judge Constitution Bench in a landmark judgment on the subject of writ of quo warranto held 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 inquiry 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 against the relevant statutory provisions; it also protects a citizen from being deprived of public office to which he may have a right. It would thus be seen that if these proceedings are adopted subject to the conditions recognised in that behalf, they tend to protect the public from usurpers of public office; in some cases, persons not entitled to public office may be allowed to occupy them and to continue to hold them as a result of the connivance of the executive or with its active help, and in such cases, if the jurisdiction of the courts to issue writ of quo warranto is properly invoked, the usurper can be ousted and the person entitled to the post allowed to occupy it. It is thus clear that before a citizen can claim a writ of quo warranto, he must satisfy the court, inter alia, that the office in question is a public office and is held by usurper without legal authority, and that necessarily leads to the enquiry as to whether the appointment of the said alleged usurper has been made in accordance with law or not.
xxx xxx xxx
10. .. .. Where the appointment of the respondent No. 2 by the respondent No. 1 (university) as a reader was challenged only on the ground that the respondent No. 2, did not have the qualifications advertised for the post and no attempt was made to show that the appointment was illegal on the ground of statutory provisions and the High Court issued a writ of quo warranto quashing the appointment on the grounds alleged, without considering the statutory provision, in an appeal against the orders of the High Court to the Supreme Court, it would not be open to the petitioner to take a ground about the effect of the statutory rules and ordinances, for the first time. .. ..
xxx xxx xxx
12. .. ..
Where one of the qualification for the appointment to the post of a Reader in the University was that the applicant should possess a First or High Second Class Master's Degree of an Indian University or an equivalent qualification of a foreign University, the candidate should possess a First Class Master's Degree of an Indian University or High Second Class Master's degree of an Indian University or qualification of a foreign university which is equivalent to a First Class or a High Second Class Master's degree of in Indian University. Whether the foreign degree is equivalent to a High Second Class Master's degree of an Indian University is a question relating purely to an academic matter and courts would naturally hesitate to express a definite opinion, specially when the selection Board of experts considers a particular foreign university degree as so equivalent. .. ..
13. .. ..
Boards of Appointments to the post of teacher are nominated by the Universities and when recommendations made by them and the appointments following on them, are challenged before courts, normally the courts should be show to interfere with the opinions expressed by the experts. If there is no allegation about mala fides against the experts who constituted the Board, it would normally be wise and safe for the courts to leave the decisions of academic matters to experts who are more familiar with the problems they face than the courts generally can be. The Board is not in the position of an executive authority, issuing an executive fiat, nor does it act like a quasijudicial tribunal deciding disputes referred to it for its decision. In dealing with complaints made by citizens in regard to appointments made by academic bodies, like the Universities, such an approach would not be reasonable or appropriate. Tests which would legitimately be applied in the case of writs of certiorari cannot be applied. The question of manifest error is a consideration which is more germane and relevant in a procedure for a writ of certiorari. What the High Court should consider is whether the appointment made by the Chancellor on the recommendation of the Board had contravened any statutory or binding rule or ordinance, and in doing so, the High Court should show due regard to the opinion expressed by the Board and its recommendations on which the Chancellor has acted. .. .."
In Statesman (Private) Ltd. (supra), a Five Judge Constitution Bench of the Supreme Court explained as to what is a Public Office. In paragraph 9, the Bench held as under :
"9. It is not necessary to go over this field. All learned Judges seem to agree that a magistrate exercises judicial functions. This does not admit of any doubt and no reasons are required. That his duties are partly judicial and partly other do not in any way detract from the position that while acting as a magistrate he is a judicial officer. The dispute, therefore, really reduces itself to this : Does the magistrate hold an "office". An office means no more than a position to which certain duties are attached. According to Earl Jowitt's Dictionary a public office is one which entitles a man to act in the affairs of others without their appointment or permission. The 'office of a magistrate' is a correct expression in English and in law. Indeed the well-known maxim of Coke on Littleton (234a) officia magistratus non debent esse venalia (the offices of a magistrate ought not be saleable) clearly brings out that the word office can be applied to magistrates. Thus there may be an office of a judge (officii judicis) which in ecclesiastical law at least was said to be promoted when criminal proceedings were taken. But there may be also the office of a magistrate. Cicero in his De Legibus and De officiis makes no difference between a magistratum and a judex. His famous saying Magistratum legem esse Ioquentem, legem autem mutum magistratum (The Magistrate is a speaking law, but the law is a silent magistrate) was intended to apply to all judges of-all kinds. The word 'office' has been applied to magistrates by Tacitus, Ovid and others. Bachawat J. has given many references to bear out the meaning we have given and has very pertinently pointed out that the Judicial officers Protection Act, is intended to protect not Civil Judges alone but also Magistrates. The distinction between judicial function and judicial office in this context is artificial and unsubstantial. We agree with Bachawat J. that a magistrate -holds a judicial office.
10. .. ..
The High Court in a quo warranto proceeding should be slow to pronounce upon the matter unless there is a clear infringement of the law. .. .."
In B.
Srinivasa Reddy (supra), the Supreme Court considered the legality and validity of the appointment of B.Srinivasa Reddy as Managing Director of Karnataka Urban Water Supply and Drainage Board. It appears that the appointment of B.Srinivasa Reddy as a Managing Director of the Board was challenged before the High Court of Karnataka. The learned Single Judge of Karnataka High Court declared that B.Srinivasa Reddy was not entitled to hold the post of Managing Director of the Board. The intra-court appeal by Shri B.Srinivasa Reddy against the judgment of the learned Single Judge was also dismissed and accordingly, an SLP was filed. Allowing the appeal filed by B.Srinivasa Reddy and upholding his appointment as the Managing Director of the Board, the Supreme Court made some important observations in pargraphs 47, 73 and 74, which inter alia reads as under :
"47. The law is well settled. The High Court in exercise of its writ jurisdiction in a matter of this nature is required to determine, at the outset, as to whether a case has been made out for issuance of a Writ of Quo Warranto. The jurisdiction of the High Court to issue a Writ of Quo Warranto is a limited one which can only be issued when the appointment is contrary to the statutory rules.
xxx xxx xxx
73. .. .. A reading of the Act clearly shows that neither the Board nor its Managing Director is entrusted with any sovereign function. Black's Law Dictionary defines public office as under:
"Public Office: Essential characteristics of "public office" are : (1) authority conferred by law, (2) fixed tenure of office, and (3) power to exercise some portion of sovereign functions of Government, key element of such test is that "officer" is carrying out sovereign function. Spring v. Constantino 168 Conn.563, 362 A.2d 871,
875. Essential elements to establish public position as "public office" are position must be created by Constitution, legislature or through authority conferred by legislature, portion of sovereign power of Government must be delegated to position, duties and power must be delegated to position, duties and powers must be defined, directly or impliedly, by legislature or through legislative authority, duties must be performed independently without control or superior power other than law, and position must have some permanency and continuity, State ex rel. E.li Lilly and Co. v. Gaertner, Mo.App 619 S.W. 2d 6761, 764."
74. Carrying out sovereign function by the Board and delegation of a portion of sovereign power of Government to the Managing Director of the Board and some permanency and continuity in the appointment are quintessential features of public office. Every one of these ingredients are absent in the appointment of the appellant as Managing Director of the Board. This aspect of the matter was completely lost sight of by the High Court."
In State of U.P. (supra), the Supreme Court considered the legality and validity in the matter of appointment of Assistant District Government Counsel in Gazipur District of the State of U.P. The Supreme Court in paragraph 15 held as under :
"15. Applying the principles of law laid down by this Court in the above quoted decision, this Court finds that the decision of the State Government not to accept the recommendation made by the District Magistrate cannot be said to be arbitrary. There is no manner of doubt that the A.D.G.C. (Criminal) are not only officers of the Court but also the representatives of the State. They represent the interest of the general public before a Court of law. The holders of the post have a public duty to perform. However, in the matter of engagement of A.D.G.C. (Criminal) a concept of public office does not come into play. The choice is that of the Government and none can claim a right to be appointed because it is a position of great trust and confidence. Article 14, however in a given case, may be attracted to a limited extent if the State fails to discharge its public duty or acts in defiance, deviation and departure of the principles of law."
In Rafiquddin (supra), the Apex Court drawing distinction between an examination held by a college or university or examining body to award degree to candidates appearing at the examination and a competitive examination, has made important observations in paragraph 12 as under :
"12. ..
..There is a basic difference between an examination held by a college or university or examining body to award degree to candidates appearing at the examination and a competitive examination. The examining body or the authority prescribes minimum pass marks. If a person obtains the minimum marks as prescribed by the authority he is declared successful and placed in the respective grade according to the number of marks obtained by him. In such a case it would be obligatory on the examining authority to prescribe marks for passing the examination as well as for securing different grades well in advance. A competitive examination on the other hand is of different character. The purpose and object of the competitive examination is to select most suitable candidates for appointment to public services. A person may obtain sufficiently high marks and yet he may not be selected on account of the limited number of posts and availability of persons of higher quality. Having regard to the nature and characteristics of a competitive examination it is not possible nor necessary to give notice to the candidates about the minimum marks which the Commission may determine for purposes of eliminating the unsuitable candidates. The rule of natural justice does not apply to a competitive examination."
There is one more reason as to why we are 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, we are 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, we have no hesitation in coming to a conclusion that no case has been made out by the petitioner for our interference in the matter.
Having held so, we shall now proceed to address ourselves on a very important question as to whether the respondent No.4 who has been given the additional charge of Registrar of the University, is actually entitled to function as an In-charge Registrar and whether we should permit the University to continue him to function as an In-charge Registrar. The petitioner-Party-in-Person vehemently submitted that if the respondent No.4 is not competent to be appointed on the post of the Chief Accounts Officer, then how could the Gujarat University appoint him as a Registrar on officiating basis. He submitted that a person officiating in a post has no right to hold it for all the times. He submitted that in a given case a person can be given the officiating post because the permanent incumbent was not available having gone on leave or being away for some other reasons. He vehemently submitted that if the respondent No.4 is otherwise not competent to be appointed as Registrar of the University, then he cannot be appointed even on officiating post. He invited our attention to a notification dated November 06, 1998 issued by the Government of India, Human Resources Development (Department of Education). Paragraph 3 of the said notification reads as under :
""Pay scales of Controllers of Examination and Finance Officers :-
The Controllers of Examination and the Finance Officers in the Universities will be given the same pay scale as applicable to the Registrars."
And in the same Notification at Appendix-III the minimum qualifications for the direct recruitment to the posts of Registrar and equivalent posts is also prescribed which is as follows :-
"(i) Registrar and equivalent posts
1. A Master's degree with at least 55% of the marks or its equivalent grade of B in the UGC seven point scale.
2. At least 15 years of experience as Lecturer (Sr.Scale)/ Lecturer with eight years in Reader's grade alongwith experience in educational administration.
Comparable experience in research establishment and/or other institutions of higher education.
Or 15 years of administration experience of which 8 years as Deputy Registrar or an equivalent post."
The petitioner-Party-in-Person submitted that how can one person be asked or permitted to hold the post of a Chief Accounts Officer, In-charge Registrar and the Director of the School of Law. Our attention is drawn to the fact, which has not been denied by the respondents, that the post of Registrar, Deputy Registrar of Academic Section of the University and the Post of the Director of School of Law are vacant past seven years and no steps have been taken till this date by the authorities of the University to make regular appointments for such important posts. Having regard to the fact that the office of the Registrar is of public nature and Registrar can be said to be holding a public office, for the purpose of being appointed a person must possess a Master's degree with at least 55% of marks or its equivalent grade of 'B' in the UGC seven point scale, coupled with 15 years of experience of experience as Lecturer (Senior Scale)/ Lecturer with eight years in Reader's grade along with experience in educational administration with comparable experience in research establishment and/or other institutions of higher education or 15 years of administrative experience of which eight years as Deputy Registrar or an equivalent post.
The petitioner has also invited our attention to Section 13 of the Gujarat University Act, 1949, which provides that the Registrar shall be a whole time salaried officer and how he is to be appointed. Section 13 reads as under :
"13. The Registrar shall be a whole time salaried officer and shall act as the Secretary of the Court of the Executive Council and of the Academic Council. He shall be appointed by the Executive Council in accordance with the recommendations made by the Selection Committee to be constituted by the Executive Council in the manner prescribed by Statutes and his qualifications, emoluments and conditions of service shall be determined by such Statutes. He shall exercise such powers and perform such duties as may be prescribed by the Statutes, Ordinances and Regulations."
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.
We are of the view that 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 Mr.Shelat 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. Even a Professor working with Gujarat University holding Master's Degree with 15 years' experience as a Lecturer could have been appointed as a Registrar on officiating post.
To this extent, we are inclined to mould the relief as prayed for by the petitioner. Though we are not inclined to issue any writ of quo warranto cancelling the appointment of the respondent No.4 as a Chief Accounts Officer, we hold that the respondent No.4 cannot continue as In-charge Registrar of the University even on officiating post in the absence of requisite qualifications prescribed for the post of Registrar. We find support in taking this view from a Supreme Court decision in the case of Santosh Kumar Singh v. State of U.P. and others, reported in 1996(2) SCC 45. In Santosh Kumar Singh (supra), the appellant came to be appointed as a Lecturer in the subject of Agronomy while he was continuing in the final year of M.Sc. (Agriculture) by the management of Shri Durgaji Post Graduate College, Chandeshwar. He was appointed as a Lecturer pursuant to an advertisement which was issued by the college for the post of Lecturer in agronomy. The educational qualification prescribed in the advertisement for the post was M.Phil. Degree or a recognised degree beyond Master's level or published work indicating the capacity of a candidate for independent research work. The appellant had not held even a Master's Degree even on the date on which he was appointed as a teacher on January 01, 1984. In this background, the appointment was cancelled and the order of termination of the appellant was passed by the Vice Chancellor. The Committee of the Management of the college being aggrieved by the said order preferred writ petition in the Allahabad High Court. The appellant himself also filed another application in the High Court. The writ petition filed by the appellant was dismissed on the ground that the appellant's appointment itself was illegal and was no appointment in the eye of law. The Supreme Court while dismissing the Special Leave to Appeal preferred by the appellant held as under :
"10. ..
.. Consequently a person is ineligible to be appointed as a lecturer unless he possesses the minimum qualification of M.Phil degree or a recognised degree beyond Masters level or published work indicating the capacity of the candidate for independent research work. Admittedly the appellant had not held even a Master's degree on the date he was appointed as a teacher on 1.1.1984, what to speak of a degree beyond Master's level. It is no doubt true that in his application he had clearly indicated that he was pursuing his Master's degree course and was in second year M.Sc. and, therefore, there was no concealment of on his part and yet the Management of the College appointed him on ad hoc basis. But when the appellant did not have the minimum requisite qualification, as discussed earlier, in accordance with the University Statute the Committee of the Management could not have relaxed the sameand appointed him even on ad hoc basis."
(Emphasis supplied) Thus, what can be deduced from the judgment of the Supreme Court in Santosh Kumar Singh (supra) is that no appointment could have been made even on ad-hoc basis in the absence of requisite qualifications provided by the statute or fixed by the authorities. Extending the same analogy, we hold that the respondent No.4 could not have been appointed on the post of Registrar even on officiating basis.
In the result, this petition partly succeeds. The prayer to the extent of issuing a writ of quo warranto quashing the appointment of respondent No.4 to the post of a Chief Accounts Officer with the Gujarat University is rejected. The appointment of respondent No.4 as an In-charge Registrar of the University on officiating basis is hereby cancelled and the respondent No.2 is hereby directed to undertake the exercise of appointing the Registrar, Deputy Registrar and Director of School of Law on regular basis after undertaking regular recruitment procedure at the earliest. Till the time regular recruitment procedure is undertaken for filling in the posts of the Registrar, Deputy Registrar and Director of School of Law of the University, the respondent-University shall appoint any other person to the posts of Registrar and Deputy Registrar on officiating basis, provided the person fulfills the eligibility criteria of possessing requisite educational qualifications for the post of Registrar as prescribed by notification dated November 06, 1998 issued by the Government of India, Human Resources Development (Education Department), as referred to in paragraph 6 of the memo of the petition.
Rule is made absolute to the aforesaid extent. There shall be, however, no order as to costs.
(Bhaskar Bhattacharya, Acting C.J.) (J.B.
Pardiwala, J.) ::
FURTHER ORDER ::
After this order is pronounced, Mr.Shelat, the learned senior counsel appearing on behalf of the respondent No.2 prays for stay of our order on the ground that advertisement for the post of Registrar has already been issued.
In view of what has been stated above, we are of the view that even during the process of such selection proceedings, a person, who does not possess the requisite qualification to be appointed as Registrar, should not be permitted to function as In-Charge Registrar, and as such, we find no reason to stay our order. The prayer is, therefore, rejected.
(Bhaskar Bhattacharya, Acting C.J.) (J.B.
Pardiwala, J.) Aakar > Top