MOHAN SINGH BORA V. UNION OF INDIA and OTHERS

WPPIL/71/2010

AI Insights

The case revolves around a public interest litigation filed by Mohan Singh Bora against Shri Subhash Kumar, challenging his appointment as Chief Secretary of Uttarakhand. The petitioner argued that the appointment was made without legal authority and violated the Indian Administrative Service (Pay) Rules, 2007, specifically concerning the lack of mandatory prior concurrence for promotions. The respondents, including the State and Central Governments, defended the appointment, asserting it was lawful and followed due process. The court examined the procedural adherence to the rules governing the appointment and promotion of IAS officers, particularly focusing on the requirements for vacancies and promotions in the Chief Secretary's grade.

• Counselvise Citation: [2010] 140 COUNSELVISE.COM (IT) 742085 (HC-UTTARAKHAND)
• Appeal Type: Others
• Pronouncement Date: 24-12-2010
• Assessment Year: misc
• Other Referred Cases: N. Kannadasan Vs. Ajoy Khose and Others, High Court of Gujarat Vs. Gujarat Kishan Mazdoor Panchayat, R.K. Jain Vs. Union of India, Duryodhan Sahu (Dr.) Vs. Jitendra Kumar Mishra, Kashinath G. Jalmi (Dr.) Vs. Speaker, B.R. Kapur Vs. State of Tamilnadu, Dr. Duryodhan Sahu and others Vs. Jitendra Kumar Mishra and others, Ranjit Prasad Vs. Union of India and others, Ghulam Qadir Vs. Special Tribunal, Balco Employees' Union (Regd.) Vs. Union of India and others, Ashok Kumar Pandey Vs. State of West Bengal, B. Singh (Dr.) Vs. Union of India, Dattaraj Nathuji Thaware Vs. State of Maharashtra and others, R & M Trust Vs. Koramangala Residents Vigilance Group and others, Gurpal Singh Vs. State of Punjab and others, B. Srinivasa Reddy Vs. Karnataka Urban Water Supply & Drainage Board Employees' Association
• Laws Referred To: Indian Administrative Service (Pay) Rules, 2007, India Services Act, 1951
• Result in Favour of: Revenue
• Court: HIGH COURT
• Department Lawyers: S N BABULKAR; B D UPADHYAYA; V B S NEGI
• Assessee Lawyers: ANIL TEWARI; APOORVA TEWARI; PRAKAR MISHRA; PRADEEP HAIRIYA
• Keywords: Promotion; Public Interest Litigation; Writ of Quo Warranto; Chief Secretary; Illegal Usurpation; Good Governance
• Section: 3(1); 8(2); 3(2)(ii); 8(3); 9(7); 3(2)(i); 3(2)(iii)

Judgement Text

"IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Public Interest Litigation No. 71 of 2010 Mohan Singh Bora S/o Late Ganga Singh Bora ..……… Petitioner Versus Union of India and others ……… Respondents Mr. Anil Kumar Tewari, Senior Advocate assisted by Mr. Apoorva Tewari, Mr. Prakar Mishra and Mr. Pradeep Hairiya, Advocates for the petitioner. Mr. S.N. Babulkar, Advocate General assisted by Mr. B.D. Upadhyaya, Addl. Advocate General for the respondent Nos. 2 and 3 / State. Mr. V.B.S. Negi, Asstt. Solicitor General for the respondent No. 1/ Union of India. Hon’ble Tarun Agarwala, J. Hon’ble V.K. Bist, J. (Delivered by Hon’ble Tarun Agarwala, J. The present writ petition has been filed in the nature of a public interest litigation seeking a writ of quo-warranto against Shri Subhash Kumar, respondent No.5 contending that he has illegally usurped the office of Chief Secretary, Government of Uttarakhand. The petitioner has also prayed for the quashing of the order dated 31st May, 2010 whereby the respondent No.5 has been promoted to the Chief Secretary’s Grade as well as the order dated 12th September, 2010 by which the respondent No. 5 has been appointed as the Chief Secretary of Government of Uttarakhand. The facts leading to the filing of the petition is, that the petitioner contends that he is a resident of Haldwani and is an agriculturist and has also extensive business interest. The petitioner contends that he is a regular income tax assessee and also a social activist and a staunch believer in the rule of law and has espoused all such causes for good governance for the benefit of the public at large. The petitioner contends that he currently holds the office of President of the Uttarakhand Cricket Board and is also the Manager of Mahatma Gandhi Inter College, Haldwani. The petitioner contends that being a citizen of Uttarakhand, he is 2 deeply interested in ensuring that the Government of Uttarakhand maintains the highest standards of probity and good governance. The petitioner contends that the office of the Chief Secretary in any State Government of the Country is a coveted public office and that the person who holds the post of the Chief Secretary is the head of the bureaucracy and, in that capacity, forms the bulwark of the independence of the permanent Government of any State. The petitioner contends that the appointment of respondent No. 5 as the Chief Secretary is without any authority of law and that the promotion granted to respondent No.5 in the Chief Secretary’s grade of pay was void abinitio and was granted without the mandatory prior concurrence as required under Rule 3 (2) (ii) of the Indian Administrative Service (Pay) Rules, 2007. The petitioner contends that the respondent No. 5 has usurped the public office of Chief Secretary without any authority of law and, therefore, has filed the present writ petition praying for a writ of quo-warranto. To support the contention, the service condition which governs the appointment and promotion of an I.A.S. officer on various posts is governed by India Services Act, 1951 and Indian Administrative Service (Pay) Rules, 2007 (hereinafter referred to as the Rules of 2007) vide notification dated 20th March, 2007 has been relied upon. Under the Rules of 2007, Rule 2 (m) defines promotion as under :- “ ‘promotion’ means appointment of a member of the Service to the next higher grade over the one in which he is serving at the relevant time” Rule 3 provides the scale of pay and appointment in these grades. Rule 3 (1) relates to above Super Time Scale. Clause (ii) thereof gives the pay scale as Rs.26,000/- (fixed) w.e.f. 1st 3 January, 1996. This pay scale has now been revised to Rs. 80,000/- under the 6th Pay Commission. Rule 3 (2) (i), (ii) and (iii) provides as under :- “(2) (i) Appointment to the Selection Grade and to posts carrying pay above this grade in the Indian Administrative Service shall be made by selection on merit, as per criteria that may be prescribed by the Central Government, with due regard to seniority: Provided that a member of the Service shall be appointed to the Super Time Scale only after he has completed phase IV mandatory Mid Career Training as prescribed. (ii) Appointment of a member of the Service in the scales of Selection Grade and above shall be subject to availability of vacancies in these grades and for this purpose, it shall be mandatory upon the State Cadres or the Joint Cadre Authorities, as the case may be, to seek prior concurrence of the Central Government on the number of available vacancies in each grade. (iii) The Central Government shall accord such concurrence within a period of thirty days from the date of receipt of such references and if the Central Government does not accord concurrence within a period of said thirty days, the concurrence on availability of vacancies shall be deemed to have been accorded. The position emanating as referred to this clause shall be placed before the Screening Committee at the time it meets to consider promotion in these grades.” A perusal of the aforesaid Rules indicates that appointment to the Selection Grade shall be made by selection on merit as per the criteria that may be prescribed by the Central Govt. with due regard to seniority and shall be made subject to availability of a vacancy. It further contemplates that it shall be mandatory upon the State Cadre to seek prior concurrence of the Central Govt. on the number of available vacancies in each grade. Sub-clause (iii) of Sub-rule (2) of Rule 3 further provides that the Central Govt. shall accord such concurrence within a period of thirty days from the date of the receipt of such reference and if the Central Govt. does not accord concurrence within the said period, the 4 concurrence on the availability of vacancies shall be deemed to have been accorded by the Central Govt. The fixation of the cadre strength in the Government of Uttarakhand has been made by the Central Govt. in consultation with the Government of Uttarakhand pursuant to which the Indian Administrative Service (Fixation of Cadre Strength) Sixth Amendment Regulations, 2004 was issued by a notification dated 04/10/2004 (hereinafter referred to as the Regulations of 2004). Under these Regulations, two cadre posts have been fixed in the pay scale of Rs. 26,000/-, namely, the post of Chief Secretary and the post of Director General, Uttarakhand Administrative Academy, Nainital. In addition to the cadre posts, 13 posts known as State Deputation Reserves have been provided under the Regulation 8 of the aforesaid Regulations of 1954. Cadre and ex- cadre posts are required to be filled up by a cadre officer. Under Sub-rule (2) of Regulation 8, a cadre officer will not hold an ex- cadre post in excess of the number specified in the concerned State. Under the Sub-clause (3) of Regulation 8, the State Govt. may with the prior approval of the Central Govt. appoint a cadre officer to hold an ex-cadre post in excess of the number specified in the State. For facility, Regulation 8 of the Regulation of 1954 is quoted hereunder:- “8. Cadre and ex-cadre posts to be filled by cadre officers - (1) Save as otherwise provided in these rules every cadre post shall be filled by a cadre officer. (2) A cadre officer shall not hold an ex-cadre post in excess of the number specified for the concerned State under item 5 of the Schedule to the Indian Administrative Service (Fixation of Cadre Strength) Regulation, 1955. (3) The State Government may, with the prior approval of the Central Government appoint a cadre officer 5 to hold an ex-cadre post in excess of the number specified for the concerned State in item 5 of the Schedule to the Indian Administrative Service (Fixation of Cadre Strength) Regulations, 1955 and for so long as the approval of the Central Government remains in force, the said ex-cadre post shall be deemed to be an addition to the number specified in item 5 of the said Schedule.” In the light of the aforesaid, Rule 9 (7) of Rules of 2007 contemplates as follows :- “(7) At no time the number of members of the Service appointed to hold posts, other than cadre posts referred to in Sub-rule (1) and sub-rule (4), which carry pay of Rs. 26,000/- per mensem and which are reckoned against the State Deputation Reserve, shall except with the prior approval of the Central Government, exceed the number of cadre posts at that level of pay in the State Cadre or, as the case may be, in a Joint cadre.” In the light of the aforesaid provisions, the vehement contention of the petitioner is that the respondent No. 5 has been given the Chief Secretary grade in excess of the posts approved by the Central Govt., meaning thereby, that the respondent No. 5 has been promoted in the Chief Secretary’s grade which was not in existence and prior approval was not taken from the Central Govt. and, consequently, the subsequent appointment of respondent No. 5 on the post of Chief Secretary was void ab-initio. In this regard, the petitioner has placed various letters issued by the Government of India with regard to the determination of the vacancies and seeking prior approval of the Central Govt. Such letters are dated 28th March, 2007, 25th March, 2008 and 19th June, 2008. In the 6 letter dated 28th March, 2007 issued by the Central Govt., it has been stated as under:- “(c) A new provision has also been added in Rule 3 (2) (ii) of the IAS (Pay) Rules 2007, stating that appointments of officers in the Scales of Selection Grade and above shall be subject to availability of vacancies in these grades and for this purpose, it shall be mandatory upon the State Cadre or the Joint Cadre Authorities, as the case may be, to seek prior concurrence of the Central Government on the number of available vacancies in each grade. The provision was required for better cadre management of the service as it was noticed by experience that the State Governments were often making promotions in their respective cadres beyond the number of available vacancies in various grades.” Similar directions were reiterated in the subsequent letters. It transpires that the State Government of Uttarakhand wrote a letter dated 3rd September, 2008 to the Secretary, Government of India, Department of Personnel & Training, New Delhi with regard to the confirmation of vacancies in the Chief Secretary’s scale under Rule 3 (2) (ii) of Rules of 2007 indicating that the total sanctioned cadre post in the Chief Secretary’s scale was two as per the notification dated 4th October, 2004 and that the State Govt. had decided to create two ex-cadre posts in the above scale under Rule 9 (7) of Rules of 2007 and, therefore, requested the Govt. of India to confirm the two vacancies for promotion in the scale of Rs. 26,000/-. Pursuant to the said letter, the Government of India, Ministry of Personnel, Public Grievances and Pensions, Department of Personnel and Training, New Delhi vide letter dated 19th September, 2008 gave 7 concurrence to the availability of two vacancies in the pay scale of Rs. 26,000/- under Rule 3 (2) (ii) and (iii) of the Rules of 2007 pursuant to the request of the Government dated 3rd September, 2008. The respondent No. 4 Shri N.S. Napalchayal was functioning as the Chief Secretary of Government of Uttarakhand and was due to retire on 30th April, 2010. Pursuant to the guidelines for promotion in the I.A.S. cadre issued by the Department of Personnel and Training, Govt. of India, New Delhi, a selection committee met on 19th February, 2010 and found that there were two cadre posts in the grade of Chief Secretary and that two ex-cadre posts were created by the State Govt. and that the Government of India vide letter dated 19th September, 2008 gave its concurrence to the availability of two vacancies. The committee recommended the name of four persons for the Chief Secretary grade in the pay scale of Rs. 26,000/-. The State Govt. by an order dated 31st May, 2010, promoted respondent No. 5 in the Chief Secretary’s grade of pay of Rs.26,000/-, which has now been revised to Rs. 80,000/-. The respondent No.4 was functioning as the Chief Secretary and was due to retire on 30th April, 2010. The service of respondent No.4 was, however, extended for a period of six months by an order dated 29th March, 2010. The respondent No.4 continued to function as the Chief Secretary but subsequently took voluntary retirement on 12th September, 2010 even though his extension was to continue till 31st October, 2010. The State Govt. allowed Shri N.S. Napalchayal to retire voluntarily on 12th September, 2010 and by an order dated 12th September, 2010 appointed respondent No. 5 as the Chief Secretary. In the light of the aforesaid, the petitioner contends that the appointment of respondent No. 5 as Chief Secretary was contrary to the Rules. The petitioner contends that in the absence of 8 mandatory prior concurrence under Rule 3 (2) (ii) of Rules of 2007, the respondent No. 5 could not have been promoted in the Chief Secretary’s grade of pay, since the said promotion was contrary to the Rules and the respondent No. 5 could not be appointed as the Chief Secretary by a subsequent order. The petitioner contended that the entire process of promotion of respondent No. 5 to the Chief Secretary’s grade of pay was made on account of incorrect determination of vacancy only to confer benefit upon respondent No. 5 and that the process of selection was carried out in an opaque and arbitrary manner. The writ petition was opposed by the learned Advocate General contending that the writ petition was not maintainable on the ground that the issue raised and the relief claimed in fact relates to a service matter and, consequently, a writ in the nature of public interest litigation or a writ of quo warranto could not be filed and that a person in the cadre of service could be an aggrieved person who would be free to challenge the appointment of the respondent No. 5 as Chief Secretary by bringing in an independent writ petition by filing a claim petition before the Central Administrative Tribunal. The Advocate General further contended that, in this regard, one of the aggrieved IAS officer, Shri A.K. Joshi had already filed a claim petition before the Central Administrative Tribunal challenging the promotion of respondent No.5 in the Chief Secretary’s grade of pay and the consequential appointment of respondent No.5 on the post of Chief Secretary which is pending consideration. The learned Advocate General further contended that since no stay order was granted by the Tribunal, the present writ petition has been filed in the garb of public interest litigation. The learned Advocate General contended that the promotion of respondent No. 5 in the Chief Secretary’s pay was done in accordance with the Rules and after seeking the concurrence from the Govt. of India and, 9 consequently, the appointment of respondent No. 5 as Chief Secretary lies within the domain of Chief Minister / State Govt. which appointment has been made in accordance with the law. On the other hand, the petitioner urged that the challenge made in the writ petition cannot be termed as a service matter since the petitioner is not claiming any appointment on the post of Chief Secretary nor challenging the selection and appointment of respondent No. 5 by making a comparison of merit of any candidate with respondent No.5. The petitioner is, however, questioning the entire governance of the State where a person is being promoted on a post which does not exist, for which, no prior concurrence has been asked from the Central Govt. The learned counsel for the petitioner submitted that it is not a simple dispute of a service matter but an issue in larger public interest in the governance of the entire State and, consequently, the writ petition is maintainable and the petitioner has a locus standi to bring this petition in public interest. We have heard Mr. Anil Kumar Tewari, Senior Advocate assisted by Mr. Apoorva Tewari, Mr. Prakar Mishra and Mr. Pradeep Hairiya, Advocates for the petitioner, Mr. S.N. Babulkar, Advocate General assisted by Mr. B.D. Upadhyaya, Addl. Advocate General for the respondent Nos. 2 and 3 / State and Mr. V.B.S. Negi, Asstt. Solicitor General for the respondent No. 1/ Union of India. In Halsbury’s laws of England, 3rd Edition, Vol. 11 p/145, it has been held :- “\"An information in the nature of a quo warranto took the place of the obsolete writ of quo warranto which lay against a person who claimed or usurped an office, franchise, or liberty, to inquire by what authority he supported his claim, 10 in order that the right to the office or franchise might be determined.” In N. Kannadasan Vs. Ajoy Khose and Others, (2009) 7 SCC 1, it has been held :- “132. In Corpus Juris Secundum [74 C.J.S. Quo Warranto § 14], “Quo Warranto” is defined as under: “Quo warranto, or a proceeding in the nature thereof, is a proper and appropriate remedy to test the right or title to an office, and to remove or oust an incumbent. It is prosecuted by the State against a person who unlawfully usurps, intrudes, or holds a public office. The relator must establish that the office is being unlawfully held and exercised by the respondent, and that relator is entitled to the office.” 133. In Law Lexicon by J.J.S. Wharton, Esq., 1987, “Quo Warranto” has been defined as under: “QUO WARRANTO, a writ issuable out of the Queen’s Bench, in the nature of a writ of right, for the Crown, against him who claims or usurps any office, franchise, or liberty, to enquire by what authority he supports his claim, in order to determine the right. It lies also in case of non- user, or long neglect of a franchise, or misuser or abuse of it; being a writ commanding the defendant to show by what warrant he exercises such a franchise having never had any grant of it, or having forfeited it by neglect or abuse.” In the light of the aforesaid, a writ of quo warranto can be issued when the holder of a pubic office has been appointed in violation of constitutional and statutory provisions. Consequently, a judicial review for the purpose of issuance of writ of quo warranto would lie, in the event the holder of a public office was not eligible for appointment. In N. Kannadasan (Supra), the Supreme Court held :- “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 11 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 indisputably 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” If the appointment is contrary to the statutory rules, a writ of quo warranto could be issued as held by the Supreme Court in the High Court of Gujarat Vs. Gujarat Kishan Mazdoor Panchayat (2003) 4 SCC 712, R.K. Jain Vs. Union of India (1993) 4 SCC 119, Duryodhan Sahu (Dr.) Vs. Jitendra Kumar Mishra (1998) 7 SCC 273. In Kashinath G. Jalmi (Dr.) Vs. Speaker (1993) 2 SCC 703, the Supreme Court held that the purpose for issuance of a writ of quo-warranto was necessary to prevent the continuance of the usurpation of office or perpetuation of an illegality. In B.R. Kapur Vs. State of Tamilnadu, (2001) 7 SCC 231, the Supreme Court held that a writ of quo warranto would lie against a person who according to the relator is not entitled to hold an office of public nature and is only a usurper of the office and that the challenge could be made on various grounds, such as, that the possessor of the office does not fulfill the required qualifications or suffers from any disqualification, which debars the person to hold such office. 12 In Dr. Duryodhan Sahu and others Vs. Jitendra Kumar Mishra and others (1998) 7 SCC 273, a total stranger had filed the petition before the Central Administrative Tribunal in the nature of public interest litigation questioning the appointment of another person as a Junior Teacher and further prayed that the government should be restrained from appointing any candidate as a Lecturer without requisite qualification. The sum and substance of the allegation was that the person so appointed did not possess the qualification prescribed for the post of Lecturer. The Supreme Court held that a private citizen or a stranger had no existing right to any post and who was not intrinsically concerned with any service matter and, consequently, was not entitled to approach the Tribunal. In Ranjit Prasad Vs. Union of India and others (2000) 9 SCC 313, the Supreme Court held that the scope of locus standi had been widened by the Court through its various decisions in the field of public interest litigation. The Supreme Court held:- “But a mere busybody who has no interest cannot invoke the jurisdiction of the court. In respect of departmental proceedings which are initiated or sought to be initiated by the Government against its employees, a person who is not even remotely connected with those proceedings cannot challenge any aspect of the departmental proceedings or action by filing a writ petition in the High Court or in this Court. Disciplinary action against an employee is taken by the Government for various reasons principally for “misconduct” on the part of the employee. This action is taken after a “domestic” inquiry in which the employee is provided an opportunity of hearing as required by the constitutional mandate. It is essentially a matter between the employer and the employee, and a stranger, much less a practising advocate, cannot be said to have any interest in those proceedings. Public interest of general importance is not involved in disciplinary proceedings. In fact, if such petitions are entertained at the instance of persons who are not connected with those proceedings, it would amount to an abuse of the process of court.” 13 In Ghulam Qadir Vs. Special Tribunal, (2002) 1 SCC 33, the Supreme Court held that the orthodox rule of interpretation regarding the locus standi of a person to reach the court had undergone a sea change with the development of law and that the courts have adopted a liberal approach and if the court is satisfied that the impugned action adversely affected the right of a person, a petition could be filed by that person which would not be rejected on the ground of his not having a locus standi. In Balco Employees’ Union (Regd.) Vs. Union of India and others (2002) 2 SCC 333, the Supreme Court held that a public interest litigation was not meant to be adversarial in nature and was to be a cooperative and collaborative effort of the parties and the court so as to secure justice for the poor and the weaker sections of the community who were not in a position to protect their own interest. The Supreme Court held that public interest litigation was intended to mean nothing more than a litigation in the interest of the public. The extent of the jurisdiction of public interest litigation was summarized by the Supreme Court as under: “PIL may, therefore, be described as satisfying one or more of the following parameters. These are not exclusive but merely descriptive: — Where the concerns underlying a petition are not individualist but are shared widely by a large number of people (bonded labour, undertrial prisoners, prison inmates). — Where the affected persons belong to the disadvantaged sections of society (women, children, bonded labour, unorganised labour etc.). — Where judicial law making is necessary to avoid exploitation (inter-country adoption, the education of the children of the prostitutes). — Where judicial intervention is necessary for the protection of the sanctity of democratic institutions (independence of the judiciary, existence of grievances redressal forums). — Where administrative decisions related to development are harmful to the environment and jeopardize people’s right to natural resources such as air or water.” 14 In Ashok Kumar Pandey Vs. State of West Bengal (2004) 3 SCC 349, the Supreme Court held :- “Though the parameters of public interest litigation have been indicated by this Court in a large number of cases, yet unmindful of the real intentions and objectives, courts are entertaining such petitions and wasting valuable judicial time which, as noted above, could be otherwise utilized for disposal of genuine cases. Though in Duryodhan Sahu (Dr) v. Jitendra Kumar Mishra this Court held that in service matters PILs should not be entertained, the inflow of so-called PILs involving service matters continues unabated in the courts and strangely are entertained. The least the High Courts could do is to throw them out on the basis of the said decision.” The Supreme Court in B. Singh (Dr.) Vs. Union of India, (2004) 3 SCC 363 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 not 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 of the public or even of their own to protect.” The Supreme Court held that only a person who comes to the Court with a bonafide intention can have a locus to file a petition and that busybodies, meddlesome interlopers, wayfarers or officious interveners who have no public interest except for 15 personal gain or working as a proxy call for extraneous motivation or for glare of publicity are not entitled to act in the name of pro bono publico or as crusaders of justice. In Dattaraj Nathuji Thaware Vs. State of Maharashtra and others (2005) 1 SCC 590, the Supreme Court held that where a petition styled as a public interest litigation is nothing but a camouflage to foster personal dispute, the said petition should be thrown out at the very inception. In R & M Trust Vs. Koramangala Residents Vigilance Group and others (2005) 3 SCC 91, the Supreme Court held that the sacrosanct jurisdiction of public interest litigation should be invoked very sparingly and that this jurisdiction is not for such persons who seek publicity for the purpose of serving their private ends. The Supreme Court held :- “Public interest litigation is no doubt a very useful handle for redressing the grievances of the people but unfortunately lately it has been abused by some interested persons and it has brought a very bad name. Courts should be very very slow in entertaining petitions involving public interest: in very rare cases where the public at large stand to suffer. This jurisdiction is meant for the purpose of coming to the rescue of the downtrodden and not for the purpose of serving private ends. It has now become common for unscrupulous people to serve their private ends and jeopardise the rights of innocent people so as to wreak vengeance for their personal ends. This has become very handy to the developers and in matters of public contracts. In order to serve their professional rivalry they utilise the service of the innocent people or organisations in filing public interest litigation. The courts are sometimes persuaded to issue certain directions without understanding the implications and giving a handle in the hands of the authorities to misuse it. Therefore, the courts should not exercise this jurisdiction lightly but should exercise in very rare and few cases involving public interest of a large number of people who cannot afford litigation and are made to suffer at the hands of the authorities.” In Gurpal Singh Vs. State of Punjab and others (2005) 5 SCC 136, the Supreme Court held :- 16 “The scope of entertaining a petition styled as a public interest litigation, locus standi of the petitioner particularly in matters involving service of an employee has been examined by this Court in various cases. 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; (c) the information being not vague and indefinite. The information should show gravity and seriousness involved. Court has to strike 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 impostors 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 of the public or even of their own to protect. 10. Public interest litigation is a weapon which has to be used with great care and circumspection and the judiciary has to be extremely careful to see that behind the beautiful veil of public interest an ugly private malice, vested interest and/or publicity-seeking is not lurking. It is to be used as an effective weapon in the armoury of law for delivering social justice to the citizens. The attractive brand name of public interest litigation should not be allowed to be used for suspicious products of mischief. It should be aimed at redressal of genuine public wrong or public injury and not publicity- oriented or founded on personal vendetta. As indicated above, court must be careful to see that a body of persons or member of the public, who approaches the court is acting bona fide and not for personal gain or private motive or political motivation or other oblique consideration. The court must not allow its process to be abused for oblique considerations by masked phantoms who monitor at times from behind. Some persons with vested interest indulge in the pastime of meddling with judicial process either by force of habit or from improper motives and try to bargain for a good deal as well as to enrich themselves. Often they are actuated by a desire to win notoriety or cheap popularity. The petitions of such busybodies deserve to be thrown out by rejection at the threshold, and in appropriate cases with exemplary costs.” 17 In B. Srinivasa Reddy Vs. Karnataka Urban Water Supply & Drainage Board Employees’ Association, (2006) 11 SCC 731, the Supreme Court held that a writ of quo warranto cannot be issued unless there is a clear violation of law and in the event the non-appointee assails the legality or correctness of the action and that a third party has no locus standi to canvass the legality or correctness of the action and that public law declaration would only be made at the behest of a public spirited person coming before the court as a petitioner. The Supreme Court also held that in service jurisprudence it is only the aggrieved person who can assail the legality or correctness of the action and that a third party has no locus standi to canvass the legality or correctness of the action. The Supreme Court held : “It is settled law by a catena of decisions that the court cannot sit in judgment over the wisdom of the Government in the choice of the person to be appointed so long as the person chosen possesses the prescribed qualification and is otherwise eligible for appointment. This Court in R.K. Jain v. Union of India was pleased to hold that the evaluation of the comparative merits of the candidates would not be gone a public interest litigation and only in a proceeding initiated by an aggrieved person, may it be open to be considered. It was also held that in service jurisprudence it is settled law that it is for the aggrieved person, that is, the non-appointee to assail the legality or correctness of the action and that a third party has no locus standi to canvass the legality or correctness of the action. Further, it was declared that public law declaration would only be made at the behest of a public- spirited person coming before the court as a petitioner. Having regard to the fact that neither Respondents 1 and 2 were or could have been candidates for the post of Managing Director of the Board and the High Court could not have gone beyond the limits of quo warranto so very well delineated by a catena of decisions of this Court and applied the test which could not have been applied even in a certiorari proceedings brought before the Court by an aggrieved party who was a candidate for the post.” In the light of the aforesaid decisions, the Court finds that the issuance of a writ of quo warranto is a discretionary remedy 18 and a writ could be issued in an appropriate case in the event the appointment of a person to a high public office is found to be violative of any statutory provision. But, the question is, whether the said appointment could be questioned in a writ of quo warrranto or in a writ of certiorari. There exists a distinction in the issuance of a writ of quo warrnato and in the issuance of a writ of certiorari. The scope and ambit of these two writs are different and distinct. Whereas a writ of quo warranto could be issued on a limited ground, the considerations for issuance of a writ of certiorari are wholly different and distinct. A writ of quo warranto affords a judicial remedy by which a person holding a public office is called upon to show by what right he holds the said office and in case, the finding is that the holder of the office had no statutory right to hold the office, he could be ousted from that office by a judicial order in the nature of quo warranto. A judicial weapon is given to the Courts to control the Executive from making an appointment in a public office against law and to protect a citizen from being deprived of public office to which he has a right. Consequently, a person can file a writ of quo warranto if he satisfies the Court that the office in question is a public office and is held by a usurper without legal authority. The issuance of a writ of quo warranto is necessary to prevent the continuance of the usurpation of an office or perpetuation of an illegality. Public interest litigation is a weapon which has to be used with great care and circumspection and that the Court has to be careful to see that the genuine litigants are given the benefit of this public interest litigation. The Courts should entertain a public interest litigation where it finds that the public interest litigation relates to the poor, the ignorant, the oppressed, whose fundamental rights are infringed and violated and whose grievances are un-represented and un-heard. But public interest litigation should not be entertained and should not be allowed the 19 process of the Court to be abused by a mere busy body or meddlesome interloper who has no interest or concern except personal gain or other oblique consideration. In Dattaraj Nathuji Thaware Vs. State of Maharashtra and Others (2005) 1 SCC 590, the Supreme Court held that public interest litigation should be held for the redressal of a genuine public wrong or public injury and should not be publicity oriented or founded on personal vendetta. The Court further held that the court should not allow its process to be abused for oblique consideration by masked phantoms who monitor at times from behind. In S.P. Gupta Vs. Union of India, 1981 Supp SCC 87, the Court held as under :- “But we must be careful to see that the member of the public, who approaches the court in cases of this kind, is acting bona fide and not for personal gain or private profit or political motivation or other oblique consideration. The court must not allow its process to be abused by politicians and others to delay legitimate administrative action or to gain a political objective.” In the light of the aforesaid, the court finds that a writ of quo-warranto is a discretionary remedy and a writ of quo warranto would lie in order to prevent the continuance of usurpation of office or perpetuation of an illegality. In the present case, the Court finds that the petitioner claims himself to be a social activist and a staunch believer in the rule of law and alleges to have espoused causes for good governance for the benefit of public at large. The details of espousing such causes are lacking in the writ petition. The mere fact that the petitioner is an income tax assessee or the mere fact that he is the citizen of Uttarakhand and is interested in ensuring that the Government of Uttarakhand maintains the highest standards of probity and good governance 20 does not by itself allow the petitioner to invoke the jurisdiction of a writ in the nature of public interest litigation and / or issuance of a writ of quo warranto. We do not find that the petitioner has approached the Court with bonafide intention. One gets an uncanny feeling that the petition has been filed for oblique consideration by such persons who stand to gain, if any, at the end of the day and who are sitting on the fence and watching the proceedings. The Court finds that the requirement of locus standi of the petitioner which is mandatory has not been clearly expressed in the writ petition. No doubt, a legal action could be initiated in a Court of law in the nature of public interest litigation for the enforcement of public interest or general interest in which the public or a class of community have an interest or where their interest are affected. In the present case, the court finds that the contention of the petitioner that the promotion of respondent No.5 in the pay scale of Chief Secretary’s grade was made without authority of law and without prior concurrence from the Govt. of India prima-facie does not appear to be correct. From a perusal of the material placed in the writ petition, we find that the State Govt. had issued a letter dated 3rd September, 2008 to the Central Govt. to confirm the number of vacancies in the Chief Secretary’s grade and further intimated the Central Govt. that the State Govt. had created two additional ex-cadre posts. In response to the said letter, the Central Govt. gave concurrence to two vacancies by its letter dated 19th September, 2008. In the light of the two letters, the Court prima-facie finds that the State Govt. had sought creation of two ex-cadre posts in the year 2008 whereas respondent No.5 was promoted in the Chief Secretary’s pay by an order dated 31st May, 2010. Consequently, the contention of the petitioner that the determination of vacancies made in the year 2008 was only made to confer benefit to respondent No.5 appears to be farfetched. The 21 contention of the petitioner that the mandatory prior concurrence was not obtained by the State Govt. from the Central Govt. also does not appear to be correct. The fact as to whether the Central Govt. gave confirmation of the vacancies in the Chief Secretary’s pay scale by its letter dated 19th September, 2008 was in relation to the existing vacancies or whether it gave concurrence to the demand of the State Govt. to create to ex-cadre posts is a question which is under consideration before the Tribunal in a petition filed by an aggrieved person. Consequently, we are not inclined to dwell on that aspect but prima-facie we are of the opinion that in the light of Rule 3 of the Rules of 2007 and Rule 8 of the Regulation of 1954 read with the letters of the State Govt. dated 3rd September, 2008 and the reply of the Central Govt. by its letter of 19th September, 2008, the Court is of the opinion that prima- facie it does not appear that the promotion of respondent No.5 in the Chief Secretary’s grade and his subsequent appointment as Chief Secretary was made without authority of law or that the promotion of respondent No. 5 was in violation of Rule 3 (2) (ii) of the Rules of 2007. The question whether the number of vacancies determined by the State Govt. was correct or incorrect are all questions which can be decided in the claim application filed by the aggrieved person. Accordingly, the Court is of the opinion that the present writ petition appears to be misconceived since the Court finds that it is not aimed for the redressal of a genuine public wrong or public injury but appears to have been filed for oblique consideration by interested persons who are sitting on the fence and monitoring the proceedings from behind. Since the Court does not find that the order of promotion of respondent No.5 in the grade of Chief Secretary and his subsequent appointment on the post of Chief Secretary amounts to usurpation of office, this court 22 is not inclined to entertain the present writ petition for issuing a writ of quo warranto. In the light of the aforesaid, the petition fails and is dismissed summarily. (V.K. Bist, J.) (Tarun Agarwala, J.) Date: 24/12/2010 Shiv "