IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Public Interest Litigation No. 71 of 2010 Mohan Singh Bora S/o Late Ganga Singh Bora ..……… Petitioner Versus Union of India and others ……… Respondents Mr. Anil Kumar Tewari, Senior Advocate assisted by Mr. Apoorva Tewari, Mr. Prakar Mishra and Mr. Pradeep Hairiya, Advocates for the petitioner. Mr. S.N. Babulkar, Advocate General assisted by Mr. B.D. Upadhyaya, Addl. Advocate General for the respondent Nos. 2 and 3 / State. Mr. V.B.S. Negi, Asstt. Solicitor General for the respondent No. 1/ Union of India. Hon’ble Tarun Agarwala, J. Hon’ble V.K. Bist, J. (Delivered by Hon’ble Tarun Agarwala, J. The present writ petition has been filed in the nature of a public interest litigation seeking a writ of quo-warranto against Shri Subhash Kumar, respondent No.5 contending that he has illegally usurped the office of Chief Secretary, Government of Uttarakhand. The petitioner has also prayed for the quashing of the order dated 31st May, 2010 whereby the respondent No.5 has been promoted to the Chief Secretary’s Grade as well as the order dated 12th September, 2010 by which the respondent No. 5 has been appointed as the Chief Secretary of Government of Uttarakhand. The facts leading to the filing of the petition is, that the petitioner contends that he is a resident of Haldwani and is an agriculturist and has also extensive business interest. The petitioner contends that he is a regular income tax assessee and also a social activist and a staunch believer in the rule of law and has espoused all such causes for good governance for the benefit of the public at large. The petitioner contends that he currently holds the office of President of the Uttarakhand Cricket Board and is also the Manager of Mahatma Gandhi Inter College, Haldwani. The petitioner contends that being a citizen of Uttarakhand, he is 2 deeply interested in ensuring that the Government of Uttarakhand maintains the highest standards of probity and good governance. The petitioner contends that the office of the Chief Secretary in any State Government of the Country is a coveted public office and that the person who holds the post of the Chief Secretary is the head of the bureaucracy and, in that capacity, forms the bulwark of the independence of the permanent Government of any State. The petitioner contends that the appointment of respondent No. 5 as the Chief Secretary is without any authority of law and that the promotion granted to respondent No.5 in the Chief Secretary’s grade of pay was void abinitio and was granted without the mandatory prior concurrence as required under Rule 3 (2) (ii) of the Indian Administrative Service (Pay) Rules, 2007. The petitioner contends that the respondent No. 5 has usurped the public office of Chief Secretary without any authority of law and, therefore, has filed the present writ petition praying for a writ of quo-warranto. To support the contention, the service condition which governs the appointment and promotion of an I.A.S. officer on various posts is governed by India Services Act, 1951 and Indian Administrative Service (Pay) Rules, 2007 (hereinafter referred to as the Rules of 2007) vide notification dated 20th March, 2007 has been relied upon. Under the Rules of 2007, Rule 2 (m) defines promotion as under :- “ ‘promotion’ means appointment of a member of the Service to the next higher grade over the one in which he is serving at the relevant time” Rule 3 provides the scale of pay and appointment in these grades. Rule 3 (1) relates to above Super Time Scale. Clause (ii) thereof gives the pay scale as Rs.26,000/- (fixed) w.e.f. 1st 3 January, 1996. This pay scale has now been revised to Rs. 80,000/- under the 6th Pay Commission. Rule 3 (2) (i), (ii) and (iii) provides as under :- “(2) (i) Appointment to the Selection Grade and to posts carrying pay above this grade in the Indian Administrative Service shall be made by selection on merit, as per criteria that may be prescribed by the Central Government, with due regard to seniority: Provided that a member of the Service shall be appointed to the Super Time Scale only after he has completed phase IV mandatory Mid Career Training as prescribed. (ii) Appointment of a member of the Service in the scales of Selection Grade and above shall be subject to availability of vacancies in these grades and for this purpose, it shall be mandatory upon the State Cadres or the Joint Cadre Authorities, as the case may be, to seek prior concurrence of the Central Government on the number of available vacancies in each grade. (iii) The Central Government shall accord such concurrence within a period of thirty days from the date of receipt of such references and if the Central Government does not accord concurrence within a period of said thirty days, the concurrence on availability of vacancies shall be deemed to have been accorded. The position emanating as referred to this clause shall be placed before the Screening Committee at the time it meets to consider promotion in these grades.” A perusal of the aforesaid Rules indicates that appointment to the Selection Grade shall be made by selection on merit as per the criteria that may be prescribed by the Central Govt. with due regard to seniority and shall be made subject to availability of a vacancy. It further contemplates that it shall be mandatory upon the State Cadre to seek prior concurrence of the Central Govt. on the number of available vacancies in each grade. Sub-clause (iii) of Sub-rule (2) of Rule 3 further provides that the Central Govt. shall accord such concurrence within a period of thirty days from the date of the receipt of such reference and if the Central Govt. does not accord concurrence within the said period, the 4 concurrence on the availability of vacancies shall be deemed to have been accorded by the Central Govt. The fixation of the cadre strength in the Government of Uttarakhand has been made by the Central Govt. in consultation with the Government of Uttarakhand pursuant to which the Indian Administrative Service (Fixation of Cadre Strength) Sixth Amendment Regulations, 2004 was issued by a notification dated 04/10/2004 (hereinafter referred to as the Regulations of 2004). Under these Regulations, two cadre posts have been fixed in the pay scale of Rs. 26,000/-, namely, the post of Chief Secretary and the post of Director General, Uttarakhand Administrative Academy, Nainital. In addition to the cadre posts, 13 posts known as State Deputation Reserves have been provided under the Regulation 8 of the aforesaid Regulations of 1954. Cadre and ex- cadre posts are required to be filled up by a cadre officer. Under Sub-rule (2) of Regulation 8, a cadre officer will not hold an ex- cadre post in excess of the number specified in the concerned State. Under the Sub-clause (3) of Regulation 8, the State Govt. may with the prior approval of the Central Govt. appoint a cadre officer to hold an ex-cadre post in excess of the number specified in the State. For facility, Regulation 8 of the Regulation of 1954 is quoted hereunder:- “8. Cadre and ex-cadre posts to be filled by cadre officers - (1) Save as otherwise provided in these rules every cadre post shall be filled by a cadre officer. (2) A cadre officer shall not hold an ex-cadre post in excess of the number specified for the concerned State under item 5 of the Schedule to the Indian Administrative Service (Fixation of Cadre Strength) Regulation, 1955. (3) The State Government may, with the prior approval of the Central Government appoint a cadre officer 5 to hold an ex-cadre post in excess of the number specified for the concerned State in item 5 of the Schedule to the Indian Administrative Service (Fixation of Cadre Strength) Regulations, 1955 and for so long as the approval of the Central Government remains in force, the said ex-cadre post shall be deemed to be an addition to the number specified in item 5 of the said Schedule.” In the light of the aforesaid, Rule 9 (7) of Rules of 2007 contemplates as follows :- “(7) At no time the number of members of the Service appointed to hold posts, other than cadre posts referred to in Sub-rule (1) and sub-rule (4), which carry pay of Rs. 26,000/- per mensem and which are reckoned against the State Deputation Reserve, shall except with the prior approval of the Central Government, exceed the number of cadre posts at that level of pay in the State Cadre or, as the case may be, in a Joint cadre.” In the light of the aforesaid provisions, the vehement contention of the petitioner is that the respondent No. 5 has been given the Chief Secretary grade in excess of the posts approved by the Central Govt., meaning thereby, that the respondent No. 5 has been promoted in the Chief Secretary’s grade which was not in existence and prior approval was not taken from the Central Govt. and, consequently, the subsequent appointment of respondent No. 5 on the post of Chief Secretary was void ab-initio. In this regard, the petitioner has placed various letters issued by the Government of India with regard to the determination of the vacancies and seeking prior approval of the Central Govt. Such letters are dated 28th March, 2007, 25th March, 2008 and 19th June, 2008. In the 6 letter dated 28th March, 2007 issued by the Central Govt., it has been stated as under:- “(c) A new provision has also been added in Rule 3 (2) (ii) of the IAS (Pay) Rules 2007, stating that appointments of officers in the Scales of Selection Grade and above shall be subject to availability of vacancies in these grades and for this purpose, it shall be mandatory upon the State Cadre or the Joint Cadre Authorities, as the case may be, to seek prior concurrence of the Central Government on the number of available vacancies in each grade. The provision was required for better cadre management of the service as it was noticed by experience that the State Governments were often making promotions in their respective cadres beyond the number of available vacancies in various grades.” Similar directions were reiterated in the subsequent letters. It transpires that the State Government of Uttarakhand wrote a letter dated 3rd September, 2008 to the Secretary, Government of India, Department of Personnel & Training, New Delhi with regard to the confirmation of vacancies in the Chief Secretary’s scale under Rule 3 (2) (ii) of Rules of 2007 indicating that the total sanctioned cadre post in the Chief Secretary’s scale was two as per the notification dated 4th October, 2004 and that the State Govt. had decided to create two ex-cadre posts in the above scale under Rule 9 (7) of Rules of 2007 and, therefore, requested the Govt. of India to confirm the two vacancies for promotion in the scale of Rs. 26,000/-. Pursuant to the said letter, the Government of India, Ministry of Personnel, Public Grievances and Pensions, Department of Personnel and Training, New Delhi vide letter dated 19th September, 2008 gave 7 concurrence to the availability of two vacancies in the pay scale of Rs. 26,000/- under Rule 3 (2) (ii) and (iii) of the Rules of 2007 pursuant to the request of the Government dated 3rd September, 2008. The respondent No. 4 Shri N.S. Napalchayal was functioning as the Chief Secretary of Government of Uttarakhand and was due to retire on 30th April, 2010. Pursuant to the guidelines for promotion in the I.A.S. cadre issued by the Department of Personnel and Training, Govt. of India, New Delhi, a selection committee met on 19th February, 2010 and found that there were two cadre posts in the grade of Chief Secretary and that two ex-cadre posts were created by the State Govt. and that the Government of India vide letter dated 19th September, 2008 gave its concurrence to the availability of two vacancies. The committee recommended the name of four persons for the Chief Secretary grade in the pay scale of Rs. 26,000/-. The State Govt. by an order dated 31st May, 2010, promoted respondent No. 5 in the Chief Secretary’s grade of pay of Rs.26,000/-, which has now been revised to Rs. 80,000/-. The respondent No.4 was functioning as the Chief Secretary and was due to retire on 30th April, 2010. The service of respondent No.4 was, however, extended for a period of six months by an order dated 29th March, 2010. The respondent No.4 continued to function as the Chief Secretary but subsequently took voluntary retirement on 12th September, 2010 even though his extension was to continue till 31st October, 2010. The State Govt. allowed Shri N.S. Napalchayal to retire voluntarily on 12th September, 2010 and by an order dated 12th September, 2010 appointed respondent No. 5 as the Chief Secretary. In the light of the aforesaid, the petitioner contends that the appointment of respondent No. 5 as Chief Secretary was contrary to the Rules. The petitioner contends that in the absence of 8 mandatory prior concurrence under Rule 3 (2) (ii) of Rules of 2007, the respondent No. 5 could not have been promoted in the Chief Secretary’s grade of pay, since the said promotion was contrary to the Rules and the respondent No. 5 could not be appointed as the Chief Secretary by a subsequent order. The petitioner contended that the entire process of promotion of respondent No. 5 to the Chief Secretary’s grade of pay was made on account of incorrect determination of vacancy only to confer benefit upon respondent No. 5 and that the process of selection was carried out in an opaque and arbitrary manner. The writ petition was opposed by the learned Advocate General contending that the writ petition was not maintainable on the ground that the issue raised and the relief claimed in fact relates to a service matter and, consequently, a writ in the nature of public interest litigation or a writ of quo warranto could not be filed and that a person in the cadre of service could be an aggrieved person who would be free to challenge the appointment of the respondent No. 5 as Chief Secretary by bringing in an independent writ petition by filing a claim petition before the Central Administrative Tribunal. The Advocate General further contended that, in this regard, one of the aggrieved IAS officer, Shri A.K. Joshi had already filed a claim petition before the Central Administrative Tribunal challenging the promotion of respondent No.5 in the Chief Secretary’s grade of pay and the consequential appointment of respondent No.5 on the post of Chief Secretary which is pending consideration. The learned Advocate General further contended that since no stay order was granted by the Tribunal, the present writ petition has been filed in the garb of public interest litigation. The learned Advocate General contended that the promotion of respondent No. 5 in the Chief Secretary’s pay was done in accordance with the Rules and after seeking the concurrence from the Govt. of India and, 9 consequently, the appointment of respondent No. 5 as Chief Secretary lies within the domain of Chief Minister / State Govt. which appointment has been made in accordance with the law. On the other hand, the petitioner urged that the challenge made in the writ petition cannot be termed as a service matter since the petitioner is not claiming any appointment on the post of Chief Secretary nor challenging the selection and appointment of respondent No. 5 by making a comparison of merit of any candidate with respondent No.5. The petitioner is, however, questioning the entire governance of the State where a person is being promoted on a post which does not exist, for which, no prior concurrence has been asked from the Central Govt. The learned counsel for the petitioner submitted that it is not a simple dispute of a service matter but an issue in larger public interest in the governance of the entire State and, consequently, the writ petition is maintainable and the petitioner has a locus standi to bring this petition in public interest. We have heard Mr. Anil Kumar Tewari, Senior Advocate assisted by Mr. Apoorva Tewari, Mr. Prakar Mishra and Mr. Pradeep Hairiya, Advocates for the petitioner, Mr. S.N. Babulkar, Advocate General assisted by Mr. B.D. Upadhyaya, Addl. Advocate General for the respondent Nos. 2 and 3 / State and Mr. V.B.S. Negi, Asstt. Solicitor General for the respondent No. 1/ Union of India. In Halsbury’s laws of England, 3rd Edition, Vol. 11 p/145, it has been held :- “"An information in the nature of a quo warranto took the place of the obsolete writ of quo warranto which lay against a person who claimed or usurped an office, franchise, or liberty, to inquire by what authority he supported his claim, 10 in order that the right to the office or franchise might be determined.” In N. Kannadasan Vs. Ajoy Khose and Others, (2009) 7 SCC 1, it has been held :- “132. In Corpus Juris Secundum [74 C.J.S. Quo Warranto § 14], “Quo Warranto” is defined as under: “Quo warranto, or a proceeding in the nature thereof, is a proper and appropriate remedy to test the right or title to an office, and to remove or oust an incumbent. It is prosecuted by the State against a person who unlawfully usurps, intrudes, or holds a public office. The relator must establish that the office is being unlawfully held and exercised by the respondent, and that relator is entitled to the office.” 133. In Law Lexicon by J.J.S. Wharton, Esq., 1987, “Quo Warranto” has been defined as under: “QUO WARRANTO, a writ issuable out of the Queen’s Bench, in the nature of a writ of right, for the Crown, against him who claims or usurps any office, franchise, or liberty, to enquire by what authority he supports his claim, in order to determine the right. It lies also in case of non- user, or long neglect of a franchise, or misuser or abuse of it; being a writ commanding the defendant to show by what warrant he exercises such a franchise having never had any grant of it, or having forfeited it by neglect or abuse.” In the light of the aforesaid, a writ of quo warranto can be issued when the holder of a pubic office has been appointed in violation of constitutional and statutory provisions. Consequently, a judicial review for the purpose of issuance of writ of quo warranto would lie, in the event the holder of a public office was not eligible for appointment. In N. Kannadasan (Supra), the Supreme Court held :- “The writ of quo warranto proceedings affords a judicial remedy by which any person who holds an independent substantive public office is called upon to show by what right he holds the same so that his title to it may be 11 duly determined and in the event it is found that the holder has no title he would be directed to be removed from the said office by a judicial order. The proceedings not only give a weapon to control the executive from making appointments to public office against law but also tend to protect the public from being deprived of public office to which it has a right. It is indisputably a high prerogative writ which was reserved for the use of the Crown. The width and ambit of the writ, however, in the course of practice, have widened and it is permissible to pray for issuance of a writ in the nature of quo warranto” If the appointment is contrary to the statutory rules, a writ of quo warranto could be issued as held by the Supreme Court in the High Court of Gujarat Vs. Gujarat Kishan Mazdoor Panchayat (2003) 4 SCC 712, R.K. Jain Vs. Union of India (1993) 4 SCC 119, Duryodhan Sahu (Dr.) Vs. Jitendra Kumar Mishra (1998) 7 SCC 273. In Kashinath G. Jalmi (Dr.) Vs. Speaker (1993) 2 SCC 703, the Supreme Court held that the purpose for issuance of a writ of quo-warranto was necessary to prevent the continuance of the usurpation of office or perpetuation of an illegality. In B.R. Kapur Vs. State of Tamilnadu, (2001) 7 SCC 231, the Supreme Court held that a writ of quo warranto would lie against a person who according to the relator is not entitled to hold an office of public nature and is only a usurper of the office and that the challenge could be made on various grounds, such as, that the possessor of the office does not fulfill the required qualifications or suffers from any disqualification, which debars the person to hold such office. 12 In Dr. Duryodhan Sahu and others Vs. Jitendra Kumar Mishra and others (1998) 7 SCC 273, a total stranger had filed the petition before the Central Administrative Tribunal in the nature of public interest litigation questioning the appointment of another person as a Junior Teacher and further prayed that the government should be restrained from appointing any candidate as a Lecturer without requisite qualification. The sum and substance of the allegation was that the person so appointed did not possess the qualification prescribed for the post of Lecturer. The Supreme Court held that a private citizen or a stranger had no existing right to any post and who was not intrinsically concerned with any service matter and, consequently, was not entitled to approach the Tribunal. In Ranjit Prasad Vs. Union of India and others (2000) 9 SCC 313, the Supreme Court held that the scope of locus standi had been widened by the Court through its various decisions in the field of public interest litigation. The Supreme Court held:- “But a mere busybody who has no interest cannot invoke the jurisdiction of the court. In respect of departmental proceedings which are initiated or sought to be initiated by the Government against its employees, a person who is not even remotely connected with those proceedings cannot challenge any aspect of the departmental proceedings or action by filing a writ petition in the High Court or in this Court. Disciplinary action against an employee is taken by the Government for various reasons principally for “misconduct” on the part of the employee. This action is taken after a “domestic” inquiry in which the employee is provided an opportunity of hearing as required by the constitutional mandate. It is essentially a matter between the employer and the employee, and a stranger, much less a practising advocate, cannot be said to have any interest in those proceedings. Public interest of general importance is not involved in disciplinary proceedings. In fact, if such petitions are entertained at the instance of persons who are not connected with those proceedings, it would amount to an abuse of the process of court.” 13 In Ghulam Qadir Vs. Special Tribunal, (2002) 1 SCC 33, the Supreme Court held that the orthodox rule of interpretation regarding the locus standi of a person to reach the court had undergone a sea change with the development of law and that the courts have adopted a liberal approach and if the court is satisfied that the impugned action adversely affected the right of a person, a petition could be filed by that person which would not be rejected on the ground of his not having a locus standi. In Balco Employees’ Union (Regd.) Vs. Union of India and others (2002) 2 SCC 333, the Supreme Court held that a public interest litigation was not meant to be adversarial in nature and was to be a cooperative and collaborative effort of the parties and the court so as to secure justice for the poor and the weaker sections of the community who were not in a position to protect their own interest. The Supreme Court held that public interest litigation was intended to mean nothing more than a litigation