R.B.Kapoor vs Lieutenant Governor And Others

Sabyasachi Bhattacharyya, J

The present appeal has been preferred against an order dated July 10, 2019 whereby the learned Single Judge dismissed W.P. No. 218 of 2018 for lack of any locus on the part of the petitioner therein (the present appellant) to bring or pursue the cause, with costs assessed at Rupees One lakh, payable to the 6th respondent for needlessly harassing such respondent.

Learned counsel for the appellant argues that the premise of the said order of the learned Single Judge is contrary to law, inasmuch as the learned Single Judge held that the appellant had no locus standi to prefer the writ application and observed that the petitioner was a busybody having no nexus with the Port Blair Municipal Council and that the appropriate remedy for the appellant would have been a public interest litigation.

Learned Counsel cites a judgment reported at (2014) 1 SCC 161(Central Electricity Supply Utility of Odisha vs. Dhobei Sahoo and others) for the proposition that the concept of locus standi/standing is irrelevant in issuance of writs of quo warranto.

Learned counsel for the appellant further cites a judgement reported at (2013)1 SCC 501 (Rajesh Awasthi vs. Nand Lal Jaiswal and others) wherein it was held that a citizen can claim issuance of a writ of quo warranto and he stands in the position of a relater. He need not have any special interest or personal interest. The real test, it was held, is to see whether the person holding the office is authorized to hold the same as per law.

Learned Counsel for the appellant next cites a Division Bench judgment dated August 20, 2018, rendered in the Port Blair Circuit of this Court in MA No. 027 of 2018 (Shri Uday Shankar Singh vs. The Andaman and Nicobar Administration & Others), wherein it was held inter alia, that a writ of quo warranto is more an information laid before or to the Court in the nature of quo warranto and once such information is laid, it becomes the duty of the Court to exercise its powers of judicial review to check whether the executive has been following the law in offering the public employment.

Apart from the aforesaid arguments, learned Counsel for the appellant submits that the respondent No. 6 did not have the necessary academic qualification to get admission in the diploma course and obtain a diploma certificate. Relying on such alleged illegality, learned Counsel also places reliance on a document annexed at page 52 of CAN 102 of 2019, filed in connection with the present appeal. Pointing out to paragraph Nos. 6 and 7 of the said annexure, learned counsel argues that the respondent No. 6 himself stated in a communication that there are some engineers and also other officers who do not possess the required qualification but are also serving in the Council. It was further stated by the respondent no. 6 that on the basis of the comments given thereinabove, the cases referred to should also have been reviewed and settled before initiating further course of action in his case. As such, it is argued that the respondent No. 6 himself had admitted that he did not have the requisite qualification for obtaining the diploma certificate in question.

Contradicting the submissions of the appellant, learned counsel for the private respondent (respondent No. 6) argues that the learned Single Judge categorically observed that the issue as to the validity of the certificate under challenge was already settled in previous rounds of litigation. The said order, impugned herein, also indicates that it was evident from the previous orders of this Court of November 25, 2005 and February 20, 2006 that the legality of the 6th respondent's appointment, who was inducted as a Junior Engineer in the year 1990, was previously called into question and this Court found no impropriety in the appointment of the 6th respondent or in his subsequent promotion.

Learned counsel for the respondent No. 6 next argues that the objection, as regards the respondent No. 6 not having the necessary academic qualifications to get the certificate-in-question, was a new ground taken for the first time in the Memorandum of appeal and was not urged before the learned Single Judge.

It is pointed out in answer to the petitioner's argument, that the said allegation was levelled in paragraph No. 5 of the writ petition, that such proposition was not argued before the learned Single Judge at all.

It is further argued that the present appellant does not have the locus standi to have preferred the writ petition at all.

Apart from the aforesaid arguments, learned counsel for the respondent No. 6 submits that the appellant has been set up to espouse the cause of the previous litigant who had challenged the appointment of the respondent No. 6 and his promotion, but had failed in such challenge, and as such the writ petition was rightly rejected with exemplary costs. It is further argued that the costs ought to be enhanced by this Court for unnecessarily vexing the respondent No. 6 further.

Learned counsel appearing on behalf of the Municipal Council virtually adopts the argument of the private respondent. The Municipal Council, as represented by respondent nos. 4 and 5, relies on the findings of the previous decision in W.P. 126 (W) of 2005, that unless the respondent no. 6 had knowledge of Motor Vehicles technology, he would not have secured first position in the interview conducted by the Municipal Authorities at the time of appointment as Junior Engineer with a Diploma of Automobile Engineering in 1999.

A meaningful reading of the order impugned herein goes on to show that although, in the ordering portion, it was recorded that W.P. No. 218 of 2018 was dismissed for lack of any locus on the part of the petitioner to bring or pursue the cause, the said observation was conditioned by the previous findings in the impugned order of the learned Single Judge. In the previous paragraphs thereof, the learned Single Judge had categorically found that the issue as to the legality of the 6th respondent's appointment was previously called into question and was decided finally. As such, the fact that the appellant (writ petitioner therein) was a rank interloper was not the only consideration of the learned Single Judge for holding that the petitioner had no locus to bring or pursue the cause. The principle of res judicata was also considered for arriving at the said conclusion, as reflected from the preceding discussions in the impugned order.

It is well settled that intra-court appeals have a very limited scope of reinvestigation into the merits of the case. It is not evident from the order of the learned Single Judge that the same was bad for perversity or was tainted by illegality of such a magnitude that the same could not stand a moment's scrutiny by an appellate forum.

That apart, counsel for the respondent No. 6 is justified in arguing that the point as to the academic qualifications of the respondent No. 6 is a new point, being taken for the first time in the present appeal. Paragraph No. 5 of the writ petition, relied on by the appellant to argue that the said allegation was levelled even before the learned Single Judge, is entirely on a different aspect of the matter. The said paragraph was a mere narrative, stating only that the private respondent No. 6 passed All India Secondary School Examination in 1982 with the subject combination that was specified in the said paragraph. However, such statement could at best have been construed as an admission by the present appellant of the respondent No. 6 having passed such examination, but not, by any stretch of imagination, as a challenge against the academic qualification of the respondent No. 6.

As such, the present appeal can even be dismissed on this ground alone on merits.

Moreover, the issue regarding the alleged lack of academic qualification of the respondent No. 6 culminates in an indirect challenge to the diploma certificate awarded to the respondent No. 6 itself. The challenge to such certificate was previously turned down by an elaborate order of a learned Single Judge, affirmed by a Division Bench, which ended in the dismissal of a Special Leave Petition filed by the present appellant. A perusal of the previous orders of the learned Single Judge of the Division Bench clearly shows that the challenge of the petitioners therein as regards the certificate of the present respondent No. 6 was categorically turned down on merits. Although the present appellant might not have been a party to the said proceeding, the previous judgments, particularly the judgment of the Division Bench, is binding on the present bench as well, being passed in coordinate jurisdiction. The same issue cannot be permitted to be reagitated time and again in different garbs and camouflage, once as a direct challenge to the certificate and next, as a challenge to the same certificate in the form of impugning the academic qualifications of the respondent No. 6, which ultimately led to the issuance of the certificate itself.

In the event the end-result of a process (the certificate) is challenged and decided by competent Courts of law, the same end-result cannot subsequently be challenged again in the garb of a challenge to the process ( in this case, the academic qualification of the respondent No. 6) leading thereto.

As far as the argument of the appellant, regarding the alleged admission of the respondent No. 6 at page 52 of the stay application, is concerned, the same cannot be reopened at this stage, after having been finally decided previously. Secondly, the relevant paragraphs in such communication, being paragraph Nos. 6 and 7, which are relied on by the appellant, do not comprise of an unqualified admission, worth being called an 'admission' at all. Hence, no judgment could have been passed, in any event, on the certificate of the petitioner, merely on the basis of such communication itself.

Thus, in conclusion, it is seen that the order impugned herein was sufficiently justified, even without going into the issue of the locus standi of the appellant.

As regards the Division Bench judgment in MA 027 of 2018, also cited by the appellant, it was held therein that a writ of quo warranto is more an information laid before or to the Court in the nature of quo warranto and once such information is laid, it becomes the duty of the Court to exercise its power of judicial review to check whether the executive has been following the law in question. However, in the instant case, such calling for information would be a futile exercise, since the said exercise was already exhausted in previous proceedings, wherein the factually affected party had challenged the appointment and promotion of the respondent No. 6. Previously, in connection with such proceeding, a Single Bench had already dealt with such information and turned down such challenge on the basis of such information upon an elaborate consideration of the materials on record. Such order was affirmed in appeal by a Division Bench. The judgment of said coordinate Bench is, in any event, binding on this Court and takes care of the appellant's grievance that information had to be laid before the Court and considered. Such exercise having already being completed previously and attained finality cannot be re-agitated in the appeal.

Even if the judgment reported at (2014) 1 SCC 161 is viewed in proper perspective, paragraph No. 21 of the same lays down that the jurisdiction of the High Court while issuing of quo warranto is a limited one. That apart, the concept of locus standi was held to be strictly applicable to service jurisprudence of the purpose of canvassing the legality or correctness of the action and should not be allowed to have any entry, for 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.

In the instant case, since it has been conclusively determined in the previous proceedings that respondent No. 6 is not a usurper holding a public office without any legal authority, there was no further scope for the learned Single Judge, in the present case, let alone, this Court sitting in intra-court appeal, to issue a further writ of quo warranto since the necessity of such a writ has already been conclusively exhausted in the previous proceedings. As such, the argument of the appellant on the strength of such reported decision is not tenable in the eye of law, at least insofar as the present case is concerned.

Even if the legality of the final conclusion of the learned Single Judge, as regards lack of any locus on the part of the petitioner to bring or pursue the cause, is considered, such conclusion was the result of a consideration not merely of the locus of the petitioner as a busybody interloper, but also his locus to "pursue the cause", since the same had already been decided on previously.

In view of the observations made above, there is no patent perversity, or error of law patently demonstrated on the face of the impugned order, which confers jurisdiction on the Appellate Court to interfere with the same, particularly in view of the settled legal proposition that Appellate Courts are far more cautious before interfering in intra-court appeals.

Accordingly, MA No. 027 of 2019, along with CAN 102 of 2019, are dismissed on contest, thereby affirming the impugned order.

It is clarified that, although the present appeal was an additional component in the appellant's incessant efforts to vex and harass the respondent No. 6, further costs are not imposed, since the learned Single Judge already imposed substantial costs of Rupees One lakh on the appellant. The appellant is directed to pay such costs to the respondent No. 6 within a week from date.

There will be no further order as to costs.

Urgent certified copy of this order, if applied for, be supplied to the parties upon compliance of the usual formalities.