The appellant herein filed W.P.No.5350 of 2012 seeking a Writ of Quo Warrantoto call upon the 3rd respondent to show-cause as to under what authority he isholding and continuing in a public office namely Principal FAC in Government Nizamia Tibbi College, Charminar, Hyderabad and to prevent him to continue further in the said post.
The learned Single Judge though declined to grant a Writ of Quo Warranto, disposed of the writ petition with certain directions. The said order dated 27.04.2012 is assailed before us in this Writ Appeal.
The facts in brief are as under:
The writ petitioner/appellant is working as Professor P.G. in the Government Nizamia Tibbi College, Charminar, Hyderabad.The respondent No.3, who was working as Reader (PG) in the same college was placed on 03.07.2008 as Full Additional Charge of Professor (PG).
While so, a vacancy arose to the post of Principal due to retirement of one Dr. Kouser Sultana on attaining the age of superannuation.By proceedings of the 2nd respondent, dated 28.05.2010, the 3rd respondent was placed in Full Additional Charge of the post of Principal for a period of three months or till the post is filled up on regular basis whichever is earlier.Accordingly, he took charge on 31.5.2010 and since then he has been continuing as Principal Full Additional Charge (FAC).
It is not in dispute that while the 3rd respondent was working as Reader (PG) he was arrested on 20.04.2006 and detained for more than 48 hours on a complaint that he obtained false residential certificate from Mandal Revenue Officer, Eluru to secureseats in BUMS Course to his two daughters in the year 2001. Pursuant thereto, Crime No.29 of 2004 was registered against the 3rd respondent under Sections 468, 471 and 420 read with 34 of I.P.C. by the C.I.D. Police Station, Hyderabad.
On the ground that he was arrested and detained for more than 48 hours, the 3rdrespondent was placed under suspension vide order dated 5.5.2006 passed under Rule 8 (2) (a) of A.P. Civil Services (Classification, Control and Appeal) Rules, 1991.Challenging the said order, the 3rd respondent filed O.A.No.3144 of 2006 before the A.P. Administrative Tribunal (for short ‘the Tribunal).By virtue of the interim order granted by the Tribunal, the 3rd respondent was continued in service and ultimately by order dated 31.01.2008 O.A.No.3144 of 2006 was allowed and the order of suspension was set aside.Following the decision in Jagjeet Singh Vs. State of U.P.1995 (1) SLR 563and P.Rajendar Vs. Union of India2001 (5) ALD 290, it was held by the Tribunal that the suspension was bad since the charge against the respondent No.3 did not relate to the course of his employment.
In the meanwhile, the 3rd respondent filed O.A.No.5612 of 2007 in the Tribunal seeking a direction to the respondents to consider his case for promotion to the post of Professor (PG) without reference to the criminal case pending against him.There was an interim order to consider his case and accordingly during the pendency of O.A.No.5612 of 2007, the 3rd respondent was placed as Full Additional Charge of Professor (PG) on 03.07.2008. Ultimately O.A.No.5612 of 2007 was allowed by order dated 12.08.2009 with directions as prayed for. Pursuant thereto, the 2nd respondent by proceedingsdated 05.08.2010 rejectedthe request of the 3rd respondent for promotion to the post of Professor (PG) on the ground that he is facing criminal charges involving moral turpitude.
Immediately after the disposal of O.A.No.5612 of 2007, the 3rd respondent filed O.A.NO.3082 of 2010 seeking a direction for his promotion to the post of Principal and an interim order was passed by the Tribunal on 12.05.2010 to consider his candidature in accordance with G.O.Ms.No.68 dated 14.03.2005.In pursuance thereof, by proceedings dated 28.05.2010 the 3rd respondent was placed in Full Additional Charge of the Post of Principal and he assumedcharge as such on 31.05.2010.
The 3rd respondent again filed O.A.No.9507 of 2010 seeking a direction to the respondents to consider his case for promotion as Principal notionally for the panel year 2006-07 on par with his junior by name Dr. Basheer Ahmad with all consequential benefits contending that no criminal charge was filed against him at the relevant point of time. The Tribunal had initially granted an interim order of status quo. The writ petitioner got impleaded to the said O.A.No.9507 of 2010 as respondent No.4 claiming that she is the senior most having more than 18 years of teaching experience.After hearing the Official respondents as well as the other contesting respondents, the Tribunal by order dated 24.11.2011 dismissed O.A.No.9507 of 2010 holding that the seniority claimed by the applicant therein (respondent No.3 herein) cannot be accepted unless W.P.No.13674 of 2011 pending before this Court relating to the issue of the seniority between him and Dr. Basheer Ahmad is decided. As a sequence, the interim order of status quo was vacated.Against the said order, the 3rd respondent herein filed W.P.No.2053 of 2012 before this Court.Though the said writ petition is admitted, a Division Bench of this Court by order dated 14.02.2012 dismissed WPMP.No.2552 of 2012 wherein the respondent No.3 sought an interim direction to continue him in the post of Principal FAC.
In the light of the above said orders passed by the Tribunal as well as this Court, the writ petitioner contends that the 3rd respondent is not entitled to hold and continue in the post of Principal FAC any longer.
Accordingly, the petitioner filed W.P.No.5350 of 2012 seeking a writ of Quo Warranto to call upon the 3rd respondent to show- cause as to in what authority he is holding and continuing in a public office and to prevent him to continue further as Principal FAC.
It was pleaded in the writ petition that Crime No.29 of 2004 registered against the 3rd respondent for the offences punishable under Sections 420 and 465 read with 34 of I.P.C. is pending on the file of the Court of the II-Additional Judicial Magistrate of First Class, Eluru, in which the 3rd respondent was arrested on 20.04.2006 and was remanded to judicial custody for more than 15 days. Though he was released on bail, the criminal proceedings are still pending. Therefore, it is contended that the 3rd respondent is disqualified to continue in the post of Principal FAC on that ground also.
In the counter-affidavit filed by the 3rd respondent in W.P.No.5350 of 2012 a preliminary objection was raised as to the maintainability of the writ petition contending that without approaching the Tribunal in the first instance, the petitioner cannot straightaway file a writ petition.Denying the allegation that he is having less teaching experience than the writ petitioner, it is further pleaded that he had been regularly appointed as Assistant Professor/Gazetted Lecturer on 10.01.1996 and subsequently he had been promoted as Reader (PG)/Professor (UG) w.e.f. 1.7.2000 and thereafter he was placed in Full Additional Charge of Professor (PG) from 3.7.2008.So far as the criminal case pending against him is concerned, it is stated that it is a false case which is not related to the service and that O.A.No.3144 of 2006 filed by him challenging the order of suspension from service on the ground of the pendency of the criminal case was allowed by order dated 31.01.2008 observing that as the charge was not during the course of employment and the alleged incident did not relate to the course of employment, the suspension was bad.It is further stated that he had earlier filed O.A.No.5612 of 2007 seeking a direction to consider his case for promotion without reference to criminal case and the same was allowed by the Tribunal by order dated 12.08.2009 directing the Department to consider his case for promotion as Principal / Professor (PG) without reference to Cr.No.29/2004.Thereafter, he filed O.A.No.3082 of 2010 seeking a direction to consider his case for promotion as Principal by strictly following the rules issued under G.O.Ms.No.68, dated 14.3.2005.In the said O.A.No.3082 of 2010, there was an interim direction on 12.5.2010 to consider his case for promotion in the ensuing DPC.Pursuant thereto, by order dated 28.5.2010 he was placed as In-charge Principal. Subsequently, O.A.No.3082 of 2010 was disposed of by order dated 9.1.2012 having regard to the fact thathe was already placed in Full Additional Charge of the Post of Principal.It is further contended that he is the senior-most person from all the Unani Doctors of AYUSH Department and that as per Note-V of Annexure-I of A.P. Unani Medical Service Rules issued under G.O.Ms.No.68, dated 14.03.2010 all the Heads of the Institutions/Unit Postsshall be filled up by senior-most persons strictly as per the seniority.
After hearing both the parties, the learned Single Judge rejected the objection raised by the respondents as to the maintainability of the writ petition.However on facts it was held that no writ of Quo Warranto can be issued merely because the 3rd respondent is involved in a criminal case.Accordingly, by order dated 27.4.2012, the Writ Petition was disposed of with a direction to reconsider the matter observingas under:
“While effecting promotions, relative merit has to be considered. If any person is not being considered in view of some adverse remarks or criminal charges, he must be given an opportunity to explain about the same. Not only seniority and merit, but reputation also should be taken into consideration. When a person is alleged to have committed an offence involving moral turpitude and if the same does not come in the way of discharge of his duties, he may be allowed to discharge his duties. But when the question of handing over an institution comes or promoting him as Principal of a College becomes an issue. The authorities should consider whether in the interest of the institute, such person should not be posted as Principal till the criminal case pending against him is cleared. Once he is acquitted of the alleged charges, then it amounts to wiping out of the black spot and he would be entitled for all consequential benefits. If the allegations amount to misconduct, the Department may initiate necessary proceedings and if the said misconduct is proved, he may be awarded with suitable punishment. The possibility of false implication of a person in a case to prevent him from getting a promotional post also cannot be ruled out. In such a situation, the Head of the Department or the disciplinary authority should consider whether a Prima facie case has been made out. The concerned employee who is facing criminal charges must be given an opportunity before taking a decision. If it appears on the face of the record that the allegations are false and a false complaint has been lodged, the authorities may ignore the same. But, if it appears that a clean chit cannot be given unless the concerned Criminal Court gives verdict, better to maintain status quo, i.e., the officer/employee should be allowed to work in the same position as on the alleged date of offence, but his promotion or posting to any prestigious post should be kept in abeyance. In his place, his next junior or any other suitable person whose reputation is not in dispute should be posted temporarily, of course, with a rider that the promotion is purely temporary and subject to the out come of the criminal case pending against the other officer. If there are no specific Rules and Guidelines, the State Government should formulate guidelines in this regard.
In view of the above discussion, the official respondents may secure copies of the criminal case records, furnish the copies to the third respondent and the petitioner and give an opportunity to them and pass reasoned order within four weeks from the date of receipt of a copy of this order. As referred supra, seniority, merit and reputation have to be taken into consideration in respect of other candidates who are likely to be promoted.”
The above said order passed by the learned Single Judge is questioned before us primarily on three grounds namely:
(i) Having regard to the admitted fact that the respondent No.3 is facing criminal charges and he was under judicial custody for more than 15 days, which in fact is a ground for dismissal from service, the learned Judge ought to have issued a Writ of Quo Warranto directing him to quit the public officeof the Principal FAC forthwith.
(ii) Since O.A.No.9507 of 2010 filed by the 3rd respondent seeking a direction to continue him as Principal FAC was dismissed by the Tribunal and this Court while admitting W.P.No.2053 of 2012 declined to grant interim direction to continue him in the said post, the 3rd respondent cannot be allowed to continue as Principal FAC any longer.
(iii) As the respondent No.3 is a rejected candidate in DPC to the post of Professor (PG) and moreover, he is facing the criminal charges under Sections 420 and 465 read with 34 of IPC involving moral turpitude, the learned Single Judge ought to have held that the public office held by him is without legal authority.
We have heard Sri Sadu Rajeswara Reddy, the learned counsel for the appellant and Sri P. Raghavendra Reddy, the learned counsel appearing for the respondent No.3 and perused the material available on record.
The law is well settled that the jurisdiction of this 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 [vide Retired Armed Forces Medical Association and others v. Union of India and others (2006) 11 SCC 731, Hari Bansh Lal v. Sahodar Prasad Mahto and others (2010) 9 SCC 655 and High Court of Gujarat v. Gujarat Kishan Mazdoor panchayat (2003) 4 SCC 712].In Arun Singh v. State of Bihar(2006) 9 SCC 375 it was also made clear that issuance of a writ of Quo Warranto is discretionary and such a writ should be issued only upon a clear finding that the appointment to a public office was contrary to the statute.
As could be seen from the settled legal position, the pre-conditions for issue of Quo Warranto are that (i) the office was created by statute or any provision having the force of law, (ii) the duties of the office must be of a public nature, and (iii) the office must be substantive in character.
The nature and object of a Quo Warranto has been explained in University of Mysore Vs. C.D. Govinda RaoAIR1965 SC 491 as under:
“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.”
In the light of the legal position noticed above, we shall now examine the facts of the case on hand.
The main allegation in the writ petition is that the respondent No.3 who is facing criminal charges and was arrested and detained for more than 48 hours cannot hold the post of Principal FAC.
Rule 8 (2) of A.P.C.S (CCandA) Rules 1991 reads as under:
“(2)A Government Servant shall be deemed to have been placed under suspension by an order of the Authority competent to place him under suspension –
(a) with effect from the date of his detention, if he is detained in custody, whether on a criminal charge or otherwise for a period exceeding 48 hours;
(b) with effect from the date of his conviction, if in the event of a conviction for an offence, he is sentenced to a term of imprisonment exceeding 48 hours and is not forthwith dismissed or removed or compulsorily retired consequent to such conviction.”
It is no doubt true that Cr.No.29 of 2004 is registered against the respondent No.3 and he was arrested and detained for more than 48 hours.However the proceedings are still pending and it is not as if he is convicted.Therefore, it cannot be concluded at this stage that the respondent No.3 suffered a disqualification as such to hold a public post.In fact, O.A.No.3144 of 2006 filed by him challenging the order of suspension dated 05.05.2006 on the very same ground that he was arrested and detained for more than 48 hours was allowed by the Tribunal and the order of suspension was set aside holding that the alleged acts of respondent No.3 which were under investigation by the Police were not during the course of his employment.The said order has become final and the respondent No.3 has been reinstated into service on 26.05.2006 itself. Therefore, in our considered opinion, no Writ of Quo Warranto can be issued on that ground.
The next contention advanced on behalf of the petitioner is that in view of the order dated 14.02.2012 passed by the Division Bench of this Court in dismissing WPMP.No.2552 of 2012 in W.P.No.2053 of 2012 thereby declining to grant the interim relief to direct the respondents to continue the 3rd respondent in the post of Principal, the 3rd respondent cannot be allowed to continue as Principal FAC any longer. The further contention of the petitioner is based on the order dated 5.8.2010 passed by the 1st respondent rejecting the request of the 3rd respondent for promotion on regular basis as Professor (PG).In view of the said order, it is contended that the 3rd respondent being a rejected candidate to the post of Professor (PG) has no authority to hold the post of Principal FAC.
As noticed above, O.A.No.9507 of 2010 was filed by the respondent No.3 seeking a direction to consider his case for promotion as Principal notionally for the panel year 2006-2007 on par with his junior by name Dr. Basheer Ahmad with all consequential benefits.Pending the said O.A., by order dated 29.04.2011 status quo was directed to be maintained.By that time, by virtue of the proceedings of the 2nd respondent dated 28.05.2010the respondent No.3 was placed as Principal FAC for a period ofthree months or till the post is filled up on regular basis whichever is earlier.It appears that though the period of three months expired, the respondent No.3 continued in the post of Principal FAC on the basis of the interim order of status quodated 29.04.2011.However O.A.No.9507 of 2010 was dismissed by the Tribunal by order dated 24.11.2011 and the interim order of status quo also stood vacated.When the 3rd respondent challenged the saidorder dated 24.11.2011 by filing W.P.No.2053 of 2012 and sought an interimdirection to continue him in the post of Principal on Full Additional Charge, thisCourt declined to grant any suchdirection and dismissed the said WPMP.No.2552 of 2012 by order dated 14.2.2012. Therefore, according to the writ petitioner, the continuation of the respondent No.3 in the post of PrincipalFAC is without any authority.
It is relevant to note that in exercise of the powers conferred bythe proviso to Article 309 of theConstitution of India, the Governor of Andhra Pradesh made SpecialRules for the A.P. Unani Medical Services under G.O.Ms.No.68, Health, Medical and Family Welfare (1.2) Department, dated 14.03.2005. The said Rules are called the A.P. Unani Medical Service Rules, 2005. As per Rule 3 read with Annexure-I of the said Rules, the posts of Principal and Professor (for PG courses) fall under Class-B, Category-I (b).Method of appointment for the said two posts is by promotion from the Category-II (a) i.e., (i) Professor for UG courses (ii) Readers for PG courses and (iii) Research Officers.
The respondent No.3 is admittedly holding the substantive post of Reader (PG) which is a feeder post for promotion to the post of Principal.His request for promotion on regular basis as Professor (PG) was rejected by the 1st respondent by Memo dated 5.8.2010 on the ground that he is facing criminal charges under Sections 420 and 465 read with 34 ofIPC involving moral turpitude.
As could be seen from the material available on record, the said order dated 5.8.2010 has not been suspended or stayed either by the Tribunal or by this Court. Nothing is placed before this Court to show that the 3rd respondent has challenged the said order and any proceedings are pending as of today before any forum.
It may be true that in view of the said order the 3rd respondent is not entitled to be promoted to the post of Professor (PG). However the said fact has no significance so far as the post of Principal is concerned since the post of Professor (PG) is not a feeder post for promotion to the post of Principal.In fact, both the posts of Professor (PG) and Principal are posts of equal cadre and it is stated that they carry equal scale of pay.Method of appointment for both the posts is also same.Therefore, reliance upon the order dated 5.8.2010 is misplaced so far as the relief sought for in the writ petition is concerned.
We may also add that it is not necessary for this Court to go deep into the said controversy since several proceedings are pending before the Tribunal as well as this Court with regard to the inter se seniority among the writ petitioner and the respondents 3 to 6 herein and their entitlement for promotion to the post of Principal.
So far as the present writ petition is concerned, the only question that requires consideration by us is whether the petitioner has made out a case for issuing a Writ of Quo Warrantoagainst the respondent No.3.
At the outset, we may point out that the substantive post held by the respondent No.3 is Reader (PG).As noticed above, it is a feeder post for promotion to the post of Principal. It may be true that O.A.No.9507 of 2010 filed by the respondent No.3 seeking a direction to consider his case for promotion as Principal was dismissed by the Tribunal by order dated 24.11.2011 and though the said order is challenged before this Court by filing W.P.No.2053 of 2012, this Court declined to grant any interim order.Be it noted that, in the said matter the claim of the respondent No.3 was for promotion as Principal notionally for the panel year 2006-2007 on par with his junior by name Dr. Basheer Ahmad. The said Dr. Basheer Ahmad had earlier filed O.A.No.4066 of 2008 seeking a direction to consider his case for promotion on notional basis to the cadre of Professor (UG)/Reader (PG) and the same was disposed of by order dated 29.10.2009.Against the said order, the respondent No.3 filed W.P.No.14738 of 2011 which is pending. It also appears that W.P.No.13674 of 2011 relating to the same controversy is also pending on the file of this Court.Therefore, the Tribunal dismissed O.A.No.9507 of 2010 observing that unless the issue of seniority between the respondent No.3 and Dr. Basheer Ahmad is settled, his contention that he is senior cannot be accepted.
In our considered opinion, the dismissal of O.A.No.9507 of 2010 in which the claim of the respondent No.3 for promotion as Principal on regular basis was not accepted is also of no consequence for the purpose of the present writ petition since the respondent No.3 has never been appointed to the post of Principal but he is only placed in Full Additional Charge of the post of Principal and he is continuing as of today as such. Thus he is holding the post of Principal only in Full Additional Charge. Even assuming that his continuation as Principal FAC beyond the prescribed period is illegal, as per the legal position noticed above for issuing a Writ of Quo Warranto, one of the essential conditions to be satisfied is that the person is holding a substantive public office against the statutory provisions. No case is made out to show that the 3rd respondent is holding any such substantive post contrary to law.
It may be true that the period of three months prescribed in the order dated 28.5.2010 expired long back and therefore the petitioner may be right in contending that the respondent No.3 is no longer entitled to continue as Principal FAC. Nothing could be placed even before this Court by the respondent No.3 that there is any further extension in his favour.
But the fact remains that the respondent No.3 has never been appointed to the post of Principal. He is holding the substantive post of Reader (PG) and by virtue of the proceedings of the 2nd respondent dated 28.5.2010, he is placed only in Full Additional Charge of the post of Principal.
For better appreciation, the order dated 28.5.2010 may be extracted hereunder:
“In pursuance of the orders issued by the Government in the reference cited, Dr. Kouser Sulthana, Principal, Government Nizamia Tibbi College, Hyderabadwho is retiring from service on attaining the age of superannuation on 31.05.2010 is hereby relieved from her duties on the Afternoon of 31.05.2010.She is therefore requested to handover the complete charge of the post of Principal, Government Nizamia Tibbi College, Hyderabad to Dr. Syed Arifuddin, Reader (PG), Government Nizamia Tibbi College, Hyderabad.
In view of the A.P. Administrative Tribunal order dated 12.05.2010 in O.A.No.3082/2010 Dr. Syed Arifuddin, Reader (PG), Government Nizamia Tibbi College, Hyderabad is hereby placed in Full Additional Charge of the post of Principal, Government Nizamia Tibbi College, Hyderabad under FR 49 for a period of (3) months or till the post is filled up on regular basis whichever is earlier.However he will continue to hold his substantive post.He is requested to take full additional charge of the post of Principal, Government Nizamia Tibbi College, Hyderabad on the AN of 31.05.2010.” (emphasis supplied)
Thus it is clear that the respondent No.3 is not appointed against the substantive post of Principal, but he is only holding Full Additional Charge. As noticed above, the order dated 28.5.2010 itself shows that the respondent No.3 continues to hold his substantive post of Reader (PG).
As pointed out by the learned counsel for the petitioner, the respondent No.3 appears to have been continued in FAC of the post of Principal even after the expiry of three months mentioned in the order dated 28.5.2010 by virtue of the interim order of status quo granted in O.A.No.9507 of 2010.Since the said O.A. itself was dismissed on 19.1.2012 and this Court in W.P.No.2053 of 2012 declined to grant any interim direction, it may be true that the respondent No.3 cannot be continued as Principal FAC any longer. If the petitioner is aggrieved by the action of the official respondents in continuing the respondent No.3 in Full Additional Charge of the post of Principal beyond the period mentioned in the order dated 28.05.2010 or in alleged violation of the provisions of FR.49, may be the remedy lies else where, however, in our considered opinion no Writ of Quo Warranto can be issued on that ground.
At the cost of repetition, it may be stated that the respondent No.3 is being continued only in Full Additional Charge of the post of Principal in which he was placed for a prescribed period but not against an independent substantive public office. The mere fact that the respondent No.3 is continuing in Full Additional Charge of the post of Principal even after the expiry of the period prescribed in the order dated 28.5.2010, according to us, cannot be a valid ground for issuing a Writ of Quo Warranto.Therefore, the learned Single Judge cannot be said to have erred in declining to issue a Writ of Quo Warranto.
So far as the contentions made before us by the learned counsel for the appellant that certain statements recorded by the learned Single Judge in the order under appeal are not correct and there is also a discrepancy in the result of the writ petition are concerned, it appears to us that the proper course could have been to file a review petition for rectification/clarification and it is not an issue which can be gone into in this appeal.Hence, we are not inclined to express any opinion on the said contentions.
For the aforesaid reasons, the interference with the order under appeal is not warranted. Accordingly, the Writ Appeal is dismissed. No costs.