Appeal No 3607 11 of 1988
From the Judgment and Order dated 1271988 of the Calcutta High Court in FMAT Nos 2301 2326 and 2327 of 1986
Tapas Ray Dr Shankar Ghosh B Dutta HK Puri SK Nandy Sushil Kr
Jain and RK Joshi for the Appellants
GL Sanghi NR Chowdhary Som Nath Chatterjee for the Respondents
The Judgment of the Court was delivered by VERMA J
These appeals involve for decision a common question relating to fixation of seniority of certain Sub Assistant Engineers appointed ad hoc temporary Assistant Engineers for a specified period in the PWD and the Irrigation and Waterways Department of the Government of West Bengal vis a vis the direct recruits in the cadre of Assistant Engineers appointed regularly according to rules in these departments prior to the regularisation of the ad hoc appointees
The question was raised by the ad hoc appointees who were regularised subsequently by filing writ petitions in the Calcutta High Court claiming revision of their seniority reckoned from the date of their initial ad hoc appointment
These writ petitions were dismissed by a Single Bench of the High Court but the writ appeals were allowed by a division bench resulting in grant of the relief claimed by the ad hoc appointees
It is these judgments involving the common question of the merit of the claim of the ad hoc appointees for seniority reckoned from the date of their initial ad hoc appointment in he facts and circumstances of the case which are challenged in these appeals
925 Civil Appeal No 3607 of 1988 is by the State of West Bengal while Civil Appeal No 3610 of 1988 is by the adversely affected direct recruits who were respondents in the writ petition filed by the ad hoc appointees in the PWD Civil Appeal No 3608 of 1988 is by the State of West Bengal while Civil Appeal No 3611 of 1988 is by the adversely affected direct recruits who were respondents in the writ petition filed by the ad hoc appointees in the Irrigation and Waterways Department
Civil Appeal No 3609 of 1988 is a similar matter also relating to the Irrigation and Water ways Department
The material facts are only a few and may be stated with reference to the PWD pointing out the minor difference on facts between the ad hoc appointments made in the PWD and Irrigation and Waterways Department which are not significant on the conclusion reached
In exercise of the powers conferred by the proviso to Article 309 of the Constitution of India the Governor of West Bengal made Rules by Notification No 94 dated 20th August 1959 for the regulation of recruitment to the Engineering Services under the Department of Works and Buildings of the Government of West Bengal
In the present case we are concerned with the cadre of Assistant Engineers for which the relevant rules are  Rule 4 There will be an examination held by the Public Service Commission West Bengal for recruitment to posts of Assistant Engineer
A certain proportion of such posts as may be determined by the Works and Buildings Depart ment from time to time will be filled up by candidates in order of merit who will be given a higher initial pay of Rs 325 per month in the time scale of pay for Assistant Engineers
In order to be eligible for such higher initial pay a candidate must secure 66 per cent or above of the total marks in the said examination
Rule 9 Recruitment to the permanent posts of Assistant Engineer shall be made as follows 926 aForty per cent of vacancies by direct recruitment on the results of a competitive examination to be conducted by the Public Service Commission West Bengal as mentioned in rule 4 supra Qualifications  iA degree in Civil Engineering of a recognised University or any other qualification in Civil Engineering exempting a candidate from appearing in Sections A and B of Associate Membership Examination of the Institute of Engineers India
iiOne year s post graduate practical training or study or research or practica l engineering experience
iiiAge not more than 27 years on the 1st August of the year in which the recruitment examination is held
The age limit shall in the case of candidates who have been in the employ of the Central or the State Government or of the Damodar Valley Corporation or any other statutory body recognised for the purpose by the Government and are not out of such employment for more than a year on the said date be releasable to the extent of the actual period spent continuously in such employment
This relaxation of age limit will not be permitted to a candidate who had already appeared in the examination thrice
No candidate will be allowed to take more than three chances
Departmental candidates are  eligible to apply provided they fulfill the requisite qualifications
bForty per cent by selection from amongst directly recruited temporary Assistant Engineers who have rendered two years satisfactory service selection wing made by the Public Service Commission West Bengal
927 cTwenty per cent by promotion of confirmed Overseer Estimators
Rule 10 Recruitment to temporary posts of Assistant Engineer shall be made as follows  a Eighty per cent of the vacancies are to be filled by direct recruitment on the results of a competitive examination referred to in rule 9a above
b Twenty percent by promotion of confirmed Overseer Estimators
Rule 11 Notwithstanding anything contained in these rules the Governor may in case of emergency fill up vacancies in the posts of Assistant Engineer both permanent and temporary by advertisement and interview through the Public Service Commission West Bengal
Rule 12 An Overseer Estimator shall not be promoted as a temporary Assistant Engineer unless he has rendered 10 years services
To be eligible fo r promotion he must pass a written and oral examination which will be conducted by the Public Service Commission West Bengal and will be of the same standard as Professional Examination referred to in Chapter VI of the Service Training and Examination Rules West Bengal Overseer Estimators who have been confirmed in their posts and have tendered 8 years  service including temporary service in that post shall be eligible to sit for such examination a panel of Overseer Estimator fit for promotion as temporary Assistant Engineers shall be maintained in consultation with the Public Service Commission West Bengal
 Under these Rules recruitment to the permanent posts of Assistant Engineers was required to be made under Rule 9 while Rule 10 governed 928 recruitment to the temporary posts of Assistant Engineers
Rule 11 provided for emergency appointment by advertisement and interview through the Public Service Commission
It is clear from these Rules that appointments to all the posts permanent and temporary were to be made according to the prescribed procedure on the basis of a competitive examination conducted by the Public Service Commission and even the appointments made in an emergency governed by Rule 11 were to be made by advertisement and interview through the Public Service Commission 
Any appointment to a permanent or temporary post of Assistant Engineer which was not made in accordance with Rule 9 or 10 or 11 was therefore not in accordance with these Rules
The writ petitioners in all these matters were duly appointed Sub Assistant Engineers who were earlier called Overseer Estimators as described in the Rules and though initially diploma holders having obtained the prescribed degree were eligible for appointment as Assistant Engineers
The writ petitioners respondents in these appeals were appointed temporary Assistant Engineers on ad hoc basis initially for a period of six months in the PWD between
1974 to 1976 and in the Irrigation and Waterways Department between 1972 to 1978
According to writ petitioners themselves their claim for seniority is based on direct recruitment to the post of Assistant Engineer and not as promotee from the next below cadre of Sub Assistant Engineers in the promotion quota specified for them in the Rules
It is therefore the claim of the writ petitioners for seniority from the date of their initial ad hoc appointment as direct recruits and not as promotees in the promotion quota which has to be considered
The ad hoc appointment of all the writ petitioners was in identical terms and therefore it is sufficient to refer merely to the relevant part of one such notification dated 10th May 1974 as illustrative of the nature of their ad hoc appointment
The relevant part of the notification is as under The Governor is pleased to appoint the following Sub Assistant Engineers of the PWD now posted in the Directoratesoffices mentioned against each as tempy
Assistan t Engineers in the West Bengal Service of Engineers under the PW Department on ad hoc basis for a period of 6 six months with effect from the dates of joining or until further orders whichever is earlier
929 4
The appointment is purely on ad hoc basis and he will have to revert to the post of SAE if he is not selected for regular appointment as Assistant Engineer through the PSC The initial ad hoc appointment was extended periodically on the same terms during the entire period upto 2621980
During this period several opportunities were given to these persons to appear before the Public Service Commission to satisfy the condition attached to their ad hoc appointment but none of the writ petitioners complied with the requirement declining throughout to appear before the Public Service Commission
Strangely the State Government requested the Public Service Commission to permit regularisation of the services of these ad hoc appointees as Assistant Engineers without being selected for regular appointment by the Public Service Commission but the Public Service Commission firmly turned down that request
The PSC s letters dated 451978 10101979 and 22111979 contain such refusal
The Government even then took the decision on 26th February 1980 to regularise these persons as Assistant Engineers and consequently took three simultaneous steps on 2621980 the requirement in the rules of consultation with the PSC was dispensed with for them they were absorbed as temporary Assistant Engineers and rule under Article 309 was made providing for their seniority as temporary Assistant Engineers with effect from the same date ie 2621980
This rule clearly provided that all persons appointed regularly in accordance with rules prior to 2621980 as Assistant Engineers would rank above the ad hoc appointees so absorbed with effect from 2621980
This decision of the Government has also been implemented
Surprisingly the grievance even then of the writ petitioners is that their seniority should be reckoned not only from 2621980 as has been done but from the date of their initial ad hoc appointment made temporarily in the above manner notwithstanding the conditions attached to that appointment under the rules and their failure to fulfill the same
It is sufficient to refer to certain portions of the PSC s reply dated 4th May 1978 to the State Government s proposal for regularisation of ad 930 hoc appointments reiterating the strong objection of PSC that the appointments had been ab initio irregular illegal and unconstitutional  Relevant extract from the reply is as under 2
It appears that the cases of 27 of 36 ad hoc appointments of Assistant Engineer 29 in the Civil Branch and 7 in the Electrical Branch under the Public Works Department as made between May 1974 and June 1975 were earlier reported to the Commission in January 1975
The Commission informed Government that the appointments had been ab initio irregular illegal and unconstitutional and requested Government to make regular recruitment to the posts after advertisement vide Secretary s DO No 370 PSC dated the 8th March 1975
The Commission also brought the irregularity to the notice of the Chief Secretary whose reply in this regard was as follows vide Chief Secretary s letter No 93875 CS dated the 22nd August 1975 issued by Public Works Estt Department  
The ad hoc appointments in question were made by the Public Works Department in the exigencies of public service pending recruitment of Assistant Engineers through the Public Service Commission West Bengal and on the express condition that the concerned of ficers would have lo revert if they failed to be selected by the Public Service Commission for appointment as Assistant Engineers
 3It appears that of the 29 ad hoc Assistant Engineers Civil only 3 applied in response to the Commission s subsequent advertisement
None of them however appeared at the preliminary written test held by the Com mission in that connection
As regards the 7 posts of Assistant Engineers Electrical it appears that all the 7 ad hoc appointees applied in response to the Commission s advertisements issued in 1975 but that none of them was able to obtain even the pass mark at the interviews
In the above context it is not clear how Government can 931 now sponsor a proposal for regularisation of the appointment of these ad hoc appointees
 In this reply it was finally said that the illegality of these ad hoc appointments could not be cured
It was after the strong stand taken by the PSC that the State Government took the aforesaid action on 2621980 to dispense with the requirement of consultation with the PSC and regularise appointments of ad hoc appointees with effect from 2621980
The Rules for seniority made by the notification dated 2621980 issued in exercise of the power conferred by the proviso to Article 309 of the Constitution are as under 1
These rules may be called the Seniority Rules for the Assistant Engineers recruited in the Public Works Department otherwise than through the Public Service Commission West Bengal during the period from May 1974 t o June1976 2
The Assistant Engineers under Public Works Department who were recruited otherwise than through the Public Service Commission West Bengal during the period from May 1974 to June 1976 and who were excluded from the purview of the Public Service Commission West Bengal under this department notification No 1299 F dated 2621982 shall be deemed to be junior to any Assistant Engineer who was selected by the Public Service Commission West Bengal and was appointed on a date prior to 26th February 1980
The inter seniority in respect of the Assistant Engineers who are covered by the said notification shall be determined on the basis of select list if any
In the absence of any such select list the inter se seniority should be determined on the basis of their length of service as Assistant Engineer in the Public Works Department emphasis supplied These ad hoc appointees having obtained the benefit of regularisation with effect from 2621980 without being selected by the PSC and being given the benefit of seniority from the date of their regularisation on 932 2621980 have challenged the Government s action and claimed seniority with effect from the date of their initial ad hoc appointment of this nature
It may here be mentioned that in case of the ad hoc appointees in the Irrigation and Waterways Department even a rule for seniority being given to them from 2621980 was not made as was done for the ad hoc appointees in the PWD and yet they have also been given the same benefit
They make the same grievance inspite of this
On behalf of the appellants State of West Bengal and the direct recruits aggrieved by the judgment of the Division Bench of the High Court it has been urged that the claim of the writ petitioners respondents in these appeals for seniority being given to the retrospectively from the date of their initial ad hoc appointment made contrary to the rules in spite of their regularisation being made expressly from 2621980 is wholly untenable and against the decisions of this Court particularly the constitution bench decision in Direct Recruit Class II Engineering Officer s Association and Ors
vs State of Maharashtra and Ors
    On this basis it was submitted that the Division Bench of the High Court committed an error in reversing the judgment of the Single Bench by which the writ petitions had been dismissed
In reply Shri GL Sanghi appearing for the writ petitioners respondents in all these appeals submitted that the initial ad hoc appointment of the writ petitioners was made by a mode permissible under the rules that appointment was made in relaxation of  the rules by the Government which is implicit in the action taken the initial ad hoc appointment must therefore be equated with a regular appointment made under the rules and on this equation there is no justification for discrimination between the initial ad hoc appointees and regular appointees coming in by direct recruitment thereafter in accordance with rules
It was submitted that the initial ad hoc appointment being therefore in the nature of regular appointment made during an emergency after selection by a Committee consisting of five Chief Engineers these persons are entitled to count their entire service including the ad hoc period prior to 2621980 for the purpose of their seniority
Shri Sanghi relied on the decisions of this Court in A Janardhana vs Union of India and Ors1983 2 SCR 936 and Narender Chadha Ors
vs Union of India and Ors  to support his submission
Shri Sanghi further submitted that the case of the writ petitioners fell squarely within the ambit of conclusion B of the summary 933 in Maharashtra Engineers case in para 44 of the SCR  para 47 of SCC
The question therefore is whether Shri Sanghi is right in his submission that this case falls within the ambit of the said conclusion B in Maharashtra Engineers case
The submission of the other side is that this case falls not within conclusion B but the corollary mentioned in con clusion A of that decision
Conclusions A and B which alone are material are as under  A Once an incumbent is appointed to a post according to rule his seniority has to be counted from the date of his appointment and not according to the date of his confirmation
The corollary of the above rule is that where the initial appointment is only ad hoc and not according to rules and made as a stop gap arrangement the officiation in such post cannot be taken into account for considering the seniority
BIf the initial appointment is not made by following the procedure laid down by the rules but the appointee continues in the post uninterruptedly till the regularisation of his service in accordance with the rules the period of officiating service will be counted
 It is not necessary to deal at length with the decisions of this court in A Janardhana and Narender Chadha in view of the later constitution bench judgment in Maharashtra Engineers  case wherein all the relevant earlier decisions have been considered before summarising the conclusions in para 44 of SCR  para 47 of SCC
We may however briefly refer to the decisions in A Janardhana and Narender Chadha since Shri Sanghi has strongly relied on them
It may be mentioned that both these decisions related to inter se seniority of direct recruits and promotees the two channels for appointment to the posts where there was a quota prescribed for the two channels leading to rota for confirmation and the seniority was based on the date of confirmation according to rules
The dispute arose as a result of promotions being made in excess of the promotees quota in the case of the surplus promotees
It 934 was in that context that the question of taking into account longer period of continuous officiation for the purpose of fixing inter se seniority of direct recruits and promotees came up for consideration
Those cases are clearly distinguishable
In the present case there is no dispute between promotees and direct recruits the claim of the writ petitioners being based only as direct recruits in the cadre of Assistant Engineers and not as promotees from the lower cadre of Sub Assistant Engineers to which they had earlier belonged
The present is therefore not a case of a dispute relating to the surplus promotees who were given promotion regularly in accordance with rules but in excess of the quota fixed for them under the rules
In the present case all the writ petitioners are persons who were given ad hoc temporary appointments for a fixed period which was extended from time to time till their regularisation on 2621980 and that too by relaxation of the condition of selection by the Public Service Commission which was an express condition of their ad hoc appointment and a requirement for regular appointment under the Rules
Assuming the relaxation made in their case by the State Government on 2621980 to be valid as the same is not disputed before us they could be treated as regularly appointed only with effect from 2621980 when the relaxation was given to them and an order was made simultaneously absorbing them in the cadre of Assistant Engineers also framing a rule at the same time under Article 309 providing for fixation of their seniority only from that date
Accordingly there is no foundation for the claim that they could be treated at par with the direct recruits regularly appointed prior to 2621980
The admitted facts which are the foundation of the claim of the writ petitioners are sufficient to negative their claim
It is obvious that prior to the steps taken by the State Government on 2621980 for their regularisation in this manner there was no basis on which the writ petitioners could claim to be regularly appointed as Assistant Engineers and therefore the manner in which they were regularised including the mode of fixation of their seniority with effect from 2621980 is decisive of the nature of their regular appointment
This alone is sufficient to negative their further claim
They can make no grievance to any part of that exercise made only for their benefit
The constitution bench in Maharashtra Engineers  case while dealing with Narender Chadha emphasised the unusual fact that the promotees in question had worked continuously for long periods of nearly fifteen to 935 twenty years on the posts without being reverted and then proceeded to state the principle thus  We therefore confirm the principle of counting towards seniority the period of continuous officiation following an appointment made in accordance with the rules prescribed for regular substantive appointments in the service  The constitution bench having dealt with Narendra Chadha in this manner to indicate the above principle that decision can not be construed to apply to cases where the initial appointment was not according to rules
We shall now deal with conclusions A and B of the constitution bench in the Maharashtra Engineers  case quoted above
There can be no doubt that these two conclusions have to be read harmoniously and conclusion B can not cover cases which are expressly excluded by conclusion A
We may therefore first refer to conclusion A
It is clear from conclusion A that to enable seniority to be counted from the date of initial appointment and not according to the date of confirmation the incumbent of the post has to be initially appointed according to rules 
The corollary set out in conclusion A then is that where the initial appointment is only ad hoc and not according to rules and made as a stop gap arrangement the officiation in such posts cannot be taken into account for considering the seniority
Thus the corollary in conclusion A expressly excludes the category of cases where the initial appointment is only ad hoc and not according to rules being made only as a stop gap arrangement
The case of the writ petitioners squarely falls within this corollary in conclusion A which says that the officiation in such posts cannot be taken into account for counting the seniority
This being the obvious inference from conclusion A the question is whether the present case can also fall within conclusion B which deals with cases in which period of officiating service will be counted for seniority
We have no doubt that conclusion B cannot include within its ambit those cases which are expressly covered by the corollary in conclusion A since the two conclusions cannot be read in conflict with each other
936 The question therefore is of the category which would be covered by conclusion B excluding therefrom the cases covered by the corollary in conclusion A
In our opinion the conclusion B was added to cover a different kind of situation wherein the appointments are otherwise regular except for the deficiency of certain procedural requirements laid down by the rules
This is clear from the opening words of the conclusion B namely if the initial appointment is not made by following the procedure laid down by the rules  and the later expression till the regularisation of his service in accordance with the rules 
We read conclusion B and it must be so read to re councile with conclusion A to cover the cases where the initial appointment is made against an existing vacancy not limited to a fixed period of time or purpose by the appointment order itself and is made subject to the deficiency in the procedural requirements prescribed by the rules for adjudging suitability of the appointee for the post being cured at the time of regularisation the appointee being eligible and qualified in every manner for a regular appointment on the date of initial appointment in such cases
Decision about the nature of the appointment for determining whether it falls in this category has to be made on the basis of the terms of the initial appointment itself and the provisions in the rules
In such cases the deficiency in the procedural requirements laid down by the rules has to be cured at the first available opportunity without any default of the employee and the appointee must continue in the post uninterruptedly till the regularisation of his service in accordance with the rules
In such cases the appointee is not to blame for the deficiency in the procedural requirements under the rules at the time of his initial appointment and the appointment not being limited to a fixed period of time is intended to be a regular appointment subject to the remaining procedural requirements of the rules being fulfilled at the earliest
In such cases also if there be any delay in curing the defects on account of any fault of the appointee the appointee would not get the full benefit of the earlier period on account of his default the benefit being confined only to the period for which he is not to blame
This category of cases is different from those covered by the corollary in conclusion A which relates to appointment only on ad hoc basis as a stop gap arrangement and not according to rules
It is therefore not correct to say that the present cases can fall within the ambit of conclusion B even though they are squarely covered by the corollary in conclusion A
937 In view of the above it is clear that the claim of the writ petitioners respondents in all these appeals for treating their entire period of service prior to 2621980 as regular service for the purpose of seniority and fixation of their seniority accordingly is untenable
The submission of Shri Sanghi that their initial ad hoc appointment must be treated as having been made in accordance with the rules since the selection by an alternative mode namely by a committee of five Chief Engineers was resorted to on account of the emergency cannot be accepted
Rule 11 of the 1959 Rules provides for appointments to be made during emergency and lays down that such appointments during emergency can be made only by advertisement and interview through the Public Service Commission West Bengal  Admittedly this express requirement in Rule 11 was not followed or fulfilled subsequently and therefore the initial ad hoc appointments cannot be treated to have been made according to the applicable rules
These ad hoc appointments were clearly not in accordance with the rules and were made only as a stop gap arrangement for fixed period as expressly stated in the appointment order itself
Thus there is no escape from the conclusion that the present cases fall squarely within the ambit of the corollary in conclusion A of Maharashtra Engineers case and therefore the period of ad hoc service of writ petitioners respondents on the post of Assistant Engineer prior to 2621980 cannot be counted for reckoning their seniority
Consequently these appeals are allowed
The impugned judgments of the Division Bench of the High Court are set aside and those of the Single Bench dismissing the writ petitions are restored
No costs
NVK Appeals allowed


Summary:
RS RM and SB were elected as Members of the Goa Legislative Assembly in the Elections held in November 1989
Subsequently RS assumed office of Chief Minister and formed his Council of Ministers including RM and SB as Ministers
Thereafter the appellant In CA 109492 a Member of the Assembly presented a petition to the Speaker of the Assembly seeking disqualification of RS on the ground that he had voluntarily given up the membership of his political party
By its order 821 dated 15291 the Speaker passed an order under Para 6 of the Tenth Schedule of the Constitution disqualifying RS on the ground of defection
RS filed a writ petition before the Goa Bench of the Bombay High Court challenging the order of disqualification and by an interim order the High Court stayed the operation of the disqualification order
During the pendency of the writ petition the Speaker was removed from office and a deputy speaker was elected in his place who began functioning as Speaker
RS filed an application before the Acting Speaker seeking review of his Disqualification order and on 8391 the Acting Speaker passed an order in purported exercise of his power of review under the Tenth Schedule setting aside the Disqualification order dated 15291
Consequently tie writ petition filed by RS challenging his disqualification order was dismissed as not pressed by the High Court on 8192 the appellant flied a petition challenging the review order dated 8391 passed by the Acting Speaker on the ground that the Speaker did not have any power to review the earlier order of disqualification
Without going into the merits of the case the High Court dismissed the petition at the admission stage on the ground of laches
The decision of the High Court was impugned before this Courts
Subsequently another member of the Assembly appellant in C 109692 also filed a writ petition challenging the review order dated 8391 passed by the Acting Speaker setting aside the earlier order disqualifying RS on similar grounds
The High Court also dismissed the same at the admission stage for the same reason ie
laches
Against the order dismissing the writ petition an appeal was preferred in this Court In the connected appeal CA 109592 the appellant applied to the Speaker seeking disqualification of RM and SB on the ground of defection and by his order dated 131290 Speaker passed the order disqualifying RM and SB under the Tenth Schedule
Both of them filed petitions challenging the disqualification order and by an interim order the High Court stayed the disqualification orders
In the meantime in a manner similar to that in the case of RS the Acting Speaker by his order dated 7391 in purported exercise of the review
set aside the orders dated 131290 disqualifying RM and SB The appellant filed a petition challenging the orders of review passed by the Acting Speaker
It was also dismissed by the High Court on the ground of laches
Against dismissal of the writ petition an appeal was filed before this Court 822 In appeals to this Court it was contended on behalf of the appellants that 1 the mere delay in challenging the legality of the authority under which respondents continue to hold public office after being disqualified as Members of the Assembly was not a valid justification for the High Court to refuse to examine the main question of existence of power of review in the Speaker acting under the Tenth Schedule since the discretion of the High Court under Article 226 of the Constitution must be exercised judicially so as not to permit perpetuation of an illegality 2 the doctrine of laches does not apply where declaration sought is of nullity in order to prevent its continuing operation and laches is not relevant in the domain of public law relating to public office where the purpose is to prevent an usurper from continuing to hold a public office 3 the power of review in the Speaker cannot be implied from the provisions in the Tenth Schedule and the only remedy available to the aggrieved person is by judicial review of the order of the disqualification and 4 that the motive and conduct of the petitioners appellants in such matters is not decisive or fatal to the enquiry claimed in the writ petition inasmuch as the relief claimed by them was not for their personal benefit but for larger public interest and good governance of the State by persons holding public offices
On behalf of the respondents it was contended that 1 even though there is no statutory limitation for filing a writ petition yet in a case like the present the apt analogy is of an election petition challenging an election which is to be filed within 45 days from the date of election of the returned candidate under Section 811 of the Representation of the People Act 1951 to indicate that unless such a challenge is made promptly the courts would refuse to examine such a question after the lapse of a reasonable period hence petitions filed after ten months of the date of the order of review made by the Speaker were rightly rejected on the ground of laches 2 the doctrine of laches applies as much to the writ of quo warranto as it does to a writ of certiorari 3 in view of the finality attaching to the order made by the Speaker under para 6 of the Tenth Schedule the power of review inheres in the Speaker for preventing miscarriage of justice in situations when the speaker himself is of the view that continuance of his earlier order of disqualification would perpetuate injustice 4 the inherent power of review in the Speaker must be read in the Tenth Schedule at least upto 12th November 1991 when the Judgment in Kihoto Hollohan was rendered declaring the availability of judicial 823 review against the Speaker s order of disqualification made under para 6 of the Tenth Schedule 5 only a limited judicial review being available against the Speaker s order of disqualification as held by the majority in Kihoto Hollohan some power of review Inheres in the Speaker even thereafter to correct palpable errors failing outside the limited scope of judicial review and 6 the appellants were not only associated with RS at different times but also they obtained benefits from him thus in view of the oblique motive coupled with their conduct the High Court was justified in refusing to exercise its discretionary powers under Article 226 of the Constitution at the behest of the appellants the power under Article 136 also being discretionary this Court would also be justified in refusing to interfere with the discretion so exercised by the High Court
Allowing the appeals this Court HELD 1
The judgment of the High Court that the writ petitions were liable to be dismissed merely on the ground of laches cannot be sustained
834 C 2
The exercise of discretion by the Court even where the application is delayed is to be governed by the objective of promoting public interest and good administration and on that basis it cannot be said that discretion would not be exercised in favour of interference where it is necessary to prevent continuance of usurpation of office or perpetuation of an illegality
839 F 3
In the present case the claim is for the issue of a writ of quo warranto on the ground that respondents are holding public offices having suffered disqualification as Member of the Assembly subsequent to their election and one of them continues to hold the high public office of Chief Minister
The relief claimed in the present case in not the conferment of a personal benefit to the petitioners but for cessation of the usurpation of public offices held by respondents
Thus the relief claimed by the appellants in their writ petitions filed in the High Court being in the nature of a class action without seeking any relief personal to them should not have been dismissed merely on the ground of laches
837 C D 839 H 840 A 31
The motive or conduct of the appellants as alleged by the respondents can be relevant only for denying them the costs even If their claim succeeds but It cannot be a justification to refuse to examine the 824 merits of the question raised therein since that is a matter of public concern and relates to the good governance of the State itself 840 A B 4
The remedy of an election petition Is statutory governed by the limitation prescribed therein unlike the remedy under Article 226 of the Constitution
That apart the analogy which is more apposite is the decision on questions as to the disqualification of Members in accordance with Article 103 in the case of a Member of Parliament or Article 192 in the case of a Member of a House of a Legislature of a State
For raising a dispute giving rise to any question whether a Member of a House has become subject to any of the disqualification mentioned in clause 1 of Article 102 or 191 as the case may be there is no prescribed limitation and so also for challenging the decision rendered under Article 103 or 192 by a writ petition
The question of the disqualification of a Member on the ground of defection and the Speaker s order thereon rendered under the Tenth Schedule is of a similar nature and not based on the result of an election which can be challenged only by an election petition in accordance with the provisions of Representation of the People Act 1951
834 F H 835 A AG vs Proprietor of the Bradford Canal 1866 LR 2 Equity Cases 71 relied on
Brundaban Nayak
V Election Commission of India and Anr 19651 3 SCR 53 explained and held inapplicable
The Lindsay Petroleum Company vs Prosper Armstrong Hurd Abram Farewell and John Kemp  The Moon Mills Ltd vs MR Meher President Industrial Court Bombay and Ors
AIR  Maharashtra State Road Transport Corporation vs Shri Balwant Regular Motor Service Amravati  Ors   Ms Tilok chand  Motichand  Ors
vs HB Munshi  Anr  Shri Vallabh Glass Works Ltd  Anr
vs Union of India  Ors
  Ms Dehri Rohtas Light Railway Company Ltd vs District Board Bhojpur  Ors  Emile Erlanger and Ors
vs The New Sombrero Phosphate Company and Ors 1878 3 Appeal Cases 1218 Anachuna Nwakobi The Osha of Obosi and Ors
vs Eugene Nzekwu  Anr  Everett vs Griffiths 1924 1 KB 941 R vs Stratfort on Avon District Council and Anr
ex parte Jackson and Caswell and Anr
vs Dairy Produce Quota Tribunal for England and Wales   held inapplicable
825 5
The Speaker has no power of review under the Tenth Schedule and an order of disqualification made by him under para 6 thereof Is subject to correction only by judicial review
841 F Khoto Hollohan vs Zachillu and Ors 1992 Supp 2 SCC 651 referred to
Observations in Patel Narshi Thakershi  Ors
vs Pradyumansinghji Arjunsinghji AIR 1970 SC 1273 to the effect that the power to review is not inherent power and must be conferred by law either specifically or by necessary implications relied on
51There is no scope for reading in to the Tenth Schedule any of the powers of the Speaker which he otherwise has while functioning as the Speaker in the House to clothe him with any such power in his capacity as the statutory authority functioning under the Tenth Schedule of the Constitution
Accordingly any power of the Speaker available to him while functioning in the House is not to be treated as his power of privilege as the authority under the Tenth Schedule
842 G H 843 A Rule 77 of the Members of the Goa Legislative Assembly Disqualification on grounds of Defection Rules 1986 and Rule 77 of the Rules of Procedure and Conduct of Business of the Goa Legislative Assembly held inapplicable
Para 7 has to be treated as non existent in the Tenth Schedule from the very inception
As held by the majority in Kihoto Hollohan judicial review is available against an order of disqualification made by the Speaker under para 6 of the Tenth Schedule notwithstanding the finality mentioned therein
It is on account of the nature of finality attaching by virtue of para 6 that the judicial review available against the Speaker s order has been labeled as limited in Kihoto Hollohan and the expression has to be understood in that sense distinguished from the wide power in an appeal and no more
Thus the Speaker s order is final being subject only to judicial review according to the settled parameters of the exercise of power of judicial review in such cases
The existence of judicial review against the Speaker s order of disqualification made under para 6 Is Itself a strong indication to the contrary that there can be no Inherent power of review in the Speaker read in the Tenth Schedule by necessary Implication
845 B E 826 7
There is no merit in the submission that the power of review inheres in the Speaker under the Tenth Schedule as a necessary incident of his jurisdiction to decide the question of disqualification or that such a power existed till 12th November 1991 when the decision in Kihoto Hollohan was rendered or at least a limited power of review inheres in the Speaker to correct any palpable error outside the scope of judicial review
845 F G Kihoto Hollohan vs Zachillhu and Ors 1992 Suppl
2 SCC 651 explained
Shivdeo Singh  Ors
vs State of Punjab  Ors AIR 1963 SC 1909 and Grindlays Bank Ltd vs Central Government Industrial Tribunal  Ors   distinguished
The impugned orders of the High Court dismissing writ Petitions are setaside
The orders made by the Acting Speaker in purported exerciseof power of review are nullity and liable to be ignored
847 E F