IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) FRIDAY, THE NINTH DAY OF OCTOBER TWO THOUSAND AND NINE PRESENT THE HON'BLE SRI JUSTICE GODA RAGHURAM AND THE HON'BLE SRI JUSTICE RAMESH RANGANATHAN WRIT PETITION NO : 23983 of 2008 Between: Sri I. Surendra S/o. Rangaiah R/o. 20-1-415/A, Subhash Nagar, Tirupati, Chittoor Dist. ..... PETITIONER AND 1 The Govt. of A.P. Rep. by its Prl. Secretary Secretariat, A.P., Hyderabad. 2 Sri Venkateswara Institute of Medical Sciences Rep. by its Chairman Tirupathi, Chittoor District. 3 The Chairman Sri Venkateswara Institute of Medical Sciences Tirupathi, Chittoor District. 4 Dr. G. Subramanyam S/o. & age not known Tirupathi, Chittoor District. .....RESPONDENT(S) Petition under Article 226 of the constitution of India praying that in the circumstances stated in the Affidavit filed herein the High Court will be pleased to issue a writ order or direction especially one in the nature of writ of mandamus declaring that (a) the pay fixation made by the respondents 1 to 3 in favour of Respondent No.4 as illegal, and arbitrary (b) appointment of 4th respondent as Professor, Cardiology in the 2nd respondent institute as illegal and arbitrary (c) allowing the 4th respondent as Director of 2nd respondent and continuing him as Professor of Cardiology as illegal and arbitrary (d) action of the 2nd respondent in not taking action against the 4th respondent for committing several financial and administrative irregularities as illegal and arbitrary. Counsel for the Petitioner: MR.M.SURENDER RAO Counsel for the Respondent No.: GP FOR MEDICAL HEALTH & FAMI.WELFARE The Court made the following : Form-NIC-OGS/WP{KBJ} THE HON'BLE SRI JUSTICE GODA RAGHURAM AND THE HON’BLE SRI JUSTICE RAMESH RANGANATHAN WRIT PETITION No. 23983 OF 2008 ORDER: (Per The Hon’ble Sri Justice Ramesh Ranganathan) The validity of G.O.Ms. No.826 dated 18.11.2006 whereby the fourth respondent was re-appointed as the Director of the second respondent Institute for a three year term upto 18.11.2009, and his continuance in the said office beyond the age of 65 years, is under challenge in this writ petition. Re- appointment of the fourth respondent as Director, by G.O.Ms. No.826, is questioned on the ground that it is for a fourth term and falls foul of Section 17(1) of the Sri Venkateswara Institute of Medical Sciences Act, 1995, (hereinafter referred to as A.P. Act 12 of 1995). His continuance as a Director, after he attained the age of 65 years, is said to be in contravention of the statutory regulations made under the Indian Medical Council Act, 1956. 2. While the petitioner also questions the pay fixation of the fourth respondent, and the failure of the second respondent to take action against him for committing financial and administrative irregularities, we see no reason to examine these aspects as the affidavit filed in support of the writ petition is bereft of even the basic particulars and as this Court would, ordinarily, not examine matters relating to conditions of service in a writ petition filed in public interest. 3. The fourth respondent, erstwhile Head of the Department of Cardiology in the Sri Venkateswara Medical College and SVRR Hospital, Tirupathi, was appointed by the third respondent, under Section 17(1) of A.P. Act 12 of 1995, as the Director of the second respondent institute. The appointment, notified in G.O.Ms. No.580 dated 10.11.1999, was for a term of three years from the date he took charge of the office. The fourth respondent assumed charge on 19.11.1999 and his three year term expired on 18.11.2002. The third respondent, in exercise of his powers under Section 17(5) of A.P. Act 12 of 1995, appointed the fourth respondent, by G.O.Ms. No.437 dated 18.11.2002, as the Director of the Institute with immediate effect until further orders. By G.O.Ms. No.679 dated 18.11.2003 the third respondent, in exercise of his powers under Section 17(1) of A.P. Act 12 of 1995, re-appointed the fourth respondent as the Director of the Institute for a period of three years from the date he took charge. As the third respondent took charge on 18.11.2003 itself the three year term expired on 18.11.2006. Again, by G.O.Ms. No.826 dated 18.11.2006, the third respondent, in exercise of his powers under Section 17(1) of A.P. Act 12 of 1995, re-appointed the fourth respondent as the Director of the Institute for another term of three years. Around the time he was reappointed as Director, by G.O.Ms. No.826 dated 18.11.2006, the fourth respondent had crossed 65 years of age. While the present three year term is to expire on 18.11.2009, this Writ Petition, questioning the reappointment, was filed on 30.09.2008. 4. Before examining the challenge, to the fourth respondent’s re-appointment/continuance in office, on merits, the preliminary objections raised, including on the maintainability of the writ petition, must be dealt with. Though a counter affidavit is filed by the fourth respondent, Sri Ghanta Rama Rao, learned Counsel appearing on his behalf, would submit that, since Sri C.V. Mohan Reddy, learned Senior Counsel appearing on behalf of the fourth respondent, is not available hearing of the writ petition be adjourned. Learned Counsel would submit that he has no instructions to put forth his submissions and it would suffice if this Court were to record his inability to do so. 5. A request for adjournment on the ground of absence of Senior Counsel would, normally, have been accepted. However this writ petition has already undergone several adjournments at the behest of the respondents. The writ petition was filed on 30.09.2008. Notice was issued to the respondents on 24.04.2009 returnable on 19.06.2009. The matter was adjourned, periodically thereafter, to 03.07.2009, 08.07.2009 and 03.08.2009. On 04.08.2009, when a request was made for grant of further time to file counter-affidavits this Court, while recording the repeated adjournments sought for earlier, observed that it was open to the respondents to file their counter-affidavit by the next date of hearing, failing which the response by the respondents would be treated as non-traverse. As there was no representation when the writ petition was listed on 17.08.2009, the matter was posted to 19.08.2009 under the caption “for dismissal”. It was, thereafter, adjourned to 20.08.2009 for hearing. On 20.08.2009, this Court elaborately heard both Sri M. Surender Rao, learned Counsel for the petitioner and the learned Government Pleader appearing on behalf of respondent Nos. 1 and 3 and, at the request of Sri Ghanta Ramarao, learned Counsel appearing for the fourth respondent, adjourned the matter to 24.08.2009 to enable him to file a counter-affidavit. Again on 24.08.2009, the matter was adjourned to 26.08.2009 on which date this Court heard the learned Senior Counsel appearing on behalf of the fourth respondent. At his request the matter was adjourned to 01.09.2009. As the writ petition was not taken up for hearing thereafter, on a request made by the Learned Counsel for the petitioner on 23.09.2009, the writ petition was directed to be listed for hearing on 24.09.2009 at 2.15 pm. When adjournment was sought again on behalf of the fourth respondent, this Court declined and posted the writ petition for hearing on 25.09.2009. On 25.09.2009 elaborate submissions were again put forth by Sri M. Surender Rao, Learned Counsel for the petitioner, the Learned Government Pleader for the first and third respondents and Smt. Y. Sarada, learned Standing Counsel for the second respondent. As Sri G. Rama Rao, Learned Counsel for the fourth respondent, refused to argue, and as it seemed to us that the numerous adjournments sought for was only to drag on proceedings and thereby render the writ petition infructuous, hearing was closed and judgment was reserved in the writ petition. 6. The locus standi of the petitioner to file the writ petition is questioned by Smt. Y. Sarada, learned Standing Counsel for the second respondent Institute. She would submit that the petitioner has not furnished details of his credentials, that the pleadings are silent as to the public injury caused on the fourth respondent being appointed as a Director, that the fourth respondent’s current term of three years is due to expire by 18.11.2006, that the petitioner has not even submitted a representation to the authorities in this regard and that he cannot, therefore, maintain the writ petition. She would rely on Dattaraj Nathuji Thaware v. State of Maharashtra[1]; Ashok Kumar Pandey v. State of West Bengal[2]; T N Godavaram Thirumalpad v. Union of India[3]; D. Siva Prasad v. Government of Andhra Pradesh[4]; Janata Dal v. Harinder Singh Chowdhary[5] and Common Cause, A Registered Society v. Union of India[6]. 7. In Dattaraj Nathuji Thaware1, the Nagpur Bench of the Bombay High Court dismissed the writ petition holding that the petitioner had resorted to blackmail and was caught red-handed accepting ‘blackmailing’ money. It is in this factual context that the Supreme Court held that when there was material to show that a petition, styled as a public interest litigation, was nothing but a camouflage to foster personal disputes, the said petition should be thrown out. 8. In Ashok Kumar Pandey2 the relief sought for, in a writ petition filed under Article 32, was that the death sentence imposed by the Sessions Court on a person, which was affirmed by the Calcutta High Court and the Supreme Court, needed to be converted into a life sentence as the death sentence had not been imposed for a long time. In this factual matrix the Supreme Court observed that a mere obsession based on religious belief, or any other personal philosophy, cannot be regarded as a legal disability of the type recognized by the Code or any other law which would permit initiation of proceedings by a third party. 9. In T.N. Godavarman Thirumulpad3 the question which fell for consideration was whether the land measuring about 15 hectares, leased by the State of Chhattisgarh to M/s Maruti Clean Coal and Power Limited for setting up of a coal washery, was a part of forest land or not. The Supreme Court observed that lakhs of rupees had been spent by the applicant and/or on his behalf to prosecute the litigation, that the applicant’s income tax returns showed that he hardly had any means to incur the huge amounts which had been spent to pursue the litigation, that the application was not bonafide, that the applicant been set up by others and he was nothing but a name-lender. The Supreme Court further held that, even on facts, there was no substance in the plea that the land allotted to “Maruti” was forest land. 10. In Janata Dal5, the question which arose for consideration before the Supreme Court was whether a Judge of a High Court, in exercise of his inherent power, was justified in directing the office of the High Court to register a case so that he could exercise his discretionary revisional and inherent powers to initiate suo motu proceedings and quash the FIR and the proceedings connected therewith. The Supreme Court observed that it shocked their judicial conscience that the Learned Judge, before whom no aggrieved or affected party had come challenging the FIR, had taken suo motu action and had recorded a categorical assertion that ‘no offence’ was made out in the FIR. 11. In Common Cause6 the Supreme Court held that under public law, it was the dispute between the citizen or a group of citizens on the one hand and the State or other public bodies on the other, which was resolved and this was done to maintain the rule of law and to prevent the State or the public bodies from acting in an arbitrary manner or in violation of that rule. The Supreme Court further observed that those branches of law which dealt with the rights/duties and privileges of public authorities and their relationship with the individual citizens of the State pertained to “public law”, such as constitutional and administrative law, in contradistinction to “private law” fields which were those branches of law which dealt with the rights and liabilities of private individuals in relation to one another. 12. In D. Siva Prasad4 the petitioner, a practicing advocate who had nothing to do with admissions against B-category seats in under-graduate professional courses in Engineering, filed a writ petition, as a public interest litigation, to strike down the statutory rules and for issuance of a mandamus to ensure that admissions were made by the colleges after issuing a notification in the newspapers. He also prayed for issuance of directions to the colleges to supply application forms to all the candidates and make admissions in a fair manner as per merit. It is in this factual background that the Division Bench of this Court held that the writ petition as filed was not a bonafide public interest litigation, that it was a publicity gimmick and was liable to be dismissed at the threshold. 13. In the present case, the challenge to the fourth respondent’s re-appointment as Director of the second respondent Institute, and his continuance in the said office beyond 65 years of age, has been made in a writ petition under Articles 226 of the Constitution, to which he is arrayed as a respondent eo-nominee. The challenge is made directly in a substantive proceeding and not collaterally. Being a party to the writ petition the fourth respondent had a clear and rightful opportunity to defend himself. The facts necessary for challenging his re-appointment/continuance in the post of Director beyond 65 years are stated clearly in the writ petition and the challenge is expressly made on the ground that he was not qualified to hold/continue to hold the post of a Director of the second respondent institute. The relief of mandamus asked for was certainly inappropriate. The mere circumstance that the petitioner did not, in so many words, ask for the writ of quo warranto cannot justify the argument that the writ petition is not maintainable. There is no magic in the use of a formula. It is open to this Court, in the exercise of its jurisdiction under Article 226, to consider the validity of the fourth respondent’s reappointment/ continuance in the post of Director of the second respondent Institute, for if it were to find that a person appointed to this office is not eligible or qualified to hold that post, the appointment has to be declared invalid by issuing a writ of quo warranto or any other appropriate writ or direction. To strike down usurpation of office is the function and duty of High Courts in the exercise of their constitutional powers under Articles 226. (State of Haryana v. The Haryana Cooperative Transport Ltd[7]). 14. Grant of relief under Article 226 of the Constitution is based on the existence of a right in favour of the person invoking the jurisdiction of the High Court. The exception to the general rule is only in cases where the writ applied for is a writ of habeas corpus or a quo warranto or a writ filed in public interest, (Vinoy Kumar v. State of UP[8]) , where the rule of locus standi is relaxed. (Jasbhai Motibhai Desai v. Roshan Kumar, Haji Bashir Ahmed[9]). In Quo-Warranto proceedings the applicant does not seek to enforce any right of his as such, nor does he complain of any non-performance of duty towards him. What is in question is the right of the non-applicant to hold the office and an order that is passed is an order ousting him from office. The legality of an appointment to high office can be challenged by any citizen. (M.S. Mahadeokar v. Chief Commissioner, Territory, Chandigarh[10]). 15. An information would lie even at the instance of a relator who has no personal interest in the matter. Information in the nature of quo warranto can be filed on the relation of private parties. It is open to a private individual to bring it to the notice of the Court that a person who is disqualified to hold an office is still holding it. A person who is not legally entitled to hold an office should not be permitted to hold it. (Venkataraya v. Sivarama Prasad[11]). A writ petition, even at the instance of a busy body, for issuance of a writ of quo warranto would be maintainable. (N. Kannadasan v S. Ajoy Khose[12]). 16. The petitioner’s lack of credentials to file this writ petition is also of no consequence, for if any other member of the public, to whom lack of credentials of the petitioner in the present case cannot be attributed, could file such a writ petition, this disability on the ground of lack of credentials would not attach to him. This being so, the relief claimed by the petitioner in the writ petition, without seeking any relief personal to him, ought not to be dismissed merely on this ground, since this is a matter of public concern. (Dr. Kashinath G. Jalmi v. The Speaker[13]). 17. We see no reason to non-suit the petitioner on the ground of locus standi as neither the strict rules of standing, nor his lack of credentials would justify the fourth respondent continuing in office as a Director of the second respondent Institute, if it falls foul either of the statutory provisions under A.P. Act 12 of 1995 or the statutory regulations made under the Indian Medical Council Act, 1956. The preliminary objections to the maintainability of the writ petition must, therefore, fail. 18. As the fourth respondent’s reappointment/continuance in office as Director of the Institute is contended to be in violation of statutory provisions, it is only in quo-warranto proceedings can these contentions be examined. A writ of quo warranto is a writ which lies against the person who, according to the relator, is not entitled to hold an office of a public nature and is only a usurper of the office. It is the person, against whom the writ of quo warranto is directed, who is required to show by what authority he is entitled to hold the office. The challenge can be made on various grounds including on grounds that the possessor of the office does not fulfill the required qualifications or suffers from any disqualification, which debars him from holding such office. (B.R. Kapur v. State of Tamilnadu[14]). Quo warranto proceedings afford a judicial enquiry in which the person, holding an independent substantive public office or franchise, is called upon to show by what right he holds the said office or franchise. If the inquiry leads to the finding that the holder of the office has no valid title to it, issue of a writ of quo waranto ousts him from that office. The procedure of quo warranto confers jurisdiction and authority on the judiciary to control executive action in the matter of making appointment to public offices against the relevant statutory provisions. These proceedings tend to protect the public from usurpers of public office. 19. Before a citizen can claim a writ of quo warranto he must satisfy the Court, inter alia, that the office in question is a public office and is held by an usurper without legal authority, and that necessarily leads to the enquiry as to whether appointment of the alleged usurper has been made in accordance with law or not. (University of Mysore v. Govinda Rao[15]). A writ of quo warranto can be issued when the holder of a public office has been appointed in violation of constitutional or statutory provisions. Quo warranto proceedings afford a judicial remedy for removal of the usurper, from the office which he holds without title, by a judicial order. The proceedings give a weapon to control the executive from making appointments to a public office against the law. (N. Kannadasan12). 20. Let us now briefly record the rival contentions. Sri M. Surender Rao, learned Counsel for the petitioner, would submit that, under Section 17(1) of A.P. Act 12 of 1995, the maximum period for which a person can be appointed as a Director of the second respondent Institute is three terms and, since the fourth respondent was appointed for three terms, by G.O.Ms. No.580 dated 10.11.1999, G.O.Ms. No.437 dated 18.11.2002 and G.O.Ms. No.679 dated 18.11.2003, his re-appointment thereafter, by G.O.Ms. No.826 dated 18.11.2006, is for a fourth term and violates Section 17(1) of A.P. Act 12 of 1995. 21. On the other hand, the Learned Government Pleader, appearing on behalf of the respondent Nos.1 and 3, would submit that the period of three terms, of upto three years each, under Section 17(1) would apply only where the person is appointed as a Director from out of the panel of names recommended by the committee, that the period of one year for which the fourth respondent was appointed as the Director of the Institute under Section 17(5) cannot be reckoned as a term under Section 17(1), that the fourth respondent was appointed as the Director, by G.O.Ms. No.826 dated 18.11.2006, only for a third term of three years and that such appointment does not fall foul of Section 17(1) of A.P. Act 12 of 1995. 22. We are not inclined to examine the validity of G.O.Ms. No.826 dated 18.11.2006, on the ground of violation of Section 17(1) of A.P. Act 12 of 1995, as we are satisfied, for reasons hereinafter assigned, that his continuance in the post of Director beyond 65 years of age is illegal as it runs contrary to the Statutory Regulations made under the Indian Medical Council Act, 1956. On this aspect Sri M. Surendra Rao, Learned Counsel for the petitioner, would submit that the fourth respondent, on his own admission, is 68 years old as at present, that the Regulations, made under the Indian Medical Council Act, 1956, prescribe the maximum age limit, upto which a person can be re- employed as a Director of a medical college/Institution, as 65 years and, as the fourth respondent crossed 65 years of age more than three years ago, he could neither have been reappointed nor can he continue, thereafter, as the Director of the second respondent Institute. 23. In support of his contention that the upper age limit of 65 years would apply only to a Director who is also a teacher and not to a non-teaching Director of a medical institution, Learned Government Pleader would submit that the “Minimum Qualification for Teachers in Medical Institutions Regulations, 1998”, as is evident from its title, prescribes the qualifications for teachers in medical institutions and that the fourth respondent, who was earlier both the Director of the Institute and the Professor of Cardiology, ceased to be a Professor on completing the age of 65 years. 24. Section 2(b) of A.P. Act 12 of 1995 defines a “Director” to mean the Director appointed under Section 17. Section 7(d) prescribes the Director to be amongst the officers of the Institute. Section 17 stipulates the method of appointment of a Director and Section 18 his powers and duties. It is amply clear that the office of Director of the second respondent Institute is a public office governed by the statutory provisions of A.P. Act 12 of 1995. 25. The Indian Medical Council Act, 1956 is an Act of Parliament made under Article 246(1) read with Entry 66, List 1 of the VII Schedule to the Constitution of India. A.P. Act 12 of 1995 is a law made under Article 246(2) read with Entry 25 of List III of the VII Schedule to the Constitution. Entry 25 of List III is itself subject to the provisions of Entry 33 of List 1 of the Seventh Schedule. As such, the provisions of the Indian Medical Council Act, 1956 would prevail notwithstanding anything to the contrary in A.P. Act 12 of 1995. Section 33 of the Indian Medical Council Act, 1956 empowers the Medical Council of India, with the previous sanction of the Central Government, to make regulations to carry out the purposes of the Act. Such powers include, under clause (k), the power to make regulations prescribing the standards of staff, equipment, accommodation, training and other facilities for medical education. 26. In exercise of the powers conferred under Section 33 of the Indian Medical Council Act, 1956, the