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K. Sivaramakrishnan v. P. Arumugha Mudaliar...
Factual and Procedural Background
The petition seeks a writ of quo warranto challenging the validity of the appointment of Sri P. Arumugha Mudaliar (first respondent) as Inspector-General of Registration, Madras. The State Government is impleaded as the second respondent. The central factual assertions are:
- Arumugha Mudaliar was an Assistant Secretary to the Government.
- The Government issued an order dated 17th March, 1954 appointing him as Inspector-General of Registration with effect from 18th April, 1954.
- The petitioner alleged violation of Article 320(3)(b) of the Constitution because the State Government did not consult the Madras Public Service Commission before making the appointment.
- When the Madras Public Service Commission brought the omission to the Government's notice, the Government issued G.O. No. 499 dated 8th April, 1954, excluding the post from the requirement of consultation under the proviso to Article 320(3) and did so with retrospective effect from 1st March, 1954. The legality of this retrospective validation was challenged in the petition.
Procedurally, the respondents answered and raised preliminary objections to maintainability and substantive defences; the Court first addressed the preliminary issue of locus standi and then proceeded to the merits, ultimately concluding that G.O. No. 499 validated the appointment and dismissing the writ petition.
Legal Issues Presented
- Whether the petitioner had locus standi to maintain a writ of quo warranto contesting the appointment, despite not being a rival applicant or having a personal interest in obtaining the office.
- Whether the appointment of the first respondent was invalid because the State Government did not consult the Madras Public Service Commission as required by Article 320(3)(b) of the Constitution.
- Whether the G.O. No. 499 dated 8th April, 1954, which, under the proviso to Article 320(3) and in conformity with Sub-section (5) of that Article, excluded the post from consultation requirements (with retrospective effect from 1st March, 1954), was legally effective to validate the appointment.
Arguments of the Parties
Petitioner's Arguments
- The appointment of Arumugha Mudaliar breached Article 320(3)(b) because the State Government did not consult the Madras Public Service Commission when appointing him (he was appointed by transfer from a cadre that triggers the consultation requirement).
- The retrospective regulation (G.O. No. 499) issued on 8th April, 1954, purporting to exclude the post from consultation with effect from 1st March, 1954, was challenged as being legally ineffective or otherwise invalid to validate the appointment.
Respondents' Arguments
- The petition was not maintainable because the petitioner had no personal interest in the appointment and therefore lacked locus standi to seek a writ of quo warranto.
- Consultation with the Public Service Commission was not necessary for this particular appointment.
- The obligation to consult under Article 320(3) was merely directory and not mandatory, so failure to consult did not invalidate the appointment.
- In any event, the G.O. No. 499 passed under the proviso to Article 320(3) and in conformity with Article 320(5) validated the appointment, so it could no longer be questioned.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Chakkarai Chettair, In re (1952) 2 M.L.J. 779 | Held by a single judge (Chandra Reddy, J.) that an applicant who cannot establish personal interest has no right to maintain a petition for quo warranto. | The Court noted this decision exists but rejected its correctness, observing subsequent dissents and stating it has not been followed; the Court did not accept Chakkarai Chettair's approach to locus standi. |
| Rex v. Speyer : Rex v. Cassel L.R. (1916) 1 K.B. 595 (Lord Reading, C.J.) | Summarised the law that a stranger may, in a proper case and if acting bona fide, obtain an information of quo warranto; courts should incline to assist such applicants where the application concerns public government and motives are bona fide. | The Court extracted and followed this principle, treating it as authoritative for allowing a bona fide petitioner without personal interest to challenge the appointment by quo warranto. |
| Rex v. Kemp 1 East. 46, n. E.R. 19 | Lord Kenyon's statement that a stranger may, in some cases, prefer such an application but ought to come with a very fair case and that motives should be inquired into. | The Court cited this to support the proposition that a stranger can apply for quo warranto provided the application is bona fide and the motives are proper. |
| Sir William Lowther's case 2 Ld. Raym. 1409 and Ibbotson's case Lee Temp. Hardw. 261 | Earlier authorities cited for the proposition that some private grievances were to be prosecuted only by the Attorney-General rather than by private individuals. | These cases were cited in the historical discussion; the Court used them to contrast the situations where private prosecution by a stranger is inappropriate with situations concerning public government where courts may assist a bona fide stranger. |
| Kyd on Corporations, p. 416 | Explains the distinction that the Master of the Crown Office's power is confined to public government matters while the Attorney-General's power extends to private rights of the Crown. | Quoted by the Court to explain the historical distinction and to support the analysis that quo warranto may be entertained in matters concerning public government by a bona fide relator. |
| Brood v. Perkins (1888) L.R. 21 Q.B.D. 533 | Example cited showing that a stranger can obtain prohibition; used in the context of remedies available to strangers in appropriate public cases. | Cited as part of the authorities supporting the proposition that strangers may, in proper cases, obtain remedies and that there was no reason why they should not obtain quo warranto in a proper case. |
| Rex v. Brown 3 T.R. 574 | Authority cited for the principle that courts inquire into the motives of the applicant to ensure the application is not made merely to disturb local peace or for improper motives. | Used to support the Court's position that bona fides of the petitioner is a relevant consideration; since the petitioner's bona fides were not challenged, the Court permitted the petition to be heard on merits. |
| Biman Chandra v. Governor, West Bengal | Dissent from the Chakkarai Chettair position; cited as a decision rejecting the requirement of personal interest for maintaining quo warranto. | Relied upon to show that the Chakkarai Chettair approach has been dissented from in other High Courts; the Court cited it as part of support for allowing bona fide strangers to maintain quo warranto. |
| V.D. Deshpande v. Hyderabad State A.I.R. 1955 Hyd. 36 | A Bench decision of the Hyderabad High Court dissenting from the Chakkarai Chettair position on locus standi for quo warranto. | Cited to demonstrate that Chakkarai Chettair has been dissented from and that the Court's approach aligns with these later authorities; the Court considered such dissents sufficient to reject Chakkarai Chettair. |
Court's Reasoning and Analysis
The Court's reasoning proceeds in two main stages: (A) the preliminary question of maintainability (locus standi), and (B) the merits regarding the effect of G.O. No. 499.
A. Maintainability (Locus standi)
- The Court considered the preliminary objection that the petitioner had no personal interest in the appointment and therefore could not maintain a writ of quo warranto.
- The Court acknowledged the single-judge decision in Chakkarai Chettair (1952) 2 M.L.J. 779, which supported that objection, but noted that decision has been dissented from by other High Courts and did not correctly state the law in the Court's view.
- The Court relied on the statement of law from Rex v. Speyer (Lord Reading, C.J.) summarising that a stranger may obtain quo warranto in proper cases provided the applicant comes bona fide and motives are not improper; other English authorities and text (e.g., Rex v. Kemp, Kyd on Corporations, Rex v. Brown) were cited to frame the historical and doctrinal position.
- Applying this principle, and observing that the petitioner's bona fides were not challenged, the Court held that the petitioner was entitled to file the writ petition and have the Court consider the merits of the challenge to the appointment.
B. Merits — Effect of G.O. No. 499 and validity of appointment
- The Court set out Article 320(3) (the obligation to consult the Union or State Public Service Commission on certain matters) and the proviso allowing the Governor to make regulations specifying cases where consultation is not necessary, and Sub-section (5) describing the procedure for laying such regulations before the legislature.
- G.O. No. 499 (dated 8th April, 1954) was examined: it stated doubts had been raised about whether consultation was necessary for appointments to Inspector-General of Registration by transfer from certain services, declared it had not been the practice to consult, and made an express regulation (purportedly effective from 1st March, 1954) that consultation with the Madras Public Service Commission was not necessary for that post. The notification asserted that it was made under the proviso to Clause (3) of Article 320 and in conformity with Clause (5).
- The petitioner objected to the retrospective operation of the regulation (effective 1st March, 1954). The Court observed that although the appointment was notified on 17th March, 1954, its effective date was 18th April, 1954 — after the G.O. was issued on 8th April, 1954.
- The Court reasoned that even if retrospective validation had been legally objectionable as to the earlier date, since the appointment took effect only on 18th April (after G.O. No. 499), the regulation as made on 8th April rendered consultation unnecessary for the appointment as of the date the appointment took effect. Therefore, the G.O. operated to make consultation unnecessary and validated the appointment in relation to the effective date.
- Because the Court concluded that G.O. No. 499 validated the appointment, it considered unnecessary to decide two contested issues raised in the petition: (i) whether consultation was required for appointment by transfer from the cadre in question, and (ii) whether Article 320(3)(b) is directory or mandatory.
Holding and Implications
Holding: The writ petition fails and is dismissed. The Court held that G.O. No. 499 of 1954, issued on 8th April, 1954, rendered the consultation of the Madras Public Service Commission unnecessary for the appointment in question, and because the appointment took effect only on 18th April, 1954 (after the G.O.), the appointment of the first respondent was valid.
Implications:
- Direct effect on the parties: The appointment of Sri P. Arumugha Mudaliar as Inspector-General of Registration was upheld as valid; the writ petition challenging the appointment was dismissed. In the circumstances, the Court made no order as to costs.
- Scope of decision: The Court expressly declined to decide whether consultation was required for the appointment by transfer in the abstract and whether Article 320(3)(b) is directory or mandatory, because the G.O.'s effect made those determinations unnecessary for the outcome. Thus, the Court did not settle those broader constitutional questions in this opinion.
- On locus standi: The Court articulated and applied the principle (following Rex v. Speyer and related authorities) that a bona fide relator without a direct personal interest may maintain a quo warranto petition challenging a public appointment; the petitioner's bona fides were not challenged, and the Court accepted the petition could be entertained on the merits. This aspect of the decision clarifies that the Court will allow such petitions where bona fides are established, although the Court limited its pronouncements to the facts before it.
1. This is a petition for the issue of a writ of quo warranto questioning the validity of the appointment of Sri P. Arumugha Mudaliar, who has been impleaded as the first respondent, as the Inspector-General of Registration, Madras, by the State Government named as the second respondent.
2. The ground of attack is based on the allegation, that Article 320(3)(b) of the Constitution has been violated, in that the State Government did not consult the Public Service Commission before making the impugned appointment. Arumugha Mudaliar was an Assistant Secretary to the Government, and by an order, dated 17th March, 1954, the Government of Madras appointed him to the office of the Inspector-General of Registration with effect from 18th April, 1954. The affidavit in support of the petition conceded that under Article 320(3)(b) of the Constitution the Madras Public Service Commission had to be consulted when recruitment was made to the post of Inspector-General of Registration by transfer from the cadre of Deputy Collectors and Assistant Secretaries to Government, though no consultation was necessary when the office was filled up by promotion of a holder of an office of a District Registrar. It was further stated that, when this violation was brought to the notice of the Government by the Madras Public Service Commission, the Government published G.O. 499 on 8th April, 1954, excluding the post from the purview of the Commission with retrospective effect from 1st March, 1954, this G.O. being passed under the proviso to Article 320(3), and in conformity with the terms of Sub-clause (5) of that Article. The legality of this retrospective validation was challenged.
3. In answer to the petition four matters were stated by the respondents namely (1) that the petition for the issue of a writ of quo warranto was not maintainable as the petitioner had no personal interest in the appointment and therefore had no locus standi to maintain the petition; (2) that consultation with the Public Service Commission was not needed in respect of this appointment; (3) that the provision of Article 320(3) and the obligation laid upon the State Government to consult the Public Service Commission were merely directory in their nature, and that the failure to make the consultation did not invalidate the appointment and (4) that, in any event, the G.O. passed under the proviso to Article 320 (3) in conformity with the formalities prescribed by Article 320 (5) validated the appointment and the same could no longer be questioned.
4. We shall first deal with the preliminary objection that has been raised to the maintainability of the petition, based on the petitioner not having a personal interest in the appointment sought to be questioned. We are of the opinion, that, though a writ of quo warranto is not a writ of right, in the sense that the Court is bound to grant the relief prayed for, still if the validity of an appointment or a claim to an office by a person is challenged by an applicant for a writ, and the Court is satisfied that the petition has been filed bona fide, i.e., without improper motives and without delay, it has a right to investigate the matter and decide on the validity of the appointment, notwithstanding that the petitioner is not a rival applicant to that office, and in that sense does not have a personal interest in the issue of a writ. So far as we are aware there is only the decision of a single judge of this Court in Chakkarai Chettair, In re (1952) 2 M.L.J. 779, supporting the preliminary objection raised by the respondents. In this decision Chandra Reddy, J., held that, where an applicant for the issue of a writ of quo warranto was not able to establish his personal interest in the outcome of the proceeding, he had no right to maintain the petition. This decision has been dissented from subsequently in several decisions of other High Courts, and we are of the opinion that it does not correctly express the law on the point. It is unnecessary for us independently to trace the history or the incidents of this writ, but it is sufficient to extract a passage from the judgment of Lord Reading, C.J., in Rex v. Speyer : Rex v. Cassel L.R. (1916) 1 K.B. 595, where the learned Lord summarised the law on the point. Dealing with the objection similar to the preliminary objection in the present case, the learned Chief Justice said : (at page 613):
The last ground is that the remedy in this case can only be sought at the instance of the Attorney-General by an information ex-officio, and that the order should be discharged because it is made at the instance of a private person. In support of this contention Sir William Lowther's case 2 Ld. Rayam. 1409 and Ibbotson's case Lee Temp. Hardw. 261 were cited. In both cases the grievance was of a private nature and the Court thought they ought to be prosecuted only by the Attorney-General. Lord Hardwicke, C.J., said : 'We never grant these informations for private usurpations of franchises but the way is to apply to the Attorney-General in such cases.
The distinction is pointed out in Kyd on Corporations, page 416, to the effect that the power of the Master of the Crown Office is confined to cases concerning the public Government, whereas the power of the Attorney-General extends also to cases concerning the private rights of the Crown. In Rex v. Kemp 1 East. 46, n. E.R. 19, Lord Kenyon, C.J., said : 'I do not mean to say that a stranger may not in any case prefer this sort of application; but he ought to come to the Court with a very fair case in his hands,' just as the Court thought it right to inquire into the motives of the applicant to see that the application was not made merely to disturb the local peace of Corporations : Rex v. Brown 3 T.R. 574, n. per Ashurst, J. It cannot be doubted that the application concerns public Government and there is no ground for impugning the motives of the relator. A stranger to the suit can obtain prohibition see Brood v. Perkins (1888) L.R. 21 Q.B.D. 533 and I see no reason why he should not in a proper case obtain an information of quo warranto. Sir George Macgill appears to have brought this matter before the Court on purely public grounds without any private interest to serve and it is to the public advantage that the law should be declared by judicial authority. I think the Court ought to incline to the assistance and not to the hindrance, of the applicant in such a case if the Court has the power, which I think it has. In my opinion the preliminary objection fails.
5. In our opinion it is the principle that is laid down in the above passage that has to be followed by the Indian Courts also. The decision of Chandra Reddy, J., was dissented from inter alia by Bose, J., of the Calcutta High Court in Biman Chandra v. Governor West Bengal , and also by a Bench of the Hyderabad High Court in V.D. Deshpande v. Hyderabad State A.I.R. 1955 Hyd. 36, and it is unnecessary to multiply these dissents. It is sufficient to state that the decision in Chakkarai Chettiar In re (1952) 2 M.L.J. 779, has not been followed by any Court so far as we are aware. We are of the opinion that in the present case, as the bona fides of the petitioner are not challenged, he is entitled to file this writ petition and ask the Court to consider the correctness of his submission, that the appointment is invalid, and that the office is held by one who was not legally inducted into it.
6. We shall now proceed to consider the merits of the case. In view of the conclusion that we have reached, that G.O. No. 499/54, dated 8th April, 1954, validates the appointment, we consider it unnecessary to decide (1) whether the appointment to the office of the Inspector-General of Registration of a person who previously held the office of an Assistant Secretary to the Government needed consultation of the Public Service Commission under the relevant rules and (2) whether Article 320(3)(b) is directory or mandatory.
7. The appointment of the first respondent, though notified on 17th March, 1954, was to have effect only from 18th April, 1954, and the office would therefore be filled only from the latter date.
8. Article 320(3) enacts:
The Union Public Service Commission or the State Public Service Commission, as the case may be, shall be consulted:
(b) on the principles to be followed in making appointments to civil services and posts and in making promotions and transfers from one service to another and on the suitability of candidates for such appointments, promotions or transfers.
9. The proviso to this clause is in these terms:
Provided that the President as respects the All-India Services and also as respects other services and posts in connection with the affairs of the Union, and the Governor or Rajpramukh, as the case may be, as respects other services and posts in connection with the affairs of a State, may make regulations specifying the matters in which either generally, or in any particular class of cases or in any particular circumstances, it shall not be necessary for a Public Service Commission to be consulted.
10. Sub-section (5) of that Article provides the manner in which these regulations, have to be made. Its terms are:
All regulations made under the proviso to Clause (3) by the President or the Governor or Rajpramukh of a State shall be laid for not less than fourteen days before each House of Parliament or the House or each House of the Legislature of the State, as the case maybe, as soon as possible after they are made, and shall be subject to such modifications, whether by way of repeal or amendment, as both Houses of Parliament or the House or both Houses of the Legislature of the State may make during, the session in which they are so laid.
11. It is in pursuance of the power conferred by the proviso to Sub-section (3) and after conforming to the requirements of Sub-clause (5), that the State of Madras issued the G.O. 499, Public (Services) Department, dated 8th April, 1954. The notification is in these terms:
Whereas doubts have been raised as to whether appointment to the post of Inspector-General! of Registration by transfer from the Madras Civil Services (Executive Branch) or from the Madras General Service, Class IX, should be made in consultation with the Madras Public Service Commission;
And whereas it has not been the practice in the past to consult the Madras Public Service Commission in making an appointment to the post of Inspector-General of Registration by transfer from. the Madras Civil Service (Executive Branch) and it was considered that such consultation was not necessary;
And whereas it is necessary for the removal of doubt to make an express Regulation declaring that such consultation is not necessary;
Now, therefore, in exercise of the powers conferred by the proviso to Clause (3) of Article 320. of the Constitution of India, the Governor of Madras hereby makes the following Regulation.
The Regulation hereby made shall be deemed to have come into force on the 1st March, 1954 Regulation.
It shall not be necessary for the Madras Public Service Commission to be consulted as respects any of the matters mentioned in Sub-clauses (a) and (b), Clause (3) of Article 320 of the Constitution, in the case of the post of Inspector-General of Registration in the Madras Registration Service.
12. Mr. Kumaramangalam, learned Counsel for the petitioner, stated that his objection was that the regulation was made retrospective so as to have effect from 1st March, 1954. That date was obviously chosen because the appointment was gazetted on 17th March, 1954. But as we have mentioned earlier the appointment was to take effect only as and from 18th April, 1954. If the Government had the power of issuing another notification appointing the first respondent to the office simultaneously with the publication of G.O. 499, we do not see any legal obstacle in the way of our holding that, even if the Government had no power to validate an appointment retrospectively, on the date when the appointment took effect, it was valid by reason of the amended regulation passed on 8th April, 1954. We are, therefore, of the opinion, that G.O. 499 of 1954 rendered the consultation of the Public Service Commission in the making of the appointment unnecessary, and the appointment of the first respondent which took effect only after 8th April, 1954, was valid.
13. The writ petition therefore fails and is dismissed; but in the circumstances there will be no order as to costs.
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