Bimal Kumar Chanda vs Ratna Roy and Others

Deepak Gupta, C.J.

By means of this writ petition which has purportedly been filed in the public interest, the petitioner has challenged the appointment of respondent No. 1 as Principal of the Institute of Advanced Studies in Education (IASE) on the ground that she does not fulfill the necessary qualifications. A writ in the nature of Quo Warranto has been prayed for alleging that the respondent No. 1 is a usurper of office not entitled to hold the said office. The petitioner is a senior citizen. He retired as Principal-in-Charge of the Tripura Government Law College and he had earlier also filed public interest litigations in this Court.

The main ground on which the appointment of respondent No. 1 has been challenged is that she does not fulfill the necessary eligibility criteria, inasmuch as she does not have 10 years working experience as a teacher. On behalf of the respondents, preliminary objection has been raised that the petition has not been filed in the public interest. It has been submitted that the petitioner has filed this petition for the benefit of his son Abhijit Chanda who is an Assistant Professor in the IASE and who prior to the appointment of the respondent No. 1 was holding the post of Principal-in-Charge in the said institution. Another preliminary objection which has been raised is that the writ itself is not maintainable because no Quo Warranto lies in respect of statutory appointments and the respondent No. 1 is not holding a public office. Third preliminary objection which has been raised is that the petitioner has withheld material facts from this Court and has not come to Court with clean hands. On merits, it is asserted that the teaching experience of the respondent No. 1 as a part-time teacher is required to be counted towards her teaching experience and, therefore, she has 10 years teaching experience.

Before dealing with the other issues, we may refer to the rules framed by the Government on 09.02.2012 wherein the Schedule laying down the essential qualifications for filling up the post of Principal, IASE/College of Teachers Education has been given. It is not necessary to refer to the rule in its entirety and only clause (C) of entry 7 of the Schedule which is relevant for our purpose is being quoted:-

"7(C). 10 (ten) years teaching experience out of which at least 05 (five) years teaching experience in a secondary teacher educational institution."

It is also not disputed that the petitioner has experience of 7 years at the M.Ed., level and 1 year and 3 months as Professor on contract basis in the IASE. Thus, her experience of teaching at the postgraduate level or above secondary level is 8 years and 3 months. The dispute is with regard to the experience of the petitioner as a part-time teacher of education in Government Degree College, Dharmanagar, North Tripura. In the certificate annexed with the reply and as well as in the reply of the government, it is stated that the respondent No. 1 worked for 2 years as part-time teacher in education w.e.f. 1999 to 2001 and, therefore, she has two years experience. If this experience of 2 years is counted, then she would have experience of 10 years and 3 months.

On behalf of the petitioner, two contentions have been raised. Firstly, that the exact period from 1999 to 2001 has not been mentioned. It is contended by Mr. A.L. Saha, learned counsel for the petitioner, that the petitioner may have worked even on part-time basis from December, 1999 to January, 2001 which would only mean 14 months and that would also not be sufficient for the purpose of meeting the eligibility criteria. On the other hand, Sri Arijit Bhowmik, learned counsel for the respondent No. 1, states that the certificate clearly mentions two years and, therefore, this should be taken to be the teaching experience.

The petitioner has annexed a number of documents with the petition. He has approached this Court more than one year after the appointment of respondent No. 1 who was offered appointment on 01.04.2013. The writ petition was filed in Court on 06.06.2014, almost 14 months later. There is nothing which prevented the petitioner from filing an application under the Right to Information Act with the College at Dharmanagar to obtain the exact period of working of the respondent No. 1 in that college. We are saying this because it is the petitioner who has come challenging the appointment of respondent No. 1 seeking a writ of Quo Warranto. In a writ of Quo Warranto, it is the bounden duty of the petitioner to lay material before the Court to show that the person whose appointment he challenges is a usurper of office and not qualified to hold the same. The burden lies on the petitioner to show that the person whose appointment is challenged is not qualified to hold the post. We may also refer to the certificate which has been annexed by the respondent No. 1 and issued by the Principal of the Dharmanagar College which shows that the petitioner has worked as part-time teacher from the academic year 1999 to 2001. This means that she has worked for two academic years and this would mean that she has more than 10 years teaching experience.

That brings us to the question as to whether this two years teaching experience as a part-time teacher should be counted or not. On behalf of the petitioner, it is urged that since this teaching experience is not as a regular appointee but only as a part-time teacher, it cannot be taken into consideration. We are totally unable to accept this argument. The rule does not lay down that the teaching experience has to be as a whole time teacher or as a regularly appointed teacher. All it states is that there should be teaching experience often years. When the rule making authority frames the rules, it is for it to use the language which it chooses. If the language is amenable to two interpretations, then the more liberal interpretation will have to be given and, therefore, we are clearly of the view that the teaching experience as a part-time teacher had to be counted towards total teaching experience.

In this behalf, we may make reference to the judgment of the Apex Court in Dr. Asim Kumar Bose Vs. Union of India (UOI) and Others, wherein the Apex Court held as follows:-

"There may be other instances as well. It is necessary to emphasise that the recruitment rules nowhere provide that the teaching experience gained by a Specialist in a teaching hospital in the capacity of an Associate Professor (ex-officio) shall not count towards the requisite teaching experience. There is no provision made in the Rules that the teaching experience must be gained on a regular appointment. There is hardly any difference so for as teaching experience is concerned whether it is acquired on regular appointment or as Specialist in a teaching hospital with the ex-officio designation. As the statutory rules do not provide that the teaching experience gained in an ex-officio capacity shall not count towards the requisite teaching experience, the teaching experience gained by the appellant while holding the post of Radiologist-cum-Associate Professor of Radiology (ex-officio) in the Irwin Hospital cannot be ignored in determining his eligibility for appointment as Professor of Radiology in Maulana Azad Medical College."

In that case, the Apex Court clearly held that the teaching experience of a person who had been appointed only in ex-officio capacity and was teaching not on whole time basis would be considered to be teaching experience.

Sri Arijit Bhowmik, learned counsel for the respondent No. 1, has also placed reliance on the judgment of the Gauhati High Court in Tripura Public Service Commission Vs. Partha Sarathi Dutta and another, dated 04.06.2008 wherein the Gauhati High Court was dealing with a situation where the Tripura Public Service Commission had, considering a similar rule, held that the experience must be earned by way of regular appointment and not as part-time employment. This view of the Tripura Public Service Commission was rejected by the High Court and the writ appeal filed by the Tripura Public Service Commission was dismissed. The Gauhati High Court held as follows:-

"20. Admittedly, the Public Service Commission is a consultancy body/authority. It does not possess the power of legislature nor it has the power to add in the rule. Even if there is any deficiency in the Recruitment Rule, this power is left to the wisdom of the Legislature only. The impugned action of the Commission in the instant case prescribing and incorporating the word ''experience'' only to be meant in respect of the experience earned/gathered by way of regular employment only and to the exclusion of the part time employment. In our considered opinion it is not authorized by the scheme of the Constitution as prescribed under Article 315 or Article 320 of the Constitution. The State has also accepted the position and has not come up to challenge the impugned judgment."

We are constrained to observe that despite this judgment passed by the High Court, again the Tripura Public Service Commission unnecessarily raised the issue as to whether service rendered on part-time basis is to be counted or not. The Public Service Commission is a Constitutional body and it has the experience, knowledge, wherewithal to itself decide what are the qualifications. We agree with the petitioner that the Tripura Public Service Commission should not have sought a clarification from the State Government after the process of recruitment had started. Since there was a judgment of the High Court clearly stating that service rendered on part-time basis is to be counted towards experience, the Public Service Commission could itself have decided on the basis of the judgment that whether the respondent No. 1 is qualified or not.

Coming to the preliminary objections. As far as the objection with regard to maintainability of the petition on the ground that the respondent No. 1 is not holding a public office inasmuch as she is not performing sovereign function is concerned, we find no merit in the same. Reliance has been placed by the learned Advocate General on the judgment of the Apex Court in B. Srinivasa Reddy Vs. Karnataka Urban Water Supply and Drainage Board Employees'' Association and Others, wherein the Apex Court quoted with approval the following observations from Halsbury''s Laws of England:-

"53. xxxxxxxxx

Broadly stated, the Quo Warranto proceeding affords a judicial remedy by which any person, who holds an independent substantive public office or franchise or liberty, is called upon to show by what right he holds the said office, franchise or liberty, so that his title to it may be duly determined, and in case the finding is that the holder of the office has no title, he would be ousted from that office by judicial order. In other words, the procedure of Quo Warranto gives the Judiciary a weapon to control the Executive from making appointment to public office against law and to protect a citizen from being deprived of public office to which he has a right. These proceedings also tend to protect the public from usurpers of public office, who might be allowed to continue either with the connivance of the Executive or by reason of its apathy. It will, thus, be seen that before a person can effectively claim a writ of Quo Warranto, he has to satisfy the Court that the office in question is a public office and is held by a usurper without legal authority, and that inevitably would lead to the enquiry as to whether the appointment of the alleged usurper has been made in accordance with law or not."

Thereafter, the Apex Court has quoted the following definition of "Public Office" from Black''s Law Dictionary:-

"73. xxxxxxxxx

"Public Office": Essential characteristics of "public office" are: (1) authority conferred by law, (2) fixed tenure of office, and (3) power to exercise some portion of sovereign functions of Government, key element of such test is that "officer" is carrying out sovereign function. Spring v. Constantino 168 Conn. 563, 362 A. 2d 871, 875. Essential elements to establish public position as "public office" are position must be created by Constitution, legislature or through authority conferred by legislature, portion of sovereign power of Government must be delegated to position, duties and powers must bt defined, directly or impliedly, by legislature or through legislative authority, duties must be performed independently without control or superior power other than law, and position must have some permanency and continuity, State ex rel.E.li Lilly & Co. v. Gartner, Mo. App 619 S.W. 2d 6761, 764."

It is contended by Sri Das, learned Advocate General, relying upon the aforesaid observations that the Principal of the IASE does not hold a public office as she does not perform any sovereign functions. We are unable to accept this contention. The concept of sovereign functions has undergone a huge change in the last 64 years since the Constitution was enacted. Right to Education is now recognised to be a fundamental right and the Right to Primary Education is recognised as a fundamental right under Article 21A of the Constitution. Therefore, whenever the Government or its officers perform the duty of training teachers, they are in a larger sense performing sovereign functions.

We are of the view that the office of the Principal is a very high office and the test of sovereign function in relation to holding public office is only one of the components of the test. We cannot forget that if to such high offices which is responsible for training the teachers, unqualified persons are appointed, that may lead to a havoc in the education system. This Court has very wide powers under Article 226 of the Constitution of India and if a serious irregularity is pointed out to this Court, this Court should not hesitate in rooting out the illegality and ensuring that the rule of law is followed.

In this regard, reference may be made to the judgment of the Apex Court in Civil Appeal No. 979 of 2014 relied upon by Sri Saha, learned counsel for the petitioner, wherein the Apex Court reiterated that the rule of law is the basic feature of the Constitution. The Court also went on to hold that any appointment made in violation of Articles 14 and 16 of the Constitution would be subject to judicial scrutiny even if the petition be filed in the nature of Quo Warranto. In this case, the Apex Court again quoted with approval the observations from Halsbury''s Laws of England referred to in Srinivasa Reddy''s case and quoted hereinabove, and thereafter held as follows:-

"15. xxxxxxxxx

For issuance of writ of Quo Warranto, the Court has to satisfy that the appointment is contrary to the statutory rules and the person holding the post has no right to hold it."

We, therefore, are unable to accept the first submission on preliminary objections.

We now take up the second and third preliminary objections as to whether the petition has not been filed in the public interest and whether the petitioner is guilty of suppressing material facts from this Court. As far as the objection that the litigation not being a public interest litigation is concerned, the learned Advocate General and Sri Arijit Bhowmik, learned counsel for respondent No. 1, brought to our notice the fact that the son of the petitioner is also an Associate Professor of Geography in the IASE. This fact has, in fact, been stated by the petitioner in his writ petition who has also stated that his son is not qualified to hold the post of Principal and has further stated that this litigation has been filed in the public interest and not in the interest of his son or at the instance of any third party. Though this statement has been made, we are unable to accept this statement to be correct. The reason for saying so is that the petitioner very conveniently did not apprise this Court of the fact that prior to the respondent No. 1 being appointed as Principal of the IASE, his son was discharging the duties of Principal in the IASE as Principal-in-Charge as is evident from the memo dated 16.07.2011 attached with the reply of the respondent No. 1. From this memo, it is apparent that after the previous Principal-in-Charge, IASE Sri Paritosh Chakraborty retired from the said post on the afternoon of 31.08.2011, the son of the petitioner w.e.f. 01.09.2011 was directed to function as Principal-in-Charge of the IASE in addition to his normal duties till alternative arrangements made by the Department. When we pointedly asked Mr. Saha why this fact had not been brought to the notice of this Court, his reply was that it was not necessary to bring this fact to the notice of the Court since the petitioner''s son was not getting any extra emoluments and was only the Principal-in-Charge not drawing any benefits and he was doing this work in addition to his own duties. This explanation, to say the least, is wholly unsatisfactory. A person who holds a charge of a higher post even on temporary or acting basis gets the status of the higher post. He may not draw the emoluments but he becomes the Principal of the Institution; the Head of the Institution; the disciplinary authority and, therefore, wields a large amount of influence. A person who is put in-charge of a highest office may not get extra monetary salary but he will definitely get the perks attached to that office such as, a larger office, more Class-IV staff etc. etc. The petitioner is an educated person knowing fully well what is the importance of being In-Charge of an institution. We are saying so because in Para-1 of the petition, the petitioner while showing his credentials and background has also stated that he was Principal-in-Charge of Tripura Law College. If being Principal-in-Charge was not of so much importance, why would the petitioner have mentioned this fact in para-1 of his petition? We are clearly of the view that the petitioner purposely did not mention this fact because the petition has not been filed in the public interest but only to further the interest of his son. Various documents have been attached with the petition which have been received in the IASE. How could the petitioner get copies which have been received in the IASE? The only answer can be that his son gave him those documents.

The petitioner in support of his contention has relied upon the order of the Lokayukta, Tripura dated 22-08-2013 wherein the Lokayukta at the preliminary stage after going through the complaints of the petitioner filed against the respondent No. 1 Smt. Ratna Roy and the Tripura Public Service Commission alleging that the Public Service Commission had wrongly obliged Smt. Ratna Roy, had made certain inquiry and had come to the prima facie conclusion that the appointment of Smt. Ratna Roy was illegal. Thereafter, in view of the provisions of the Tripura Lukayukta Act, permission of the Hon''ble Chief Minister and the Hon''ble Minister for Higher Education was sought for further investigation in the matter. This permission was denied and on 11.11.2013 the Lokayukta passed another order whereby he dropped the proceedings against the petitioner because no sanction was given by the Government to proceed further. Again, the petitioner tried to deceive the Court. He only drew the attention of the Court to the preliminary order passed but did not make any mention of the final order passed by the Lokayukta. The preliminary order is meaningless, once no sanction is given and no inquiry is held. We may also point out that the Lokayukta has passed the preliminary order without issuing any notice to Smt. Ratna Roy. The purpose of a preliminary inquiry is only to find out whether further investigation is required or not. The conclusions drawn in a preliminary inquiry are not final findings but only preliminary observations whereby the Lokayukta feels that it is a fit case for investigation. We fail to understand how such observations made at the preliminary stage, that too behind the back of the affected party, can be used against the said party. Despite this, the petitioner who is a former Principal of the Law College did not care to bring this latter order to the notice of this Court though it was passed as far back as in November, 2013 whereas the writ petition was filed in June, 2014.

Writ petitions are decided on the basis of affidavits. It is expected that any person who seeks discretionary relief from the Court approaches the Court with clean hands. No person approaching the Court should either misstate facts, conceal facts, withhold facts or state facts in such a manner which is not the whole truth. In a case where the petitioner seeks a writ of Quo Warranto, the onus is even higher on such a person. As far as public interest litigation is concerned, by now the law is absolutely clear that if the petitioner has approached the Court without stating all the correct facts, then not only should the petition be dismissed but exemplary costs must also be imposed upon the petitioner.

In this behalf, reference may be made to the judgment of the Apex Court in Dattaraj Nathuji Thaware Vs. State of Maharashtra and Others, wherein the Apex Court held as follows:-

"As noted supra, a time has come to weed out the petitions, which though titled as public interest litigations are in essence something else. It is shocking to note that Courts are flooded with large number of so called public interest litigations where even a minuscule percentage can legitimately be called as public interest litigations. Though the parameters of public interest litigation have been indicated by this Court in large number of cases, yet unmindful of the real intentions and objectives, Courts are entertaining such petitions and wasting valuable judicial time which, as noted above, could be otherwise utilized for disposal of genuine cases. Though in Dr. Duryodhan Sahu and Others Etc. Etc. Vs. Jitendra Kumar Mishra and Others Etc. Etc., , this Court held that in service matters PILs should not be entertained, the inflow of so-called PILs involving service matters continues unabated in the Courts and strangely are entertained. The least the High Courts could do is to throw them out on the basis of the said decision. The other interesting aspect is that in the PILs, official documents are being annexed without even indicating as to how the petitioner came to possess them. In one case, it was noticed that an interesting answer was given as to its possession. It was stated that a packet was lying on the road and when out of curiosity the petitioner opened it, he found copies of the official documents. Apart from the sinister manner, if any, of getting such copies, the real brain or force behind such cases would get exposed to find out the truth and motive behind the petition. Whenever such frivolous pleas, as noted, are taken to explain possession, the Court should do well not only to dismiss the petitions but also to impose exemplary costs. It would be desirable for the Courts to filter out the frivolous petitions and dismiss them with costs as afore-stated so that the message goes in the right direction that petitions filed with oblique motive do not have the approval of the Courts."

In view of the above discussion, we are clearly of the view that the respondent No. 1 was eligible to be selected as Principal of IASE, since she had 10 years teaching experience. Even if there was any shortfall, she has already served as Principal for more than 1 year and 8 months now and, therefore, that shortfall has been made more than good now and it would be too late in the day to set aside her appointment. Further, we are clearly of the view that this petition is not a public interest litigation but has been filed totally in the personal interest and the petitioner is also guilty of suppression of material facts. Therefore, the petition is dismissed with costs assessed at Rs. 10,000/- (rupees ten thousand). The costs be deposited in the Registry of this Court within 6 (six) weeks from today and on such deposit the Registrar shall deposit the same with the Children Home at Narsingarh, Agartala.