Judgment:
Writ Petition filed under Article 226 of the Constitution of India, praying to issue a Writ of Quo-Warranto, directing the second respondent to answer to this Court, under what authority the 2nd respondent was holding the post of Chief of Army Staff and consequently direct the first respondent to strip the rank of the second respondent, dismiss him from service and stop his pay, benefits and the pension to the second respondent.
O R D E R
(Order of the Court was made by ELIPE DHARMA RAO, J.)
1. The petitioner, claiming to be the Founder-Chairman of the Awareness on Anti-Corruption Crime, a Non-Governmental Organization, registered as a Trust, has come forward to file this petition as a probono publico, praying to issue a Writ of Quo-Warranto against the second respondent, who is the Chief of Army Staff of India.
2. In the long affidavit filed in support of the writ petition, the petitioner, after giving brief history about their organization and its achievements, had stated that the second respondent took over as the Chief of the Army Staff on 31.3.2010 and was the first Commando to achieve that position; that he had a dispute with the Union of India regarding his date of birth and is the first Serving Officer of the Indian Army to pull the Government to Court; that on 10.2.2012, the second respondent withdrew his case, when the Honourable Apex Court refused to intervene, by observing that there was no dispute regarding his actual date of birth and had ruled that the second respondent, had, on three occasions accepted his date of birth.
3. It is also stated in the affidavit that having failed in his attempt to clinch on to the top-most post of Army of the Country, which is the largest in the world, the second respondent had given an interview to the media, alleging that a lobbyist, whom he did not identify, but who was suggested to be retired Lieutenant-General Tejinder Singh, had offered him a bribe of Rs.14 Crores in order to have a tranche of 600 Czech-manufacturer, owned by Vectra, a London-based company, which supplies parts to a defence run Public Sector Unit, BEML, based in Bangalore and the trucks are assembled at BEML and sold to the Army and this action of the second respondent amounts to intentional omission to give information of the offence, which he is legally bound to give.
4. It has further been stated in the affidavit that pursuant to the interview of the second respondent, immediate reaction was that both Houses of Parliament were forced to adjourn minutes after their proceedings had commenced and the Government ordered enquiry by the Central Bureau of Investigation and the Honourable Minister for Defence had stated that he had instructed the second respondent to take action and that the second respondent had been unwilling to do so for the reasons best known to him; that the action of the second respondent is nothing but revenge, when the Honourable Supreme Court had struck down his effort to prolong his tenure as Army Chief, through a change in his date of birth and by his deeds, the second respondent has compromised on sensitive national interests, which is paramount to any citizen, more particularly to an Army Chief; that the time the second respondent had allegedly revealed the above information was when the Parliament was in session and Delhi was hosting the Fourth BRICS Summit, thus causing much embarrassment to the Government; that the second respondent had written a letter to the Honourable Prime Minister alleging that the Army's tanks were out of ammunition and that the infantry preparedness was critically low and that the Air Defence was 97% obsolete and under the guise of warning about the perilous state of the Army's, defence preparedness was also revealed and the second respondent had revealed a top secret force in the North-East formed for conflict with China at a time when the Honourable Chinese President was a State Guest in New Delhi. Further stating that the deeds of the second respondent are nothing but abetting mutiny and an attempt to seduce all his followers to revolt against the country and thereby attempt an army coup, the petitioner has filed this writ petition.
5. This writ petition has been stiffly opposed by the respondents.
6. Mr.M.Ravindran, the learned Additional Solicitor General, would submit that the very writ petition filed by the petitioner, seeking writ of quo warranto is not at all maintainable, since, according to him, the averments of the writ petition does not satisfy the requirements of issuance of writ of Quo-warranto. He would further argue that the country's top most investigating agency-CBI is investigating into the matter and the second respondent is due to retire shortly and therefore, this writ petition is nothing but an abuse of process of law.
7. We perused and analysed all the materials placed on record.
8. In HIGH COURT OF GUJARAT vs. GUJARAT KISHAN MAZDOOR PANCHAYAT [(2003) 4 SCC 712], dealing with the decision to fill up the post of the President of the Industrial Court by way of nomination, a three Judge Bench of the Honourable Apex Court has held:
"The High Court in exercise of its writ jurisdiction in a matter of the nature of the present case is required to determine at the outset as to whether a case has been made out for issuance of a writ of certiorari or a writ of quo warranto. The jurisdiction of the High Court to issue a writ of quo warranto is a limited one. While issuing such a writ, the Court merely makes a public declaration but will not consider the respective impact of the candidates or other factors which may be relevant for issuance of a writ of certiorari."
"A writ of quo warranto can only be issued when the appointment is contrary to the statutory rules."
9. In N.KANNADASAN vs. AJOY KHOSE [(2009) 7 SCC 1], the Honourable Apex Court has held that:
"A writ of quo warranto can be issued when the holder of a public office has been appointed in violation of constitutional or statutory provisions."
"The writ of quo warranto proceedings affords a judicial remedy by which any person who holds an 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. It is a high prerogative writ which was reserved for the use of the Crown. The width and ambit of the writ, however, in the course of practice, have widened and it is permissible to pray for issuance of a writ in the nature of quo warranto."
"A writ of quo warranto can be issued inter alia when the appointment is contrary to the statutory rules.... It is not for the court to embark upon an investigation of its own to ascertain the qualifications of the person concerned.... Moreover, 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."
"Issuance of a writ of quo warranto is a discretionary remedy. Authority of a person to hold a high public office can be questioned inter alia in the event an appointment is violative of any statutory provisions. There concededly exists a distinction in 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 a writ of quo warranto can be issued on a limited ground, the considerations for issuance of a writ of certiorari are wholly different."
10. In CENTRE FOR PIL vs. UNION OF INDIA [(2011) 4 SCC 1], a Three Judge Bench of the Honourable Apex Court has held:
"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."
11. Therefore, from the principles enunciated by the Honourable Apex Court in the above judgments, it is clear that the jurisdiction of the High Court to issue a writ of quo warranto is a limited one and writ of quo warranto can only be issued when the appointment is contrary to the statutory rules and the issuance of a writ of quo warranto is a discretionary remedy and 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.
12. In this backdrop, when this Bench has put a specific question to the learned counsel for the petitioner regarding the principles enunciated by the Honourable Apex Court in the matters of quo-warranto, he was not able to answer. Further, the learned counsel for the petitioner was also unable to answer to a question posed by us to explain the reason and necessity to issue quo warranto when the matter was admittedly entrusted to CBI for inquiry. It is not the case of the petitioner that the appointment of the second respondent is against any constitutional or statutory rule, so as to issue Writ of Quo Warranto. When we have posed a question to the learned counsel for the petitioner as to whether the appointment of the second respondent is against any statutory provisions, the learned counsel for the petitioner has fairly admitted that the second respondent has been appointed after following due process of law and the writ of quo warranto has been prayed by the petitioner for the statements made by the second respondent thus bringing disrepute to the country. From this, we are able to understand that this petition came to be filed by the petitioner, as if a public interest is involved, without even understanding the nature and concept of writ of quo warranto.
13. From the materials placed on record and from the arguments of the learned Additional Solicitor General, and from the admission of the learned counsel for the petitioner himself, it is clear that the second respondent having been appointed by due process of law, is continuing in the post and is due to retire on 31.5.2012. When that is the case that the appointment of the officer is fully in accordance with the statutory rules and not contrary to any constitutional or statutory rules or provisions, the question of issuance of writ of quo warranto does not arise and hence this writ petition filed by the petitioner is not at all maintainable. If at all, the petitioner could have sought only for a direction to the respondents to initiate disciplinary proceedings against the officer for his alleged statements in the media.
14. At this stage, when we heard the matter for two days, the learned counsel for the petitioner, having unable to answer the Court for the questions posed, as stated supra, has requested the Court to permit him to withdraw the writ petition.
15. On a complete analysis of the entire materials placed on record, we are of the considered opinion that this petition has been filed without even understanding the principles enunciated by the Honourable Apex Court with regard to the writ of quo-warranto and the nature and concept of the same and that the petitioner has not approached the Court with clean hands, since even according to him, there is no illegality or irregularity in the appointment of the second respondent and thus has wasted the valuable public time of this Court. The attitude of the petitioner, from the entire analysis of the materials on record, would draw us to arrive at a conclusion that by this writ petition, he tried to pull a hill by a piece of hair.
Therefore, permitting the learned counsel for the petitioner to withdraw this writ petition, we dismiss it as withdrawn. However, for all the reasons stated above and to serve as an eye-opener for such litigation and publicity mongers at the cost of valuable public time of the Court, we impose a cost of Rs.1 lakh (Rupees One Lakh only) on the petitioner to be paid to the Madras Society for the Protection of Children, New No.891, Old No.288, T.H.Road, Old Washermenpet, Chennai-600021, within a period of two weeks from today, failing which, the District Collector, Chennai is directed to initiate Revenue Recovery proceedings against the petitioner to recover the said amount.