THE HON’BLE SRI JUSTICE G. CHANDRAIAH WRIT PETITION No. 15646 of 2004 Date: 25th February, 2011 Between: G. Ravindra Prasanna Kumar … Petitioner A n d The Government of Andhra Pradesh rep. by the Principal Secretary to Government and 4 others … Respondents THE HON’BLE SRI JUSTICE G. CHANDRAIAH WRIT PETITION No. 15646 of 2004 ORDER: The writ petition is filed by the petitioner seeking for issue of order in the nature of Quo-Warranto, and call for records pertaining to the services of the second respondent under the first, third and fourth respondents and declare that the second Respondent is not entitled to the post of Chief Engineer, Tribal Welfare, Government of Andhra Pradesh and pass necessary orders reverting him to the post of Assistant Engineer to which he is entitled as per the Rules. 2. The petitioner claims to be working as Office Superintendent in the Office of Superintending Engineer, Social Welfare, Hyderabad Circle. Initially, he was appointed on compassionate grounds as Junior Assistant in the Office of Superintending Engineer, Social Welfare, Hyderabad Circle on 24.01.1987, upon expiry of his father, who was in Government service. He was promoted as Senior Assistant in the same office during 1990 and again as Office Superintendent in the same office in 1993. The second respondent, the Unit Officer and is his superior, holding office on additional charge. While working in proximity with the second respondent, he came to know of various irregularities committed by him during his service whereby he has now attained the high office of a Chief Engineer, Tribal Welfare, without eligibility of qualifications and in violation of tenets of law. Therefore, the present writ petition is filed. 3. It is also averred by the petitioner in the affidavit that the second respondent passed H.S.C and Draughtsman (Civil) I.T.I. Certificate Course. He entered Government service as Draughtsman Grade-III in the Panchayat Raj Department on 12.10.1979. By proceedings No.D1/1510/77 dated 17-11-1980 of the Chief Engineer, Panchayat Raj Department, the second respondent was appointed as Supervisor in the Panchayat Raj Department and was allotted to the office of Executive Engineer, Panchayat Raj Department, Mehaboobnagar and joined as such on 01-01-1981. He claimed to have acquired a Civil Engineering Diploma in June 1980 and that he has also passed the Accounts Test for P.W.D. Officers in 1981. His services as an Additional Assistant Engineer in the Panchayat Raj Department, Mehaboobnagar Division were regularized and his probation was deemed to have been commenced in the category of Draughtsman Grade-III with effect from 12-10-1979. His probation was declared to have been completed on 11-10-1981 vide Proceedings No.A3/6442/75 dated 19-08-1982. In 1987, he was sent on deputation to the Andhra Pradesh Scheduled Castes Cooperative Finance Corporation Limited (for brevity, “the Corporation”) by the Chief Engineer, Panchayat Raj (General), Hyderabad, vide Proceedings No.D2/44296/86 dated 22-01-1987. The Managing Director of the Corporation under Proceedings No. MD/APSCCFC Proc. No.E1/9434/APSC/86 dated 27-01-1987 straightaway posted the second Respondent as In-Charge Deputy Executive Engineer though he was deputed from the post of Assistant Engineer from the Panchayat Raj Department. Subsequently, the Managing Director of the Corporation, under Proceedings No.E2/609/APSC/87 dated 22-04- 1987 extended to the second respondent the pay scale attached to the post of Deputy Executive Engineer with effect from 28-01-1987 in the scale of Rs.1980 – 3500. 4. The deputation of the second respondent was extended under the Proceedings dated 11-02-1988 and 03-01-1989 by the Panchayat Raj Department. Subsequent to the change of Managing Director in the Corporation, Proceedings were issued by the Managing Director of the Corporation in No.E2/9434/APSC/86 dated 14-03-1990 posting one Sri.N.Ramachander Rao, a regular Deputy Executive Engineer in the Panchayat Raj Department in the place of the second respondent. At that time, the Managing Director of the Corporation addressed the Chief Engineer of the Panchayat Raj Department to withdraw the services of the second respondent from the Corporation. Aggrieved by the same, the second respondent filed W.P.No.4305 of 1990, but later the same was withdrawn as he managed to get the Government Orders under G.O.Rt.No.548 dated 19-03-1990 of the Panchayat Raj Department extending the deputation of the second respondent from 24-01-1990 upto 23-01-1991. Meanwhile, the Chief Engineer, Panchayat Raj Department, basing on the request of the Managing Director of the Corporation issued proceedings No.D2/44296/74 dated 20-04-1990 withdrawing the deputation of the second respondent from the Corporation, realizing that his continuation in the Corporation under the orders of the Panchayat Raj was not proper. Then the second respondent managed to get a fresh Government Order from the Social Welfare Department vide G.O.Rt.No.316 Social Welfare (SCP II) Department, dated 14-05-1990 whereby the Corporation was directed to retain the second respondent as Deputy Executive Engineer either in Ranga Reddy District or some place nearby. Then the second respondent represented the Corporation on 29-05-1990 seeking suitable posting as a Deputy Executive Engineer. At that stage, he withdrew the writ petition No.4305 of 1990 under order dated 20-07-1990. No posting orders were issued to him. Therefore, he filed writ petition No.8517 of 1990 seeking implementation of G.O.Rt.No.316 dated 14-05-1990 and G.O.Rt.No.548 dated 19-03-1990. Aggrieved by the issuance of G.O.Rt.No.316 dated 14-05-1990, Sri.N.Ramchander Rao who was posted in the place of second respondent filed writ petition No.9353 of 1990 which was dismissed by order dated 03-07-1990 holding that he could not make out any case. Aggrieved by the same, Sri.N.Ramchander Rao filed a Writ Appeal No.810 of 1990 which was taken up for hearing along with Writ Petition No.8517 of 1990 filed by the second respondent. The Division Bench of this Court by its order dated 18-09-1990 quashed G.O.Rt.No.316 dated 14-05-1990 holding it to be arbitrary and further dismissed Writ Petition No.8517 of 1990 filed by the second respondent. Having regard to the observation made by the Division Bench, the second respondent preferred an Appeal before the Board of Directors of the Corporation seeking to be retained in the Corporation as a Deputy Executive Engineer (I/c) and assailing the proceedings of Managing Director of the Corporation under Proceedings dated 14-03-1990. The said Appeal also was rejected and the Managing Director of the Corporation under Proceedings No.E2/2945/APSC/90 dated 28-09-1990 posted the second respondent as Assistant Engineer in the Hyderabad Division. The second respondent did not join the posting, but he has taken recourse to get the posting through Chief Engineer, Tribal Welfare, vide Proceedings No.B1/425/90 dated 20-10-1990. The Chief Engineer, Tribal Welfare, is not competent to issue posting orders to second respondent who continued to be in the services of the Corporation. However, the second respondent joined at the Gajwel special Sub- Division of the Corporation as a Deputy Executive Engineer In-charge on 23-10-1990 without the knowledge of the Managing Director of the Corporation and continued as such till the year 1994. During the time, he continued to draw the pay and allowances attached to the post of Deputy Executive Engineer illegally. 5. The second respondent some how managed to manufacture a Government Order under G.O.Rt.No.614 Social Welfare (V) Department dated 17-10-1990, wherein it was made to appear as if the services of the second respondent in the capacity of Deputy Executive Engineer were transferred from A.P.S.C.C.F.C.L to the office of the Chief Engineer, Tribal Welfare. The Chief Engineer, Tribal Welfare, vide Proceedings No.B1/262/92 dated 29-01-1994 has ordered for the closure of the sub-division at Gajwel. The second respondent has assumed charge at Hyderabad where he opened the sub-division in the office of the Chief Engineer, Tribal Welfare, Hyderabad. Accordingly, he joined as Deputy Executive engineer on 05-02-1994. All through his tenure in the services of the Corporation, the second respondent held charge as though he was a regular Deputy Executive Engineer. On 28-04-1994, the Government of Andhra Pradesh issued G.O.Rt.No.674 Social Welfare (VI) Department dated 28-04-1994 regularizing the services of the second respondent in the Tribal Welfare Department assuming that he was a regular employee of the Tribal Welfare Department and placing him on probation in the category of Deputy Executive Engineer with effect from 24-10-1990 under the Special Rules of A.P. Tribal Welfare Engineering Services which were issued much later on 12-4-1994, which is illegal. By the same order, he was declared to have satisfactorily completed the period of probation on 23-10-1991. Thereafter, the Government issued G.O.Ms.No.46 Social Welfare (V) Department dated 06-04-1995 promoting the second respondent as an Executive Engineer under Rule 37(a)(1) of the A.P. State and Subordinate Service Rules. He was transferred on deputation in that capacity to the Corporation and posted at Ranga Reddy Division by an other G.O. Thereafter, he was appointed as the In-charge Deputy Chief Engineer in the Office of the Chief Engineer, Tribal Welfare, Hyderabad as per G.O.Rt.No.463 Social Welfare (VI) Department dated 15-04-1997. His services were placed on probation and declared to have been completed also. Thereafter, no entries are found in the Service Register as pointed out by the Office of the Hon’ble Lok Ayukta, Government of Andhra Pradesh and several complaints were made before Hon’ble Lok Ayukta in Complaint Nos.1703 of 1997, 1703-A of 1997 and 997/98/B1. 6. It is stated that the second respondent does not have the minimum qualifications to hold the post of Superintending Engineer to which post he was promoted later on. Therefore, the Petitioner has sought for issuance of writ, in the nature of Quo-Warranto. 7. The Government-the first respondent filed a counter affidavit in the Writ Petition. In paragraph No.7 of the counter affidavit, it is stated as under:- “It is submitted that in the year 1995 the incumbent was promoted on ad hoc basis as Executive Engineer in the time scale of Rs.4400-8700 under Rule 37(a)(i) of General Rules in Part-II of A.P. State and Subordinate service Rules vide G.O.Ms.No.46, Social Welfare (V) Department, dated 06-04-1995 after clearance of the Departmental Promotional Committee (DPC) on 22-03-1995 with the following sitting members and posted to Tribal Welfare Division Srisailam.” 8. In the counter affidavit, the first respondent stated that the allegations of the writ petitioner that he came to know several irregularities committed by the second respondent during the services, whereby he has attained the high office of a Chief Engineer, Tribal Welfare Department without eligibility and qualifications and in violation of all the tenets of law is absolutely incorrect and the same was made with a view to defame him as Head of the Department. It is stated that the Writ Petitioner has made several allegations without any basis. When the service of the second respondent was taken in the Tribal Welfare Department and orders were passed by the competent authority in absorbing his services in the post of Deputy Executive Engineer, vide G.O.Rt.No.614, Social Welfare (V) dated 17- 10-1990. Subsequently orders were issued vide G.O.Rt.No.674 dated 24-08-1994 for regularizing his services. After taking into consideration his eligibility and recommendations of the DPC, the second respondent was given promotion as Executive Engineer vide G.O.Ms No.46, dated 06-04-1995. Thereafter, his services were regularized as Executive Engineer as per the orders in G.O.Ms.No.96 dated 09-07-1997 with effect from 09-04-1996. In view of the fact that the post of Superintending Engineer was fallen vacant, the case of second respondent was considered and accordingly he was given promotion as Superintending Engineer as per the recommendations of DPC dated 01-10-2001 and orders in G.O.Ms.No.95 dated 10-10- 2001. Thereafter, his services were regularized as Superintending Engineer as per orders in G.O.Ms.No.22 dated 05-03-2004 of Social Welfare (TW.Ser.II-I) Department. In the said post, the second respondent has worked till 07-07-2004 and thereafter he was further promoted to the post of Chief Engineer as per the orders of Government in G.O.Ms.No.56, dated 07-07-2004. Since then the second respondent is working in the post of Chief Engineer. There was no deviation of any Rules in considering the eligibility criteria and in granting promotions to the second respondent. 9. It is also stated that in the entire averments of the Writ Petition, the Writ Petitioner alleged that the second respondent has usurped the office of the Chief Engineer and accordingly sought for Writ of Quo Warranto to remove him from the post of Chief Engineer. The said relief cannot be granted because the service of the second respondent was taken into the Tribal Welfare Department by following the Rules and he was also given promotions as per the Rules in vogue. When the second respondent was appointed by the Competent authority, the question of usurping the office of the Chief Engineer by the second respondent is totally misconceived as the second respondent has been appointed in accordance with law. It is also stated that the Writ of Quo Warranto will be issued only when any person usurping office without there being any orders of the Competent Authority. But in the present case, the second respondent was appointed validly. Therefore, no Writ of Quo Warranto will be issued. 10. With reference to the complaint No.350/2003/032, filed by the Writ Petitioner/Complainant in the Hon’ble Lok Ayukta and Upa Lok Ayukta, which was examined and rejected by the Hon’ble Lok Ayukta and Upa Lok Ayukta with an observation that “from any angle neither there is prima facie case nor there are sufficient grounds for conducting investigation or ordering to conduct investigation” and rejected the complaint. It is also stated that Complaint No.1703 of 97, 1703-A of 97 and 997/98 filed in Hon’ble Lok Ayukta which were closed vide its order dated 21-07-2000. Apart from that ACB authorities also enquired into the matter of absorption and promotions of the second respondent and have also rejected the complaint made against the second respondent. 11. The second respondent filed a counter affidavit stating that he has the necessary qualifications to hold the positions of different stages in different levels and from the initial appointment till the position held by him as Chief Engineer, Tribal Welfare, he held the positions under the orders of the Competent Authority and the said orders were issued in accordance with law. It is relevant to note Paragraph 4 of the counter affidavit, which reads as under:- “Respecting the averments made in para 1, I submit that in the facts and circumstances of the case no writ of quo-warranto could be issued against me. I submit that the post now I am holding is in consonance with the service regulations. I submit that I was taken into the Tribal Welfare Department as per the GOs and that were passed by the Competent Authority by absorbing my services to the post of Deputy Executive Engineer vide G.O.Rt.No.614 dated 17-10-90. I submit that subsequently G.O.Rt.No.674 dated 24-08-1994 was issued regularizing my services in the post of Deputy Executive Engineer. After taking into consideration of my eligibility and taking into account the recommendations of the Departmental Promotion Committee I was promoted as Executive Engineer by virtue of G.O.Ms No.46 dated 06-04-1995. My services were regularized as Executive Engineer in terms of G.O.Ms. No.96 dated 09-07-1997 with effect from 09-04-1996 when the post of Superintending Engineer fell vacant my case was considered and accordingly I was promoted to the said post as per the recommendations of DPC dated 01-10-2001 and orders were issued in G.O.Ms. No.95 dated 10-10-2001. My services to the post of Superintending Engineer were also regularized by virtue of G.O.Ms.No.22 dated 05.03.2004. I worked as Superintending Engineer till 07-07-2004 and thereafter, I was further promoted as Chief Engineer in terms of G.O.Ms.No.56 dated 07-07-2004. As such there is no deviation of any Rules or Regulations. In these circumstances no writ of quo-warranto can be entertained when one of the G.Os were challenged.” 12. The point for consideration is whether the petitioner is entitled for the relief sought for in the writ petition. 13. The learned counsel for the second respondent submits that the writ petition is not maintainable. He further submitted that allegations made by the petitioner against the second respondent are untenable under law and without any basis and therefore, the petition is liable to be dismissed. He further submitted that the Division Bench of this Court to which I am a member has dismissed the writ petition No.16147 of 2006 on 25.04.2008 filed by one V.Krishna Mohan, challenging the position held by the 2nd respondent herein as Chief Engineer. He also submitted that on 31-03-2009, the second respondent had retired from services pursuant to the G.O.Rt.No.258 dated 30-03-2009 issued by Government. Therefore, he submits that viewing from any angle, the writ petition is liable to be dismissed. 14. Under what circumstances the writ of quo warranto be issued, is to be examined. 15. The writ of quo warranto is a writ which lies against the persons who, according to the relator, is not entitled to hold an office of public nature and is only an usurper of 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 the grounds that the possessor of the office does not fulfil the required qualifications or suffers from any legal disqualifications which deprive him from holding such office. 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 enquiry leads to the finding that the holder of the office has no valid title right, issue of quo warranto 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 and, if the jurisdiction of the Court to issue a writ of quo warranto is properly invoked, the usurper can be ousted (see B.R.KAPUR v. STATE OF TAMILNADU[1]). 16. 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 (see UNIVERSITY OF MYSORE v. GOVINDARAO[2]). 17. 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 (see N. KANNADASAN v. S. AJOY KHOSE[3]). 18. If there is any complaint about appointment of an officer, who is not eligible under the statutory rules to be appointed, the proper remedy is to make an application for the issue of a writ of quo warranto (see MIR GHULAM HUSSAIN v. THE UNION OF INDIA[4]). 19. Having regard to the above legal position, the question requires to be examined is whether the petitioner is able to satisfy this Court that the second respondent was holding the position without any valid right. The Government filed a counter denying the various allegations made by the petitioner against the second respondent. The second respondent also filed a detailed counter while denying the allegations made by the petitioner against whom, inter alia, stated all the relevant orders under which he held the different positions till the date of retirement. Those factors were not disputed by the petitioner. Therefore, having regard to the facts and circumstances, the petitioner has not made out any case for issuance of quo warranto. 20. Secondly, making the similar allegation, one V. Krishna Mohan filed the writ petition No.16147 of 2006 against the 2nd respondent, seeking the following relief. “Writ 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 more particulary in the nature of quo warranto calling for the records pertaining to the promotion of the fifth respondent as Deputy Executive Engineer and further promotions including the current promotion to the post of Chief Engineer and declare that the fifth respondent is not entitled to hold the post of Chief Engineer, A.P.Tribal Welfare Engineering Services and also issue consequential directions to the post of fifth respondent back to his substantive post of Assistant Engineer in A.P. Panchayat Raj Engineering Service and pass such other order or orders as this Hon’ble Court may deem fit and proper.” 21. The Division Bench of this Court, by Judgment dated 25-04- 2008 dismissed the said writ petition with the following order. “On perusal of the material available on record, it is apparent that the petitioner except stating that the fifth respondent is not entitled to be promoted as Chief Engineer as he does not possess Engineering qualification and he made enquiries in this regard and found that the records have been manipulated, nothing was placed before this Court to substantiate his contentions. It is the case of the petitioner that in the interest of public, he filed the above writ petition. Since the allegations pertain to the services of an employee, the petitioner has to approach the appropriate forum instead of filing this writ petition by attributing baseless allegations. Apart from that, the petitioner has chosen to file any reply to the counter- affidavit wherein it is made clear that the entire processhas been done according to the procedure and as per the DPC recommendations. Silence on the part of the petitioner as to the allegations attributed against the fifth respondent and the official respondents without adducing any material and without filing any reply to the counter affidavit leads to draw an adverse inference against the attitude of the petitioner. In this view of the matter, we have no hesitation to hold that the present writ petition is devoid of merits and the same is liable to be dismissed. Accordingly, the writ petition is dismissed. No order as to costs.” 22. The learned counsel for the second respondent while making available the judgment rendered by this Court in Writ Petition No.16147 of 2006 also made available the proceedings in G.O.Rt.No.258 dated 30-03-1989 wherein the petitioner has retired from service, which reads as follows: “In pursuance of the order issued in the reference read above Sri.Mohd.Quamruddin, Engineer in Chief, Tribal Welfare who is due to retire from service on the A.N. of 31- 03-2009 on attaining the age of superannuation of 58 years, is hereby relieved of his duties in Tribal Welfare Engineering Department w.e.f. 31-03-2009 A.N” 23. From the above, it is clear that the writ petitioner is an Office Superintendent in the Office of the Superintending Engineer, Social Welfare, Hyderabad Circle. He has not stated in what capacity he has filed this writ petition and how he has the grievance with regard to the services rendered by the second respondent. Hence, the petitioner utterly failed to prove the allegation made against the second respondent. 24. For these reasons, no writ of quo warranto can be issued as sought for in the writ petition. 25. Accordingly, the writ petition is dismissed. No order as to costs. _______________________ JUSTICE G. CHANDRAIAH 25th February, 2011 KSM [1] 2001 (7) SCC 231 = 2002 (1) ALT 10.1 (DNSC) [2] AIR 1965 SC 491 [3] 2009 SCJ 187 = JT 2009 (J) SC 601 [4] AIR 1973 SC 1138