Dr. Alka vs State of Gujarat and Others

Honourable Mr. Justice J.B. Pardiwala

This petition under Article 226 of the Constitution of India has been preferred by the petitioner seeking a writ of quo warranto with the following prayers :

9(A) Be pleased to admit and allow this petition;

9(B) Be pleased to issue a writ of mandamus or any other appropriate writ, order or direction, directing respondent No. 2 to quash and set aside the appointment of respondent No. 3 as Director of Physical Education, by holding that he is not holding the qualifications prescribed for that post and further be pleased to direct respondent No. 2 to consider the application of the petitioner for the purpose of appointment to the post of Director of Physical Education;

9(C) Pending admission, hearing and final disposal of this petition, be pleased to direct respondent No. 2 University to restore the position status quo ante as was prevailing on 21.4.2011, the day on which Her Excellency the Governor of Gujarat and Chancellor of Saurashtra University, Rajkot has directed to maintain status quo with respect to the appointment of respondent No. 3 as Director of Physical Education;

9(D) Be pleased to direct respondent No. 2 to consider the application of the present petitioner for the purpose of appointment of Director of Physical Education in respondent No. 2 University;

9(E) Be pleased to grant any other relief which deems fit and proper in the interest of justice.

Facts relevant for the purpose of deciding this petition can be summarized as under :

2.1 Petitioner is serving as a Director of Physical Education in Late M.J. Kundaliya Mahila Arts and Commerce College, Rajkot from the year 1991. Petitioner is also a visiting Professor for M.Phil. in Physical Education, Department of Kadi Sarva Vishwavidyala, Gandhinagar and is also visiting Professor for five years from 1997 to 2002 for the Master of Physical Education Classes at Saurashtra University, Rajkot.

2.2 Respondent No. 2 - Saurashtra University issued an advertisement dated 10.05.2008 for the post of Director of Physical Education. It appears that the petitioner applied for the said post and was called for interview. Along with the petitioner, three other candidates were also called for the interview and one of them is respondent No. 3. A Committee of experts was constituted for the purpose of interview. The Committee recommended respondent No. 3 for being appointed to the post of Director, Physical Education. It is this appointment of respondent No. 3 which is a subject matter to challenge in the present petition on the ground that respondent No. 3 ought not to have been appointed to the post of Director, Physical Education as he does not fulfill the required qualifications, experience and other requisites as laid down by Saurashtra University for the said post. It is in this background that the petitioner has prayed in this petition to quash and set aside the appointment of respondent No. 3 as Director of Physical Education.

Notices were issued and the respondents have appeared and filed their replies to the petition.

We have heard learned Counsel Mr. D.P. Kinariwala appearing with learned advocate Mr. Nikunj D. Balar for the petitioner, learned Counsel Mr. J.R. Nanavati appearing with learned advocate Mr. A.R. Thacker for respondent No. 2 - Saurashtra University, learned advocate Mr. Hriday Buch for respondent No. 3 and learned AGP Mr. Pranav Dave for respondent No. 1 - State.

Learned Counsel for the petitioner vehemently submitted that respondent No. 2 - Saurashtra University has prescribed qualifications for the post of Director of Physical Education. According to him, one of the qualifications necessary is experience of at least 10 years as University Deputy or 15 years as University Assistant, DPES/College DPES (Selection Grade). He would submit that respondent No. 3 at the time of interview was serving as a Coach for Gymnastics in Chhotubhai Purani Physical Education (Degree), College at Rajpipla. He submitted that the position of a Coach cannot be considered equivalent to the post of University Deputy or University Assistant/College DPES (Selection Grade). Inspite of this fact, respondent No. 3 has been appointed as Director of Physical Education in respondent No. 2 - Saurashtra University. He would further submit that since respondent No. 3 is appointed as Director of Physical Education ignoring the qualifications prescribed by UGC as well as respondent No. 2 - Saurashtra University, the appointment is illegal and deserves to be quashed by writ of quo warranto. Learned Counsel also submitted that this fact was brought to the notice of Her Excellency the Governor of Gujarat in her capacity as Chancellor of the University. Mr. Kinariwala, learned Counsel, brought to our notice a letter dated 22nd February, 2011, Annexure ''D'' to this petition, addressed by the petitioner to Her Excellency the Governor of Gujarat and Chancellor, Saurashtra University. Mr. Kinariwala, learned Counsel, thereafter, invited our attention to letter dated 21st April, 2011 addressed by the office of the Secretary to the Governor of Gujarat to the Vice Chancellor of Saurashtra University informing that the office of the Governor of Gujarat has received complaint from the petitioner that being a woman, she has been harassed by the University Authorities and great injustice has been done with her so far as the appointment to the post of Director, Physical Education is concerned. In the said letter, it has also been stated that the petitioner has brought to the notice of Her Excellency the Governor of Gujarat that the University Authorities are going to make the appointment permanent at the cost of her interest. In the letter dated 21stApril, 2011, the Vice Chancellor of Saurashtra University was informed by the office of the Governor of Gujarat to maintain statusquo and not to take any decision detrimental to the interest of the petitioner.

Mr. Kinariwala, learned Counsel, vehemently submits that inspite of this specific intimation by the office of the Secretary to the Governor of Gujarat to the Vice Chancellor of the Saurashtra University to maintain status-quo, the University has confirmed the appointment of respondent No. 3 to the post of Director, Physical Education, Saurashtra University.

Per Contra, learned Counsel Mr. J.R. Nanavati submitted that the entire petition is misconceived and the petitioner is not entitled to any relief. Learned Counsel brought to our notice a very important aspect. Learned Counsel invited our attention to the fact that respondent No. 3 was appointed way back in the year 2009 and at no point of time, petitioner challenged the appointment of respondent No. 3 to the post in question. It is only in 2011, after a period of two years, that the present petition has been preferred challenging the appointment of respondent No. 3. At this stage, learned Counsel for the petitioner vehemently submitted that in 2009, there was no cause of action for the petitioner to prefer a petition, because in 2011, the petitioner took up the issue with Her Excellency the Governor of Gujarat and the Governor of Gujarat had specifically informed the University Authorities to maintain status-quo and since subsequent to this, the appointment came to be confirmed, the petitioner was left with no other option but to file this petition.

As against this, once again, learned Counsel for the University submitted that the stand of the petitioner as regards the appointment of respondent No. 3 in 2011 is not tenable. Learned Counsel submitted that the respondent No. 3 was appointed on the post of Director, Physical Education, Saurashtra University on 29.10.2009 and not on 21.04.2011 as alleged by the petitioner.

He would further submit that the appointment of respondent No. 3 on the post of Director of Physical Education was a permanent appointment. Initial appointment was on probation which requires confirmation as per the norms of the University. The confirmation was vide order dated 04.05.2011. Thus, no order according to the learned Counsel for respondent No. 3 has been passed detrimental to the interest of the petitioner.

He would also submit that the petition deserves to be rejected only on the ground of delay and laches as petitioner has neither challenged the process of selection nor as the petitioner has challenged the appointment of respondent No. 3 of the post in question in the year 2009 when the respondent No. 3 was actually appointed.

He submitted that there is no substance in the allegations leveled by the petitioner that respondent No. 3 does not possess the requisite qualifications for being appointed to the post in question.

In this regard, a detailed affidavit in reply has been filed by respondent No. 3. In the affidavit in reply of respondent No. 3, the stand taken is as follows :

I say and submit that almost two years after the appointment of the deponent on the post of Director, Physical Education, the petitioner lodged a grievance with the Hon''ble Chancellor on 22.2.2011 alleging that the deponent has wrongly been appointed. It is also alleged that the deponent did not have the requisite experience as per the UGC norms, still however, the deponent has been given precedence over the petitioner. Similar allegations are reiterated in the present petition. However, the said allegation is completely false, baseless, misleading and bereft of merit, for the reasons assigned here-in-below.

i) The deponent was appointed as a Clerk in Western Railway in the sports quota on 1.8.1983. A copy of the said appointment is annexed hereto and marked as Annexure-V to the present affidavit in reply.

ii) The deponent came to be appointed as a Gymnastic Coach at C.P. Degree College of Physical Education, Rajpipla, on 1.10.1986. A copy of the said appointment is annexed hereto and marked as Annexure-VI to the present affidavit in reply.

iii) The said college is a grant-in-aid college, affiliated with the South Gujarat University. The appointment of the deponent as Gymnastic Coach has been confirmed by the University. It is further pertinent to note at this stage that the post of Gymnastic Coach has been considered as a teaching post not only in the college but also in the University and in the State Government and the scale of pay has accordingly been fixed. At the time of conferment of the benefit of the Vth Pay Commission, the State Government through its Education Department resolved vide Resolution dated 12.6.2001 to give the benefit to all teaching and non-teaching staff working with the C.P. Degree College of Physical Education, Rajpipla. Even in the said resolution the post of Coach has been considered as teaching staff. A copy of the said Resolution dated 12.6.2001 is annexed hereto and marked as Annexure-VII to the present affidavit in reply.

iv) It is also pertinent to note at this stage that the deponent has actually imparted education as a teacher in Gymnastic to the students. It is now the settled legal position that the Physical Director/Coach has the duty to teach the skills with regard to games as well as their rules and practices. The said duties bring a Director/Coach clearly within the definition of "Teacher". Even the definition of "Teacher" within the meaning of Section 2(13) of the Saurashtra University Act, 1965, which clearly reveals that a teacher or any person imparting instructions in the University and affiliated colleges or a recognized institution or a private institution. It is pertinent to note at this stage that the State Government vide Resolution dated 30.4.1988 sanctioned the set up of teaching and non-teaching staff of C.P. Degree College of Physical Education, Rajpipla. In the said set up, the post of Coach has been considered as a teaching post. A copy of the said Resolution dated 30.4.1988 is annexed hereto and marked as Annexure-VIII to the present affidavit in reply.

The allegation that the deponent could procure several Degrees while working as Coach and the said Degrees are during his full time appointment. In this regard, the educational qualifications of the deponent Degree wise as follows :

(a) M.A. In Psychology from Gujarat University. The said Degree Course has been prosecuted by the deponent as an external student and the Degree on the deponent has also been conferred as such. In has been specifically mentioned in the said Degree itself.

(b) B.P.Ed. from Marathawada University in 1992. The said course has been undertaking by the deponent in service during the summer vacations. The deponent was specifically permitted as such by the College authorities and even the University had given Migration Certificate to the deponent without any objection and, ultimately, the deponent prosecuted the said course and passed in Second Division. It is also pertinent to note at this stage that the said course B.P.Ed., is of one year course if a candidate prosecutes the said course as a full time course, however, it a candidate prosecutes the said course during vacations, the same is of two years. Such a degree is conferred after passing the examination. As the deponent actually prosecuted the said course for two years and passed the Examination, the said Degree is conferred on the deponent.

(c) Master of Physical Education from LNIPE, Gwalior. The deponent had undergone the said course for three years as a summer course and the mark sheet/degree certificate clearly mentions the same that the Degree is conferred on the deponent. As such, for full timers, the same is of two years course whereas the same course is of three years for the students of summer course.

(d) M.Phil from Kurukshetra University. The said degree of Kurukshetra University clearly mentions that the same is conferred by the Directorate of Correspondence Courses of Kurukshetra University. The deponent prosecuted the said course with an express permission of the College and the management.

(e) Doctorate of Philosophy (Education) from Veer Narmad South Gujarat University, Surat in 2006. The said course was also prosecuted by the deponent with express permission of the College as well as the Management. Ultimately, after considering the Thesis submitted by the deponent, the said University has conferred the Degree of Ph.D. (Doctor of Philosophy) upon the deponent. Further, there is no prohibition on a teaching faculty to prosecute such a course even while on a full time job.

10.1 Under the circumstances, the allegations made by the petitioner in this regard before the Hon''ble Chancellor as well as before this Hon''ble Court in the present petition are completely illegal, misconceived and without even verifying the records. Therefore, the present petition may kindly be dismissed even on this ground.

I say and submit that over and above the educational qualifications of the deponent, the deponent has achieved various other achievements in the field of Physical Education. The same are as follows :

(a) The deponent has been qualified International Judging Course in Men''s Artistic Gymnastic by the Federation of International de Gymnastque (FIG) China).

(b) The deponent qualified as a Senior Club Coach by British Gymnastic Association, U.K.

(c) The deponent is an International reputed coach and judge in Gymnastics, he has been nominated as MAG Judge in Commonwealth Games Manchester 2002 only from India.

(d) The deponent participated in a National Workshop on Research Methodology in Physical Education.

(e) The deponent participated as a delegate in a national conference held at HVPM, Amravati.

(f) Over and above, several paper presentations have been done and there are publications as well.

11.1 Under the circumstances, the deponent is a very well qualified for the post of Director of Physical Education, Saurashtra University and hence, the present petition may kindly be dismissed even on this ground.

I say and submit that petitioner does not possess the basic qualification prescribed in the advertisement. The petitioner did not possess the educational qualification of computer course = CCC+.

12.1 The petitioner did not produce the evidence of organizing competitions and conducting coaching campus of at least two weeks duration.

12.2 The petitioner did not produce any evidence of having participated any competition like State/National/ inter University level, etc.

12.3 Thus, the petitioner did not possess the required basic qualifications. As against the same, the deponent was fully qualified and, therefore, the deponent has been appointed. The petitioner who did not possess the requisite qualifications and experience as prescribed by the University is disentitled from raising any grievance against the appointment and confirmation of the deponent and hence, solely on this ground, the present petition may kindly be dismissed with exemplary costs.

An affidavit in reply has also been filed by respondent No. 2 - Saurashtra University. The stand taken in the affidavit in reply filed by respondent No. 2 - Saurashtra University is as under :

I say that the Principle Secretary to the Governor Shri Arvind Joshi, by letter dated 21.4.2011 addressed to me stated that Dr. Alka K. Joshi, visiting Professor of Physical Education of Saurashtra University has some time ago represented before H.E. the Governor that being a woman she was harassed by the Authorities of the University and she has been done injustice and given inhuman treatment and requested to get the matter looked into and send a factual report to Her Excellency the Governor and the report is yet awaited. It was further stated in the said letter that in the meantime Dr. Alka K. Joshi has again represented to H.E. the Governor that the University Authorities are going to make some permanent appointment in her Department at the cost of her interest and that in the context, it was informed that the University should maintain status-quo and should not take any decision which might affect the interest of Dr. Alka K. Joshi in her service matter. I say that University received copy of the representation dated 22.02.2011 of the petitioner from the office of the Her Excellency the Governor of Gujarat along with letter dated 05.03.2011. I say that further representation made by Dr. Alka K. Joshi to Her Excellency the Governor of Gujarat which is referred in the letter dated 21.04.2011 is not on the record of the University.

I say that Dr. Mahedra Padalia, the present Acting Vice Chancellor has filed an affidavit producing the relevant correspondence between the Saurashtra University and the Chancellor and that the correspondence shows that the Saurashtra University reported to the Chancellor and had given answer to the letters written by the Office of the Chancellor stating that the appointment of Dr. Jatin Soni is legal and proper. I crave leave to refer to and rely upon the same.

I say that by letter dated 21.4.2011 Shri Arvind Joshi, Principle Secretary to the Governor of Gujarat and Chancellor addressed to me with reference to the letter dated 22.2.2011 of the petitioner stated regarding grievances of the petitioner that she is visiting Professor of Physical Education in Saurashtra University and sometimes ago she represented before the H.E. the Governor of Gujarat that being a woman she was harassed by the University Authorities and that she was done injustice and was given inhuman treatment. It was further stated that Dr. Alka K. Joshi has again represented to H.E. the Governor of Gujarat that University Authorities are going to make some permanent appointment in her department at the cost of her interest and in that context the University should maintain status-quo and should not take any decision which might harm interest of Dr. Alka Joshi in her service matter.

I say that subject stated the letter dated 21.4.2011 in "injustice caused to Dr. Alka K. Joshi, an employee of the Saurashtra University", and in the second paragraph of the said letter it is stated that Dr. Alka K. Joshi has again represented to the H.E. the Governor of Gujarat that University Authorities are going to make some permanent appointments in her department, at the cost of her interest and further University should maintain status-quo and should not take any decision which might harm the interest of Dr. Alka K. Joshi in her service matter.

I say that Dr. Alka K. Joshi is not an employee of the Saurashtra University. I say that in Para-4.1 of the petition it is stated by the petitioner that "she is the Director of Physical Education in Late M.J. Kundalia Mahila Arts & Commerce Grant-in-aid College affiliated with the Saurashtra University from the year 1991. She is also visiting Professor in M.Phil in physical Education Department of Kadi Seva Vishwa Vidyalaya, Gandhinagar and said Vidyala is not part of Saurashtra University. She is also visiting Professor for 5 years from 1997 to 2002 for the Master of Physical Education Class at Saurashtra University.

I say that the respondent No. 3 has been appointed as the Director of Physical Education in the pay scale of Rs.10,000-325-15,200 on probation for one year in Saurashtra University by the resolution of the Syndicate 24.09.2009 in accordance with the recommendation of the Selection Committee dated 6.8.2009 and has been confirmed on that post by resolution of Syndicate dated 26.04.2011 and appointment of R-3 not constant with Department of Physical Education.

I crave leave to refer to and rely upon the Ordinance No. 7, Ordinance No. 8 and Ordinance No. 10 which proved for the constitution Board of Sport. I say that the respondent No. 3 was appointed as a Director of Physical Education which is the post in University Board of Sports. In Ordinance No. 10, Director of Physical Education is Ex-officio Member of the University Board of Sports and he shall also act as the Secretary of the University Board of Sports.

I say that the Ordinance No. 43 deals with the powers delegated to the administrative officers. At item No. 9 Director of Physical Education is mentioned wherein certain powers regarding sanction of T.A. Advance etc., has been given to him. I say that the Director of Physical Education is an Administrative Officer but in the matter of pay scales and other matters the post is treated as equivalent to that of a teacher by the University Grants Commission.

I say that Statute 97 deal with the constitution of faculty and one of the faculty is faculty of Education and Physical Education is part of faculty of Education. I say that Statute 158 provides that the University shall grant the degrees and diplomas mentioned in the said statute and in faculty of Education the Degree of Bachelor of Physical Education and Master of Physical Education are provided for being granted by the University. I say that the Faculty of Education is constituted by virtue of Section-23 of the Saurashtra University Act and the functions of the faculty are governed by Section-23 and powers and duties of the faculty are governed by Section-24 of the Act. Section-24 of the Saurashtra University Act and Sec.25 provides for the Dean of each faculty which is to be elected by the faculty member among its members.

Record reveals that there is one additional affidavit in reply on behalf of respondent No. 2 - Saurashtra University through In-charge Registrar, wherein, the stand taken is as under :

Referring to Paras-4.1 to 4.7 of the petition, I say that advertisement was published in daily Gujarati Newspaper "Sandesh" dated 18.5.2008 and last date of receiving the applications was 18.6.2008. I say that on scrutiny of the applications received three candidates were found eligible -(i) Faldu Ramesh Arjan, (ii) Joshi Alkaben K. and (iii) Jatin N. Soni and seven candidates were found not eligible out of 10 applications received. I say that the Selection Committee consisting of 9 members took interview of three eligible candidates and Dr. Jatin Soni was selected by the Selection Committee, there two experts were Directors of Physical Education and one was Professor in Physical Education and one is Chancellor''s nominee. I say that the respondent No. 3 was unanimously selected by the Selection Committee and that the matter was placed before the Syndicate and the Syndicate by Resolution dated 24.9.2009 accepted the recommendation of the Selection Committee. I say that pursuant to the aforesaid, the respondent No. 3 was appointed as Director of Physical Education. I say that on proper consideration of the experience and qualifications of respondent No. 3 and two other eligible candidates, Selection Committee and Syndicate have selected and appointed the respondent No. 3 as the Director of Physical Education and his appointment is legal and the petitioner has no right to invoke the extra-ordinary jurisdiction of this Hon''ble Court after such a long time. I say and submit that subsequently the respondent No. 3 has been confirmed on completion of the probation period by the Resolution of the Syndicate dated 26.4.2011. Annexed hereto and marked as ''Annexure-R-1'' is a copy of recommendation of the Selection Committee dated 6.8.2009. Annexed hereto and marked as ''Annexure-R2'' is a copy of the resolution of the Syndicate dated 24.9.2009. Annexed hereto and marked as ''Annexure-R3'' is a copy of the appointment order dated 29.10.2009. Annexed hereto and marked as ''Annexure-R4'' is a copy of the resolution of the Syndicate dated 26.4.2011.

I further say that the Selection Committee took the interview on 6.8.2009 and the Selection Committee consisted of 9 members which included Prof.R.P. Joshi, who was nominee of Hon''ble Chancellor and Dr. Gurusevak Singh, Director of Physical Education, S.P. University, Vallabh Vidyanagar were also present as expert along with other interviewing members of the Committee. I say that the interview has been conducted by the panel of 9 members including nominee of Hon''ble Chancellor and the Selection Committee has unanimously decided to recommend the respondent No. 3 for the post and according to the recommendations of the Selection Committee, the Syndicate has passed the resolution as stated above.

Referring to Para-4.8 of the petition, I deny that experience of respondent No. 3 does not match against the experience of the petitioner and that the experience and degree obtained by him are questionable and that respondent No. 3 has not the required experience as per the U.G.C.''s norms. I deny all the aforesaid allegations. The Selection Committee, on proper consideration of all the relevant record has selected the respondent No. 3 on the post and that the petitioner after the lapse of such a long time has no right to challenge said appointment.

Referring to Para-4.9 of the petition, I deny that the petitioner was receiving "back bench" treatment from the university officers as alleged. I say that the said allegations are vague and without any particulars. I deny that the petitioner was given back bench treatment or that she was given inhuman treatment as alleged for the reasons stated by her in the petition. I say that inviting for Research & Development Committee meeting is a matter for the concerned committee to decide and that for whatsoever reasons if she was not invited, it would not amount to giving ill treatment to the petitioner as alleged by her. I say that various allegations made by the petitioner in the representation dated 22.2.2011 to Her Excellency the Governor of Gujarat are wrong and not tenable.

Referring to Para-4.11 of the petition, I say that as directed by this Hon''ble Court, the Acting Vice Chancellor of the Saurashtra University as well as Dr. Kamlesh P. Joshipura, the then Vice Chancellor of the Saurashtra University have filed affidavits in the matter and I crave leave to refer to and rely upon the same. 9. Referring to Para-5(b) &(c) of the petition, I say that the Selection Committee, on proper consideration of the relevant record has selected the respondent No. 3 and the said body is an expert body and the assessment made by them has been accepted by the University as stated above. I say that Her Excellency the Governor of Gujarat and the Chancellor has raised question regarding the experience and qualifications of respondent No. 3 and the same has been explained by the Registrar of the University as stated in the affidavit filed by Acting Vice Chancellor in this petition. I crave leave to refer to and reply upon the same.

Having heard learned Counsel for the respective parties and having perused the record of the case, we are of the view that the petitioner is not entitled to any relief as prayed for in the petition for the reasons which we shall record hereinbelow.

It is settled position of law that before the petitioner can claim of writ of quo warranto, petitioner must satisfy the Court inter alia that the office in question is a public office and it is hold by a person without legal authorities i.e. respondent No. 3 in the present case. The position of law in this regard has been explained in a recent pronouncement of the Hon''ble Supreme Court in the case of Centre for PIL and Another Vs. Union of India (UOI) and Another, . In paragraph 51, Apex Court observed as under:

The procedure of quo warranto confers jurisdiction and authority on the judiciary to control executive action in the matter of making appointments to public offices against the relevant statutory provisions. 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 it is held by a person without legal authority and that leads to the inquiry as to whether the appointment of the said person has been in accordance with law or not. A writ of quo warranto is issued to prevent a continued exercise of unlawful authority.

In the same judgment, Hon''ble Supreme Court considered the scope of judicial review to the extent as to whether a particular person possesses qualifications for the appointment and the manner in which the appointment has been made. In paragraph 64 of the judgment referring to the earlier judgment of the Hon''ble Supreme Court in case of R.K. Jain versus Union of India reported in (1993) 4 SCC 119, Apex Court held as under :

Even in R.K. Jain case, this Court observed vide para 73 that judicial review is concerned with whether the incumbent possessed qualifications for the appointment and the manner in which the appointment came to be made or whether the procedure adopted was fair, just and reasonable. We reiterate that the Government is not accountable to the courts for the choice made but the Government is accountable to the Courts in respect of the lawfulness/legality of its decisions when impugned under the judicial review jurisdiction. We do not wish to multiply the authorities on this point.

A writ of quo warranto lies only when appointment is contrary to a statutory provision. In High Court of Gujarat and Another vs. Gujarat Kishan Mazdoor Panchayat and Others, (2003) 4 SCC 712, (three- Judges Bench) Hon''ble S.B. Sinha, J. concurring with the majority view held :

The High Court in exercise of its writ jurisdiction in a matter of this nature is required to determine at the outset as to whether a case has been made out for issuance of a writ of certiorari or a writ of quo warranto. The jurisdiction of the High Court to issue a writ of quo warranto is a limited one. While issuing such a writ, the Court merely makes a public declaration but will not consider the respective impact of the candidates or other factors which may be relevant for issuance of a writ of certiorari. (See R.K. Jain v. Union of India 2, SCC para 74.)

A writ of quo warranto can only be issued when the appointment is contrary to the statutory rules. (See Mor Modern Coop. Transport Society Ltd. v. Financial Commr. & Secy. to Govt. of Haryana)

In The Mor Modern Cooperative Transport Society Ltd. Vs. Financial Commissioner and Secretary to Govt. Haryana and Another, the following conclusion in para 11 is relevant :

11.... The High Court did not exercise its writ jurisdiction in the absence of any averments to the effect that the aforesaid officers had misused their authority and acted in a manner prejudicial to the interest of the appellants. In our view the High Court should have considered the challenge to the appointment of the officials concerned as members of the Regional Transport Authority on the ground of breach of statutory provisions. The mere fact that they had not acted in a manner prejudicial to the interest of the appellant could not lend validity to their appointment, if otherwise, the appointment was in breach of statutory provisions of a mandatory nature. It has, therefore, become necessary for us to consider the validity of the impugned notification said to have been issued in breach of statutory provision.

In B. Srinivasa Reddy Vs. Karnataka Urban Water Supply and Drainage Board Employees'' Association and Others, this Court held :

The law is well settled. The High Court in exercise of its writ jurisdiction in a matter of this nature is required to determine, at the outset, as to whether a case has been made out for issuance of a writ of quo warranto. The jurisdiction of the High Court to issue a writ of quo warranto is a limited one which can only be issued when the appointment is contrary to the statutory rules.

It is clear from the above decisions that even for issuance of writ of quo warranto, the High Court has to satisfy that the appointment is contrary to the statutory rules.

So far as suitability of a candidate for appointment is concerned, Hon''ble Supreme Court in the case of Hari Bansh Lal Vs. Sahodar Prasad Mahto and Others, has observed as under :

In State of Mysore and Another Vs. Syed Mahmood and Others, it was held that suitability or otherwise, the appointing authority is the best person and the court cannot issue a positive writ without giving the authority/Government opportunity in the first instance to consider his/her claim for promotion. The same view has been reiterated in Statesman (Private) Ltd. Vs. H.R. Deb and Others,

In State Bank of India and others Vs. Mohd. Mynuddin, after adverting to the earlier decision of this Court in the State of Mysore and Another Vs. Syed Mahmood and Others, this Court held : (Mohd. Mynuddin case, SCC p.491, para 5)

5....The ratio of the above decision is that where the State Government or a statutory authority is under an obligation to promote an employee to a higher post which has to be filled up by selection the State Government or the statutory authority alone should be directed to consider the question whether the employee is entitled to be so promoted and that the court should not ordinarily issue a writ to the government or the statutory authority to promote an officer straightway. The principle enunciated in the above decision is equally applicable to the case in hand.

It is clear from the above decisions, suitability or otherwise of a candidate for appointment to a post is the function of the appointing authority and not of the court unless the appointment is contrary to statutory provisions/rules.

What can be deduced from the position of law as laid down by the Hon''ble Supreme Court in catena of decisions which have been referred to above is that the jurisdiction of the High Court to issue a writ of quo warranto is a limited one. A writ of quo warranto can be issued only when the appointment is contrary to the statutory rules. Over and above this, so far as suitability of a candidate is concerned, the appointing authority i.e. in the present case, the Committee of Experts which was constituted, is the best person.

In the present case, we have noticed that the appointment of respondent No. 3 was made way back in the year of 2009. Petitioner remained conspicuously silent for a period of two years and abruptly when respondent No. 3 came to be confirmed on expiry of the probation period that she though fit to challenge the appointment on the ground that respondent No. 3 on the date of his appointment was not possessing the requisite qualifications. Firstly, we are not convinced from the pleadings itself as regards the assertion of the petitioner on the point that the respondent No. 3 does not possess the requisite qualifications. Record reveals that the interviews were conducted by a panel of nine persons. All are experts in the field including the nominee of Hon''ble Chancellor and the Selection Committee unanimously decided to recommend respondent No. 3 for the post and as per the said recommendation, University Syndicate resolved to appoint respondent No. 3 and passed unanimously resolution in this regard. We have noticed that the qualifications for the post of Director, Physical Education of Saurashtra University has been prescribed by the University. A candidate must have a Doctorate of Philosophy in Physical Education and a Degree/Diploma/Certificate in Computer Education equivalent to CCC+ level from a recognized institution. The experience mentioned is that of ten years as University Deputy or 15 years as University Assistant DPs, College DPs (Selection Grade). Record reveals that respondent No. 3 possesses all the requisite qualifications as required for the post of Director, Physical Education. Many more details as regards other qualifications possessed by respondent No. 3 have been placed on record by way of affidavit in reply, but, we do not find it necessary to discuss in detail. However, paragraph 10 of the affidavit in reply filed on behalf of respondent No. 3 makes the picture abundantly clear so far as educational qualification of respondent No. 3 is concerned. We have noticed that so far as averments made in paragraph 10 of the affidavit in reply of respondent No. 3 is concerned, the same have not been controverted by the petitioner in the affidavit in rejoinder filed to the reply of respondent No. 3.

Besides this, we also would like to state that in the entire petition, no allegations of any mala fide or favouritism have been levelled against the Committee which was constituted for the purpose of selecting the best person for post of Director, Physical Education. We have noticed that all relevant aspects have been taken into consideration by the Committee comprising of nine experts which includes a nominee on behalf of Her Excellency the Chancellor of the University.

We hold that the appointment of respondent No. 3 to the post of Director, Physical Education, Saurashtra University is not contrary to the statutory rules or regulations. Suitability or otherwise of a candidate for appointment to a post is the function of the appointing authority and not of the Court unless the appointment is contrary to the statutory provisions/rules. We have already said that the appointment of respondent No. 3 is not contrary to statutory provisions/rules.

In light of the above discussion, we find no merit in this petition and the same is hereby rejected with no order as to costs.