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Judgment
Sahidullah Munshi, J
This mandamus appeal at the instance of the writ petitioner is against the judgment and order dated 5th December, 2017, passed in W.P. No.223 of 2016. By the judgment and order impugned, the learned Single Judge has dismissed the writ petition holding that the challenge made in the writ petition that appointment of private respondent nos.5, 6 and 7 as Principals of the three Government schools on the ground that the said appointments were made de hors the recruitment rules notified on 8th February, 1995, has no merit. It is undisputed that in terms of the recruitment rules for the post of Principal the essential requisite qualifications and teaching experience are Masters Degree from recognized Universities, Degree on equivalent Diploma in Teaching/Education from a recognized University/Institution. The grievance in the writ petition as ventilated by the petitioner is that all the three private respondents were considered for appointment to the post of Principal although, admittedly, none of the said persons had requisite qualification, that is to say, Degree course of three years. It was contended by the petitioners that in the event a candidate completed Degree course of two years and thereafter, admitted to Masters Degree and obtained a Degree in M.A. or equivalent, according to relevant circulars of University Grants Commission (UGC), he is required to undergo one-year bridge course so as to be considered eligible for Masters Degree programme. It is the specific contention of the writ petitioner that all the private respondents obtained Masters Degree after graduating for two years, not three years and, therefore, they should have undergone the bridge course of one year according to the requirement of the University Grants Commission. Petitioner pointed out before the trial Judge that in absence of such bridge course their appointment itself as Principal of the concerned schools cannot subsist consequently, the petitioner's service should not be allowed to continue. It is submitted by the petitioners that since requisite Degree was not available to the private respondents and since the authority recruited them even without proper Degree, it was a fit case before the trial Judge for a writ of quo-warranto thereby, setting aside the order of appointment. The prayer has been made coupled with other facts available in the writ petition that the Lieutenant Governor failed to discharge its duty by not making proper scrutiny before appointing the private respondents in the posts concerned, rather the authority has invoked the discretion of granting relaxation taking advantage of recruitment rules dated 8th February, 1995. Rule 8(1) says :
"8(1). Qualifications are relaxable at the discretion of UPSC in case of candidates otherwise when qualified."
Rule 5 of the said recruitment rules dated 8th February, 1995 also says:
"5. Power to relax :- Where the Lieutenant Governor (Administrator), Andaman and Nicobar Islands of the opinion that it is necessary or expedient so to do, it may, by order, for reasons to be recorded in writing, and in consultation with the Union Public Service Commission, relax any of the provisions of these rules with respect to any class or category of persons or posts."
Learned Single Judge held that the issue in the writ petition was whether in absence of candidates completing one year's bridge course irrespective of the fact that each of the candidates is having a Masters Degree would be a disqualification for consideration for the post of Principals in Government schools where the initial appointment to their respective posts with a two-year Degree course certificate is not under challenge. It is not disputed that respondent no.5, had the requisite qualification on the day of consideration. Therefore, much about respondent no.5 need not be discussed in this appeal. It has been clarified by the UGC in its letter dated 17th August, 2015 that students who had enrolled themselves in the first Degree course prior to 4th June, 1986 and students who had successfully completed their first Degree course, prior to June 4, 1986 irrespective of their duration shall be treated at par with the students who completed three years' Degree course and they are not required to undergo a further one-year bridge course. Therefore, degree obtained prior to 4th June, 1986 like the respondent no.5 and the Degree awarded to the students enrolled prior to June, 1986 shall be treated valid for all purposes including admission to Masters Degree programme, other higher studies and needless to say, it includes employment. In the present case, the respondent no.5 was, admittedly, enrolled in the first Degree course prior to 4th June, 1986 since he obtained his two years' Bachelors Degree in the year 1987, respondent no.5 was thus, not required to undergo 'bridge course' as per the UGC Regulation. The respondent no.5, therefore, had the requisite qualification at the time of his consideration and his service was duly verified by the competent authority of Union Public Service Commission and Education Department, Andaman & Nicobar Administration and being found fit he was appointed as Deputy Education Officer under Andaman & Nicobar Administration. There is no difficulty for the said respondent no.5 to continue in the said post.
We are only concerned with the appointment of respondent nos. 6 and 7 as also their required qualification. Learned Single Judge has held that the Universities, in which the said private respondents were enrolled for pursuing their Masters Degree, were duly recognized by the UGC and they are all approved under the Distance Education Council. A deemed relaxation clause in 1985 regulation in case of any doubt would come into operation and it has to be presumed that rigor of three years' course has been relaxed in respect of the said Universities unless there are cogent reasons for disproving such presumptions. Learned Judge further held that the essential qualification for the recruitment to the post in question is Masters Degree from a recognized University and all the candidates had their Masters Degree from recognised Universities. Therefore, according to the learned Single Judge, it is inconsequential that such candidates pursued their Bachelors Degree having duration of two years or three years. The concerned Universities permitted each of the candidates to pursue their Masters Degree, although, they pursued two-year Degree course. Learned Judge held that it is only possible under the relaxation clause and it has to be presumed unless proved otherwise that such Universities have admitted the said candidates being allowed to do so by the UPSC. According to the learned Single Judge, it is not alleged that such Degrees were obtained by practising fraud and writ petitioner cannot dig the past record of almost 25 years to persuade this scope to hold at this stage that acquisition of Masters Degree could not be considered as an eligibility criterion. On this consideration, the learned Single Judge held that the writ petition cannot succeed and, accordingly, it was dismissed holding, inter alia, that the private respondents successfully completed their Masters Degree from UGC which is essential qualification required for consideration for the post in question.
It is the specific case in the writ petition that respondent no.6, Shri Suresh Kumar after completing his schooling in 1987 completed his B.A. degree from Pondicherry University in the year 1989 and after having done two years B.A. degree course in the year 1990 respondent no.6 completed his B.Ed. from Pondicherry University and lastly on 16.11.1990 he was appointed to the post of Primary School teacher. He completed his M.A. degree in the year 1993 from Annamalai University while continuing in service through distance education. Fact which emerges out that respondent no. 6 has done two years degree course and did not undergo the 'Bridge Course' of one year duration prior to pursuing Masters Degree. Such fact is evident from Annexure P-9 which is an Annual Confidential Report of the respondent no.6. Similar is the case in respect of the respondent no.7 Smt. S.M. Sangeeta Chand who after her schooling in 1987 completed B.A. degree from Pondicherry University in 1989 and after completion of two year B.A. degree course in 1990 she completed B.Ed from Pondicherry University. She was also appointed to the post of Graduate trained teacher on 16.11.1990 and thereafter, she completed her M.A. degree in 1994 from Barkatullah University while continuing in service through distance education. Such details of respondent no.7 are evident from Annual Confidential Report being Annexure P-10. In such background the petitioner demands that both respondent nos. 6 & 7 fall short of requisite qualification to qualify the post of Principal as per the advertisement made by the Union Public Service Commission on 26th June, 2010 inasmuch as this opposed the circular no.F1117/83(CP) dated 25.11.1985 (Annexure P-11) issued by the University Grants Commission in short 'UGC Regulation, 1985' regarding minimum standards of consideration for the grant of first degree through formal education. The said circular came into force on 4th June, 1986. Admittedly, both the respondent nos. 6 & 7 completed B.A. degree from Pondicherry University in the year 1989 much after the aforesaid circular of 1985.
Affidavit-in-opposition to the writ petition has been used on behalf of the respondent nos. 1, 3 & 4, that is, Lieutenant Governor, Andaman & Nicobar Islands; Chief Secretary, Andaman & Nicobar Administration and the Secretary cum Director (Education), Andaman & Nicobar Administration. In the said affidavit it has been disclosed that out of a total of 275 applications for a declared five un-reserved posts of Principal (SSS)/Lecturer (SEE) Deputy Education Officer/Deputy Director (AE) in the Directorate of Education 32 candidates were short listed for interview which was to be held on 9th & 10th May, 2011 at Port Blair. Out of 632 candidates 28 candidates only appeared before the interview board and Commission recommended five candidates of which we are presently concerned with Shri Suresh Kumar and Ms. S.M. Sangeeta Chand respectively the respondent nos. 6 & 7. According to the said respondent nos. 1, 3 & 4 UPSC recommended the names of the said five persons including the private respondent nos. 6 & 7 and on the basis of such recommendation Andaman & Nicobar Administration, that is, respondent no.1 issued appointment letter to the respondent nos. 6 & 7. Reference here may be made to the letter dated 6th July, 2011 issued from the Office of Union Public Service Commission which speaks that the appointment so made were provisional and subject to final outcome of several original applications filed before the Central Administrative Tribunal. Such condition has also clearly been mentioned in the offer of appointment to the post of Principal vide letter dated 25th July, 2011 (Annexure P-4) to the writ petition which speaks of the appointment to the post of Principal being provisional and subject to final outcome of the several original applications including SH. Yohannan Sanjeevan and Ms. Bindu Verma then pending in the Hon'ble Central Administrative Tribunal, Calcutta.
Be that as it may, the Assistant Secretary (Edn) Andaman & Nicobar Administration, however, issued order no. 1491 dated 13th -14th May, 2015 and confirmed the appointment of respondent nos. 6 & 7 with effect from 29th July, 2012. From paragraph 23 of the affidavit-in-opposition it appears that the respondents have mentioned that the cases pending earlier were either dismissed or disposed of by the Hon'ble Tribunal and therefore, there was no impediment for the respondents to confirm the service of private respondents to the post of Principal.
Record, however, reveals that by an order dated 14.08.2012 by a common order the original applications were disposed of. The Original Applications those were filed are OA No. 69/A&N/2011 (Sh. Balbir Singh -Vs. - UOI and Ors.); OA No.70/A&N/2011 (Ms. Archana Singh -Vs. - UOI and Ors.); OA No. 71/A&N/2011 (Ms. Poonam Lal -Vs. - UOI and Ors.) and OA No. 72/A&N/2011 (SH. Yohannan Sanjeevan and Ms. Bindu Verma -Vs. - UOI and Ors.) and three thereof being O.A. Nos. 69, 70 and 71 were dismissed by order dated 23.08.2012, of Central Administrative Tribunal, Calcutta Bench at Port Blair with liberty to file appropriate cases. This withdrawal was made after the order dated 14.08.2012 was passed by the Tribunal holding that since the selected candidates were not impleaded their applications for amendment under M.A. No. 17, 18 and 19 were dismissed. The only writ petition, that is, O.A. No. 72/A&N which was pending, was also disposed of by an order dated 29th January, 2013 by the High Court at Calcutta Circuit Bench of Port Blair in W.P.C.T. No. 183 of 2012 (Mr. SH. Yohannan Sanjeevan -Vs. - Union of India and Ors.). The petition on which the said order was passed relates to non-consideration of the petitioner's candidature.
However, the UPSC was directed to consider the claim if it was satisfied otherwise. While disposing of the said Tribunal applications the Hon'ble Court observed "We abundantly make it clear that appointment given to the successful candidates must not be disturbed." We do not fine any further challenge to this order of High Court. Now the question which we are going to decide whether the candidates who joined the post after being recommended and appointed by the Union Public Service Commission and whose appointment was confirmed by the authority whether could be termed to be successful candidate in the eye of law or not. In this background whether the appointment made in favour of the private respondents who admittedly had not gone through the bridge course as indicated in the 1985 Rules of the University Grants Commission whether can be said to have usurped the public office and whether a writ of quo-warranto is warranted in these circumstances.
This Court is aware of the legal position that a writ of quo-warranto can be issued in a limited case where a person holding the public office lacks the eligibility criteria or where the appointment is contrary to the statutory rules. The concept of locus standi which is strictly applicable to service jurisprudence for the purpose of canvassing the legality or correctness of the action should not be allowed to have any entry, because such allowance is likely to exceed the limits of quo-warranto which is impermissible. The basic purpose of a writ of quo-warranto is to confer jurisdiction on the Constitutional Courts to see that a public office is not held by usurper without any legal authority. As pointed out by the learned Single Judge that after 25 years the petitioner cannot be allowed to look for the shortcoming on the part of the post holder, though this Court respectfully disagree with the view so taken, holds that the principle of doctrine of delay and laches should not be allowed to play because the person holds the office is a public office and when he holds such an office as a usurper, continuance in such an office of such a usurper is to be prevented by the Court at any cost. The Court is required to see that the larger public interest and the basic concept pertaining to good governance are not thrown out. The Hon'ble Apex Court in Central Electricity Supply Utility of Odisha -Vs. - Dhobei Sahoo & Ors., reported in AIR 2014 SC 246 observed in paragraph 20 of the said decision as quoted below :
"20. Ordinarily, after so stating we would have proceeded to scan the anatomy of the Act, the Rules, the concept of the Scheme under the Act and other facets but we have thought it imperative to revisit certain authorities pertaining to public interest litigation, its abuses and the way sometimes the courts perceive the entire spectrum. It is an ingenious and adroit innovation of the judge-made law within the constitutional parameters and serves as a weapon for certain purposes. It is regarded as a weapon to mitigate grievances of the poor and the marginalized sections of the society and to check the abuse of power at the hands of the Executive and further to see that the necessitous law and order situation, which is the duty of the State, is properly sustained, the people in impecuniosity do not die of hunger, national economy is not jeopardized; rule of law is not imperiled; human rights are not endangered, and probity, transparency and integrity in the governance remain in a constant state of stability. The use of the said weapon has to be done with care, caution and circumspection. We have a reason to say so, as in the case at hand there has been a fallacious perception not only as regards the merits of the case but also there is an erroneous approach in issuance of direction pertaining to recovery of the sum from the holder of the post. We shall dwell upon the same at a later stage."
Undoubtedly, the procedure of quo-warranto confers jurisdiction and authority on the judiciary to control executive action being the matter of making appointments to public office against the relevant statutory provisions. Before a citizen can claim that writ of quo-warranto be issued he must satisfy the Court inter alia that the office in question is a public office and the same is held by a person without any legal authority. Further question would arise thereafter, whether the appointment of the said person has been made in accordance with law or not. So far as the person's appointment is concerned there could be any procedural infirmities. Applications were short listed, interview was held, merit list was published and thereafter, they were recommended for being appointed in the post advertised. But the basic question lies whether the private respondents lacked appropriate qualification sought for to fill up the post. Had it not been so, there would have been no room to hold that such an appointment is not illegal rather it can be said that if these two persons were not taken to the posts, definitely, persons having requisite qualifications could have competed for the said posts. Therefore, the direct effect of recruitment of these private respondents deprives the genuine two candidates. Although, we do not find any such candidate before the Court to ventilate their grievances that they have been deprived because of such procedure being adopted by the Administration or Union Public Service Commission. Therefore, in such an eventuality whether Court can again come to a conclusion that although, the action of recruitment of the private respondents does not cause any prejudice to any legally interested person, at least to no one before this Court, whether for the academic purpose only Court should take such a dogmatic view holding the appointment of the private respondents illegal and whether writ of quo-warranto gives the judiciary a weapon to control the executive from making appointment to public office against law and to protect its citizen from being deprived of public office to which he has a right. He has no such right apparently as has been sought to be agitated. Whether in such a situation the Court should be so harsh to quash the appointment and particularly when it has been mentioned by the respondents that they have been working in the post for over 25 years and the writ petition was presented before this Court only in 2016.
A three Judge Bench of the Hon'ble Supreme Court in the case of Renu & Ors. -Vs. - District and Sessions Judge, TIS Hazari Courts, Delhi & Anr. reported in AIR 2014 SC 2175 has very recently held that for issuance of writ of quo-warranto, the Court has to satisfy that the appointment is contrary to the statutory rules and the person holding the post has no right to hold it.
The circular of 1985 issued by the University Grants Commission is not merely a departmental instruction but it has got statutory force and that being so the Andaman & Nicobar Administration cannot have any occasion to overlook the same and relax the rules to suit the purpose for the Respondents. Ignorance of law cannot be an excuse but in this case ignorance has been pleaded. In a public office if somebody continues for years together, it cannot claim to have any prescriptive right because of such long continuation. The person holding the office continues it on the basis of his right vested in him on the first day of his joining the office. If selection is contrary to the statutory rules, definitely it can be said that he was continuing his office without any legal authority and if that be so the appointment so made becomes illegal. The appointment does not give any right to any individual for whatever length he continues in such post because the post is a public office which cannot be usurped by any means. Therefore, this cannot be an excuse that he applied for the post and authority recruited him bona fide and thereby allowing him to continue the post, does not give a right answer and if this is encouraged simply because long time has elapsed since after the appointment this may encourage corruption in public office to adopt unfair means to accommodate persons of lower grade of qualifications.
The Hon'ble 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 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" is apparent in the decision of N Kannadasan -Vs. - Ajay Khose and Ors. reported in 2009(7) SCC 1 (para 131).
However, the Hon'ble Supreme Court in N. Kannadasan (supra) also held that "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."
Though, there is no period of limitation for filing a writ petition, ordinarily a writ Court will be reluctant to entertain a writ petition when there is unexplained delay. But the doctrine of delay is not strictly applicable when the petitioner prays for issuance of writ of quo-warranto as the Hon'ble Supreme Court in Central Electricity Supply (supra) held that "sometimes a contention is raised pertaining to doctrine of delay and laches in filing a writ of quo-warranto. There is a difference pertaining to personal interest or individual interest on one hand and an interest by a citizen as a relator to the Court on the other. The principle of doctrine of delay and laches should not be allowed to happen because the person holds the public office as a usurper and such continuance is to be prevented by the court. The Court is required to see that the larger public interest and the basic concept pertaining to good governance are not thrown to the winds."
Private respondents filed separate affidavits-in-opposition contending, inter alia, that on 26th June, 2010 Union Public Service Commission (UPSC) published an employment notice for filling up five unreserved posts of Principals and after going through the recruitment notice published by the UPSC, the said respondents applied for the post as they had requisite qualification for the same.
According to the private respondents, they have not suppressed their qualification and at the time of short listing they passed through. The authority being satisfied with the qualification and the merits of the said respondents, issued appointment letter and they have been working in the post for over 25 years. Therefore, for no fault committed by the said private respondents, according to them, they should not be subjected to suffer any loss or penalty. In support of such submissions, the learned Counsel for the private respondents relied on the following decisions :
Rejendra Prasad Mathur - Vs. - Karnataka University & Anr., reported in 1986 SCC Supp. 740;
Tariq Islam - Vs. - Aligarh Muslim University & Ors., reported in Appeal (Civil) 7076 of 2001;
Sanatan Gauda - Vs. - Berhampur University & Ors., reported in (1990) 3 SCC 23;
Dr. M.S. Mudhol & Anr. - Vs. - S.D. Halegkar & Ors., reported in (1993) 3 SCC 591;
K.C. Sharma & Ors. - Vs. - Union of India & Ors., reported in (1997) 6 SCC 721; and
State of Uttar Pradesh & Ors. - Vs. - Arvind Kumar Srivastava & Ors., reported in (2015) 1 SCC 3547.
The decisions placed before this Court for consideration are on the same line which clarifies the scope of issuing writ of quo-warranto. The propositions in those decisions are almost on the same line. In view of the discussion earlier made and after hearing the parties and their respective submissions made through their learned Advocates, there is no doubt that the private respondents did not undergo the bridge course as per the rules of 1985 issued by the University Grants Commission. The object of the rule was to improve the shortcoming in two years degree course before getting admission to a Post-Graduate Degree for M.A., M.Sc. or M.Com. and to improve upon the shortcoming the University Grants Commission directed for undertaking the bridge course because University Grants Commission anticipated that situation like this would arise where students after completing two years' degree course would directly apply for Post-Graduation without having three years degree and, therefore, the notification was made to make them alert. However, despite such notification the administration and other concerned authorities after short listing the applications made by the deserving candidates published the merit list to those persons who did not have three years' degree course and also did not complete the bridge course. We have already held that such lacuna is not only an irregularity on the part of the administration, but it was illegal particularly in the context that several litigations in several Courts continued for a considerable length of time not at the instance of the writ petitioner but by different persons having different types of interest.
We have also considered the finding of the learned Single Judge based on the submission of the petitioner to apply the ratio in the report of Annamalai University Rep. by Registrar -Vs. - Secretary to Government Information & Tourism Department & Ors. reported in (2009) 4 SCC 590. We find that the learned Single Judge has rightly held that the said decision is distinguishable on fact.
The petitioner filed this writ petition in the year 2016 after about 25 years of service rendered by the private respondents. The order being order no.1491 was issued in 2015 and it shows that their appointments were confirmed on 29th July, 2012. No explanation, however, is available in the writ petition as to why the petitioner, although, not interested in the post where the private respondents were appointed but having a nature of public interest, moved the Court challenging the appointment and sought for a writ of quo-warranto to get the order of appointment set aside and quashed. We do not say for a moment that because of such delay writ is not maintainable or that the prayer made in the writ petition cannot be entertained having regard to the nature of the illegality pointed out in the writ petition but we hesitate to interfere with the said order of appointment clearly on the conspectus that the private respondents who were appointed as Principals did not commit any mala fide by applying for the post even without having the degree of three years' Bachelor Degree and not having done bridge course as per the 1985 rules. The petitioner himself has annexed the Annual Confidential Report of the private respondents which shows details of their academic qualification but the petitioner remained silent all throughout and allowed the respondents to continue with their work from 1990. At this stage, we do not deem it appropriate at all to unsettle the said respondents' settled service position. At this stage, if their service is taken away for no fault on their part, this may lead to a great hardship not only for the respondents but the family dependents too and it might give a wrong focus to the society. If at all anyone is liable, the administration is the one who should be held responsible. We do not hesitate to say that for such irregularity and/or illegality being allowed to be perpetrated by the administration, the petitioner or any other person may have a good cause to sue the administration directly as and when the person suing for it may be found to have a direct interest in the post and might have suffered loss due to such appointment. But in this writ petition we cannot issue a writ of quo-waranto by setting aside the appointment of the private respondents. We observe that the decision in Dr. M.S. Mudhol (supra) has a direct bearing in this case and it binds us wherein the Hon'ble Apex Court refused to entertain a writ petition challenging appointment of a person in the post of Principal of an aided school on the ground of lack of qualification by the teaching staff after a lapse of 9 (nine) years. The finding made by the Hon'ble Apex Court in paragraph 6 of the decision is important to be quoted and is set out below :
"6. Since we find that it was the default on the part of the 2nd respondent, Director of Education in illegally approving the appointment of the first respondent in 1981 although he did not have the requisite academic qualifications as a result of which the 1st respondent has continued to hold the said post for the last 12 years now, it would be inadvisable to disturb him from the said post at this late stage particularly when he was not at fault when his selection was made. There is nothing on record to show that he had at that time projected his qualifications other than what he possessed. If, therefore, in spite of placing all his cards before the selection committee, the selection committee for some reason or the other had thought it fit to choose him for the post and the 2nd respondent had chosen to acquiesce in the appointment, it would be inequities to make him suffer for the same now. Illegality, if any, was committed by the selection committee and the 2nd respondent. They are alone to be blamed for the same."
Following the ratio of the said decision we make it clear that, although, we do not agree with the learned Counsels for the administration and for the private respondents for a moment that an illegal act can be made legalised due to passage of time, but after a passage of long period we do not take away the bread wining source of the respondents and of their dependent family members. It may be clarified that, although, bridge course was not done by the respondents but we give some value to their past service of 25 years and the experience of teaching which may be considered to a little extent as substitute of their bridge course. For all practical purposes in the academic field if the respondents are allowed to use their expertise in the said academic field that may prove even better than having the bridge course to bridge the gap.
Appeal is, thus, disposed of without grant of a writ of quo-warranto as prayed for.
There will be no order as to costs.
Learned Registrar General, High Court at Calcutta is directed to send back the records forthwith to the Registry of Calcutta High Court Circuit Bench at Port Blair.
Urgent Photostat certified copy of this judgment, if applied for, be delivered to the learned advocates for the respective parties upon compliance of all usual formalities.
I agree.